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Friday, January 18, 2019

Why Is the First Set of Amendments Unequal?

In response to my post earlier this week about the Second Amendment, Orin Kerr asked why I think that there is no compelling reason for treating the provisions within the Bill of Rights as equals. Here are a few thoughts:

  1. The first ten amendments were not understood originally as a set. In other words, there was no thought that they would be treated alike except that they limited only the federal government.
  2. When people did start thinking of the Bill of Rights as a set (most notably John Bingham), that was only to say that they should all apply to the states as well. 
  3. There are significant differences among the parts of the Bill of Rights. The Fourth Amendment refers to reasonableness as a standard and the Eighth Amendment invokes proportionality for fines and bail. Other provisions do not contemplate balancing in this way. Likewise, the right to counsel in the Sixth Amendment is treated as a positive right (for the indigent) in a way that the others are not. The Tenth Amendment is structural in a way that other provisions are not. 

This does not mean that the Second Amendment must be assessed under a lower standard of review than the First Amendment. All I am saying is that you cannot persuasively argue that they must be treated alike because they are both in the Bill of Rights, which is one claim in Judge Bibas's dissent. 

Posted by Gerard Magliocca on January 18, 2019 at 03:36 PM | Permalink | Comments (13)

Thursday, January 17, 2019

Impeachment as process

Yoni Applebaum's piece in The Atlantic arguing for impeachment is getting much attention. At its core is the argument that impeachment is an investigatory and inquisitorial process and the only means for the legislature to keep the executive in check between quadrennial elections. It is not about whether the Senate convicts or even whether articles of impeachment pass the House; it is about the inquiry process. And, he argues, atomized committee investigations do not get the whole picture the way a full impeachment inquiry would.

Posted by Howard Wasserman on January 17, 2019 at 10:28 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Wednesday, January 16, 2019

How Do We Read and What Do We Understand of Digital Consumer Contracts?

Click-wrap contracts permit companies to contract with millions of customers, consumers, online users, and gig workers without negotiating with each party and without even verifying the contract was read. Uri Benoliel and Samuel Becher (who is also my recent coauthor on a different consumer law piece Poor Consumer(s) Law: The Case of High-Cost Credit and Payday Loans) have a new article on consumer contracts called The Duty to Read the Unreadable, in which they do very interesting empirical work to test whether consumer contracts are written in a way that dissuades consumers from actually reading them. They apply linguistic readability tests to the 500 most popular American websites that use online click-wrap agreements. The findings are striking, albeit perhaps not so surprising given everything we know about market power, consumer agreements, and contracts of adhesion: according to the article, effectively reading the contracts requires over 14.5 years of education.  They conclude that "lacking a clear and strong incentive to draft readable agreements, firms utilize unreadable texts as their contracts. By insisting on applying the duty to read in these cases, courts undermine notions of both fairness and efficiency." Really interesting for any scholar of contract law, consumer policy and digital deals.

Posted by Orly Lobel on January 16, 2019 at 06:34 PM | Permalink | Comments (3)

A Good Start?

Quite some time ago I wrote in a blog post that not only was I unsure why members of the Supreme Court attend the State of the Union address, I wasn't greatly sure why anyone else bothered to attend either. Any substance that might accidentally make it into a SOTU address can just as easily be delivered on paper. The spectacle part of the SOTU address might be considered worthwhile if it served as a some powerful device of national unity, like the national anthem or the final episode of M*A*S*H. Given that the actual spectacle has for some time consisted of half the room rising automatically to applaud almost anything and the other half just as automatically remaining stonily silent and seated, it is hard to say it serves that purpose anymore, if it ever did. (I'm sure it can and has on some occasions, but the occasions where it does are more likely to involve special congressional addresses than annual propitiatory rites.)

So I find it hard to consider the possibility that the State of the Union address might be canceled and/or rescheduled this year bad news. This, at least, is one one occasion on which a crisis presents a valuable opportunity, no matter whether the reasons for it are genuine, contrived, or somewhere in between. As Gerard notes below, there is no constitutional need for the full-Kabuki version of the SOTU to take place, and the nation survived just fine in the brief periods--between 1801 and 1913 and during the period between 1913 and 1934, when the SOTU was sometimes delivered in person and sometimes not--when the constitutional requirement was met through a written instrument. It seems to me that rather than reschedule the live address, we should just do without it this year, while insisting on a written report "from time to time," and then see whether the Republic is still standing. (Or, if it is not, whether a written rather than live-and-choreographed SOTU had anything at all to do with the downfall.) Then perhaps we can get to work on extending the idea to Supreme Court confirmation hearings, and rolling back the unfortunate precedents set by Justices Stone, Frankfurter, and the second Harlan.     

Posted by Paul Horwitz on January 16, 2019 at 03:37 PM in Paul Horwitz | Permalink | Comments (4)

The Bill of Rights Has First-Class and Coach Tickets

Several judges are complaining that the Second Amendment right recognized in Heller is being given inadequate respect. A notable opinion on this point that is getting a lot of attention is a dissent by Judge Bibas in the Third Circuit. Before proceeding, I should say that I know the judge. We practiced at the same law firm, he was a great scholar before joining the bench, and I supported his confirmation. Moreover, I have no particular opinion about the merits of his dissent or of the panel decision. Instead, I want to focus on one aspect of his analysis that I think is misguided.

In dissenting from the panel's decision to reject a Heller challenge to a New Jersey gun regulation, Judge Bibas twice says "The Second Amendment is an equal part of the Bill of Rights." From this premise, he reasons that "[w]e must treat the right to keep and bear arms like other enumerated rights." He then says that the majority treats the Second Amendment differently.

My problem with this line of thought is that the individual parts of the Bill of Rights are not equal to each other. Some are incorporated and some are not. Some receive robust judicial protection and others do not. The 10th Amendment is not equal to the First Amendment, for example. Perhaps they should all be equal, but I am skeptical of that claim given my research on the Bill of Rights.

Criticisms about the application of Heller rest on an assumption that the Second Amendment should be treated like the First Amendment. (Indeed, most of the cases cited by Judge Bibas's dissent are First Amendment cases, though he also cites some equal protection cases). Again, maybe this should be the law, but there is no particular reason to think that this must be true. I think it is fair to say that Heller should not be compared to the few remaining unincorporated rights, but I'm not sure which, if any, part of the Bill of Rights provides the best analogy for gun possession. 

Posted by Gerard Magliocca on January 16, 2019 at 03:17 PM | Permalink | Comments (23)

What is a "State of the Union Address"?

Nancy Pelosi has disinvited President Trump from coming the House of Representatives to deliver the State of the Union Address, given the "security concerns" created by the government shutdown. She proposes that they find another suitable date once the government has reopened or that he deliver the address in writing (as Pelosi notes was done prior to Woodrow Wilson) on the planned date of January 29.

But what is required for the President to "give to the Congress Information of the State of the Union"? Must the address be presented to Congress through the President's personal appearance in Congress or delivery of a written message to Congress? If the President gives a televised address from the Oval Office (or Mar-a-Lago or anywhere else) about the state of the union that everyone in Congress sees, has he given Congress that information?

And what is the inevitable next step in this escalation? Does Speaker McCarthy choose not to invite President Warren to the House at all, forcing her to deliver the address in writing only?

