Tuesday, October 22, 2019

All apologies

A storm is brewing surrounding the Houston Astros and their assistant GM, Brandon Taubman. According to a Sports Illustrated report, during the post-game lockerroom celebration on Saturday night, Taubman yelled (several times) towards three female journalists "Thank God we got Osuna! I'm so fucking glad we got Osuna!" This is in reference to reliever Roberto Osuna, who served a 75-game suspension for domestic violence, before signing with Houston this year (the charges, in Toronto, were dropped when the Mexican-national accuser refused to travel to Canada to testify).

The Astros say the story is misleading, that Taubman was supporting the player during a "difficult time" and responding to the "game situation that just occurred," and that the remarks were not directed at any persons. The second point seems odd, because the game situation was that Osuna had blown a two-run lead in the top of the ninth inning, only to have the Astros win it in the bottom of the ninth; it seems odd to shout about being glad to have signed a player who almost gave a clinching game away. MLB announced an investigation into the incident.

Taubman issued the following through the Astros:

This past Saturday, during our clubhouse celebration, I used inappropriate language for which I am deeply sorry and embarrassed . . .In retrospect, I realize that my comments were unprofessional and inappropriate. My overexuberance in support of a player has been misinterpreted as a demonstration of a regressive attitude about an important social issue. Those that know me know that I am a progressive and charitable member of the community, and a loving and committed husband and father. I hope that those who do not know me understand that the Sports Illustrated article does not reflect who I am or my values. I am sorry if anyone was offended by my actions.

Yom Kippur, at which we think hard about apologies and what it means to apologize, has passed. But let's play with this.

Continue reading "All apologies"

Posted by Howard Wasserman on October 22, 2019 at 06:43 PM in Howard Wasserman, Sports | Permalink | Comments (3)

Universal injunctions and mootness

A divided Ninth Circuit affirmed the preliminary injunction prohibiting enforcement of the new regulations regarding the ACA contraception mandate. One issue in the case, which the court ordered briefed, is whether a universal injunction issued by a different district court (and affirmed by the Third Circuit) moots this case. Because the plaintiffs are protected by the other injunction, a Ninth Circuit ruling will not change their situation. (H/T: Brian Cardile of the Daily Journal).

The majority held the case not moot, although some of its analysis does not capture the issue. The court began by discussing the risk of conflicting injunctions, which is not the issue here--the denial of the injunction in the Ninth Circuit would not conflict in the sense of creating competing obligations--the Third Circuit injunction obligates (or restrains) the government from acting as to anyone in the universe, so nothing the Ninth Circuit does changes that. The court also spoke about the territorial limits about its injunction, ignoring that the issue is not geographic where but party who. It said that the injunctions "complement each other and do not conflict." In fact, however, it is not that they complement--it is that they repeat one another, because the Third Circuit universal injunction, which protects the California plaintiffs, renders a second injunction unnecessary.

The majority avoided mootness by applying capable-of-repetition-yet-evading-review. The Third Circuit injunction is preliminary (thus of limited duration) and before SCOTUS on a cert petition, both of which could result in the vacatur of its injunction or at least of its universality. The injury would not be capable of repetition only if the Third Circuit turned this into a universal permanent injunction, which is speculative and far off.

Judge Kleinfeld dissented on mootness, standing, and the merits. As to the different injunctions, he gets it:

That nationwide injunction means that the preliminary injunction before us is entirely without effect. If we affirm, as the majority does, nothing is stopped that the Pennsylvania injunction has not already stopped. Were we to reverse, and direct that the district court injunction be vacated, the rule would still not go into effect, because of the Pennsylvania injunction. Nothing the district court in our case did, or that we do, matters. We are talking to the air, without practical consequence. Whatever differences there may be in the reasoning for our decision and the Third Circuit’s have no material significance, because they do not change the outcome at all; the new regulation cannot come into effect.

This is correct and a proper recognition of what happens when courts take universality seriously.

I am not sure if the proper conclusion is that the appeal becomes constitutionally moot (I am not a fan of justiciability doctrines). Or, as Sam Bray argues, this is a good reason the Ninth Circuit should have stayed its hand.

