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Wednesday, October 31, 2018

"Volunteering for Execution" (again)

Reading and thinking about this Bloomberg news-item ("In Unusual Capital Fight, Inmate Gets His Wish and Gets Executed") took me back to a Prawfsblawg post of mine from more than ten (!) years ago.  Reacting to a then-recent decision by the U.S. Court of Appeals for the Ninth Circuit, I wrote: 

The term "death-row volunteer" probably sounds strange -- do people really "volunteer" to be on death-row? -- but, nonetheless, it describes reasonably accurately a not-insubstantial number of those convicted murderers who have been executed in the United States since 1976.  (For more detail on the death-row-volunteer issue, see this paper of minefrom a few years ago.) 

Today, the indefatigable Howard Bashman reports, the en banc United States Court of Appeals ruled that Robert Charles Comer, who was sentenced to death in Arizona, was "competent" to waive further proceedings relating to his federal habeas corpus petition and that he had, in fact, "voluntarily" waived those proceedings.  In a nutshell, the Ninth Circuit ruled that, notwithstanding the possibility that legal errors had infected his capital-sentencing proceedings, Comer could prevent judicial correction of those errors by "volunteering" to be executed, in accord with his death sentence.  (The court rejected the argument, advanced by Comer's counsel -- who were arguing, obviously, against Comer's stated wish to volunteer -- that Comer's "volunteering" was the product of harsh prison conditions.)

What should we think about this case?  How should we think about death-row volunteers generally?

Perhaps the most famous death-row "volunteer" was Gary Gilmore, who imagined himself something of a romantic outlaw-hero.  As is described at (great) length in The Executioner's Song, he fought, bitterly and publicly -- with the help of some publicity-hungry lawyers -- the efforts by the ACLU, his own mother, and others to prevent his execution.  Gilmore insisted, in an open letter to the ACLU, "I know what I did. . . .  I know the . . . effect it had on the lives of two families.  I'm wiling to pay ultimately.  Let me!"  "Butt out of my life," he demanded.  To which the ACLU responded, "We don't think the world is obliged to be governed by your preference. . . .  We are not imposing our wants and attitude on you.  We are seeking to impose humanity and decency upon the state of Utah."

So, again, how should we think about Gilmore's or Comer's case?  On the one hand, we might follow a commitment to "autonomy" where it (appears to) lead, and say, something like, "we don't approve of the death penalty, but it's legally authorized, and it's your choice."  As it happens, though, most lawyers for death-row inmates who flirt with volunteering -- and many do -- are willing to contest their own clients' efforts to volunteer and to contest, if necessary, their own client's decision-making capacity.  Here is a question:  If one opposes capital punishment on the ground that it is inconsistent with a commitment to human dignity, is that commitment undermined or impeached by efforts to paint one's client as "incompetent" in order to prevent him from pursuing a course that one believes will result in immoral state action?

I once represented a man who was living -- like Comer -- on Arizona's death row.  He twice "volunteered" -- or started to -- but was dissuaded.  If he had not changed his mind, though, what should I -- or another lawyer who opposed the death penalty but also knew that the inmate was not delusional, just tired, lonely, and remorseful -- have done?

By way of an update:  A few years I posted the above, the person I represented had his death sentence vacated (thanks to the hard work of other lawyers).

Posted by Rick Garnett on October 31, 2018 at 10:11 AM in Criminal Law, Rick Garnett | Permalink | Comments (5)

Tuesday, October 30, 2018

Judicial departmentalism and birthright citizenship

The President announced plans to issue an executive order that would deny citizenship to children born in the U.S. to non-citizen parents. Assume: 1) Trump (or the attorneys and aides advising him) genuinely believes this is constitutionally valid, on the best understanding of § 1; 2) § 1 of the Fourteenth Amendment guarantees birthright citizenship (i.e., Trump and his attorneys are wrong); and 3) the Court has given no signals of intent to move from its current interpretation of § 1.

So how should we speak about what Trump is proposing? Should we say he is acting unconstitutionally? Is that fair, given that he is an independent constitutional actor who believes in the validity of what he is doing? How might we otherwise describe it? If we accept the President's independent constitutional interpretive authority, can he exercise it even if he knows he will lose once the dispute reaches court? Or is his power more limited, to those situations in which he has reason to believe (from some judicial hints) that the Court may move off the judicial interpretation, so defeat in court is not guaranteed?

Posted by Howard Wasserman on October 30, 2018 at 11:29 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (14)

Monday, October 29, 2018

VAPs and Fellowships: Open Thread, 2018-2019

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

You may also add information to the spreadsheet.

Posted by Sarah Lawsky on October 29, 2018 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (197)

Saturday, October 27, 2018

Update on the Yiddishe World Series

We are three games into the 2018 World Series, featuring one Jewish player on each team. The first two games, both Red Sox wins, were quiet on this front. Ian Kinsler started both games at second for the Red Sox and was a combined 1-for-7 with an RBI. Dodgers outfielder Joc Pederson did not start either game; he was one of the Dodgers' four top hitters, all left-handers, who did not start against lefty starters, although he entered both games late, going 0-for-3 combined.

Game Three, an 18-inning Dodger win and the longest game in World Series history, had the Great, the Good, and the Ugly for the Chosen People.

The great:



Sandy Koufax gave Dodger starter Walker Buehler a standing ovation as Buehler left the mound after pitching seven innings of two-hit shutout ball with nine strikeouts. Koufax is two months shy of 83 and looks as if he still could pitch.



The good:

Pederson gave the Dodgers a 1-0 lead with a home run in the third. But for a blown save, that would have been the game-winning hit.

The ugly:

Kinsler. Inserted as a pinch-runner in the 10th, Kinsler was almost picked-off first. He was called safe and the call upheld on replay review, although it was close. Kinsler then advanced to third on a single, but overslid third base and barely scrambled to get his foot back on the base before being tagged. He then was thrown out trying to score on a fly ball to center. The throw was off-line, up the third-base line. But Kinsler got such a slow break off third that he basically ran into the tag about fifteen feet before the plate.

Then, with the Sox up 2-1 with two out in the bottom of the 13th, Kinsler's wild throw on a grounder up the middle allowed the tying run to score and the game to continue for five more innings and a 14th-inning stretch. Game Four in about nine hours.

Posted by Howard Wasserman on October 27, 2018 at 10:36 AM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Friday, October 26, 2018

Don't be a lawyer

We are big fans of Crazy Ex Girlfriend, especially the music. Tonight, the show takes on law school and practicing law. Enjoy.

Update: Having seen the episode, the main plot development is the lead character deciding she does not want to be a lawyer anymore (although she is shown as being good at it). I must admit to expecting her to decide midway through the episode that she instead would become a law professor.

Posted by Howard Wasserman on October 26, 2018 at 09:24 PM in Howard Wasserman, Teaching Law, Television | Permalink | Comments (2)

Thursday, October 25, 2018

On the Georgia voting case

A district judge in the Northern District of Georgia on Wednesday preliminarily enjoined enforcement of certain regulations, specifically the "exact match" requirements for absentee ballots. Plaintiffs were three voting-rights organizations and a number of individual voters. A few thoughts:

• This is the type of case that Amanda Frost highlights as appropriate for universal* injunctions--time-sensitive and on a large scale. But this case also shows ways to extend the scope of the injunction by extending the scope of litigation. The court found that the voting-rights organizations had direct standing, given the burdens the regulations placed on them in having to notify the public of this problem. The organizations also argued associational standing on behalf of their members, although the court did not address that. The case also would have been perfect for a 23(b)(2) class and the court could have entered a classwide preliminary injunction prior to certification.

[*] Another reason "universal" works better as a term--an injunction halting enforcement of state law can be universal in extending beyond the parties, but not nationwide in any sense. And to then have nationwide and statewide injunctions would add a layer of nomenclature to the identical problem.