Posted by Howard Wasserman on January 16, 2019 at 12:43 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

JOTWELL: Bookman on Sinnar on procedural experimentation and national security

The new Courts Law essay comes from Pamela Bookman (Temple), reviewing Shirin Sinnar, Procedural Experimentation and National Security in Courts, 106 Cal. L. Rev. 991 (2018), which explores ways to handle national-security concerns while allowing for transparency and litigation on the merits.

Posted by Howard Wasserman on January 16, 2019 at 12:33 PM in Article Spotlight, Civil Procedure | Permalink | Comments (1)

Tuesday, January 15, 2019

Indivisibility, incidentality, and universality

A judge in the Southern District of New York universally enjoined Commerce Secretary Wilbur Ross from adding to the census a question about citizenship. The court addressed the government's attempts to squeeze the case into the debate over universal injunctions and to limit the injunction only to the plaintiffs, but found it an "odd fit." The court explained that "these cases do not involve the case-by-case enforcement of a particular policy or statute. Instead, it concerns a single decision about a single questionnaire, to be used on a single census throughout the nation." The alternative for Ross would be to use two census forms (one as to the people covered by the injunction, one as to everyone else), but that might violate both federal statutes and the Constitution and cause the harms (in terms of funding and representation) that the state plaintiffs complain about.

Without saying so, the court is describing a situation of an indivisible right and indivisible remedy. The only remedy protecting the named plaintiffs necessarily protects non-plaintiffs, because the proper census form is issued to everyone, plaintiff and non-plaintiff. This case is analogous to a gerrymander challenge to a congressional district--the remedy of redrawing the district cannot be limited to the plaintiff, but must protect everyone within the district. Or a challenge to a religious display--the remedy of removing the display cannot be limited to the plaintiff, but must protected everyone who also would come in contact with the display.

But such injunctions should not be understood as universal, in the sense of protecting non-parties. They are better understood as protecting the plaintiffs while incidentally benefiting non-parties. The difference may seem semantic, but it is procedurally significant. A person protected by an injunction can seek to enforce the injunction through a motion to enforce and a motion to hold the government in contempt. But that power should be limited to the parties who control the litigation. My framing does not change much about the injunction in this case--Ross is prohibited from issuing a census form containing a citizenship question. What changes is if Ross tried to make the two-form move: Only the parties could move to stop that as violating the injunction, not the non-parties incidentally protected.

Posted by Howard Wasserman on January 15, 2019 at 12:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Universal in name only

Sam Bray analyzes the recent split decisions over universal preliminary injunctions in challenges to the new ACA contraception rules--the Northern District of California limited the injunction to the plaintiff states, while the Eastern District of Pennsylvania made the injunction universal (labeling it nationwide, over course). Sam argues that the latter court offers the best justification for universality, with a particular focus on how the states cannot obtain complete relief from a limited injunction. For example, the court offered the problem of a NJ resident who works (and gets her insurance) from an entity in another state where the new regs apply and where the resident cannot get contraceptive coverage, causing her to turn to New Jersey to pay for it. Like Sam, I am not convinced by the analysis, although I agree it is one of the first courts to defend universality without defaulting to vague principles that make universality the norm.

I was struck by one thing at the end of the opinion. The court identifies the criticism that universal injunctions foreclose adjudication by a number of courts, but insists that is not a problem here, as shown by the contemporaneous N.D. California decision. And that has been true of much of the major constitutional litigation of recent years--multiple courts are adjudicating multiple challenges brought by multiple parties. We are getting percolation.

But that suggests that no court is serious in labeling its injunction universal. No court intends to enforce it as universal by holding the government in contempt, no court recognizes the purported universality of another court's injunction as a basis to stay its hand because its decision is unnecessary, and the government does not appear to treat any one injunction as the universal bar to enforcement. In other words, the government will not enforce the contraception regs in California because of the N.D. Cal particularized injunction, not the E.D. Pa. universal injunction. The latter is universal in name, but not in effect.

If I am right about that, the question becomes why bother. Why are courts going out on a controversial legal ledge to assert a controversial power with no intent to actually exercise it?

Posted by Howard Wasserman on January 15, 2019 at 11:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

"Law and Public Policy" (With a Welcoming Nod to Gerard)

We at Prawfs are delighted to welcome Gerard to our family of bloggers. Wherever he has blogged, I have read him loyally and with interest. His energy, curiosity, and humor are a wonderful addition to Prawfsblawg, and I'm sure his productivity will be a good influence on the rest of us. The rest of the nod to Gerard comes at the tail end of this post. I wanted to write here about about a new course I taught this fall that I am perhaps unduly fond and proud of, called "Law and Public Policy."

I have taught Leg-Reg twice, once as a kind of trial run for upper-year students and once after Alabama, like many other schools and doubtless influenced by my superb trial run, made Leg-Reg a part of the 1L curriculum. It can be a great course and, in the long run, a useful one, for reasons explored by our co-blogger Ethan in this piece. I very much enjoyed teaching it and hope to be on the regular roster of Leg-Reg teachers. But...

I won't generalize about other profs' or students' experiences with Leg-Reg. Much depends on the syllabus and the book chosen. Still, I found a couple of aspects of the course surprising and disappointing. Although I tried to compensate for them in my own syllabus, I suspect others will have encountered or exemplified the same problems. The general idea behind adding Leg-Reg to the curriculum is that we live in an age of statutes and regulations, and that students whose curriculum focuses on reading cases and generally inhabiting a judge-centered universe will learn less about reading and interpreting statutes, and about the regulatory state in general, than they ought to. In practice, however, the Leg-Reg course often ends up focusing on...cases and judges. A Leg-Reg course can easily be less about legislation and regulation as such, and more a course that could, roughly speaking, be called "Statutory Interpretation by Judges--With a Little Chevron in it." (h/t: Sullivan's Travels.) That's useful, but still heavily court-centered and oriented around a close reading of judges' close readings of statutes. 

A related potential problem with Leg-Reg courses is that they can be light on both the details of the political process and on what I call the vocabulary of regulatory and public policy. On the first point, casebooks vary. The Eskridge et al. book(s), for instance, use(s) the Civil Rights Act of 1964 as a foundational example (at least up to the most recent edition I looked at), and include(s) a good deal of history about its passage. I'm not sure that's the best example pedagogically, and it's a little long in the tooth. The Bressman et al. casebook uses what I think is a better example--auto safety legislation and regulation--although it too is a little old as an example. Individual teachers may use examples of their own. Even so, that material can pass by swiftly, depending on the individual teacher, and one is soon back at statutory-interpretation-plus-Chevron. The generally wonderful Manning/Stephenson casebook, at least in the second edition, contains very little indeed on the political/legislative process itself.

And all this is still more process than substance. The substance of regulatory and public policy, and the vocabulary with which people discuss and analyze it, can easily get short shrift. I was lucky enough as a 1L to take a course called "Foundations of the Regulatory State" from Richard Pierce, during a brief interval in which it was part of the mandatory first-year curriculum at Columbia. Pierce used a series of case studies, such as the Clean Air Act and rent control, to introduce us to the vocabulary of regulatory policy and politics, including such things as public choice, externalities, and cost-benefit analysis. I have found that vocabulary useful in everything else I have done, in law school, legal practice, and legal scholarship. (Pierce has said somewhere that many students weren't nuts about the course. They were wrong.) Leg-Reg courses, with their focus on statutory interpretation and on judges, can easily omit much or most of this.