Update: I took a quick look at the Third Circuit decision affirming the injunction. It misses the point, talking about people who work in different states than they live and the problem of geographic limitations. Again, however, the problem is not where. A protected plaintiff (including a state) is protected everywhere.

Posted by Howard Wasserman on October 22, 2019 at 04:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, October 21, 2019

Why Yom Kippur

Writing on the lack of success enjoyed by Jewish players and their teams on the recent Yom Kippur, Tablet's Armin Rosen hints at an interesting question: Why the focus among American Jewry for players playing or not playing on Yom Kippur (and, to a lesser extent, Rosh Hashanah). Rosen points out that we do not care or expect players not to play on Shabbat, which is arguably more important within the faith.

One answer is the impracticality of a player not playing every Shabbat. The MLB regular season is built around series of 3-4 games, including series every weekend, Friday through Sunday. Except for the Cubs, virtually every Friday game is at night and some (although a smaller percentage) Saturday games are played during the day. Figuring four Fridays and Saturday per month in a six-month season, a Jewish player who would not play on Shabbat would miss 24--48 games. No player could do that and no team could afford to employ that player. Especially not the Cubs, who play most of their Friday and Saturday games during the day.

A second answer is this matches the Jewish calendar for many American Jews. Most do not observe Shabbat. Many who attend Shabbat services otherwise treat it as an ordinary weekend day--I attend morning services, but the rest of the day I might hold a make-up class, coach my daughter's basketball team (in a temple-sponsored league, no less), or spend the day writing. Shabbat is not, for most, a break in the calendar. Rosh Hashanah and Yom Kippur are--schools are closed, many Jews do not work, and those are the two days on which a substantial portion of Jews go to synagogue. The logical leap--if I take this day off, so would a Jewish baseball player. Then it comes to the supposed Halachic difference between the joyous Rosh Hashanah and the somber Yom Kippur.

So fear not, Alex Bregman. Simcha Torah will be over before Game 1 begins tomorrow night.

Posted by Howard Wasserman on October 21, 2019 at 11:41 AM in Howard Wasserman, Sports | Permalink | Comments (3)

VAPs and Fellowships: Open Thread, 2019-2020

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

You may also add information to the spreadsheet.

Posted by Sarah Lawsky on October 21, 2019 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (4)

Friday, October 18, 2019

"Leavenworth" on Starz

This Sunday, Starz airs the first episode of the 5-hour documentary series Leavenworth, directed by Steven Soderburgh and telling the story of Lt. Clint Lorance. Episodes 3 and 5 feature FIU and my colleague Eric Carpenter (a former JAG officer); Eric is interviewed and the program includes footage of students mooting the case in his Military Justice class.

Posted by Howard Wasserman on October 18, 2019 at 12:31 PM in Criminal Law, Howard Wasserman, Television | Permalink | Comments (0)

More post-season infield flies

Twice in one night.

I missed this USA Today piece by Andrew Joseph arguing that the Nationals were lucky in their clinching Game 4 of the NLCS that infield fly was not declared on a run-scoring uncaught bases-loaded blooper to right field that scored the first of four first-inning runs. Joseph compares this with the infamous call in the 2012 NL Wild Card, arguing that the umpire was right not to invoke here, which shows why the 2012 call was wrong (he calls it a "fiasco"). (He provides video links to both plays, so watch for yourself).

I do not understand why the Nationals should be "thankful" the rule was not invoked. They scored one run on the play; that run scores anyway, since baserunners can run at their own risk when infield fly is declared. They scored three more runs in the inning subsequent to the fly ball. Two came on consecutive hits by the two batters following the fly ball, runs which would have scored anyway. The second out of the inning came on a sacrifice bunt by the pitcher, after which the fourth run scored on a hit. The Nats would not have had the pitcher bunt with two outs (as would have been the case had the rule been invoked, making the batter out for the second out of the inning). But who knows what would have happened in that at-bat were the circumstances different--maybe the pitcher is put out and the fourth run does not score, maybe the pitcher manages to get a hit. For that matter, the entire inning could have gone in any direction. The point is that it is not so obvious that an infield fly call would have killed the Nats' rally.

