Friday, August 14, 2020

Section Three and the Confederacy

One of the ironies of the Fourteenth Amendment is that Jefferson Davis was one of the first people to claim its protection (during the preliminaries of his treason trial). Another irony involves the opinion given by Attorney General Augustus Garland in 1885 that construed Section Three of the Fourteenth Amendment narrowly.

The question presented was whether a former lieutenant in the United States Army who then served in the Confederate Army was covered by Section Three given that he was pardoned by President Johnson in 1867. The Attorney General concluded that Section Three did not apply, in part because the pardon should be construed as a legal erasure of his Confederate service. He cited Ex Parte Garland as part of the authority for that proposition. Who was Garland in Ex Parte Garland? Augustus Garland, now the Attorney General. (Must be fun to cite your own case.)

The Attorney General went on to say that Section Three could not be read to support "an absurd and unjust consequence" and that imposing this legal disability would be absurd and unjust. Garland said that his view was backed by Slaughter-House, "where the court refused to adopt the full meaning of certain general words in the first section of the fourteenth amendment in order to avoid an interpretation that would have involved 'so great a departure from the structure and spirit of our institutions.'"

Garland's opinion is especially interesting because he was a member of the Confederate Congress during the Civil War and also received a pardon from President Johnson. (Section Three did not apply to him because he was only a presidential elector before the Civil War, which was not clearly within the categories listed in Section Three.) Then he was elected Governor of Arkansas, Senator from Arkansas, and became the first post-bellum Democratic Attorney General.   


Posted by Gerard Magliocca on August 14, 2020 at 02:51 PM | Permalink | Comments (2)

Wong Kim Ark Held That Children of Immigrants Were Natural Born Citizens

When Howard Wasserman and Ediberto Roman are right, they're right: Kamala Harris is a natural born citizen eligible to the presidency, and therefore to the vice presidency under the last sentence of the Twelfth Amendment. A fact perhaps not all students of the subject know: Presidential eligibility was specifically litigated in the Wong Kim Ark case, which held that the children of unnaturalized Chinese migrants born in the United States were U.S. citizens.  In the Supreme Court, the Department of Justice explained the importance of denying birthright citizenship to Chinese American children:

Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth? If so, then verily there has been a most degenerate departure from the patriotic ideals of our forefathers; and surely in that case American citizenship is not worth having.

Brief for the United States at 34, United States v. Wong Kim Ark, 169 U.S. 649 (1898) (No. 95-904), reprinted in 14 Landmark Briefs and Arguments of the United States Supreme Court: Constitutional Law 37 (Philip B. Kurland & Gerhard Casper eds., 1975).

Nevertheless, the Court found that American-born Chinese people were U.S. citizens.  Engaging in analysis which might fairly be called an example of Derrick Bell’s interest convergence thesis, the Court noted that a contrary conclusion “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.” 169 U.S. at 694. So Wong Kim Ark put children of non-white immigrants in the same boat as the children of White immigrants. 

Another possibility, which I suggest should be considered just as seriously and respectfully as other notions running around, is that because the Citizenship Clause of the Fourteenth Amendment made only "citizens" and not "natural born citizens," no one is eligible to be President who was born after the effective date of the Amendment, July 28, 1868.  The law, after all, I think all would agree, is the law, and must be scrupulously followed regardless of any personal preferences we may harbor.

Posted by Jack Chin on August 14, 2020 at 12:26 AM in Constitutional thoughts, Legal History | Permalink | Comments (2)

Thursday, August 13, 2020

Birtherism 2.0 more insidious than Original Recipe

Counter-arguments from top-line conservative scholars will not be enough to slow this tide. Original Recipe was based on a provably false factual premise--Obama was not born in Hawaii--that allowed it to be dismissed as the ravings of people living in an alternative factual reality. But 2.0 is not about a fact--no one questions that Harris was born in California. Instead, 2.0 is based on a legal argument; however weak and contrary to every judicial and scholarly position the argument, editors (such as those of Newsweek) can rationalize it as a point of scholarly disagreement and a constitutional debate "unlikely to fall quiet any time soon." And the President, editors, and others will bolster the legal position--however descriptively incorrect--by argumentum ad verecundiam, pointing out that Eastman is "very highly qualified and talented" and that he clerked for Justice Thomas and used to be a dean.

