Friday, January 17, 2020

Faithless Electors

As if the Supreme Court did not have enough on its plate, the Justices today agreed to decide whether states can punish presidential electors who vote contrary to state law. (Personally, I think that the answer is no, but leave that aside for a moment.)

One thing that the Court could say, I suppose, is that Congress can decline to count the votes of faithless electors but that states lack the power to regulate these officials. While Congress has always counted faithless elector votes as valid, there have been debates in Congress over some of those counts. I don't know enough about those debates to reach a firm conclusion, but you might say that Congress in some sense can decide what to count.

Posted by Gerard Magliocca on January 17, 2020 at 07:55 PM | Permalink | Comments (0)

Two from the Fifth Circuit

From John Ross' invaluable weekly round-up of federal court of appeals decisions at Volokh Conspiracy come two from the Fifth Circuit.

Continue reading "Two from the Fifth Circuit"

Posted by Howard Wasserman on January 17, 2020 at 07:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

*Does* Paul, Weiss "Need" Harvard Law?

No doubt there are many things one could say about this Harvard Law School student protest against Paul, Weiss designed to urge it to drop ExxonMobil as a client. Many of those observations would depend on one's substantive and political views and would be too obvious to need saying and convincing only to one's allies, so let's skip it. (Although one want to might read the actual opinion dismissing claims against that company and ask whether the merits of some of that litigation are that great. State attorneys general have been known from time to time to file lawsuits that have more to do with political optics and the questionable use of state power than with an interest in actually seeking a remedy.) And the first thing I would say is that of course the students are free to urge whatever they want, whether they represent one or one hundred percent of the student body. But I would like to ask two questions.

The first is to question the supposition put forward by a HLS law student (who I can hardly blame either for framing things this way or believing the statement, given our culture): that the students recruited by big firms at these or any other elite law school are "the future lawyers they need to stay on top of their field." I don't doubt their intelligence: in my brief time studying and teaching at such schools, I really did find the students highly smart, talented, and hard-working, and this was true not just of the best students but of a large percentage of them. The most relevant comparison between law school student bodies is with the "middle" of the class, and the middle at these elite schools is very impressive. But I have found that the same thing is true, at a minimum, of the top students at every law school I have taught at, no matter where it is on the US News rankings. Students choose to go to different schools for many reasons. Some have family obligations or work obligations, or financial limitations. Some have extraordinary talents but, perhaps because they are first-generation students who don't come from professional-managerial-elite families, lack social capital of a certain kind. They haven't been told about the advantages that accrue disproportionately to going to an elite school, or that employers economize on search costs by sticking with a few conventional schools, or that judges do the same in selecting the clerks who will end up commanding job-seeking advantages. But they bring other advantages that some of the students at top schools may not have. They are hungry and ambitious. They don't take such job opportunities for granted. They don't take such salaries for granted, and think working their asses off in return is not an injustice or inhumanity but a reasonable return and an enormous opportunity. They may be less likely to leave after three or four years and thus less likely to take for granted the enormous early investment made in them by the firms. They may get their sense of moral and social identity and satisfaction elsewhere than their jobs and job status--say, in working through a church or local community or in many other places.   

When I worked at one of the big firms and was involved in summer associate hiring, at least some colleagues (not all, of course) wouldn't even deign to look at an applicant who didn't come from one of a very few schools. I'm not sure they had a reason for this, other than convention and a narrow band of life experience limited to those schools. But despite the added search costs, and keeping in mind that many students at top schools surely view things differently than the negative caricature of entitlement I've offered, it has long seemed to me that top law firms looking not just for talented students but also for a good long-term investment in the future of their firm would be better off picking off the top students at the schools they most often seem to ignore. They might have to invest more in certain kinds of training. But they would still get terrific raw material, and might find that these hires would have more commitment, gratitude, ambition, and seriousness about the work than some of their conventional hires. A typical rejoinder is that there is a benefit to these firms in having students from the top schools. It reassures clients that they are getting the best of the bet and makes these firms look as elite as their competitor firms. Such hires are thus safe picks. But that's just one factor to consider, and it must be balanced against the actual benefits they might get from going against the grain. A firm that eschewed the safe and comfortable path and took a flier on top students at these non-"top" schools might find that such a strategy would enable it to do great instead of just well. In any event, and without meaning any ill will to the students at the usual top schools, it is far from clear to me that these are the students these firms "need." This is common rhetoric and a common assumption, but it shouldn't be taken for granted.

