Tuesday, April 12, 2022
Northwestern University Law Review Online Essay Series
From the Northwestern University Law Review Online:
Northwestern University Law Review Online is seeking essays for its first annual Online Essay Series to be published in May 2023. The topic for NULRO’s inaugural essay series is “Climate Change and Infrastructure: Existential Threats to Our Built Environment." NULRO encourages scholarship on all aspects of the intersection of climate change, infrastructure, and national security. Possible subtopics include economics, ecology, policy, litigation, advocacy, and international concerns. Essays should be between 3,000 to 10,000 words and submitted to Scholastica or via email at [email protected]
If you have any questions, please direct them to Taylor Nchako (Online Editor-in-Chief) at [email protected]
Posted by Sarah Lawsky on April 12, 2022 at 09:33 AM in Law Review Review | Permalink | Comments (0)
Monday, April 11, 2022
Civil Procedure in the Chief Justice's Year-End Report on the Federal Judiciary
Published in Stetson Law Review, part of a SEALS symposium on the Roberts Court's renewed interest in civil procedure.
Posted by Howard Wasserman on April 11, 2022 at 09:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)
University of Florida seeks visitors
The University of Florida Levin College of Law is looking for visiting professors for the 2022-23 academic year. We are accepting letters of interest from professors to teach criminal law, patents, trademarks, antitrust, international law, environmental law, and property. We are open to visitors for one semester or for the entire 2022-23 academic year, depending on the applicant’s interests. Please send a letter, CV with at least three references, and relevant course evaluations, directly to Associate Dean Amy Stein, [email protected].
Posted by Howard Wasserman on April 11, 2022 at 09:07 PM in Teaching Law | Permalink | Comments (0)
Thursday, April 07, 2022
UCLA School of Law seek Legal Research & Writing faculty
UCLA School of Law is seeking a full-time lecturer to teach two sections of the first-year J.D. course in Legal Research and Writing. The opening is for the 2022-23 academic year. The appointment will be effective July 1, 2022.
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Posted by Howard Wasserman on April 7, 2022 at 01:19 PM in Teaching Law | Permalink | Comments (0)
Penn and Capitalizing on the Model Poor Student
I can't stop thinking about this story - every person who cares about academia and students, teaching and leadership, university ethics and the politics of merit, admissions and excellence needs to read this
https://www.newyorker.com/magazine/2022/04/04/mackenzie-fierceton-rhodes-scholarship-university-of-pennsylvania
Posted by Orly Lobel on April 7, 2022 at 02:05 AM | Permalink | Comments (0)
Wednesday, April 06, 2022
A wild hypothetical
So something that proved more complicated than expected.
In transitioning from Subject Matter Jurisdiction to Personal Jurisdiction, we discuss the underlying process of World Wide--Audi and VWA paid for WW and Seaway to successfully challenge PJ through state court and to SCOTUS, then removed when SCOTUS held there was no PJ and the state trial court dismissed the claims against them.
But then I posed the following to the CivPro ListServ and no one could figure out the answer: Suppose the trial court found lack of personal jurisdiction and dismissed the claims against WW and Seaway. The case is now removable. If Audi and VWA remove, how does Robinson appeal the dismissal of the other defendants? Can Robinson's intent to appeal render the case not removable, perhaps by filing a notice of appeal before the Audi and VWA can file the notice of removal? If the defendants get into federal court before Robinson can appeal, his options seem limited.
This hypo is limited because unlikely. The strategy Audi and VWA followed is unavailable in most cases because § 1446(c)(1) prohibits removal of a diversity action that becomes removable more than a year after filing; it takes more than a year to brief and argue a motion to dismiss and more than one layer of appellate review. That limitation did not exist in 1980, which is why Audi and VWA could remove more than 3 years after the suit was filed. So this scenario likely does not arise in either direction.
Still, it exposes an interesting gap in the statutory framework. And it forced some creative solutions. Robinson might ask the federal court to stay the proceedings so the state appeal can proceed (and to not attempt to enjoin the state court from proceeding with the case). Or Robinson might amend in federal court to re-add the dismissed defendants, then ask the federal court to certify the propriety of the PJ dismissal to the state supreme court.
I stumbled on a third possibility this morning--Audi and VWA remove, then Robinson seeks a writ of mandamus to the 1oth Circuit, asking for review of the PJ dismissal. That prior order is part of the removed case. Robinson can satisfy the requirements for mandamus. This is extraordinary case. He does not have other adequate means to obtain relief, because the PJ issue affects whether the case should be in federal court in the first place--if the state court erred, the case should not have been removed and Robinson should not have to litigate in federal court, something that cannot be adequately protected if he must await final judgment in federal court. Robinson also faces the risk that the court of appeals would affirm subject matter jurisdiction, even if it believes the state court erred on PJ, because there was jurisdiction at the time of trial.
However unlikely, a fun problem that might expose a weird hole in the statutory scheme.
Posted by Howard Wasserman on April 6, 2022 at 11:54 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)
Tuesday, April 05, 2022
Tulane Forrester Fellowship - 2022
From Tulane Law School:
Tulane Law School invites applications for a Forrester Fellowship. Forrester Fellowships are designed for promising scholars who plan to apply for tenure-track law school positions. The Fellows are full-time faculty in the law school and are encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support, both formal and informal, including faculty mentors, a professional travel budget, and opportunities to present works-in-progress in various settings.
