Wednesday, April 14, 2021

The Suez Canal Blockage

I don't often get to post about Admiralty issues, but the recent traffic jam in the Suez Canal opens the door. Egypt has seized the vessel that got stuck in the canal and is seeking $900 million in damages from the vessel, the vessel owner, and the firm that chartered the ship. They will, though, get nothing close to that.

Admiralty law typically caps liability for wrongdoing to the value of the vessel and its contents. The Egyptian government was within its rights to seize the vessel and can auction off whatever is there. "Piercing the veil" and going after the corporations that owned or used the vessel is very difficult, especially in a case like this where there was no loss of life. Ordinary vicarious liability rules do not apply. Egypt would have to show that the vessel got stuck due to some instruction or policy by the corporate masters, which is rather unlikely. Potentially there could be a claim that the captain and/or crew were hired with knowledge that they were untrustworthy. The Exxon Valdez oil spill is an analogous example, as Exxon knew there that Captain Hazelwood was an alcoholic. But I also doubt that there is sufficient proof on that score in this case.

A limitation of liability action has been filed in the UK. This is a maritime suit that seeks a declaratory judgment stating that liability for an accident is capped at the ship's value. That action will probably succeed.


Posted by Gerard Magliocca on April 14, 2021 at 11:30 AM | Permalink | Comments (1)

Tuesday, April 13, 2021

"Working as Equals" Conference

This, via Larry Solum's blog, sounds like a very interesting conference:

If we’re equals, then how come you’re my boss? This question lies behind a growing wave of ethical criticism that is directed at hierarchical workplace structures and deploys various ideals of relational (or social) equality. Can workplace hierarchy be justified, and how can this justification be squared with the ideal of relating to each other as equals? The Working as Equals workshop seeks to illuminate the moral dimensions of today’s workplace relations. It also aims to bring into focus the promise and limitations of the relational turn in ethical theory, using the workplace as a lens.

The basic assumption I make about academic conferences is that they may have a thesis or orientation--they seem increasingly to do so but perhaps that has always been the case--but, God willing, they will not have not proved or assumed its truth and value in advance, and will make plenty of room for exploring the nuances, critiques, and costs of that thesis. I assume that is the case here, and I should think there would be plenty of room for exploring the costs of some of the theses advanced in the abstracts, which of course have differences but pull roughly in the same direction. (There will be commentators, who no doubt will engage in some of these explorations.)

My own view, for which evidence arises nearly every day, is that the greatest general crisis of our time, which takes in all sorts of territory and all sorts of frequently focused-on terms ("norms," for instance), is institutional, and that institutions, their purposes, trust in them, and commitment to them as projects need to be shored up at least as much as they need to be reformed and far more than they need to be eliminated. No doubt some or all of the papers here will point to useful elements of institutional critique and institutional reform. So they should, and any institutionalist should welcome those elements, while insisting that it is a mistake for institutions to be everything (and thus nothing), or to "reimagine" them into something else entirely.

The papers will no doubt, as the conference description promises, be as focused on the limits as on the hopes of the general approach. But the papers also, from what I can tell from the abstracts (an imperfect indicator, admittedly), leave plenty of room to worry in advance about projects that treat hierarchy as such as "disconcerting," not just within the stereotypical modular workplace but within such institutions as churches and the military; that seem in turn disconcertingly focused on individuals and autonomy; that are disconcertingly confined to the unpoetic vocabulary and useful-but-limited tools of liberal egalitarian theory; and that seem disconcertingly suspicious of social organizations that "shape[] individuals more than [they are] shaped by them." Isn't that all of them? Or isn't it at least the case that all social organizations shape individuals as much as they are shaped by them? How alienating would it be not to be shaped by one's associations, including one's workplace? One might paraphrase Augustine: "O Lord, let me stand naked and alone before You--but not yet!"

