Sunday, November 18, 2018

The limits of Spiderman

Ilya Somin has an interesting post wielding the Spiderman Principle--"With great power comes greats responsibility"--to argue against judicial deference to the executive and supposed executive expertise in those areas, such as immigration and national security, in which the executive is believed to have the greatest power. Under the Spiderman Principle, the fact that executive power is so great in these areas requires greater judicial scrutiny and greater justification from the executive, to ensure that this power is used responsibly and not abused.

I agree with Ilya that excessive judicial deference is a problem. But it seems to me the Spiderman Principle does not get us very far, because it cuts both ways. The courts would argue that deference and referral to expertise is compelled by the Spiderman Principle--it is how they bring some responsibility to temper the exercise of their great power to declare invalid the executive's conduct.

Posted by Howard Wasserman on November 18, 2018 at 10:32 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, November 17, 2018

What sovereign immunity has wrought

Steve writes at SCOTUSBlog about a motion in a pending cert case asking the Court to decide on the validity of Matthew Whitaker's appointment as AG, in order to figure out who should be substituted (for Jeff Sessions) as respondent in the petition. This is happening while lower courts consider the validity of the Whitaker appointment in more substantive contexts. (Gerard Magliocca believes that a Court order compelling briefing will compel Whitaker to withdraw or compel the President to nominate a new AG).

This is another example of how much time is wasted by sovereign immunity, rather than being honest about the fact that the government, and not any individual officer, is the real defendant in a challenge to a constitutionally invalid law.

Posted by Howard Wasserman on November 17, 2018 at 03:15 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, November 16, 2018

White House must return Acosta credentials

According to news reports, District Judge Timothy Kelly ruled from the bench, granting a TRO based on the failure to provide process, without reaching the First Amendment question.

It will be interesting to see if the White House appeals. Although the order was styled as a TRO, the court would treat it as an appealable preliminary injunction should the government choose to appeal. But the court never reached whether the First Amendment in any way limits control over press access. And the due process focus means that, in theory, the White House and Secret Service could give him process tomorrow and reach the same decision. There is a motive to return the credential and let the litigation play out in the district court first.

Update: Garrett Epps (Baltimore) at The Atlantic ties Kelly's decision to the unsung decision in Island Trees v. Pico, in which SCOTUS held that the school district had unfettered power to select books to place on the shelves, but the First Amendment imposed limits on the district removing books already placed (based on objections to content. I highlighted Pico as an important example of why Brennan was the heir to Holmes in protecting free speech, although a decision that gained little traction, including in debates over internet filters in libraries. I agree with Garrett that it would be nice to see a revival of the decision, including in a new context.

Posted by Howard Wasserman on November 16, 2018 at 10:48 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, November 15, 2018

The Cambridge Handbook of the Law of the Sharing Economy

I am excited to announce the publication of The Cambridge Handbook of the Law of the Sharing Economy edited by Nestor M. DavidsonFordham Law School, Michèle FinckUniversity of Oxford , John J. InfrancaSuffolk University School of Law. Here is the description of the book from Cambridge Press: 

This Handbook grapples conceptually and practically with what the sharing economy - which includes entities ranging from large for-profit firms like Airbnb, Uber, Lyft, Taskrabbit, and Upwork to smaller, non-profit collaborative initiatives - means for law, and how law, in turn, is shaping critical aspects of the sharing economy. Featuring a diverse set of contributors from many academic disciplines and countries, the book compiles the most important, up-to-date research on the regulation of the sharing economy. The first part surveys the nature of the sharing economy, explores the central challenge of balancing innovation and regulatory concerns, and examines the institutions confronting these regulatory challenges, and the second part turns to a series of specific regulatory domains, including labor and employment law, consumer protection, tax, and civil rights. This groundbreaking work should be read by anyone interested in the dynamic relationship between law and the sharing economy.

The book has a great number of insightful chapters by leading scholars in their fields on questions ranging from competition law to zoning and the geography of platforms and new business models, the law and economics of new digital platforms - my chapter is called Coase and the Sharing Economy - and questions about employment, trust, safety, consumer choice, and democratic decision-making. 