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Posted by Sarah Lawsky on April 5, 2022 at 01:47 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Personal or Impersonal Precedent?
Our co-blogger Richard Re has a new article coming out in the Harvard Law Review on "Personal Precedent at the Supreme Court." Here is the Abstract:
Personal precedent is a judge’s presumptive adherence to her own previously expressed views of the law. This essay shows that personal precedent both does and should play a central role in Supreme Court practice. For example, personal precedent simultaneously underlies and cabins institutional precedent—as vividly illustrated in the now-pending abortion case Dobbs v. Jackson Women’s Health. Further, the justices’ use of personal precedent is largely inevitable, as well as beneficial in many cases. Still, the justices should manage or reform their use of personal precedent, including by limiting its creation. Finally, and most fundamentally, personal precedent challenges conventional theories of legality. Though typically excluded from the law, personal precedent may actually be its building block.
I want to highlight Richard's piece because there is a significant counterexample in my new book. As a circuit judge, Bushrod Washington held that the Bankruptcy Clause of Article One vested exclusive authority over that subject in Congress. But when the issue came before the Supreme Court, he wrote an opinion upholding the constitutionality of prospective state bankruptcy laws. He explained this by saying that he still thought his circuit opinion was sound, but that subsequent Supreme Court precedent had rejected his view.
Frankly, I think that we see too little of this deference today. In other words, the Justices tend to emphasize personal consistency at the expense of collective consistency. But the right balance is not easy to strike.
Posted by Gerard Magliocca on April 5, 2022 at 09:18 AM | Permalink | Comments (0)
Monday, April 04, 2022
"Favorable termination" requires non-conviction and nothing more
Here is my SCOTUSBlog recap on Thompson v. Clark, decided Monday. Kavanaugh writes for six, holding that favorable termination for a Fourth Amendment malicious prosecution claim need only show that the proceedings ended without a conviction. Alito dissents for himself, Thomas, and Gorsuch, rejecting the idea of malicious prosecution as a seizure under the Fourth Amendment. The result is not surprising given oral argument, down to Alito likening such a claim to mythological creatures--today it is the chimera, at argument it was a centaur).
Posted by Howard Wasserman on April 4, 2022 at 09:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
JOTWELL: Bartholomew on Borchers on tag jurisdiction
The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Patrick J. Borchers, Ford Motor Co. v. Montana Eighth Judicial District Court and "Tag Jurisdiction" in the Pennoyer Era, 72 Case W. L. Rev. 45 (2021), considering Gorsuch's Ford opinion and arguing for corporate tag jurisdiction.
Posted by Howard Wasserman on April 4, 2022 at 03:00 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)
Plain Meaning and Plain Speaking
I've never given much thought to theories of statutory interpretation. But here's one that comes from being involved in some of the Section Three litigation.
Plain meaning arguments are largely circular. For example, suppose I say that the plain meaning of a statute is X. You respond by saying: "But lots of people said that's not so." I respond: "But you can't consider that because the plain meaning of the statute is X." The plain meaning argument therefore excludes some of the best evidence against itself (statements in the legislature, the context of the statute, subsequent commentary, etc.). Circular.
The only time, I think, that a plain meaning argument is not circular is if we agree on the plain meaning but then argue about whether an exception should be made. Maybe I take the strict view of "no exceptions allowed" to the plain meaning. Maybe you say there is some implicit exception or that equity demands one. But we're not in that case disputing the plain meaning of the text.
Posted by Gerard Magliocca on April 4, 2022 at 10:21 AM | Permalink | Comments (0)
Sunday, April 03, 2022
Working and playing on Shabbat
There Orthodox Jewish athletes have entered the Jews-in-sports conversation. Ryan Turrell was the star of some good Yeshiva basketball teams and has declared for the NBA draft; pitcher Jacob Steinmetz (coincidentally, the son of Yeshiva's basketball coach) plays in the Arizona Diamondbacks organizations; and pitcher-turned-catcher Elie Kligman plays at Wake Forest. Each hopes to make the top level of their sports as Shabbat-observant Jews.
What does having Orthodox Jews in The Show entail? According to reports, Steinmetz and Turrell plan to play on Shabbat, while avoiding driving to the game. One commentator sees this as a wise compromise and the evolution of full Jewish participation in American life, in which Jews need not choose between their identities as "Americans" and "Jews."
But how does this square the law of Shabbat, in which we can neither work nor play (barring the workaround they found for Hank Greenberg on Rosh Hashanah in 1934)? Do rabbis apply some sort of "necessity" principle--these players cannot pursue these activities, and thus use the gifts Hashem has bestowed upon them, without this workaround? An everyday baseball player who cannot play on Shabbat is guaranteed to miss about 35 games, almost 20 % of the season; no team could afford to miss a key player for that much of the season. And what might Steinmetz do on Yom Kippur, when (unlike Shabbat) most American Jews take at least a partial day off? It would be ironic if millions of less-observant Jews (and the occasional less-observant Jewish player) take the day off and attend synagogue on Yom Kippur, while a player who follows more of Jewish law and ritual in his daily life takes the mound. Not worried about being a role model for American Jews, he need only worry about the Koufax Curse.
Posted by Howard Wasserman on April 3, 2022 at 08:49 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)