That's a loss, in my view. Learning the vocabulary of public policy can enrich students' experience in every course they take, in both public and private law, and make them better lawyers. Of course, some Leg-Reg teachers will include more of this material. And some teachers in any course will bring in law and economics and other useful tools of policy analysis. But not all will. And although, again, casebooks vary, teachers may find that they have to supplement the casebook materials and/or that adding this kind of material forces them to swim upstream, given the general orientation of the course and the other materials the school expects them to cover.

My Law and Public Policy course was designed to respond to all this. I hope it will prove especially useful to students who end up as government lawyers or in government-oriented practice, as legislative staff, or as lawyers who are involved, in practice or in a civic capacity, in politics and public policy in their own communities or in wider political environments. But all law and legal advice ultimately intersects with public policy, so any law student can benefit from such a course. Alabama has an excellent curriculum, clinical environment, and certificates in Governmental Affairs and in Public Interest law, and I hope the Law and Public Policy course will be a useful addition to our offerings in these areas.  

I had three primary goals and two pedagogical aims in mind in designing the course. The main goals were: 1) To give students a basic vocabulary in discussing and analyzing public policy. 2) To help students think about how to function, and what they can add, when they are "in the room" with various players, including both the stakeholders on a particular issue (community groups, interest groups, politicians, and others) and non-lawyer professionals of various sorts, from economists to social workers to urban planners. Law school doesn't focus much in general on how lawyers interact with the various players, including non-lawyers, who are in the room when various decisions get worked out. 3) T0 not focus on judges or courts. They show up in the course from time to time but are decidedly bit players. My pedagogical aims were: 1) To find a balance between technical/academic vocabulary and the academic readings involved in learning it, and the more practical aspects of the course, by picking a case study each week--a policy issue, and practical readings about it, with which to examine and apply the vocabulary we are learning that week, resulting cumulatively in the ability to apply a variety of analytical tools to a variety of public policy issues. 2) To bring in guest speakers who are far more experienced and engaged in the nuts and bolts of law and public policy than I am, at various levels and in different positions. This year, my guest speakers included a representative of our state's legislative policy staff, the chief of staff to one of Alabama's United States senators, and a major player in (among other things) both federal executive-branch work and in private practice involving government, politics, and public policy. Needless to say, the students loved them and were grateful to have the class taught by experts for once--not to mention experts whose boots are actually on the ground. (Lawyers and others working in this field who might be interested in serving as guest speakers, or who have suggestions of other speakers I might invite, are very welcome to get in touch with me.) 

It was the first time through the course, and doubtless I will make changes as I go, particularly in shortening the readings and continually revising the case studies. But the "vocabulary" covered in the course this semester included: the definitions of public policy and of regulation; basics of public policy analysis; economic and non-economic rationales for regulation; private ordering and private law as forms of regulation; externalities; public and private goods; commons issues; various forms of regulatory instrument, including command-and-control regulation, Pigouvian taxes, and many others; implementation and evaluation of public policies; public choice theory, rent-seeking, unintended consequences, government/regulatory failure, and other pathologies of public policy; cost-benefit analysis; risk and uncertainty; behavioral economics; and various new forms of regulation, such as democratic experimentalism or "new governance," meta-regulation, and self-regulation. In each case, I was sure to include not only criticisms of the tools and arguments presented, but specifically non-instrumental criticisms about distributive equity and equality, morality, technocracy, and so on. I would like to think that students picked up an array of tools for their toolkits and language to add to their vocabulary in reading any case and analyzing any legal issues (as well as reading about or dealing with public policy issues in general, of course), and that the use of case studies, guest speakers, and policy-memo assignments (see below) added some practicality to the admittedly academic (but fun!) reading they did. 

I avoided an exam-style evaluation. (I no longer give 100 percent finals in any of my courses, because I find them pedagogically dubious if not absurd.) Instead, I relied on class participation and on two short papers during the semester and one longer one during the exam period, all of them modeled after white papers or policy memos rather than research or academic papers and each of them based on a different public policy issue and relevant material about that issue. I hope those exercises will serve as useful experiences for students who end up writing, or at least reading, policy memos as legislative aides or practicing lawyers, or as they get involved in local civic issues. 

I give some bibliographical suggestions below the fold. Law professors who are interested in seeing the syllabus are welcome to use my Alabama email address to get in touch. I am also happy to hear from those who teach similar courses; I'm sure they are out there, and that various professor teaching in specific policy areas, such as environmental law or health law or others, end up using those courses to cover some of this ground, but a search for "law and public policy" courses as such garnered very few hits at law schools. I would also be interested in hearing from students or lawyers who took Leg-Reg on whether they agree with my description of what these courses often end up omitting, or whether their experience was different and why. Also, if there are any academics, legal or otherwise, who are interested in the possibility of contributing short chapters to a "primer" on law and public policy I am developing, which might be assigned as an inexpensive, modular supplement to a Leg-Reg course or other law school courses or as a primary book for a law and public policy course, I urge them to contact me. (Of course any publishers are equally invited to break down my door about this.)

One last note: Putting together the course and teaching it, however imperfectly, was a lot of work and a lot of fun. But the real stars of the course were my students. It was a fairly small-enrollment course--understandably, given both the person teaching it and the unknown factor in a new course--and I hope more will sign up in the future despite the instructor remaining the same. But the students who did take it were superb: diverse in their experiences but in many cases with fascinating backgrounds in public policy and legislative work, thoughtful and eager in discussion, patient with my many shortcomings, and fantastic writers whose final papers, in particular, were a joy to read and showed tremendous growth over the semester. Sometimes one is blessed by chance at the right moment, and in this case I was blessed that this particular group of students took the course as I was launching it. I thank them all. 

I promised a few bibliographical suggestions. I put together my own materials, but I have to give major credit to one book that I also assigned and used through much of the course: Mizzou Law professor Thomas Lambert's How to Regulate: A Guide for Policymakers. It's a fun book and a useful one. (Blurbs are blurbs, but I'll note that Cass Sunstein in his blurb says it "may well be the best guide, ever, to the regulatory state.") It did not do everything I wanted--what book does?--but it did do a great deal, and did so with excellent examples and references and a nice helping of wit. I recommend it not only to anyone considering a course in law and public policy but to anyone teaching Leg-Reg, to read for themselves and perhaps to assign as a supplemental book in any Leg-Reg class. (It costs $32 in paperback and $17 currently on Kindle, so it's not a back-breaker for students, which matters to me. And it's under 260 pages of text, in chapters that are sufficiently modular that one can assign only some of them.)

A few more bibliographical notes. First, although I did not assign it, teachers who are interested in getting some background on these issues should also check out Barak Orbach's unique and fascinating "casebook" (there are cases, but there is much more besides), Regulation: Why and How the State Regulates. Second, I highly recommend the Oxford Handbooks on Regulation and on Public Policy. The chapters are excellent and some serve as perfect reading assignments, as well as a learning resource for the teacher. Another very useful text is Understanding Regulation, by Robert Baldwin et al. On government failure and regulatory pathologies, and also because it's fun and enjoyably depressing and has tons of examples, I also recommend Peter Schuck's Why Government Fails So Often: And How it Can Do Better. Finally, and here's that final nod to Gerard, although I haven't used these in the class materials or discussion yet, this would be a fitting course in which to add quotes, videos, or chapters (perhaps serving as case studies) from the print editions of Yes, Minister and Yes, Prime Minister. I hope Gerard will continue at Prawfs his tradition of providing useful quotes from that series!