Two thoughts on responding. First is to recognize that this is a legal rather than factual dispute. The response cannot be "Eastman is wrong and Harris is eligible because she was born in California;" no one disputes that.* Eastman's argument is that she is ineligible even thought she was born in California, because she was born to non-citizen parents. Second, the conversation must emphasize the difference between descriptive and normative arguments. Descriptively, the prevailing state of current law is birthright citizenship, which makes Harris eligible. Eastman (and soon Trump) is making a normative argument about what he believes the law should be. Any conversation must show why that vision is wrong.

[*] For the moment. Once the fever swamp gets hold of this, who knows where she will have been born or what explanation there will be for why California was not properly admitted to the Union.

Two questions. First, will we see a spate of lawsuits (as we did in 2008) challenging Harris' placement on the ballot, which will be dismissed for lack of standing. Second, if Biden/Harris wins, do they get an OLC opinion on the subject?

Posted by Howard Wasserman on August 13, 2020 at 09:08 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

More on Section Three of the Fourteenth Amendment

I'm pleased to say that I've found many more interesting items about Section 3 of the Fourteenth Amendment. To wit:

1. Congress started waiving the disability imposed by Section Three before the Fourteenth Amendment was ratified. In June 1868, private acts were passed by the required 2/3 vote exempting various individuals (including a Congressman-elect from Tennessee). How could Congress exercise that power before the Fourteenth Amendment was ratified in July 1868? Good question.

2.  Section Three became a major political issue in 1871 and 1872. Republican critics of President Grant (the so-called "Liberal Republicans") asserted in their party platform that amnesty should be given to all ex-Confederates in the name of sectional reconciliation. This partly explains why Grant asked Congress to grant a partial amnesty in 1871 and Congress then followed through in 1872.

3. Another rationale for amnesty was that it was a carrot to induce some ex-    Confederate leaders to oppose the Ku Klux Klan. President Grant took strong actions against the Klan in 1871 (aided by Congress) including a suspension of habeas corpus in parts of the South. Amnesty was supposed to aid in the Klan's suppression, or at least get more buy-in from white southern elites.

4. Even after the partial amnesty was granted by Congress, some ex-Confederates were still ineligible for office under Section Three. In 1885, the Attorney General gave a remarkable opinion construing Section Three narrowly and cited Slaughter-House (of course) in support of that narrow reading. This opinion deserves a whole separate post.

Posted by Gerard Magliocca on August 13, 2020 at 04:07 PM | Permalink | Comments (4)

Tuesday, August 11, 2020

Section Three of the Fourteenth Amendment

Section Three of the Fourteenth Amendment provides: 

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

There is almost no scholarly commentary on this provision, though my friend Mark Graber is writing a book on the Fourteenth Amendment that will look at this part of the Constitution more closely. I've started looking into what happened to Section 3 after ratification, and I've found some very interesting things. Enough for a paper. (And you thought every nook and cranny of the Constitution was covered.)

  1. Was Section Three self-executing? 

Chief Justice Chase thought that the answer was no. In a circuit opinion he wrote in 1869, he said that Congress needed to legislate to make Section 3 operative. The alternative was that every decision taken by a now-ineligible official was void, and this would mean that many criminal convictions would be invalid. He said that this sort of serious disruption should not be accepted when an alternative construction was available.

2. Was Section Three a punishment? 

Chief Justice Chase said yes. He thought that Jefferson Davis could not be tried for treason because the Double Jeopardy Clause was implicated by Section Three. The issue never reached the Supreme Court, though, as Davis was pardoned by Andrew Johnson.

3. How was this enforced?

In 1870, Congress passed a law stating that the relevant United States attorney was authorized to bring an action to unseat any official covered by Section Three whose disability was not removed by Congress. Moreover, the law said that these actions were to be given priority on the docket of a federal court and that it was a misdemeanor to hold the office illegally. Many actions were then brought (against more than one Justice of the Tennessee Supreme Court, for example).

4. How did removing the disability work?

People applied to Congress for a pardon. (There was even a standard form.) In fact, some people received a pardon before the Fourteenth Amendment was even ratified. These "pardons" were presented to and signed by the President, though there was no agreement on whether that was required.