• It is interesting that no political party or campaign sued and attempted to assert third-party standing on behalf of voters (the typical path to broad injunctive relief against voting restrictions). This illustrates the way in which the franchise has become a partisan issue--one party wants to make voting more demanding (put aside whether the reasons are valid or not), the other party wants to make voting easier and available for more people (again, put aside whether for valid reasons or not). So a party jumping into a lawsuit, even to protect a neutral principle such as the right to vote, will appear to be acting for partisan advantage. This is especially true in Georgia, where the person making and enforcing the restrictions is a candidate for governor.

Posted by Howard Wasserman on October 25, 2018 at 11:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

When a colleague suddenly walks around in new tennis shoes...

An excellent article in the New Yorker about trade secrets, talent mobility, and Google v. Uber in the race for self-driving cars. The bonus is an inside view of the Silicon Valley culture, including as Mark Lemley put it to me, "perhaps the most Silicon Valley fact ever:"

Project Chauffeur employees began calling in sick so that they could interview with other firms or with venture capitalists. People started paying close attention to their co-workers’ shoes. “The only reason an engineer buys new, expensive sneakers is if they’re looking for a new job,” one person told me. Project Chauffeur’s hallways were suddenly filled with unscuffed Pumas and Allbirds. 

Posted by Orly Lobel on October 25, 2018 at 12:51 AM | Permalink | Comments (4)

Wednesday, October 24, 2018

Two worth reading

Light week, but I wanted to link to two pieces worth reading.

The first is by Brooke Coleman (Seattle) on the unrepresentative composition of the Rules Committees (as appointed by the Chief). The second compares the linguistic paternalism and authoritarianism of the LGBTQ+ movement to the anti-porn feminist movement of the 1980s.

Posted by Howard Wasserman on October 24, 2018 at 04:58 PM in Howard Wasserman | Permalink | Comments (2)

Tuesday, October 23, 2018

JOTWELL: Lahav on Frost on nationwide injunctions

The new Courts Law essay comes from Alexandra Lahav (UConn), reviewing Amanda Frost, In Defense of Nationwide Injunctions (N.Y.U. L. Rev., forthcoming). My views on this subject are well-known here. Amanda visited FIU last week to present her paper and to debate  injunctions for several student organizations.

Posted by Howard Wasserman on October 23, 2018 at 10:37 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, October 22, 2018

70 Years of the International Law Commission

This Friday and Saturday, FIU Law Review will host 70 Years of the International Law Commission: The Role and Contributions of the ILC to the Development of International Law. It is organuzed by Charles Jalloh, my colleague at FIU and a member of the ILC. The roster includes judges, scholars, and ILC members from around the world. Friday schedule is here, Saturday schedule is here. It will be live-streamed, so plan to check it out.

Posted by Howard Wasserman on October 22, 2018 at 09:31 AM in Howard Wasserman, International Law, Teaching Law | Permalink | Comments (0)

Sunday, October 21, 2018

Infield Fly Rule as Mitzvah

On last week's edition of Tablet Magazine's Unorthodox podcast, a listener letter (read at the 1:07 mark) argues that baseball is the most Jewish sport, because it has "long tradition, weird and obscure rules that are subject to interpretation and doesn't change on a whim."

I like it, but it got me thinking: Which of the 613 Mitzvot is analogous to the Infield Fly Rule?

Posted by Howard Wasserman on October 21, 2018 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (3)

Friday, October 19, 2018

Misapplying pleading

Attorney David Lurie criticizes the lawsuit by former DNC employees and Democratic donors against the Trump Campaign for its role in disseminating the Wikileaks documents. I largely agree with his substantive First Amendment points, at least absent some stronger connection between the campaign and the Russian hackers and/or Wikileaks.

My concern is this paragraph:

But absent a basis to assert that that Trump campaign reviewed or otherwise knew of what was actually contained in the emails, the plaintiffs’ allegation that the campaign launched a scheme with the Russians to plot out the dissemination of materials to “maximize their political impact” seems to be based on speculation, not facts. And the plaintiffs’ claim that the Trump campaign knew that their private information, or that of others, was going to be disseminated seems all the more speculative.

A later paragraph allows that "if the Mueller investigation ultimately does provide evidence that the Trump campaign actually “partnered” with the Russian government to publish the stolen DNC documents, a civil lawsuit could well be the very least of the president’s problems."

Both of these statements ignore the nature of civil pleading in federal court. At least before Twiqbal turned it into something different, pleading is supposed to be based on the plaintiff's allegations that may be speculative, because the plaintiff often/usually does not and cannot know at the outset what other people or organizations knew or did. That is what discovery is for--to uncover and obtain evidence to support those allegations. To require more before the plaintiffs have had an opportunity and authority to obtain information creates an impossible situation. Moreover, it should not only be for the Mueller investigation to provide evidence--civil litigation also exists to provide evidence of misconduct, in the course of proving that civil wrongdoing occurred. Lurie's argument is consistent with Twiqbal's approach to pleading; I do not think it wrestles with that problem.

Again, I believe the complaint is defective for other reasons--it alleges less collusion between the campaign and the Russians and more "advantage gained," which is not sufficient under the First Amendment. But the speculative nature of the allegations of what happened should not be a problem at the pleading stage. And this case illustrates the problem.

Posted by Howard Wasserman on October 19, 2018 at 03:43 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (5)

Thursday, October 18, 2018

Do Body Cameras Improve Police Conduct?

The police technology discussion tends to focus on privacy issues rather than equality issues—although there is a growing body of scholars to look to equality to critique the new technology. Privacy has dominated much of the body camera debate; but equality issues have also driven much of the movement towards demanding body cameras. The egalitarian argument is that body cameras restrain police use of force by providing an "angel on the shoulder" of the officer, whose deployment of force may well become public.

The problem with this argument, as with much of the body camera debate, is that there is very little data to go on. The "angel on the shoulder" argument depends heavily upon the results of the first, brief study in Rialto, California. More extensive studies in Mesa and Pheonix, Arizona, found that the "angel" effect dropped off after about six months or so. The police became more forceful, and complaints rose. The studies also found that the police were more likely to arrest, rather than release, individuals when they wore body cameras. And the effect on criminal prosecutions depended heavily on access to the cameras, and in particular, whether the prosecutor reviewed the footage, which did not occur in most cases.

One way to read the studies is that supervision really matters. So long as the patrol police think their conduct will be made public or reviewed by a supervisor, they will restrain themselves. When they discover that no-one is reviewing the footage, they return to policing as normal. The footage may have important benefits for defense counsel in humanizing their clients and providing important evidence during a criminal trial. That view is currently anecdotal and needs some further study.

Body cameras are promoted as if they will transform policing. They will not. The problems of police patrol are not driven by the willingness of police officers to restrain episodically, during encounters with civilians. The problems of police patrol concern the distribution of policing, and the style of policing that civilians encounter and endure. So long as the governing monolithic mode of policing is forcible presence on the street in which the dominant role is to establish an unquestioned but temporary physical presence in the community, policing will continue to do what it does least well. Policing could instead establish shared, local, consensual norms coalescing around establishing justice and addressing injustice, including pressing for more livable communities, with better facilities, that are accessible to all. Having a body camera record a flawed policing method will not make that method better. Nor will it encourage trust within those communities that must bear the brunt of forcible policing.

Posted by Eric Miller on October 18, 2018 at 01:08 PM | Permalink | Comments (4)

Historical baseball note

S-l300This may prove premature; if so, I apologize. The Red Sox and Dodgers, two of MLB's historic franchises, are each one game away from the World Series, so I had to look up whether they had ever met in the World Series in those long histories. The answer is in 1916, when Babe Ruth was the Red Sox star pitcher and the team from Brooklyn was known as the Robins. The broadcasters could have fun with this one.