Posted by Paul Horwitz on January 15, 2019 at 09:51 AM in Paul Horwitz | Permalink | Comments (6)

Monday, January 14, 2019

What Good's a Constitution?

What is the best constitutional design for a diverse society? Today the standard answer to this question comes from James Madison's essay in Federalist #10. In 1936, Winston Churchill wrote an essay on "What Good's a Constitution?" that offered a somewhat different answer. This essay has received little attention in law review circles, so I thought I would offer some commentary on the piece. (The link is a little quirky in that the article is divided into two parts, but you can navigate that if you try.) 

Churchill asked why judicial review was necessary in the United States but not in Britain. His answer was that the United States was far more diverse than Britain. The Founders, he said, "did not think it possible to entrust legislation for so diverse a community and enormous an area to a simple majority." "In this small island of Britain," he continued, "we make laws for ourselves. But if we had again attempted to apply this flexibility and freedom for the British Empire, . . . it would have been broken to pieces. Although we have a free, flexible Constitution at the center and for the center of the Empire, nothing is more rigid than the established practice --namely, that we claim no powers to interfere with affairs of its self-governing component parts." Thus, "[t]he so-called 'rigidity' of the American Constitution is in fact the guarantee of freedom to its widespread component parts." 

In a 1957 address to the American Bar Association, Churchill expanded on these themes. "An omnipotent Parliament and a small legal profession," he said, "are all very well is an island which has not been invaded for nearly 2,000 years. Forty-nine states [48 plus the federal government] each with fundamental rights and a different situation, is a different proposition." "The Supreme Court survived and flourished in the United States," he concluded. "England was too compact and too uniform a community to have need of it." (I would add that many state supreme courts operate within much more uniform polities, and they probably resort to judicial review less often as a result.)

I wonder if there are lessons here for our polarized age. One way of understanding a fixed constitution is through a strong principle of stare decisis. If constitutional law were more fixed in practice, then that might lower the temperature of national elections and judicial confirmation battles in our ever more diverse nation. But there is no constituency for strong constitutional stare decisis these days. 

Posted by Gerard Magliocca on January 14, 2019 at 02:31 PM | Permalink | Comments (3)

A Bit of History on the Presumption of Regularity

Several years ago, when I was writing a paper about prosecutorial discretion, I ended up doing a bunch of research on the presumption of regularity.  As you may know, the presumption of regularity is a presumption that executive officials have properly discharged their official duties.  It has become a hot topic during the Trump administration.  But I was interested in the presumption because it forms the basis of a few cases that I find troubling --- most notably, the Supreme Court’s ruling in United States v. Armstrong, which denied criminal defendants discovery in support of their selective prosecution claim unless they could first “produce some evidence that similarly situated defendants could have been prosecuted, but were not.”  The Armstrong Court justified setting the standard to obtain discovery so high (thus creating a barrier to obtaining discovery), in part, on the presumption of regularity.  It also indicated that the presumption of regularity is a justification for the broad discretion that the Court affords to prosecutors.

The paper ended up going in another direction, and so the research on the presumption of regularity never saw that light of day.  But I thought I’d go ahead and share it now, given how many people I see talking about the presumption.  People might think it is interesting because the research shows that the presumption has expanded well beyond the cases that have been used to justify it.

Armstrong cites United States v. Chemical Foundation, a 1926 Supreme Court case, as support for the presumption of regularity.  But that case doesn’t seem to provide a particularly sound foundation for the presumption—at least not for the presumption as it is currently invoked by the Court.

In Chemical Foundation, the United States sued to invalidate the sale of foreign patents to Chemical Foundation.  The government had seized the patents pursuant to the Trading with the Enemy Act of 1917, and the President had delegated the power to sell the patents to Frank Polk, who was a counselor for the Department of State.  Polk then ordered the sale of various patents to the Chemical Foundation.  The United States subsequently sought to invalidate the sale, alleging that Polk’s decision to sell was “induced by misrepresentation and [was] made without knowledge of the material facts.”  The government lost at trial, with the lower court finding that the U.S. had “failed to establish any conspiracy, fraud or deception alleged.”  The Supreme Court declined to disturb the factual findings of the lower court, because they were not clearly erroneous.

I assume the Supreme Court could have disposed of Chemical Foundation on this limited ground—namely, that the government had failed to meet its factual burden.  But the Supreme Court went on to state:

The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. Under that presumption, it will be taken that Mr. Polk acted upon knowledge of the material facts. The validity of the reasons stated in the orders, or the basis of fact on which they rest will not be reviewed by the courts.

The Chemical Foundation Court cited three other cases in support of the presumption.  None of those cases referenced a presumption of regularity.  Nor do any of those cases reveal where the Chemical Foundation Court located authority for the presumption or what it thought the contours of that presumption to be.  And, most important, none supports the presumption as it was expressed and applied in Armstrong.

The first of these cases, The Confiscation Cases, involved a seizure that the President was authorized by Congress to make, but was actually made by a marshal acting on directions by the district attorney, who was in turn acting at the request of the Attorney General.  The cited portion of the opinion states that, because the statute authorized only the President to make the seizure, “a direction given by the Attorney-General to seize property liable to confiscation under the act of Congress must be regarded as a direction given by the President.”  The Court suggested that this holding was related to a previous decision that “the President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties.”  It is possible that the Chemical Foundation Court relied on The Confiscation Cases for the proposition that the Attorney General is presumed to act at the request of the President.  But the Chemical Foundation Court did not provide this (or any other) explanation.

The second case cited by Chemical Foundation is United States v. Page. That case involved a requirement that the result of all court-martial proceedings were to be signed by the President.  In Page, that requirement had not been technically satisfied.  The Secretary of War testified that he had forwarded the proceedings to the President, but the Secretary, rather than the President, had signed the copy of the proceedings. Nevertheless, the Court refused to dismiss the court-martial charge.  It stated that “where the record discloses that the proceedings have been laid before the president for his orders in the case, the orders subsequently issued thereon are presumed to be his, and not those of the secretary by whom they are authenticated: and this must be the result here.”  It is possible that the Chemical Foundation Court relied on this case for the proposition that, if the Secretary of War said he forwarded something to the President for approval, that statement ought to be presumed correct.  But that is hardly the only possible way to read this case.

The final case, United States v. Nix, involved a dispute over the travel fees of a marshal to serve arrest warrants.  The marshal claimed travel not only for miles that he traveled, but also for miles traveled by his deputies.  The deputies were not available for testimony or depositions to verify the miles they traveled.  But the marshal was able to show that “his accounts” of the miles traveled by his deputies “had been allowed by the district judge.”  The Court deemed this decision by the district judge “prima facie evidence of the correctness of the items of that account” that “was sufficient to place upon the government the burden of showing any error of fact in his account.”  It is possible that the Chemical Foundation Court relied on this case for the proposition that the official accounting of the marshal ought to be presumed correct.  But it is difficult to tell what, precisely, was entitled to the presumption—the representation of the marshal, or the fact that the lower court found the representation credible.  In short, this line of precedent hardly provides a solid foundation for the presumption.

