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Thursday, March 31, 2016

George Mason University School of Law Reported to be Renaming Law School

Per Nina Totenberg's twitter:

More information is here at the Wall Street Journal. This comes at the same time as two gifts, an anonymous $20 million and another $10 million from Charles Koch.

Posted by Amy Landers on March 31, 2016 at 02:35 PM in Life of Law Schools | Permalink | Comments (3)


Welcome to April.

Thanks to all our March visitors, who may be sticking around for a few extra days.

For April, we welcome Sam Bagenstos (Michigan), Andrew Ferguson (UDC), Stuart Ford (John Marshall-Chicago), Amy Landers (Drexel), Michael Rich (Elon), and Chris Walker (The Ohio State). And Eric Carpenter (FIU) has two more episodes of Serial to go.

Also, it's about time to begin lining up visitors for next year, beginning in July. If you are interested in a month-long guest stint, let me know.

Posted by Howard Wasserman on March 31, 2016 at 02:31 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, March 30, 2016

An Unexpected Teaching Challenge

It's been great to visit at Prawfsblawg again, and thanks to Howard and to all for the invitation and cyber-hospitality. I thought I'd close out my guest stint by describing a challenge I am facing in my teaching, and see if others have ever faced anything like this and how they have handled it. I'm teaching too fast. By that I don't mean I'm talking too fast (though I definitely have a problem with that. I once had a student evaluation say that listening to me was like chasing a Corvette with a tricycle). What I mean is that I am getting through material much more quickly than I have in the past. This is my fifth year as a teacher, and the sixth time I have taught Administrative Law. Usually when I teach, I find that I am often playing catch-up and not covering as much material as I had planned. But in Administrative Law this semester, for the first time, I find that I am all of the sudden covering all the material with time to spare. I can guess at a couple of reasons why this is happening. Maybe because the class is being held late in the afternoon, I am just be getting a less student participation because they are worn out by then. Or maybe I have mastered the material to a degree that I am spending less time exploring the ideas with my students and instead just cutting to the chase. I don't know if that is good or bad. I wonder if this is a normal part of being a teacher. For the first few years, you are exploring the subject a bit yourself (at least as a teacher, if not as a scholar or practitioner), and you're hearing some questions for the first time. After a few years, you have answers to all of those questions, and can even head them off. You start getting "too efficient" (if that's even a thing).

I am trying a couple of things to fix the problem (or perhaps to just take advantage of the extra time - maybe it's not a problem). First, I am doing a little regular assessment. I have always begun every class with a "Review of the Last Class," but now I am making the review a sort of mini-quiz. It's not graded, but I give them questions and allow them to see where they stand and how well they are understanding the material. I think it's been a good move. The class is pretty large, so I also take up more time with "Rule of the Day." Each student is required to research and present on a recently proposed or finalized federal rule, explain which agency is acting, under what statutory authority, the aim of the regulation, and who is commenting for and against and what they are arguing. So far, these seem like decent ways to use the extra time. But I am still curious if this is something that other people have experienced and how they have handled it.

Thanks again for letting me visit. My family and I are going to be in Ecuador this summer on a Fulbright grant. I will be teaching International Water Law at the Pontifical Catholic University in Quito, and working on my ongoing research into the constitutional right to water and how it is formulated, interpreted, and implemented. If you've ever had any experience in Quito or in Ecuador in general, I would love to hear about your experience and any travel suggestions. We are really excited.

Posted by Rhett Larson on March 30, 2016 at 07:29 PM | Permalink | Comments (11)

Value chain dynamics of legal education

I wanted to finish my guest blogging with another comment about institutional features of the legal academy, specifically its economic structure as a market or market participant.  I started thinking about this last year, when a Cuban economist taught me about value chain economics, a theory that Harvard Business School professor Michael Porter put forth in his book Competitive Advantage.  

In my lay understanding, situating a product or process in a value chain means taking into account all the upstream inputs and downstream outputs relevant to a particular point of production or distribution.  The approach emphasizes relational ties between the upstream and downstream processes that result in an ultimate product or service.  Visualizing the chain as a whole helps to understand the economic dynamics in a particular link of the chain. In effect, the chain is the firm.  For example, supply chain analysis seems to be a specific application of the value chain idea. So, for example, Walmart is such a powerful buyer that – through contract – it can influence (maybe mandate) the business models of its upstream suppliers.  

In the global agricultural market – this gentleman explained to me – 80% of global supply gets funneled through pre-existing value chains, not through some kind of “open market” where buyers and sellers meet.  Indeed, insofar as these relational networks determine the production, distribution, and financing flows for a product, the “open market” idea seems like a fiction promoted by orthodox understandings of microeconomics. 

What intrigued me was the possibility of using value chain modeling to understand banks and the financial sector, which made instant intuitive sense to me because cash and credit are fungible commodities that flow through these intermediaries through relational channels.  

But then I also began to wonder what a value chain model of legal education would look like. This schematic is my draft attempt at figuring that out.  I’d welcome any thoughts on this idea.

Let me close with a tiny bit of self-promotion.  Last month, I finished my first monograph, Bank Funding, Liquidity, and Capital Adequacy: A Law and Finance Approach.  I’m still happy about it, so I wanted to share it.



Posted by Jose Gabilondo on March 30, 2016 at 05:02 PM in Current Affairs | Permalink | Comments (0)

JOTWELL: Thomas on Coleman on efficiency

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Brooke Coleman's The Efficiency Norm (B.C. L. Rev.), which explores the way the concept of efficiency has been defined and applied in civil litigation.

Posted by Howard Wasserman on March 30, 2016 at 04:05 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 29, 2016

Cuba examination questions

The growing detente between the US and Cuba raises some issues that make for interesting examination questions. Here are two.

At some point, the normalization process will allow Cubana (the state-owned airline) to fly in or through U.S. air space. However, Cuban authorities worry that its airplanes in the U.S. could be seized by private litigants with claims against Cuba. Usually the Foreign Sovereign Immunities Act shields foreign states from being hailed into court here, but the FSIA contains exceptions when (i) the property in question (in this case the planes) is tied to property expropriated by the foreign state and when (ii) the foreign state engages in commercial activity in the US. Do the Cuban authorities have anything to worry about?

The second issue involves the long-standing questions that many have had about whether Helms-Burton’s attempt to codify the embargo is constitutional. The question mattered less when both the President and Congress were on the same page (because the embargo could rest on executive authority), but now the branches disagree. The question matters because Obama has said that he’ll use his authority to roll back the embargo. How far can he go before being hemmed in by a valid Congressional mandate?

Posted by Jose Gabilondo on March 29, 2016 at 07:20 PM in Current Affairs | Permalink | Comments (1)

Misrepresenting the Employment Law Impact of HB 2

One of the most disappointing and infuriating things about the HB2 saga in North Carolina has been the persistent misrepresentation of its impact by Gov. McCrory and its supporters in the General Assembly.  As an employment and civil procedure scholar (and former long time litigator), I take particular umbrage at the gross misrepresentations related to the elimination of the state law claim for employment discrimination (discussed in my last post, here). 

The misrepresentations started in the General Assembly where the Republican sponsors repeatedly asserted that nothing in HB2 would take away existing rights.  Even when directly questioned about the elimination of the state law wrongful discharge claim for employment discrimination, Republican legislators responded that it would have no effect.  [I am basing the foregoing primarily on tweets from reporters on the scene as I was not in Raleigh for the “debate.”] 

The misrepresentations continued when Gov. McCrory issued his statement announcing he had signed HB2 into law.  In that statement, he stated “[a]lthough other items included in this bill should have waited until regular session, this bill does not change existing rights under state or federal law.”  (emphasis added).  Gov. McCrory doubled down on this misrepresentation in a document entitled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren't saying about common-sense privacy law” (here), which was posted on his official website on Friday, March 25.  In this document, question #2 is “Does this bill take away existing protections for individuals in North Carolina?”  Gov. McCrory’s answer: “No.” 

Put simply, McCrory’s statements are clearly and undeniably false. 

However, the most persistent voice in misrepresenting the impact of this provision of HB 2 has been (perhaps not surprisingly) HB 2’s author and sponsor, Rep. Dan Bishop (R-Mecklenburg).  Rep. Bishop is an attorney.  When pressed by a reporter on whether HB2 eliminated the longstanding state law claim for wrongful discharge, Rep. Bishop acknowledged that it likely did, but said “who cares” because you could get the same remedies under federal law.  In a separate interview, Rep. Bishop said the elimination of the state law claim “is an exceedingly minor procedural difference."  

Rep. Bishop graduated from UNC-CH law with high honors, so I will assume he does actually understand the differences between (1) substantive and procedural law; and (2) federal and state employment discrimination law.  But assuming he understands the distinctions, one must conclude that he is intentionally misrepresenting the impact. 

Whether the elimination of a state law claim is “substantive” or “an exceedingly minor procedural difference” is beyond rational debate.  Having 28 days to respond to a motion instead of 30 days is an exceedingly minor procedural difference.  Eliminating a state law claim that has existed for 34 years, is indisputably substantive and significant. 

I’ll take up the substantive differences between federal employment discrimination claims under Title VII (or the ADEA) versus North Carolina’s now defunct claim for wrongful discharge in violation of public policy premised on EEPA in my next post.

Posted by Brian Clarke on March 29, 2016 at 01:08 PM in Civil Procedure, Current Affairs, Employment and Labor Law, Gender, Law and Politics, Torts, Workplace Law | Permalink | Comments (1)

Employment Law Easter Eggs in North Carolina’s HB 2

The vast majority of the commentary around and criticism of N.C.’s HB 2 [see the full text as enacted here] has, perhaps rightly, focused on the elimination of LGBT rights in North Carolina.  The lawsuit filed early this morning by the ACLU, Equality NC, and others (including NC Central Law Professor and Assoc. Dean Angela Gilmore) focuses exclusively on the LGBT rights provisions of HB 2.  [Read the Complaint here]. 

However, HB2 was not just about LGBT individuals.  It also has some rather nasty Easter Eggs for all employees in North Carolina. 

First, and most openly, it prohibits all local governments in North Carolina from enacting a local minimum wage that exceeds the federal minimum wage.  No local government in N.C. had tried, but I guess the General Assembly figured it would rather be safe than sorry – especially when the LGBT provisions would tie up the news cycles. 

Most importantly – and most sneakily – HB 2 eliminated (yes, ELIMINATED) the only state law cause of action available to private employees to redress employment discrimination based on race, national origin, religion, color, age, or biological sex.  The General Assembly accomplished this profound change in North Carolina employment law via a single sentence in middle of page 4 of the five page bill.  That sentence reads:

“This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.” 

To a lay reader (or legislator), this sentence would not seem terribly important.  However, it was inserted into Article 49A of Chapter 143 of the NC General Statutes [here, before being amended].  Article 49A is called the “Equal Employment Practices Act” (“NC EEPA”) and contains the heart of North Carolina’s state law protection from employment discrimination.  NC EEPA, which was enacted in 1977, is merely a statement of public policy.  It declares that it is the public policy of North Carolina “to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.”  N.C. Gen. Stat. 143-422.2.  Unfortunately, NC EEPA does not contain a private right of action.  Thus, the only way to enforce it was through a common law tort action for wrongful discharge in violation of public policy. 

Now, of course, you see the problem with the sentence inserted into Article 49A via HB 2.  “[N]o person may bring any civil action based upon the public policy expressed herein.” 

Poof.  With that sentence, 34 years of state law protection for employment discrimination based on race, national origin, color, religion, sex, and age VANISHED.  Millions of working North Carolinians (whether they knew it or not) relied on NC EEPA to help protect them from discrimination.  Thousands – tens of thousands? – of North Carolina workers have asserted wrongful discharge claims premised on NC EEPA since our appellate courts officially recognized the claim in 1982. 

As a management-side employment lawyer for more than 11 years, I never heard a single client complain about the existence of this claim.  But now, it is gone. 

I wonder how many members of North Carolina General Assembly knew it was in HB 2?  I wonder how many of them knew the ramifications of that sentence?

Posted by Brian Clarke on March 29, 2016 at 08:00 AM in Employment and Labor Law, Gender, Law and Politics, Torts, Workplace Law | Permalink | Comments (6)

Monday, March 28, 2016

Wednesday in North Carolina

It has been an interesting week in North Carolina.  Last Wednesday, the ultra-conservative Republican super majority in the NC General Assembly called itself into a special “emergency” session to overturn an ordinance passed by the City of Charlotte on February 22.  Charlotte (like many other cities) has long had a non-discrimination ordinance (section 12-58 of the Charlotte City Code), which prohibited discrimination in public accommodations on the basis of “race, color, religion, or national origin.”  The new ordinance simply added “sex, marital status, familial status, sexual orientation, gender identity, [and] gender expression” to the existing list of protected categories.  Additionally, the new ordinance deleted section 12-59 of the Charlotte City Code which prohibited sex discrimination in public accommodations but also provided as follows: 

    (b) This section shall not apply to the following:

        (1) Restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private.