My second question is: What, exactly, is moral seriousness? The position of these students has a high cosmetic appearance of ostensible moral seriousness. But it might also be seen as an example of the kinds of phenomena that have been discussed in connection with the meritocracy: of actual or self-described progressives who are "under meritocracy’s thumb . . . captives who embrace their captor, through a sort of ideological Stockholm syndrome,” and whose complaints and prescriptions tend to demand certain changes (especially regarding horizontal equality) while leaving other perquisites and prerogatives (especially regarding questions of vertical equality and social class) blissfully under-examined and undisturbed. It may be nice to dream of and work for a world in which all owners of BMWs or Teslas, or residents of Georgetown or Chevy Chase or Palo Alto, represent a remarkably diverse group of people. But it seems a little incomplete, and rather conveniently so. I have no objection as such to worrying about the representation of a particular client or about arbitration agreements for summer associates. But if that is enough to buy one off, while leaving a hundred other corporate clients in place and unquestioned and not, say, demanding that secretaries and mailroom workers get paid as well as or better than summer associates, then it seems to me that this form of moral seriousness might have as much or more to do with one's desire to have one's luxurious cake, and feel (or look) virtuous while eating it, than with a more genuine and thoroughgoing form of moral seriousness.                   

Posted by Paul Horwitz on January 17, 2020 at 10:05 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, January 16, 2020

Alexander Hamilton and Independent Monetary Policy

Many thanks to Howard and PrawfsBlawg for the opportunity to post. I’ll start with my latest paper, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies. The discussion should be of interest to anyone concerned with executive power, finance, originalism, the longstanding constitutional debate over independent agencies, or Alexander Hamilton. (Although you will have to check out Tuan Samahon’s interesting post for Hamilton’s views on impeachment.)

The Federal Reserve’s independent monetary policy decisions have greatly vexed President Trump. The President’s complaints happen to align with leading originalists’ arguments that the Federal Reserve and other independent agencies are unconstitutional novelties of the twentieth century. My paper demonstrates that the Fed’s independent monetary policy has an impeccable originalist provenance in the Sinking Fund Commission. The Commission was an obscure agency proposed by Alexander Hamilton, passed by the First Congress, and signed into law by President George Washington in 1790. Like the Federal Reserve, the Sinking Fund Commission conducted open market purchases of U.S. securities pursuant to a statutory mandate. Hamilton, Washington, and the First Congress all approved an independent structure for the Sinking Fund Commission. Their decisions to create an independent Commission with five members to check one another — and to include the Vice President and Chief Justice as ex officio Commissioners who could not be replaced or removed by the President — belie the notion that such independence violated the newly minted Constitution.

In its “Act Making Provision for the Reduction of Public Debt,” Congress delegated purchases of debt, in the form of U.S. securities, to an independent, multi-member body comprised of “the President of the Senate[and Vice President], the Chief Justice, the Secretary of State, the Secretary of the Treasury, and the Attorney General . . . .” ch. 47, 1 Stat. 186 § 2 (1790). Thus, five founders who occupied key principal offices became ex officio members of the Sinking Fund Commission: Vice President John Adams, Chief Justice John Jay, Secretary of State Thomas Jefferson, Secretary of Treasury Alexander Hamilton, and Attorney General Edmund Randolph. The Act provided for purchases “under the direction of” these Commissioners, “who, or any three of whom, with the approbation of the President of the United States, shall cause the said purchases to be made . . .” Id. Congress directed the Commission to make purchases “best calculated to fulfill the intent of [the] act,” which was designed to both “reduc[e] the amount of public debt” and benefit the creditors of the United States “by raising the price of their stock” in U.S. securities. Id. at §§ 1-2.

