PrawfsBlawg

Sunday, May 19, 2019

Prof. John Copeland Nagle, RIP

My friend and colleague, John Nagle, passed away yesterday morning. Like everyone who knew John, I'm crushed. He was a warm, kind, and decent man; an insightful and thoughtful scholar; a dedicated teacher and mentor; a generous friend; a loving father and husband; a winsome and inspiring Christian. He was the first person who welcomed me, in the summer of 1999, when I moved into my office at Notre Dame Law School, and I cannot imagine the school -- or, really, my own life in the academy -- without him.

If you are not already familiar with his (voluminous!) scholarship -- on topics from moral pollution to the Desert Sands Fruitfly to severance to environmental stewardship -- have a look.  (I used to tease him for having managed to convert his love of the outdoors and our national parks into a research agenda, but -- obviously -- I was just jealous.)  And, if you have a few minutes, read this lovely tribute and remembrance by his (and my) former student, Prof. Derek Muller (Pepperdine).   

Réquiem ætérnam dona eis, Dómine,
et lux perpétua lúceat eis.
Requiéscant in pace. Amen.

Posted by Rick Garnett on May 19, 2019 at 09:05 AM | Permalink | Comments (2)

Friday, May 17, 2019

What's Roe got to do with it?

Andrew Sullivan praises Elizabeth Warren's proposals to codify Roe-level protections through federal legislation, because it allows for a political debate and political compromise that Roe preempted. He also blames Roe for the "batch of truly extreme bills in red states outlawing" abortion, which are designed to gin up a Supreme Court case that, with Brett Kavanaugh on the Court, will overrule Roe and the constitutional right to reproductive choice. But neither premise makes sense.

Sullivan's argument seems to be that because public opinion has remained relatively static on abortion since 1973, that legislators would not enact such extreme laws that are bound to be unpopular. But that makes no sense.  Alabama did not enact this law to challenge Roe for the sake of challenging Roe. It enacted this law because officials want to stop women from having abortions in Alabama. Once Roe is overruled, this remains the law in Alabama; there is no reason to believe that the Alabama legislature, having had its law declared constitutionally valid and enforceable, will say "oh, let's find a compromise." This will be the law in Alabama and the governor will set about enforcing it with glee. And nothing about Alabama's political alignment suggests Republican officials would pay any sort of political price for these laws. Same with Georgia, Missouri, and other states following on this course.

Roe was decided in a world in which abortion was illegal in many states. Without Roe, many of those bans would have remained in place. Or, as some states liberalized reproductive choice (which was happening in the years prior to Roe), other states (likely the states that are in the news now) would have enacted the laws that they are enacting or seeking to enact now. Contra Sullivan, it seems as likely that, without Roe, we would have gotten where we are (or where we are headed), but would have gotten here 40 years ago.

Continue reading "What's Roe got to do with it?"

Posted by Howard Wasserman on May 17, 2019 at 06:17 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Some Suggested Questions for Fellowship and VAP Directors

I'm delighted that Jessica Erickson will be interviewing fellowship and VAP directors. I look forward to the results. I should note that a few years ago, Elizabeth Chamblee Burch and I co-chaired a panel of the AALS section on Scholarship at the annual meeting titled "The State of the Art on Placing Legal Scholarship and its Potential Consequences." A video is available here. Despite the title, as I recollect, part of the discussion was about the role of fellowships and VAPs and of fellowship and VAP directors in shaping and helping to place scholarship. I would also recommend as relevant a book which landed with a thud on my desk this morning: Ted White's third and final volume of Law in American History, specifically chapter 6, "The American Legal Academy and Jurisprudence II: From Process Theory to 'Law And.'" Among other things, it contains interesting discussions of changes in faculty hiring.

The difficulty with suggesting questions for such a series is that in our small world, with all its conventions and strategic considerations, it can be impolitic to ask the questions one actually wants answered, and being impolitic is a cardinal sin among academics, including legal academics. This is one of the academic attractions of "speaking truth to power:" it points outward, not inward, and so lets sleeping dogs lie. Some questions will necessarily reflect on the strengths and weaknesses of the fellows, who are hardly unprivileged but are also only at the beginning of their careers; I do want to ask questions about them, or about the system that produces them, but with no intent to offend or make them nervous. Some questions will reflect on the people who run those programs. In either case, those of us who want to hire these candidates and want to maintain good relations with their mentors risk damaging that goal if we are impolitic. Better, on this view, to ask those questions in private or not ask them at all, on the assumption that people in the know will, well, know--even if that means both that we entrench the usual systems of hierarchy and inside baseball, and even if it means that the people who consider themselves cognoscenti think they know the real story but are actually thin on details and thick on myths and assumptions.