        (2) YMCA, YWCA and similar types of dormitory lodging facilities.

        (3) A private club or other establishment not, in fact, open to the public.

This rather innocuous change in a long-standing provision of the Charlotte City Code became known as the “bathroom ordinance.”  So vile was the bathroom ordinance that it was necessary for the legislature to convene a special session to overturn it before it took effect on April 1. 

Governor Pat McCrory (R) (who served has a member of the Charlotte City Council and as mayor for a total of 20 years, all without questioning the legality of the then-LGBT free non-discrimination ordinance), declined to call the General Assembly into special session because he feared (no doubt based on inside knowledge) that the General Assembly, if summoned, would pass legislation that was far broader than the “bathroom ordinance.” 

The Republican legislature, not to be stymied, called itself into special session, which it scheduled for Wednesday, March 23, 2016.  Despite requests from members of the General Assembly and the media, the powers that be in the General Assembly refused to release a draft of the legislation that would be introduced on March 23 claiming that it was not yet complete.  When the legislature convened around 10:00 am, the bill (House Bill 2 or “HB 2”) was introduced and made public for the first time.  [The date stamp on the last page “(03/16)” makes fairly clear that the bill had been drafted at least in substantial part well in advance.]  HB 2 was 5 single spaced pages of fairly dense statutory language.  The first vote was held 5 minutes after it was introduced.  There was a 30 minute public comment period for those who were able to get to Raleigh to testify.  Then some limited debate.  Then two more votes, culminating in final passage by the House at about 3:30 pm.  The Senate took up the bill at about 4:45, had an initial vote and then another 30 minute public comment period.  After it became clear that the Republican leadership was not interested in anything the other side had to say (according to Senate Democrats) all of the 15 Democrats walked out in protest.  The chair called a final vote and HB 2 passed by a vote of 32-0.  This was roughly 7:00 pm.  Although Governor McCrory had 30 days to consider whether or not to sign HB 2 into law, he signed it at 9:57 pm that night. 

In just under 12 hours from introduction to gubernatorial signature, North Carolina enacted what many have called the most aggressively anti-LGBT legislation in the country. 

ALL local non-discrimination ordinances were banished.  All local governments in NC were prohibited from protecting any group not protected by state law.  In the place of inclusive local laws (passed by the duly elected representative of those local jurisdictions), the General Assembly created a statewide public accommodation law was passed which protects only race, national origin, color, religion, and BIOLOGICAL sex.  It also mandated that all public restrooms in NC (including in public schools and universities) must be single sex and that a person may only use the restroom designated for his or her BIOLOGICAL SEX, as listed on his or her birth certificate. 

Not content to stop there, HB 2 also contained a slew of EMPLOYMENT related provisions, despite the fact that Charlotte’s ordinance had nothing to do with employment.  More on those later. 

So, North Carolina – once the most progressive of southern states – is now, perhaps, the most regressive on LGBT rights. 

Perhaps it was fitting that this special session that culminated in HB 2 was on Wednesday of Christian Holy Week, the day on which Judas Iscariot betrayed Jesus.  I cannot think of a bigger betrayal of the teachings of the Jesus I learned about in Sunday School than legalizing discrimination against a minority group.

Posted by Brian Clarke on March 28, 2016 at 10:06 PM in Culture, Current Affairs, Gender, Law and Politics | Permalink | Comments (2)

Thursday, March 24, 2016

Up with Cuba

Given all the brouhaha about Obama’s trip, I wanted to comment some on Cuba. I was born in Santiago (the easternmost and most revolutionary part of the island) and have been going back over the past 12 years, presenting and publishing there.

This link (translatable) has some basics about the Cuban legal system. The two main professional organizations for lawyers are the Unión Nacional de Juristas de Cuba and the Organización Nacional de Bufetes Colectivos.  The Unión seems to focus more on policy and academic issues while the ONBC includes almost all practicing lawyers who work in state-organized firms. These organizations regularly hold conference and events on legal themes. I was thinking of attending this conference on gender, at which I’ve previously seen many foreign academics.

As I see it, many Cuban-American emigrants remain in a state of complicated and belated mourning, something that will begin to end only after Fidel Castro passes away. Elsewhere I’ve argued that many in my generation suffer from the  Cuban-American Oedipal conflict. Parents and grandparents passed on their displacement trauma (no doubt justified) to their kids, who then – out of a sense of filial piety and ethnic identification – keep from engaging with Cuba (the real Cuba – not their parents’ introjected loss) so as to form their own opinions on these issues. Ironically, avoiding Cuba keeps them from more fully understanding what their families lost by leaving. (I’m an Oedipal victor, although that can seem like a pyrrhic victory :))

Posted by Jose Gabilondo on March 24, 2016 at 09:12 PM in Current Affairs | Permalink | Comments (3)

Mixed Feelings about Tyson Foods

On Tuesday, the Court decided Tyson Foods v. Bouaphakeo, which asked the Court to decide whether and when plaintiffs can use statistical samples (what Scalia disparagingly called “Trial by Formula”) to prove class liability.  The case was the culmination of a long fight against statistical sampling by class defendants, whose dream has always been to take this sort of evidence offline.

I joined Allan Erbsen’s excellent amicus brief on neither side—which was a pitch at the then-conservative majority to (1) abjure broader rulings governing the use of statistical proof  by (2) vacating the judgment on narrow, case-specific grounds.

That seemed like a pretty good strategy before Justice Scalia’s demise, if you assumed the conservative majority was primed to reverse. But it’s a different Court now, and it affirmed the judgment in a five-justice majority opinion written by Justice Kennedy, with a concurrence by the Chief Justice (joined in part by Justice Alito, who also joined Justice Thomas’s dissent.).

The result, at least on an initial reading, is relief for those of us who worried the Court might drastically curtail opportunities to use statistical sampling to prove class claims. But on the general law of class certification, the majority opinion strikes me as a departure from past precedent, and not necessarily in a good way.

More below the line.

The case involved a class action/FLSA collective action on behalf of 3,300+ employees of a Tyson Foods processing plant, who alleged Tyson Foods failed to pay them for time spent putting on and taking off (“donning and doffing”) job gear, leading to loss of overtime compensation due under the Fair Labor Standards Act and a state statute. The class members needed to prove they had worked over 40 hours a week—a precondition for recovering overtime pay. To prove this, plaintiffs turned to an expert time study by Dr. Kenneth Mericle, who calculated average donning/doffing times based on randomish samples; a second expert then used these averages to estimate that all but 212 members of the class had worked over 40 hours/week inclusive of donning and doffing.

Yet the sampling blurred some significant variations in the time spent on donning and doffing across different job types… variations that if adequately accounted for could reveal that a significant number of class members (according to some estimates, up to half the class) had never met the 40 hour a week threshold.

One of the late, great Richard Nagareda’s many accomplishments was to “demarcate the proper line between class certification and summary judgment.” Class certification, he argued, asks whether class claims pose liability questions that are resolvable as a unit—e.g. susceptible to common answers. And he embraced the rigorous scrutiny approach to certification ultimately adopted in Wal-Mart: When plaintiffs seek to demonstrate that issues can be resolved based on common evidence, courts should rigorously assess whether the evidence proves what it claims (by a preponderance of the evidence) if insufficiency of that proof would leave the defendant’s liability to class members dependent on dissimilarities across the class.

By contrast, if an issue raised by the class can only be proven by some form of class-wide evidence, because it  turns on some common set of underlying events (e.g., “the concern is not that the class exhibits some fatal dissimilarity, but, rather, a fatal similarity”), then this rigorous threshold inquiry is inappropriate. In that case, the question ought to be the usual one applicable to any evidentiary submission: whether the evidence is admissible and might persuade a reasonable jury.

Finally and crucially, Nagareda also cautioned that courts must ensure that aggregate proof is consistent with the substantive liability standard.   The question at the certification stage thus is not simply whether claims are supported by some common proof—its whether that proof reflects a proper substantive theory of liability.

The respondents argued within this framework. I won’t detail their substantive analysis. You can read it here, starting on page 35 (where they analogize the Mt. Clemens liability scheme to the burden-shifting scheme in securities fraud), through page 45 (where they argue certification is appropriate based, in part, on an analogy to the Court’s recent 10b-5 certification cases).

Justice Thomas, though, rightly complains that Kennedy doesn’t grapple with the substantive liability standard in the serious way the respondents do. To me, some of Kennedy’s core reasoning seems to be that:

  • use of statistical sampling is consistent with the substantive law when it is the only “practicable” means of proving the claim (see slip op. 10; this is not, though, the only situation in which the Court thinks plaintiffs can employ sampling);
  • proving that the defendant caused the injury plaintiffs complain of (loss of overtime) required some kind of a statistical study (see slip op. 12: “there were no alternative means for the employees to establish their hours worked,” thanks to the defendant's bad recordkeeping); as a result, relying on statistical evidence in this case was consistent with the substantive law;
  • because statistical evidence is the only “practicable” means of proving the claims here, this issue also falls into Nagareda’s second category, where proof of the issue is inherently “common” to the class (e.g. where the concern about the class is “not that it exhibits some fatal dissimilarity but, rather, a fatal similarity”). And so, the court shouldn’t engage in a full bore rigorous analysis of the merits of plaintiff’s expert submissions—it should assess the expert evidence under Daubert (waived here) and summary judgment standards. See slip op. 14-15.

Maybe this interpretation is uncharitable.   If I’m reading the opinion right, though, this is a pretty striking example of upholding class certification upon the “mere raising of common questions by way of expert submissions” (Nagareda) without first asking if those submissions demonstrate the plaintiffs are seeking to resolve the class claims consistently with the substantive law. After all, its not enough to conclude statistical evidence in the abstract would comport with substantive law—the district court has to find that this statistical study did so, because its methodology took account of variables the substantive law cares about. (And for the record, Dr. Mericle noted that the time study “could [be] repeat[ed] using a different methodology,” see Civ Pro Scholars Br. at 19).

Justice Thomas, by contrast, rightly starts with the substantive liability standard, which he argues requires proof the defendant caused each class member an individual injury. That meant that plaintiffs’ time study had to account for significant donning and doffing differences across distinct job types, something the study’s sampling method didn’t do. In our brief, we argued the Court could simply vacate the judgment and remand, allowing plaintiffs to take another crack at substantively copacetic class trial plan.

It’s probably unwise to make a lot of this opinion—it may be a blip during a transition on the Court. And a future Court may build some of the missing substantive analysis into, say, a heightened Daubert “fit” test in the class cert. context (the Court has yet to clarify Daubert’s application to expert submissions at the class cert. stage). But it’s also possible this may be the beginning of a long, slow drift away from the substanc-ized approach to certification that increasingly characterized the Court’s opinions during the late Scalia era.

Posted by Mark Moller on March 24, 2016 at 05:18 PM | Permalink | Comments (0)

Tuesday, March 22, 2016

Debating the Infield Fly Rule in Penn Law Review

In December, Penn Law Review published A Step Aside: Time to Drop the Infield Fly Rule and End a Common Law Anomaly, by U.S. District Judge Andrew J. Guilford and his law clerk, Joel Mallord. While there have been rumblings in many places against the Infield Fly Rule, this was the first full, sustained scholarly critique of the rule. My response, Just a Bit Aside: Perverse Incentives, Cost-Benefit Imbalances, and the Infield Fly Rule, has now been published on Penn Law Review Online.

Posted by Howard Wasserman on March 22, 2016 at 09:54 PM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (5)

It's World Water Day! Does Your Law School Offer a Water Law Course?

Today is World Water Day. In celebration, I hope to convince you that your law school should offer a course in water law, if it isn’t already offered. I’ve talked to plenty of law professors who say, “Well, we don’t offer water law at my school. We’re in the [insert any non-arid part of the country], so we don’t really have major water issues.” Here’s the thing… it doesn’t matter in which area of law you are interested and in what part of the country you live… We all have major water issues. Because of that, all law students should have at least the opportunity of educating themselves about water law.

We all share major water issues. Even controlling for climate change, population growth and economic development mean that the world's human population will need 50% more fresh water by 2030. Climate change aggravates that problem by making water variability (drought and flood cycles) more severe in many parts of the world. Water resource management plays a critical role in the cost and availability of energy, food, and housing. Over 6,000 children under the age of 5 will die today because of treatable and preventable water-borne illnesses, to say nothing of those that die from water-related diseases (like malaria).

