Friday, July 30, 2021

Hiring Announcement: FIU College of Law (multiple positions)

South Florida’s public law school in Miami, Florida International University College of Law, invites applicants for multiple tenure, tenure track, and contract positions to begin no later than the 2022-2023 academic year.  In particular, we seek candidates to teach environmental law and courses in other priority areas, such as cyberlaw, torts, wills & trusts, health law, family law, and administrative law. A typical package might include two environmental law courses and at least one (preferably two) in our identified priorities. International experience, academic entrepeneurship, and acumen in grants and external funding are welcome but not required.  Given our growing focus on interdisciplinary collaboration, some of these positions may involve joint appointments with other academic units at FIU.

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Posted by Howard Wasserman on July 30, 2021 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Thursday, July 29, 2021

The Gun, The Ship, and the Pen

Part of my vacation was spent reading Linda Colley's terrific new book on global constitutionalism. Anyone with an interest in the political side of constitutions should read The Gun, the Ship, and the Pen. I may have more to say about the book later, but here's one implication that hit home for me.

Colley's account undercuts Heller. If you are persuaded by her thesis that the rise of constitutionalism was driven by the need to fight wars effectively (in Europe and in the United States), then the individual right Heller said was part of the 1791 understanding of the Second Amendment is far less plausible than the collective right identified by the Heller dissenters. (Granted, you could defend Heller on other grounds, but the Court focused on Founding-era materials.) Colley does not make this argument, as she's not interested in the issue. But I am.

Posted by Gerard Magliocca on July 29, 2021 at 09:44 PM | Permalink | Comments (3)

Putting racists in a bind

The new Olympic sport for the Crazy Coalition is rooting against the men's basketball and women's soccer teams ("too woke and anthem-kneeling") and Simone Biles ("weak," "selfish socipath," "shame to the country," not tough). The other sport is waiting for that "true champion  . . . who perseveres even when the competition gets tough." That true champion who reflects what makes America great and in whom real Americans can be proud.

Fortunately, they found someone to do what Biles could not in the Women's All-Around, someone strong whom these real Americans can get behind.

Or not.

Posted by Howard Wasserman on July 29, 2021 at 04:02 PM in Howard Wasserman, Sports | Permalink | Comments (1)

"Hunters" is back in production

Hunters, an Amazon show about Nazi hunters in 1977 New York, is in Season 2 production. The Forward; many Jewish leaders, educators, and advocates; and I are not happy to hear this news.

Posted by Howard Wasserman on July 29, 2021 at 08:24 AM in Culture, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 28, 2021

Marquette Law Review Expedited Submission Period

The Marquette University Law Review seeks additional articles for its Winter issue. We will consider submissions beginning immediately and will conclude the process on August 20, 2021 at 11:59 PM CT. For any article submitted by August 20, 2021 in accordance with the instructions outlined below, the Marquette University Law Review guarantees a final publication decision within 48 hours of submission. As a condition of submission, authors agree to accept a binding publication offer, should one be extended. The editing process for the Winter issue will commence on September 4. Interested authors may submit articles via email to [email protected] to be considered in this expedited submission process. Authors should also submit (1) their name, article title, word count, phone number, and email address in the body of the email and (2) a CV or résumé. Please use “Expedited Submission Process” in the email subject line. We will also be reviewing submissions for later issues through the usual process. Questions may be directed to Jennifer Knackert, editor-in-chief, at [email protected].

Posted by Howard Wasserman on July 28, 2021 at 01:32 PM in Teaching Law | Permalink | Comments (0)

Tuesday, July 27, 2021

"Fuck Biden" summons dismissed; now what?

A New Jersey Superior Court vacated obscenity charges against Andrea Dick after Roselle Park withdrew the summons.

So now what?

• Do Dick and the ACLU bring a § 1983 action for damages and/or for an injunction prohibiting future enforcement of the obscenity ordinance as to signs? The mayor and city attorney struck a defiant tone. The mayor decried the "sad reality" that the city cannot regulate decency. The city attorney insisted the original decision was correct but that "the continued attention garnered by the inappropriate display and the escalating costs to the taxpayers of continuing to litigate the matter causes far greater harm to the borough, as a whole, than good.” In other words, the city continues to argue that these signs violate its obscenity ordinance, suggesting both the possibility of future enforcement (perhaps when the nation is no longer paying attention) and the need for the deterrence that comes with an action even for minimal damages and attorney's fees.

• The Times reports on similar stories elsewhere in the U.S. Punta Gorda, Florida (on the Gulf Coast) enacted an indecency ordinance and is considering whether to issue a summons to a resident displaying a similar "Fuck Biden" sign. Punta Gorda appears smart enough to realize that profanity is indecent rather than obscene, so it is using the right legal theory. But a proper ordinance does not change that profanity is protected speech and so cannot be banned in most contexts.

• Roselle Park plans to amend its code to limit the amount of signage people can have in their property, although the mayor said the rules would not be retroactive and would not affect Dick's signs. It will be interesting to see what the township comes up with. City of Ladue v. Gilleo emphasized that one's home is a special medium that creates a unique message. Depending on the scope and details of the proposed ordinance, the city's interest in controlling visual clutter may not be sufficient to overcome the unique interest in speaking from one's own home.

