PrawfsBlawg

May 2022
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Wednesday, May 18, 2022

CFP: Beazley Institute Health Law Symposium 2022

From the Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law:

The Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law and Annals of Health Law & Life Sciences invite original submissions for presentations at our 16th Annual Health Law Symposium: Evolution and Innovation in the Health Care Payment Landscape. The Symposium will take place at Loyola University Chicago School of Law on Friday, November 11, 2022; Loyola will have plans in place to host the Symposium virtually if the need arises. Please see the full Call for Proposals linked here.

Continue reading "CFP: Beazley Institute Health Law Symposium 2022"

Posted by Sarah Lawsky on May 18, 2022 at 03:30 PM | Permalink | Comments (0)

The Pending Section Three Challenges

Representative Madison Cawthorn lost his primary yesterday. We will see what the Fourth Circuit does with the pending appeal in his Section Three case. The most likely outcome is a vacatur of the District Court opinion with instructions to dismiss the case as moot, but at least one judge may wish to discuss the merits.

While there may be additional challenges filed this year, here is the status of the pending cases:

Marjorie Taylor-Greene. An appeal was filed in Georgia Superior Court in the state action. There is also an appeal docketed in the Eleventh Circuit in her federal action. The Georgia primary is on Tuesday.
There is a federal case in Wisconsin challenging the eligibility of Senator Johnson and two GOP members of Congress. As far as I can tell, nothing much has happened in that case so far.
Couy Griffin. Commissioner Griffin is seeking to remove this state quo warranto action to federal court. He has also filed a federal action, much like Cawthorn's, to enjoin the state proceeding.

UPDATE: There is also a new Section Three challenge to Dan Cox, a state legislator in Maryland who is running for Governor. I will try to learn more about that lawsuit.

Posted by Gerard Magliocca on May 18, 2022 at 08:12 AM | Permalink | Comments (0)

Tuesday, May 17, 2022

The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade - Web Event May 26 from USD Law

The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade, co-sponsored by the new Center for Employment and Labor Policy and by the Center for Health Law Policy & Bioethics

Thursday, May 26, Noon
Zoom, Register Here
Free to all to attend

Please join us for a Noon panel discussion on The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade co-sponsored by USD School of Law's Center for Employment and Labor Policy (CELP) and Center for Health Law Policy and Bioethics (CHLPB). The panel will explore the many legal implications of the leaked Alito draft on the impending Supreme Court decision on whether to overturn Roe v. Wade. The event will include a short talk by each panelist as well as an extensive Q&A session. The panel will be conducted via Zoom and registration is required to receive a secure, personalized link.

Moderator

Mila Sohoni, Associate Dean of Faculty; University Professor; Professor of Law

Panelists

Don Dripps, Warren Distinguished Professor of Law
Dov Fox, Herzog Endowed Scholar, Professor of Law; Director, Center for Health Law Policy & Bioethics
Orly Lobel, Warren Distinguished Professor of Law; Director, Center for Employment and Labor Policy
Robert A. Schapiro, Dean and C. Hugh Friedman Professor of Law

Posted by Orly Lobel on May 17, 2022 at 06:05 PM | Permalink | Comments (0)

Monday, May 16, 2022

John Marshall House

I did a book event last week at John Marshall's House in Richmond yesterday. It was a great thrill to sign some of my books in the Chief Justice's front parlor. Here are some pictures after the jump:

Continue reading "John Marshall House"

Posted by Gerard Magliocca on May 16, 2022 at 08:54 PM | Permalink | Comments (0)

ACUS call for information regarding Public Disclosure of Agency Legal Materials

Margaret Kwoka, Cary Coglianese, Bernard Bell, Michael Hertz and myself are part of an ACUS (Administrative Conference of the United States) committee on public disclosure of agency legal materials, including FOIA and other requirements, overlaps, inconsistencies, unclear or incomplete disclosure requirements, how limits on disclosure (trade secrecy; privacy) are defined, and how tech developments are/should be shaping disclosure.