From a more narrow geographic perspective, each region of this country faces critical water issues. Great Lakes Region. The South and Southeast. The Great Plains. The Pacific Northwest. States throughout the country dealing with issues surrounding fracking. These are only a few examples from a few regions – believe, I could go on all day. And this is to say nothing of the water issues facing the arid states of the West, which are well known and impact everyone both inside and outside of that region.

Now you might say, “We have water law covered as part of our natural resource law class, or energy law class, or environmental law class.” To me, that is tantamount to saying, “We have bankruptcy and tax law covered, because we take a few days of class to talk about them in contract law and business organizations.” I think most people would agree that a couple of days on tax or bankruptcy within a larger survey course do not do those subjects justice, given their importance, scope, and complexity. The same argument applies to water law.

You might then say, “But there are a lot of jobs in bankruptcy and tax law, and not as many jobs in water law.” In that case, you might be right depending on the region. But as greater demand is placed on water supplies, I think we will see more and more jobs in the water sector. We may see more bankruptcy in water than money in the coming decades. The theme for World Water Day this year is “Better Water, Better Jobs," a reflection of the growing demand for water expertise. But water law is also important to understand to be a more effective lawyer in other areas of the law. Environmental law, energy law, climate change, agricultural law, food law, endangered species protection, real estate transactions, and land use all have obvious and important intersections with water law. But knowledge of water law can help inform the study and practice of other areas of law, including immigration law, national security law, public international law, law of armed conflict, human rights law, tax law, international trade and investment law, public health law, legal issues in gender and racial equality, freedom of religion, interstate commerce, intellectual property, and space law.

Maybe you'll say, "We can't find someone to teach water law." I'd be happy to help you find someone, whether an adjunct, visitor, or permanent faculty, and help them prepare the class. You might then respond, “Well, we just wouldn’t get a good enrollment in a water law class.” Our water law class had an enrollment of over 90 students this past semester, and over 60 the year before. If you effectively introduce students to water law in their first year property course and help them see its importance, I think you’ll find that they will be thirsty for more.


Posted by Rhett Larson on March 22, 2016 at 05:01 PM | Permalink | Comments (0)

Nothing New to Say in Nebraska v. Parker

Sometimes the Supreme Court grants cert to change the law.  And sometimes, it seems, the Court grants cert to repeat the law.

Today the Supreme Court issued its opinion in Nebraska v. Parker, holding that an 1882 federal statute did not diminish the boundaries of the Omaha Indian Reservation.  (I joined an amicus brief arguing for the result the Court reached.)

The case concerns a challenge to Tribal jurisdiction over liquor sales on the reservation, with nonmember retailers arguing the Omaha Tribe can’t regulate sales in the town of Pender because, in their view, it’s not part of the reservation.  Writing for a unanimous Court, Justice Thomas concluded that “[o]nly Congress has the power to diminish a reservation,” that its intent to do so must be clear, and that the 1882 “bore none of [the] hallmarks of diminishment.”  (Op. 7, 12)    

In other words, the law today is the same as it was yesterday.  Reservation boundaries, the Court concluded, are not set by the “expectations” of “non-Indian settlers who live on . . . land” within the reservation.  (Op. 12)  Nor are they set by federal courts; “it is not our role,” the Court explained, “to ‘rewrite’ the 1882 Act in light of . . . subsequent demographic history.”  (Op. 11)  That’s the conclusion the district court and court of appeals reached and which the Court repeated.

Over at SCOTUSBlog, Lyle Denniston writes that the Court “left open a chance that more modern history might work in [the petitioners’] favor.”  He’s referring to the Court’s statement that “[b]ecause petitioners have raised only the single question of diminishment, we express no view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender in light of the Tribe’s century-long absence from the disputed lands.  Cf. City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 217–221 (2005).”  (Op. 12)  This statement implicitly refers to an amicus brief supporting the petitioners, which raised Sherrill though the petitioners didn’t.  Denniston suggests the Court may have thought there’s something to the Sherrill argument.

If Denniston’s right, then an opinion that did nothing but repeat the law for twelve pages abruptly turned towards radically changing it in the penultimate paragraph.  The amicus brief of the National Congress of American Indians, joined by the Affiliated Tribes of Northwest Indians and 20 individual Tribes, explained that City of Sherrill has nothing to do with the question of Tribal jurisdiction in Nebraska v. Parker.  If anything, the Court’s emphasis in Parker on Congress’s constitutional role in Indian affairs cuts hard against the idea that judge-made “equitable considerations” could curtail the Tribe’s jurisdiction over its congressionally-recognized reservation.      

I'll admit it makes for a boring headline.  And it leaves one wondering why the Court granted cert in the first place.  But sometimes the Court simply has nothing new to say.         

Posted by Seth Davis on March 22, 2016 at 03:47 PM | Permalink | Comments (15)

Kar and Mazzone on Why President Obama Has the Constitutional Power to Appoint Scalia's replacement

Robin Kar and Jason Mazzone (both of Illinois) have posted  Why President Obama Has the Constitutional Power to Appoint--and Not Just Nominate--a Replacement for Justice Scalia to SSRN. The abstract is after the jump.

The opportunities that SSRN, Law Review Supplements, blogs, and other sites provide for this type of immediate-and-scholarly work is a boon to legal scholarship.

After Justice Antonin Scalia’s recent death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they will not consider or vote on any replacement nominees from the current President. In doing so, they have taken a position that may be constitutionally problematic in ways that have not yet been fully appreciated. Now that President Obama has nominated Judge Merrick Garland to the Supreme Court, this problem requires greater attention.

The crux of the problem is that an outright refusal on the part of the Senate to consider any nominee from President Obama arguably works a delegation of an elected President’s Supreme Court appointment power to an unknown successor. While the Appointments Clause of the Constitution allows Congress to delegate a President's appointment power in certain instances, it does not permit delegation with respect to Supreme Court appointments. Hence this delegation raises a potential problem of separation of powers. Historical practice also cautions against any effort to delegate to a future President the authority to nominate and appointment a member of the Supreme Court. We show that there are 104 cases in which an elected President has faced a vacancy on the Supreme Court and began the appointment process prior to the election of a successor. In all 104 cases, the sitting President was able to both nominate and, with the advice and consent of the Senate, appoint a replacement Justice. We explain why this is a better reading of historical precedent than any limited to consideration of the last 80 years. Hence, constitutional text, structure and history suggest that the Senate Republicans’ current plan not to act at all on any Obama nominee may violate the Constitution. Given this possible constitutional problem, there are also heightened prudential risks to the position Senate Republicans have taken.

None of this means that the Senate cannot vote against President Obama’s nominees on a wide range of grounds. The Senate also has broad discretion to determine its procedures for vetting a nominee. But the delegation problem identified in this Article provides a significant reason for Republican Senators, sworn to uphold the Constitution, to rethink their current position. They should instead consider and vote upon Garland or any other timely submitted nominee.

Posted by Howard Wasserman on March 22, 2016 at 11:48 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (6)

Serial 2:10

I was wrong: this wasn't the finale.  Looks like we’ll get to Episode 12!  In this episode, Koenig deals with the politicization of the both the criminal case against Bergdahl and the trade of Bergdahl for the Taliban.  Beware: spoilers below the fold.

Remember that there are two independent issues here: the decision to court-martial Bergdahl, and the decision to trade him for five Taliban.  Toward the first, Koenig blames the Obama administration because of the way it mishandled the optics of the release: among the bumbles, a hastily-planned Rose Garden ceremony and off-the-cuff remarks by National Security Advisor Susan Rice that Bergdahl served with honor and distinction.  These bumbles riled up Bergdahl’s former platoon members, who then found a receptive audience (via a Republican operative who found them airtime on Fox News).  Fox News then started reporting any inaccurate story it heard and the story grew legs.

According to Koenig’s argument, if the administration had not made these screw-ups, then Bergdahl’s former platoon members would not have become riled up and the whole thing would have faded into the background.  Instead, what developed was a full political spectacle that probably peaked with Senator McCain saying things like, “If it comes out that he has no punishment, we’re going to have a hearing in the Senate Armed Services Committee”.

Toward the second issue, Koenig argues when Congress started seeking information and holding hearings on the trade, administration officials were less than forthcoming (and probably deceptive) when giving information and testimony, and this caused Congressional Republicans to sink their claws into the story. 

The two issues merged, according to Keonig, because of the lack of trust generated by the deceptive way the administration handled the transfer.  People started to question why Bergdahl was being kept in German for a long period of time and created a conspiracy theory that the administration was keeping him there to cover up that he was actually a Taliban sympathizer.

I think Koenig has done a fair job describing how the politicization happened, but I’m not sure that without the administration blunders we would have ended up in Eden.  GTMO already was (and always will be) a political issue.  Focusing on the case against Bergdahl, I expect that the politicization would have happened – just differently, or at a different time.

Imagine what would have happened if, say, a few months after Bergdahl returned the administration had announced that Bergdahl was going to be allowed to leave the Army with an honorable or general discharge.  I expect his platoon mates would have spoken out then – loudly – and would have found the same receptive place to speak. 

I think this is because these soldiers are genuinely angry and feel betrayed.  This isn’t a political issue to them (the people giving them a microphone have a political goal, for sure).  For them, this is a personal issue. 

The unwritten social contract that service members have with the country and each other is this: if you ask me to do something that has meaning, I will do it, even if it costs me my life.  Violations of that social contract, both at the macro and micro level, have serious consequences.  Betrayal of that contract in combat can cause serious, lifelong emotional harm.  If you are doing something that you think is right and has meaning, and then you have a lot of terrible experiences, you are more likely to be resilient.  If you are doing something that you think is wrong or meaningless, and then you have terrible experiences, you are less likely to be resilient. 

We saw a lot of emotional harm following the Vietnam War, and some have theorized that that is because service members were betrayed at the macro level (their country was asking them to do something that seemed meaningless) and at the micro level (their country sent them to combat with assault rifles that jammed continuously – reminiscent of “You go to war with the Army you have, not the Army you might want”).  I expect the emotional harm is much greater when someone dies next to you when you couldn’t fight back because your rifle jammed because the Army bought cheap ammunition, than it is when someone dies next to you and you able to (and are) fighting back.  The book Achilles in Vietnam covers a lot of this.

Going to get one of your own that has been captured by the enemy has meaning and is part of that basic social contract:  the “leave no one behind’ ethos is powerfully entrenched in military culture.  However, Bergdahl betrayed a fundamental assumption behind that ethic: that the person you are going to get was doing the right thing when he or she get captured.  There is a powerful emotion difference between Saving Sergeant Bergdahl and Saving Private Ryan. 

For everyone that was looking for him, this was really personal.  From their perspective, his desertion was putting their lives and the futures of those who depend on them at risk.  That is no small thing.  In an earlier episode, when Bergdahl’s command sergeant major talked about how his unit was being ground down and his soldiers were being put at risk, he said, “We are looking for THIS guy?”  And to add to this sense of betrayal, there was also a sense that they were being sent out there to look for Bergdahl when everyone knew he was already in Pakistan.  That violates the social contract at the macro-level: the mission itself was meaningless.

So, I don’t expect that Bergdahl’s fellow soldiers would have kept quiet even if there wasn’t a botched Rose Garden ceremony or Sunday morning talk-show statement.  I just think the timing would have been different.

Finally, Koenig ends with a cliffhanger:  in the next episode, she will tell us the results of her investigation into whether anyone died looking for Bergdahl.  For many, this is the most important factor in evaluating whether it is “right” to prosecute him.  We know it is an important factor for Senator McCain:  “And I am not prejudging, O.K., but it is well known that in the searches for Bergdahl, after – we all know – he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what clearly is a deserter.  We need to have a hearing on that.” 

Once we know that answer, I think we will have all of the information we need to evaluate the government’s decision to prosecute him.  I think Koenig has given us about all we need to evaluate the swap, too, but she has not tackled the decision head on yet.  Maybe we will get that in the next episode, also.

Posted by Eric Carpenter on March 22, 2016 at 08:41 AM | Permalink | Comments (0)

Bartnicki, Alvarez, and Hulk Hogan

Amy Gajda argues that Gawker (which, following Monday's punitive damages verdict, is on the hook for $140 million*) may not find the success it expects on appellate review, including if/when the case gets before SCOTUS. Amy tries to read the tea leaves from the various votes in Bartnicki v. Vopper, the Court's most recent privacy/First Amendment balance case; she concludes that the reasoning of five Justices in that case suggests a majority might have gone for Hogan. But we can do more with the vote-counting by looking at a more recent case--United States v. Alvarez (the Stolen Valor Act case). And all of it may tie into the Court's ongoing vacancy.

[*] Almost certain to be remitted, even if the liability decision stands.