The Commission’s multi-member structure, appointments, and tenure provisions insulated the Commissioners from presidential control. Congress gave the President no say in appointing members of the Commission when it specified ex officio Commissioners. Although the President had already appointed the Attorney General and Secretaries of Treasury and State to ostensibly related executive offices, the President never appointed the Chief Justice or Vice President to executive posts. Nor did the President have any power to remove the Vice President and Chief Justice. This structure left the President no recourse if the Vice President or Chief Justice refused to perform their basic duties as Commissioners. Such neglect of duty actually occurred when Chief Justice Jay refused to set aside his judicial work for a crucial Commission vote in 1792.

The Act further checked the President by requiring at least three Commissioners to approve any purchases the President may have desired under the Act. The Vice President and Chief Justice did not answer to the President, and the three remaining executive officers on the Commission (Hamilton, Jefferson, and Randolph) openly voted against one another rather than following a singular executive directive. The Commission’s multi-member structure trumped any opportunity for executive direction and facilitated independent decisionmaking.

The Sinking Fund Commission provides a founding-era precedent for the Federal Reserve. Like the Sinking Fund Commission, the Federal Reserve’s Federal Open Market Committee is free to decline presidential requests to purchase U.S. securities or take other action designed to lower interest rates. The Sinking Fund Commission shows that independent monetary policy decisions date all the way back to the founding of our Republic.

Posted by Christine Chabot on January 16, 2020 at 07:11 PM | Permalink | Comments (3)

Universal consent decrees

Two U Conn students who were prosecuted and sanctioned by the university for violating the school policy against "disruptive behavior" for uttering a racial slur have filed suit in the District of Connecticut, claiming the school sanctions violate the First Amendment. (H/T: Eugene Volokh). The case should be easy as a First Amendment matter--the students seem to have shouted the slur into the ether, not directed at anyone and not accompanied by any threatening conduct.

But it is procedurally interesting, potentially complicated, and seemingly wrong. After the jump.

Continue reading "Universal consent decrees"

Posted by Howard Wasserman on January 16, 2020 at 04:47 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Impeachment and the Direct Election of U.S. Senators

My thanks to Prawfsblawg for permitting me this guest writing stint. As a long-time reader, I have enjoyed others’ insights and now hope to contribute a few worthwhile nuggets during the next few weeks.

What type of impeachment trial can we reasonably expect in a Senate constituted by directly elected senators? As other commentators have observed (e.g. Jonathan Adler and Carissa Byrne Hessick), Alexander Hamilton anticipated the possibility that the House process could degenerate into a partisan food fight where House members, laying all merits aside, rush to defend or rise to oppose, a President along party lines. Nonetheless, Hamilton thought the Senate, constituted as a court of impeachment, would act as "a tribunal sufficiently dignified, or sufficiently independent" to save the process from a crassly partisan fate ruled by political bosses.

The impeachment of a President entails different political calculations than impeachment of a judicial officer, and the case of presidential impeachment probably more sorely tests the procedure's limits than the relatively lower stakes of a U.S. district court judge. It's unsurprising that many judicial impeachments, say, of an Alcee Hastings, a Walter Nixon, or a Thomas Porteous, occasion little partisan fanfare.

Continue reading "Impeachment and the Direct Election of U.S. Senators"

Posted by T. Samahon on January 16, 2020 at 08:00 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (3)

Wednesday, January 15, 2020

Privileges Or Immunities Palooza

The new issue of the Notre Dame Law Review is out. In that issue you will find three terrific papers about the Privileges Or Immunities Clause of the Fourteenth Amendment, plus a fourth one by my (which I decline to characterize). Check them out if you have any interest in this subject.

Posted by Gerard Magliocca on January 15, 2020 at 01:16 PM | Permalink | Comments (1)

Upcoming guests

I am thrilled that we are going to have some guest-prawfs joining us in the coming weeks.

Beginning later this month and into February, we will be joined by Tuan Samahon (Villanova) and Christine Chabot (Loyola and a fellow former Jane Roth clerk). Welcome to both and I hope you enjoy their contributions.

In late February and March, we will have an on-line symposium on Ben Barton's new book, Fixing Law Schools: From Collapse to the Trump Bump and Beyond (NYU). More details to come.

Posted by Howard Wasserman on January 15, 2020 at 08:32 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, January 13, 2020

Why not just have oral argument?

Bloomberg has a story (behind paywall) Judge Alan Albright of the Western District of Texas and some of his standing orders and practices. Among them: The use of "audio briefs," recordings of briefs longer than 10 pages, which the judge listens to while driving and biking.