Here is the request for public input:

ACUS is soliciting public input on key questions related to the public availability of agency legal materials such as regulations, guidance documents, and adjudicative decisions. The request for information is available on the ACUS website and will be published in the Federal Register later this week. Comments should be submitted to ACUS by July 18.

The request is part of a new ACUS project, Disclosure of Agency Legal Materials, which considers whether Congress should amend the Freedom of Information Act and other statutes governing the disclosure of agency legal materials to consolidate and harmonize overlapping requirements, account for technological developments, correct statutory ambiguities and drafting errors, and address other potential problems that may be identified.

ACUS has also engaged Professors Bernie Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, and Orly Lobel to prepare a research report as part of the project.

The project will, if warranted, recommend statutory reforms to provide clear standards as to what legal materials agencies must publish and where they must publish them. The objective of any recommended amendments will be to ensure that agencies provide ready public access to important legal materials in the most efficient way possible.

Please contact Todd Rubin ([email protected]) with any questions.

Posted by Orly Lobel on May 16, 2022 at 04:04 PM | Permalink | Comments (0)

Online Symposium: Jessica Silbey’s Against Progress: Intellectual Property and Fundamental Values in the Internet Age

Jessica Silbey has written (another) groundbreaking book about the future of intellectual property, innovation, and equality. BU law review just went live with an online symposium about the book here.

contributions by Bartn Beebe, Margaret Chon, Jorge Contreras, Leah Chan Grinvald, Laura Heymann, Orly Lobel & Mark McKenna:

Less as More in Intellectual Property Law
Barton Beebe
102 B.U. Law Review Online 61 (2022)

Precarity and Progress
Margaret Chon
102 B.U. Law Review Online 65 (2022)

A More Progressive Progress
Jorge L. Contreras
102 B.U. Law Review Online 69 (2022)

Against Progress: The Value of Distributive Justice in Intellectual Property
Leah Chan Grinvald
102 B.U. Law Review Online 74 (2022)

Whose Progress?
Laura A. Heymann
102 B.U. Law Review Online 78 (2022)

Progress is Less Intellectual Property
Orly Lobel
102 B.U. Law Review Online 82 (2022)

Equality Through the Photographer’s Lens
Mark P. McKenna
102 B.U. Law Review Online 87 (2022)

Posted by Orly Lobel on May 16, 2022 at 03:32 PM | Permalink | Comments (0)

Friday, May 13, 2022

Northwestern University Law Review Exclusive Empirical Cycle - 2022

From the Northwestern University Law Review:

The Northwestern University Law Review will be opening its summer exclusive empirical cycle for the print journal this Sunday, May 15. Submissions will be accepted through Thursday, June 30.

Continue reading "Northwestern University Law Review Exclusive Empirical Cycle - 2022"

Posted by Sarah Lawsky on May 13, 2022 at 03:31 PM in Law Review Review | Permalink | Comments (0)

JOTWELL: Coleman on Reda on data and inequality

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Danya Sochair Reda, Producing Procedural Inequality Through the Empirical Turn, 94 Colo. L. Rev. ___ (forthcoming 2023), on how data has been misused in a partisan rulemaking process to create and further procedural inequality.

Posted by Howard Wasserman on May 13, 2022 at 09:18 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Thursday, May 12, 2022

More overlapping jurisdictional doctrines

Another example of overlapping "jurisdictional" doctrines, in which courts take the same fact--whether an executive official has a present or future intent to enforce an invalid law--going to ripeness, standing, and EPY. The Eighth Circuit held that sovereign immunity bars a challenge to a Minnesota law prohibiting certain false statements in campaign materials, because the four defendant prosecutors, while responsible for enforcement, had no present intent to enforce the law. The court discusses precedent in which the court found standing and ripeness but held the executive had sovereign immunity because, while the responsible executive, he had no intent to enforce.