Bartnicki applied the principle that government cannot punish the publication of truthful, lawfully obtained information on a matter of public concern except to serve a government need of the highest order. Although formally a 6-3 decision, in reasoning it was more of a 4-2-3. Justice Stevens wrote for a plurality of Kennedy, Souter, and Ginburg, applying that principle to its fullest. Justice Breyer, joined by O'Connor, argued for a much more even and flexible balance that, while supporting the free-speech position in that case, might not in different circumstances. Chief Justice Rehnquist, along with Scalia and Thomas, dissented. Gajda argues that, facing Hogan in 2001, a 5-4 majority may have affirmed the verdict.

Of course, Bartnicki was a 2001 decision and only four Justices remaining on the Court. But Alvarez might provide a hint of where the current Court might go as to Gawker. Although not a privacy case, Alvarez involved a category of speech (knowingly false statements of real-world fact) that many believed was entirely without First Amendment value or any meaningful contribution to public debate. This was explicitly a 4-2-3 case with a similar line-up: Kennedy, with the Chief, Ginsburg, and Sotomayor; Breyer concurring with Kagan; and Alito, with Scalia and Thomas, dissenting. The two decisions are of a piece. The plurality in both cases adopted a strong speech-protective position, demanding a compelling government interest and finding that interest wanting. And Breyer's concurrences are of a piece--a call to avoid the rigidity of strict scrutiny in favor of the greater flexibility of intermediate scrutiny. In both, Breyer found the statute to violate the First Amendment as applied, while hinting that a different case might come out differently. (I was surprised that Kagan would go along with Breyer here).

To the extent we can read anything from prior case, I would argue that the voting in Alvarez and Bartnicki together suggests the following. At least four Justices--the Chief, Kennedy, Ginsburg, and Sotomayor--would be receptive to Gawker's First Amendment defense. Two  Justices--Thomas (who  dissented in both cases) and Alito (who dissented in Alvarez)--are generally unreceptive to most free-speech claims--will not be receptive. And two Justices--Breyer and Kagan--might apply less-exacting scrutiny to reject the First Amendment defense, given the greater privacy interests and the shakier news and information value of the video. And were Scalia still alive, Amy would be right that we might have a 5-4 Court affirming the jury verdict against Gawker.

Instead, we face a 4-4 Court. So like everything nowadays, it comes down to Maybe-Justice Garland or Justice Trump-Appointee. And what the Supreme Court of Florida does as the last court to hear the case before SCOTUS.

Posted by Howard Wasserman on March 22, 2016 at 08:33 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Monday, March 21, 2016

The Impact of Entertainment on Law School Applications

I was speaking with a law school dean recently (not my own) who mentioned that part of what drove up applications to law school in the late 80s and early 90s was the success of LA Law. I have no idea if that is true, but I wonder about how depictions of lawyers in TV and film influence interest in going to law school. Did the success of Legally Blonde impact law school applications? Will shows like Making a Murderer and The People vs. OJ Simpson encourage more law school applicants, or has entertainment become so segmented with the rise of cable, internet, Netflix, etc. that no show or movie about the law can have the same broad cultural impact as LA Law?

I don't know if there is an answer to these questions, but I'm curious about what people think. And I think these are important questions. I am frequently asked for advice about whether or not someone should go to law school. Whether or not a person should go to law school is a question that requires several layers of consideration from the broad to the narrow, like a funnel. On the broad end, there are questions about the status, cost, and and future of legal education and the market for legal services. On the narrow end, there are questions about the individual applicant's goals and interests. Too often, potential law school applicants approach the advisability of going to law school by incorrectly beginning their questions at the broad end of the funnel. These broad questions are important, but they may not matter depending on how you answer the narrower, more individualized questions. The narrow end of the funnel includes questions about whether or not you want to be lawyer, what you know about the practice of law, or whether you would like law school. How applicants answer these narrower questions may be influenced by their perceptions of law school and lawyers, and that perception may come partially from movies and TV shows. It's tough for any depiction of lawyers or law school to be accurate in any meaningful way. But what are some TV and movie depictions of lawyers or law school that you think are reasonably accurate?

Posted by Rhett Larson on March 21, 2016 at 03:18 PM | Permalink | Comments (8)

LAWn Signs

Started by Andrew Ferguson (UDC) and Stephen Henderson (Oklahoma).

Final-sign-no4Now I want a t-shirt that says "I want a lawyer."

Posted by Howard Wasserman on March 21, 2016 at 01:54 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Sunday, March 20, 2016

Business model changes at law schools

Law schools are experimenting with ways to diversify revenue in response to declining state support and tuition shortfalls, including those caused by smaller entering classes. This report reviews the range of things that schools have done. A common strategy has been to supplement the juris doctorate degree with other programs. This one does a good job of surveying these programs.

I’d be interested in hearing – on- or off-line – about any successes or failures of schools in generating new income streams. The corporatization of the academy makes me queasy, but law schools do need to find new funding models.

Cf - for two good argument about the potential harms of markets:

(i) Check out Michael Sandel’s What Money Can't Buy. It makes the point that some goods are actually changed by being distributed though a market, i.e., if you can buy a Nobel prize, is it the same good? If – as I did – you loved his Justice class, you’ll enjoy the book.  

(ii) See Posner’s critical comments on the marketization of the legal profession. He addresses the practice of law rather than legal education, but the same concerns apply. In effect, he is making Sandel’s argument. Coming from Posner, I found the idea that too much market freedom can lead to untoward (and unprofessional) behavior on the part of lawyers ironic, indeed, almost poignant.

Posted by Jose Gabilondo on March 20, 2016 at 02:31 PM in Current Affairs | Permalink | Comments (6)

Saturday, March 19, 2016

Hulk Hogan and Complete Diversity

My best guess is that the $ 115 million verdict (likely to be substantially increased when the jury considers punitive damages next week) in favor of Hulk Hogan (ne, Terry Bollea) against Gawker will not stand. From what I have read, the judge made a number of questionable evidentiary rulings and gave a jury instruction that minimized the role of the First Amendment. And some facts will be subject to independent appellate review because they implicate the First Amendment.

But I want to discuss a different question that I missed two years ago--why the case was in a Florida state court at all, where Hogan seems to have gotten some home cooking. Hogan sued Gawker and Heather Clem, the woman in the video; Clem and Hogan are both Florida citizens, destroying complete diversity. Gawker removed anyway, but the district court remanded, rejecting Gawker's argument that Clem was fraudulently joined (as well as an argument that the First or Fourteenth Amendments were necessarily raised by Hogan's state tort claims, creating federal question jurisdiction).

The common defense of the complete diversity requirement, most recently reaffirmed in Exxon Mobil, is that the presence of non-diverse adverse parties eliminates the local bias that is the primary rationale for diversity jurisdiction; Hogan would not receive the benefit of local favoritism because a Floridian is on the other side of the case. But that argument ignores the risk of prejudice against the outsider (as opposed to bias for the local), which is not eliminated by the presence of a local co-party. This is exacerbated when there is disparity in the regard in which the locals are held in that community, such that one side is more of the local community than the other. And it is exacerbated when the outsider-defendant is the real target of the action, the deep-pocketed "big bad."

For jurisdictional purposes, this case looks very much like New York Times v. Sullivan: You have a well-known southern local plaintiff suing a New York-based media outlet, with a locally unpopular individual defendant thrown-in to destroy complete diversity and keep the case in state court. And you have a jury rendering a verdict that sends a pretty clear message about what it regards as outrageous speech. The problem for Gawker is that SCOTUS is unlikely to bail it out the way it did The Times. So Gawker will be relying on the Florida courts to get it out of this First Amendment bind (from all reports, paying anything close to this amount will bankrupt the company).

Posted by Howard Wasserman on March 19, 2016 at 11:52 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Video and getting a call "right"

I have always been against instant replay, being one of those who enjoys the "human element" and the "flow" of the games. I recognize the countervailing argument for getting it "right" by available means. But this play, from St. Joseph's NCAA Round One victory over Cincinnati last night, calls into question what we mean by getting it "right." Cincy's game-tying dunk at the buzzer, initially called good, was waved off following video review. Beginning at the 2:00 mark, you can see the extreme slow-motion/frozen video that showed he still had his hand on the ball (pushing it down through the rim) when the red light went on.*

[*] Leave to one side the oddity that dunking the ball worked to the player's disadvantage in this instance, by requiring him to keep his hand on the ball longer than if he had shot a lay-up or dropped the ball through the hoop from above the rim (as players did during the NCAA's absurd no-dunking days from 1967-76).

But we only could see the "right" call via video slowed to a speed so far beyond the ability of the human eye and brain. Do we really need college basketball games to be decided by such super-sensory means that establish correctness at a meta-physical level? Is it fair to say the refs got the call "wrong" initially, when the wrongness could be established only by this extreme use of video? And should we understand the "truth" of what happened by what we can perceive with our senses or by what video reveals at that heightened meta-physical level?**

[**] Recall that the lawyers who successfully defended the LAPD officers in the Rodney King beating in state court did just this with that video: Slowing it down to the frame level so as to reveal movements by King that might have shown continued resistance, even if there was no way anyone could have perceived them. This strategy has only become easier with the advances in video technology.

Posted by Howard Wasserman on March 19, 2016 at 09:01 AM in Howard Wasserman, Sports | Permalink | Comments (2)

Friday, March 18, 2016

Judge Garland and the Future of Human Rights Litigation

It’s hard to deny that Judge Merrick Garland, President Obama’s nominee to the Supreme Court, is “is an amazingly qualified, brilliant judge,” even for commentators who think he’s a “bad choice.” He shouldn’t be blocked by Senate Republicans. He probably will be, though perhaps we’ll see a lame-duck hearing and confirmation vote. For now, there’s much to see --- and like --- in his jurisprudence on the D.C. Circuit.

For instance, I’d say his dissenting opinion in Saleh v. Titan Corp. is one to like. The question in that case was whether Iraqi nationals who were abused at the Abu Ghraib military prison could sue private military contractors for wrongs that both President George W. Bush and President Obama “repeatedly and vociferously condemned.” The panel held they couldn’t, reasoning that “tort law is preempted on the battlefield.” Judge Garland objected that the “country’s legal system [should] take its ordinary course and provide a remedy for those who were wrongfully injured.” Individuals who “were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors” should have a remedy under a state’s “traditional, generally applicable tort law.”

We shouldn’t lightly assume, in other words, that the United States’ foreign policy preempts an individual’s right to a remedy under state law. To the contrary, Judge Garland suggested, “facially neutral state tort law” may be an important source of remedies for international human rights violations.

If Judge Garland’s dissent in Saleh is any guide, then a Justice Garland might shift the future of human rights litigation in the United States. In recent years the Supreme Court has restricted human rights litigation under the Alien Tort Statute. In Kiobel v. Royal Dutch Petroleum Co., for example, the Court applied the presumption against extraterritoriality to limit claims in federal court under the ATS. State law might, however, step in to fill the remedial gap, as this symposium in the UC Irvine Law Review explored. In the “ordinary course,” as Judge Garland put it, our legal system “provide[s] a remedy for those who were wrongfully injured.” Whether the Court will let our system run its ordinary course in human rights cases is but one of many controversial questions that may be at stake with this nomination.

Posted by Seth Davis on March 18, 2016 at 01:11 PM | Permalink | Comments (0)

Thursday, March 17, 2016

When Technology Forces You to Rethink Things

Recently, technological innovation has me rethinking both my scholarship and my teaching. On the teaching side, I am no finishing up the second on-line class I have ever taught. I teach on-line courses in environmental law and water law for non-JDs. I was pretty skeptical at the start about the efficacy of on-line teaching, but my experience is starting to change my mind. On the scholarship side, much of my scholarship deals with transboundary water law, in which I have argued for basin-level governance (a cooperative, inter-jurisdictional body governing the shared resource, with the boundaries of that body's jurisdiction being the watershed). But advances in water augmentation technology, like desalination and cloud seeding, have me reconsidering my position.

I'm not a tech-savvy person to begin with. Until only a few months ago, I used a flip phone. My kids and students mercilessly ridiculed me. I had one student yell from the back of class, "Hey, Professor Larson, 2005 called. It wants its phone back!" I finally made the switch to a smart phone after an experience at a convenience store (I seem to having a lot of epiphanies lately at Circle K). I had locked my keys in my car when I had stopped to get a soda. I went back into the store after realizing my mistake, and asked the cashier if she could contact a locksmith for me. She said, "Why don't you just look one up on your phone?" I pulled out my flip phone and showed it to her. The look of pity on her face told me I needed to get a better phone. And I have learned that smart phones are awesome.