But one of the obligations of academic tenure, which includes responsibility for the state of one's discipline as well as one's individual institution, is to be impolitic.  I'm not sure the questions I ask here are impolitic; I just haven't worried much about whether they are or not. One should also note that there are obvious reasons for the people Jessica will interview to be politic as well, so it's important to dig down and push back if they offer bromides or generalities. In any event, here are some questions I would be happy to have asked and almost as happy to have answered. 

1) What do we lose by relying on fellowships and VAPs in hiring? It seems to me that the answers to the question what we gain from them are much more obvious, and hence less interesting and less worth asking. I'm happy to be proved wrong by answers that teach me something new about what we gain. But many of those gains seem obvious. Most prominently for me, the average level of basic quality and polish of the candidates I have seen over the past 15 years or so has increased significantly. In addition, their commitment to an academic life is more guaranteed, with the departure from (or, alas, skipping of) legal practice and the sacrifice of time involved in a fellowship serving as proxies for the demonstration of commitment to the academic life that is one of the functions of a doctoral program. (I should note that "commitment" is not the same as "calling." Whether we hire people who have an academic calling is a separate question.) In some respects the candidates are more diverse than they would be, and were, in a system that relied more heavily on individual recommendations and sponsorship at a few schools.

But what do we lose by this system? I've previously recommended Martha Nussbaum's article Cooking for a Job: The Law School Hiring Process, which is now aged but still pertinent, if not prescient, in its concern that law school hiring might prize "quickness, glibness, and aggressiveness" and undervalue "reflectiveness, quietness, and uncertainty." Nussbaum argues in part that it would be better if candidates had writing we could judge carefully instead of focusing on their marketing skills and ability to pass "lunch." Well, we now have articles a-plenty from candidates who go through the fellowship/VAP process. But have we moved away from glibness, marketing skills, "catchy phrases and slogans," passing or flunking "lunch," and the like? Or have we rather refined and improved, through the fellowship process, the job of training candidates to show those questionable qualities, in their writing as well as their selling--the job, in sum, of "polishing" candidates? We gain, I have suggested, a higher average threshold level of quality and readiness. But do we miss rough gems--individuals who are not yet "polished" but who in time might be more likely to contribute genuinely new and heterodox ideas? Do we lose promising oddballs and eccentrics? Candidates who are more high-risk but also more high-gain? Do we lose, or let diminish, the ability to see beneath the patina and make deeper judgments? Not to mention losing those practicing lawyers who not only have longer and more meaningful legal experience but also and genuinely have an academic calling, but are not inclined to go the fellowship route?

2) If there are any such losses, do fellowship and VAP directors attempt to address and remedy them, or are these losses baked in to the current system? I think this question goes to both selection and training. On the selection level, are fellowship and VAP directors looking for rough gems and people with unconventional backgrounds? Or are they already predisposed to hire as fellows or VAPs those who have already checked the same old boxes--top five (or top three) school, law review, two federal court clerkships, work for a "suitable" firm or interest group? If it's the latter, is that really the best use of these resources--to further polish the already-fairly-polished? I am asking rather than answering this question: maybe the answer is that these are the most likely best scholars and we should want them to become law teachers, just as we select the most promising undergraduates in history for graduate programs rather than the C students. But the answer to the question seems less obvious to me than that, since a doctorate is a prerequisite to become a history professor and a fellowship, despite increasing reliance on it as a qualification, is not a prerequisite to become a law professor. At the training level, do fellowship directors talk about the difference between surface polish and serious depth? Do they discourage or encourage the use of "catchy phrases and slogans" and the like? Do they serve as a chisel or cudgel or as a chamois for their fellows? When they give references, are they willing to distinguish those of their fellows who are superficially brilliant from those who have greater depths--or at least to let the superficially brilliant speak for themselves while making a greater effort to champion those who don't lunch well but show true promise as scholars and teachers?

