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Thursday, January 31, 2019

Misquoting Churchill on Democracy

One of Winston Churchill's famous quotes is that democracy is the worst form of government except for all others. I've used this quote in past blog posts to express a world-weary, second-best opinion of elected officials, political campaigns, or voter ignorance. It's hardly inspirational.

In research an article that I'm writing about Churchill, though, I've come to see that his quote was very different. Here is what he actually said (in a speech to the House of Commons in 1947):

[I]t has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time; but there is the broad feeling in our country that the people should rule, and that public opinion expressed by all constitutional means, should shape, guide, and control the actions of Ministers who are their servants and not their masters.

This conveys a completely different. Churchill was not saying that he thought democracy is the worst form of government except all others. Indeed, he was rejecting that notion in favor of popular rule. And if you look at his speeches over many decades, you find a consistent theme in support of democracy as an ideal that he cherished. 

 

Posted by Gerard Magliocca on January 31, 2019 at 02:00 PM | Permalink | Comments (2)

Wednesday, January 30, 2019

Corpus Linguistics Comes to the Fourth Circuit (and that’s not a good thing!)

An amicus brief was filed yesterday in the Fourth Circuit Emolument Clause case against President Trump.  The brief was filed on behalf of Clark Cunningham, who is a law professor at Georgia State, and Jesse Egbert, who is a linguistics professor at Northern Arizona University.  The brief states that Professors Cunningham and Egbert have undertaken a “scientific investigation” to conclude that the word emolument did not have “a distinct, narrow meaning limited to ‘profit arising from an office or employ.’”  Some people on the platform-that-must-not-be-named are circulating this brief and its conclusion, presumably because it supports the challenge to President Trump’s business practices under the Emoluments Clause.*

So what is this “scientific investigation” that the professors undertook?  Did it involve a microscope?  Or double-blind clinical testing?  Nope.  It involved the use of corpus linguistics --- a new approach to statutory interpretation that I’ve criticized before, both here on this blog, and also in this short essay.

I will not rehash my arguments about why I’m deeply distrustful of corpus linguistics as a tool for statutory interpretation—especially the interpretation of criminal laws.  But I do want to say a few words about characterizing corpus linguistics as “scientific investigation” and why I am concerned that a law professor would allow his corpus linguistics analysis to be characterized that way.  (Note:  The amicus brief was written by an attorney, but Professors Cunningham and Egbert were the clients.  So I am assuming that they had the ability to object to the use of the phrase “scientific investigation.”)

For one thing, using the phrase “scientific investigation” connotes that the professors conducted an experiment, that the results of that experiment were objectively observable (rather than mere subjective impressions), and that the findings can be replicated.  This is reminiscent of claims by others who advocate for the use of corpus linguistics in statutory interpretation because those “findings are replicable and falsifiable.”

But corpus linguistics does not allow you to type a word or a phrase into a computer which spits out an answer to the question of meaning.  At best, corpus linguistics allows other people to replicate your search of a corpus linguistics database,** but it does not allow them to replicate your findings.  That is because the findings of a corpus linguistics analysis require inference and interpretation.  I’ve made this argument before (using a case called Rasabout as my example).  But the subjective judgment required is on stark display in this brief.

Among other inferences, Professors Cunningham and Egbert conclude that, because the word “emolument” was often modified by the word “official,” that means the word “emolument” when it appeared without modification was generally understood to mean something broader than “profit arising from office.”  If everyone would have understood the term “emolument” to be limited to profits from holding office, so their argument goes, then “official emolument” would be an oddly redundant phrase.  It is for similar reasons, Professors Cunningham and Egbert explain, that we don’t often see the word “fork” modified by the word “metal”—we generally assume that if someone is referring to a fork, then he or she is referring to a metal fork.

This analysis by Professors Cunningham and Egbert may seem perfectly logical.  And you may even be convinced by it.  But the fact that something seems logical does not mean it is “scientific.”  To the contrary, many things that appear logically true end up being empirically false.  Once you have to rely on inferences to derive "findings" from your results, you have left the world of objective truth and moved into the realm of theory. 

There is a second reason why I am especially troubled by the use of the term “scientific investigation” to refer to a corpus linguistics analysis:  It allows Professors Cunningham and Egbert to dismiss opposing views as a failure of “scientific method.”  You see Professors Cunningham and Egbert are not the first academics to undertake a corpus linguistics analysis of the word emolument.  There is a 2017 article by Phillips and White in the South Texas Law Review, which uses corpus linguistics to arrive at the exact opposite conclusion.***  The amicus brief cites to the Phillips and White article, but rather than engaging with the article on the merits, it dismisses the article because it relies on an assumption that (according to the amicus brief) “has no scientific basis” and that is “disproved by the linguistic research reported in this brief.”  The amicus brief goes on to state: “Although Phillips & White subtitle their article ‘A Corpus Linguistic Analysis,’ none of their conclusions about the 18th century meaning of emolument are based on the scientific methods used for the research reported in this brief.”

I find these characteristics of the Philips and White article to be at best misleading, and arguably false.  First, Cunningham and Egbert have “disproven” nothing.  They arrive at an opposite conclusion because they use different assumptions and make a series of inferences.  That’s called “disagreeing” with someone.  But, of course, to say that you “disagree” with someone has far less rhetorical force than to say you have proven them wrong.

Second, Cunningham and Egbert suggest that Phillips and White didn’t use the “scientific method” of corpus linguistics. That suggestion is false.  There can be no doubt that Philips and White use corpus linguistic analysis.  They don’t simply refer to the method in their subtitle; they provide a methodology section in the article, and they explain how they coded the results of their corpus search to arrive at their conclusions.  So I do not see how the statement that the Phillips and White conclusions are not “based on the scientific methods” used in the amicus brief can be true.  Perhaps Professors Cunningham and Egbert might say that their corpus linguistics methodology was superior.  If so, the brief should make that argument, rather than suggesting that their analysis was scientific and the Philips’ and White’s analysis is not.