Posted by Howard Wasserman on October 18, 2018 at 06:58 AM in Howard Wasserman, Sports | Permalink | Comments (1)

Wednesday, October 17, 2018

SLAPP dismissal of Stormy Daniels' defamation suit

Judge Otero of the Central District of California dismissed Stormy Daniel's defamation action against President Trump under the Texas anti-SLAPP statute, holding that the President's tweets were rhetorical hyperbole and imposing attorney's fees under the statute.

Three quick thoughts.

The basic point about rhetorical hyperbole is correct as a matter of the First Amendment. I think the basic premise of this defamation suit is problematic--"A accuses X of doing something, X denies it, so A sues X for defamation for calling her a liar."

Anti-SLAPP suits are swallowing the First Amendment  as a defense to defamation, in a way I do not believe the statutes were intended to do. SLAPP stands for "strategic lawsuit against public participation." The paradigm that motivated these laws was Wal Mart bringing a defamation suit against a citizen who spoke at a city council meeting against a proposal to build a Wal Mart in town--where the lawsuit is designed to deter citizens from engaging in the public discussion. The statutes were geared towards situations with power and money imbalances (hence the fee-shifting), where the point of the suit is to make people think twice about engaging in public discussion over these matters. Not every defamation suit is a SLAPP suit. It certainty does not fit this suit--a defamation claim against the wealthy President of the United States over his obnoxious tweets, with no realistic prospect that anyone will be deterred from public participation. This seems a case that should be left to the First Amendment (especially given the court's focus on rhetorical hyperbole, a First Amendment concern).

The circuit split continues over whether SLAPP statutes apply in federal court. But this case offered several wrinkles. Texas law applied, so C.D. Cal. was applying the Texas SLAPP statute, which the Fifth Circuit has not yet determined applies in federal court. And because the case was transferred from the Southern District of New York to the Central District of California, Second Circuit precedent (which has not determined the Erie issue) applies rather than Ninth Circuit (which holds that the SLAPP laws do apply). A cert petition in the Tenth Circuit case is pending; I wonder if the Court will be more interested in the issue.

An additional wrinkle is that the district court arguably gave the game away at one point. In explaining why the SLAPP motion could be resolved without discovery, the court analogized it to a 12(b)(6). But if this is the same as a 12(b)(6), then there is a controlling federal statute that should be applied over any state law.

Posted by Howard Wasserman on October 17, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (11)

Tuesday, October 16, 2018

We Can't Tech Our Way Out of Policing

My colleague Sean Kennedy and I have been running a monthly discussion forum on Policing Los Angeles, that has provided an opportunity for the police, community activists, academics, and criminal justice professionals to come together to discuss policing policy in Los Angeles, one of the global centers of the good, the bad, and the innovative in policing. We've been discussing police technology a lot.

As an extension of the discussions we've been promoting around policing, I had the pleasure to participate in the Los Angeles Sheriff's Civilian Oversight Commission's conference on Community Policing in Los Angeles: A Vision for the Future. The panel discussed: "When should the use of technology by law enforcement meet a stop sign?"

High tech policing focuses on what the police are worst at: solving crimes. We've known for a long, long time that the police are good at solving really obvious crimes that occur right in front of them—traffic offenses, jaywalking, and so on—and less good at solving crimes where they have to investigate and rely on witnesses. It turns out that if police do what they are good at—handing out tickets to traffic violators—that affects us directly. We don't want the police to police *us*: we want them to police the crimes that other people do, or to deal with *serious* crimes (itself a problematic definition).

We also know that the police are only okay at deterring crime, COMPSTAT, hot-spots policing, pulling levers policing, shotspotter, CCTV, and drones notwithstanding. A much better way of preventing crime is to provide jobs, education, and other opportunities. Crime is a feature of a state failure, whether the state is a centralized economy or a neo-liberal market. The police, unfortunately, have to bear the brunt of that failure.

Finally, some of the essential services provided by the police are non-criminal. We want the police to enforce public nuisances that are often regulated by administrative rules. Or we want the police to settle a minor dispute. And we want the police to respond quickly to emergency situations to help us out when we are in trouble.

The tech "revolution" in policing does nothing to transform these basic features of policing. Technology may make crime detection or prevention a little more effective. At the same time, it may deepen inequality within and between communities, undermining social networks, and creating feedback loops that increase scrutiny for some people, and engenders "legal estrangement." But technology does nothing to transform the underlying features of policing: that it is about relations between human beings: state officials on the one hand, and the public on the other.

The major resource in policing is people not technology. To solve a crime, the police need to be able to engage with witnesses. To maintain order, and respond to emergencies, the police need human personnel, not sonic detection devices, body worn cameras, and the like. There is a role for all of these in the discussion of policing, but by emphasizing the role of technology as a crime-fighting device, we afford a disproportionate amount of money, energy, and rhetorical space to one of the least impactful areas of policing.

Technology can help in first responder roles. It may help in the core police function of public order. If the technology and policing discussion wants to be relevant to the life of the communities over which it is deployed, however, the technology revolution should aid what the police are good at, not exaggerate the importance of their other roles.


Posted by Eric Miller on October 16, 2018 at 01:05 PM | Permalink | Comments (35)

Saturday, October 13, 2018

Catch-up rule in baseball

I missed this paper by two game theorists (one at NYU) and some news stories about it. It proposes the following change to baseball's rules: A team that is leading gets only two outs in its turn at bat. The goal is to shorten games and to make games more competitive by giving trailing teams an opportunity to come back. It then applied the rule to all MLB games from 1967-2017, finding that it shortened the average game by about five outs (about 24 minutes) and the average score difference by more than one run. I am not sure what to think about this, although WSJ sports columnist Jason Gay is a fan (subscription required).

Posted by Howard Wasserman on October 13, 2018 at 12:21 PM in Howard Wasserman, Sports | Permalink | Comments (11)

Friday, October 12, 2018

Flipping the burden on voluntary cessation

This decision from the Fifth Circuit seems wrong, at least in its analysis. The court found moot a challenge to the New Orleans Public Defender's wait list for non-capital cases, because the state legislature allocated the PD's office sufficient funds and the office eliminated the wait list. The court stated:

we are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude." Absent evidence to the contrary, we are to presume public-spiritedness, says the Supreme Court. Government officials "in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties." So, "[w]ithout evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.

But this seems to flip the burden of persuasion on voluntary cessation, presuming the government will not resume unlawful conduct (because the government is public-spirited) absent evidence from the plaintiff to the contrary. But this seems inconsistent with SCOTUS' insistence that "the defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."

It does not seem possible to reconcile this case with Nike, at least in terms of the stated standard. The unprincipled explanation is that the Fifth Circuit was suspicious of the entire case and so was looking for a way to dump it. The plaintiffs and the defendant (the PD Office) agreed that the wait list was constitutionally invalid and the PD enacted the policy only because the lack of legislative funding tied its hands. The court hints that the entire action is "a coordinated public-relations effort to force funding" rather than a genuine attempt to enforce constitutional rights.

Suspicion aside, this agreed-upon conclusion meant it was unlikely that the PD would reenact the challenged policy on its own. Which may be true and may justify finding the case moot. But the burden remains on the PD to show that, not on the plaintiffs to rebut the assumption.

