Friday, September 30, 2022

Certification by the United States Supreme Court

Quick question for federal courts folks. Has the U.S. Supreme Court ever certified a question of state law to a state Supreme Court that permits such a certification? I think that the answer is no. But before I discuss why the Justices should certify more often, I want to be sure if they have done so before.

Posted by Gerard Magliocca on September 30, 2022 at 01:35 PM | Permalink | Comments (0)

Wednesday, September 28, 2022

SCOTUS to continue livestreaming arguments

SCOTUS announced it will continue audio livestream for all scheduled arguments, with the live audience back in the building. This is very good, if surprising. I expected the Justices to treat livestream as a substitute for an in-person gallery and to drop the substitute once the gallery returned, so I am happy to be wrong. It will be interesting to hear the differences when the audio include live-audience laughter.

Note that this announcement limits it to argument, not opinion announcements. Will the Court resume announcing opinions and reading summaries in front of an audience or will it continue to post them in 10-minute intervals on the web site? And if it resumes live announcements, what is the possible argument against livestreaming those as well?

Also noteworthy is that the parade of horribles associated with live media (there is no distinction between video and audio for these purposes) have not come to pass.

Posted by Howard Wasserman on September 28, 2022 at 04:47 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

VAPs and Fellowships 2022-2023

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

You may also add information to the spreadsheet.

Posted by Sarah Lawsky on September 28, 2022 at 03:40 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (1)

Tuesday, September 27, 2022

Absolutely, Law Schools--and Their Faculty--are Responsible for the Actions of Law Reviews

I take no position on most of the issues discussed in this post about an author's dispute with the Iowa Law Review, which was brought to my attention by Brian Leiter's blog--except that, as Brian writes, it is hard to imagine any scenario where the correct response is publishing an article over the author's own objections. (The older I get, the fewer strong positions I take on anything, except the subjects of anti-inflammatory medicines and arch supports--and I am striving to be more open-minded on those subjects as well. It seems to me that one of the many problems with social media is not that so many people share foolish or dangerous opinions, but that so many people share opinions, full stop. Having opinions has become our most popular and least productive leisure activity.)  

But I want to highlight one aspect of the post. In an update, the author, Prof. Ramsi Woodcock of Kentucky, writes, "When I wrote the forgoing last spring, I had assumed that the buck stopped with the student editors, and that apathy and avoidance explained why the Iowa Law administration had not stepped in to put this right." He then recounts communications with Iowa's dean suggesting greater, albeit post-hoc, decanal involvement.

A very small number of student-run law reviews--I can think of only one for sure, although there may be others--are officially and financially independent of their law schools. The rest are part and parcel of the institution and, generally, are folded into students' education officially through credits and other mechanisms. (Even the independent law review(s) are typically intertwined with their law schools in all sorts of ways.) And that leads to the bottom line: of course law schools are responsible for their law reviews, and for the action of those journals and their editors. Insofar as they purport to be scholarly journals, it could not be otherwise; likewise insofar as they purport to exist for pedagogical purposes. And this is not simply a matter of decanal responsibility, although I think it would be a good thing if every law dean read every issue of every journal published at his or her school and sent "Grizzer-grams" to the editors after every one. The same responsibility attaches equally--if not primarily, as a matter of faculty governance and scholarly duty--to every faculty member. We own our schools' journals, morally and professionally as well as otherwise. 

Of course "apathy and avoidance" are a part of why we generally act otherwise. So are the fact that we become accustomed to particular structures, such as the assignment of a single faculty advisor to each journal (which I suppose we could file under "avoidance"), as well as less tangible structures, such as the fact that not every school distributes every issue in print to every faculty member as soon as it is published, announces its publication choices to the faculty when they are made, and so on. There are also reasons that are less blameworthy decisions than mere apathy or avoidance. When I was a faculty advisor, I gave the new editors some general views and goals, but I also told them that this was their work to be proud of, that the decisions and learning were theirs, and that I was there more to support them and run interference when necessary than to intrude into their choices. Some of that approach had to do with a recognition that within the overall scholarly mission of the journal, different years' editors might have different emphases: sometimes editors were more interested in national prestige, for instance, while sometimes they were more interested in making sure that Alabama law and practice were given due attention. But although that was my backstop position--and a convenient one it was, to be sure--in important senses I, and not just I but my colleagues and my dean, were and are still ultimately responsible for our journals. Not doing anything about it most of the time, or talking in general terms about how it's really the student's journal, doesn't alter that ultimate responsibility in the least; those are just decisions about faculty and journal policy for which we, the faculty, are responsible.