3) How much of the "polish" comes from the programs' leaders and faculty and how much from the fellows themselves? Just as the standard level of quality of the top-school fellows and VAPs seems higher and more standardized,  so does their facility and homogeneity in using particular tropes, approaches, strategies, and so on in their scholarship, their presentations, their FAR forms, their interviews, etc. Is this a result of what they are learning from the directors of these programs, or individual faculty mentors? Or is much of it the product of horizontal exchanges of information (and lore)?   

4) Is there any point in doing a fellowship or VAP at a school beyond the top five or ten schools? Is there sufficient justification for having a fellowship program at such schools? Again, I'm answering this question, not presuming an answer. I can speak on the level of experience about how terrific some colleagues who came from fellowships outside the top five schools have been. Nevertheless, hiring rates from those programs are surely lower than from the top schools, and whether a VAP program at such a school provides serious training, mentorship, and so on will surely vary by school. Of course the choice is up to the prospective fellow, who is an adult with a law degree and everything. But it's equally true that such a school could tally up the outcomes and evaluate the depth and quality of its program and decide it's not worth it, or not fair to would-be fellows, to maintain it. If they do maintain it, do the directors at such schools give fair warning to prospective fellows that hiring outcomes go down outside of the most recognized VAP or fellowship programs? 

5) Do top fellows and VAPs over-place their work? If so, how and why? This is another potentially impolitic question, but one on which I have heard plenty of sotto voce consensus. It is true both that the quality and the placement of articles from the candidates I have seen over past 15 years has climbed significantly, but I think the latter is more true than the former. To be clear, I am not speaking ill of the quality of the pieces I am reading by fellows and VAPs; as I said, I think their average quality level has skyrocketed and that the fellowship/VAP process has much to do with that. I would nevertheless suggest that their average level of placement seems to exceed their average level of quality and contribution. (Coming up with a new bottle for old wine, or a new label for an old bottle, has its uses but is not a deep contribution.)

Would the directors agree? (I imagine they would not, or wouldn't say so if they did. But there's no harm in asking.) What role do they, or individual faculty mentors, play in article placement for fellows and VAPs under their care? Some? None? A great deal? Should they play any role in helping their fellows with placement at all? I see excellent reasons why the answer should be no, other than advice about how best to write and frame an article and even about how best to play the placement game (although I hope they include some skepticism about that game along with their advice). I think that directors could (must, really) at least be candid about saying whether or not they or other faculty members help push or place articles. But I no longer assume that they are the sole reason. Coming from another country, I did not fully participate in the networks of elite social capital when I was beginning my career in the US or in legal academia. I certainly benefited from some of that, but I didn't have the same level of network and really wasn't aware of much that goes on--and still am not, for the most part blissfully. How much does placement for fellows or VAPs at top law reviews depend less on their program (except as a basic credential that law reviews can use for plausible justification) and more on the individual fellows' past or present acquaintance with the student editors at those journals, through law school, clerkships and clerk networks, undergraduate institutions, and other elite small-world factors? If that's what's going on, it's another excellent reason to question the law review system (and perhaps the United States) as a whole, but not something I'd lay at the feet of the programs and their directors. Still, I'd like to know more. I hate to assume anything in this area without knowledge, and it's precisely knowledge that is in short supply, or kept under wraps rather than made utterly transparent. I will add again, lest I be thought too rude in asking this question, that I have heard more than a few professors suggesting that a number of recent articles by elite fellows seem clearly overplaced, even if they are good, and certainly polished, articles. Doubtless they could all be wrong, and doubtless many of them would disagree about which articles are or aren't overplaced. But it seems odd for this observation to be simultaneously widespread and not publicly discussed.     