Which brings me to my major objection to this brief:  It is claiming a mantle to objective truth, when in reality it is recounting a subjective analysis about which reasonable people can – and do – disagree.  To be clear, Professors Cunningham and Egbert are not the only people using corpus linguistics who suggest that the methodology promises to eliminate judicial discretion and make statutory interpretation an “objective” undertaking.  But this brief is a particularly crude example of that argument.  And given that the brief was filed by academic experts in order to aid judges in this case, I find the crude and misleading analysis to be especially troubling.  If law professors (and other professors) are going to file amicus briefs based on their academic expertise, they should be careful not to mischaracterize or mislead.

Let me close by saying that, although I am a corpus linguistics skeptic, there are thoughtful people on their other side of that issue.  People who I respect (but disagree with) think that corpus linguistics can be a helpful and valuable tool for judges in the interpretation of statutes and Constitutions.  I hope that those thoughtful scholars will affirmatively disclaim the use of the word “science” to describe the endeavor and criticize any briefs that present misleading accounts of what a corpus linguistics analysis can prove or disprove.

 

* To be clear, the brief takes no position on “the ultimate resolution” of the case.  But the arguments in the brief support those challenging the President.

** Interestingly, the search conducted by Professors Cunningham and Egbert for this brief is not necessarily replicable.  Footnote 21 of the brief tells us:

The researchers’ search can be approximately replicated by entering “emolument*” in the initial search box that appears after logging into COFEA. The use of the asterisk produces every word containing the string of letters that precede the asterisk. The researchers corrected the raw results of their COFEA search by looking for and adding texts that contained variant spellings or typographical errors that were missed by the initial search and also deleted identical texts, for example texts that appeared in two different source materials.

*** In an interesting twist, one of the two authors of this law review article, James C. Phillips, is a former co-author of Professor Egbert.  And Egbert touts his article with Phillips as one of his qualifications in FN 10 of the amicus brief.

Posted by Carissa Byrne Hessick on January 30, 2019 at 12:26 PM in Carissa Byrne Hessick | Permalink | Comments (14)

4th Annual Administrative Law New Scholarship Roundtable

The University of Wisconsin Law School is pleased to host the 4th Annual Administrative Law New Scholarship Roundtable on June 9-11, 2019. For the past three years, the Roundtable has offered administrative law scholars an excellent opportunity to get feedback on their work from senior scholars in a collaborative setting.

From the call for papers:

Participants will present their papers in small panel sessions designed to foster rich discussions with experts in the field and contribute to a vibrant Administrative Law community. Each panel will be introduced by a distinguished scholar who will then facilitate the discussion. Confirmed commentators currently include Jack Beermann (Boston), Kristin Hickman (Minnesota), Nicholas Parrillo (Yale), Eloise Pasachoff (Georgetown), Peter Shane (Ohio State), Kevin Stack (Vanderbilt), Glen Staszewski (Michigan State), and Wendy Wagner (Texas).

 

Scholars wishing to present a paper at the Roundtable must submit a one-to-two-page abstract by Friday, March 15, 2019. Applicants should include their title, institutional affiliation, and number of years teaching in the academy. Preference will be given to those who have been teaching nine years or less in a tenure-track position. Abstracts should be sent to Miriam Seifter at [email protected]; you may also contact her with questions about the Roundtable.

 

 

Posted by Howard Wasserman on January 30, 2019 at 12:09 PM in Teaching Law | Permalink | Comments (0)

JOTWELL: Pfander on Sutton on state constitutionalism

The new Courts Law essay comes from James Pfander (Northwestern), reviewing Judge Jeffrey Sutton's new book on state constitutions and their role in constitutionalism.

Posted by Howard Wasserman on January 30, 2019 at 09:52 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Tuesday, January 29, 2019

National Conference of Constitutional Law Scholars

THE REHNQUIST CENTER is pleased to announce the second annual National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 9–10, 2019. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

David Strauss will deliver a keynote address. Distinguished commentators for 2019 include:
• Jessica Bulman-Pozen • Gillian Metzger • Bertrall Ross
• John Harrison • Victoria Nourse • Stephen Sachs
• Aziz Huq

ADDITIONAL PRESENTERS
Emily Berman Individualization in the Age of Big Data
Kiel Brennan-Marquez Combinatorial Stare Decisis
Laura Cisneros The Supreme Court in the State of Exception: A Dialectical Model of Judicial Review
Laurence Claus Deciding Distribution
Travis Crum The Statutory Origins of the Fifteenth Amendment
Frederick Gedicks Fixed Constitutional Meaning and Other Implausible Originalisms
Paul Gowder Building We the People
Craig Green United/States: A Revolutionary History of Statehood, the United States,
and American Federalism
Stephen Griffin Optimistic Originalism Meets the Unfortunate Nineteenth Century
Tara Grove The Law of Interpreting Presidential Laws
Aziz Huq Article II and Antidiscrimination Norms
Andrew Kent “Faithful Execution” and Article II
Donald Kochan The Framing Effects of Labeling Constitutional Products
Earl Maltz The Ripples of Backlash: Same-Sex Marriage, The Election of 2004, and the
Contingent Nature of the Evolution of Constitutional Law
Lisa Manheim Reviewing Presidential Orders
Helen Norton The Government’s Speech and the Constitution
Kirsten Nussbaumer National Security and Election Law Autonomy
Zachary Price Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the
Post-Kennedy Supreme Court
Christopher Schmidt Popular Constitutionalism: A User Guide
David Schraub Doctrinal Sunsets
Miriam Seifter Judging Power Plays in the American States
Carolyn Shapiro Democracy, Federalism, and the Guarantee Clause
David Sloss Universal Human Rights and Constitutional Change
Calvin TerBeek The Constitution as Political Program: The Republican Party and Originalism, 1977–88
Ilan Wurman The Specification Power

CONFERENCE ORGANIZERS
• Andrew Coan, Arizona
• David Schwartz, Wisconsin
• Brad Snyder, Georgetown

All constitutional law scholars are invited to attend. The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. There is a conference registration fee of $50, which will increase to $75 after February 28, 2019. Registration fees are waived for students and faculty at UA Law. In addition, a limited number of scholarships are available to those unable to attend the event otherwise.

Please send questions to Andrew Coan ([email protected]).

For logistical questions please contact Bernadette Wilkinson ([email protected]).

