« January 2019 | Main | March 2019 »

Thursday, February 28, 2019

Prof. Thomas L. Shaffer, RIP

My colleague -- and friend, teacher, mentor, inspiration -- Prof. Thomas Shaffer died on Tuesday. A former dean of the Notre Dame Law School, he was a creative, provocative, and incredibly prolific scholar. His writings on legal ethics, narrative, literature, poverty, religion, clinical teaching, and other things are a wonderful legacy.  I recommend this lovely remembrance by Tom's student and friend, Prof. Robert Cochran (Pepperdine). 

I first discovered his work during my second year of law school, when I was in a (great) seminar taught by David Luban on "The Legal Profession."  He assigned an article of Tom's called The Legal Ethics of Radical Individualism.  The piece's claims, tones, and premises were very different from most of what I was reading as a law student, and his unapologetic transparency about the relevance to lawyering of one's religious faith and commitments was welcome and inspiring.  It opened with this:

Most of what American lawyers and law teachers call legal ethics is not ethics. . . .  Its appeal is not to conscience, but to sanction. It seems mandate rather than insight.  [It] rests on two doctrines:  first, that fact and value are separate; and second, that the moral agent acts alone; as W.H. Auden put it, each of us is alone on a moral planet tamed by terror. . . .

Ethics properly defined is thinking about morals. It is an intellectual activity and an appropriate academic discipline, but it is valid only to the extent that it truthfully describes what is going on. . . .  [O]rganic communities of persons are prior to life and in culture to individuals-- in other words, . . . the moral agent is not alone.    

This article led me to Tom's books, American Lawyers and Their CommunitiesOn Being a Christian and a Lawyer, Faith and the Professions, and then to his radically (think Hauerwas, etc.) Christian brand of communitarianism more generally. I wrote a paper for Luban's seminar on the legal ethics issues raised by representing so-called "death row volunteers" that became, eventually, this early article of mine. I mailed my paper to Tom -- whom I'd never met and who was, after all, being paid to teach other students, not me! -- and he wrote me back a three-page, single-spaced letter with helpful feedback, comments, and encouragement.  I was so happy to be able thank him, five years later, when I came to Notre Dame to be his colleague.

Tom was a deeply good person with a genuine heart for those on the margins. He was a chaired professor, but insisted on working and teaching in the Legal Aid Clinic. I believe that I very well might not be a legal academic today, but for him, and I'm very grateful to him for that (and many other things). RIP.

Posted by Rick Garnett on February 28, 2019 at 11:07 AM in Rick Garnett | Permalink | Comments (3)

JOTWELL: Kalajdzic on Erichson on class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Howard M. Erichson, Civil Litigation Reform in the Trump Era: Threats and Opportunities Searching for Salvageable Ideas in FICALA, 87 Fordham L. Rev. 19 (2018).

Posted by Howard Wasserman on February 28, 2019 at 09:43 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Everyone needs a lawyer

So argues Ken White (of Popehat fame) about yesterday's Michael Cohen hearing. Everyone needed the unique skills that trial lawyers provide about how to behave as a witness (Cohen), how to handle a sleazeball witness who helps you (Committee Democrats), and how to conduct cross examination without just loudly attacking the witness (Committee Republicans). It dovetails with this argument that real oversight requires the hiring of skilled lawyers to conduct the questioning, not grandstanding political figures.

Posted by Howard Wasserman on February 28, 2019 at 08:56 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, February 27, 2019

A question for crim pro types

A federal court ruled last week that federal prosecutors (namely, then S.D. Fla. US attorney, now-Secretary of Labor Alex Acosta) violated the Crime Victims Rights Act in entering a plea agreement and non-prosecution agreement with Jeffrey Epstein over sex-trafficking and related charges. The victims want the court to invalidate the plea agreement and NPA.

My question for learned crim pro type: How is such a remedy possible? The US Attorney agreed to the NPA in exchange for Epstein pleading to, and serving time on, the state charges.* Epstein now has served that sentence (although he remains under its collateral consequences, such as being a registered sex offender).

[*] At his confirmation hearing, Acosta defended the deal by arguing that it is a good result when the agreement to drop the difficult federal charges could produce some jail time.

Wouldn't invalidating the federal plea agreement implicate his state conviction and sentence? And would that create some Double Jeopardy or Due Process problems? Obviously there is no true Double Jeopardy problem if the federal government now prosecutes him regardless of what happened in state court. But does it change when the federal and state charges were enmeshed and agreements as to one implicated agreements as to the other?

Posted by Howard Wasserman on February 27, 2019 at 08:54 AM in Criminal Law, Howard Wasserman | Permalink | Comments (10)

Tuesday, February 26, 2019

Fast food justice

One of my professional regrets is that I was unable to place this piece in any law review, although it remains my most-downloaded piece on SSRN. It was too early in the days of online supplements, I was entering only my third year, and I could not find any place for it.