The comparison to the 2012 call is inapt, because the plays are different in significant respects. This year's ball was hit to right field while the 2012 ball was hit to left. Umpires are less likely to invoke on a ball to right field, especially near the foul line, because the first throw to start a double play would be so long that no double play is possible (thus the rule's purpose of preventing a double play by disincentivizing the intentional non-catch is not implicated); this was the area with the fewest infield-fly calls in every season I watched. The Cards' second-baseman also tried to catch the ball sideways, facing the foul line, body language that does not indicate that he was "settled comfortably" under the ball, which is what umpires look for. In 2012, the Cards' shortstop was facing the infield with his hands up, body language indicating he was settled and waiting for the ball to come down and calling his teammates off. The 2012 play owed, in part, to the foul-line ump's perspective--because of his position and perspective, the ump believed the ball was closer to the infield than it was, such that a double play might have been possible (thus the rule's purpose implicated). Or perhaps the ump on the 2012 call was a textualist (thus the call was indisputably correct), while the ump in 2019 was a purposivist (so the unlikelihood of the double play rendered the rule inapplicable).

Anyway, I thought we were past the point that this 2012 call was regarded as the Citizens United of baseball calls.

Posted by Howard Wasserman on October 18, 2019 at 01:20 AM in Howard Wasserman, Sports | Permalink | Comments (0)

The unknown nuances of the Infield Fly Rule

A play in the top of the 8th inning of ALCS Game 4 may have illustrated a finer point of the Infield Fly Rule. It also might have made the announcers' heads explode, had they been paying attention.

The Astros had bases-loaded/1-out when the batter hit a pop-up to the right of second base, about ten beyond the infield dirt. The Yankees shortstop, playing behind second, drifted back and to his left. He turned so he was facing the infield while backpedaling and waving his arms. At the last instance, he was called off by the charging right-fielder, who caught the ball about 15-20 onto the grass.

I do not know whether the umpires declared infield fly. The video does not show the second-base (and nearest) umpire and the announcers did not say anything (such as "infield fly rule is in effect", as they did on an obvious ball near the mound in the top of the 9th). It appears it should have been called: The second baseman was in position to catch the ball and while backpedaling a bit, he was moving less and less far than the infielders on dozens of plays I watched over seven seasons on which the rule was invoked. He was trying to wave-off his teammates. And the ball was close enough to the infield and to second base that a double play might have been in the offing without the rule.

Had the rule been obviously invoked, it would have illustrated an important principle under the rule: It can be invoked when an outfielder handles the ball, if the ball could as easily have been handled by an infielder. Which was the case here--the second baseman looked ready to catch the ball, until the right-fielder called him off and made the catch. And it would have sparked a fascinating (and likely ill-informed) discussion among the announcers about the rule, as they struggled to figure out and explain how IFR was invoked on a ball caught by an outfielder. Too bad; it would have been a fun discussion.

Posted by Howard Wasserman on October 18, 2019 at 12:05 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, October 17, 2019

Ramos and the Fate of Fragmented Rulings

In Ramos v. Louisiana, the Court is considering whether to hold that the Sixth Amendment requirement of jury unanimity applies to states via the incorporation doctrine. But a lot of the Court’s discussion at oral argument focused on issues of stare decisis, particularly what to do with fragmented decisions. Is the Court bound by its prior 4-1-4 rulings; and, if so, what rule is binding? Surprisingly, this question—which I have explored before—bears directly on whether the defendants in Ramos can prevail.

Continue reading "Ramos and the Fate of Fragmented Rulings"

Posted by Richard M. Re on October 17, 2019 at 10:45 AM | Permalink | Comments (3)

The Chief Justice and the Impeachment Trial

The upcoming Senate impeachment trial will be different from the one that many of us remember--the trial of President Clinton. In that case, there were no witnesses presented to the Senate. The facts were laid out in the Independent Counsel's report. The "trial" was basically a series of speeches by the House managers and by the President's lawyers. As a result, Chief Justice Rehnquist did not have to do much and kept a low profile.

This time around, there will be witnesses. Plenty of them. This means actual questioning and cross-examination. That, in turn, means that the Chief Justice will have to make a lot more rulings and will play a larger role. A particularly tricky issue, one would think, will be how to handle the identity of the whistleblower. In an impeachment trial, do the principles of the Sixth Amendment apply? Should the President be able to call the whistleblower and compel him or her to testify in the Senate? Here's a separate issue. Can the President invoke executive privilege to stop people from testifying if the House managers call them? There is no precedent for that, but who knows what the Chief will say if asked.