5. And then?

In 1871, President Grant asked Congress to grant a broad Section 3 amnesty. Congress (for reasons I don't yet fully understand) did so in 1872 with John Bingham's backing. Charles Sumner tried to attach his civil rights bill to the amnesty (as Michael McConnell explained in his article on Brown and the original understanding) which led to protracted debate.

Finally, in 1898 (with the Spanish-American War in the offing), Congress gave amnesty to those not covered by the 1872 Act as a symbolic gesture. 

And so the next article begins.


Posted by Gerard Magliocca on August 11, 2020 at 08:52 PM | Permalink | Comments (5)

ICYMI: Ten (No, Make that Nineteen) Tips for New Law Professors

I wrote these tips a few years ago and reviewed them before reposting for anyone who is interested.

1.  Begin a little more strictly than you mean to go on.  If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.

2.  If you put a policy in the syllabus, stick to it even if you think you might have been wrong.  I learned this the hard way.  The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam.  After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it.  I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that.  Thankfully, he backed me up, but I never again made a major policy shift midstream.  She wasn't the only disgruntled student that day, either.

3. Put everything you can think of in the syllabus, even things that should go without saying.  For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is.  You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong.  More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism.  Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand.  Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.

4. "Don't be moody." 

Continue reading "ICYMI: Ten (No, Make that Nineteen) Tips for New Law Professors"

Posted by Lyrissa Lidsky on August 11, 2020 at 05:08 PM in Lyrissa Lidsky, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (12)

Building Connections Among Your Students -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here.  This post and other recent posts focus on the third step—building connections and community in our physically distanced, remote, or hybrid courses.

In a prior post, I discussed this importance of building connections and community in our courses this fall.  According to the community of inquiry model, if we want to design an effective learning environment, we should consider three types of interaction—(1) how students interact with the material, (2) how they interact with us, and (3) how they interact with each other.  My last post focused on how students can connect with us in these new learning elements, while this post will focus on how we can provide opportunities for students to interact with each other. 

Prioritize Group Assessments & Activities.  We are all rethinking how we will assess and engage students this semester, and with all of the challenges, it can be tempting to simplify and do more lecturing or individual assessments, especially if you are teaching in a physically distanced classroom where group work is far more difficult.  But the cost of choosing more individual assessments is that students will feel even more disconnected from each other.  We need to figure out how to get students talking to each other, even in physically distanced classrooms.  As I’ve talked about previously, it should still work to have students work in groups of two or three even in a physically distanced classroom, and it’s worth the effort even if it feels complicated to get students to work together while in masks.  You might even hold events outside of class that are more informal, like discussions of current events related to the class or a movie watching party.

Continue reading "Building Connections Among Your Students -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses"

Posted by Jessica Erickson on August 11, 2020 at 03:14 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (5)

JOTWELL: Steinman on Jacobi & Sag on laughter at SCOTUS

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019), analyzing the frequency of laughter during SCOTUS arguments and its dark side as a "weapon of advocacy."

Posted by Howard Wasserman on August 11, 2020 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, August 10, 2020

Hate Speech Returns to Campus

Students are returning to campus soon, and with them they are sure to bring more controversies over where the lines are drawn between free speech and speech that may be censured and censored.

Just last week, a controversy broke out at Princeton about a student's use of the n-word in social media. A white Princeton student responded on Facebook to a Black Fordham graduate who posted "We know you hate n---s" by saying that the Black graduate had gone to prep school and could not "speak for the n---s." This incident followed publication by a Princeton classics professor of an op-ed questioning some of the racial justice proposals made in a faculty petition to Princeton administrators; in that op-ed, the Professor called one Black student group a "terrorist organization."

Inevitably, Princeton administrators issued statements deploring the speech used in both incidents. With regard to the white student's use of the n-word, administrators branded it “contrary to Princeton’s commitment to stand for inclusivity and against racism” but said that the speech nonetheless did not violate university policy. Similarly, the President of Princeton condemned the classics professor's labeling of the student group as a terrorist organization, calling it "irresponsible and offensive," but the President said the speech was nonetheless protected by university policy.  

Many students rejected these conclusions on the grounds that a university committed to inclusion cannot tolerate hate speech. Their views seem to mirror those found in a recent survey:  81 percent of students on college campuses said that colleges should not punish offensive speech, but when asked whether colleges should restrict racial slurs, 78 percent said yes.  Moreover, seventy-one percent of students surveyed believed colleges should be able to restrict the wearing of costumes that involve racial or ethnic stereotypes. 