This case would make a wonderful addition to the sequel (H/T: Peter Oh of Pitt): A Connecticut man is challenging a $ 300 traffic ticket for distracted driving by arguing that what the officer believed was his cellphone was a McDonald's hash brown that he was eating for breakfast while driving.* He was convicted by a magistrate, appealed to a trial judge, and is awaiting ruling.

[*] Query how eating while driving does not distract a driver.

Posted by Howard Wasserman on February 26, 2019 at 05:20 PM in Criminal Law, Food and Drink, Howard Wasserman | Permalink | Comments (1)

Mandatory-but-non-jurisdictional FRCP 23(f)

SCOTUS on Tuesday decided Nutraceutical Corp. v. Lambert, holding that FRCP 23(f)'s 14-day time period for seeking permission for interlocutory appeal of a class-certification order is a mandatory claim-processing rule not subject to equitable tolling. My SCOTUSBlog analysis is here. The Court was unanimous, per Justice Sotomayor.

It appears that the Court is approaching something like clear lines, at least in how to approach questions if not the answer with respect to any particular rule. Anything appearing in an REA-established rule must be a non-jurisdictional claim-processing rule. That leads to the second question of whether that claim-processing rule, while non-jurisdictional, possesses similar characteristics, such as non-tolling, based on the text, structure, and history of that rule.

On the other hand, under Scott Dodson's approach (which the Court expressly considered but declined to adopt in Hamer) this would have been jurisdictional, as it marked the line between courts. Of course, Dodson then would have required the Court to consider tolling, because rules can be jurisdictional but still subject to equitable exception.

Posted by Howard Wasserman on February 26, 2019 at 03:12 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Monday, February 25, 2019

Two Kinds of Overruling: Teardowns and Cleanups

This term, the Court is confronting a range of stare decisis issues, including in cases that don’t exactly qualify as blockbusters. The contrast between these cases and last term’s relatively big overrulings in Janus and Wayfair got me thinking about different ways that the doctrinal stare decisis factors can play out. Here are some initial thoughts, with an invitation for comments and reactions.

Imagine that a court thinks a precedent is incorrect and is deciding whether to overrule it. In that situation, the court will naturally be drawn toward two basic dimensions of pragmatic impact: the harm of overturning the erroneous precedent and the benefit of adopting the correct legal rule. And we can further distinguish between scenarios where each of these variables is either large or small. Paradigmatically, the harm is large when a precedent has engendered reliance and small when it hasn’t; and the benefit is large if precedent is either unworkable or insensitive to importantly changed circumstances. 

The result is a simple two-by-two matrix.

 

 

 

Benefits

   

Large

Small

Costs

Large

Teardowns

[Preserve]

Small [Overrule]

Cleanups

 

In two of the cells, it is fairly clear which way the analysis points, at least if we view cost/benefit analysis as relevant to stare decisis. When benefits are small and costs are large, it is probably a good idea to preserve the precedent. And when benefits are large and costs are small, it is probably a good idea to overrule the precedent.

But what about cases where the benefits and costs are both either large or small? I’ll call those cases teardowns and cleanups, respectively. In other words, a teardown is a case with large benefits and large costs; and a cleanup is a case with low benefits and low costs. For recent examples, we might take Janus as an illustrative teardown and the still-pending Hyatt as a cleanup. How should courts approach these sorts of cases?

One possible answer is that the deciding court should just figure out which variable is larger: benefits or costs. But what if the teardown or cleanup involves a cost/benefit analysis that is too uncertain or small to be decisive? In other cases, the court might feel strongly that the balance tips one way or the other while also realizing that many observers will fiercely disagree, perhaps for merits-relevant reasons. There, too, the Court might want to look further, in search of other, more widely appealing modes of argument.

Another potential answer is that the deciding court could rethink its decision to overrule and instead try to narrow the precedent, signal the precedent’s potential demise, or only partially overrule the precedent, in the hope of getting a more desirable cost/benefit ratio. But those options aren’t always available, sometimes because they’ve already been tried. At some point, the best or most viable options are either to overrule or not to do so.

There is a third possible answer: The court could look beyond the consequences of overturning the specific precedent at issue and consider the systemic effects of its decision. In other words, the court will wonder about how overruling today will contribute to a rule, pattern, or practice that will in the aggregate have a practical impact.  

The systemic effects that most point toward preserving precedent are captured by terms like stability. The intuition is that an overruling anywhere will degrade the force of precedent everywhere. You can see these modes of argument coming to the fore in both teardowns and cleanups. For instance, Casey, which some justices would have used to accomplish a teardown of Roe, rejected that move by going long on the aforementioned themes. And Justice Breyer’s oral argument comments in Hyatt, which again is a strong candidate for a cleanup, emphasized that one overruling tends to encourage litigants to seek many more.

Though less heralded, there are also systemic effects that support overruling. The watchword here is coherence. When precedent aligns with first principles or larger doctrinal patterns, it is often easier to learn the law, debate it, and predict its evolution. There are fewer exceptions, not as many conflicting principles, and less room to litigate. As a result, the expected costs of research and legal services could decline overall, and they might also become more evenly distributed, fostering equal access to justice.