Posted by Howard Wasserman on October 12, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, October 11, 2018

Federal Judicial Center Job Posting

From Timothy Lau at the Federal Judicial Center:

For those who are on the law faculty market with both a J.D. and a Ph.D., you may be interested to know that the Research Division of the Federal Judicial Center is currently seeking a Research Associate. The Federal Judicial Center is the research and education agency of the United States federal courts, and, unlike chamber law clerks, the research associates provide research for the federal courts on a systemic level. The research work is similar to that of law professors, and, while the position does not require any teaching, there may be opportunities to participate in education of federal as well as foreign judges. In addition, the research of the Federal Judicial Center can have real impact. Projects are often developed around specific requests of the policy-makers within the federal courts, including its Advisory Committees on Federal Rules, and are sometimes based on Congressional statutory mandate. The pay is competitive with starting law faculty salaries. The precise job listing can be found at:


It should be noted that, notwithstanding the language of the job announcement, any Ph.D. will be considered. Interested persons can contact me with questions at tlau at fjc dot gov.

Posted by Sarah Lawsky on October 11, 2018 at 11:42 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Might progressives adopt judicial departmentalism?

Slate is running a debate between Daniel Hemel (Chicago) and Christopher Jon Sprigman (NYU) about whether progressives should abandon judicial supremacy and a belief in the Court and what it should replace that with. Hemel is more in favor of retaining faith in a (modified) Court, while Sprigman is more pessimistic.

Sprigman points to a clause in the Canadian Constitution that allows a national or provincial legislature to override a Supreme Court decision, by allowing a law to operate "notwithstanding" a court decision to the contrary. He proposes a law that allows Congress to override a Supreme Court decision (made in its appellate jurisdiction), then strip the federal courts of jurisdiction to hear cases resisting the overrides.

But I wonder if judicial departmentalism, which allows the other branches to ignore precedent and act on their own constitutional interpretations, gets us to the same place. Under a judicial departmentalist regime, Congress could reenact and the executive could continue to enforce a law that the Court had declared constitutionally invalid against anyone other than the party to the original case (who is protected by a judgment). Under judicial departmentalism, there is no need for an "override" of SCOTUS's decision, because the only binding effect of SCOTUS' decision on the other branches is its judgment prohibiting enforcement against the plaintiffs in that case. The problem remains that the courts must apply SCOTUS precedent in the challenge to the new law or subsequent enforcement efforts, so the result of new litigation over the same constitutional issue will be the same. But Sprigman's jurisdiction-stripping proposal may address that concern. Or the executive's repeated reassertion of the law's validity may cause the Court to yield to the other branches in the exchange, as happened during the New Deal (although for slightly different reasons, the idea remains the same).

I would also note Hemel's post arguing that "the court’s worst moments have been moments of weakness, not overexertions of strength." This echoes the argument by Suzanna Sherry (and subsequent micro-symposium) that the Court's greatest failures are when it is inactivist, standing by and declaring laws constitutionally valid.

Posted by Howard Wasserman on October 11, 2018 at 07:19 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

On not talking the Talk

I'm fascinated by police encounters with the public. As the Court in Terry v. Ohio taught us, these encounters come in all shapes and sizes. Quite often, these encounters result in low-level discipline even if they do not result in an arrest: what the *Terry* Court called "harassment." Some turn deadly. As a result, for many members of the public, the encounter, even if just a stare from a police officer in a high-crime neighborhood, gives rise to the fear and deference that comes with trying to avoid or placate the powerful.

I recently reviewed Josephine Ross's article, What the #Metoo Campaign Teaches About Stop and Frisk, ___ Idaho L. Rev. ___ (2018), discussing why Eric Garner did not run. Eric Garner, Ross points out, stood his ground, and said "Every time you see me, you want to mess with me. I'm tired of it. It stops today…Please just leave me alone." Ross revels that Garner had been the victim of the sort of physically intrusive touching envisaged by the Terry Court as a serious aspect of the stop-and-frisk. Garner, as Ross notes, had previously suffered "a 'cavity search [in which the officer was] . . . digging his fingers in my rectum in the middle of the street." Garner experienced this as a loss of self respect: "the injuries I received was to my manhood"

Garner's reaction to the officer was that of a victim of what felt to him like a sexual assault. Garner likely knew "the Talk": he knew he was in a vulnerable position and was supposed to show deference to the police. Instead he decided to assert his duty to respect himself and his right to be treated with respect: to act, and to be acted towards, as a fellow human being, someone with cares and interests in maintaining his dignity.

In too many aspects of our society, race work is internalized, by the dominant and the subordinated, as servitude work. People like Eric Garner are expected to perform a sort self-abnegation undermining self-respect to mollify some police officer so as to convince the officer to respond calmly and civilly. This places many of us in a difficult position: enacting servitude has moral and political consequences both individually and collectively

If we are to avoid authoritarian government—on the local or on the national level—we must have equal standing; quite literally, perhaps. The civic republican idea of this non-dominative or anti-subordinating version of equal standing is "the ability to look each other in the eye." The sort of response anticipated by the Talk, and demanded by one policing notion of "respect" quite literally precludes this sort of eye-to-eye interaction, treating these self-respecting looks as disobedient stares and a form of resistance. Too much of the history of people of color in this country is one of not making eye contact, of crossing streets and embodying deference as a form of second-class citizenship. Policing, through its demands for compliance and deference on pain of being treated as resistant, is not a neutral activity, responding to crime, but a political activity, creating citizenship status through the ways the police choose if, and when, and whom, and how to encounter people on the street.

Posted by Eric Miller on October 11, 2018 at 05:29 PM | Permalink | Comments (8)

Wednesday, October 10, 2018

California's New Law Requiring Corporate Boards to Include Women: Is it Constitutional?

On Sunday, September 30, California Governor Jerry Brown signed into law a new bill requiring publicly held corporations based in the State of California to include women on their boards of directors.  Specifically, any corporation with its principal executive offices in CA must have at least one woman on its board of directors by the end of 2019.  By the end of 2021, the minimum goes up to two female directors if the corporation has five directors, or to a minimum of three female directors of the corporation has six or more directors.  You can read the bill, Senate Bill. No 826, here

Many people--including Governor Brown himself!--have questioned the law's legality.  It is a facial sex-based classification, which means that it will trigger intermediate scrutiny in an analysis under the United States Constitution.  (To be precise, the law defines "female" as "an individual who self-identifies her gender as a woman," so it is a facial gender-identity-based classification, but that is unlikely to change the standard of review.)  And under the California Constitution, the law is likely to trigger strict scrutiny, based on past precedent, which would be even harder to pass.  In his signing statement, Governor Brown stated that "There have been numerous objections to this bill and serious legal concerns have been raised.  I don't minimize the potential flaws that indeed may prove fatal to its ultimate implementation." 

Indeed, it's very hard to see how this law could be upheld.  It essentially imposes a quota for women, and the Supreme Court has consistently looked with particular disfavor on any state action that involves quotas or set-asides on the basis of protected characteristics.   (Oddly, the state senator who introduced the bill apparently predicted that it would be held constitutional "because it doesn’t impose a quota or a percentage for board seats held by women"--but unless I'm missing something, it seems like the bill essentially does just that.)  Additionally, it seems that there are other facially-neutral measures to increase diversity that could be tried instead, such as requirements that director terms be shortened and that new directors be regularly cycled in. 

After acknowledging that the law might well be struck down in court, Governor Brown stated that "Nevertheless, recent events in Washington, D.C.--and beyond--make it crystal clear that many are not getting the message."  But does it even help the cause to adopt a measure that is so likely to get thrown out in court?  What message does that send?   I'm sympathetic to the ultimate policy goal of having more diverse corporate boards, but this doesn't seem like a productive route to me. 