THE REHNQUIST CENTER
The William H. Rehnquist Center on the Constitutional Structures of GoVernment was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

REGISTER NOW

Posted by Howard Wasserman on January 29, 2019 at 01:54 PM in Teaching Law | Permalink | Comments (1)

Monday, January 28, 2019

The District of Columbia and Presidential Elections

Howard Schulz's expression of interest in running for President as an independent prompted the following thought. Suppose that three people run for President and split the electoral vote such that none of them receive a majority of electoral votes. Everyone knows that the process for resolving that deadlock is in the Twelfth Amendment. The House of Representatives would pick the President from among those three and the Senate would pick the Vice-President from the top two running mates. In the House, each state receives one vote and the winner must get a majority of all the states. Over in the Senate, they just vote normally and the person with a majority wins.

What about the District of Columbia? The District of Columbia did not vote for President when the Twelfth Amendment was ratified. The Twenty-Third Amendment says that the District shall appoint presidential electors as if it were a state and that they shall meet in the District and perform such duties as provided by the twelfth article of Amendment. If the elections are thrown into the House and Senate, though, the District would be disenfranchised. Their electors cannot vote in Congress, they have no voting representatives in Congress, and the Twelfth Amendment refers only to states.

I wonder if the drafters of the Twenty-Third Amendment deliberated excluded the District from the tie-breaking procedure or just did not think about that prospect. Here's another question. Could the Congress, under its power to enforce the Twenty-Third Amendment, give the District a vote as a state in such a circumstance? Arguably not, given that the failed constitutional amendment sent to the states in the 1970s on congressional representation specifically said that the District should be treated as a state for purposes of "election of the President and Vice-President" without qualification and would have repealed the Twenty-Third Amendment. This implies that the exclusion of the District from the tie-breaking procedure was recognized then and seen as a constitutional defect.

Posted by Gerard Magliocca on January 28, 2019 at 07:32 PM | Permalink | Comments (2)

Faculty Hiring: Three Faculty Positions at Lewis & Clark

Lewis & Clark Law School is currently accepting applications for an Assistant Clinical Professor in the Low-Income Taxpayer Clinic, an Assistant Clinical Professor in the Animal Law Litigation Clinic, and a Visiting Assistant Professor (two years) in the Lawyering program. Applications for the Low-Income Taxpayer Clinic and VAP positions are due February 8, 2019. Applications for the Animal Law Litigation Clinic position are due February 15.

Posted by Howard Wasserman on January 28, 2019 at 03:37 PM in Sponsored Announcements, Teaching Law | Permalink | Comments (0)

"Two Weeks In": thoughts for first-year students

For about 15 (!) years now, I've imposed on the students in my first-year classes (Constitutional Law and Criminal Law) a version of the meandering and sprawling e-mail that's pasted below the jump.  It's meant to be an evolving reflection on legal education and formation, and the legal enterprise more generally, for (again) people who are still pretty near the starting gate.  I'd welcome (off-line or in the comments) any thoughts or suggestions for improvement!

Dear all,

We're two weeks into the new semester.  For what they're worth, here are a few reflections of mine, both about these first two weeks and about what's ahead.  You've probably heard a lot of this, from me or from others, before. Usually, I impose these thoughts -- which change every year! -- on first-semester students and, obviously, you all are more experienced than that.  Still, I thought it might be helpful to you to have a sense of how (for what it's worth) I think about what we're doing.

My view, as you've probably guessed, is that legal education is not primarily about memorizing rules, and “being a lawyer” involves more than being paid to apply clear “black letter” doctrines to clear facts.  As I see it, there is not always a clear “right answer”:  Life in the law is far more complicated -- and far more interesting -- than this, in several ways.

As I've mentioned a few times in class, we lawyers are, in many ways, story-tellers.  We investigate the facts, select our witnesses, find our evidence, ask our questions, and make our arguments.  We are, of course, both honest and creative. We try to convince the courts, and our opponents, about “the law” that applies to the case – i.e., the rules by which our “story” will be judged. We make arguments.  We draw analogies to some cases and we distinguish others.  After all, it is not always clear what the law is or what the law means.  And, we try convince our audience that “the law”, applied to “the facts”, yields the result for which we are advocating.  And, of course, we do all this mindful of the fact that we have an obligation to the truth. 

None of these three aspects of the drama of practicing law has anything to do with memorizing “black letter” rules or case-names.

You are all students at a good law school.  What does that mean?  Some think that law students are, essentially, consumers, and that “the law” is a neatly packaged product that law schools and teachers hand over, in small chunks, in exchange for huge tuition payments.  Some think that law school is a three-year bar review course, the purpose of which consists entirely in preparing one to take and pass the dreaded bar exam.   Still others might think that law-school classes can be neatly divided into “law,” which one needs to know, and “policy” and “theory,” which the professors care about but is really irrelevant.

As you might imagine, I believe these views are mistaken.  The truth is, we don’t really have a “product” for you to consume.  Instead, what we've been doing this year is inviting you into a profession and into a way of thinking about the problem of ordering the life of the community (which is the problem that law is supposed to solve).  And the study and teaching of law does not consist of me handing over, and you memorizing, briefly retaining, and then regurgitating on an exam, a set of rules called “the law.”  Legal education – if done right – is not about memorizing facts, data, and rules; it is not only about “technique.”  It is about learning to think, write, and reason – critically, carefully, and creatively.

In my view, if we are doing our jobs right, my colleagues and I are teaching and encouraging you to write clearly and persuasively; to craft sound arguments by drawing analogies and making distinctions; to abstract general principles from specific situations, to analyze complicated scenarios, and to apply the appropriate principles to the given facts and circumstances; to appreciate, when presented with a problem, which facts matter, and which facts do not; to recognize the moral dilemmas that so often arise in law (and in life), to have the strength of character to do the right thing, and to encourage others to do likewise; to think critically about legal rules and practices, and to evaluate them in light of the transcendent demands of justice and human dignity; to communicate to others, to your friends and families, to your clients, and to your communities the value and importance of the rule of law (in other words, part of what you are learning here is how to be a law teacher); and, perhaps most important, we want to encourage you to regard “being a lawyer” as “more than a job,” but a vocation.