Granted, the Senate can overturn any ruling by the Chief Justice with 51 votes. (A tie means that the Chief's ruling stands). In practice, though, some Republican Senators might be reluctant to do this because that would make the trial look too political. I would note also that, while a Senate trial of a president is obviously political, the presence of the Chief Justice and the trappings of a trial tend to push lawyers and Senators more in a legalistic direction. (This was especially true during Andrew Johnson's trial.) 

I'll have more on this soon.

Posted by Gerard Magliocca on October 17, 2019 at 09:03 AM | Permalink | Comments (10)

Wednesday, October 16, 2019

JOTWELL: Bookman on new approaches to dispute resolution

The new Courts Law essay comes from Pamela Bookman (Fordham), reviewing Matthew Erie, The Emergent Landscape of International Commercial Dispute Resolution, ( Va. J. Int'l. L., forthcoming 2020) and Will Moon, Delaware's New Competition (Nw. U. L. Rev., forthcoming 2020), exploring new procedural mechanisms for handling business disputes in other countries.

Posted by Howard Wasserman on October 16, 2019 at 11:45 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 15, 2019

Legislative Capacity and the Law

Andrew Coan has recently written an excellent book (the subject of a Symposium on Balkinization) explaining how the limited capacity of the Supreme Court to decide cases filters into the substantive doctrine that the Court generates. This got me to thinking--could you not say the same about Congress?

In other words, the size of Congress has changed hardly at all since 1913. (Except that the Senate has four more members). The demands upon Congress and the population of the nation, though, have grown by leaps and bounds since 1913. How has Congress reacted? Partly through a large increase in its staff and support (for instance, the CBO). But mainly by creating federal agencies and delegating power to them.

Undoing some aspects of the administrative state, therefore, might require increasing the size of Congress. Conducting the necessary oversight to legislate more precisely or do the work that agencies currently do may not be possible without more members too share the work. And since the Senate cannot be made larger without admitting more states, the only remedy involves increasing the size of the House of Representatives. Perhaps this would be a better balance between legislative and administrative authority--I don't know. What I do know from my research is that Congress was not thinking about when they fixed the number of House members at 435 in 1929. Four years before the New Deal.

Posted by Gerard Magliocca on October 15, 2019 at 09:42 PM | Permalink | Comments (4)

A progressive SCOTUS short list

The progressive group Demand Justice has issued a Supreme Court Shortlist, offering 32 names for SCOTUS appointments by a new Democratic President. It is an interesting list.

It contains only two federal court of appeals judges--Jane Kelly (8th Circuit, a short-lister for the Garland nomination), and Cornelia Pillar (D.C. Circuit). And not Patricia Millett of the D.C. Circuit, who had become the left's darling with her opinions in the undocumented-immigrant-abortion cases.

The list consists of 17 women and 13 men. Besides the two court of appeals judges, thirteen do some sort of public-interest representation, seven are in the academy,* four are on a state court (three on the Supreme Court of California, including Goodwin Liu, who Obama tried to put on the Ninth Circuit), four serve in elected or appointed office, and two serve on a federal district court. The organization expressly sought to move away from the former prosecutors and law-firm partners who have dominated among Trump appointees.

[*] Sharon Bloch (Harvard), James Forman, Jr. (Yale), Pam Karlan (Stanford), M. Elizabeth Magill (Provost at UVa, former dean at Stanford), Melissa Murray (NYU), Zephyr Teachout (Fordham), and Tim Wu (Columbia). Plus, Sherrilyn Ifill of the NAACP LDEF was on the faculty at Maryland and Rep. Katie Porter (Cal) was on the faculty at Iowa and Irvine.

The list is short on federal judicial experience, making it a throwback to a time when judicial experience was not regarded as essential to a SCOTUS seat and when service on a state court was respected judicial experience for that position. I wonder if this is a SCOTUS shortlist or a good place for a Democratic President to begin filling lower-court seats.