Well, similar realizations are impacting my teaching and scholarship. I love being in the classroom, and was not enthusiastic about teaching on-line. I feared I would feel disconnected from my students, and they would feel disconnected from each other. I did not think technology could replace the kind of interactive discussion of a true classroom. But so far I've been impressed with how things work. We have a discussion board for the class where students ask questions and engage in dialogue with each other. I record relatively short lectures, but spend more time on the discussion boards answering questions and going over problem sets. I think I would teach the course differently if it were for JD students, and perhaps I would be less pleased with the on-line format in that case. But I am curious about others' experiences with on-line teaching, tips for best practices, and thoughts about its advantages and disadvantages as compared to the a brick-and-mortar classroom.

On the scholarship side, I have argued for appropriately empowered basin-level governance institutions to manage transboundary waters. But water augmentation technologies like desalination and cloud seeding have positive and negative impacts that extend beyond the watershed. Now this has always been true, but has perhaps not mattered much as those technologies were not widely used. The energy costs associated with desalination have historically been so great as to make it viable only in very energy-rich/water-poor places, like Saudi Arabia. But the technology has some a long way. In the early 1980s, desalination required about 35 kilowatts to produce a single cubic meter of fresh water. Now, it is possible to produce a single cubic meter of fresh water with 2.5 kilowatts. The combination of PV solar and pressure transfer systems (recycling pressure from the waste stream to the production stream) has made desalination an increasingly viable option for many water-stressed regions. But desalination can impact marine habitats that lie outside of the basin benefiting from the augmented water supply, to say nothing of the potential impacts of the greenhouse gas emissions associated with the desalination facilities' energy consumption.

Cloud seeding technology is not nearly as far along as desalination, nor as widely adopted or accepted as a viable augmentation strategy. But it's improving, and the advent of unmanned aerial vehicles (aka "drones") may lower the cost of cloud seeding and expand its use. Cloud seeding involves dispersing condensation nuclei (usually charged particles with a lot of surface area, like silver iodide) into the atmosphere to induce precipitation. One of the most significant implications of global climate change is that a warmer atmosphere will hold more water, making access to atmospheric water more important. But cloud seeding may impact where rain falls, making it rain in one basin and not in another, or else causing flooding in one basin from seeding in another. Water law, as presently constituted, is not well equipped to handle effective, broadly-implemented cloud seeding. And we dismiss the effectiveness of cloud seeding at our own peril, at least its with respect to its effectiveness in influencing law, if not making it rain. Cloud seeding was considered effective enough in Operation Popeye (the use of cloud seeding by the U.S. to induce floods as a weapon in the Vietnam conflict) that it contributed to ratification of the ENMOD Treaty, prohibiting the use of weather modification technology for military purposes.

Responsible and cost-effective water supply augmentation is the holy grail of water dispute resolution. Nearly every water rights dispute could be resolved with more water. And the reality is that we might not be able to share or conserve our way out of every water rights dispute. But the difficulty of resolving transboundary water rights disputes is aggravated by some water augmentation technology, because it forces consideration of interests outside of the basin, when the virtue of basin-level governance all along has been its cost-internalization effect. So the price of more water may be, among other things, higher transaction costs because of more (and more diverse) stakeholders in the dispute. I just participated in a fun and fascinating symposium organized by the Texas Tech Law Review, where I spoke about non-traditional water augmentation projects, including cloud seeding, improved forestry management, and bulk water transports between countries. But these cutting-edge solutions to water scarcity nearly always have inter-basin impacts. As a basin-level governance proponent, I'm not sure what the right answer is yet to address water augmentation technology (though I am working on it). But I'm pretty confident that the need to find an answer is going to become more acute in the coming years.

Posted by Rhett Larson on March 17, 2016 at 05:44 PM | Permalink | Comments (3)

Thinking about financial exigency

Hopefully, none of us will experience financial exigency in an academic unit, but here are some sources about the legal and administrative standards used to restructure academic programs.

This working paper published by the American Association of Higher Education (1996) lays out three common kinds of financial metrics for distress in an academic unit: (i) operating results, e.g., enrollment trends, cash flow, budgetary allocations; (ii) net worth; and (iii) bond ratings. The standards seem fuzzy, contestable, highly local, and fact-specific.

This American Association of University Professors report has case studies.

Mark Strasser (Capital University Law School) has published Tenure, Financial Exigency, and the Future of American Law Schools, 59 Wayne Law Review 269-309 (2013). It examines dismissals of tenured faculty from other disciplines and considers how this issue might play out in a law school context.

Like so much of academic administration, how different schools handle this issue varies substantially. Recent examples of academic systems that have considered or implemented financial exigency include Louisiana State and Chicago State.

Other schools have explored ways of giving administrators more freedom to restructure academic programs short of formal determinations of financial exigency. Examples include places in Wisconsin and Georgia.

Posted by Jose Gabilondo on March 17, 2016 at 04:55 PM in Current Affairs | Permalink | Comments (2)

Parliamentary politics and judicial apppointments

Sen. Orrin Hatch has said he would be open to holding a hearing, and confirming, Merrick Garland during the lame-duck session in November/December, should Hillary Clinton wins the election. Ryu Spaeth at TNR reads this to mean it is not really about The People, at least if The People choose Hillary Clinton*--then we should accord the appointment power to the lame duck the Senate has been ignoring for eight months.**

[*] This is not to endorse this The People argument. The people spoke in 2012 when they re-elected Barack Obama and vested in him the executive power for a four-year period from January 20, 2013-January 20, 2017. Suggesting that this power should not be exercised during the election cycle defies that constitutional fact.

[**] I believe the President spoke with Clinton prior to making the nomination, on the chance that some late-year activity would fill the vacancy before Clinton, if elected, took office--whether through a recess appointment or through a lame-duck confirmation.

Hatch's position shows how far we have descended away from a separation-of-powers system and into a partisan/parliamentary system. It is not really about the new President making the appointment; it is only about some Democrat making the appointment, once the voters have indicated that they want a Democrat as new President. There is no difference between Obama and Clinton occupying the White House and making the appointment; the point is only their party affiliation. Of course, this ignores the reality that individuals matter--Obama at the end of two terms (although more popular than he has been since just after his reelection) is situated very differently in terms of power and politics from a newly elected President Clinton (something Hatch almost certainly recognizes). But this also shows why the system is so dysfunctional right now--the key to a party-based system is that the executive must have a workable/working legislative majority, so he can exercise his constitutionally vested powers.***

[***] This lends a different perspective to this piece by Dahlia Lithwick discussing the meeting between Obama and new Canadian Prime Minister Justin Trudeau, who ran on a similar "hope" theme, but who seems to be getting more slack from the public. Part of it is that Trudeau has a working legislative majority and while he no doubt faces criticism from the opposing party, it cannot stop him from doing anything. Obama has not had a working legislative majority (because of the filibuster) since February 2010.

Update (3/20): After the jump is video of Sen. Al Franken challenging what he calls the "absurdity" of the lame-duck-session confirmation argument. But, as described above, the Republican position is based on the idea that all Democratic presidents are the same--the election of Hillary Clinton represents The People approving of Barack Obama exercising the appointment power. Franken is right that this is absurd, but the absurdity is consistent with this new model of understanding partisan government.


Posted by Howard Wasserman on March 17, 2016 at 01:18 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The Donald Trump Final Exam Generator

People clearly have very strong feelings about Donald Trump and his candidacy for President.  His supporters like that he tells it how it is, and his detractors like that he is exposing the Republican Party for what it really is.

But, really.  Both sides are missing a yuge upside to The Donald's campaign:  This guy is generating law school final exam fact patterns like nobody's business.

Teach contracts?  Maybe you want to test whether a court would enforce a promise to pay the legal fees of a rally attendee who roughs up a protester.  Or maybe you just want a good old-fashioned fraud question.

Teach federal courts? Maybe you want to test whether the Secret Service can be sued for assaulting a journalist at a Trump rally.

Teach con law?  Maybe you want to test the free speech rights of protesters vs. rally attendees.  

Teach crim law? Maybe you want to test whether Trump could go to jail for inciting a riot.  Bonus con law!

Teach property?  It's all takings, all the time.

But maybe you don't want an exam full of issue spotters.  No problem:  I have some nice policy issues for you:

Teach civ pro?  Discuss Donald Trump's claim that he doesn't settle lawsuits because he always wins in court.

Teach torts?  Discuss Donald Trump's plan to sue everyone for libel.  All the time.  More bonus con law!

Yes, The Donald pretty much has the whole first year covered.  He's practically teaching across the curriculum.

I haven't even started in the bonanza that he's given us for some upper level courses, like the obvious Election Law, Immigration Law, and International Trade issues.  Perhaps that will have to be for another post...

Posted by Robin Effron on March 17, 2016 at 12:45 PM | Permalink | Comments (4)

Wednesday, March 16, 2016

Miguel Estrada on Merrick Garland

I’ve seen a number of pieces on the Garland nomination link to this dispiriting—and totally accurate—take on judicial nominations by my old boss Miguel Estrada (written with Benjamin Wittes). President Bush, you may recall, appointed Estrada,  one of the greatest Supreme Court advocates of his generation and an influential conservative, to the D.C. Circuit.  Senate Democrats successfully filibustered his nomination in 2003—a preemptive strike against a candidate widely viewed as a future SCOTUS pick.

Miguel is now speaking out in favor of confirming Judge Garland. Jan Crawford tweets, here, that he “look[s] forward to [Garland’s] service on the Court” and calls Garland "superbly qualified."  (That’s also in keeping with the spirit of his take on the nomination process in this letter, written in support of Elena Kagan’s SCOTUS candidacy).

Posted by Mark Moller on March 16, 2016 at 08:32 PM in Law and Politics | Permalink | Comments (3)

Quick news commentaries

Two completely unrelated items, in one post.

1) The Ferguson City Council reversed itself, voting 6-0 to accept all the provisions of the proposed DOJ consent decree. DOJ now will drop its § 14141 suit, pending judicial approval of the settlement.

2) Merrick Garland is an interesting choice for SCOTUS in a number of respects. His age makes him a good compromise candidate for the times--he is unlikely to serve for 30-35 years, which might be a selling point. Given that Bill Clinton appointed Garland to the court of appeals, Garland also might be particularly acceptable to Hillary and someone she would renominate if this nomination goes nowhere and she is elected in November (or if Obama makes a recess appointment in anticipation of a Clinton victory). I still do not believe Senate Republicans are going to change their minds (or at the very least, they will not confirm, even if they hold hearings). But this is the type of nomination that might increase the political pressure. Politically, I hope I am wrong.

Posted by Howard Wasserman on March 16, 2016 at 12:26 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS, religion, and age

As are, I assume, millions of others, I'm "watching" the live-blog of the Judge Garland nomination thanks to SCOTUSblog.  Two quick, non-substantive observations:  First, unless I'm remembering incorrectly, there has not been a Protestant nominated to the Supreme Court in 25 years (Justice Souter was nominated in 1990.)  If Judge Garland were confirmed, it would continue to be the case -- as it has been since Justice Kagan joined the Court in 2010 -- that the Court is made up entirely of Catholics and Jews (and graduates of Harvard and Yale).  Fascinating.  Imagine what, say, John Adams would have said!  Second, as others have noted, Judge Garland is the oldest nominee since Lewis Powell, almost 45 years ago.

Posted by Rick Garnett on March 16, 2016 at 12:19 PM in Rick Garnett | Permalink | Comments (0)

JOTWELL: Mulligan on McCuskey on Submerged Precedent (again)

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Elizabeth McCuskey's Submerged Precedent (Nev. L. Rev.). This is the second reviewof McCuskey's article, following on Brooke Coleman's review last month. McCuskey has obviously struck a chord with Fed Courts/Civ Pro types.

Posted by Howard Wasserman on March 16, 2016 at 10:27 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Air Ball

In January, I wrote about a Wisconsin high-schooler who was suspended for criticizing new state "guidelines" regarding cheering at sporting events. Among the proscribed cheers was "air ball." Josh Levin of Slate properly calls this the greatest taunt in sports and explores the most common version of its history, which traces to an infamous game between North Carolina and Duke in 1979.

Posted by Howard Wasserman on March 16, 2016 at 07:48 AM in Howard Wasserman, Sports | Permalink | Comments (1)

Tuesday, March 15, 2016

A Question About Political Realignment and Public Law

What might political realignment mean for American public law?  That's a question I'm asking as I watch the primary returns tonight.  With Donald Trump doing well but not winning Ohio, the possibility of a contested convention for Republicans looms larger.  And a contested convention might mean the break up of the GOP as we know it.  Whatever the GOP does about Trump, David Frum argues, "[t]his election closes a long period in American politics." 

In recent years, public law scholars have asked what partisan polarization means for constitutional and administrative law.  For example, Jessica Bulman-Pozen has described federalism in terms of partisanship, arguing that "[c]ompetition between today’s ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within."  Partisan polarization also matters for the separation of powers and administrative law; Gillian Metzger, for instance, has recently argued, "[p]olarization, or at least polarization combined with divided government, warps [the] web of agency controls in significant ways." 