Although Armstrong was a criminal case, the presumption is not limited to criminal prosecutors.  Many Supreme Court cases discussing the presumption are unrelated to the criminal justice system.  For example, in National Archives and Records Administartion v. Favish, the Court referenced the presumption in creating a higher threshold showing for disclosure in certain FOIA cases.  The Court stated: “[T]here is a presumption of legitimacy accorded to the Government’s official conduct. The presumption perhaps is less a rule of evidence than a general working principle. However the rule is characterized, where the presumption is applicable, clear evidence is usually required to displace it.”

But, as with the cases applying the presumption to decisions by prosecutors, these other cases tend to make only brief reference to the presumption, sometimes including little more than citations to previous cases, which themselves made only brief reference to the presumption.  Indeed, a case that has long been associated with the presumption of regularity afforded to administrative agencies—Citizens to Preserve Overton Park v. Volpe—states only: “Certainly, the Secretary’s decision is entitled to a presumption of regularity. But that presumption is not to shield his action from a thorough, probing, in-depth review.”

Although the Supreme Court has not made the connection explicit, one suspects that the presumption of regularity afforded to prosecutors is related to the ancient maxim “Omnia praesumuntur rite esse acta,” which roughly translated means “All things are presumed to have been done rightly.”  The maxim is sometimes recounted as “Omnia praesumuntur rite et solemniter esse acta donee probetur in contrarium”—that is, “All things are presumed to have been done rightly and with due formality unless it is proved to the contrary.”  Recent cases involving the presumption of regularity do not invoke the maxim, but some older opinions do.  Justice Story invoked the maxim in Bank of U.S. v. Dandridge, stating:

[The law] presumes that every man, in his private and official character, does his duty, until the contrary is proved; it will presume that all things are rightly done, unless the circumstances of the case overturn this presumption, according to the maxim, omnia presumuntur rite et solemnitur esse acta, donec probetur in contrarium. Thus, it will presume that a man acting in a public office has been rightly appointed; that entries found in public books have been made by the proper officer; that, upon proof of title, matters collateral to that title shall be deemed to have been done; as, for instance, if a grant or feoffment has been declared on, attornment will be intended, and that deeds and grants have been accepted, which are manifestly for the benefit of the party. The books on evidence abound with instances of this kind, and many of them will be found collected in Mr. Starkie’s late valuable Treatise on Evidence.

As the excerpt from Justice Story’s opinion indicates, the presumption had a number of iterations.  But it also indicates that the presumption of regularity is not limited to executive officials—or even public officials; instead, it applies to everyone.  It is an evidentiary presumption that people act appropriately—an presumption that the party claiming otherwise bears the burden to disprove.

So how on earth did a presumption that applies to everyone and merely sets a burden of proof transform to shield prosecutors from discovery?  I’m not sure.  But I imagine that it is attributable, at least in part, to the fact that the courts do not want to be inundated with cases challenging executive action.  And I imagine that it is also related to the fact that the post-Warren Court has (at least at times) made a big show out of not interfering in the business of the political branches.

In any event, I think that it is worth noting the shaky foundations of the modern presumption of regularity.  History shows that it is an evidentiary presumption that applied to public and private actors alike; it was used to allocate burdens of proof, not to prevent discovery or to insulate executive action from judicial review. 

Posted by Carissa Byrne Hessick on January 14, 2019 at 07:06 AM in Carissa Byrne Hessick, Criminal Law, Legal History | Permalink | Comments (3)

Sunday, January 13, 2019

Fitzgerald was Wrong

Thanks to the generosity and at the invitation of this lively group of scholars, I now begin my second act as a blogger. To those of you who read my posts at Concurring Opinions, I think that my writing over here will be a little different in style, but I'm not sure. We'll see starting tomorrow. I can't wait.   

Posted by Gerard Magliocca on January 13, 2019 at 08:03 PM in Blogging | Permalink | Comments (8)

Saturday, January 12, 2019

Moyn and His Critics on Law Schools and Democracy

I've meant for a while to write a post on Samuel Moyn's interesting Chronicle piece on whether law schools are "good for democracy." Unfortunately, I have other (and past-due) obligations and this has made it difficult. Moyn's piece, it seems to me, calls for either a long post--my specialty, and perhaps the only kind of post I write anymore, but one I don't have time for--or a mere aggregating post, offering links to the piece and to criticisms of it. I tried to split the difference, but unsuccessfully. So here is a long but still incomplete response. For present purposes, my central goals have less to do with whether or how much I agree with Moyn, but 1) to clear some ground, and 2) to suggest that the criticisms of his piece demonstrate its value, and perhaps say something about law schools and their politics and situation within the social firmament. 

In his op-ed, Moyn argues that insofar as law schools exist not only for the basic task of training lawyers, but also to "advance or even incarnate certain ideals of political and social justice," then "law schools, and especially elite law schools, are failing to advance those ideals. Law schools allow you to do well. But it is harder to establish that they allow for doing good."

Among other things, he takes as an example law school clinics, asking "whether the clinical revolution is actually about changing the world," at least for individual students, as opposed to things like finding a way to "harmonize" "social-justice work...with elite credentialing for power and wealth." He argues that law schools "need to consider how to reset their missions for those students no longer able to suspend disbelief about how their ideals and their training fit together." Crucially, he asks, "What if the truth of law schools is that their main social function, aside from producing the next round of elites, is that they buy off those who initially doubt that perpetuating elites is what law schools ought to be doing?" And he responds to this question by suggesting, among other things, that law schools, or at least elite law schools, should pay more "attention to what it means for legal elites to serve the democratic conversation about how the people rules itself. Rather than burnishing the credentials of law and its royal judicial stewards, we should insist on the centrality of the people in a democratic legal order. If elite students are forced into a dilemma about how to preserve their sense of justice even as they embrace extraordinary privilege, it is, first and foremost, because society allows law schools to endlessly reproduce elite ascendancy. But the institutions themselves can force some change from within, in part by explaining to the people how the law rules them."

Whether I agree with all of it or not, I always enjoy Moyn's writing. Its value, to me, is evident not least in the fact that it draws what I would call the right adversaries. In showing this, we must first dispense with two sets of adversaries or critics Moyn drew for this piece--those who objected that Moyn was talking only about elite law schools, and those who objected to his use of clinics as an example. We are then left with the interesting fact, one not uncommon with respect to Moyn's writing, that his op-ed drew negative responses from what we might, both usefully and uselessly, call both the left and the right. In reality, it is more accurate to say that Moyn's piece was most likely to draw negative responses from establishment liberals or progressives and from establishment conservatives. For people whose orientation is more genuinely "left" or "right" and less establishment oriented, his piece is likely to draw at least chimes of recognition, if not agreement.  

The first set of adversaries to dispense with is those, especially those who believe that law schools are primarily or solely here to train lawyers, who argue that Moyn's piece has little relevance for the vast body of law schools. I think this is slightly overstated: among other things, insofar as law schools of any and every type and "rank" insist on hiring from a small cadre of elite-trained candidates who often have experienced, internalized, and continue to embody and argue for the kinds of visions they absorbed from Yale and other elite institutions, some of the questions he discusses are likely to filter through the broader body of law schools. But in any event, it should be noted that Moyn is clear that 1) his piece is fundamentally about elite law schools, for better or worse, and 2) that law schools' "primary task will always be the production of lawyers for the bar"--although he notes, correctly in my view for some or many schools, that this is "a core commitment with which other agendas will necessarily fit uncomfortably." Moyn can be criticized for a narrow focus on elite law schools if one wishes, but he is not unaware of this limitation in his piece and doesn't pretend he's addressing the whole universe of American law schools.