6) Do elite fellowship and VAP programs challenge questionable versions of "meritocracy," improve them, or entrench them, or some or all of the above? One of the advantages of these systems--at least if they are fully and generously funded, and even then one must factor in those potential candidates whose family commitments in particular places may make them less willing or able to take on a fellowship or VAP--is that it relies less on the "old boy" network (which can still be an old boy network even if it extends beyond boys) under which Dean A at Law School taps Student B on the shoulder and destines him or her for a teaching job. That was the older system, and one finds constant reference to it in the memoirs of or histories discussing mid-century law professors of note. There is no doubt that along some lines, the fellowship/VAP system is more diverse. Of course, a system in which no fellowships existed but we did have a meat market could also result in diversity of hiring, but one advantage of the fellowship system--here I'm focusing on this as a plus rather than a minus--is that it teaches some promising people some of the vocabulary and polish that others imbibed from professor parents or other sources of relevant training and social capital. Do elite fellowship directors seek out such students, or concentrate on those who already have that social capital and just polish them up a little more? (See question 2 above.) Do they look for socioeconomic as well as other forms of diversity? Do they look for ideological diversity, including giving serious weight to clerkships or legal work experience for judges or groups that don't have the cachet of certain other judges or groups? Do they do the same when it comes to the hiring process? I have noticed that some fellows who take slightly more heterodox or unpopular positions on hot-button issues have placed extremely well while still fellows, but fared less well at the hiring level. That difference also means that once they're berthed at less prestigious schools compared to those at which their more orthodox fellow fellows (pardon me) have landed, articles of comparable quality will place more poorly depending on where a fellow has ended up. Again, I don't lay that at the feet of the directors. But have they noticed this--and if so, have they worked to counter it? Ultimately, is the fellowship/VAP program a way of countering the usual reproduction of hierarchy, a way of keeping it but making it fairer and more equitable, or a way of modernizing the same old phenomenon and dressing it up in more respectable garb? Is this something that the programs, their directors, and their schools think about, worry about, and discuss?

7) How can fellowship directors cultivate a knowledge of--and an interest in on the part of prospective professors--a wider spectrum of these United States? One potential problem with a reproduction of hierarchy system is that both its senior and its junior members can be caught up in a closed loop of limited life experience. To exaggerate, a person who grows up in Brookline, shuttles between Cambridge and New Haven for his or her education, and then briefly lives and works in New York and DC before returning to Cambridge or New Haven for a fellowship may lack a more comprehensive knowledge of what possibilities lie outside that rather parochial experience. And if that person's mentor has followed the same arc, traversing the spectrum all the way from A to B, the problem is compounded. I have encountered fellows for whom the idea of teaching outside about ten schools and four cities was seemingly far from their experience, and fellows who told me about rather narrow advice they were given by elite mentors about where to teach. Do directors of these programs make an effort to learn about law schools across the country and pass on what they know? Do they encourage their fellows to think beyond a short list of schools or cities? Do they feel they know enough to do so, or that their colleagues who serve as mentors do?

I'm sure others can and will come up with other questions, but this is certainly a start.  

 

Posted by Paul Horwitz on May 17, 2019 at 05:08 PM in Paul Horwitz | Permalink | Comments (4)

New Summer Series: Interviewing Fellowship and VAP Directors

Thanks, Howard, for introducing this new series!  As Howard mentioned, I am the Chair of the AALS Committee on Becoming a Law Teacher.  The Committee’s goal is to improve the available resources regarding how to become a law professor.  There is information out there already, to be sure, but it is pretty scattered and if you were new to the law professor world and didn’t have many connections, it could feel pretty puzzling.  What is a job talk anyway?  And how about a research agenda?  And why is everyone terrified about the Wardman Park Hotel?  Our goal is to demystify the process as much as we can.

That’s the big project, but we are partnering with prawfsblawg on one specific part of it.  As we started to dig into the data, it become clear to us that VAPs and fellowships are the de facto gateway into the profession.  We all know that to some extent, but the stats that Sarah Lawsky has put together are even more striking than we would have guessed. Almost everyone (literally, almost everyone!) who is hired for a tenure-track law professor job today has either done a fellowship or VAP or has gotten a PhD.  And yet, while there is some information available on the tenure-track market, there is surprisingly little information about these programs.  How do you get a fellowship?  How does one fellowship differ from another in terms of mentoring, teaching and research time, and basic employment terms?  And how can you make the best use of your fellowship time to prepare for the entry-level market?  If you have stayed in touch with your law school professors or have friends who have done VAPs or fellowships, they might be able to give you some information about specific programs.  Otherwise, though, you are on your own. 