Unlike other campus free speech controversies, Princeton's are not governed by the First Amendment, because Princeton is a private university. State universities like mine are forbidden by the First Amendment from punishing protected speech, but Princeton is not. Nonetheless, Princeton seems to have adopted policies that protect free speech on its campus to the same extent the First Amendment does.

In my experience, many students and faculty, among others, are often surprised to discover the First Amendment protects a great deal of deeply offensive and even hateful speech. Indeed, the Supreme Court has stated: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Though many countries criminalize hate speech—that is, speech that demeans or dehumanizes a person or group based on their race, religion, ethnicity, sex, or sexual orientation—hate speech simply is not a legal category in the United States. Hate speech uttered within a classroom can be punished because it substantially disrupts the learning environment, but hate speech uttered by students speaking as citizens in public spaces—including online spaces--usually cannot. In that situation, state universities can only punish a student’s hate speech if it happens to fall into a recognized category of speech that is unprotected by the First Amendment. These categories include incitement, threats, defamation, discrimination against an individual, or fighting words.  The Princeton student’s Facebook post occurred in an online conversation about a public issue and did not fall into any of these categories. Had he been a public university student, the First Amendment would tie the hands of administrators seeking to censor or discipline him, leaving them to resort to counterspeech asserting that his speech did not comport with their values.

To many students today, the First Amendment's recommended response to hate speech is no longer satisfactory. Throughout our history, the First Amendment has asked us to put up with speech that evokes strong emotions based on a belief in the protective and healing power of discourse and the ability and willingness of citizens to come together and speak out against hate. What’s happening now in our country—with engaged students and other citizens speaking out and marching against racist violence, racist policies, and racist iconography—is exactly what our First Amendment envisions. In the long run, counterspeech is supposed to drown out hateful voices and sweep away repugnant ideas through the process of public discourse. 

Yet, to many critics, the victory of counterspeech over hate speech seems uncertain and counterspeech seems an insufficient remedy for the emotional wounds that hate speech causes. What they would prefer is an authoritative declaration that some speech, and some thoughts, are outside the bounds of civilized discourse and need not be tolerated. They take little solace from the arguments that I find compelling: that we have chosen this path because the power to censor is more often used to protect the powerful than the powerless, and we trust citizens more than we trust our governments to decide which ideas will prevail in the competition for adherents. Moreover, consensus formed through public discourse lends legitimacy to policy outcomes. Critics of the counterspeech cure would seemingly reject the lofty rhetoric of Justice Louis Brandeis, who once wrote that the First Amendment presumes “that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” From their perspective, "evil counsels" have for too long drowned out good ones, and government power should be used to drive out the evil counsel of racists for good. The problem with this stance is that it depends on the benevolence and good faith of our government leaders or administrators in deciding whose views are so far out of bounds they can't be tolerated. Such benevolence or wisdom or restraint is certainly not something I take for granted, especially not now. 

Nevertheless, I know that in the war of generations, the younger always wins.  I just wonder what victory looks like.

Posted by Lyrissa Lidsky on August 10, 2020 at 01:25 AM in Constitutional thoughts, Culture, Current Affairs, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (7)

Saturday, August 08, 2020

Podcasts on cancel culture

Since I have been writing about cancel culture this week, here is an episode of Noah Feldman's Deep Background podcast, featuring Osita Nwanevu of the New Republic discussing cancel culture and why it is not a threat to free speech. On that note, Nwanevu debated Yascha Mounk on the subject on Slate's The Gist.

Posted by Howard Wasserman on August 8, 2020 at 02:19 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Friday, August 07, 2020

Standing for nothing

I agree with the majority of the en banc D.C. Circuit that the House has standing to enforce its subpoena against former W.H. counsel Don McGahn.

But it reaffirms how little sense standing makes as a threshold Article III inquiry. As Marty Lederman notes, more important questions remain about whether the House has a cause of action, whether there is testimonial immunity, and other executive-privilege objections to the subpoenas. But we now have spent 17 months fighting over this issue and are no closer to a resolution before January 3, when Congress ends, the subpoena expires, and the whole mess becomes moot.