The second and perhaps largest body of critical reactions came from those who did not much care for Moyn's use of clinics as a critical example. One example of this is Steven Lubet's Faculty Lounge response to Moyn.  Lubet writes, inter alia, that Moyn "seems to disdain the work of clinicians," and that "every clinician I know spends a good deal of time considering the social impact of their work, and none of them are concerned with alibis or grubby scrambles, much less laundering injustice." To his credit, Lubet adds a response from Moyn, in which Moyn says that "this piece isn’t about clinics, except (explicitly) as a passing example of how people in elite settings have to grapple with their consciences," and similarly that his op-ed "is more about the psychological/spiritual functions of clinics for students, regardless of instructor intent." Lubet takes this response seriously but considers it insufficient and says a simple apology would have been preferable. (He notes his concern in particular that in using clinics as an example, Moyn "focuse[s] on one of  the most vulnerable programs at the law school." Even taking that as true, I don't consider this criticism especially apt. Intellectuals and academics--and I think Moyn qualifies as the former, even if I doubt I do--should write without concern for fear or favor. Afflicting or comforting either the comfortable or the afflicted should be by-products of what they write, not a reason not to write or to seek out harmless or inconsequential examples. And I frankly doubt that an op-ed in the Chronicle of Higher Education--especially the current and not very good version of the Chronicle--will do much to push legislatures in one direction or the other compared to whatever direction they were already heading.) 

I credit Moyn's response more strongly, I think, than Lubet does. In reading the piece, I took clinics to be only an example, not a target, of Moyn's argument. And I thought it clear that in discussing clinics, he was indeed not referring to the instructors, but to the students, and more specifically to the psychological function of law clinics for elite law students. I do think that some elite law students are determined to do public interest work full-time, or to use clinics to get an education in doing full-time practical legal work, assisting clients of whatever sort with their legal problems (you know, lawyering), without any particular regard for a broader social purpose. For them, the "psychological/spiritual" point Moyn makes may be less relevant. But for others, specifically elite students who will end up at big firms while doing some pro bono work, and who can or do indeed use this work to preserve a specific sense of self--as a just person who does justice, despite having implicit or explicit negative or ambivalent feelings about working for Biglaw, but whose clinical past and pro bono present demonstrates that he or she is really a good person whose wealth and privileges, and those passed on to his or her children, are washed clean by moral desert--I think Moyn's point rings true. Some may be uninterested in a "psychological/spiritual" observation of this kind or think it trivial. I am not one of those: I think it is a useful, important, and under-examined issue with respect to the sociology and class status of law schools, certainly elite schools but likely many more of them. Regardless, I thought his aim was clear and that this was not an attempt to undermine clinical programs or criticize from stem to stern. Those reactions that amount to a simple displeasure or wounded amour-propre about any piece that mentions law clinics and does so in a non-positive way are understandable but, to the extent that they are a simple reaction of this kind, less important. The more thoughtful criticisms of his use of clinics as an example have value, but I think they ultimately miss the mark. 

On the flip side, there are more substantial and, for lack of better words, both "political" and "institutional" defenses of law schools against Moyn's piece, or criticisms of Moyn's piece that are themselves critical of law schools for political reasons. What I found interesting was the extent to which these criticisms came from both liberals and conservatives. For an example of the former, one that I think makes some good points even if I think it may soft-soap others, see the response of Dean Margaret Raymond of the University of Wisconsin's law school. I do think Raymond makes some good points. Not least, I appreciate that she does not respond by demonizing big-firm legal practice (or small-firm legal practice that is about simple and valuable things like forming corporations, helping small businesses, defending employers against wrongful dismissal cases, or what have you) while denying that any of her graduates do this sort of thing: "Some of our graduates go on to BigLaw practice, of course, and good for them." She is right, too--depending on how high one defines the bar--that her graduates "are not queued up to take their preordained place in an elite hierarchy." (Much depends on how one sets the bar. It's certainly less true of Wisconsin grads than Yale grads, if you're thinking about the very top of the elite hierarchy. It's certainly true that her school's graduates' place in that hierarchy is less "preordained." On the other hand, the median private-sector salary of a Wisconsin grad, according to 2017 data, was $115,ooo. That's not townhouse-in-Georgetown rich or elite, but it, as well as the knowledge base and social capital it includes, may well suffice to place those graduates in a professional-managerial class that is already worlds apart from average American life.) Whether her assertion that her students (0r students elsewhere) are "neither naïve nor resigned to 'endlessly reproduce elite ascendancy'" is a different question that I can't answer. I think Moyn may overstate, even as to some of his own school's students, and that Raymond may understate, even as to students at non-elite law schools other than those at the very bottom rungs. But, without meaning to downplay the aspects of Raymond's letter that I appreciated or to ascribe motives to her, one might see in her response a kind of "all is well" sentiment that one could characterize as the liberal or left, but still fundamentally establishment-oriented and establishment-protective, reaction to Moyn's piece.

Then there are conservative responses to Moyn's piece. They are, on the whole, more interesting than the ones I have seen from either clinicians or liberals. For John McGinnis, the problem with Moyn's piece is that it is filled with and emblematic of "the embedded left-liberal assumptions of the legal academy." For Yuval Levin, who I think is much more favorable toward Moyn's piece (and certainly more favorable than many others who reacted to it), many of Moyn's criticisms are apt, but he seeks to deepen the disease rather than move toward a proper cure--namely, the revival of "a genuinely academic culture in the law schools." An extended and interesting passage from his piece is useful here:  

The deepest problem with the distorted and distorting emphasis of today’s elite legal education, which Moyn well describes, is not that it keeps would-be lawyers from becoming effective activists for progressive social change (although it does do that) but that it keeps them from becoming effective lawyers in our democratic republic. And it does that especially by neglecting to subject them to a strong professional code—a self-understanding that is fundamentally professional and institutional, and so subsumes their individual ambitions beneath clear, legitimating responsibilities and channels it toward the service of their fellow citizens.

That’s what a profession does for its members, and especially for its elite and privileged members. It restrains and protects them, it gives them purpose and genuine belonging, and it provides them with a valued place in a larger social order so that they need not always be suspected of working to undermine it for the benefit of their class or of themselves.

Lawyers have a distinct place in our particular social order, as interpreters of the legal frameworks of democratic life, as careful reformers of those frameworks, and as agents of fellow citizens in need of prudent counsel. A professional code that accustoms elites to serve as agents of others and that holds them to a standard that has more to do with integrity than with raw intellect would be one useful way to help humble those elites and to legitimate their standing and their privileges.

I happen to be quite sympathetic to these points in many respects, and those who are increasingly or suddenly interested in the role of things like virtue, honor, office, and duty in public service ought to find some common cause with French, despite other political disagreements. But I also think there are good reasons why many have lost faith in elites altogether, even if they also think that elites and establishments can provide useful norms and the sane and stabilizing effects of professionalism, as against arbitrariness, incompetence, and a failure of decent and dependable governance. I see nothing wrong with some tension and ambivalence about these questions, or with scrutinizing and questioning establishments and established hierarchies and the ways in which they reproduce themselves, even as one sees their value when compared with a more free-for-all environment. In the end, thought, one can appreciate what French writes, but still observe that one result of this vision is, as with Raymond's letter, the legitimation of the status and sense of moral desert of those who occupy the establishment.