Our hope is to change that.  Over the summer, I will interview the directors of as many VAPs and fellowships as I can.  I will ask them all of the questions I would have had when I was new on the market, along with additional questions I crowdsource here from all of you.  Then I will post edited transcripts of the interviews here on prawfsblawg and on AALS’s website.  My goal is to post one interview per week starting in June and continuing through most of the summer.  I will also maintain a spreadsheet of basic information about each program for easy comparison. 

I’ll be back in a few days with a draft list of questions for the interviews, and I would love your feedback!

Posted by Jessica Erickson on May 17, 2019 at 09:53 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (13)

Introducing Jessica Erickson on AALS hiring

Over the next few weeks and months, we will publish a series of guest posts from Jessica Erickson (Richmond). Jessica is the chair of the AALS Committee on Becoming a Law Teacher; the committee's new project is providing information on how law-faculty hiring functions, formally and behind the scenes. Jessica will interview directors of VAP and fellowship programs and will post edited transcripts here and at the AALS website.

Stay tuned.

Posted by Howard Wasserman on May 17, 2019 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Thursday, May 16, 2019

The Making of a Justice

I read Justice Stevens' memoir with interest. There are many pleasing anecdotes, and the book gives the first detailed account from a Justice about what occurred behind the scenes in landmark cases such as Bush v. Gore and Heller. The fact that he can write any book at 99 years of age is amazing.

That said, Justice Stevens either had no editor or a bad one. There are more than the expected number of errors in the book. For example, at one point he says: "My fourth term on the Court began a month before Jimmy Carter defeated Gerald Ford in the 1978 presidential election." This sentence contains two mistakes that an editor should have corrected. Justice Stevens also says that George W. Bush's second inauguration occurred in 2004, which is another unfortunate typo. The book is also too long and becomes something of a death march through the Justice's opinions. Best to just skim. 

Posted by Gerard Magliocca on May 16, 2019 at 09:34 PM | Permalink | Comments (1)

Getting the nomenclature right

I am picking on this CNN article, but it is common to the erroneously framed discussion of what happens next with Alabama's abortion law. The governor signed the bill yesterday and by its terms it becomes effective six months after it takes effect, so mid-November. Plaintiffs are getting ready to sue.*

[*] The lawsuits are ripe and plaintiffs have standing even suits are filed before the law takes effect in November. Courts treat cases as ripe when filed before a delayed effective date, at least absent some indication that the situation could change before the effective date, which is unlikely here. The most recent cases to highlight this principle were the challenges to the Affordable Care Act, which were brought years before most provisions (such as the individual mandate) took effect.

What will not happen: The courts will not stop the law from taking "effect." The courts will not "block" or "stop" or "halt" the law. Courts do not have the power to do that through private litigation, as it would impinge on the legislative power. A law takes effect whenever the enacting legislature says it takes effect and courts cannot block or halt that. The statute will remain part of the laws of Alabama forever (unless repealed), a monument to the political moment.

What will happen: The courts will enjoin the Alabama executive from enforcing that law against certain persons, presumably a class or clients of a Planned Parenthood facility. The statute remains part of the laws of Alabama, but the state executive cannot enforce it, on pain of contempt of court.

Posted by Howard Wasserman on May 16, 2019 at 08:24 AM | Permalink | Comments (7)

Wednesday, May 15, 2019

The new abortion laws and judicial departmentalism (Updated)

Whatever I may believe about the new abortion restrictions in Ohio, Alabama, and Georgia as a matter of policy or validity under my normative understanding of the Constitution, the process is playing as it should in a judicial-departmentalism regime:

The political branches enact--and plan to enforce--laws that they believe are valid on their best constitutional understanding. That this understanding conflicts with prevailing judicial doctrine does not matter. In fact, it cannot matter. Judicial doctrine can change only if there are new cases for the courts to hear and decide; new cases arise only if governments enact laws that might be invalid under current doctrine, then are able to argue for reversing existing law or establishing new law in defending those laws in court (whether against a defense in an enforcement action or as defendant in a pre-enforcement Ex Parte Young action). The government then takes its chances. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees.  This is how the system, and the interplay among co-equal branches with interpretive authority, works.