Worse, some of the arguments and disagreement between majority and dissent conflate standing and merits, a common and unavoidable problem. For example, McGahn and Judge Griffith's dissent argue that the House lacks standing because the case raises separation of powers problems and separation of powers underlies standing (sort of). But those stand-alone S/P concerns go to the merits of the case--to whether the subpoena or something sought through the subpoena is valid or whether the executive/legislative balance protects against some disclosures. The result is an attempt at double-counting: Using the possible failure of the House subpoena on its merits with what is supposed to be, but is not, a distinct question.

The court also splits on questions of legislative/executive cooperation and bargaining and perverse incentives that arose in Mazars. The majority argued that without judicial enforcement, the executive would have no reason to bargain, because the House would have no alternative means to ensure compliance (the executive may not pursue contempt against itself and inherent contempt authority has fallen into disuse). The dissent argues that the House will run to the courts rather than negotiate (this is the same argument the Chief Justice used in Mazars).

Posted by Howard Wasserman on August 7, 2020 at 02:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Some Thoughts on Qualified Immunity

I teach about qualified immunity on a regular basis but have never written an article on that topic. It's one of those doctrines that I often think of writing about but then say "Nah" because I'd rather write about something else. Still, I thought I'd offer some thoughts on what is a growing conversation.

My starting point is that I think the current doctrine is erroneous as a matter of law and policy. I think, though, that the proper remedy lies with Congress and with the state legislatures. A couple of states have already reformed their official immunity doctrines this year, and I expect that more will do so next year.

Why do I prefer this route? One answer is that qualified immunity should not be a one-size-fits-all concept. The Supreme Court's decision to apply the same standard to all governments officials who exercise discretion was a mistake. There are many kinds of government officials who perform very different sorts of tasks. Some may deserve qualified immunity. Some may not. And some might deserve that only if certain conditions are met. Legislatures can make these sorts of distinctions in a much better way than courts. 

A second answer is that I don't see the Supreme Court doing anything with its qualified immunity precedents with the current zeitgeist on stare decisis. Statutory stare decisis, we've been repeatedly told, is the strongest kind. And when the precedents in question are under discussion in Congress and in the states, that just gives the stare decisis crowd another reason to say that they should not act. The certiorari denials in the recent petitions challenging qualified immunity signal that fact loud and clear.

That said, I can see the Court applying qualified immunity in a less stringent way. To my mind, another fault in the current doctrine is that "clearly established law" is  a standard that gives courts too much discretion in saying when immunity applies. "It's clear to us" is easy to say assuming that a constitutional violation occurred. It's just as easy to say "it's not clear to us." There is no objective standard of clear in contested cases. Thus, the Court could adhere to its qualified immunity standard but just start saying that more cases do not warrant immunity, as a way of sending a message to the lower federal courts. Do I think that will happen? Probably not, but I'm not sure. 

Posted by Gerard Magliocca on August 7, 2020 at 09:02 AM | Permalink | Comments (2)

Building a Rapport With Your Students -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here.  This post and other recent posts focus on the third step—building connections and community in our physically distanced, remote, or hybrid courses.

 In my last post, I discussed this importance of building connections and community in our courses this fall.  According to the community of inquiry model, if we want to design an effective learning environment, we should consider three types of interaction—(1) how students interact with the material, (2) how they interact with us, and (3) how they interact with each other.  This post will focus on second element, or how students interact with us.  It will be an adjustment for sure, but even if our students are behind masks or a video screen, there are a number of things we can try to build meaningful connections with them. 

Welcome Videos:  Record a short video of yourself to introduce yourself to your students.  Make it fun.  Show your kids, your pets, whatever!  Let them see you as a person rather than just the teacher behind the mask at the front of the room.  You might also talk about what makes the course important/relevant/fun and how they can succeed in it.  Here’s a good example of a script for this sort of video.  You might also have students record short videos of themselves in the first week of class.  You can use your learning management system or a tool like Flipgrid to do this.  You might ask them to give their name, their hometown, and a fun fact about themselves.  Or you can tie it into the course content.  If you teach Civil Procedure, for example, you might style the welcome video as a chance for them explain their citizenship for subject-matter jurisdiction purposes.  You learn a lot about someone by hearing about where they intend to remain indefinitely and why!  Encourage the students to have fun with the videos and then make them all accessible to the whole class, so they can get to know each other a bit better.  