 

The Cambridge Handbook of the Law of the Sharing Economy

 

Posted by Orly Lobel on November 15, 2018 at 05:51 PM | Permalink | Comments (0)

Wednesday, November 14, 2018

Hastie Fellowship Call for Applications

From the University of Wisconsin Law School:

The University of Wisconsin Law School seeks applications for the William H. Hastie Fellowship. The application deadline is February 1, 2019.  
 
For over forty years, the Hastie Fellowship has helped aspiring scholars from underrepresented communities in the legal academy prepare for a career in law teaching. Hastie Fellows devote the majority of their time to their own research agenda, researching and writing scholarly articles with support from a faculty advisor and the Hastie Fellowship Committee. During their residence, Hastie Fellows become part of the rich intellectual community at the University of Wisconsin, participating in workshops, symposia, and colloquia at the law school and broader campus community. Hastie Fellows participate in the entry-level law teaching market during the fellowship’s second year, and receive support and mentoring from the faculty. Most fellows also elect to teach or co-teach a course in an area of their interest during their second year in residence. Upon the successful completion of their work, typically involving the preparation of two publishable articles, fellows may elect to receive an LL.M.
 
Since the program was founded in 1973, over thirty Hastie Fellows have completed the program and secured academic appointments. They are a distinguished presence across American legal education, and three have gone on to serve as law school deans. The Hastie Fellowship continues to play a remarkable role in encouraging and developing scholars from underrepresented communities and in preparing them to succeed in the legal academic market and in the academy. 
 
For more information about the program and the application process, please visit https://law.wisc.edu/grad/fellow_hastie.html.

Posted by Sarah Lawsky on November 14, 2018 at 02:16 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Monday, November 12, 2018

C.J. Cregg = Sarah Sanders (Updated)

Attorney David Lurie argues in Slate that CNN should sue the Secret Service over revocation of reporter Jim Acosta's press credentials. He argues that CNN has a good case. D.C. Circuit precedent holds that reporters must receive process in the denial or revocation of credentials and that the basis for revocation cannot be that the reporter criticized the President or anyone else in the White House. And the President admitted that Acosta's credentials were revoked because he did not treat the presidency with "respect" and that he might do the same to other reporters.

Update: CNN and Acosta, represented by Gibson Dunn, has filed suit, claiming violations of the First and Fifth Amendments and the APA; named defendants are Trump, Kelly, Sanders, William Shine (Deputy Chief of Staff, the Secret Service, and the head of the Secret Service.

The incident brought to mind S3E4 of The West Wing, titled "On the Day Before." Press secretary C.J. Cregg gets pissed at a reporter who inaccurately reported on something that C.J. had done. C.J. tells the reporter that she is having the reporter's credentials revoked and that the reporter must call C.J.'s office every day so C.J. can decide if the reporter will be allowed into the press room. And this was played with C.J. as the hero, standing up and justly sanctioning the vapid, dishonest, and unethical reporter.

This is another illustration of Aaron Sorkin writing the Trump Administration in the Bartlet Administration,  with much of the behavior and norm-breaking that we have seen the past two years; the difference is that Sorkin's characters did it in service of a liberal Democratic agenda, while the Trump Administration has done it in service of a very different agenda. There is no difference between Trump and Sarah Sanders stripping Acosta of his credential and C.J. doing the same to that fictional reporter--both are mad because the reporter treated them unfairly.

Posted by Howard Wasserman on November 12, 2018 at 08:44 PM in Culture, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Friday, November 09, 2018

Teaching Con Law in the Current Moment

I'm starting to plan ahead for next semester, and would love to hear what other Con Law professors are doing in terms of folding the issues of the current moment--e.g., the Emoluments Clause, birthright citizenship, the ability to subpoena the president, executive privilege, the authority of the special counsel, appointment and removal power, the census--into their classes.  I've always given some extra time to current issues, but in the past, it's been easier because they were natural outgrowths of the bread-and-butter 1L Con Law subjects (for example, both NFIB v. Sebelius and Obergefell build perfectly on Commerce Clause, Tenth Amendment, and Equal Protection doctrine).  I'm finding several of the current topics more challenging to integrate into the syllabus since they are more specialized and there's not necessarily much case law (yet).  To what extent are all of you generally sticking with your regular syllabi, versus significantly re-doing them in order to build these topics in?  If the latter, what are the topics that you're dropping to make room for them?

Posted by Emily Gold Waldman on November 9, 2018 at 05:01 PM | Permalink | Comments (15)