Dahlia Lithwick argues that these new abortion restrictions put Chief Justice Roberts in a bind. Roberts, Lithwick, argues, wants to maintain the facade that judicial decisionmaking is more than raw politics; one way to do so is through incrementalism, rather than overruling the right to reproductive freedom in one fell swoop. The way to do that is to allow lower courts to declare these new laws invalid (as they are under existing doctrine) and enjoin their enforcement, then deny cert (all while deciding other cases involving other laws that allow the Court to limit the right without overruling precedent). The problem is that it takes four (Thomas, Alito, Gorsuch, Kavanaugh) to grant cert in one of these cases, which might force Roberts to forego his desired institutionalism or vote to retain Roe as precedent. Unless he can convince Kavanaugh or Gorsuch to join him in slow-walking things.

This argument works both ways politically. Imagine Hillary Clinton had won, appointed Merrick Garland and Sri Srinivasin to the Court, and now want to overrule Shelby County so DOJ can resume enforcing the pre-clearance requirements of the Voting Rights Act. What would have to happen? DOJ would resume enforcement efforts, creating new litigation in which DOJ argues that Shelby County should be overruled. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees. But there would be no alternative way to set-up the judicial question.

Update: Gerard paints a different scenario, in which Ginsburg, Breyer, Sotomayor, and Kagan rush to grant cert (perhaps after the district court issues the inevitable injunction but before judgment in the 11th Circuit), daring their brethren (literally, given the gender divides on the Court) to eliminate the constitutional right to abortion in a case involving laws that allow for no narrowing construction, provide no exceptions, and are punitive in nature. And all in an election year.

Posted by Howard Wasserman on May 15, 2019 at 06:45 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Goldilocks and the Future of Legal Scholarship - Symposium Issue

Last semester, Loyola Chicago held an excellent conference on the big question of "The Future of Legal Scholarship". The symposium issue of the journal is now available and includes articles by the anonymous illustrious Law Prof co-authored with Darren Bush, LAW REVIEWS, CITATION COUNTS, and TWITTER (Oh my!): Behind the Curtains of the Law Professor’s Search for Meaning;Caprice Roberts on Unpopular Opinions on Legal Scholarship; The Law Review Follies by Eric J. Segall; Picking Spinach by Anthony Michael Kreis, and finally, my article:The Goldilocks Paths of Legal Scholarship in a Digital Networked World.

Posted by Orly Lobel on May 15, 2019 at 03:04 PM | Permalink | Comments (3)

Ballparks as public spaces and free speech

Interesting interview with architectural critic Paul Goldberger about his new book, Ballpark: Baseball in the American City, in which he describes baseball parks as "a key part of a whole category of public space in the American city." I have a thing for old ballparks, so I look forward to seeing the book.

Goldberger's conception of the ballpark as "public space" is key to my arguments about fan speech. Because the First Amendment is understood as making (publicly owned or controlled) public spaces open for expressive activities, at least so long as expression is not inconsistent with other uses of that space. The grandstand of a ballpark is a large speech zone--the whole point of the space is to allow fans to speak in the form of cheering, shouting, waving signs, etc.

Posted by Howard Wasserman on May 15, 2019 at 09:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (5)

Tuesday, May 14, 2019

Exclusive Submissions: Kentucky Law Journal

The Kentucky Law Journal is opening an exclusive article submission track for interested authors. The submission track will open on Wednesday, May 15 and close on Sunday, June 2, 2019. Final publication decisions will be made by Tuesday, June 4, 2019. Authors agree to accept a binding publication offer if the manuscript is selected for publication. Authors further agree to withhold manuscripts from other publications until final publication decisions are made. Accepted manuscripts will be published in Book 2 (final manuscript deadline July 1) and Book 3 (final manuscript deadline September 3). Please include a Book 3 preference in your cover letter if you cannot make Book 2 deadline.

We welcome manuscript submissions from any area of legal scholarship. We look forward to reviewing innovative manuscripts from a diverse academic field. Please send all submissions in PDF format, including manuscript, CV, and cover letter, to Alexander Pabon, Managing Articles Editor of the Kentucky Law Journal, at [email protected] If you have already submitted your manuscript via Scholastica, we ask that you please resubmit your materials in the method described above before the June 2 deadline.