I emphasize this in light of the many interesting choices and positions taken by various law reviews over the past several years. (Those choices are admittedly not necessarily vastly different from similar decisions made by faculty-run or professional-society-run journals in other disciplines, lest we lay all this at the feet of the American legal academy's strange reliance on students to do the work of overseeing the place where one third of our work as professors, scholarship, appears.) If a law review decides to issue a statement about one of the articles it publishes, for instance, and if there are questions about such a decision, all of this is ultimately the responsibility of that law school's faculty. If a law review decides to take a position on the BDS movement, one that extends not just to questions of funding but to specific positions taken by scholars in scholarly work, that is not a decision independent of the parent institution, but one in which the law school's faculty and administration must be involved and for which they ultimately must take responsibility--including the responsibility to reject it, if they conclude it is not consistent with the duties of a journal and the obligations of scholarship. Keeping in mind that some law reviews specifically restrict themselves to particular subjects or openly have particular orientations, while mainline law reviews explicitly exist to serve the general and viewpoint-neutral mission of scholarship, if a journal explicitly or implicitly adopts a particular politics or set of viewpoints that alter or depart from its mission and, among other things, affect its publication decisions, who it invites to symposia, or other matters, that is a matter for which the law school and its faculty are ultimately responsible. They might endorse it, in which case they should do so publicly. They might conclude it is indeed an improper departure, in which case they have every right and obligation to stop it. Either way, the responsibility ultimately lies with the law school, not just institutionally or with the faculty advisor but with respect to the individual faculty members. As long as we claim to be a scholarly discipline, the responsibility is indefeasible.

Perfectly reasonable arguments can be made about sub silentio decisions in the past that, one might insist, were not neutral but in fact championed and enforced particular positions and values; not all decisions that might be seen as departing from a law review's proper role are new and not all of them are about today's hot-button issues or share today's consensus. Those, too, were ultimately the responsibility of the faculty and not just the journal. And one might note that there are times when the departure is not something initiated by the law review but by a faculty member. When a faculty member leans on a journal to publish a piece that the journal thinks it ought not publish, for instance, that's a failure of responsibility on the part of the faculty member--and one in which the dean and other faculty must support the journal's resistance. But it does seem to me that a number of mainline journals, at least on a year-to-year basis, have, sometimes explicitly but more often implicitly, made a variety of decisions of late that are not necessarily consistent with their specifically, officially general scholarly mission and obligations. Those decisions might be praised or criticized, defended or questioned. But they ultimately must be supervised by the journals' faculty, including appropriate intervention when it is called for. This is not a violation but a meeting of our obligations as scholars and teachers, both of which surely sometimes includes the duty to say "no" and to make people unhappy. It's a part of the job I don't think we pay enough attention to. The buck always stops with us.       

Posted by Paul Horwitz on September 27, 2022 at 01:08 PM in Paul Horwitz | Permalink | Comments (0)

JOTWELL: Vladeck on Codrington on Purcell

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021), exploring the use of Purcell to avoid challenges to COVID-related voting restrictions.

Posted by Howard Wasserman on September 27, 2022 at 09:31 AM in Article Spotlight, Civil Procedure | Permalink | Comments (1)

Monday, September 26, 2022

Situation-Altering Invocations of "Legitimacy"

There have been a lot of interesting interventions in the discussion of the "legitimacy" or "illegitimacy" of the Supreme Court recently. Some of them are simply collecting on my to-read list, so perhaps I should say interesting-looking interventions. But I am looking forward to reading recent pieces by Thomas Donnelly and, especially (based on the abstract), Or Bassok, among others. I think the general question is legitimate, so to speak. But I would add one note of caution about the broader universe of discussions of Supreme Court legitimacy.