Two more passing thoughts. First, are modern "reforms" of the university egalitarian and conducive of a greater atmosphere of non-hierarchical relational equality, to use the language of the conference? Or are they closer to the opposite? In their twinned and inseparable urge both to advance sincerely held reforms and to cave at the slightest hint of adverse publicity to the most vocal segments of their fee-paying consumer base, are university administrators being egalitarian--or are they asserting a striking, if seemingly obseisant, degree of authority, hierarchy, and power? (One, in fairness, that faculty have yielded up to them by slackening in their governance duties and in their own sense of the institution as an institution.) Second, I am reminded that the worst workplace I ever experienced was one in which my employers said, and at least sometimes meant, that we were a "family." An op-ed writer in the Times--not, admittedly, a place one goes for deep or useful thought--wrote recently, in the words of the sub-headline, that after working at Google she had "learned the hard way that no publicly traded company is a family." True enough, but oddly limited in scope; no company is a family, and I would much rather work at a company, public or private, that is clear about not being one than one that purports to be. There are surely places in this world where it is far more important to know where one stands than to be loved or cherished.

These are all critical questions and reflections, and I think they are fair in light of the conference description and abstracts. But they are not the conference itself, where I am sure all these questions and more will be fully aired by an impressive set of speakers and commentators. It sounds well worth attending, the better to appreciate and, as it were, apprehend it. 

Posted by Paul Horwitz on April 13, 2021 at 11:28 AM in Paul Horwitz | Permalink | Comments (0)

The Reconstruction Amendments: The Essential Documents

Today I received my two-volume set of this treasure edited by Kurt Lash. In the parlance of patent law, a Reconstruction collection was a long-felt but unmet need. And like Max Farrand's work on the Constitutional Convention, Lash's edition will become standard fare for judicial citations, briefs, and scholarship.  I'll have more to say about the collection after I read the documents.

Posted by Gerard Magliocca on April 13, 2021 at 10:48 AM | Permalink | Comments (2)

Monday, April 12, 2021

Panel: The Law and Politics of the 2020 Election and its Aftermath

FIU College of Law will host a panel, The Law and Politics of the 2020 Election and its Aftermath, from 1-2:15 EDT on Tuesday, April 13 (tomorrow). Panelists are Carissa Byrne Hessick (UNC and PrawfsBlawg), Ellen Katz (Michigan), Brian Kalt (Michigan State), Genevieve Lakier (Chicago), and Steve Vladeck (Texas and formerly PrawfsBlawg). It should be a great discussion.

Click here to join us.

Posted by Howard Wasserman on April 12, 2021 at 11:12 AM in Howard Wasserman | Permalink | Comments (2)

Sunday, April 11, 2021

Universality in Tandon v. Newsom

Christopher Sprigman started a Twitter thread contemplating what happens if California disregards or circumvents the order in Tandon v. Newsom. A different thread derides the suggestion as "stupid." I do not believe California will attempt this, so the issue is academic. But we can illustrate how litigation operates by parsing this specific case.

Continue reading "Universality in Tandon v. Newsom"

Posted by Howard Wasserman on April 11, 2021 at 05:12 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thoughts on Caron Nazario lawsuit

Here is the complaint. A few thoughts.

• The complaint is uniquely specific and precise about the facts because the plaintiff obtained the officers' body-camera footage and footage from his cellphone. He could review (and cite to) evidence in the pleading. No need to rely on boilerplate, to plead on "information and belief," or to plead in general terms. No Twiqbal problems here.

• The First Amendment claim is interesting. He alleges that the officers threatened to retaliate against him by pursuing charges if he exercised his First Amendment petition rights and complained, then filed false reports in furtherance of that effort. First Amendment retaliation is tough--the plaintiff must prove the officers did not have probable cause to arrest for anything, which typically  is tough to show. But the camera footage helped in framing that claim.