Learn their names quickly.  Try to learn every student’s name, ideally in the first week of class.  Your learning management system may have photographs of the students in your classes.  Our tech team here has used these photographs to create a matching game that professors can use to quiz themselves on your students’ names, but you can just study the photographs as well.  In larger in-person classes, consider having them use name tents for a few weeks.

Continue reading "Building a Rapport With Your Students -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses"

Posted by Jessica Erickson on August 7, 2020 at 06:45 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

Thursday, August 06, 2020

Emergency bar admission rule for law grads

This week, the American Bar Ass'n passed Resolution 10G, which urges states to cease in-person bar examinations until which time that they can be carried out with appropriate attention to the examinees' public health.  It further invites states to consider which mechanism of licensure is appropriate, whether providing a remote bar exam (if that could be administered effectively, given technology issues), limited practice under professional supervision, a diploma privilege, or some other device. 

This resolution is merely advisory, as these choices are all made within the states, and typically via the state high court.  Moreover, the resolution comes too late for the graduates in the twenty-three states that late last month gathered to take in-person exams.  There is one documented case (Colorado) of an examinee testing positive for COVID-19.  We can only wonder whether and to what extent there are other cases.

I was pleased to participate in the debate on behalf of this resolution, a resolution supported by myriad organizations within the ABA.  Notably, however, members of the board of trustees of the Nat'l Conference of Bar Examiners opposed this resolution.  Curious and dispiriting, but ultimately unsuccessful, as the resolution passed by a wide margin.

Prof. Deborah Merritt of Ohio State gave oral testimony to the House of Delegates on this matter.  It is an especially cogent statement of the dilemma and the reason for decisive action.  I reproduce it here in full:

"Thank you, Mr. Chair. This is a very simple resolution. It calls first on states to postpone in-person bar exams until health authorities declare them safe. That is a necessary recommendation. By the end of this month, COVID-19 will be the third leading cause of death in the United States. For most victims, it is a prolonged, painful, and lonely death—one without family or loved ones at their side. Even for victims who survive, there are long-term consequences that we are just starting to understand. That’s not what we want for applicants to our profession. Nor is it what we want for the support workers who will clean the toilets, floors, tables, snack bars, and hotel rooms used by these applicants.

Gathering hundreds of young adults in a single city spreads COVID-19, especially when those adults come from all corners of the state and country. It is horrible to think of an exam-taker falling ill from COVID-19, lying helpless on a ventilator, and perhaps dying from this disease. It is equally horrible to think of low-income workers suffering that fate because our profession was not willing to adopt alternative methods of licensing during a fatal and uncertain pandemic.

This resolution also urges states to adopt one of those alternative methods, rather than simply halt licensing. That recommendation is just as important. Half of newly licensed lawyers work for government agencies, nonprofits, or law firms with fewer than 10 lawyers. New attorneys are an essential part of the team in those offices. I know this because I have taught those new lawyers for 36 years and closely followed their work after graduation. Many of you know this too: You work with new lawyers in the organizations and law firms that serve the most vulnerable clients. If states don’t find alternative ways to license these lawyers, even if just through well-supervised, temporary licenses, we will be reducing the flow of legal support to disadvantaged members of our communities—just when the pandemic and economic hardships have dramatically increased their legal needs.

I have just completed a nationwide study of the work that new lawyers do, as well as the knowledge and skills that they need for their work. Together with the Institute for the Advancement of the American Legal System and more than two dozen researchers, we held 50 focus groups with new lawyers and their supervisors in 18 locations around the country, from rural North Carolina to Silicon Valley. I led that project, have read all of the transcripts, and coded the data. I know from that work that there are many ways to assess minimum competence on an emergency basis, during this pandemic only, that won’t impose the health risks of an in-person exam. The resolution leaves the choice of method to jurisdictions.

This is not a resolution about the future of the bar exam—or about granting diploma privilege to all 2020 graduates. A few states have chosen that route, and this resolution recognizes that. This resolution is about many ways to solve a once-in-a-lifetime urgent problem. We have ways to solve this problem that will preserve access to justice, protect the integrity of the profession, and respect the health of our communities.

