Monday, August 03, 2020

Unpacking Deadlines and the Planning Fallacy

I am in the final stages of preparing my new article, The Contract Thicket: Addition and Supra Addition in Private Law Theory for submission. In the article I analyze the literature on the behavioral effects of bundling and unpacking in relation to contract terms that a lengthy and paired with many other restrictive terms. I will post more about the article and the arguments I develop about contract and antitrust law's treatment of such practices, but here is something I just cut out of the draft. It's about the planning fallacy and why people usually take on too much. This might be rather close to home for us scholars:

“Applied to the planning fallacy, support theory suggests that one reason people may underestimate task completion times is that they do not naturally unpack those tasks into their various subcomponents...Writing a manuscript,’ for instance, involves several different (and lengthy) constituents: completing the literature review, composing the general discussion, double-checking the statistical analyses, writing the references section, hounding (or pleading with) recalcitrant co-authors.”

It comes from an article by Kruger and Evans called If you don't want to be late, enumerate: Unpacking reduces the planning fallacy inJournal of Experimental Social Psychology 40(5):586-598 · September 2004.

Good advice and good luck with all your summer writing projects! Don't be late, enumerate...

Posted by Orly Lobel on August 3, 2020 at 06:16 PM | Permalink | Comments (4)

Competing views on the Biskupic articles

Josh Blackman sees this as a threat to the institution that the Chief must repair (through some actions that I am not sure the Chief, as "first among equals," can do) or resign. Dan Epps argues that more transparency is a good thing. Take your pick or land somewhere in the middle.

I will share and concur in a comment from the Conaw List Serv that the Biskupic stories were interesting, but not earth-shattering--some of it could have been gleaned from the opinions themselves or from what we already knew about the Court's operations.

Posted by Howard Wasserman on August 3, 2020 at 12:40 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Metacognition and Learning How to Learn Online – 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 second step, which is designing assessment & engagement techniques for these new learning environments. 

So far I’ve talked about a variety of techniques to assess and engage students from comprehension checks to group work, discussions, and community-based learning.  In my last post on the topic of assessment & engagement, I want to talk about techniques that help students reflect on their learning.  Even in non-COVID times, we could all probably do a better job teaching students how to succeed in law school courses, but this instruction is especially important as we ask students to suddenly transition to an entirely new way of learning.  This transition also comes at a time when their personal lives and professional goals may in flux.  Simply dumping students into remote or physically distanced courses without some guidance on how to succeed in these courses seems like a failure in our job as educators.

So how can we help students learn effectively in their fall courses?  First, we need to offer them guidance on what we know about successful learning in these new environments.  There are a lot of resources out there on how students can prepare to learn online.  Here’s a great list compiled by Professor Cat Moon at Vanderbilt Law School.  As professors, it’s worth becoming familiar with these resources ourselves and talking with our students and advisees about how they can thrive in their remote courses.

Continue reading "Metacognition and Learning How to Learn Online – Preparing for Fall Teaching in Physically Distanced, Hybrid, or Remote Courses"

Posted by Jessica Erickson on August 3, 2020 at 08:58 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

Sunday, August 02, 2020

Sandmann: Bringing the Dream

Nicholas Sandmann settled his defamation action against the Washington Post this week, and he is not done yet.

Sandmann's defamation suits arose after several media outlets caricatured him as a smirking racist based on a video clip of him wearing a Make America Great Again hat and watching a Native American man beating a drum amidst a chaotic crowd at the Lincoln Memorial. The video clip went viral after it was posted by someone at the scene, and the media picked it up for repetition and commentary. Their spin on Sandman's supposed smirk was supported by statements from Nathan Phillips, the Native American man at the scene. The viral video spurred viral outrage. The problem was that the video as a whole, which was readily available, tended to dispel the narrative gleaned from the clip of Sandmann and Phillips. Viewing the video as a whole, Sandmann did not appear to be in a confrontational posture vis-a-vis the Native American man or others at the scene but instead seemed to be in the posture of an awkward teenager watching a curious scene with his peers as a group of Black Hebrew Israelites hurled insults and invective at them. 

Sandmann was fortunate to procure the counsel of famed attorney L. Lin Wood, who filed defamation suits against ABC News,  NBC News, CBS News, the New York Times, Gannett, Twitter, and Rolling Stone; having already settled with CNN and the Washington Post, Sandmann is still seeking damages in the aggregate of over $750 million, and he has threatened additional lawsuits. 