Well, now you might be thinking, “this sounds fine, but is it practical?”  For starters, in law, theory and practice are always connected, and cannot be separated.  The practice of law is the application of theory and principles.  For example, the various “punishment theory” readings might seem abstract and theoretical; in fact, they explore ideas and arguments that play an essential role in shaping the “black letter” law.  In addition – I cannot emphasize this enough – you’ll find that when you practice law, your stock in trade will not be your memorized storehouse of legal formulas.  You’ll forget most of them pretty quickly after you graduate, if not before.

 Our stock in trade as lawyers is judgment, persuasiveness, reason, and wit.  No one is ever going to come to your office and say, “Mr. Smith, can you tell me the Rule Against Perpetuities?”  Instead, they are going to come to you with complicated problems and they will want your counsel and advice.  The solutions to these problems will rarely be clear; in fact, the problems themselves will rarely be clear.  This is why law is fun.  It is fun, challenging, and creative to identify and solve problems.  That’s what we do.

I think that an important aspect of legal education is learning to deal with uncertainty.  It's learning to deal with the fact that, sometimes, my colleagues and I won’t give you “the answer” to your question and will instead work through the competing arguments with you.   This under-determinacy can be frustrating.  But, there’s no escaping it.  If we make the law and its applications “black and white”, then we are lying to you.  To be clear:  I’m not saying that “there is no truth” or that “right and wrong are all subjective and relative.”  I’m simply saying that, in the law, there are often good arguments on both sides of a question.

I think that all this is true not only for Criminal Law, but also for your other courses, last semester and now.  In a way, the label on the book or the title of the class doesn’t matter all that much.  In all of these classes, you are learning pretty much the same thing:  How to think and write like a lawyer.  Think of it this way:  Every law-school subject has three “levels.”:  The subject’s particular rules and doctrines; the history and public-policy justifications for those rules and doctrines; and the meaning of life.  To be a good lawyer -- to deserve the name -- you have to think about law on all three levels.  In my view, no lawyer worthy of the name can be ignorant about where the principles she applies come from, or indifferent about whether they can be justified.

Finally, a favor to ask:  please do your best during your time here to build an intellectual culture here that is consistent with all this.  Allow yourself, and encourage each other, to be intrigued by and curious about the law.  Care and argue about the law.  Not every law student thinks this way, but a Notre Dame lawyer should.

Sincerely,

RG

Posted by Rick Garnett on January 28, 2019 at 09:29 AM in Criminal Law, Life of Law Schools, Rick Garnett | Permalink | Comments (3)

Sunday, January 27, 2019

Literal Sovereign Immunity

Two weeks ago the Duke of Edinburgh (the Queen's husband) was involved in a car accident and someone in another car was injured. As the Duke is 97 years old, there is some reason to think that he was negligent. Would he be liable, though, if the injured party sued him? Or is he covered by some sort of royal immunity in a "The Queen can do no wrong" sort of way.  I don't know. I take it he has auto insurance. Does he get a better rate than another 97 year old driver would? Probably.

Posted by Gerard Magliocca on January 27, 2019 at 10:47 AM | Permalink | Comments (3)

Friday, January 25, 2019

The Digital Library of The Supreme Court Historical Society

I wanted to let scholars know about a happy development. The Supreme Court Historical Society has started digitizing its library. Members of the Society can now access these works, including the Holmes Devise on the Supreme Court and many other classic books on constitutional law. You have to join the Society to obtain access, but some of you may want to consider doing that now.

Posted by Gerard Magliocca on January 25, 2019 at 11:27 AM | Permalink | Comments (2)

Wednesday, January 23, 2019

Your new civ pro exam question

A lawyer in Kentucky is threatening to sue a whole lot of people for defamation for commenting on the videos of the Covington Catholic students at the Lincoln Memorial. He was excited by the fact that, because the kids were initially not public figures, he only has to prove negligence rather than actual malice. I believe he is going to have a hard time showing falsity or negligence, since much of the commentary was based on the speaker's interpretation of multiple videos from multiple angles that painted an at-least ambiguous picture. There also is a group-libel angle--one group of potential plaintiffs are Covington Catholic alumni, who claim they have been defamed by the negative comments about their school.

For now, I have a different question: Is there personal jurisdiction in Kentucky (where I assume he plans to sue) over reporters and others on Twitter who saw and commented on the video? Under an effects test, the statements must be directed at Kentucky. That the plaintiffs are from Kentucky is not enough, standing alone. The events being commented on occurred in Washington. The statements were sent to the world, not specifically (or primarily) to Kentucky. Many of the potential defendants have never set foot in Kentucky, certainly not as part of these events.

The counter might be that the students' "Kentuckiness" was part of the public commentary about them--everyone quickly knew and talked about where they were from and where they went to school and the connection of their homes to their presence in DC. And criticism of the school and Covington was part of the criticism of the students. Perhaps that is sufficient to establish purposeful direction at Kentucky.

Posted by Howard Wasserman on January 23, 2019 at 01:08 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Nevada v. Hall and Intergenerational Legal Change

Nevada v. Hall is a decades-old sovereign immunity precedent that the Supreme Court nearly overruled several years ago, before Justice Scalia passed away. Now that the Court is back to full size, the question of whether to overrule Hall is again before the Court, and it seems likely that—once again—a conservative majority is inclined to answer yes. From one standpoint, that outcome is unsurprising: Hall has been a target of conservative critics for many years. Yet there seems to be a generational shift afoot: younger conservatives seem much more likely to think that Hall came out the right way. That apparent generational divide could shed light on Hall’s fate, as well as on broader trends in precedential change.

By way of background, Hall is a 1979 case that stands for the proposition that states lack sovereign immunity in one another’s courts. The 6-3 ruling in Hall provoked a dissent by then-Justice William Rehnquist, who would go on to lead the Court to a series of decisions that strengthened state sovereign immunity. For many years, the conventional wisdom has been that Hall is in tension with the later Rehnquist Court cases on state sovereign immunity. And conservatives have generally opposed Hall. The justices’ recent behavior supports that view: the five conservative justices seemed prepared to overrule Hall in the 2016 iteration of Franchise Tax Board of California v. Hyatt, which ultimately split 4-4 on that issue. And this month’s oral argument in the latest iteration of Hyatt also supports that impression, as all three conservatives who spoke seemed to think that Hall was wrong.