All of which leads me to wonder, will we open a new period in American public law as we close one period in American politics? 


Posted by Seth Davis on March 15, 2016 at 11:38 PM | Permalink | Comments (3)

Thoughts on the Flint Water Crisis

The ongoing water crisis in Flint, Michigan has raised troubling concerns about how public officials oversee and manage drinking water systems. Accusations of corruption, negligence, dereliction of duty, and dishonesty have been leveled at federal, state, and city officials charged with protecting Flint's drinking water. The concerns about the oversight and response of these officials are well-grounded, but I think there are other aspects of the Flint crisis that are not receiving enough attention.

If the Flint system was complying with the Lead and Copper Rule (LCR) under the Safe Drinking Water Act (SDWA), it is difficult to imagine how system managers were not aware of an exceedance of the lead action level within a few months of switching to the Flint River as a water source. There are other SDWA requirements that should have provided additional sources of information and warning. The system should have conducted an initial distribution system evaluation (IDSA). The IDSA combined with compliance with source water monitoring and assessment requirements should have raised alarms about the possibility of a reaction between lead present in the infrastructure and elevated chloride levels in the Flint River. The only way I can see for officials to be unaware of the elevated lead levels would be if they were not complying with the SDWA and its regulations. One lesson we can take from the Flint crisis is the importance of better integrating the IDSA with source water assessment and monitoring. But conducting and updating an IDSA, complying with the LCR, source water assessment, protection, and monitoring requirements, and regular sanitary surveys is very expensive, especially for relatively small systems struggling to recover costs for treatment and distribution because their customers are in difficult or desperate economic circumstances and are thus struggling to pay water bills. The connection between compliance costs and cost recovery is an under-appreciated aspect of Flint.

It's an oversimplification to say, "The crisis in Flint occurred because we had bozos and slimeballs in charge." Even if that is true, there are more lessons to be learned than just a "No Bozos or Slimeballs" hiring policy. Public demands for greater regulation of pharmaceuticals in drinking water could place even more costly monitoring and treatment requirements on systems. In the wake of September 11, systems bear greater security costs. And yet we see protests of water cutoffs for non-payment and opposition to increases in water rates, often in the name of a human right to water. Opposition to water payments occur at the same time federal agencies and state legislatures cut back on funding things like the Monitoring Assistance Program (MAP), which provides funds for small systems to help them comply with SDWA requirements. When systems struggle to recover their costs for treatment and distribution, and can't get help in mitigating increasing compliance costs, they are often forced into making difficult and potentially dangerous decisions to save money, like the switch to the Flint River as a water source. Adam Smith wrote about the Water/Diamond Paradox, noting that we will pay a lot of money for a shiny rock with little use, but believe the most useful thing on earth should be cheap or free. Free or cheap water sounds like a great idea, but its an idea that can contribute to economically and ecologically unsustainable water management. We need to weigh more carefully the benefits of more stringent drinking water regulation against the reality that such regulations have costs, and if those regulations are met but their costs aren't recovered, then something else in the system is going to get shortchanged. This can happen even in a system with no bozos or slimeballs.

The other issue surrounding Flint that has received less attention is the outbreak of Legionnaires' Disease, which has resulted in several deaths. While the oversight and response of officials with respect to the lead levels is troubling, the source and reason for the lead contamination is not difficult to understand. The Legionnaires' Disease outbreak is more difficult to explain. But here's my guess about what might have happened. Elevated chloride levels in the Flint River may have resulted in high disinfectant byproduct (DBP) levels. The DBPs are typically the product of a reaction between disinfectants (like chlorine) and organic material in the source water. DBPs, like trihalomethanes, are carcinogenic at high concentrations. Elevated chloride levels combined with elevated organics in the Flint River may have resulted in an exceedance of the DBP standard under the SDWA. Officials, in response to that DBP exceedance, may have dropped the amount of disinfectant they were adding to the system, resulting in inadequate treatment of bacteria, like the kind that results in Legionnaires' Disease. This raises a couple of issues. The first and most obvious is why is the Flint River so polluted with chloride and organics, and how that pollution can be better addressed. The Flint crisis is not just an SDWA problem, it is also a Clean Water Act problem.

The second issue relates to a paper I just finished. Water law incorporates three "agendas," or set of priorities. I call these the Blue, Green, and Red Agendas. The Blue Agenda deals with water supply and water rights allocations. The Green Agenda deals with chemical water quality and water pollution. The Red Agenda deals with water-borne or water-based pathogens or disease vectors. Often, these agendas are pursued effectively and simultaneously, in ways that are mutually reinforcing. But sometimes, one or two agendas are pursued at the expense of others. Flint is such an example. The Blue Agenda is exemplified by seeking a closer and cheaper water supply, the Flint River. This was done at the expense of the Green Agenda, because it ignored the potential for lead contamination. But if the disinfectant level was dropped to avoid a DBP exceedance, then it is possible that the Green Agenda was pursued at the expense of the Red. In my experience, the Red Agenda is often the set of priorities sacrificed first in implementing water policy. I think the zika virus outbreak is the result, in part, of pursuing the Blue Agenda to address Brazil's drought by expanding reservoirs, but in doing so, Brazil expanding the breeding habitat for mosquitoes. Flint and zika are both examples of the need to better integrate the Red Agenda into water management and water policy.

Posted by Rhett Larson on March 15, 2016 at 03:19 PM | Permalink | Comments (1)

Serial 2:9

With most of Bergdahl’s story now told, Koenig turns in this episode to the negotiations that brought him back.  Koenig doesn’t spend much time exploring whether the decision to trade Bergdahl for the five Taliban leaders was, normatively speaking, “right.”  I expect that the next episode may bring together that normative theme with the other main normative theme – whether the decision to prosecute him was “right.”  I think those two decisions should be viewed independently, but for many, the two are closely linked.  Koenig still has to deal with that issue – the politicization of this case – and and I’m hoping that in the next episode, all of this will come together.  And that might be the season finale (magic number 10?). 

Back to this episode, the folks at Just Security and elsewhere have done a thorough job covering the national security and separation of powers aspects of the trade, and, being a military justice geek, I don’t have a ton to offer beyond what is already out there.  I do think Koenig could have developed a couple of points, and I’ll discuss those below. 

First, Koenig shows us how the Bergdahl negotiations fit into the broader negotiations needed to end the war in Afghanistan, where the official U.S. position was to get Afghans speaking to Afghans to unite their country.  Another big reason for the trade, which she only briefly mentions, is that this helped clear five beds in GTMO – particularly the ones slept in by the Taliban.  With that war ending, the legal justification for holding them without prosecuting them was fading fast – and we really needed to get them out.  Bergdahl may have just been the means to that end.  (Chris Jenks at SMU has argued about that here). 

Second, Koenig states that common response to the trade was, “We negotiated with terrorists to release some terrorists to get back a deserter.”  This statement actually reflects a bigger problem: to Americans, every enemy is a terrorist.  However, I’m not sure the Taliban is terrorists organization, and Koenig doesn’t tackle that issue.  If the Taliban aren’t terrorists, then the truism that we don’t negotiation with terrorists doesn’t apply.

The Department of Defense definition of terrorism is, “The unlawful use of violence or threat of violence, often motivated by religious, political, or other ideological beliefs, to instill fear and coerce governments or societies in pursuit of goals that are usually political.”  (JP 1-02).  In military parlance, that is an “ends-ways-means” definition.  The “ends” are the ultimate goals or the desired end state; the “ways” are the sequence of actions or strategy to reach the ends; and the “means” are the resources or discrete tactics used within the “way.”  Terrorists have a means (unlawful force of violence) within a way (instill fear) to reach an end (political goals).  I don’t think the Taliban’s primary “way” to reach their ends is “to instill fear.”  The U.S. government disagrees with me, but that is largely because we lumped the Taliban in with other terrorists when they did not find and hand over Osama Bin Laden post-9/11.

Rather, I think the Taliban are insurgents.  An insurgency is “[t]he organized use of subversion and violence to seize, nullify, or challenge political control of a region.”  (FM 3-24).  Insurgents can sometimes use terrorist acts (a “means”) and still not be “terrorists.”  When writing the new counterinsurgency manual, Petraeus could have said that insurgents who sometimes commit terrorist acts are “terrorists,” but he didn’t.  He called them “insurgents,” and when he wrote the manual, he had the insurgents in Afghanistan and Iraq (both brutal and sometimes using terrorist acts) in mind.

No doubt, the Taliban is the enemy.  “Enemy” is still a pretty powerful label, and about as bad as it gets.  We try to kill the enemy.  As many as we can.  And someone can say that the Taliban are not terrorists and not be a Taliban apologist or naive pacifist.  I'm saying that, and I was personally involved in planning lots of missions to kill members of the Taliban.  

We may not negotiate with terrorists, but we do negotiate with the enemy, and we always have.  We negotiated with the North Vietnamese and the Japanese and the Germans and the Iraqis – none of them insurgents, but all of them used brutal tactics at the time.  Sometimes we negotiated from a position of overwhelming strength, sometimes we didn’t.  The important point is that labeling the Taliban as terrorists, we have limited our palatable options. 

So, I don’t think the truism applies and it doesn’t bother me if we negotiate with the Taliban.  And here, the Taliban’s demands were not so extreme: don’t lump us in (legally) with al Qaeda and other terrorists; let us have a political office; and give us back our prisoners.  But, current American public perception is that enemy = terrorist, so we have this outrage about negotiating with them.

On to the next (last?) episode!

Posted by Eric Carpenter on March 15, 2016 at 10:28 AM | Permalink | Comments (0)

Twiqbal boldly goes where no man has gone before

In late December, Paramount and CBS filed a copyright infringement action against a small company making a short fan-fiction (Kickstarter-funded) movie, a prequel to the Original Recipe series featuring a one-off character from one episode who also has appeared in some expanded-universe books. The producers moved to dismiss, arguing that the complaint relied too much on information-and-belief allegations and did not specify what works were infringed or how. The plaintiffs have now amended their complaint to include 28 pages of details and photos that serious Trek fans (I confess to having stopped with Original Recipe) will love, including the origins of the Klingon language and the structure of the Federation and Klingon governments.

Litigate long and prosper.

Posted by Howard Wasserman on March 15, 2016 at 10:20 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, March 14, 2016

This should not be surprising

Mark Joseph Stern at Slate reports on Republican-activist "smears" against Jane Kelly,* an Eighth Circuit judge believed to be on the short-list for Obama's not-to-be-acted-upon SCOTUS nomination, through ads attacking her past work as a public defender representing a child molester. Stern decries this as an "attack on the Constitution itself," since it basically makes defending an accused and vindicating his constitutional rights into a disqualifying act.

[*] Some believe Kelly, being from Iowa and having a connection to, and support from, Judiciary Committee Chair Chuck Grassley, is the one Obama nominee for whom the committee will move off its promise of non-action.

But this should not be surprising. It was only two years ago that Republicans, and a number of Democrats, blocked President Obama's nominee for the Civil Rights Division explicitly because he had represented convicted cop killer Mumia Abu-Jamal. This line of opposition is even more expected for a judge, given that it allows for the "soft-on-crime/return-of-the-Warren-Court" attack. Given that, I am surprised that a former PD would even get this far (judges with criminal experience appointed over the past two decades have overwhelmingly come from the prosecutor side).

Posted by Howard Wasserman on March 14, 2016 at 07:40 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Back From Spring Break

Loyola is back in session after a week of spring break, which got me thinking, fellow prawfs: what do you do over your Spring Break? (I'm assuming some significant percentage of you either are, like me, just back or are just entering yours.)

I'll go first, of course. Since my kids' break won't arrive for another month or so, spring break isn't a big travel time for me; mostly, it's catching up on stuff I fell behind on and doing family stuff that needs to be done. But I did get in two big things last week:

  1. I cleaned my office. And that's a big thing. As I throw myself into various writing projects, piles of sources stack up all over my desk. But now those stacks are largely gone, either recycled or organized in places I can comfortably get to them.
  2. I practiced my saxophone. Years (and years and years) ago, I was a halfway decent musician. But the rigors of law school, kids, and apartment living have made playing a lot harder. Still, I love to play and, while my acoustic guitar and electric piano are fun, I miss what was my primary instrument throughout my teenage years. But I got five days of playing in last week, which is probably four days more than I've done in the last ten or fifteen years. Now the trick will be to keep it up when I'm at work during the day.

So how about you?

Posted by Sam Bruson on March 14, 2016 at 12:30 PM in Blogging | Permalink | Comments (4)

Entry Level Hiring: The 2016 Report - Call for Information

Time once again for the entry level hiring report.

I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information we will be aggregating.

Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at slawsky *at* law *dot* uci *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

I will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.

Other links:

This report follows in the tradition of Larry Solum's excellent work over many years. 