Posted by Emily Gold Waldman on October 10, 2018 at 06:36 PM | Permalink | Comments (15)

Publishing opportunity--Kentucky Law Journal

Kentucky Law Journal is  looking for one article to round out its volume this year. They are specifically hoping to find a criminal law piece, but will consider other submissions as well. Authors can email submissions to [email protected]

Posted by Howard Wasserman on October 10, 2018 at 06:13 PM in Teaching Law | Permalink | Comments (0)

Two free speech stories

1) I agree with this argument about the problem of demeaning all protesters as uncivil, insincere, unruly mobs, which allows those in power to dismiss criticism, dissent, and protest without engaging with the ideas in dispute. Especially because, as the article notes, Republicans never criticize Tea Partiers, land protesters, or reproductive-health clinic protesters using similar tactics, often on people more vulnerable than Senators. I am curious if and where FIRE comes out on this--it has been so critical of campus lefties shutting down opposing voices, what about GOP leaders?

2) I am not sure that the Trump campaign's argument that the First Amendment protected the Trump Campaign's disclosure of the hacked DNC emails is wrong. It certainly is not as laughable as the article suggests and I wish the piece had not been so dismissive. The First Amendment generally protects disclosure of truthful, lawfully obtained information on a matter of public concern, "absent a need to further a state interest of the highest order." If the information was unlawfully obtained, the disclosing party is protected so long as it did not participate in the theft of the information, That should be as true for a political campaign finding information stolen from an opponent as for a radio host disclosing a recording of an unlawfully recorded conversation or a newspaper publishing the name of a victim of sexual assault.

The article tries to link the First Amendment argument to the administration's "collusion is not a crime" argument. But that presents a nice, open question. It is clear that the campaign is protected if the Russians and Wikileaks hacked the emails, passed them along to the campaign, and the campaign published them. It also is clear that the campaign is not protected if it conspired with the Russians and Wikileaks to execute the hacks. But what if we are in the middle with collusion--suppose the campaign did not assist in the hacks, but encouraged them, knew they were coming, and coordinated the disclosure once it had been hacked. I doubt Bartnicki runs out only if there is a full-on conspiracy; the question is where the lines are.

Posted by Howard Wasserman on October 10, 2018 at 06:07 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Back-to-back Jewish World Series

Baseball's final four is set and all four teams have one Jewish player--Ian Kinsler (Red Sox), budding superstar Alex Bregman (Astros), Joc Pederson (Dodgers), and Ryan Braun (Brewers). This means we are guaranteed a consecutive two-Jew World Series for the first time (previous two-Jew Series before last year were 2004, 1959, 1945, and 1940). Moreover, each is a regular starter for his team.

Truly baseball's new gildene elter. 

Posted by Howard Wasserman on October 10, 2018 at 07:14 AM in Howard Wasserman, Sports | Permalink | Comments (4)

Tuesday, October 09, 2018

JOTWELL: Walsh on Hickman on severability

The new Courts Law essay comes from Kevin Walsh Richmond), reviewing Kristen E. Hickman, Symbolism and Separation of Powers in Agency Design, 93 Notre Dame L. Rev. 1475 (2015), considering the use of severability to remedy separation of powers defects in the design of federal agencies.

Posted by Howard Wasserman on October 9, 2018 at 10:50 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, October 08, 2018

Better Call Saul does legal-academic fundraising

In the Better Call Saul season finale, Jimmy donates $23,000 to an area law school to name the library Reading Room after his brother. Just how unrealistic was that? What is the going rate for naming rights for a room in a law school?

Posted by Howard Wasserman on October 8, 2018 at 11:17 PM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Yes, please sue

Where to begin with this suggestion that Justice Kavanaugh should sue Christine Ford and the Washington Post for $ 20 million each and that the suit would be successful? This is a new talking point among conservative commentators.

I go point by point after the jump, because there is so much wrong here.

Ford has clearly libeled Kavanaugh. Libel is a published false statement that is damaging to a person’s reputation. Ford gave uncorroborated information to the Washington Post, which published it and damaged Kavanaugh’s reputation.

Uncorroborated does not mean false. Perhaps Ford's allegations are false; that they are uncorroborated has nothing to do with their falsity.

This has been a recurring theme. There is no requirement in the legal system (putting aside whether a confirmation process should be treated as a legal proceeding) that a claim be corroborated; the plaintiff's testimony is evidence. Whether it is sufficient to prove a case depends on the type of proceeding and the standard of persuasion. Perhaps a victim's statement is not alone enough to satisfy beyond a reasonable doubt, but this never was a criminal procedure. On a lesser standard such as what governs whether a person should receive a lifetime appointment to a powerful job (whatever that standard may be), uncorroborated testimony may be sufficient, depending on whether the factfinder believes that uncorroborated statement.

In a court of law, . . . the burden of proving the truth of a derogatory statement is on the defendant.

No. Kavanaugh is a public official and Ford's speech was a on a matter of public concern, whether that public figure engaged in criminal or inappropriate conduct. The burden of persuasion is on the plaintiff to prove the statement was false. And he must do so by clear and convincing evidence.

New York Times Company v. Sullivan is ripe for being overruled. Yes, the Supreme Court can overturn prior cases. See Plessy vs. Ferguson.

Justice Antonin Scalia said he abhorred the New York Times case:

NYT is not going anywhere. Not least because Justice Scalia no longer is on the Court--the event that has pushed us down the current hole. Justice Kavanaugh certainly would never vote to overrule NYT because, as Sen. Collins reminds us, he reveres precedent. So does Justice Gorsuch, who wrote a book about it. Unless NYT is not "settled law." Anyway, NYT is a cornerstone of the modern First Amendment and exists precisely so public officials cannot use civil suits to silence critics.

This belief/assumption/preference that NYT be overruled might explain the above error about the burden of persuasion as to truth. NYT shifts the burden from common law (where statements are presumed false and truth is a defense); if NYT is overruled, that shift goes with it. Which is why NYT will not be overruled.

A court should hold that Ford, dredging up a 36-year-old uncorroborated claim, is guilty of constructive malice — reckless disregard of the truth.

Reckless disregard of the truth is the NYT actual-malice standard that the author just said should be (and will be) overruled. So what he is really saying is that Ford is liable even under NYT. Maybe she is, but this contradicts the prior paragraph. And, again, I am not sure why the age of the claim or its lack of corroboration say anything about Ford's statement of mind.

(There is an interesting question whether actual malice has any place with respect to the first-person source of information talking about her own experience, as opposed to the media republishing it. Ford either believed her statement true or knew it false; I doubt there is an in-between.)

It would be poetic justice if Justice Kavanaugh could be the deciding vote — on his own case!

It would be the height of irony, actually. The author begins the piece decrying the Democrats' abandonment of the presumption of innocence, "a hallmark of Anglo-American jurisprudence and of Western Civilization." Putting aside whether the presumption of innocence (which is merely about the allocation of burden of production) has a meaningful role in a job interview, I doubt it is more of a jurisprudential hallmark than nemo iudex in sua causa--no one should be a judge in his own case.

Anyway, the real reason Kavanaugh will not sue (and that perhaps Ford,WaPo, or others might wish he would) is not that it would be "unseemly for a judge to sue." It is unseemly for a judge to spew conspiratorial Fox News talking points, but that did not stop Kavanaugh from writing and giving that prepared statement. Kavanaugh will not sue because a lawsuit will trigger a meaningful discovery process designed to get at the truth of Ford's statements. Kavanaugh would be subject to a sworn deposition taken by a competent questioner. Discovery would include depositions and interviews of numerous witnesses, not limited by the preferences of the White House or an artificial one-week deadline. The author assumes Ford is lying (and WaPo knowingly reprinted a lie). I do not know, because I have not seen anything resembling a fact-finding process. Kavanaugh suing would create that very process.

President Trump is famous for threatening to sue critics (even thought it would appear equally unseemly for the President to sue) and never following through. Even after some outlets egged him on. Apparently some members of conservative media have decided to make the same move on behalf of Justice Kavanaugh.