As a lawyer, I hesitate to put too much significance on any case before it has made its way into a published appellate opinion. Until then, it may very well be an anomaly. This case has drawn extensive publicity and partisan commentary because it has come to represent a strike against the perceived arrogance and bias of the mainstream media and the slipshod investigative habits old and new media actors employ in the digital era.  On its face, the video clip of Sandmann, together with statements made by the Native American man at the scene, seemed to confirm what many liberal partisans seem to believe: Anyone who wears a MAGA hat must be a heartless white supremacist. It is clear that many media outlets took the clip on its face and republished it and drew conclusions from it without watching the whole video, which became readily available at a rarely early juncture in the whole controversy. Conservative partisans have attributed the media's rush to judgment to bias at a minimum and possibly malice, but it is just as likely to be a result of laziness and a desire not to fall behind digital competitors. Regardless, Sandmann's settlements have led some to call for more defamation lawsuits to hold media accountable (and may be part of a larger trend of plaintiffs using defamation suits strategically as vehicles for political messages, but that's a story for another day, Devin Nunes).  

The partisan lenses through which the Sandmann cases are being refracted obscure the interesting legal questions the cases raise. One important question is about what's required to prove actual malice in this case, but another is this: under what conditions does a person who "goes viral" by being in the wrong place at the wrong time become a public figure for purposes of defamation law, and does it matter if that person is a child? The distinction between public figures and private figures is crucial in defamation law, because private figures can recover for defamation by proving the defendant published a defamatory falsehood about them negligently, but public figures must prove actual malice, that is, that the defendant published the defamatory falsehood knowingly or with reckless disregard of the truth. (Actual malice is a term of art not to be confused with common law malice). Sandmann's cases become much harder to win if he is a public figure and must prove actual malice, although he may choose to prove actual malice even if he is deemed a private figure, because doing so gives him access to larger damages awards. 

Some commentators have suggested that Sandmann should be treated as a limited-purpose public figure because he became embroiled in an event that was clearly of public concern at the site of the Lincoln Memorial. The Supreme Court's cases defining the category of limited-purpose public figures predate social media, but they do involve people who were thrust into larger controversies by the press or partisans; in general, they suggest that becoming a limited-purpose public figure requires a plaintiff to do something more than being in the wrong place at the wrong time and thus becoming fodder for public controversy. For example, in Time Inc. v. Firestone, five Supreme Court justices concluded that a woman married into a prominent family did not become a public figure simply by seeking a divorce through the judicial process. In Wolston v. Reader's Digest Ass'n, the Court held that a man who had previously been convicted of contempt for refusing to respond to a grand jury investigation on mental health grounds was not a public figure. And in Hutchinson v. Proxmire, a research scientist applying for a federal grant was not public figure, either.  Extrapolating from the Supreme Court cases, plaintiff should not be treated as a limited-purpose public figure because others embroil him in a public controversy of their creation: his entrance into the controversy must involve some degree of volition. The absence of meaningful volition is bolstered by the fact he was a minor on a school field trip standing on the steps of a public monument when he went viral.  Even examining Sandmann's actions through the lens of the multiple factors indicating limited-purpose public figure status elucidated by lower courts, Sandmann arguably did not do "enough" to be treated as a limited-purpose public figure. The factors lower courts look to often include whether (1) the plaintiff has access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public figure status at the time of the alleged defamation. Sandmann apparently did nothing to ask for the infamy that attached to him based on the publication and misinterpretation of the viral video clip (and likely spurred at least in part by his hat). He did, however, gain access to the media after the fact to rebut any allegedly defamatory falsehoods. For some courts, this might be enough to tip Sandmann into the limited-purpose public figure category (see, for example, Gilmore v. Jones, 370 F. Supp. 3d 630 (E.D. Va. 2019), though that conclusion would not be faithful to the parameters of the category defined by the Supreme Court. 