I am in favor of greater orality in litigation. But part of the benefit of more orality is more bench presence and more contact between the court and the advocates. This seems to provide the worst of both worlds--the looser argumentation of oral compared with written advocacy, but without the presence and contact.

Posted by Howard Wasserman on January 13, 2020 at 11:02 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, January 12, 2020

What we mean by one-sided

Reviews for the documentary "No Safe Spaces"--an exploration featuring Adam Corolla and Dennis Prager of anti-conservative speech restrictions on college campuses--have divided along expected partisan lines. Conservative publications praise it for exposing anti-conservative-speech biases on campus, liberal publications decry its one-sidedness in criticizing campus liberals as censorious, without considering the problems that racist, sexist, etc., speech causes on campus.

This column is the first I have seen calling the film out for a different one-sidedness: Not engaging with equal-and-opposite efforts by conservative groups and leaders--including the President--against liberal speech. The author labels this "free-speech tourism," waving the banner of free speech when their political compatriots are attacked, while seeking to impose similar restrictions on speakers they find political objectionable. Thus, the film celebrates supposed free-speech champions who have called for de-platforming of liberal speakers and have sued critics on specious defamation claims. In an interview described in the piece, Corolla pleaded ignorance to censorship efforts from the other side, which should show a lack of seriousness or understanding of the project.

The combination of this column and left-leaning criticism of the film reveals where we are: Much of the right is not serious about its First Amendment advocacy, while much of the left does not want to talk about, or use, the First Amendment.

The piece closes on a nice point about free speech:

The doc's inability to grapple with growing animosity toward free speech on both sides of the political aisle shows just how hollow these concerns among conservative "free-speech tourists" are. * If you don't call out your own side or loudly defend the First Amendment rights of your political enemies, you're not a free-speech warrior. You're a free-speech tourist.

Posted by Howard Wasserman on January 12, 2020 at 04:09 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Saturday, January 11, 2020

James Pogue on "The Decline of Nonfiction in the IP Era"

I quite enjoyed this piece from The Baffler. It may be overstated and over-amped, but that is par for the course for The Baffler and most magazine journalism; it is still enjoyable even if it should be read, like everything else, skeptically. The contemporary tendency, including for legal academics, is to celebrate the multi-platform world in a way that echoes the now purportedly dated and much-mocked earlier burst of enthusiasm about "synergy." Seeing the parallel may perhaps lead us to mock those days a little less, to see some of the undue utopianism and lack of self-awareness of the modern tendency more clearly, and to see more clearly the value of institutions (in the Mary Douglas sense), the downsides of blurring or eliminating them, and the degree to which our current enthusiasms are more consumerism than connoisseurship.

Pogue's piece does not argue that nonfiction is dying or dead. If anything, it is thriving in one sense, as the profusion of narrative podcasts, among other things, suggests. (Although I'm not a fan of those podcasts, and think they are highly mannered--God save me from another post-This American-Life voice, with its uptalk and other vocal affectations, male or female, or another somber-music dramatic pause--and mostly trivial, and are bringing back practices that we rightly came to think of as ethically dubious in journalism.) Rather, he argues that "[w]e are now in the mature stage of a book-to-film boom that is quietly transforming how Americans read and tell stories—and not for the better." And not just books, of course, but magazine articles, podcasts, and other forms of nonfiction. 

In discussing how the narrative-industrial complex affects nonfiction, he writes:

[T]he book-to-film complex is bolstered by two imperatives that now govern our nonfiction almost without exception: foreground story as an ultimate good, ahead of deep personal insight, literary style, investigative reporting, or almost any other consideration that goes into the shaping of written work; and do not question too closely the aristocracy of tech and capital that looms over us, the same people who subsidize the system that produces America’s writing....The power of book-to-film in American writing is in how it sits at the edge of the consciousness of every writer, editor, and podcast producer, a dark energy of the entertainment market that drives wealth and reward. You just have to tell a gripping story and leave the powers-that-be unnamed.