• The complaint does not try to do too much. Nazario sues only the officers for the immediate violations. He does not try to weave a failure-to-blank theory to establish municipal liability based on patterns of past misconduct by these or other officers. The complaint also does not spend pages weaving this action into the broader national problem of police abuse. It does not employ outraged rhetoric to appeal to the reader's emotion. Such information would not be legally important to this case (except in furtherance of the failure-to-train theory that the plaintiff does not pursue). But it would be politically important in placing this case in a bigger picture and drawing public interest and attention to the case. Beth Thornburg coined the term "pleading as press release" to describe using the complaint to speak to, and litigate one's position in, the public . Whatever the merits of doing that, it is interesting that this plaintiff and his lawyer did not try it. Maybe the video, which is all over the internet, performs the work that the language of the complaint ordinarily would perform--news stories can describe the video rather than quoting outraged rhetoric in the pleading.

Posted by Howard Wasserman on April 11, 2021 at 01:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, April 08, 2021

JOTWELL: Thomas on Coleman on the Rules Committees

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Brooke D. Coleman, #SoWhiteMale: Federal Procedural Rulemaking Commitees, 68 UCLA L. Rev. Disc. 270 (2020), which explores the race and gender composition of the rules committees and the problems lack of diversity creates.

Posted by Howard Wasserman on April 8, 2021 at 01:38 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Justice Jackson's Opinion Is An Outlier

One reason that I want to write a book about Justice Jackson's concurring opinion in Youngstown is that the near-universal praise given to his analysis is at odds with trends in modern jurisprudence.

For example, Jackson's opinion is personal. He refers to his work as Attorney General as a major influence on his views in a way that I think would be viewed critically today. (Isn't law supposed to be impersonal?) Likewise, Jackson dismissed originalism as a method of interpretation. The opinion does use history, but in a thematic way that I don't think that originalists find terribly persuasive.

Jackson's functional reasoning is also increasingly out of favor. He admits that there are some areas where the right answer is unclear or must be determined by policy considerations. He cites a lot of political science, ranging from a book by Woodrow Wilson to a quote by Napoleon. He also relies on a comparative assessment of European emergency law (from France, Germany, and Britain). And he talks about the modern presidency by referring to developments outside of the text such as the rise of the party system or the growth of mass communications. 

All of this makes me wonder if reverence for Jackson's opinion might decline in the coming years. Michael McConnell's recent book on the president offers the most sustained criticism of the opinion that I can find, which makes sense especially given his originalist approach in that book.


Posted by Gerard Magliocca on April 8, 2021 at 12:25 PM | Permalink | Comments (4)

Tuesday, April 06, 2021


A lot of great commentary on the long awaited SCOTUS decision. It is a win for more competition and innovation. Mark Lemley's discussion of the case and its broader implications is a good place to start if you haven't been following. Here is the Marketplace conversation with Lemley.

Posted by Orly Lobel on April 6, 2021 at 01:09 PM | Permalink | Comments (10)

Boilerplate Collusion: Clause Aggregation, Antitrust Law & Contract Governance

My article on boilerplate bundles of clauses and individual contract/antitrust nexus is forthcoming in the Minnesota Law Review, and is now up on ssrn here. I'd love thoughts and comments. Here is the abstract: 

Contract clauses should be assessed in relation to each other when examining their meaning, validity, and enforcement. In contemporary markets, drafters create impenetrable bundles of clauses and sets of interrelated contracts operating together. This article exposes the ways that a contract is larger than the sum of its separate clauses and a set of interrelated contracts is more harmful than the aggregation of each contract on its own. The article further shows that contract adjudication embeds these insights intuitively, but both contract law and antitrust law are yet to develop a principled and consistent analysis of how contract clauses collude in action. These understandings have implications for nearly every contract doctrine and in every policy field. Recognizing how contractual clauses produce a different effect than a simple summation of each clause enriches regulatory fields ranging from employment to consumer law, insurance law to intellectual property law, speech law and arbitration law. This article analyzes several key contexts to demonstrate the significance of aggregation: contract clauses that substantively restrict rights such as speech and mobility and clauses that procedurally restrict rights and access to litigation, including pre-dispute arbitration clauses and class action waivers. I argue that courts have instinctively employed notions of aggregation in their decisions, albeit without consistent analysis and without the wealth of contemporary behavioral research on the psychological effects of aggregation. The article is the first to analyze how behavioral studies on the human tendency to judge probabilities and risks differently when events are compiled versus unpacked are critical to understanding the effects generated by boilerplate collusion. The article concludes with policy implications for both contract interpretation and regulation. I argue that recognizing aggregation supports reforms in adjudicative defaults, including the rejection of reformation and blue- penciling and the treatment of redundancy as a feature, not a bug, in contract adjudication. Second, a better understanding of the phenomenon of boilerplate collusion points to the need for a more proactive approach to contract policy. As contract thickets abound, antitrust must reject its sharp divides between vertical and horizontal constraints and agencies, including the FTC, the EEOC and the Labor Department should use their regulatory powers to address the harms of boilerplate collusion.