Posted by Howard Wasserman on July 27, 2021 at 09:32 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 26, 2021

NBC has learned nothing

Bela Karolyi earned fame as the coach of U.S. gymnastics because of his outsized reactions to the athletes' performances, which NBC cameras showed and commentators discussed, elevating his profile above that of his female athletes. We now know what was going on behind the scenes.

Apparently, NBC has learned nothing. Australian swimmer Arirne Titmus won the 400-free style, beating American Katie Ledecky. NBC cameras showed, repeatedly, her coach, Dean Boxall, losing his shit celebrating Titmus' win from the stands. As with Karolyi and the gymnasts, cameras and announcers focused on his sideline histrionics more than the athlete. I am not suggesting that Boxall mistreats Titmus or other athletes or that his well-documented intensity crosses lines. But it is hard not to notice the parallel focus on the male coach with an intense personality over the female athlete.

Posted by Howard Wasserman on July 26, 2021 at 10:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

AALS Section on Fed Courts: Best Article

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2022 AALS Annual Meeting.

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Posted by Howard Wasserman on July 26, 2021 at 09:31 AM in Civil Procedure | Permalink | Comments (0)

Saturday, July 24, 2021

Framing constitutional violations

The New York Times op-ed board discusses the "Fuck Biden" signs in Roselle Park, NJ as an example of "a growing sense among many Americans that the United States cannot afford to maintain the full measure of its foundational commitment to free speech." It concludes that "The right to hang banners is a small thing, but the value of free speech inheres in acts of individual expression just as much as in grand statements of collective purpose." The authors are correct and show why the township is going to regret doing this.

I take issue with the introductory paragraph, less for how it affects this than for what it says about the SB8 lawsuit and my current project on the process of constitutional litigation. Here is the opening:

There is little question that Gary Bundy, a municipal court judge in New Jersey, violated the constitutional rights of Andrea Dick this month by ordering her to remove three banners emblazoned with crude messages about President Biden.

In constitutional litigation, we would not say Judge Bundy violated Dick's rights through his order. We would say Roselle Park (or some responsible municipal officer, whoever it might be) violated Dick's rights by issuing the citation and prosecuting the code violation over protected speech. Judge Bundy could have halted the violation by upholding Dick's First Amendment defense. But in failing to do so, Bundy did not violate her rights. Rather, his (IMO) incorrect decision allowed the municipality's violation to continue. But his decision is subject to appellate review and reversal--stopping the municipality's constitutional violation--including by SCOTUS if this ridiculous thing makes it that far.

Posted by Howard Wasserman on July 24, 2021 at 04:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

A cynical thought

The Olympic Opening Ceremony featured a moment of silence, with express reference to the eleven Israeli athletes killed at the 1972 Munich Games. This is the first official commemoration of Munich, despite lobbying for it in 2012 (the 40th anniversary) and 2016. The inclusion was not announced in advance. The linked article notes that ceremony's creative director was fired the previous day over a Holocaust joke he made 20 years ago, offering the cynical possibility that the acknowledgement was a response to that embarrassment.

I had a different cynical thought: The Opening Ceremony took place in an empty stadium, meaning there was no chance that a crowd would react to the commemoration with anti-Israel sentiment.

Posted by Howard Wasserman on July 24, 2021 at 10:33 AM in Sports | Permalink | Comments (0)

Hiring Announcement: Loyola University-Chicago-Lateral Candidates

Loyola University Chicago School of Law invites applications for full-time, tenured or tenure-track, lateral faculty positions to commence Fall 2022.

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Posted by Howard Wasserman on July 24, 2021 at 10:16 AM in Teaching Law | Permalink | Comments (0)

Thursday, July 22, 2021

The Great Detroit Charter Fight: A Case Study in Statute-Specific Purpose Versus Trans-Statutory Substantive Canons

In Sheffield and Harbin v. City Clerk, the Michigan Supreme Court is on the verge of deciding whether Michigan law gives Governor Gretchen Whitmer the power to impose an absolute veto on a new charter for Detroit. The case is naturally irresistible to a long-time Michigander and local government law junkie like myself. But it contains some broader lessons about statutory interpretation that are useful for any lawyer.

After the jump, I will suggest how the Great Detroit Charter Fight ("GDCF") illustrates a dilemma at the heart of statutory interpretation: When text is ambiguous (as it often, even usually, is), then what priority should be given between trans-statutory substantive canons versus statute-specific purpose? In Sheffield and Harbin, briefs on both sides invoke “expressio unius est exclusio alterius” canon with equal plausibility. As I argue after the jump, these lawyerly textual arguments are ultimately indeterminate not only in the GDCF but also in most other cases. Faster than you can say “Karl Llewellyn was right,” the argument over the proposed Detroit charter boils down to a conflict between two extra-textual sources of authority: The specific purpose of a 1913 statute giving the governor powers to veto proposed city charters and the general “liberal construction” canon, codified in the 1963 Michigan Constitution, requiring state laws conferring power on local governments to be “liberally construed.”