And let me quote some more:

This is more or less how most editors I know describe what they want these days. One—clearly hoping to land stories that would get bought for film since he was hardly offering enough money to make writing a feature for him worth it otherwise—recently sent me a call asking for “ripping yarns, stories of true crime, of loves lost and won. Rivalries in sports, tech, and entertainment. Chronicles of dreams realized and broken. We want to take readers on spell-binding adventures, introduce them to powerful jerks they don’t know (or don’t know enough about), weirdos, eccentrics, and folks in search of redemption.”

This email almost made me throw my laptop off my balcony. We all know this kind of storytelling, even if we don’t exactly have a name for it. It is your non-friend’s favorite true-crime podcast. It is the magazine story that the documentary you just watched was based on, and it is the novel that was based on the real event that the even-better magazine piece described and that will soon be a television show. It is the books that now dominate the bestseller lists by writers like [David] Grann or Patrick Radden Keefe or Gillian Flynn, which have all been pre-engineered to read like movie thrillers long before anyone even sat down to start on the script.

We think less about what this kind of writing isn’t. These editors asking you to rip the yarn never talk about politics beyond a possible desultory nod toward wanting stories from writers of “diverse backgrounds.” They do not talk about voice or literary style. They do not ask for excavations of an inner life or the forces of history or any of the things that once would have made a work of writing lasting. A writer may find clever ways to worm these things in, but in the end they are ancillary goods. The desire is always for work that puts narrative ahead of all other considerations, and this is the kind of writing that now dominates our literature: it describes the world without having a worldview. Which is a workable definition of the kind of writing most easily converted into IP....

At least some of my peers are now handing over their working lives to producing cynical content rigged to fit the desires of streaming services, which, when you think about it, is a small tragedy for a world as fucked as ours. Most of the good writers are not. But how could you not at least think about these imperatives when a strange new amalgam of Hollywood and tech offers the greatest rewards for a hit second novel and when magazines pay below rates that were standard three decades ago?...

We have a perfectly good word for the kind of writing and reporting this all encourages: trash. Trash is how we once thought of work designed above all to fit commercial demands and generic narrative forms. The imperative to produce it isn’t going away soon. But I don’t think we have to accept it. 

Very enjoyable. 

  

Posted by Paul Horwitz on January 11, 2020 at 11:07 AM in Paul Horwitz | Permalink | Comments (0)

Friday, January 10, 2020

Baude and Chilton offer advice to scholars (junior and otherwise)

Great posts by Will Baude and Adam Chilton advising junior scholar--and, really, all scholars. A good way of thinking and talking about the scholarly game and what we do.

Posted by Howard Wasserman on January 10, 2020 at 12:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, January 09, 2020

JOTWELL: Malveaux on Burbank & Farhang on rights retrenchment

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Stephen B. Burbank & Sean Farhang, Rights and Retrenchment in the Trump Era, 87 Ford. L. Rev. 37 (2019), a follow-up to their 2017 book on the counter-revolution against federal litigation.

Posted by Howard Wasserman on January 9, 2020 at 11:15 AM in Article Spotlight, Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The Rule of Recognition for Constitutional Amendments

Who decides whether a proposed constitutional amendment is ratified? Up until now, the answer was "the elected branches." In other words, the Executive Branch and Congress must concur that an amendment is ratified. Once they do, that decision is treated as final by the courts. At times, the Executive and Congress have sparred over which elected branch should make the determination, but never with any consequence.

The ERA presents a new problem. The OLC is taking the position that Congress may not recognize the current ERA proposal as ratified. (I'll talk more about why the OLC is wrong about that in a later post.) But suppose Congress reaches the opposite conclusion. Then the Supreme Court will be asked to weigh in about who is right.

I doubt that the Court wants to decide whether a constitutional amendment is part of the Constitution. That opens up a big can of worms. They could respond in this scenario by simply saying that it's up to the elected branches. If they are divided, then an amendment is not ratified. If they concur, then it is. That probably makes more sense than getting into the weeds on the ratification process. But we'll see if and when we reach that point.

Posted by Gerard Magliocca on January 9, 2020 at 09:57 AM | Permalink | Comments (8)

Wednesday, January 08, 2020

The Home-Institution Benefits of Visiting Stints

I enjoyed Josh Blackman's post on look-see visits. I have done only one such visit, so I am no expert. I only wanted to add a small point to the discussion.