Wherever I come out on these questions, I think Moyn's piece is valuable for psychoanalyzing and critiquing the establishment and not defending it. (Indeed, one point of disagreement for me is that I think Moyn's piece goes too far in his resignation about, or even defense of, what he calls "a certain amount" and I would call a substantial degree of "hypocrisy and rationalization" on the part of elites.) The relationship between "doing good" and "doing well" is a fraught and perhaps impossible or irreconcilable one that just happens to be the cornerstone of what I think of as the modern, post-SAT meritocracy. It rests substantially not on doing good as an end in itself for which things like comfort and one's own ambitions can and should be sacrificed, but on feeling and believing that one is "doing good," that this is a natural and necessary part of or complement to "doing well," and that (although few would put it to themselves this way) it effectively serves as a kind of moral laundering of one's place (and, as or more important, one's children's place) in a privileged elite.

Most of the publicity about mandatory arbitration at law firms had to do with how that affected summer and permanent associates, not staff--who, if one buys the arguments against mandatory arbitration, are far more in need of championing than lawyers, especially lawyers with the kinds of elite credentials that get them these jobs in the first place. In fairness, although that publicity was so oriented toward law schools that I at first thought staff had simply been ignored, they are mentioned explicitly in at least some of the public letters and petitions on this subject. But it is perhaps not incidental that most of the public focus was on the well-being of (elite) lawyers and law students, not, say, receptionists and mailroom staff. Similarly, many of the arguments about which cases or issues big-firm associates insist that their firms either take on or refuse to take on have the effect of building and preserving a certain sense of self, while leaving in place most of what brings them a very lucrative practice, a comfortable and prestigious life, and a mountain of social capital. These kinds of compromises, which are not seen as compromises but as bold stands for "justice," seem--let us assume incidentally, but perhaps not wholly unconsciously--to result in a few loud pronouncements and protests without going so far as to actually disturb the pleasant and advantageous elements of "proximity to power and prestige."

More openness about this might lead to little--if it is little--beyond a clearer sense of self-knowledge and the reduction of a certain amount of illusion about oneself. It might lead legal elites to acknowledge to themselves just how much of their time and effort is spent "reconcil[ing their] politics with [their] self-interest," to quote Moyn. As he writes, "[i]f law schools and law students were more open about their elitist compromises, there could be more discussion of how all of their members manage their consciences."

The answers to this discussion might vary. It might be that rather than follow Moyn's suggested path, more elite students would more openly acknowledge that they are engaged in what is by their lights a morally questionable enterprise, in which their politics cannot be reconciled with their self-interest. Some might alter their politics rather than their self-interest or, perhaps more accurately, acknowledge that their self-interest drives their actions far more than they care to admit, and that their politics--the justice issues they focus on and especially or tellingly those they spend less or no time on--are, as a matter of revealed preferences, more conventional and establishment-serving, and less radical or disruptive, than their self-presentation or self-image suggests. They could thus reduce the cognitive dissonance by recognizing more openly the degree to which their politics really are elite-oriented and conservative. Or they could adopt a more disenchanted and mundane, although perhaps still professionally oriented, view of law schools' "mission:" taking the training of practicing lawyers as the real core of legal education. acknowledging that the seeming focus on grander missions is more of a comforting illusion or cosmetic element than a reality or core element of legal education, and returning law schools to a less encompassing and more technical function. Or, as Moyn might wish (although his fairly forgiving treatment of "a certain amount of hypocrisy and rationalization" suggests some undefined and convenient limits here), they could adopt the more dramatic and political "mission" more wholly and radically, accept that doing so really does entail a loss of proximity to power and prestige, admit that that they can't and perhaps shouldn't have both, and seek radical justice over proximity to power and prestige.

I don't think all law schools, elite or otherwise, can or must reach the same conclusions or adopt the same missions and concomitant reforms. I have my own preferences, but think there is room for more than one answer and more than one model. But at least this discussion would lead to more honesty--including honesty with oneself, especially among legal elites--about the kinds of institutions they attend and are headed toward, about their real nature and the real nature and consequences of their individual choices, and about how much, or how little, depending on one's perspective, is at stake. I doubt I share Moyn's answers on these questions. But I like the questions he asks and how he asks them. 


Posted by Paul Horwitz on January 12, 2019 at 11:39 AM in Paul Horwitz | Permalink | Comments (4)

Thursday, January 10, 2019

"Thank goodness I have a law license" so I should know about jurisdiction

Above the Law reports on a lawsuit filed in Texas state court by a Texas attorney against Ticketmaster, after a technical glitch caused him to purchase Hamilton tickets for the wrong day. The Plaintiff, represented by his law firm, claims fraudulent inducement, breach of contract, and Sherman Act violation (the latter based on the fact that the only recourse was to sell the tickets back through Ticketmaster at inflated prices and for an administrative fee). The plaintiff is quoted as saying "thank goodness I have a law license."

But am I wrong that there is a jurisdictional problem here that he ignores or does not see, despite having a law license? There is exclusive jurisdiction over antitrust claims. I am not sure it is should be exclusive, since § 1337 gives district courts jurisdiction but does not make it exclusive. But a 1922 antitrust decision, accepted in Marrese v. Orthopedic Surgeons in 1985, makes the point clear, as does a 1976 case from the Fifth Circuit.

In any event, there is a separate removability question. Ticketmaster is an LLC and unless one of its members happens to live in Texas (doubtful, as it seems everyone associated with the organization is in California), it is not from Texas, creating diversity jurisdiction over the state claims are removable and the case is headed to federal court. (Update: Oops--forgot about amount in controversy--I doubt this case is worth more than $ 75k on the state claims and the complaint does not expressly ask for punitive damages. So maybe the case will remain in state court, just without the antitrust claim.)

Posted by Howard Wasserman on January 10, 2019 at 05:29 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Marcus Cole to be Dean of Notre Dame Law School

I'm very happy to share the news that my old friend -- who shares with a Very Important Person the honor of having clerked for Judge Morris "Buzz" Arnold -- Marcus Cole is going to be my new boss at Notre Dame Law School. Great things are happening at Notre Dame -- the "Killer B's", for instance!, we have great students, and I am looking forward to what can happen under Marcus's leadership. I'm also happy for him, now that he gets to cheer for Our Lady's Fighting Irish instead of . . . a tree. (I kid, I kid!)

Posted by Rick Garnett on January 10, 2019 at 04:15 PM in Rick Garnett | Permalink | Comments (3)

Wednesday, January 02, 2019

Happy (and Crabby) New Year, Canadian Edition

I left Canada, where I received some of my legal education and practiced and published a little, long enough ago now that I am hopelessly out of date, despite following cases in some areas of law. But when I was there, the norms of the profession or society, the degree of consensus among a fairly small legal elite or Canadian mandarin class, and/or some other set of factors were such that there was little serious criticism of the Supreme Court of Canada and its decisions, and the criticism that did exist was treated more or less as coming from outliers. There were few or no originalist scholars or theorists, despite the recent nature of the founding debates over the Charter of Rights, which rendered some of the concerns with originalism in the United States inapplicable (while, on the other hand, making originalism less necessary as such, since the culture and the leadership class had not changed sufficiently in that short interval to require much conscious retrieval of linguistic meaning). Although there were inevitable disagreements with particular decisions, they were voiced mostly with extreme politeness and mostly with deference to the institution as a whole. Criticism of individual justices or judges was generally viewed as not cricket, despite their increasing role in affecting and effecting major policy changes in the country. (On the other hand, and quite happily, there was less of a cult of personality and celebrity around individual judges and justices, a phenomenon that is not uncommon in this country.) Much has changed since then across most of these categories, despite the continuing presence of a fairly dominant and, from my admittedly distant perspective, in many respects closed elite legal class in Canada.