2015 initial post, 2015 spreadsheet, 2015 report (with graphs).

2014 initial post, 2014 spreadsheet, 2014 report (with graphs).

2013 initial post, 2013 spreadsheet, 2013 report (with graphs).

2012 initial post, 2012 spreadsheet, 2012 report (with graphs).

2011 initial post, 2011 spreadsheet, 2011 report (with graphs).

All PrawfsBlawg entry level hiring report tagged posts.

Added 3/21/15: Some clarification: the list does not include people who were full-time non-tenure track clinicians who are now moving to a tenure track job at a different school, as these don't seem like true entry-level hires to me. This is the situation where a person is at a school that does not provide tenure to clinicians, and then moves to a school that does provide tenure to clinicians.

The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)

[Originally posted 3/14/16; edited 3/21/15.]


Posted by Sarah Lawsky on March 14, 2016 at 09:00 AM in Entry Level Hiring Report | Permalink | Comments (25)

“The Right of the People to Be Secure in Their [Encrypted] Effects”

A couple of weeks ago, I wrote a post arguing that the Fourth Amendment should be part of the Apple iPhone litigation. My basic point was to criticize current Fourth Amendment doctrine, which focuses so extensively on individual privacy that it seems to exclude power- and security-based arguments that are central to the litigation. This post renews my argument in light of the government’s recent filing in the San Bernardino case.

You might think that the iPhone litigation would centrally concern whether the government’s requested order would undermine the Fourth Amendment’s “right of the people to be secure in their [encrypted] effects,” namely, their iPhones. After all, one of Apple’s main arguments is that compliance with the order would require the creation of new code that would undermine the security of iPhones. The relevant code could be stolen or leaked, for instance—hardly unthinkable in the post-Snowden, post-Sony hack world. Or the government might request or otherwise obtain the code—a possibility that the government has now raised as an alternative form of relief.

Yet Fourth Amendment doctrine has nothing to say about those dimensions of the Apple litigation. As the government observes in a footnote in its March 10th filing:

The search of a smartphone does implicate the Fourth Amendment, but the government has doubly satisfied the Fourth Amendment by obtaining (1) a warrant and (2) the consent of the phone’s owner. Moreover, Apple cannot assert any privacy interests of the phone’s deceased user, the terrorist Farook. 

This argument well reflects that current Fourth Amendment doctrine is focused on privacy-based claims raised by individuals. But that approach misses out on much of what is at stake in the Apple litigation. Even if there is no privacy interest in the phone, or even if any such interest is overcome by the government’s search warrant, the government’s requested exercise of power would still place the people’s security at issue.

With the Fourth Amendment relegated to a footnote, the debate about iPhone user security has instead taken place under the auspices of the All Writs Act—or, more accurately, under the Supreme Court’s New York Telephone precedent that most authoritatively interprets the Act. But neither the Act nor the precedent explicitly calls for direct consideration of the people’s security. As a result, Apple has to present these interests indirectly by arguing that they provide Apple with a “substantial interest in not providing assistance.” As Apple puts it, “Apple has a strong interest in safeguarding its data protection systems that ensure the security of hundreds of millions of customers.” So iPhone users’ interests are not presented as valuable in themselves, so much as indirectly relevant to Apple’s potentially unreasonable “burden.”

The government principally addresses user security concerns by noting that the relevant software can be stored and used by Apple, in a secure facility. And, the government contends, Apple is equipped to defend that code, thereby providing for the security of its customers. This solution calls to mind the recently enacted USA Freedom Act, which prohibited the NSA from storing bulk telephone call metadata: requiring that both Apple’s iPhone code and the telephone call records remain in private hands will help force the government to go to court each time it wants to access to either of those resources. This state of affairs may better promote the people’s security than leaving the code or call records with the government and trusting it to play by the rules. It is plausible that the Fourth Amendment itself requires these kinds of arrangements, so as to check governmental power and ensure the people’s security.

Yet this entire debate is taking place under the auspices of the All Writs Act and so could be rendered moot by the enactment a well-drafted statute. For instance, the political branches could enact legislation that prohibited consideration of iPhone user security when evaluating All Writs Act requests. Or the political branches could go beyond the All Writs Act by requiring that smartphones use encryption with special “backdoors” to enable easy government access. These possibilities should be troubling. It’s all well and good for the parties to interpret the All Writs Act as a statutory stand-in for the Fourth Amendment’s guarantee of security. But, given its text, history, and purpose, the Fourth Amendment should constrain legislation that centrally affects the people’s security in their encrypted effects. 

To be clear, the point is not that Apple or any other business has a constitutional right to thwart law enforcement. Rather, the point is that efforts to empower law enforcement can unreasonably jeopardize the people’s security, contrary to the Fourth Amendment.

Posted by Richard M. Re on March 14, 2016 at 08:00 AM | Permalink | Comments (6)

Sunday, March 13, 2016

Mr. Trump and the creative destruction of the Republican Party

The liberal superego warns that schadenfreude over Mr. Trump’s negative impact on the Republican Party is misplaced because the man’s threat to democratic values is too serious to dismiss. I disagree. Though well-meaning, this warning understates the power of American institutionalism (e.g., Constitutional checks and balances, legal culture, rights-based expectations) to neutralize and, ultimately, absorb the forces mobilized by Mr. Trump.

Instead, I see Trump as a step in the organic restructuring of the Republican Party, along the lines of Joseph Schumpeter’s idea of 'creative destruction.'.  Schumpeter praised capitalism’s ability to – through disruptive ferment – undo status quos to make way for better products and technologies. Sometimes we use market analogies to model public processes (‘market of ideas’) and this one may fit.

President Obama, in particular, has been very clear Trump is merely the fittest vehicle (in a Darwinian sense) for political values nurtured by GOP elites. Cf: except for his politically incorrect views on race and immigration, Trump is easily a moderate Republican given his other views, e.g., support for Planned Parenthood, gay marriage, income taxation, but that would take a separate blog entry; hence moderates like Bill Weld could support him 

The President is wrong, though, when he says that he did not cause this process. It seems obvious to me that the Obama administration has been the cause-in-fact (not proximate cause) of the political processes that culminate in Mr. Trump’s Hunger Games march to the Republican nomination.

Obama personifies the cultural threats felt by first the Tea Party backlash and now the Trump circus. And in playing down the catalytic role that he has had in the current state of Republican reaction, Mr. Obama is in danger of not appreciating (maybe it’s intentional) that his presidency is as serious an inflection point as those of Roosevelt and Reagan.

Roosevelt put in the motion the Liberal Establishment and the construction of the administrative/welfare/federal state. From 1933-1981, there were only three Republican presidents (Eisenhower, Nixon, and Ford), each of whom would probably be branded too progressive by today’s Republican party. Reagan personified the next shift, the rise of the counter-establishment. (Sidney Blumenthal has a wonderful book about this ).

Probably the most important Reagan-era consequence in the legal academy is the development of the Federalist Society and its remarkable efforts to rebalance the federal judiciary, including the Supreme Court. From 1981-2009, Clinton was the only Democratic president, yet even many of his policies reflected the Right-ward shift in discourse and public culture.

Obama is a third inflection point. No New Dealer, he is an administrative wonk in terms of regulation, although he lacks some of the knee-jerk liberal tendencies associated with Democrats. Obama synthesizes strains of the liberal and conservative establishments, but he pivots in some new direction with racialized and multicultural dynamics too complex too parse here. And it’s not clear how this turns out in the history books.

Trump represents how the Republican party adapts to this new phase. He’s not dangerous to our liberal democracy, which could not tolerate a Berlusconi, Perón, or Franco, let alone a Hitler. He’s only dangerous to the current incarnation of the Republican Party.  Maybe something has to die for something better to come along.

Posted by Jose Gabilondo on March 13, 2016 at 11:24 AM | Permalink | Comments (0)

Saturday, March 12, 2016

Religious Accommodations and Third-Party Harms at Pepperdine

I had an engaging and helpful conversation yesterday, in the context of two panels at an ongoing, fascinating conference at Pepperdine, "Doing Justice Without Doing Harm," sponsored by the Nootbaar Institute on Religion, Law & Ethics.  A group of us discussed various aspects of the problem of identifying, describing, and justifying the limits on accommodations of religion, with a primary focus on the recent and important article on the subject by Profs. Douglas NeJaime and Reva Siegel.

In my own remarks, I tried to engage (and push back on) the article's claim that we and the law should be hesitant and concerned about granting accommodation claims that touch on matters in "democratic contestation" or concerning with there is ongoing "political mobilization."  I suggested that, in a way, this claim is a reworking of the Lemon reasoning (with which I took issue here) that the Establishment Clause authorizes judges to identify and invalidate laws that risk "political divisiveness along religious lines."  

Posted by Rick Garnett on March 12, 2016 at 05:17 PM in Religion | Permalink | Comments (0)

Friday, March 11, 2016

Visualizing Last Night's GOP Debate

So finally last night I watched my first presidential debate. (Why wait until now? Primarily because (a) I don't have cable, and (b) the debates usually come on right around my kids' bedtime.) And, based on the after-debate commentary I've heard about the other GOP debates, this was probably a good one to start with, it being higher on substance and lower on scatology. And shouting.

Still, around the hundredth time I heard Trump say the word deal, I started to wonder: what would a word cloud of the candidates' debate performance look like? So I present here, as a public service, a visualization of the candidates' messages from last night. (The transcript I used is here.) 

Ted Cruz

I was surprised to find out that Cruz spoke the least in the debate last night: he only said about 3,578 words. They looked like this:


John Kasich

Kasich got 3,590 words in during the debate:



Rubio managed to say 4,609 words last night.



Not surprisingly, Trump spoke the most last night with 5,002 words last night. And, although deal isn't the biggest word in the bunch, frankly, my intuition wasn't that far off.



Special Bonus

Last night, David Lat provided a Twitter version of my final word cloud: 

Posted by Sam Bruson on March 11, 2016 at 11:47 AM in Culture | Permalink | Comments (0)

Thursday, March 10, 2016

Hello. My name is Rhett Larson. And I angst over article submissions.

I never post under the angsting thread provided here at Prawfsblawg for those submitting articles for law review publication. I don't provide any information from my submittals. But when I submit an article, I follow the angsting thread pretty religiously until my article finally places. My behavior (and I hope I'm not alone) strikes me as bizarre and raises questions about myself that I'm afraid to answer. Why do I angst about article placement at all?

I was understandably concerned about article placement when I was going on the job market. For better or for worse, placement is seen as a proxy for article quality by many appointment committee members, especially at the early FAR form screening stage when it is impossible to read every paper. But at this stage in my career, why do I care about placement so much? My law school colleagues understand the capriciousness of the process and look closely at the quality of the work. Others who want to read and engage with my work will have no trouble finding it on Westlaw or SSRN. The people who will review my tenure file will read the articles and evaluate them on their merits (right?). So why do I worry about placement? Maybe I'm just needlessly competitive. Yeah, one game of Uno really isn't that big of a deal, and its outcome is probably as arbitrary as the submissions process. But I'd be lying if I told you that getting hit with a "Draw Two" card didn't sting a little. Or that I don't enjoy laying down a "Reverse/Reverse/Skip/Wild Card Draw Four" on my own kids. Also, why don't I just provide the information I have about my own submittal in the angsting thread? There's no harm in it at all. I don't know how valuable the information really is, but I must think it has at least some value, or I wouldn't keep checking the thread. I'm just free-riding on the generosity of others with no excuse.

I want to tell myself that I read the angsting thread just to stay abreast of which journals are open and active, and that I don't provide my own information because I'm too busy. But that's not true. I think I'm trying to act cool to fool those around me, and myself, into believing that I'm above it and that I have perspective. But I'm not and I don't. Ultimately, I am primarily concerned with getting my ideas out there and advancing the conversation about water law and policy. But as long as doing that involves spinning the wheel, I might as well win the Showcase Showdown. And I understand the arguments in favor of peer reviewed journals, and I've gone down that route as well as both an author and reviewer. But there are some frustrating aspects about that process, not the least of which is timing. I just finished an article that deals with both the water crisis in Flint and the ongoing zika outbreak, and I'm grateful for the student journal process that allows me to get work out faster when the issues addressed are timely.

I'm afraid that the best explanation for my irrational angsting and selfish attitude can be conveyed by relating some recent internal dialogue I had at a convenience store checkout line. I had been in meetings on our state general stream adjudications (in which I serve as a mediator) all day, and hadn't had lunch. I stopped off at convenience store to grab a diet cola (another unreasonable addiction, only much worse and far less rational than my article angsting). I saw a king sized Snickers bar next to the register as I approached the cashier. I thought, "Well, I haven't had any lunch, so I should probably buy that Snickers bar. After all, Snickers really satisfy you." The reason I angst over my articles like a freeloader is the same reason I buy a Snickers bar as a lunch replacement based on its advertising campaign. 