Posted by Orly Lobel on April 6, 2021 at 12:40 PM | Permalink | Comments (4)

Speech is not money (Update)

People are having fun ridiculing ridiculous Republicans. After years of insisting that the First Amendment guarantees corporations the right to spend money supporting (mostly Republican) candidates and causes have now decided that corporations and corporate executives must "stay out of politics" when their speech consists not of writing checks to GOP candidates but of boycotting certain locations and business partners or otherwise speaking as an entity on matters of public concern. In fairness, maybe Republicans such as Mitch McConnell never believed that corporations should be able to "speak," only that they should be able to spend money (by giving it to Republicans)--and speech is not money.

Of course, the left is not doing much better. Many are urging, supporting, and celebrating large institutions (Coca-Cola, Delta, MLB) wielding their economic power to protest, and try to influence, government decisions and public policy. But if this is legitimate and laudable behavior from these companies, most of the left criticisms of Citizens United and cases--"corporations are not people," "corporations don't have First Amendment rights"--evaporate. Believing that MLB can and should move the All-Star Game from Atlanta in response to voter-restriction laws depends on believing that MLB has the right, as an entity, to take a position on matters of public concern.

Neither side can have it both ways. Either corporations enjoy First Amendment rights to engage, through expenditure (or non-expenditure) of funds, in public debate or they do not. It does not vary by context. It does not vary by the political position they take. And it does not vary by the type of corporation. If Delta can (and should) take corporate action that furthers principles you like, then Delta may take corporate action that furthers principles you do not like.  If Coca Cola can spend money to support the election of candidates you support, then Coca Cola can spend money, time, effort on positions you do not support. You can make your expressive decisions accordingly.But your response cannot be that it does not have the right to do it or that it should "stay out of" the arena.

There is a liberal argument that would oppose expansive campaign spending  but support current corporate efforts in Georgia and elsewhere. But it is not the Citizens United bumper sticker that most liberals favor. It argues that big-money contributions and expenditures should not be allowed to influence public officials and elections, that elections are "bounded institutions" in which unique limitations should apply in ways they do not in the larger public debate. This is an argument about wealth and controlling its influence in the electoral system, not corporate status. That is, the problem is not corporate spending but all spending, by people and corporations alike. But that is not the argument that most liberals make about campaign finance.

Update: Wow. I was being sarcastic about Republicans being ok with corporations spending money but not speaking. But that appears to be Mitch McConnell's position: "Stay out of politics because it's not what you're designed for," but "I'm not talking about political contributions," only "taking a position on a highly incendiary issue." Don't speak, just spend money. Don't take express positions, just give money to me and people I like (presumably to gain influence). I can only assume that issues and candidates with which McConnell agrees are never "highly incendiary." This would be laughable if not so par for the course.

I do not expect intellectual honesty or consistency from McConnell. But I would like to hear a theory of why contributions are ok but express positions are not. To blanket contributions (and expenditures) in the First Amendment, there must be an expressive quality to those expenditures. And there is no logical way to say a corporation has First Amendment right and can speak, but that it must limit its expression to the form of campaign contributions but no other expression in other forms (especially because giving money so someone can spend it is less expressive than other forms of corporate communication involving true speech).

Further Update: An alternative title to this post (seen on Twitter and elsewhere) might be "Money is speech, but speech is not speech."