Josh writes, in response to some of his commenters, "It is fairly common for people to travel a lot within their current jobs, often for weeks or months at a time. Such roles, however difficult they may be, are designed to create opportunities for upward mobility within an organization. Look-see visits are different. The professor is not traveling to promote opportunities within the home institution; rather, the professor is leaving the home institution to try to find opportunities elsewhere. It is difficult to think of any non-academic jobs, in which employers allow employees to embark on a 6 month interview at a different firm. Moreover, at the end of this 6-month interview, there is a very low chance of success for promotion; at that juncture, the professor simply returns to the home institution."

I understand the point, of course. But I think it would be a mistake to view things entirely in this way. (Assuming it to be a mistake, I'm not saying it's Josh's own view; but I do think it is probably one that is made by others, both by visitors and by home and visiting institutions.) A visit does benefit the visiting professor's home institution--and the professor qua professor (that is, in his or her teaching, scholarship, and institutional service), even if no move results. Owing to a fortuitous lack of greatness and/or stability, I had the pleasure of teaching at several law schools before landing at my home school, and one post-lateral visit elsewhere. It is tremendously useful to see how other professors and institutions do things; to learn something about the different capacities of students at different institutions and the ways in which different law schools succeed or fail at exercising and enlarging those capacities; to see what a different curricular structure looks like in practice; to see what faculty governance (or dysfunction) looks like in different places; and so on. Law school travel, in short, broadens the mind. Some people start and end their careers at the same institution; the advantages in institutional memory and loyalty are real, but so is the possibility of being cocooned or losing a sense of alternative ways of doing things. Some of the things I learned from visiting or teaching at other institutions have affected both my own teaching here at Alabama and my sense of what things my institution as a whole could and perhaps should do differently. (The University of Alabama, among other things, is very poor on freedom of speech and academic freedom, and could learn a lot from some of the things that the faculty senate at Emory instituted in the wake of some speech controversies there.)

Not every visit results in an offer, or does so in the short run, so the visitor can indeed bring back what he or she has learned and make use of it. Whether they do so now or not, home institutions should welcome this and make some effort to "debrief" the returning colleague. I would add that we could get some of those benefits from podium visits, and students in individual classes may in fact get some of them; but even more than look-see visitors (who often find a less welcoming environment than they ought to), podium visitors often don't get much integrated into the life of the school they're visiting at all. And I would add that the fact that a look-see visit can confer benefits of this sort does not mean that look-see visits make much sense. I'm not sure they do. Josh quotes Mike Dorf on several other possible visiting formats, all of which (if undertaken in a conscious fashion) would confer the same mutual benefits. The idea of an "enrichment" visit, in particular, makes some sense. So do short-course programs and intersessions, which probably convey less benefit but also are less burdensome for those with family or other obligations.       

Posted by Paul Horwitz on January 8, 2020 at 02:13 PM in Paul Horwitz | Permalink | Comments (0)

Tomorrow - FTC Public Hearing about Non-Competes

For the first time ever, the Federal Trade Commission is holding tomorrow a public event about non-competes. I am honored and excited to be the first speaker of the day, setting the agenda for an economic and policy discussion about whether the FTC should pass a rule that limits non-competes as an unfair method of competition. Last year I helped draft a petition to the FTC calling for such a rule and it is very rewarding to see the government responding. Other speakers of the day include several FTC commissioners, professors Evan Starr, Eric Posner, Howard Shelanski, and William E. Kovacic (who was the FTC chairman under the Bush admin). The event will be livestreamed so tune in! Here is the agenda.

 
 
 

Posted by Orly Lobel on January 8, 2020 at 01:03 PM | Permalink | Comments (0)

C.J. Roberts and the Year-End Report

At SEALS next summer, there will be a discussion group to mark fifteen years of the Roberts Court and the Court's renewed engagement in civ pro (something I wrote about at the six-year mark). For a topic, I was considering the way that Roberts has used his Year-End Reports to talk about civil procedure and the FRCP, in ways both good and bad, proper and less so.

Adam Feldman on Empirical SCOTUS looks at the particular words Roberts uses in these Reports to talk about the power and role of judges and the judiciary. Although about the judiciary broadly and not only civ pro, it offers a good starting point.

Posted by Howard Wasserman on January 8, 2020 at 11:50 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)