A better, though still problematic, argument is that Sandmann and other "victims" of viral videos like him are involuntary public figures. This category comes from dicta in the Supreme Court's 1974 case, Gertz v.Robert Welch, in which the Supreme Court speculated: "Hypothetically it may be possible for someone to become a public figure through no purposeful action of his own."  The Supreme Court has left the definition of the category to the lower courts, which have not reached consensus on how to define involuntary public figures and, indeed, whether the category even continues to exist.  (Cf., e.g., Clyburn v. News World Communications, Inc., 1990; Marcone v. Penthouse Int’l Magazine, 1985; Schultz v. Readers Digest Ass’n, 1979)  One approach is represented by Dameron v. Washington Magazine, Inc, 779 F.2d 736 (D.C. Cir. 1985).  A plane crashed when Dameron was the sole air-traffic controller on duty, although subsequent investigations absolved him of any blame for the crash.  Eight years later, however, a magazine article attributed the crash to controller error.  The District of Columbia Circuit Court of Appeals held that Dameron was an involuntary public figure for purposes of discussion of the crash, and therefore his libel action failed for lack of proof of actual malice on the part of the magazine. The D.C. Circuit concluded that even though Dameron had taken no voluntary actions,  "[t]here was indisputably a public controversy" in which "Dameron played a central role."  Thus, the court concluded that a person may become an public figure simply by being in the wrong place at the wrong time.

The US Court of Appeals for the Fourth Circuit took issue with this approach in Wells v. Liddy on the grounds that it "rest[s] involuntary public figure status upon ‘sheer bad luck.’"  According to the Fourth Circuit, the relevant factors in determining involuntary public figure status are (1) whether the allegedly defamatory statement arose in the context of a discussion of a "significant public controversy" in which the plaintiff was a "central figure," and (2) whether the plaintiff "assumed the risk of publicity."  A plaintiff assumes the risk of publicity by "pursu[ing] a course of conduct from which it was reasonably foreseeable, at the time of the conduct, that public interest would arise."  The court also demanded that, as in the case of limited-purpose public figures, the controversy must pre-exist the defamation, and the plaintiff must "retain[ ] public figure status at the time of the alleged defamation."  The Liddy court was thus much more careful than the Dameron court not to conflate public interest in an individual with that individual’s involvement in a public controversy.  

Sandmann's attorney Lin Wood is familiar with these categories. Lin Wood famously represented Richard Jewell, the security guard at the 1996 Olympics who was falsely reported in the media to have planted the bomb that killed two and injured 110.  Jewell, far from being the culprit, was actually a hero: he spotted the bomb and prevented more people from being injured.  Nonetheless, the mere fact that he was in the wrong place at the wrong time and thus his actions became newsworthy led a Georgia court to label him an involuntary public figure when he sued the media for publishing defamatory falsehoods about him. 

Although Sandmann still has many defamation battles left to fight, they may never result in a precedent-setting legal opinion guiding the development of defamation doctrine in the digital era. In the meantime, though, these cases give those of us who love defamation law plenty to talk about. 

Posted by Lyrissa Lidsky on August 2, 2020 at 07:54 PM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (6)

RIP, Wilfred Brimley

Actor Wilfred Brimley died Saturday. Brimley had too many roles to mention--most curmudgeonly, which apparently was Brimley. But I, and many lawyers, love his scene as a DOJ attorney in Absence of Malice, who swoops in at the end to smack everyone down. (This is one of two great lawyer scenes in this movie, the other comes early when the newspaper's attorney explains the law of defamation to the reporter). The full Brimley scene is not on YouTube, but here is the beginning:


Posted by Howard Wasserman on August 2, 2020 at 10:28 AM in Howard Wasserman | Permalink | Comments (3)

Saturday, August 01, 2020

Rethinking the Failure of the Arab Spring

My next law review article is going to be on Franklin D. Roosevelt's Constitution Day Address of 1937. More posts to come on that, as I'm starting to make some new discoveries about that speech.

One theme of FDR's Address was how political events overseas can influence our democracy. There are many examples, but one that deserves more attention is the failure of the Arab Spring. That failure was a tragedy for many countries, but its global significance is probably underestimated.

Many observe that faith in democracy has declined in recent years and that authoritarian regimes have grown bolder. Why is that? There are many possible explanations, but one that seems compelling is that successful counterrevolutions give hope to dictatorships and hurt the morale of democracies. (What occurred in the 1980s and 1990s (especially in Eastern Europe) did the opposite.) The Arab Spring was a successful counterrevolution. Instead of seeing new democracies doing well, we saw them mostly flail around. Instead of seeing dictatorships on their heels, we've seen them look stronger and more successful. This probably does matter for how some Americans look at their own government.