Posted by Howard Wasserman on May 14, 2019 at 06:03 PM in Teaching Law | Permalink | Comments (0)

The end of the Warren Court (Reposted and Updated)

Elsewhere, Steve  notes that today marks the 50th anniversary of Abe Fortas' resignation from SCOTUS, making it the last day that the Court had a majority of Democratic appointees.

But it is more than just the appointing party.

In his history of the Warren Court, Lucas Powe argues that what we label "The Warren Court" lasted about 6 1/2 years. It began in the fall of 1962 with the appointment of Arthur Goldberg, which provided a consistent five-person liberal/civil libertarian majority. Goldberg was replaced by Fortas three years later, continuing that five-person majority on mostly the same terms (save for perhaps a few outlier votes). And the appointment of Thurgood Marshall in 1967 solidified that majority by providing a one-vote cushion--the liberal position could afford one defection (such as Justice Black in some crim pro cases) and still retain the majority. Because of Fortas' forced resignation, that six-Justice majority became a four-Justice minority within four months of Nixon's inauguration.

Continue reading "The end of the Warren Court (Reposted and Updated)"

Posted by Howard Wasserman on May 14, 2019 at 04:50 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Fun with evidence

The problem set I use in class has this as a problem in the hearsay section. Supposedly Charles Manson's lawyer would make this objection.

The answer to the hearsay problem is that the name is not an assertion, because it labels someone without saying anything about the state of the world. But I have seen the point made that the real issue is not hearsay so much as lack of personal knowledge of the fact.

Anyway, something to share next semester.

Posted by Administrators on May 14, 2019 at 11:17 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Monday, May 13, 2019

The Permanent Disability of a Justice

Here is part of a question that I posed to my Constitutional Law class. Suppose Justice X suffers a stroke and his left alive but without any cognitive function. Justice X's family members are appalled at the prospect that he might be replaced by President Y. They invoke some statements by Justice X that he would not want to be replaced by President Y. Consequently, they decide to keep Justice X alive until President Y is no longer in office.

Two years later, President Y and his supporters argue that this situation is a disgrace. The Court needs nine functioning members! More darkly, they say that Justice X's seat should be deemed vacant. The President nominates a new Justice and the Senate (controlled by his party) confirms the new Justice. She shows up at the Court to take the oath. What happens then?

Turns out that there is no textual authority on this question. Vacancies on the Supreme Court are created by death, retirement, or resignation. There is no precedent for a seat to be declared vacant without one of these two events. (One Justice resigned in 1861 to join the Confederacy. Had he not resigned, I presume he would have been swiftly impeached and removed.)  

Posted by Gerard Magliocca on May 13, 2019 at 09:16 PM | Permalink | Comments (5)

Ginsburg wields the assignment power

A 5-4 majority in Apple v. Pepper held that iPhone users can sue Apple for anti-trust violations resulting from its App Store monopoly. Justice Kavanaugh wrote for himself, Ginsburg, Breyer, Sotomayor, and Kagan. People will be talking about that line-up and Kavanaugh splitting on a text-based antitrust case.

That line-up means Ginsburg assigned the opinion as senior-most associate justice in the majority (the Chief and Thomas, the two more senior to her, dissented). This is the second time Ginsburg assigned the opinion, the first coming last Termin Sessions v. Dimaya. Note that Ginsburg made the strategic assignment move here-she gave the opinion to the unexpected member of the majority as a reward and to keep him in the fold.

Posted by Howard Wasserman on May 13, 2019 at 12:00 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

SCOTUS overrules more precedent, no textual support to be found

The buzzwords that Republicans and judicial conservatives insist make their approach the only legitimate and constrained are textualism and respect for stare decisis. It is hard to take that seriously after today's decision in Franchise Tax Bd. v. Hyatt, holding that the Constitution requires that a state enjoy sovereign immunity in the courts of another state and overruling 1979's Nevada v. Hall. Justice Thomas wrote for himself, the Chief, Alito, Gorsuch, and Kavanaugh; Breyer dissented for the other four.

There is no textual basis for this (there really is none with all of state sovereign immunity); the majority instead relies on what is implicit in the structure and the "implicit ordering of relationships within the federal system." As for respect for stare decisis, the majority disposes of that in less than two full slip-opinion pages. Justice Breyer closes his dissent with a portentous "[t]oday’s decision can only cause one to wonder which cases the Court will overrule next."