Posted by Howard Wasserman on October 8, 2018 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Sunday, October 07, 2018

Half measure on universal injunction in sanctuary cities case

On Thursday, District Judge Orrick of the Northern District of California enjoined enforcement of DOJ regulations denying law enforcement funds to sanctuary cities. Judge Orrick previously enjoined enforcement of a presidential order denying funds to sanctuary cities. Judge Orrick made that prior injunction universal, although the Ninth Circuit narrowed it to protect only San Francisco and non-party California, concluding that the record did not support universality.

Undeterred, Judge Orrick made this injunction universal, although with several pages of analysis and justification. That analysis ultimately comes down to this--when a narrow law or regulation (or at least a federal law or regulation) is constitutionally invalid, a universal injunction is proper. And despite the rhetoric of "careful consideration," that principle is unbounded and always applicable.

The court acknowledges (and purports to share) the concerns that universality preempts percolation of issues. But then he offers two points in response: 1) the issues here are the same as in the Seventh and Third Circuits, so percolation is occurring and 2) this is a "narrow constitutional issue," so it "does not seem to be the type of situation in which allowing more cases to percolate in federal courts would be of much benefit." The second point is simply wrong. Pure and narrow legal issues benefit from percolation, from multiple sets of eyes considering and analyzing legal questions; this is the first time I have heard it suggested otherwise. The first point misses the main issue: The first court to enter a universal injunctions ends (or should end) all litigation on the issue,; this renders litigation in other courts either moot (because any party to the second action is already protected by the original universal injunction) or dangerous (because the second court issues an order conflicting with the original universal injunction, potentially imposing conflicting obligations on the defendant).

But the court hedged slightly, staying the universality pending appellate review of a narrower alternative holding about the scope of the underlying federal statute (which applied only to the parties and thus did not warrant universality). This may become a common move between district courts, who seem to like universality, and courts of appeals, who are more circumspect about scope--make the injunction universal, but stay it. Judge Leinenweber of the Northern District of Illinois made the same move.

Posted by Howard Wasserman on October 7, 2018 at 10:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Barnette at 75

I am happy to say that FIU Law Review's symposium Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation" was a great success, with three terrific panels and a wonderful keynote speech by John Q. Barrett (St. John's) on Justice Jackson's particular approach towards a series of contemporaneous disputes involving Jehovah's Witnesses.

Video of the entire event can be found here.

One other shout-out: At the same time as our program, Georgia State hosted a conference on Anthony Kennedy's jurisprudence, including one panel on Kennedy's prose. At perhaps the same moment as that panel, several of us were having a conversation, sparked by one speaker noting the unformulaic nature of Jackson's Barnette opinion--was Kennedy, in opinions such as Obergefell, trying to be Justice Jackson?

Posted by Howard Wasserman on October 7, 2018 at 06:52 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, October 05, 2018

The Talk and The Whisper

In recent weeks I have been struck by the similarities between the advice different groups give each other. One is the Talk—the instructions passed on from parent to African American child (usually depicted as male) to avoid the police, and how to act if they cannot avoid the police. The other might be called the Whisper—the advice that women give to ensure that they are not assaulted by men, including identifying particular men and places as to-be-avoided.

In each case, the instructions require group members to avoid certain places or people, show deference when cornered, and take steps to escape as quickly and as safely as possible. In each case, the rest of society has, in general, not believed the group members' accounts. If they are believed, their testimony is dismissed: the approach is something like, I believe you but it will not change my behavior or your standing to challenge that behavior.

My colleague, Yxta Murray, has just written insightfully about the "belief" part of this problem in the context of epistemic injustice, a philosophical theory arguing that individuals will simply not be believed based on their social status: that their claims to knowledge are discredited. But a different problem is that their claims to knowledge are discounted. That they will be believed but not practically acted upon.

Both are serious issues. But epistemic discounting (to give a term to the practical problem of belief-but-inaction) creates an important dissonance: credible witnesses give testimony about events—in this case, events that are truly terrible—yet these witnesses are discounted, told that their testimony (and perhaps, by implication, their experience) does not matter.

I'll have more to say about epistemic discounting, and how it's forced me to rethink some interesting papers I've had the pleasure to write about on Jotwell. But at least one way of thinking of epistemic discounting is not as a form of mistake, or disinterest, but as a form of disrespect. Kate Manne, in her book on misogyny, Down Girl, has written persuasively of this form of disrespect as a robust normative system for putting people in their place.

Putting people in their place—being appropriately orderly—is also a core feature of policing. It's the form of social control at which the police excel. It's also the form of social control that is least visible to the courts, because it begins and ends on the streets. And it's a form of social control that runs deep in complicated raced-and-gendered ways.

I'll explore some of these complicated, raced-and-gendered ways in my next post.

Posted by Eric Miller on October 5, 2018 at 01:32 PM | Permalink | Comments (18)

Thursday, October 04, 2018

Barnette at 75 (Move to top)

Beginning at 9 a.m. Friday (tomorrow) is the FIU Law Review Symposium, Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation." The link includes the video for the livestream. The livestream and recording also are available here. The issue of the Law Review (which will include published transcripts of the Q&A sessions) will be published later this academic year.

The full schedule is after the jump.

Panel 1: Barnette in Historical Context

Chair and Moderator

Dean Joëlle Moreno, FIU College of Law


Ronald K.L. Collins, Thoughts on Hayden C. Covington and the Paucity of Litigation Scholarship

John Inazu, Barnette and the Four Freedoms

Genevieve Lakier, Barnette, Compelled Speech, and the Regulatory State

Brad Snyder, Frankfurter and the Flag Salute Cases


Panel 2: Reading Barnette

Chair and Moderator

Prof. Tawia Ansah, FIU College of Law


Paul Horwitz, Barnette: A Close Reading (for Vince Blasi)

Aaron Saiger, The pedagogy of Barnette

Steven Smith, “Fixed Star” or Twin Star? The Ambiguity of Barnette


Keynote Address

Prof. John Q. Barrett, St. John's University School of Law


Panel 3: Barnette in Modern Context

Chair and Moderator

Prof. Howard M. Wasserman, FIU College of Law


Erica Goldberg, “Good Orthodoxy”and the Legacy of Barnette

Abner S. Greene, Barnette and Masterpiece Cakeshop: Some Unanswered Questions

Leslie Kendrick, A Fixed Star in New Skies: The Evolution of Barnette

Posted by Howard Wasserman on October 4, 2018 at 10:47 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Most lawyery "Better Call Saul"

This week's Better Call Saul, titled "Wiedersehen" (the penultimate episode of Season 4), may have been the most lawyery episode. Consider:

• Shout out to Justice Stewart. Jimmy and Kim discuss when the situation will again be right to pull the scams that make them both feel alive. Kim insists they will know the right situation when they see it.

• Appearing before the committee considering whether to reinstate him, Jimmy talks about attending the University of American Somoa, although he would have preferred to attend Georgetown or Northwestern (my alma mater).

• At the same hearing, Jimmy is asked  whether he has kept abreast of changes in the law. He talks at length about Crawford v. Washington and the Confrontation Clause.

Posted by Howard Wasserman on October 4, 2018 at 10:46 PM in Culture, Howard Wasserman, Television | Permalink | Comments (1)

Slate discovers judicial departmentalism

Slate's Mark Joseph Stern contemplates the "full-blown constitutional crisis" that will arise if the Democrats regain control of the White House and Congress and attempt to resist an illegitimate Supreme Court. While finding the tools of segregationists "appalling," he suggests Democrats and progressives may find this the only option.

In reality, Stern is describing judicial departmentalism. But he fails to recognize the judgment/precedent distinction that makes this not a constitutional crisis but how the interbranch constitutional conversation should function. This conversation can produce two outcomes. One is that the judicial view will prevail because of the incentives (loss of qualified immunity, attorney's fees, repeated losses) for the executive to voluntarily comply. The other is that executive non-compliance with precedent (while following individual judgments) may cause the judiciary to change course.