Posted by Gerard Magliocca on August 1, 2020 at 08:24 PM | Permalink | Comments (3)

Judicial departmentalism and particularity on Twitter (Updated)

In 2019, the Second Circuit held that Donald Trump could not ban people from following him on Twitter for viewpoint-discriminatory reasons, affirming a declaratory judgment. Trump and Daniel Scavino, the aide who runs his Twitter account, unblocked the plaintiffs and many others. But they did not unblock two groups--those who had been blocked before Trump became President (where there was no First Amendment problem with blocking them because he was not a government official at the time of blocking) and those who cannot point to a specific tweet that caused them to be blocked (where there is no evidence of viewpoint discrimination).

The Knight Foundation on Friday filed a new lawsuit on behalf of those two groups, asking for a declaratory judgment and injunction ordering the unblocking of these new plaintiffs.

Once again, inefficient but appropriate. Trump unblocked the plaintiffs, as we was obligated to do by the judgment. He negotiated with the Knight Foundation to unblock others, not out of an immediately enforceable legal obligation but a recognition of what would happen if he did not unblock--a motion to extend the existing judgment to additional individuals, which would succeed and which would impose that legal obligation. But he identified two groups differently situated than the plaintiffs who, in Trump's view, have not suffered similar violations of their First Amendment rights. This requires new litigation, a new analysis of the First Amendment, and a new declaration of First Amendment rights, duties, and relations.

Update: A further thought on the process: We know the plaintiffs recognized the particularized scope of the original judgment by the fact that they filed a new lawsuit on behalf of these plaintiffs. Had the original judgment protected these non-parties to that action, they could have moved to enforce the judgment, to hold Trump or Scavino in contempt, or to convert the declaratory judgment into an injunction.

For better or worse, this how the process should work. And Trump should not be accused of disobeying a court order or otherwise ignoring the court.

Posted by Howard Wasserman on August 1, 2020 at 06:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (8)

The right to stand is not the obligation to stand

I suppose this was inevitable, given that most debates about free speech are not about free speech but about one side's policy preferences. But not standing for the Anthem has become news, and a source of criticism, for players, coaches, and others in the NBA bubble. Spurs Head Coach Gregg Popovich (whose progressive credentials should not be in dispute) and assistant Becky Hammon did not stand; they defended by one of the Spurs star players. Jonathan Isaac of the Magic stood and did not wear a BLM t-shirt; he defended by a teammate.

That we are talking about people not standing shows that we have come a long way since 2016--from "people should not kneel" to "people should not not kneel." But that is as bad. The idea in supporting Colin Kaepernick is that players should be able to choose methods of expressing their ideas. That should cover what they choose to use and what they choose not to use.

Posted by Howard Wasserman on August 1, 2020 at 04:44 PM | Permalink | Comments (2)

Friday, July 31, 2020

Preparing for Fall Teaching – Community-Based Learning in Physically Distanced, Hybrid, and 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 second step, which is designing assessment & engagement techniques for these new learning environments. 

One of the best parts of teaching in a law school is creating opportunities for students to take their learning out into the world.  We can bring speakers into our class, we can take students to visit a court or administrative agency to see the law in practice, and we can have our students meet up with real clients who may need their help. I even have a colleague who has her Criminal Procedure students do a ride along with the local police department.  Yet none of this will be possible this fall, at least not the way we’ve done it in the past—we certainly can’t put students on a bus and drive up to the Supreme Court, for example.  We could just scrap community-based learning entirely, but I’d love to explore ways to bring the community to our students, even if they are on Zoom.

Bring in speakers remotely.  This option is obvious, but I want to encourage professors to dream big on the speakers they invite into their remote courses.  Pre-COVID, it was hard to get big name speakers into our courses – virtual presentations were rare, and people often didn’t want to travel to talk to a handful of law students.  Now that we all work over Zoom, it’s so much easier to get someone to participate in a 30 minute virtual visit with a class.  So make a list of your dream speakers and invite them to your class.

Record a brief interview with a practicing lawyer about the material.  As asynchronous videos become more common, we might explore using them to introduce practicing lawyers’ views about the material we cover in class.  I’ll give one example here.  As any business law professor knows, the law on corporate boards’ oversight liability is in flux right now.  Rather than just letting my students hear from me on how the law is changing, I’m considering calling up 2-3 lawyers and asking them to record a brief interview with me on the impact of recent cases on traditional doctrine. These interviews will give my students a broader perspective on the law, while also letting them know that the cases they are reading in class actually matter to lawyers out in the world.