At least post-Fallon, legal scholars are already accustomed to parsing the word "legitimacy" into several possible senses, including moral, legal, and sociological legitimacy. I would add one more distinction, which refers less to the meaning of the word and more to the nature of its invocation. There are good-faith descriptive invocations of "legitimacy," of course. There are also performative or situation-altering invocations of legitimacy. They take at least two forms. One is the deliberate invocation of the term in order to create concerns about legitimacy. Sometimes--perhaps often--the phrase "I have concerns about the legitimacy of the Supreme Court," like the injunction not to think about an elephant, is a way of attempting to create concerns about legitimacy.

The speaker may or may not also have genuine concerns of his or her own about Supreme Court legitimacy. But that is not necessarily the point of the invocation and may be quite separate from it. The point is to cause or encourage the proliferation of public concern about legitimacy, so that it takes on a life and momentum of its own, for electoral, political, fundraising, legislative, discursive, purely self-serving, or other purposes. (In a society that treasures and monetizes prestige and commodifies every "creative" or discursive act, self-interest should almost always be a factor in considering even the most sincere actions. One gets more attention for calling a court or decision "illegitimate" than "bad" or "wrong.") The speaker's own concerns about legitimacy may be nuanced and specific; the invocation is not, is perhaps not intended to be, and encourages the generation of non-nuanced concerns about legitimacy. 

No doubt it has ever been thus. I'm reading Brad Snyder's enjoyable Frankfurter bio right now (more on that, and on incipient Frankfurter revivalism, later, I should hope), and one striking thing about it is just how much pretty well everyone named in the book was concerned with naming and capturing the agenda. Capturing it by naming it in many cases: anyone who took con law when I did, and perhaps still today, will not be surprised to see just how much of the received narrative about its history, accurate or otherwise, was crafted on someone's typewriter and went on to become a free-floating, situation-altering "reality." But the phenomenon has certainly not slowed down and, I think, is changed and enhanced by the combination of wicked social media and the modern academic's ambition and language of "public engagement." And that in turn leads to a related but somewhat separate second form of situation-altering invocation of "legitimacy" or "illegitimacy." Invoking legitimacy doesn't just encourage others to have concerns about legitimacy; it encourages them to put any concerns they may have about the Court, or about particular decisions, into the language of legitimacy. Even if the initial invocation is strategic, ultimately that language shapes and constrains our thinking, just as Bakke's invocation of "diversity" created a half-century of diversity-talk, even if we could have been talking and thinking about the same issue through other and perhaps better lenses. 

We are accustomed enough in other areas of politics to attempting to distinguish between genuine grassroots sentiment and astroturfing. The astroturfing may ultimately succeed in creating grassroots sentiments that we should take seriously, but at least at the outset we are accustomed to treating those efforts skeptically, knowing that some sort of game is afoot. I would say the same thing about the profusion of invocations of concern about the Court's legitimacy, first from professionals and then from everyone else. Some of them are entirely sincere. But not all of them, even by ostensibly reputable people, are. And the second-order invocations of legitimacy concerns that they encourage may be sincere, but may also just be a case of people fitting a different concern--say, about hating a particular decision or wanting a different political lineup on the Court--into the only, or most prevalent, or most convenient, language that is available to them. That is so even if the actual concerns were or are somewhat different, such that we would think more clearly and be better off talking in terms of good or bad decisions or outcomes, or about who we want to have and exercise power. I am focusing in particular on efforts to encourage the belief that the Court is illegitimate, because that involves changing a perceived baseline and because it involves adopting a particular linguistic frame. But surely something similar can be said about language that treats the Court as legitimate or reassures others that it is and that there's nothing to see here. I believe there is a real legitimacy issue here, and probably that there is always such a concern, at least along some dimensions of the word. But we should approach invocations of legitimacy and illegitimacy with some skepticism, recognizing that some first-order invocations are astroturfing, and some subsequent invocations are a matter of adopting language that has been foisted upon the subsequent speaker with the intent of shaping, harnessing, and, in some ways, limiting their vocabulary and worldview. We should remember that when people say "legitimate" or "illegitimate," they may actually care about something else, or at least that they did before they were chivvied into adopting a particular linguistic framework.  