Recently, however, a number of relatively young conservative thinkers have supported Hall. Will Baude and Steve Sachs are the most salient examples, as they have defended Hall in both scholarly articles and an amicus brief that earned airtime during the latest Hyatt oral argument. But they're not alone. And while some of Hall’s newfound supporters on the right are following Baude and Sachs’s lead, others have come to their view independently. Moreover, the perceived appeal of the Baude / Sachs approach is related to larger changes in conservative thinking: as new methods and types of arguments become popular, so too do new legal positions.

Based on my own admittedly anecdotal experiences, my strong impression—shared by others I have asked—is that conservatives who have formulated a view on the issue and are under 40 years old (or so) are much more likely than their older counterparts to support Hall’s outcome. If there is indeed this generational divide among conservatives, what could explain it? There are many possibilities, but I’ll suggest two.

First, Hyatt may be exposing a deeper and broader generational divide in conservative thinking. When the Court decided Hall, supporters of state sovereign immunity were quite willing to embrace structural reasoning divorced from both constitutional text and the legal doctrines actually recognized in the founding era. For example, the lead dissent in Hall (authored by Justice Blackmun) argued that the source of state sovereign immunity lies “not in an express provision of the Constitution but in a guarantee that is implied as an essential component of federalism.” And Rehnquist’s separate dissent relied on “the implicit ordering of relationships within the federal system” and “the logic of the constitutional scheme.” By contrast, more recent conservative thinking is much more grounded in text and in preexisting or “background” legal principles. That newer approach emphasizes the Necessary and Proper Clause and the Tenth Amendment, which effected limited changes to preexisting law. But while those constitutional provisions provide support for Rehnquist Court rulings limiting federal power, they afford no basis for limiting the authority of state judiciaries.

Second, the doctrinal and strategic significance of Hall may have changed over time, causing different generations of conservatives to view the case differently. When it was decided, Hall’s reasoning portended further limitations on state sovereign immunity—as the lead dissent grimly complained. And during the 1980s and 90s, Hall did indeed offer some precedential support for liberal defenders of federal encroachments on state sovereign immunity. But the conservatives generally won the skirmishes that followed, as the Court ruled in favor of state sovereign immunity in Seminole Tribe (1996) and Alden (1999). Further, Alden distinguished Hall by recasting it in a way that limited its future ramifications. So conservatives who have grown up in the law after 2000 never had much to fear from Hall—and also haven’t had to litigate against it. Grizzled jurisprudential warriors, by contrast, may have a more vivid, and possibly outdated, sense of what preserving Hall means for the federal-state balance.

One might expect that older conservatives, including the justices, might update their views to appeal to new, trendier intellectual currents. And maybe they will—Justice Gorsuch after all was silent during the Hyatt oral argument, and other conservatives did raise textualist concerns. But no such updating occurred during Hyatt’s last visit to the Court, and it may not happen now either. Old habits, as the adage goes, are hard to break. Further, the justices can decide relatively technical issues like this one without worrying too much about suffering a reputational loss. In fact, the generational divide on this topic could be viewed as a bit academic. Even as they reject state sovereign immunity in cases like Hyatt, salient expositors of the new conservative thinking would also severely curtail the enforceability of any judgment obtained against an unconsenting state. So both old and new approaches are actually united in generally denying relief to plaintiffs like Hyatt. Representatives of the “old” way of thinking might therefore see the newer view as little more than a roundabout path to essentially the same destination.

More broadly, Hyatt offers an interesting perspective on the nature of ideological lag at the Court. Commentators often say that the justices tend toward the ideologies that reigned when they were appointed. But it might sometimes be more accurate to say that the justices are inclined toward the ideological views that prevailed twenty to thirty years earlier—when the justices were solidifying their legal views.

Posted by Richard M. Re on January 23, 2019 at 09:30 AM | Permalink | Comments (10)

Tuesday, January 22, 2019

Frivolous lawsuits for me but not for thee

What are the odds that the New Orleans Saints season-ticket holders bringing these absurd lawsuits vote Republican and support litigation reform?

Posted by Howard Wasserman on January 22, 2019 at 11:31 PM in Howard Wasserman, Sports | Permalink | Comments (10)

District Attorney Elections in 2019

Most district attorneys are elected in either a presidential election year or a congressional election year.  But some states hold elections for DA in off-cycle years.  By my count, there are 183 local prosecutors up for election in 2019.  

The jurisdictions whose prosecutors who are up for election are included after the break:

DA elections 2019

Posted by Carissa Byrne Hessick on January 22, 2019 at 02:32 PM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (0)

The New York City Gun Regulation Case

Today the Court granted certiorari in New York State Rifle and Pistol Ass'n v. New York, which raises multiple constitutional challenges to a New York City ordinance that restricts the transportation of certain licensed handguns out of the City. My initial impression from reading the Second Circuit's opinion (which upheld the ordinance) and the cert petition is that the decision below will be reversed. I'm having a hard time understanding why the ordinance passes muster under the Dormant Commerce Clause, let alone under the Second Amendment.

On the former point, New York issues a certain kind of handgun permit that says you may use the gun in your home and take it to shooting ranges within the City to practice, but you may not take the gun to a shooting range outside of the city to practice. The public safety rationale for this distinction escapes me (keep your guns here?) but it sure looks good if you're the owner a New York City shooting range.  

Posted by Gerard Magliocca on January 22, 2019 at 11:35 AM | Permalink | Comments (2)

The legal fiction of "clearly established"

Orin Kerr flags this Third Circuit decision holding that a Fourth Amendment right was not clearly established where a binding circuit decision was handed down two days before the events at issue. That was too short a time for the government to read and understand the case, develop new policies to reflect that case, and communicate those policies to the officer. Kerr ponders some interesting questions arising from the case about determining how long it takes for a right to become clearly established and what the government and/or the officer must do to learn the law.

It seems to me this exposes two problems in qualified-immunity law. One is the essentially fictitious nature of tying qualified immunity to factually similar case law--law-enforcement officers do not read or follow case law and they do not perform their daily functions thinking about how the instant situation compares or contrasts with a situation in other cases. Talking about "the law of which the officer would be aware" in terms of case law does not reflect how law enforcement operates.