Posted by Rhett Larson on March 10, 2016 at 03:42 PM | Permalink | Comments (5)

Why does it matter (redux)?

In December, I wondered why it mattered whether Donald Trump was "a racist," as opposed to just a person who said racist things. That question is back, thanks to questions at last night's Democratic presidential debate. Both Clinton and Sanders were asked whether they consider Trump a racist; both condemned the things he said, while refusing to put a label on him.

But, again, how cares? If someone says racist things, I know not to vote for him for President. Why does it matter whether the label is formally attached to him? And, in particular, why does it matter whether his potential political opponents attach the label to him?

Posted by Howard Wasserman on March 10, 2016 at 09:25 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Scalia & Litigant Autonomy, Part 2

In a previous post, I discussed how Justice Scalia seemed to think laws creating claims for individualized relief generally also vest claim-holders with substantive rights to control their own claims. In this post, I want to explore some problems with substance-izing claim-control.

First, though, here are a few (very significant!) consequences of this Scalia-ian conception of claim-control:

• Once we view claim-control as a substantive entitlement, its tough to see how courts can interpretively extend the scope of mandatory classing (e.g. under Rules 23(b)(1)(B) and 23(b)(2)) much beyond current boundaries without butting up against the Rules Enabling Act’s ban on procedures that alter or abridge substantive rights. 

• Viewing claim-control as a substantive entitlement removes rulemakers’ flexibility to expand mandatory classing via Rules amendments, again thanks to the Enabling Act.

• This conception of claim-control also restricts states—if individualized claim-control rights are embedded in federal rights of action for individualized relief, that leads to reverse Erie constraints on state mandatory class action procedures.

• Conceptualizing claim-control as a substantive right requires conceptualizing the class as an aggregation of individually controlled claims, ratter than as a juridical entity (i.e., a fictive party subject to legal consequences that vest independently of the choices of individual class members). And as my friend and future co-author Andy Trask notes, the Roberts Court has indeed tended to reject the entity model. Yet, even today, there are any number of judge-made rules that seem to accept the entity view of the class. Although some of these penumbral doctrines might be reconcilable with the view that claims confer a substantive control entitlement, others—particularly, the rule that the class counsel represents the class as a whole and so can settle individual class members’ claims over their objections—seem harder to justify in a world of substance-ized claim-control.

Some might respond to this (partial) list of consequences with a shrug: The restriction on mandatory classing is a feature of the theory, not a bug. And if some aspects of class action doctrine are, at the end of the day, inconsistent with a substantive conception of claim-control—this is a problem with these doctrines, not with substance-izing claim-control.

And that response seems totally right!—if rights to control claims are, in fact, part of the underlying right of action. The problem is that substance-izing claim-control rights doesn’t, on closer examination, really wash.

Here’s Ernest Young: “[E]ven in statutory cases, legislative intent about which plaintiffs ought to be permitted to sue will generally be fictional. Congress will not have addressed the problem, and the courts will need to rely largely on default presumptions.” “[T]he Court will need to recognize that it cannot do without prudential rules [that specify who can sue] entirely,” Young continues in another article. “Then the hard work of specifying which prudential rules are legitimate, which are not, and why can begin.” (my emphasis).

Yeah, careful reader, I know--he’s not writing here about class actions. He’s writing about the jurisdictional (and quasi-jurisdictional “prudential”) law of standing. But his point is equally applicable to class action law’s litigant autonomy norm.

The reality (I argue in the first part of this article, which, like this cute puppy, is still looking for its forever home, law review editors) is: Lots and lots of rights of action just don’t specify claim-control rights. And the inferences we can draw about legislative intent from background assumptions are actually pretty inconclusive—its been a long, long time since there was anything like a consensus in our law or legal culture about who, among a class of injured parties, ought to control their claims. That leaves the “usual rule that litigation is conducted by and for the named parties only” looking an awful lot like a judicial custom, informed, like the law of prudential standing, by both constitutional and forum-specific institutional values.

At the end of the day, the Scalia-era equation of that custom with substantive law did some good by reminding courts that they also need to be attentive to case-specific policies of the underlying substantive schemes when thinking about how much control class members should exercise over their own claims. But, even so, turning our attention in this direction answers fewer questions than we hoped—leaving those who want to put the Court’s treatment of litigant autonomy in the law of class actions on firmer footing with lots more work to do.

In a future post, I’ll suggest some overlooked avenues defenders of the Court’s cases might pursue.

Posted by Mark Moller on March 10, 2016 at 01:41 AM in Civil Procedure | Permalink | Comments (4)

Tuesday, March 08, 2016

Nixon, Burger, and timing of nominations

In an earlier post and comments, I predicted that there would not be someone in Justice Scalia's seat, ready to hear arguments, until the beginning of OT 2017. That prediction, which I discussed on a Fed Soc panel this afternoon, rests on three assumptions: 1) The Senate will not confirm an Obama nominee; 2) The new president will not nominate someone on Day 1 or 2 of her presidency and it may take a few weeks or months; and 3) confirmation, even with a Senate majority of the same party, will take about 2-3 months from nomination. This means it is highly unlikely we will have someone confirmed by the end of April, the date of the Court's final sitting for OT 2016. The next opportunity for the new Justice to participate in arguments and conferences is September (with the Long Conference) and October (the new term).

The second assumption may seem contestable. After all, this vacancy is going to be an explicit issue in the campaign and the new president takes office aware of the opportunity to save or shift (depending on who is president) the ideological/philosophical balance on the Court. But it seems to me the new President has to deal with too many more pressing issues, particularly executive-branch appointments, that take precedence over even a Supreme Court appointment.

Moreover, we have precedent for this situation--Richard Nixon. Nixon took office in January 1969 knowing that he could replace Earl Warren as Chief whenever he wanted.* Nixon campaigned against the Warren Court, so he certainly was no less aware of this opportunity than President Trump or Clinton will be.  Yet Nixon did not nominate Warren Burger until May (he was confirmed a month later). True, there is a distinction--the current nomination fills a vacancy and gets us away from a rump Court, while the Court in spring 1969 was working with the statutorily established membership, which may add some urgency to the former.. But Nixon no doubt wanted Warren off the Court as soon as possible, so he had as much of an incentive to make the appointment as soon as possible.

[*] Warren had tendered his resignation to Pres. Johnson in spring 1968, effective upon appointment of a successor. This meant that Warren would leave office as soon as a President--Johnson, Humphrey, or Nixon--appointed a successor.

Does anyone know the story of the dynamics in the White House regarding the Burger appointment? Does anyone have thoughts on why it might have taken so long? If it is simply that other things take priority, is there any reason to believe it would be so different this time around?

Posted by Howard Wasserman on March 8, 2016 at 07:26 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Dean Search: Concordia University School of Law

Concordia University School of Law is searching for a new Dean: http://law.cu-portland.edu/about/school-law-dean-search

Please consider applying if you are qualified, and spread the word to colleagues who would be interested.  If you have any questions, Chad DeVeaux ([email protected]) is on the search committee and would be happy to help.

Posted by Howard Wasserman on March 8, 2016 at 05:45 PM in Teaching Law | Permalink | Comments (0)

Standing in the DAPA Case

Thank you to Howard and to the PrawfsBlawg community for the opportunity to blog here again.  I'll start with some thoughts on standing in United States v. Texas, the DAPA case scheduled for argument on April 18th.  (I previously blogged about this question over at Notice & Comment when the case was before the Fifth Circuit.)  The United States has filed its merits brief, which nicely illustrates that questions of government standing can't be answered by Article III alone.

The Solicitor General's brief begins (at 18) its discussion of standing by dutifully reciting the “‘essential and unchanging’ Article III requirements” of an injury in fact, causation, and redressability. Before long, however, we get to the meat of the argument, which has nothing to do with Article III and everything to do with the constitutional structure of nationalism and immigration policy: “The Constitution reserves exclusive authority to the National Government to make and enforce immigration policy. The Nation requires uniform policies that may depart from what some individual States might prefer. Allowing claims like those respondents press here to proceed would upend the constitutional design by enmeshing the courts in all manner of disputes between the federal government and a State, or competing factions of States, over immigration policy.” (Br. 19) Again and again the Solicitor General returns to these “structural principles” (Br. 23 n.6) and the “complex[ity of] debates over immigration policy (Br. 12) to argue that the states do not have standing under the Constitution to challenge DAPA.

Questions of government standing cannot be answered simply by peering into Article III’s “cases” and “controversies” requirement. What’s required are normative judgments about contested constitutional and prudential questions, a point that I’ve made here and here. As Tara Leigh Grove has discussed in her forthcoming and important article on state standing, “background principles” will do much of the work in government standing cases whether we’re explicit about them or not.

One question is whether standing doctrine should depend upon contestable judgments about policy and constitutional structure. In an early and now-classic critique of modern standing jurisprudence, Gene Nichol argued that standing doctrine’s being asked to do too much. More recently, Heather Elliot’s argued it hasn’t gotten better since Nichol’s critique.

I’ve been sympathetic to the “powerful challenge” that standing minimalism poses to those of us who think standing doctrine should incorporate normative judgments about structure and enforcement design. But I think there’s a class of cases, of which United States v. Texas is one, that remind us why these judgments come to the fore when a government seeks standing to put federal judicial power in motion.

Posted by Seth Davis on March 8, 2016 at 05:00 PM | Permalink | Comments (1)

Remembering Influential Law Professors

I am so sad to hear about the passing of Elizabeth Garrett. She was my torts professor, and she was a wonderful teacher. I was always very reluctant to ask my professors for help or advice. I'm not really sure why - I'm not generally a shy person. I worked at a law firm for three years without a garbage can in my office. I kept a garbage sack in my office, and each night, I would take my own garbage out. One night, someone saw me and asked why I didn't just ask for a garbage can. I said, "Well, I don't want to bother anyone." She looked at my like I was crazy, and I totally deserved it. She then handed me my own garbage can. The same impulse that kept me from asking for a garbage can kept me from asking for help from my professors. Professor Garrett asked a group of students to come to her office for an informal chat. For whatever reason, that made it easier for me to approach her outside of class. I have always remembered how she made that extra effort to get to know her students. I have tried to emulate her example as a teacher, knowing that there are students like me who will not ask for my help or advice unless I am the one to reach out first. Like Professor Garrett, I want them to know that not only is it okay to ask, but I want them to and I'm happy to help.

I became a law professor in part because of teachers like Elizabeth Garrett. I had a transformative law school experience because of many great teachers who challenged and encouraged me. One of the most influential law professors in my life is someone from whom I never took a class.

My wife and I arrived in Chicago several weeks before the beginning of classes my 1L year, to have some time to get to know our new city. Funds were very limited, and we inquired at the Law School whether there might be any short term paying jobs. As luck would have it, the Law School was refinishing the doors on all of the professors' offices. The doors would remain unlocked and open during the day. We were hired to spend a few weeks watching the doors to make sure no one entered the offices, and then make sure the doors were closed and locked at the end of each day. We were literally being paid to watch paint dry, and we had a wonderful time.

One day, as I was sitting watching paint dry, a man exited one of the offices and asked for my help reading some mail. His eyesight was fading, and his reader (a machine that illuminated and magnified letters and books) was not working. I said I would be happy to help. The name on the door of the office was Bernard Meltzer.

I knew a little about Professor Meltzer - that he had been a prosecutor at Nuremberg and an arbitrator for Major League Baseball. He was an emeritus faculty member at the time, but still came into the office most days. We struck up a friendship that first summer, and he hired me as his research assistant for my 2L and 3L years. I would pick him up in the morning at his home and drive him to the office, and then drive him home in the evening. As "payment," he would give me vegetables from his garden, and we would make salsa from those vegetables which we would then share with his family. Once a week, we would go to lunch together to talk about his projects, and about my papers and classes. He gave me advice that I still give to all of my students. "A great lawyer is three things. First, a great lawyer must be a good person, someone with integrity and kindness. Second, a great lawyer is a great writer. And third, a great lawyer knows how to negotiate and reach a compromise." When we would discuss cases, he would ask me a question I still ask my students with each case, "How would you have kept this out of court? What compromise might have been acceptable to both parties?" He refused to ever use the elevator, even though his office was on the sixth floor. His passion and curiosity were inspiring, humbling, and exhausting. I would think, "If I could just be half the lawyer, scholar, teacher, and man he is, this crazy law school idea will be worth it."

I am not half-way there yet. But the crazy law school idea has been worth it because of people like Professor Garrett and Professor Meltzer. I miss them both, but they continue to teach me with their examples.

Posted by Rhett Larson on March 8, 2016 at 01:25 PM | Permalink | Comments (3)