Posted by Paul Horwitz on September 26, 2022 at 12:44 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, September 22, 2022

UVA - Karsh Center for Law and Democracy Fellow 2023-2024

From the University of Virginia School of Law:

The University of Virginia School of Law seeks a Research Assistant Professor of Law to serve as the Karsh Center for Law and Democracy Fellow (“Karsh Fellow”). This non-tenure-track Academic General Faculty position will start near the beginning of the 2023-24 academic year and have a fixed-term appointment of two years. The position offers compensation of $70,000 plus benefits.

Continue reading "UVA - Karsh Center for Law and Democracy Fellow 2023-2024"

Posted by Sarah Lawsky on September 22, 2022 at 09:11 PM in Getting a Job on the Law Teaching Market | 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 September 22, 2022 at 06:14 PM in Entry Level Hiring Report | Permalink | Comments (0)

Still getting procedure wrong

Following last night's Eleventh Circuit benchslap, Judge Cannon sua sponte modified her order by excluding seized materials from those to be reviewed by the special master and striking two paragraphs ordering the SM to prioritize and make available to plaintiff's counsel the documents marked classified.

Two problems, I think. The amended order moots the 11th Circuit stay and thus Trump's appeal of the stay. The court of appeals only stayed the order as to the documents marked classified; since the order no longer affects those documents, there is nothing to stay. But that highlights the second problem--how does Judge Cannon have jurisdiction to modify the order? The government appealed the entire order, although it sought a stay only of the part related to classified documents (so it could continue the criminal investigation pending appeal). But if the entire order is in the 11th Circuit, how does Judge Cannon have jurisdiction to modify it? The unstayed portions must be complied with (i.e., the SM proceedings go forward). But the district court should not have the power to change an order that has left the district court and is on appeal--otherwise a district court could hamper appellate jurisdiction by repeatedly changing the orders in the case.

What am I missing?

Posted by Howard Wasserman on September 22, 2022 at 12:39 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 20, 2022

The wrong abstention

The district court held a hearing in the lawsuit by Tampa DA Andrew Warren against Ron DeSantis for suspending him from office. The court from the bench granted the state's motion to dismiss the state claims (under Pennhurst), denied the motion to dismiss the First Amendment claims (more below), and denied Warren's motion for a preliminary injunction reinstating him.

I thought the court should abstain under Pullman. There is an open question of whether the suspension was proper under the state Constitution; if it was not, Warren is entitled to reinstatement without the federal court resolving the (uncertain) First Amendment issue. This case matches Pullman--state action of uncertain state-law provenance arguably violates the federal Constitution and the federal courts holds on the federal issue to allow state courts to resolve the potentially dispositive state issue. Pullman is disfavored, especially in First Amendment cases, but the case seems the rare one that fits. But the state did not argue Pullman, citing it only for a general proposition about federalism.

Instead, the state argued Younger--that the federal court should abstain in deference to the Senate proceeding that reviews the governor's decision and either formally removes or reinstates the official. The states describes the proceeding as ongoing and judicial in nature, serving an important state purpose worthy of comity deference, and providing Warren an adequate opportunity to raise his First Amendment defenses.

The state messed up the Younger analysis by not citing Sprint or placing the Senate proceeding in a Sprint categroy. Presumably it is # 2 (certain civil actions akin to criminal cases). But the state must explain why it fits--whether the state is a party, whether it has the trappings of a criminal proceeding by following an investigation and charge, and whether it is designed to punish for past misconduct. It is iffy on the second, but otherwise fits that category. If an administrative proceeding (e.g., attorney discipline) is sufficiently judicial, this Senate process should be.

But this raises a different issue within Younger. One Younger premise is that abstention forces the rights-holder into defensive state litigation, but with possible (albeit not guaranteed) federal review of the federal issues in SCOTUS under § 1257. It appears that Senate review of removal constitutes the last word, not subject to state judicial review and therefore not subject to SCOTUS review (the Senate is not the "highest court" of a state). Unlike an administrative proceeding reviewable in state court and thus to SCOTUS, the Senate proceeding, however "judicial" in nature and however able Warren is to raise the First Amendment, does not provide a path into the state judiciary and thus to SCOTUS. And perhaps that explains the denial of abstention.

Posted by Howard Wasserman on September 20, 2022 at 06:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)