One place to follow some of these developments, with an emphasis on Canadian public law, is the Canadian legal blog Double Aspect. It is perhaps relevant that although both its main authors, Leonid Sirota and Mark Mancini, are Canadian lawyers and/or legal scholars, they are currently located elsewhere (in New Zealand and the US respectively) and have both done advanced work at law schools in the US. I recommend the blog generally, but I write to recommend especially an ongoing, "12 Days of Christmas"-themed series of guest posts "highlighting Canadian legal scholars’ least favourite Supreme Court decisions." A fine group of scholars and lawyers have been writing very readable posts, each identifying around five "particularly bad public law decisions from the period 1967-2017." Although there may be some overlapping politics among some of the writers and there are certainly some overlapping choices for objectionable judgments, there is diversity along both of those dimensions.

I find the series educational and refreshing, and very different from anything I could have imagined reading in the period in which I studied and practiced in Canada. (Indeed, I remember publishing an article some years ago in a Canadian law journal--faculty-run and peer-reviewed, as most of them are--and being asked by the faculty editor of that journal to add some kinder and more complimentary text to balance my criticisms of a recent Supreme Court of Canada judgment.) That change is for the better. Although it might not be thought of in those terms by some of the existing and remaining legal and socio-cultural mandarinate in my native country, it enhances not only the ideological and philosophical diversity of the country and its legal profession, but also its regional and cultural diversity.

The series is also a valuable reminder, for those in the United States who champion the "proportionality" approach to constitutional judicial review and often point to Canada as an example of a country whose constitutional law does it right, that the system and its decisions are hardly without internal critics, whether or not they have full or sufficient representation on Canadian law faculties. More specifically, it's a useful reminder that a great deal of the work done by proportionality may rest not on its methodology or its alleged empiricism, but on the shared values and premises of the legal elite charged with administering it; that the seeming consensus may mask greater divisions within the country as a whole; and that the more those with dissenting views gain actual representation within the legal system, and/or the more diverse the legal elite becomes, along a range of dimensions but especially including diversity with respect to basic premises, the more difficult it will be for proportionality to function well or with seeming seamlessness.

As a side note, readers might scroll down a bit on the Double Aspect blog to this post about criticizing Canadian Supreme Court justices. The post was occasioned by negative reactions to a couple of earlier blog posts strongly criticizing a recent speech by SCC justice Rosalie Abella on the role of the Supreme Court in Canadian society, in which Abella, in a rather Planned Parenthood v. Casey-like way (see, e.g., "[Americans'] belief in themselves as [a people who aspire to live according to the rule of law] is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals") and then some, described the modern Canadian Supreme Court as the font of "the moral core of Canadian national values" and "the final adjudicator of which contested values in a society should triumph." If strong criticisms of judicial opinions are acceptable, and I think Canadians, however politely, would agree that they are, then surely there must be room to criticize the words of individual justices who make extrajudicial statements about their rather grandiose role as the first and last word on their country's "national values." 

Posted by Paul Horwitz on January 2, 2019 at 12:55 PM in Paul Horwitz | Permalink | Comments (1)

Tuesday, January 01, 2019

2018 Year-End Report

Chief Justice Roberts issued his 2018 Year-End Report. This year focused on the results of the investigation Federal Judiciary Workplace Conduct Working Group into the working conditions for law clerks and other judiciary employees and what is happening to implement those proposals with the Judicial Conference. As is his wont, the Chief began with a historical anecdote--the influence that law clerk Henry Friendly had on Justice Brandeis' dissent in Olmstead--and a paean to the work of law clerks and the symbiotic relationship between judges and clerks ("relationship is one of close association, candid intellectual exchange, and confidentiality"), on the centennial of Congress allocating funds for "legally trained assistants" for federal judges.

The report also briefly thanked court employees for keeping the courts operating in the face of another years of natural disasters--flooding in Florida and North Carolina, a typhoon in the Northern Marianas Islands, an earthquake in Alaska, and California fires.

The report closes with workload statistics for the year. Filings in the courts of appeals dropped two percent, while civil filings in district courts rose six percent. District courts saw a 17 percent increase in diversity cases with a 23 percent increase in personal-injury cases--the report does not say, but it would be interesting to see how much of the increase is tied to mass-tort cases going to federal court under CAFA's minimal-diversity requirement.

Posted by Howard Wasserman on January 1, 2019 at 12:43 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Teaching Civil Procedure With A Simulated Case File: My 90% Solution

The following post is by David Oppenheimer (Berkeley) and is sponsored by West Academic.

Civil Procedure is reportedly the least popular 1L course. Why? Because it lacks a familiar context. Our students arrive with some understanding, however faulty, of the role of contracts, the existence of property, the problem of crime, and the phenomenon of personal injury. But Civil Procedure is a great mystery to them.
A common response is to provide context by organizing the course around a semester-long simulation. Several case-files are now available from legal publishers, all of them good. Each helps students see how Civil Procedure works in the real world. But most require so much work for the students and faculty that they push aside other important material, and as the number of units we devote to Civil Procedure shrinks, this is increasingly challenging.

My response is the 90% solution – provide the students with pleadings and motion exercises that are 90% complete, so that they can focus on the core problems.

My 90% simulation is Oppenheimer, Leiwant, Schonberg, and Wheeler, Patt v. Donner: A Simulated Casefile for Learning Civil Procedure (Foundation Press 2014; 2nd ed. forthcoming spring 2019). (Leiwant, Schonberg, and Wheeler are former students/RAs who helped me develop the casefile.) The case begins on the first day of class, with a fourteen-minute videotape of a client interview. Paula Patt is an anthropology graduate student who just arrived in Berkeley. She applied to rent an apartment, and believes she was rejected because she has a five-year old daughter. She has come to the Berkeley Law Clinic for advice.

Over the course of the semester the students, working in rotating groups with the casefile materials and on-line videos, will: draft a federal housing discrimination complaint; switch sides and move to dismiss the complaint as insufficient; move for a preliminary injunction when another apartment in the building becomes vacant; move to dismiss the absentee landlord/defendant for lack of personal jurisdiction; oppose the motion; move to amend the complaint to add a supplemental state law claim; move to intervene; move to compel discovery, or for a protective order; move for summary judgment; and negotiate a settlement.

Since each of the exercises is 90% complete when assigned. The students don’t spend time trying to figure out what a pleading or motion looks like, formatting the table of cases, or drafting the preliminary matters. They complete a nearly finished pleading or brief by drafting the key argument, thus applying the cases we’re studying in class to the facts provided in interviews and documents found in the file.

To learn more about the materials, and to download the videos and sample exercise answers, go here.

Posted by Howard Wasserman on January 1, 2019 at 09:31 AM in Sponsored Announcements | Permalink | Comments (1)