Continue reading "Preparing for Fall Teaching – Community-Based Learning in Physically Distanced, Hybrid, and Remote Courses"

Posted by Jessica Erickson on July 31, 2020 at 10:55 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (0)

Sponsored content: Seizing the Opportunity to Focus on Students of Color

The following post is by Russell A. McClain (Maryland) and is sponsored by West Academic

In the last few weeks and months, we all have become more acutely aware of the struggles students of color—particularly Black students—face on a daily basis. These students feel marginalized in ways that affect every aspect of their lives. At the core of this feeling is a tacit question: Do I belong here? The question of belonging is felt not only by Black students; it affects many students who feel oppressed or overlooked because of their race, gender, gender identity, sexual orientation, ethnicity, religion, socio-economic status, other identity characteristics, and intersections of these.

Continue reading "Sponsored content: Seizing the Opportunity to Focus on Students of Color"

Posted by Howard Wasserman on July 31, 2020 at 10:21 AM in Sponsored Announcements | Permalink | Comments (0)

Thursday, July 30, 2020

What If There Were No En Bancs?

I was rereading Gerald Gunther's biography of Learned Hand. Hand was famous for his disdain of en banc sittings, which lives on in the practice of the Second Circuit to call relatively few en bancs. One basic question this raises is whether en bancs serve any useful purpose. What would the world look like if there were none called or permitted?

One answer, of course, is that the Supreme Court would have to hear more cases. En banc hearings sometimes clean up bad mistakes by panels or resolve circuit splits. The Justices would have to do more of that. Litigation would (in some instances) also proceed faster, as one potential state of review would be eliminated.

Would panels "go rogue" more often without the threat of en banc review? Maybe, but for each panel that goes one way another panel could go a different way. That possibility may deter rogue actions. Panels might also take a narrower view of precedent if they concluded that there was no option of en banc review and no implicit validation of the precedent from the lack of en banc review. 


Posted by Gerard Magliocca on July 30, 2020 at 09:08 PM | Permalink | Comments (11)

Delaying the election

I expect the election to happen, if Steve Calabresi and Ari Fleischer are calling the President out for today's tweet and Kevin McCarthy insists on going forward. Nevertheless, some light reading if.

Posted by Howard Wasserman on July 30, 2020 at 05:37 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Biskupic, Part IV

All about the Chief cobbling together the largest possible majority in the subpoena cases. They were a contested 5-4 after conference, with Roberts assigning himself the opinion but no guarantee which of G/B/S/K would join his opinion and Gorsuch and Kavanaugh on the other side.

Posted by Howard Wasserman on July 30, 2020 at 05:21 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 29, 2020

Biskupic, Part III

Focuses on Justice Kavanaugh in June Medical, in which he tried to get people to go along with a remand for more fact-finding, and the subpoena cases, in which he raises the political-question issue. It also describes his efforts to adopt a softer tone towards the parties he rules against, such as DREAMERS or "gritty" LGTBQ individuals.

I think the spin on his moves in June is a bit disingenuous. Remanding for factfinding in these cases is often a delay tactic, a way to decide without deciding, when the trial court's fact-finding is clear and a remand serves no real purpose other than allowing the Justices to keep their hands clear (and make life less difficult for Susan Collins). The remand proposal recalls his dissent on the D.C. Circuit in the pregnant-unaccompanied-minors case, in which he called for giving the government more time to find a sponsor, as the 20-week state-law clock ran down.

Posted by Howard Wasserman on July 29, 2020 at 04:56 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Preparing for Fall Teaching – Group Work in Physically Distanced, Hybrid, and 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.  Recent posts have focused on the second step, which is designing assessment & engagement techniques for these new learning environments. 

One of the biggest challenges in law school classrooms this fall will be figuring out how to have our students do collaborative work in class.  No matter what your teaching situation is, it will be difficult.  If you are teaching in a physically distanced classroom with students in masks and 6 feet away from each other, you will need to figure out how to get students to work together without shouting from across the room.  If you are teaching remotely, you need to figure out how to use breakout groups effectively.  These are very different challenges, but I know they are on people’s minds these days.  Here are some tips for doing group work in these two classroom settings.

Group Work in a Physically Distanced Classroom

Group work will definitely be challenging in physically distanced classes.  There aren’t any easy ways to allow five students to work together in class when they can’t get within six feet of each other.  Yet, it would be a shame if we abandoned group work entirely this fall.  With all of the new health requirements, we already feel more distant from each other, so we need to find ways to connect in our classes, and group work is a good way to do that.