Second is how the Third Circuit's focus on policymakers establishing policy to reflect the new decision and communicating that policy to the officers. This appears to collapse into municipal-liability analysis (in a case involving a municipality, as opposed to the federal or state governments, such as this one)--government policy and government training of officers is necessary to clearly establish, both hallmarks of municipal liability. So does this suggest that a right is clearly established only if a municipality would be liable for having policies contrary to law or for failing to train on those policies?

Posted by Howard Wasserman on January 22, 2019 at 11:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

"Pre-Tenure"* and "Post-Tenure" and Why They Should Be (Mostly) the Same

I commend to readers Carissa's post below and, by extension, the answers she got to her questions on That Awful Social Media Site. Someone recently reminded me of a post I wrote almost exactly a decade ago on advice for tenure. I wrote there, "Tenure generally isn't the biggest hurdle in the legal academy, for better or worse, so there's no point being unduly paranoid about it; and if that tenure is really going to be worth anything, you ought to be willing to risk it at least a little.  I should hope that we all decided to pursue legal scholarship for a reason, and that the reason wasn't just job security; so pursue it." It was admittedly written shortly after I had received tenure, but these were my views by the time I had reached the application for tenure stage. (Indeed, I passed up the chance for tenure to take a lateral position, which required me to move without the certainly of tenure. I can't say that the decision loomed large for me. And I made a number of decisions during my application period that were expressly about doing what I thought was right rather than professionally prudent, in part to remind myself of and commit myself to those views.)

Some of the same spirit is evident in Orin Kerr's response to Carissa's call for comments. Orin writes that "an ideal answer is not to change much at all, as in the ideal world the professor was already doing what they loved and wasn't doing what they were doing [because] of tenure considerations. This is more likely in law than other fields, I think, given high tenure rates." And he notes that he did a variety of things before tenure that were not on the usual menu of recommended actions.

I generally think that one should behave the same before tenure as one does after tenure. But Larry Solum's list of advice items was useful in clarifying this view slightly. There are some items on his list (specifically, 2, 4-6, and 8) that seem to be relevant to the potential difference between tenure-track professors who are untenured* and those who are tenured. For example, he writes that tenure "imposes a time frame" while tenure "removes it," and that this can affect the kinds of projects one undertakes. And he talks about using the time after tenure to "retool." Similarly, he talks about using the advantages and longer time-frame of tenure to consider new areas of teaching. As a final example, he writes in the same item that untenured professors are often more narrow, focusing on a particular subject or issue, and that one should consider expanding (including into new areas) after tenure.

Most of his other items seem equally applicable to both those without and with tenure. "Read inside and outside your field" is something that anyone pursuing this calling ought to be doing as a matter of course, in part because reading "outside your field" often adds new insights to the state of things "inside your field" and in the world, and in part because it is what civilized people, in or out of the academy--even those who generally focus on a particular subject matter--ought to do. "Self assessment," again, is something that should always be on anyone's mind, in or out of the academy, at least if they are interested in self-knowledge, humility, and the remote hope of wisdom. And remembering and focusing on "the intrinsic rewards" of one's calling, or being "present for your family or friends," are goals we should keep in mind at every stage of our adult and working lives.

There are, I think, two features common to all of the bits of advice Larry offers that seem most pertinent to untenured professors on the tenure track: 1) Those who are seeking tenure have a deadline in mind, albeit a generous one, and one that is even more generous now that many people start teaching in medias res, after already having done a fellowship and some writing and teaching. 2) Those who are in an early stage of their academic career are newer and younger and perforce have less knowledge--of their field, of the world, of their own strengths, weaknesses, and limits, of their colleagues and of the folkways of their own institution and of the legal academy. The first calls for some degree of care in choosing at least a few projects that can be completed in time, and for similar reasons in focusing to some degree on a particular area rather than having to learn new things for each project. The second calls for humility. Not necessarily prudence, of the political or strategic kind, and indeed too much cultivation of that kind of "prudence" may make one into a life-long calculator, flatterer, and self-censor. But it is fair to recognize that one doesn't know everything--about one's field, about teaching, about one's colleagues, and so on. The person who remains silent at a faculty meeting before tenure for purely calculating reasons arguably is failing in her duty of faculty governance; the person who hesitates before speaking because she is aware that she may not be aware of everything, that she may not have the right answers, that things might be more complicated than she thinks, and that the issue may have its own institutional history, and who thus wants to learn a little first, is acting wisely and humbly--prudently, even, but this kind of prudence is about one's best self rather than one's self-advancement. There are good reasons for these two factors to influence one's choices prior to tenure. The rest of his advice, it seems to me, is good no matter the stage of one's career.

So, both as practical advice and as a matter of academic and professional values, I would argue in response to Carissa's call for opinions and advice that for the most part, barring questions of timing and humility, one should be and act the same both pre- and post-tenure. As Orin notes, tenure rates at law schools are, as best as I can see from the data I have, much higher than they are for many sectors of the academy. It's true that one may also be thinking of "lateral" advancement, of fame and reputation, and so on. But even if one never moves from one's first job, for those of us who are called to this line of work even the "worst" job is the best job we have ever had. Given that, and however nervous one naturally gets about it, the reality is that tenure is not the highest of hurdles. One can, and should, think about the long term even as one keeps in mind basic shorter-term needs. Given the relatively small number of pieces required for tenure, there is room to write that book, or at least start writing it, especially if one has already done a good deal of writing and publication on the subject. There's room to think about one's teaching and service, even if humility and timing counsel not reinventing the wheel every semester. One should not see oneself as two radically different individuals--one calculating and cautious, one "liberated"--before and after tenure. 

I suggested that this advice is both practical and value-based. On the latter front, I have deliberately used the word "calling" throughout this post. That is what the life and job of a scholar and teacher is supposed to be, and one should treat it as one, and ponder and cultivate from the beginning the values and conduct of one who is called to this work. One's duties as an associate and as a partner may be different at the kinds of firms many of us worked at; but one doesn't save ethical conduct until one is a partner, and many an associate who is "called" to partnership will be thinking about clients, client development, and business questions early on, while many of us who are definitely only short-term associate material only sit in our offices and work. In any profession and/or calling, the younger professional may still have much to learn, but certain values and behaviors are supposed to be ingrained in one from the moment one begins and, in many cases, literally takes one's oath as a member of that profession. Someone who treats academia as a calling will, at least ideally, act with that calling in mind from the start and put the values, traditions, and ideals of the calling first, including putting them ahead of questionable calls that might aid one's own career. 