One of those ways is through a remotely administered, online exam. That’s what the third part of this resolution addresses, laying out a series of recommendations that are simply best practices for an online, high-stakes exam. Most of these appear in the Standards for Educational and Psychological Testing, known as the “Bible” to all test-makers and administrators. These are the standards that NCBE itself follows.

We cannot administer an online, high-stakes exam without assuring that the online platform works, that reasonable accommodations have been provided to test-takers, that we follow data privacy protocols, that we provide information about exam conditions to candidates in advance, and that we assure the reliability of the exam’s cut score. NCBE is providing the materials for this online exam, but it is leaving these other matters to jurisdictions. Jurisdictions urgently need the recommendations in this resolution. Without them, we risk administering exams that do not serve the purpose of reliably measuring minimum competence.

Friends, I am not a voting member of this distinguished body. I am just a law professor and part-time prosecutor preparing to teach a clinic online in two weeks. But I can tell you that we need this resolution. Our communities need it to protect their health. Vulnerable clients need it to continue their access to legal services. Candidates for admission need it. And our profession needs it to affirm our ethic of responsibility. I ask you to vote in favor of the resolution."




Posted by Dan Rodriguez on August 6, 2020 at 06:16 PM in Daniel Rodriguez | Permalink | Comments (2)

Anti-SLAPP fee-shifting in federal court

I have argued in prior posts that the solution to SLAPP suits is not the  heightened standards from state laws (which cannot apply in federal court) but attorney fee-shifting. The paradox has been that most fee-shifting provisions apply to actions disposed of under the statutory standard, but not under a different standard. Thus, if the state statutory standard does not apply and the case is resolved on a simple 12(b)(6), the fee-shift does not apply.

But not so with the Florida anti-SLAPP law, according to Judge Martinez of the Southern District of Florida. Florida law provides for fees for any action that is "without merit" and based on constitutionally protected speech. The determination that the action is without merit can be made under any procedural device, such as 12(b)(6) (as in this case). In other words, the statute is a garden-variety fee-shifting provision serving substantive policy ends, the same as other fee-shifting provisions held to apply in federal diversity actions. So an action dismissed on a 12(b)(6) can provide the basis for an award of fees.

This is unique to Florida's anti-SLAPP statute. But it produces a conclusion that balances the requirements of the REA/Erie/Hanna against First Amendment interests.

Posted by Howard Wasserman on August 6, 2020 at 03:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More cancel culture and counter-speech

Efforts continue to define and defend criticisms of cancel culture, beyond "I know it when I see it" or "Canceling for me but not for thee." Jonathan Rauch takes a crack in Persuasion (free registration required), identifying six warning signs, the presence of some or all suggest canceling:

• Punitiveness, in that the goal or effect is to cost a job or other opportunities.

• Deplatforming, which includes disinvitations, demands for retractions, and shout-downs.

• Organization

• Secondary Boycotts

• Moral grandstanding, through "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric.

• Truthiness

Punititiveness perhaps helps. But there must be circumstances in which someone's deeds or expression are so egregious that calling for his removal from a job or position or platform should be fair game, such that non-governmental actors can decide to remove him from their circle of discourse and engagement. The person remains free to speak, but private persons need not listen, nor provide him with a platform. And private companies can choose not to retain him as an employee, private consumers can choose not to do engage in business with him, and people and entities in general can elect not to associate with him. If that is permissible, then the dispute is not punitiveness or deplatforming, but where to draw the line. We can identify ridiculous overreactions. But some situations are not ridiculous overreactions.

Five of Rauch's categories involve forms or manners of expression and thus of counter-speech. These purportedly neutral rules perpetuate the problem of the preferred first speaker--they impose unique limits on the type of speech regarded as "legitimate" when used by those who object to a speaker. For example, Rauch does not call for an end to all "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric, only that used in response to someone. He rejects shout-downs, thus obligating counter-speakers to engage civilly and openly through dialogue in a way that original speakers are not obligated to do. A categorical line between organizing (rallying many people to a cause, which is somehow a bad thing) and persuading imposes an obligation of reasoned discourse not placed on an original speaker.

Rauch does treat everyone the same as to truthiness--it is as problematic when President Trump lies and distorts as when left-leaning groups lie and distort. But then we are not talking about cancel culture as some unique threat to free speech. The threat is lying, whoever is lying and wherever that person stands in the exchange process.