Continue reading "Preparing for Fall Teaching – Group Work in Physically Distanced, Hybrid, and Remote Courses"

Posted by Jessica Erickson on July 29, 2020 at 12:32 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (3)

Tuesday, July 28, 2020

Will My Law School Perish?

Higher education is facing an economically challenging time due to lost revenues brought upon by the COVID-19 pandemic. And as we saw with the closure of Concordia Law School this summer, law schools are no exception. NYU advertising professor Scott Galloway has crunched the numbers for “the immunities and comorbidities of 436 universities included in US News and World Report’s Top National College Rankings.” And he predicts about 20% of these institutions entered the pandemic on such shaky ground that COVID-19 will be the death blow to them. In short, one in five of these universities or colleges will perish.

To calculate this, he looked at a series of variables to create the following scores:

  • Credential score (US News ranking, undergrad admit rate, average monthly Google search volume)
  • Experience score (student life grade and score)
  • Education score (various return on investment measures)
  • Average undergrad tuition & fees score
  • Value-to-cost ratio
  • Vulnerability score (endowment per full time student and percentage of international students)

From these he created two main measures: Value and Vulnerability. And based on whether one was high or low on these measures, he created four quadrants of schools: Thrive, Survive, Struggle, or Perish. Thus, a university with low value and high vulnerability falls into the perish quadrant, whereas a university with high value and low vulnerability falls in the thrive quadrant. The data can be found here.

I took these institutional assessments and matched them up with the U.S. News Law School Rankings (see below). Based on Professor Galloway’s predictions, 18 law schools will perish in the near future (because their university will perish). That is 1 school in the top 50, 5 in the 51-100, 5 in the 101-147, and 7 in the unranked law schools. I have listed them below in order of ranking:

Continue reading "Will My Law School Perish?"

Posted by James Phillips on July 28, 2020 at 04:59 PM in Entry Level Hiring Report, Life of Law Schools, Teaching Law | Permalink | Comments (7)

Biskupic, Part II

Here. The focus is on Bostock and its internal deliberations. The reveals include that the 6-3 breakdown was clear from the beginning (so Roberts, not Ginsburg, assigned the opinion to Gorsuch; that Kagan joined Gorsuch's draft immediately and Ginsburg, Breyer, and Sotomayor followed soon after; and that Alito was angry. There also was a leak in November about how conference had gone, which prompted some op-eds directed to moving Gorsuch away from Kagan.

Posted by Howard Wasserman on July 28, 2020 at 02:14 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

JOTWELL: Singer on Reichman, Sagy, & Balaban on machines and judges

The new Courts Law essay comes from guest reviewer Jordan Singer (New England Law-Boston), reviewing Amnon Reichman, Yair Sagy, & Shlomi Balaban, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L.J. 589 (2020).

Posted by Howard Wasserman on July 28, 2020 at 10:32 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, July 27, 2020

Biskupic on the internal workings of the Roberts Court

At CNN, Joan Biskupic has the first of a series of pieces on the internal workings of the Court and the Chief's place in control, both as the Court's median vote--allowing him to piss off or appease both sides--and as the one who runs proceedings. Tidbits in the piece include: Roberts not providing an obvious fifth vote with the conservative wing on the Second Amendment; Roberts agreeing that DACA rescission was procedurally unlawful from the outside, while refusing to find any equal protection problems (thus losing Sotomayor from a complete majority); some negotiations with the liberal wing over the COVID-voting petitions; and pushing through the remote-argument process (including resisting the push from some to do it by Zoom). She also reports that Roberts began in the dissent in the Georgia copyright case, with Thomas assigning the original opinion and someone (she does not say who) switching during the drafting process.

I hope the coverage describing Roberts as the "swing" vote does not conflate that with him being a "moderate" or ideologically varied--he is not White, Powell, or O'Connor.

And a question: When was the last time the Chief was also the median Justice whose position defined the winner in most 5-4 decisions? Maybe Hughes, but Owen Roberts often moved with him.

Posted by Howard Wasserman on July 27, 2020 at 03:44 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, July 25, 2020

Submission Angsting Fall 2020

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them, but please be patient.)

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron and Levit's extremely helpful guide to submitting to law reviews is available here (this is the July 2020 version). The article now also includes hyperlinks to law review websites.

Posted by Sarah Lawsky on July 25, 2020 at 02:48 PM in Law Review Review | Permalink | Comments (109)