That said, the practical and the prescriptive are by no means wholly separate. The ideal conduct and values I'm urging here are not radically inconsistent with the hope of promotion and tenure, especially given our generally high tenure rates; even leaving aside how one should act, one generally need not be radically calculating before tenure. But there's another reason they're not separate. From the start of one's career, one is engaged in professional and personal formation. One's choices and actions inculcate values and habits that are likely to last a long time--perhaps for the whole of one's career. Without wanting to overstate the point, I worry that those who think they can act in a more "prudent" fashion pre-tenure--"prudent" in this case meaning cautious, careerist, deliberately silent, calculating, and so on--and will then act as they think they should act once they are tenured are underestimating the effects of their early choices on their longer professional formation and their identities. The person who learns early on to hide her thoughts, flatter the great, and judge every decision by how it will affect their advancement may internalize those habits and make a career of them. Tenure won't necessarily lead them to shed these habits. Moreover, they may end up applying those habits in turn to junior colleagues. The person who tells herself she should act "prudently" before tenure lest she harm her own professional chances may tell herself at the time that these are bad but necessary habits, that in an ideal world she would not have to act this way, and that she certainly won't treat new colleagues the same way. (On the other hand, cultivating humility and an awareness of what one doesn't know at an early stage of one's career is something one should do regardless of professional advancement.) But upon reaching tenure, she may find that she is repeating the same advice she got when she started--and she may even end up judging negatively those who don't play this kind of game as juniors, thinking of them as presumptuous, incautious, unwise, naively unaware of "the game," stubbornly or rudely unwilling to take her advice, and so on. What everyone is supposed to be thinking of as a temporary and unfortunate expedient may simply become the culture of the institution, both one's own local institution and the broader (legal) academy. We will reproduce careerism just as we reproduce hierarchy. 

Combining the two strands of this post, I would offer the following advice. 1) By all means remember that if you want tenure, you have a deadline and a set of requirements to meet by that deadline. Don't let it creep up on you and surprise you, and don't get so distracted by other things that you fail to do what is needed. 2) By all means remember that you are just starting out and don't know everything: not only about your field, but about your colleagues, your institution, and what it means to be a good or great academic. By all means don't hold your tongue at every faculty meeting, including on issues that matter a great deal to you, simply for reasons of self-preservation. Once you are a faculty member you are a part of the governance of your institution and have a right and sometimes obligation to speak. But remember that there are sometimes good reasons to be cautious in speaking: namely, that you may not know as much as you think you do about the issue, its history, or what your colleagues have already done. 3) Those two considerations aside, think of your work as a calling, think about what kind of academic you want to be, what academic values entail, and what kind of world you would want both untenured and post-tenure faculty to occupy--and act accordingly. Deadline and humility issues aside, do nothing before tenure that you believe you would find objectionable after tenure. Your views may change over time. But you will be getting an early start at cultivating the kinds of habits and values that will serve you, your home institution, and the legal academy as a broader institution well. 4) When the time comes to give advice and support to untenured colleagues, by all means offer prudential advice. But make sure the junior colleague knows that it is only prudential advice, that it's only instrumental, and that there are other kinds of advice they need as well. Offer and model deeper values and the concept of a calling, and encourage your junior colleagues to be their best and not just their most calculating selves as academics--and be sure to support them if and when they do so, rather than punishing them for not following regnant careerist conventions.

If you find that you are not doing so--that you are acting differently before tenure than you would want to after tenure, that you are acting as a careerist now while promising yourself that you will be "liberated" to pursue legal academia as a "calling" later, or what have you--then there are several possible conclusions you might consider. I say this with all due consciousness that we are all human and imperfect, that this includes tenured and senior colleagues as well as untenured colleagues, that it's understandable to want to keep one's job and achieve goals like tenure and advancement, and so on. One possibility is that your colleagues are failing in their duty: they are failing to treat the academic life as a calling and act according to its values. If it is really the case that they expect you to behave differently before tenure, and not for reasons of timing or humility, then your institution has a problem and its members need to think seriously about their values and conduct and about whether they are in the right place. Another is that you are making undue assumptions about your colleagues. You may assume that they all expect you to act in a particular way, and in doing so be giving them too little credit. Don't assume the worst of them right off the bat--even if it is true for some of them, and even if a senior colleague, perhaps one of those who imbibed certain "prudent" habits early on and forgot to let go of them after tenure, and who assumes the same is true of everyone else, tells you, with what might be undue confidence and certitude, that everyone and everything is political and you should act accordingly. 3) Although this seems harsh, it's not meant to be. It may be that it's you, not your colleagues, who needs to rethink things--including whether you really have a calling as an academic. It's surely better to think about that relatively early (although one hopes that one would think about it long and hard before ever taking the job or going down that road, and then commit to the right values once one has committed to that path) than too late--not just for yourself and your own happiness, but for the sake of the effect you will have on your own institution and on legal academia more generally as you become a senior colleague. 

* I have used the term "untenured" rather than "pre-tenured" throughout. I don't know when "pre-tenured" became the norm. Certainly there are times when one might need to distinguish descriptively between different professional lines or offices within the academy, the most prominent being tenure-track versus non-tenure-track. But when one is clearly talking about people on the tenure track, "untenured" seems a better word than "pre-tenured." There is no normative implication to "untenured," no insult or lack of dignity; it's a pretty simple descriptive term and, on the whole, a neutral one. "Pre-tenured," on the other hand, is technically accurate but seems to be designed with some vaguely therapeutic or validating purpose in mind, and to carry the loaded assumption that everyone who is untenured ought to be tenured. Except in cases where it serves some precise delineating or defining purpose, I'm not sure what justifiable linguistic purpose is served by the widespread adoption of the term "pre-tenured."     