I continue to have several problems with this. First, it makes no sense for three doctrines to turn on one fact. Second, it makes less sense for a fact to point different ways for different doctrines--if there is sufficient threat of enforcement to establish standing, there should be sufficient threat of enforcement to establish an ongoing violation for EPY. Third, this is all merits and it would be nice if we treated it as such.

Finally, note that the court cited the SB8 case for the basics of EPY and the absence of an enforcing executive.

Posted by Howard Wasserman on May 12, 2022 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Law & STEM Junior Scholars Conference 2022 - Call for Papers

The Northwestern, Penn and Stanford Law Schools are pleased to announce that the Fifth Junior Faculty Forum will be held at the Northwestern Pritzker School of Law in Chicago on October 21-22, 2022. The forum is currently seeking submissions from junior faculty interested in presenting papers at the Forum. The deadline for submission is Friday, July 1, 2022.

Continue reading "Law & STEM Junior Scholars Conference 2022 - Call for Papers"

Posted by Sarah Lawsky on May 12, 2022 at 08:47 AM | Permalink | Comments (0)

Lawsky Entry Level Hiring Report 2022

Following is a data summary of the Spring Reported Entry Level Hiring Report for 2022. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes several hires who requested not to be included in the spreadsheet at the date of this posting.)

This report and the spreadsheet are freely available under the Creative Commons Attribution-Share Alike 4.0 license, cited as Sarah Lawsky, Spring Reported Entry Level Hiring Report 2022, PrawfsBlawg, https://prawfsblawg.blogs.com/prawfsblawg/2022/05/lawsky-entry-level-hiring-report-2022.html.

Continue reading "Lawsky Entry Level Hiring Report 2022"

Posted by Sarah Lawsky on May 12, 2022 at 08:23 AM in Entry Level Hiring Report | Permalink | Comments (0)

Wednesday, May 11, 2022

Random reactions to some items in the news

My response to some random news items.

• Leah Litman and Steve Vladeck argue discuss the constitutional rights that could be on the chopping block if the Dobbs draft becomes the Court's opinion, with the provocative headline "The Biggest Lie Conservative Defenders of Alito's Leaked Opinion Are Telling." Conservative commentators and others have taken umbrage, especially to the headline and to the implication, pointing to Alito's efforts to distinguish abortion from other unenumerated rights and the supposed "popularity" of these other rights. As Leah and Steve argue, there are distinct pieces to this: 1) What GOP legislatures and executives might try to do and 2) How SCOTUS will respond to litigation over such efforts.

The lens of judicial departmentalism sharpens what is happening here. Legislative and executive officials have never been bound by SCOTUS precedent; they have been free to enact and enforce/threaten to enforce laws that run afoul of Roe/Casey, Griswold, Obergefell, etc. Those efforts fail in the lower courts, which are bound by SCOTUS precedent, and likely fail in SCOTUS in the absence of willingness to overrule precedent. If the Alito draft becomes the Opinion of the Court, it does not authorize previously unauthorized conduct in the political branches. It emboldens them to pursue these laws, believing that these efforts will be less pointless (because having a better chance of success) and less costly (because defeat in court means attorney's fees). One commentator (not sure who) argued that Roe is unique because it never gained broad acceptance, unlike Brown. Describing Brown as widely accepted is so ahistorical that whoever said it should no longer be taken seriously. But Brown illustrates how judicial departmentalism operates. The Southern Manifesto and pieces of "Massive Resistance" exemplified how political branches can continue to follow their own course.

The issue always comes returns to SCOTUS and how ready it is to overrule precedent. Massive Resistance failed when courts smacked them down (as happened in Cooper and elsewhere), except courts did not do that often enough. Similarly, if a majority of SCOTUS does not follow Alito where his opinion leads, fears from the left are unfounded. But it is disingenuous, as Litman/Vladeck critics do, to say that GOP politicians cannot and will not attempt to push the envelope--they always have been able to do so and always have done so. Just as it is disingenuous to argue that the Dobbs draft does not lay the rhetorical and precedential groundwork to overrule other cases because the Justices may choose not to do so.