These and other efforts bring me back to Chief Justice Rehnquist in Hustler v. Falwell: "If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description [cancel culture] does not supply one."

Posted by Howard Wasserman on August 6, 2020 at 12:11 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, August 05, 2020

Judge Reeves on qualified immunity

An opinion to behold from Judge Reeves of the Southern District of Mississippi. (H/T: Michael Masinter). the 72-pager includes a lengthy history of § 1983 from passage in 1871 to the creation of qualified immunity; it calls out racial bias in policing and in society at large (especially in Mississippi) to explain why a search was not consensual. It calls out appellate judges for creatively interpreting Reconstruction statutes to protect older white men while failing to protect African-Americans against government misconduct. It calls directly and explicitly on the Supreme Court to do something (while admitting to not knowing what that should be). And it uses a cute three-point Star Wars allusion to organize the opinion ("§ 1983: A New Hope;" "Qualified Immunity: The Empire Strikes Back;" and "The Return of § 1983"). All while granting the officer qualified immunity for an egregious Fourth Amendment violation (traffic stop and lengthy search with no cause to be found) because he has no choice under current law.

For those who believe in such a thing (I don't), is this judicial activism? Does the judge's role, especially a lower-court judge, include railing against the state of the law, its horrific incorrectness, and its negative effects, especially in such sharp terms? Judge Reeves "applied the law rather than making the law," so he behaved consistent with that typical definition. An opinion is an essay having no direct force or effect. But should judges use these essays for such a cri de coeur?

Posted by Howard Wasserman on August 5, 2020 at 03:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (21)

Sovereign Immunity and Dalehite

With all of the attention now being given to qualified immunity, let's not forget that sovereign immunity (both at the state and federal level) also bars many lawsuits that ought to go forward in the interests of justice.

One case that I periodically use in class is Dalehite v. United States, a 1953 Supreme Court case that invoked sovereign immunity over one of Justice Robert Jackson's crackerjack dissents. Dalehite came to mind today because the facts are almost identical to what happened in Beirut yesterday. A large stash of ammonium nitrate was negligently stored in a port warehouse as part of a government aid program. There was an explosion of the nitrate that (in Dalehite) killed over 500 people. The estates and survivors sued the United States for damages and lost. The opinions (especially Justice Jackson's) are worth your time. 

Posted by Gerard Magliocca on August 5, 2020 at 07:34 AM | Permalink | Comments (1)

The Importance of Building Connections and Community -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here

My posts so far in this series have focused on the first two steps of my five step approach to redesigning your courses to be physically distanced or remote— (1) identifying your learning objectives and (2) deciding on your assessment and engagement techniques.  This post will introduce the third step, which focuses on building connections and community in these new learning environments.  

We may think of connections and community as things that are nice to have, but they are actually essential to student learning.  Research shows that a sense of community at school is associated with increased motivation, greater enjoyment of their classes, and more effective learning.  The research also suggests that building this sense of community is much harder in online or hybrid courses.  Students in online environments struggle with feeling isolated (as do many professors!).

Most of the empirical data on this topic comes from undergraduates, but data from the Law Student Survey of Student Engagement (LSSSE) shows that a sense of belonging matters to law students as well.  LSSSE data has been used to examine both the inputs and outputs of law students’ sense of belonging.  In other words, using the LSSSE data, we can gain insight into what causes law students to feel a sense of belonging (the inputs) and the impact that a sense of belonging has on law students’ performance in law school and their career more generally (the outputs).

Continue reading "The Importance of Building Connections and Community -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses"

Posted by Jessica Erickson on August 5, 2020 at 06:49 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

Tuesday, August 04, 2020

Second Circuit tries for solution to universal injunctions, misses the mark

The Second Circuit affirmed-but-narrowed an injunction prohibiting enforcement of the Trump Administration's public-charge regulation. As modified, the injunction is limited to the named plaintiffs (three states and several advocacy organizations) in New York, Connecticut, and Vermont (the Second Circuit), where the states are located and the plaintiff organizations do most of their work.

The court attempted to find a middle ground in the final five pages of the opinion, which I copy after the jump. But the court failed, in part because, as many courts, misunderstands the issues.

Continue reading "Second Circuit tries for solution to universal injunctions, misses the mark"

Posted by Howard Wasserman on August 4, 2020 at 08:30 PM | Permalink | Comments (2)