Here’s the conflict in a nutshell. The political context of the 1913 statute strongly suggests that the state legislature distrusted Detroit and wanted to give governors a hard brake on Detroit’s plans to expand municipal services like a city-owned streetcar system. If that general purpose governs statutory meaning, then Detroit’s charter commission loses and Governor Whitmer wins. On the other hand, if the statutory text is ambiguous enough to justify invoking such unwritten statutory purposes, then maybe it is ambiguous enough to be “liberally construed” to favor of Detroit’s autonomy. Perhaps the Court should sidestep a divisive, ideologically charged inquiry into how much or little the state legislature distrusted urban progressives in the early 20th century and instead invoke a bright-line trans-statutory canon favoring local power.

I do not have any easy answer to how willing judges should be to favor trans-statutory canons over statute-specific purpose. The question turns on a trade-off between fidelity to the enacting state legislature’s likely purpose versus protection of an apolitical simplicity in statutory interpretation that keeps judges out of fraught ideological controversies. This problem, however, transcends Michigan law: The Chevron canon, for instance, raises precisely the same dilemma. For those who are interested in statutory interpretation, therefore, the fight described after the jump will hold some interest.

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Posted by Rick Hills on July 22, 2021 at 06:54 PM | Permalink | Comments (4)

JOTWELL: Re on Varsava on judicial opinion-writing

The new Courts Law essay comes from guest Richard Re (Virginia), reviewing Nina Varsava, Professional Responsibility and Judicial Opinions (Hous. L. Rev., forthcoming), on judges have (too much?) fun in their opinions.

Posted by Howard Wasserman on July 22, 2021 at 12:36 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 21, 2021

What you call us, what we call you

Daniel Drezner explains why he has students call him "Professor" rather than by his first name and why he recommends that students default to calling professors by the title unless the prof tells them otherwise. He justifies this, in part, because hierarchy and power imbalances are inherent to academia, since the professor's job is to educate, mentor, and evaluate students. Pretending the hierarchy does not exist or obscuring it by "keeping it casual" does not eliminate it.

I have used my title with students since I began teaching, whereas Drezner explains how he has evolved on the issue. But Drezner's explanation for what I do anyway resonates.

Within law school, there is an additional question--what professors should call students in class. I use first names, partly because I believe it puts students more at ease when being called on, partly because I believe I am less likely to botch a first name than a last name. Others favor using last names in the name of parity and mutual respect--if students express respect by calling the professor by title and last name, the professor should do the same. And to the extent a typical law school classroom functions something like an argument colloquy, everyone in court is using titles and last names, even if an obvious hierarchy remains.

Posted by Howard Wasserman on July 21, 2021 at 07:55 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, July 20, 2021

First Amendment fieldwork in Pleasant Grove

Last week, I happened to pass through Pleasant Grove, Utah.  First Amendment types will recall that, back in 2009, the Supreme Court issued a (unanimous) ruling in a case called Pleasant Grove City v. Summum, which had to do with government-speech and public-forum doctrines, and with a dispute over the City's refusal to put up a monument containing the "Seven Aphorisms" of Summum in its "Pioneer Park".  The City had accepted, the challengers noted, a privately donated monument of the Ten Commandments.  Well, because this is a full-service law-prawf-blawg, here is a picture of the Commandments, in the Park:

Pleasant Grove

There are, outside the photo, some other various monuments and plaques, and also some old-timey, Utah-frontier-era buildings/reproductions.

(For what it's worth, if you're in Utah, I recommend getting into the Wasatch over wandering through suburbs looking for SCOTUS relics.)


Posted by Rick Garnett on July 20, 2021 at 11:47 AM in First Amendment, Religion, Rick Garnett | Permalink | Comments (0)

More on Fuck Biden signs in NJ (Updated)

The worst thing happened to Roselle Park (NJ) in its efforts to get homeowner Andrea Dick to remove "Fuck Biden" signs from her yard--the story is in today's New York Times (including comments from Thomas Healy of Seton Hall). This will end badly for the township and a smart lawyer for the municipality would cut bait now.

A lot of bad stuff can happen in municipal court--the matters are small, many people appear pro se, and the judging and lawyering may not be top-tier. But the key is that no one knows about it, allowing some absurd cases and outcomes to fly under the radar. But this has become a national (or at least regional) story. Every First Amendment lawyer in and around New Jersey is about to come out of the woodwork offering to represent Dick* And when a knowledgeable lawyer gets this case before a knowledgeable court, the outcome will be quick and obvious.

[*] I am surprised the ACLU has not entered the mix. Facing continued suggestions that the organization is more committed to liberal causes than to free speech, this would be an easy win in support of a Trump supporter.

Of course, getting Dick out from under the fines is the beginning. The next step is a § 1983 action against the township, the code enforcement officer who issued the citation, and perhaps the mayor (the Times story suggests that the mayor pushed the enforcement officer to issue the citation), which will cost the township some real money. Politics aside, the municipal attorney should recognize this.

Update: The ACLU of New Jersey has taken the case.

Posted by Howard Wasserman on July 20, 2021 at 10:36 AM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)