• Vice tells the story of Romana Didulo, a Candian Q-Anon person who convinced followers (who believe she is Queen and running Canada behind the scene) to stop paying their utility bills because water and electricity are free. The consequences to her followers, many of whom are financially vulnerable, should be obvious. This is a consequence (ironic? unfortunate? inevitable) of our approach to free speech. Because it is almost always impossible to stop or punish the bad speaker, consequences fall on those who listen to the bad speaker and engage in criminal (1/6 insurrectionists) or unwise (the people who stop paying their utility bills) activities. We hope the negative consequences prompt listeners to turn away from the speaker, who, deprived of an audience, stops speaking. But that is a long process and one that often harms those who cannot afford it, while the powerful remain insulated.

Posted by Howard Wasserman on May 11, 2022 at 04:49 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, May 10, 2022

Academic Muppets

Posted by Howard Wasserman on May 10, 2022 at 08:55 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

More confusion on legislative immunity

I wrote a few weeks ago about a Ninth Circuit case allowing a state legislator to pursue a First Amendment retaliation claim against legislative leaders who restricted his access to the capitol, wondering how this was not governed by legislative immunity. Further confusing matters, the Sixth Circuit holds that legislative immunity bars a First Amendment retaliation claim against the heads of a party caucus for expelling a member from the caucus (and denying her party resources). Unless there is a meaningful distinction in the legislative nature of "you no longer get to hang out with us in the legislative process" and "you must notify us before enter the chamber," both decisions cannot be correct.

Posted by Howard Wasserman on May 10, 2022 at 08:44 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, May 09, 2022

Section Three and State Quo Warranto Actions

Today the Arizona Supreme Court issued an order affirming the dismissal of Section Three challenges brought against two Congressmen and against one state representative, Mark Finchem, who is running for Secretary of State. The Court held that the state law does not permit Section Three challenges against candidates. This point is just stated as a conclusion and is not well-reasoned, but that's the final word on state election law.

This may not end the dispute about Mr. Finchem's eligibility to serve. If Finchem wins the primary and is then elected in November, his eligibility to serve in office may be challenged in a state quo warranto action next year. The candidate eligibility statute does not apply to a state quo warranto action.

Posted by Gerard Magliocca on May 9, 2022 at 07:23 PM | Permalink | Comments (0)

Welcoming the Transnational Litigation Blog

My UNC colleague, John Coyle, along with Ingrid Wuerth (Vanderbilt), William Dodge (UC-Davis), and Maggie Gardner (Cornell), have recently launched the Transnational Litigation Blog.

The editors have been very active, posting on topics including the legal challenges presented by a possible Russian bond default, evaluating whether the U.S. should seize Afghan central bank assets to pay judgments against the Taliban, weighing the foreign relations aspects of contemporary climate change litigation, and recounting the disquieting origins of the modern doctrine of forum non conveniens. In addition to traditional blog posts, TLB includes pages that explain various topics, such as forum selection clauses, choice of law clauses, and the presumption against extraterritoriality.

For those of you who are interested in transnational topics--or for those of you who just can't get enough legal blog content--I hope you check it out!

Posted by Carissa Byrne Hessick on May 9, 2022 at 01:48 PM in Blogging, Carissa Byrne Hessick | Permalink | Comments (0)

State Interests for Jurisdiction by Registration

This is the final post by Charles "Rocky" Rhodes and Cassandra Burke Robertson (Case) on next Term's personal jurisdiction case. They will be back for the argument.

Our last post maintained that some state interest in the litigation is necessary for a corporation’s registration to support jurisdiction. This may appear counterintuitive. After all, if a corporation decides to register to do business when the state’s registration scheme specifies the jurisdictional consequences of registration, shouldn’t the registration operate as other forms of consent to jurisdiction, such as forum selection clauses, which do not typically necessitate a state interest?

Continue reading "State Interests for Jurisdiction by Registration"

Posted by Howard Wasserman on May 9, 2022 at 09:31 AM in Civil Procedure, Judicial Process | Permalink | Comments (0)