Posted by Howard Wasserman on April 6, 2021 at 11:32 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, April 05, 2021

Entry Level Hiring: The 2021 Report - Second Call for Information

This a reminder of the Entry Level Hiring Report.

If you have information about entry-level hires for this year, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on April 5, 2021 at 07:16 PM | Permalink | Comments (0)

SCOTUS vacates Knight Foundation, Thomas has things to say

SCOTUS GVRed Biden v. Knight Foundation (begins on p.9) with instructions to dismiss as moot under Munsingwear. No surprise, as mootness was always inevitable because Trump would someday leave office, known to happen once he lost the election, and factual once Twitter banned him. Whether plaintiffs can recover attorney's fees remains. As do questions of the effect on qualified immunity.

We also have some explanation for why this took so long--Justice Thomas wrote a lengthy (solo) concurrence, emphasizing that the real power over internet spaces is private rather than governmental and offering arguments for why internet platforms might be regulable as common carriers or places of public accommodation. He also suggests that lower courts have misconstrued § 230 to give immunity to "bad-faith removal of third-party content," whatever that means. And he carries water for the grievance of Trump being banned from Twitter (and his 89 million followers), demonstrating the "stark" disparity between Twitter's control and Trump's control.

Thomas recognizes that the First Amendment limits government power to control speech in a private space that it rents or uses.

Whether governmental use of private space implicates the First Amendment often depends on the government’s control over that space. For example, a government agency that leases a conference room in a hotel to hold a public hearing about a proposed regulation cannot kick participants out of the hotel simply because they express concerns about the new regulation. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 547, 555 (1975). But government officials who informally gather with constituents in a hotel bar can ask the hotel to remove a pesky patron who elbows into the gathering to loudly voice his views. The difference is that the government controls the space in the first scenario, the hotel, in the latter.

I think this misses the mark in two respects. First, Trump could have asked the "pesky patrons"--assuming they were violating Twitter's terms of service--be removed by Twitter. Second, a government official's Twitter feed is more than an informal gathering with constituents and Thomas' framing minimizes the communicative power of Twitter. It seems more akin to a Town Hall meeting or a speech--the official speaks to the public and the public can hear and respond. If that is not a full-on public hearing on a proposed regulation (which limits the effect to legislative bodies), it is more than people who happen to be public officials hanging out in a bar.

Posted by Howard Wasserman on April 5, 2021 at 11:46 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

The Canonization of Jackson's Youngstown Opinion

Why is Justice Jackson's concurring opinion famous? Much of the credit goes to Richard Nixon. The Nixon Administration's broad claims of executive power, combined with the abuses of Watergate, drew substantial attention to what Jackson said in Youngstown. For the first twenty years after Youngstown, Jackson's opinion did not receive special consideration (though you can find cites here and there.)

The tipping point was 1973. First, Judge Sirica's opinion on the Watergate tapes case quoted from the concurrence (though, oddly, the cite did not explain that that the quote was from the concurrence.) Second, Arthur Schlesinger's influential book on The Imperial Presidency discussed Jackson's opinion at length. Third, the DC Circuit's opinion largely affirming Judge Sirica also quoted from the concurrence.

After that, a fairly rapid consensus emerged that Jackson's opinion was the gold standard. The Supreme Court quoted from the opinion in the Nixon case. Congress expressly relied on the opinion in drafting both FISA and the National Emergencies Act. And you start seeing more cites to the concurrence in cases and law review articles. Most of these cites are not about the tripartite framework. Instead, they focus on Jackson's functional view of separation of powers more generally.

Dames & Moore, of course, adopted the tripartite framework as controlling authority. Here the coincidence of Justice Rehnquist being on the Court and his role as Jackson's law clerk during Youngstown probably mattered. Finally, the concurring opinion was discussed at the confirmation hearings for Chief Justice Roberts and for Justice Alito, in part because Congress and the President were then at odds about various issues related to torture, warrantless wiretapping, etc.

Posted by Gerard Magliocca on April 5, 2021 at 11:45 AM | Permalink | Comments (1)