Posted by Howard Wasserman on October 4, 2018 at 10:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Wednesday, October 03, 2018

Diversity Requirements and Inclusion Riders

I’m excited to guest-blog here this month. A quick introduction: I’m now in my thirteenth year at the Elisabeth Haub School of Law at Pace University, where I currently serve as an associate dean and teach Employment Law, Constitutional Law, and Education Law.

During this past year, I’ve been examining the various customer/client preferences that can provide the basis for successful employer defenses to what would otherwise be actionable discrimination under Title VII.  I call them the “preferred preferences," because they actually get some deference from courts.  They include preferences like aesthetic appeal, physical privacy from the opposite sex, convenience, and more.  My article about the topic is coming out soon in the North Carolina Law Review, and a draft is available here.  I'll also be speaking about it at an employment law symposium at Belmont Law School this Friday.

In doing this research, I’ve become very interested in what might become another preferred client preference: diversity. Last year, Facebook announced that it would require women and ethnic minorities to account for at least 33 percent of law firm teams working on its matters.  (Here's the NY Times article about it.)  HP likewise announced a numerical minimum for how many female and ethnically diverse attorneys must work on their matters, warning law firms that it would “withhold up to 10% of all amounts invoiced by law firms that do not meet or exceed our minimal diverse staffing requirements.”

Even more recently, at the 2018 Academy Awards, actress Frances McDormand said—at the conclusion of her acceptance speech for the best actress Oscar—“I have two words to leave you with tonight, ladies and gentleman: inclusion rider.” McDormand was drawing on the work of Professor Stacy Smith, a USC communications professor who coined the “inclusion rider” term a few years ago.   The basic concept is for prominent actors and actresses to insist upon, as riders to their individual contracts with the studio, a certain level of diversity among the cast and crew.  If you're curious, Professor Smith's sample inclusion rider template appears here.

I completely understand and appreciate the sentiment behind these pushes within the corporate world and in Hollywood.   What I’m fascinated by, though, is the legal question of how much employers (whether it’s a law firm whose client is Facebook, or a studio trying to sign an A-list actor with an inclusion rider) can respond to these preferences. For example, can a law firm explicitly take race and sex into account when staffing Facebook’s matters to make sure it hits Facebook's 33% target, or does that violate Title VII’s prohibition against differential treatment on the basis of race and sex?  My view is that both doctrinally and normatively, it makes much more sense for employers to be proactive rather than reactive.   These new pushes should prompt them, even more, to  create broadly-applicable policies that promote equal employment opportunity for all employees, as opposed simply responding to individual client or customer diversity targets in a one-off fashion that may well subject them to liability.

This also connects up with the new law that California Governor Jerry Brown just signed, requiring publicly traded corporations headquartered in California to include at least one woman on their boards of directors by the end of 2019.  That said, the big difference is that now it's the government imposing this sort of target as an actual legal requirement, not just a private party expressing it as a preference. I agree with the many people who have flagged serious constitutional questions about this--to be discussed in a future post!


Posted by Emily Gold Waldman on October 3, 2018 at 11:41 AM | Permalink | Comments (7)

Tuesday, October 02, 2018

Teaching Transactional Skills

The following post is by Stephen L. Sepinuck, Frederick N. & Barbara T. Curley Professor and Director of the Commercial Law Center at Gonzaga University School of Law, and is sponsored by West Academic.

If you mention transactional lawyering to someone, that person is likely to envision a scribe toiling alone in a poorly lit office. Like Bob Cratchit working 60 hours per week for Ebenezer Scrooge (although Cratchit was a clerk, not a lawyer). Perhaps this vision is more common among our litigation-focused colleagues than among law students who never even contemplated what a transactional practice might be like, but the fact remains that the subject lacks allure. Put simply, transactional lawyering does not make for good television.

To some extent, this rather visceral reaction is justified. Two of the most important transactional lawyering skills are the ability to draft contractual terms with precise language and the ability to spot and resolve ambiguity. Teaching these skills requires repetition and practice, which for some can create tedium (it is asking too much to expect students to share my geekish enthusiasm for the quirks of the English language). So, while I cover these skills extensively in my course – and in my book co-authored with John Hilson, Transactional Skills: How to Structure and Document a Deal (2d ed. 2018) – we put equal or greater emphasis on other skills: imagination, creativity, and strategy.

Imagination. Litigators deal with the past, in which the facts are fixed. Transactional lawyers deal with the future, in which the possibilities are infinite. The client might want the lawyer just to document the deal, but the lawyer needs to consider all the things that might go wrong. What if the electronics that your retail client is buying from the manufacturer become antiquated before they can be sold? What if the painting your client is about to buy turns out to have been looted from its rightful owner during World War II, but that fact is not discovered until after the limitations period has expired on a claim for breach of the warranty of title?
Creativity. Many transactions are relatively simple, two-party affairs that resemble countless prior transactions. But some clients come to the lawyer more with an end goal, rather than a specific deal, and the lawyer needs to devise a transaction that will best achieve the client’s objectives. Will a stock sale, rather than an asset sale, avoid the restrictions on assigning contract rights? Should a planned loan be made to the parent company and guaranteed by its subsidiary, or vice versa, so as to minimize the risk that the transaction involves a fraudulent transfer?

Strategy. Strategic thinking is perhaps the most important skill a lawyer needs and the most fun to teach. Stressing it in class immediately conveys to students that transactional lawyering is less the work of scribes and more like that of skilled chess players. For example, in drafting an agreement for the purchase and sale of a business, should the continued employment of key personnel be a covenant, a condition, or both? How should the covenant not to compete in that agreement be drafted if the jurisdiction follows the “blue-pencil” rule? How should an attorney’s fees clause in a form commercial lease be revised if the jurisdiction enacts a reciprocity statute?

I cannot claim to inspire all my students and I do not try to convert them all into transactional lawyers. I can say, however, that this approach appeals to many of them. More important, most of them come to the course with no interest in transactional lawyering and many leave it with a very different attitude. As a teacher, I cannot really ask for more.

Posted by Howard Wasserman on October 2, 2018 at 04:46 PM in Sponsored Announcements | Permalink | Comments (0)

Uninhabitable Habitats in Weyerhaeuser: The perfect “text versus purpose” sequel to TVA v. Hill

For the little guy in the photo, Weyerhaeuser Company v. United States Fish and Wildlife Service, argued yesterday before SCOTUS, is the term’s most important case. At stake in this Endangered Species Act litigation are five ephemeral ponds and accompanying piney uplands in Louisiana that could some day be inhabited by the Dusky Gopher Frog, a species now tenuously represented by roughly 100 amphibians in a single pond in Mississippi. The Secretary of the Interior designated those Louisiana ponds as “critical habitat” that is “essential for the conservation” of the frogs under 16 U.S.C. §1532(5)(A)(2).

For law profs, the Secretary’s designation is chiefly interesting as a perfect counterpart to the TVA’s attempt to open the Tellico Dam in TVA v. Hill: Both cases involve classic showdowns between statutory text and purpose where the fate of a species turns on arcana of diction. In TVA v. Hill, SCOTUS famously followed the letter of the ESA, treating the decision to close the completed dam’s gates as an “action” covered by the statute over Justice Powell’s dissent that enjoining the operation of a nearly-complete dam to save the lowly snail darter was an absurdity. Letter beats spirit to save the little fish. In Weyerhaeuser, the plain text cuts exactly in the opposite direction, against the frogs. The pine forest in which those ponds are located cannot actually support the species without substantial modification. (The trees, apparently too dense and dark, need a bit of thinning by fire before the frogs can live there). Thus, the Secretary has designated land as “critical habitat” that is actually uninhabitable by the species for which it is “essential.” The Secretary’s justification: These are actually some of the only ephemeral ponds in existence capable of sustaining this species on the edge.