Posted by Howard Wasserman on May 13, 2019 at 11:34 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Predicting SCOTUS on universal injunctions (Updated)

Noah Feldman predicts that SCOTUS will reject the Trump Administration's calls to reign-in universal injunctions, basically arguing that taking the power to issue non-particularized injunctions from lower courts makes more work for SCOTUS. Josh Blackman responds in a Twitter thread.

I agree with Josh that Noah makes his category error here:

If the justices were to hold that the lower courts lack the power to issue nationwide injunctions, then there would be only one way for the courts to block a law nationwide: The Supreme Court would have to issue the injunction itself. After all, it’s the only court with a truly national jurisdiction.

That wouldn’t give the justices any extra power, because they can already issue nationwide injunctions. But it would give the justices more work.

* * *

The upshot is that, if they prohibit nationwide injunctions by the lower courts, the justices will be agreeing to place themselves more in the spotlight, without the plausible deniability that allows them to leave injunctions in place.

SCOTUS does not have any greater power to issue a universal/non-particularized injunction than a district court. The limit on non-particularized injunctions comes from Article III's case-or-controversy requirement, which limits SCOTUS as much as it limits lower courts. If a lower court issues a particularized injunction and SCOTUS affirms, that does not create a universal injunction--it creates an Article-III-final particularized injunction, one that the executive no longer can avoid. As Josh notes, it also creates binding precedent that lower courts must follow to resolve other cases involving other parties and will use as the legal basis for later, also-particularized injunctions. But the SCOTUS decision in Case # 1 does not alone get us there.

Feldman envisions SCOTUS using the lower courts to avoid taking responsibility for universal injunctions--allowing some to remain in effect while overturning those they do not like. If lower courts cannot issue universal injunctions, SCOTUS would be forced to issue them. But this proceeds from several false premises, First, that a SCOTUS-affirmed injunction can have broader judgment (as opposed to precedential) effect than a lower-court injunction. Second, that if SCOTUS "really did not like" a particularized/non-universal injunction it would not overturn it just as quickly when asked to do so by the government.

Update: One additional point I neglected earlier: Noah begins by minimizing this as a legal-academic debate that had no practical resonance before Vice President Pence raised it in a Fed Soc speech last week. But that is not accurate. The scope issue was raised in U.S. v. Texas (DAPA) and was briefed, at the Court's request in Trump v. Hawaii, triggering a question from Gorsuch (his "cosmic injunction" line) and a concurrence from Thomas arguing that injunctions should remain particularized to the parties. He is write that legal scholars are playing a role here--but the government has been engaged on the subject at least as long.

Posted by Howard Wasserman on May 13, 2019 at 10:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Thursday, May 09, 2019

SEALS Prospective Law Teachers Workshop

Each year, SEALS hosts a Prospective Law Teachers Workshop (PLTW), which provides intensive opportunities for VAPs, fellows, and practitioners to network and participate in mock interviews and mock job talks—prior to the actual teaching market. The Workshop also includes a luncheon and 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teachers Workshop will be held at Boca Raton Resort & Club in Boca Raton, Florida on Tuesday, July 30, and Wednesday, July 31, 2019. If you are interested in participating specifically in the Prospective Law Teachers Workshop, please send your CV, and a brief statement explaining your interest, to Professor [email protected]. Please also indicate when you are hoping to go on the teaching market. Applications are due by June 1, 2019. Past PLTW participants have secured tenure-track appointments at an impressive array of law schools.

Continue reading "SEALS Prospective Law Teachers Workshop"

Posted by Administrators on May 9, 2019 at 09:30 PM in Teaching Law | Permalink | Comments (0)

Empathy, LGBT rights, and employment discrimination

Rick Bales (Ohio Northern) predicts that SCOTUS will hold 6-3 that Title VII prohibits discrimination against LGBT employees as a form of sex discrimination. He predicts that the "defectors" will be the Chief and Kavanaugh--the Chief to avoid the institutional damage from a high-profile decision that appears politically motivated and Kavanaugh as a way to show himself as less political and because such a decision might reflect the empathy he espouses.

Posted by Administrators on May 9, 2019 at 08:18 PM in Employment and Labor Law, Howard Wasserman, Law and Politics | Permalink | Comments (5)