I am surprised our own Steve Vladeck did not make the cut. The combination of his scholarship, public advocacy, and recent litigation experience places him within the legal milieu reflected on the list.

Posted by Howard Wasserman on October 15, 2019 at 05:42 PM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

Interview with Stuart Benjamin from Duke Law on its Visiting Assistant Professor Program

I’m excited to announce the latest interview in my series on VAP and fellowship programs. This interview is with Stuart Benjamin, the Douglas B. Maggs Professor of Law and co-director of the Center for Innovation Policy at Duke Law School. He spoke to me about Duke’s Visiting Assistant Professor Program. An edited transcript of our conversation is below, and I have invited Stuart to respond to any questions in the comments. Thanks, Stuart, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here. For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at https://teach.aals.org/


Q.: Can you start by telling me about Duke’s VAP programs?

A.: We have one main VAP program and, by design, it is a very small program. And so we hire anywhere from zero to two VAPs a year. We keep it that small because we want to make sure that the VAPs have a great experience and can be fully part of the faculty. Ultimately, because of the small size of the program, we really can make sure that they get a lot of attention and a lot of feedback that will really benefit them.

Continue reading "Interview with Stuart Benjamin from Duke Law on its Visiting Assistant Professor Program"

Posted by Jessica Erickson on October 15, 2019 at 03:24 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

LeBron James: Shut up and make trades

You would think that LeBron James--who has used his expressive platform more than most mega-stars and has been told on more than one occasion to "shut up and dribble"--would support an NBA colleague attacked for doing the same. You would be wrong.

Everything LeBron said could have been (and has been) applied to his statements on subjects such as Black Lives Matter, police violence, the killing of Eric Garner, etc.: 1) Morey was not educated on the subject (Taiwan Hong Kong) about which he spoke (while admitting it was just his "belief" that Morey was not informed); 2) people could be harmed as a result of his speech; 3) bad things can happen from the exercise of free speech and you cannot think only of yourself when deciding what to say, on or off Twitter. Ironically,the Morey tweet was supported people protesting in favor of democracy and who were subject to police violence--the very ideas James purport and support in his speech.

Posted by Howard Wasserman on October 15, 2019 at 07:10 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (3)

Sunday, October 13, 2019

Some Books to Recommend

There are three new books that are worth your time, IMHO. 

First, there's my former colleague Frank Bowman's new one on impeachment, entitled High Crimes and Misdemeanors. Timely reading, to say the least.

Second, there is David Schwartz's new one on McCulloch v. Maryland, entitled The Spirit of the Constitution. It's the best book ever written on McCulloch.

Finally, there  is Carlton Larson's new on treason during the Revolutionary War, entitled The Trials of Allegiance. Another superb piece of scholarship.

Posted by Gerard Magliocca on October 13, 2019 at 08:03 PM | Permalink | Comments (1)

When is it ok to miss an important ballgame?

On the heels of three Jewish players playing in late or elimination games on or after Yom Kippur comes a new controversy: Nationals reliever Daniel Hudson missed Game 1 of the NLCS (where he was not needed, as starter Anibal Sanchez took a no-hitter into the 8th inning) to be in the hospital for the birth of his daughter. Critics came out in force, not only from the Twitter cesspool, but from mainstream-media types and from former Marlins exec David Samson. Teammate Sean Doolittle defended Hudson with what should be the final word on the subject: "If your reaction to someone having a baby is anything other than, ‘Congratulations, I hope everybody’s healthy,’ you’re an asshole."

The criticism of players missing games in baseball and other sports to be there for childbirth (which my colleague Kerri Stone wrote about a few years ago) is fairly constant, at least if the game is important enough. So what would happen if a Jewish player did miss an important post-season game because of Yom Kippur? We assume that the player would be honored as Sandy Koufax and Hank Greenberg were (not only by Jews, but by all fans), but perhaps not. It is easy to reframe ESPN's Jay Greeson's tweet as "But if you're making $5.5 mil a year and your team needs you to close in the NLCS, well, I'd say go get 'em mom Rabbi."

Continue reading "When is it ok to miss an important ballgame?"

Posted by Howard Wasserman on October 13, 2019 at 12:15 PM in Howard Wasserman, Sports | Permalink | Comments (6)