After the jump, some grudging support for the textualist reading, even though it might doom the frog and make hash of the ESA’s larger purpose.

1. Does “plain meaning” of “habitat” support Weyerhaeuser’s interpretation over the frogs’ survival?

The Fifth Circuit focused on the term “essential” in finding that the “critical habitat” need not currently be habitable by the endangered species. (According to the Fifth Circuit (page 20), “[t]he statute requires the Service to designate ‘essential’ areas, without further defining ‘essential’ to mean ‘habitable’”). But the idea of “habitability” seems to be baked into the statutory term “habitat” regardless of what “essential” might mean: To treat as a “habitat” an inhabitable place seems like the very essence of paradox. I suppose that one might stretch, defining “habitat” to mean “potential habitat.” The coverage of the statute, however, then balloons to cover any place that might theoretically be modified to be habitable by some species — that is to say, anywhere. As Chief Justice Roberts noted during oral argument, “if you have the ephemeral ponds in Alaska, you could build a giant greenhouse and plant the longleaf pines and the -- the frog could live there.” Neither the venerable Ed Kneedler’s brief nor his oral argument had a good answer to how to limit the scope of the statute once the implied “habitability” limit was removed from the noun “habitat.”

Like Justice Powell in his TVA v. Hill dissent, Justice Kagan tried to nudge the term “habitat” into the zone of ambiguity by noting that the ESA contemplated a broad notion of habitability: The term “habitat” in the ESA plainly refers to places where species could live but do not currently occupy, so it could include potential as well as actual habitability. But the textualist would seem to have a crisp reply: “Habitat” is defined by actual habitability, not actual occupancy. (Consider an analogy: A “house” is a place where people can be housed: It remains a “house” even when it is vacant, but it does not remain a “house” if people cannot be housed in it). It is hazardous to guess votes from oral argument questions, but if Justice Kagan ultimately takes the view that “habitats” can be uninhabitable, then she might have to forfeit the thick grammarian’s spectacles that she inherited from Justice Scalia.

2. Does the “plain meaning” make any policy sense?

One might reasonably object, however, that requiring a place that is essential to the conservation of a species to be habitable by that species at the moment of designation undermines the larger purpose of the ESA, which is to save species on the brink of extinction. The FWS performed a comprehensive survey of potential sites at which the Dusky Gopher Frog could survive and found perilously few: The species lives underground most of the time in dry uplands, hopping down to ephemeral ponds to breed. Thus, the species needs not only upland forested habitat but also connected corridors to ponds that could dry up during breeding season in a drought. The site in Louisiana had the ponds and the uplands but the wrong type of pines. The Nature Conservancy or some similar outfit, however, might have been willing to buy out Weyerhaeuser to modify the pines. Why then cavil at the details of a noun when a little nudging will accomplish the statute’s apparent goal?

The familiar 1990s answer that the “plain text” reflects the limits on statutory purposes necessary to enact laws begs the question of how to determine whether text is actually “plain.” Sure, we now all accept that old 1990s insight that statutes have costs as well as benefits, enemies as well as friends, that both enemies and friends are needed to pass a law, and that textual quirks that contradict the statute’s apparent Big Purpose could be part of a deal needed to make a deal. The problem with this now-venerable insight is that it does not tell us whether text is actually “plain” (aka a part of a legislative bargain) or ambiguous (just a legislative oversight). As I and others have argued (notably Richard Re and Ryan Doerfler), the idea of ambiguity is deeply ambiguous. My argument above for a narrow reading of the “plain text” is certainly reasonable, but the opposite argument that “habitat” could include “potential habitat” is not frivolous. Perhaps the narrower reading of the term was part of a legislative deal to enact the ESA, but maybe the opposite argument comes close enough to creating a textualist tie and thereby triggering Chevron deference. As Doerfler has insightfully argued, to know how close rival textual arguments must be to create such a tie, one must necessarily look outside of text to the stakes. Here, the stakes include a species on the brink of extinction.

Broaden the textualist perspective to take into account these extra-semantic concerns, however, and one must bring in those concerns from all sides of the political spectrum. Against the frogs’ future, one must balance the risks to property rights from imposing an implied easement over all land that could be “reasonably” modified to make a home for a species. Weyerhaeuser claims to have lost tens of millions of dollars from the ESA cloud on their title. To quote another famous frog, it isn’t easy being green: The FWS’s environmental aspirations could eliminate a lot of land needed for housing. (Those piney uplands have become more valuable as more frequent hurricanes flood the coastal areas).

The advantage of the narrower, crisper reading of “habitat” is that it not only removes this cloud on land titles but also places some judicially manageable limits on the FWS’s jurisdiction. In an era of intense polarization, these sorts of limits sidestep hotly politicized disputes in the adaministrative process that gum up rule-makings for years. Judicial case-by-case assessment of the FWS’s rules for “reasonable” modifications of uninhabitable habitats will be costly. Unless the narrower definition of “habitat” will severely undermine the ESA in other cases, therefore, I am inclined to support Weyerhaeuser’s reading. I have not plowed through all of the amicus briefs: Maybe there is a persuasive parade of horribles marching through one of them, explaining how a narrow reading of “habitat” will drastically curtail the ESA’s scope in other cases. If not, then I am inclined to favor a clean reading and let the Dusky Gopher Frog take its chances with a voluntary purchase by the Nature Conservancy.

Posted by Rick Hills on October 2, 2018 at 11:00 AM | Permalink | Comments (2)

Jurisdictionality confusion lives

I have not been writing or reading about jurisdictionality of late, so I was surprised to see that courts seem to be making the same mistakes. In this case from the Third Circuit, the district court had held that so-called statutory standing of a non-U.S. plaintiff under RICO was jurisdictional; the court of appeals affirmed, although shifting the framing to merits rather than jurisdiction. It said:

Because this case does not involve Article III standing, but rather presents an issue of statutory standing, subject matter jurisdiction is not implicated, and the parties incorrectly relied on Rule 12(b)(1) . Our precedent makes clear that "[c]ivil RICO standing is usually viewed as a 12(b)(6) question of stating an actionable claim, rather than as a 12(b)(1) question of subject matter jurisdiction." [*5] 38 Moreover, given that Rule 12(b)(6) provides a plaintiff with "significantly more protections,"39 and because we may affirm on any ground supported by the record and "there is no prejudice to appellants in our reviewing the district court's dismissal as if it were grounded on Rule 12(b)(6) ,"40 we will review this matter under Rule 12(b)(6) . Accordingly, we "consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record."41 In evaluating whether the complaint adequately pleads the elements of standing, we accept as true all material allegations set forth in the complaint and construe those facts in favor of Plaintiffs, the nonmoving party.42

I would have thought that Morrison, which held that extraterritoriality is merits, and Lexmark, which held that statutory zone of interest is merits, would have made this obvious. But Circuit precedent distinguishes Article III standing from statutory standing and lets the merits/jurisdictionality distinction turn on that. So whether standing is Article III or statutory often becomes a point of dispute between the parties and in the case. All of which reveals why Fletcher continues to be right and the best understanding is that is all about the cause of action and who can sue whom for what--and thus should be about the merits.

Posted by Howard Wasserman on October 2, 2018 at 10:29 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Monday, October 01, 2018


Thanks to our September visitors. For October, we are joined by returners Eric Miller (Loyola-LA) and Emily Gold Waldman (Pace).

And a reminder that we are always looking for visitors, so please reach out to me if you are interested in joining us for a month.

Posted by Howard Wasserman on October 1, 2018 at 07:44 AM in Blogging | Permalink | Comments (0)