 

Posted by Paul Horwitz on January 22, 2019 at 10:22 AM in Paul Horwitz | Permalink | Comments (2)

Monday, January 21, 2019

SCOTUS does Civ Pro, confusedly

I just listened to last week's argument in Home Depot v. Jackson, which showed how confused the Justices get about Civ Pro. The issue is whether a third-party claim brought under CAFA can be removed by the third-party defendant. In the case, Citibank brought a debt-collection against against Jackson in state court; Jackson filed a counterclaim and impleaded Home Depot on an unfair trade practices class action. Home Depot wanted to remove the third-party claim under CAFA, which allows for removal of class actions with an amount-in-controversy over $ 5m on minimal diversity. The Court has held that a counterclaim defendant (otherwise known as the original plaintiff) cannot remove; the question is whether that is true of a third-party defendant.

Some thoughts:

• There was a lot of confusion about the distinction among counterclaims, cross claims, and third-party claims, even among the advocates. That confusion affected the question of whether Home Depot is a "defendant" or a "third-party defendant" and whether there is a difference between those two things. Does "any defendant" in § 1453(b) include third-party defendants as well as original defendants? Or, to put it in dueling metaphors, is a third-party defendant a black rabbit compared with all other defendant/rabbits? Or is a defendant a rabbit and a third-party defendant a weasel.

• Jackson's lawyer made what I think should be the key point, although I am not sure the Justices saw it this way (Justice Breyer hinted at the point in his own unknowing way). If Home Depot can remove here, then any third-party defendant can remove if he is diverse from the defendant/third-party plaintiff. (He gave an example of a generic tort action against a corporation, with the corporation then impleading its diverse insurer, which then removes). I do not see a relevant difference between CAFA removal of a class action and § 1441 removal of that, or any other, individual action. I did not hear Home Depot's counsel or any Justice suggest one. So if a third-party defendant is a defendant, then all third-party claims must be removable, not only those removable under CAFA.

• I kept thinking that it also would allow removal of a federal claim brought as a third-party complaint. There was some discussion about that being limited by the Well Pleaded Complaint rule, which applies to § 1331 but not § 1332. But I always have understood the WPC as implicitly applying to § 1332, as well, by placing the focus on the identities of the parties and claims named in the WPC--we determine diversity by looking at the parties named and the amount sought in the complaint. The point being that unless Congress says otherwise (as in America Invents), the "civil action" removable under § 1441 is the one established in the complaint and removal cannot be based on additional claims filed by different parties against anyone.

• Justice Alito came across as disrespectful of advocates who urge positions he disagrees with and law reviews. Consider this exchange

JUSTICE ALITO: . . . somebody came up with this idea of using this sort of proceeding as a way of getting around CAFA. And there's a law review article that actually says, after CAFA, well, look, we found a way to get around CAFA so thatwe can keep these things in state court. Is that not correct?

PAUL BLAND:  . . .There was a law review article by an advocate. It's not really a law review article and a peer-reviewed article. I think it's more like a blog. But, anyhow, a guy writes an article saying -

* * *

JUSTICE ALITO: Since when are law review articles peer reviewed?

MR. BLAND: You know, that's a good point.

JUSTICE ALITO: Who are they reviewed by?

(Laughter.)

MR. BLAND:

You're totally right. I-- I'm so sorry. I -- I should never have said that, you're right.

JUSTICE ALITO: They should be -- maybe they should be peer reviewed.

MR. BLAND: Law review articles are student reviewed, they're not peer reviewed. I -- I -- I withdraw. That was --

JUSTICE BREYER: I'm fine on law review articles.

The law review stuff is a funny exchange. But the underlying premise is that Jackson's argument to keep the case in state court is somehow illegitimate because it originated on the pages of law reviews. This is troubling for a couple of reasons. Justice Alito does not express similar concerns with the creative, scholar-driven theories urged (and continuing to be urged) against the Affordable Care Act. If you believe Chief Justice Roberts, the problem with legal scholarship is that it is not sufficiently helpful to lawyers and courts. Now, an idea urged in court is somehow questionable because it was presented in scholarship as a way to convince lawyers and courts on an issue. This is not the first time that Justice Alito has cast aspersions on advocates urging positions towards a legal goal--he similarly questions death-penalty abolitionists for their advocacy.

Posted by Howard Wasserman on January 21, 2019 at 01:26 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Life After Tenure

Several years ago, I attended a panel at SEALS about life after tenure.  I went to the panel because I was almost tenured myself, and I realized that I hadn’t given much thought to how I would conduct my professional life once I’d cleared the hurdle of tenure.  I forget the precise name of the panel and the people who were speaking.  But the panel nonetheless stands out in my memory for two reasons:  First, there was a very big audience for this panel.  And second, I walked out of that room thinking that no one had a particularly good answer to the question “what should you do once you get tenure.”

To be clear, people on the panel and in the audience all had different answers for the question—both about what professors should do, and what they personally had done.  Some people at the panel talked about taking on more administrative responsibility, like serving as associate dean and trying to become a dean somewhere.  One person recommended learning a new language.  Some others recommended that professors “slow down.”

In recent weeks, I’ve found myself thinking about that panel again.  One reason I’ve been thinking about this topic is that I’ve been invited to speak at a conference on March 30th called “Tenure! Now What?” (There are a lot of fancy people speaking at the conference, and so I feel pressure to say something thoughtful.) 

Another reason that I’ve been thinking about this is more personal:  Someone recently asked me where I wanted my career to be in 5 years.  I didn’t have a response other than to say I haven’t thought about my life in those terms since I got tenure.  The question made me think about the fact that I probably only 20 or 25 years left in the academy.  And so I’ve started to take stock and think about what I want to accomplish in those years.

In any event, I am still looking for answers about what people ought to do once they get tenure.  After all, I need to sound smart at the conference.  That led me to pose the question on Twitter.  Some of the answers were very good --- I recommend that you read the replies to the tweet here. In particular, I recommend Barry Friedman’s standalone thread on the topic, and Orin Kerr's tweets about how asking the question about what to do after tenure raises serious questions about what we are doing before tenure.  Please feel free to add your own thoughts in the comments to this post.  And if you are interested in attending the conference, registration is still open.

Posted by Carissa Byrne Hessick on January 21, 2019 at 10:02 AM in Carissa Byrne Hessick, Life of Law Schools | Permalink | Comments (2)

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 (17)

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 (5)

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 (1)

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 (2)

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)