Sometimes, the drive for coherence supports a bold departure from existing case law, yielding a comprehensive transformation. Brown might be an example: after chipping away at separate-but-equal, the Court initiated a teardown. At other times, coherence counsels in favor of bringing outlier rulings into line with a larger pattern of existing cases. Hyatt, if viewed as a cleanup of Nevada v. Hall, could qualify. 

The balance of systemic effects probably plays out differently in the context of teardowns as opposed to cleanups. Teardowns, after all, are generally much more salient than cleanups, due to their large effects. So a teardown is more likely to influence views held by the public at large, whereas awareness of a cleanup will usually be limited to a smaller group of affected people as well as legal sophisticates.

This salience differential suggests that the stability / coherence tradeoff might have different implications in the two contexts. For one thing, the public at large would probably have a harder time evaluating a ruling on any basis other than the appeal of the outcome, whereas sophisticates would be more likely to evaluate a ruling’s legal merits. If true, this point would suggest that whether a precedent is a doctrinal outlier should matter more when justifying cleanups like Hyatt as opposed to teardowns like Janus. Similar points could be made about other legalistic stare decisis factors, such as whether a precedent has come in for judicial criticism or proven unworkably difficult for courts to apply.

What kind of consideration is more likely to be suitable when justifying a teardown? By its nature, a teardown achieves what many will perceive as a transfer of wellbeing, away from people who like the precedent and toward the people who favor the new ruling. And, again, the legalistic merits of that transfer will likely be lost on the many lay people affected. So perhaps teardowns’ justifiability largely turns on whether the admittedly large costs they incur will be transitional as opposed to permanent.

Take the redistricting required by Reynolds v. Sims, which yielded a new, stable political order. Brown may also qualify, in that the country eventually came to accept formal school desegregation as a cornerstone principle of law. Teardowns would be harder to justify in cases like Casey where—at least as the lead plurality saw things—the Court was choosing between conflicting social views that would persist far into the future.

The Court has a number of opportunities to overrule this term, including in Hyatt, the prospective cleanup discussed above. I’ll try to circle round after the term is over to see how the Court’s reasoning lines up with the tentative framework outlined above. 

Posted by Richard M. Re on February 25, 2019 at 09:29 AM | Permalink | Comments (7)

Sunday, February 24, 2019

New flag controversy at Ole Miss, different result (so far)

Prior to a game played while about 100 pro-Confederacy protesters marched through Oxford and onto campus a few hundred feet from the arena, where they were met by about 50 counter-protesters.

At least so far, no one has criticized the players, not even the President. I am curious whether anyone will do so, given that this in specific response to what many people regard as a racist rally by a "hate group." This also highlights the changing meaning of using the flag to counter-speak--the message here was different in context than what Kaepernick did. Finally, we have clear state action here, unlike with the NFL; any attempt to punish the players would implicate First Amendment rights.

Ole Miss Coach Kermit Davis spoke about it after the game (video is embedded in some of the links above):

This was all about the hate groups that came to our community trying to spread racism and bigotry, you know, in our community. It’s created a lot of tension for our campus. I think our players made an emotional decision to show these people they’re not welcome on our campus. We respect our players freedom and ability to choose that.”

Davis' support is important because when was announced as coach last spring, he went out of his way to announce that he would create a program with a "respectful team that respects the flag and the National Anthem." Perhaps he now realizes that these protests are not disrespectful--or at least that it is not as simple as throwing around the word respect.

Posted by Howard Wasserman on February 24, 2019 at 01:12 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)

Friday, February 22, 2019

Are the Direct Tax Clauses Still in the Constitution?

Elizabeth Warren's proposed wealth tax has stirred renewed interest in the Direct Tax Clauses of the Constitution. I have written about these clauses and about the Supreme Court's ill-considered decision in Pollock (overruled by the Sixteenth Amendment) holding that the income tax was direct. In looking at the relevant texts, though, I wonder if the Fourteenth Amendment repealed the Direct Tax Clauses.

Section 2 of the Fourteenth Amendment begins with the following sentence:

"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

This is a revision of the following sentence in Article One, Section Two of the Constitution:

"Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

How are these two provisions different? One edit (the deletion of "which may be included within this Union") is stylistic. The others relate to the abolition of slavery and involuntary servitude. The Three-Fifths Clause was removed, the reference to indentured servants was removed, and the word "free" was no longer necessary to qualify "persons."

Do you see the other change? There is no reference to direct taxes in Section Two of the Fourteenth Amendment. Why not? One thought is that the rest of Section Two talks only about representation (the penalty that states would face if they disenfranchised the freed slaves) and thus there was no need to mention taxes. Another thought, though, is that direct taxes as originally understood included taxes on slaves. Thus, the abolition of slavery could have been read as eliminating the need for a special category of direct taxes that required apportionment among the states.

Is there any other evidence to support the view that Section Two of the Fourteenth Amendment repealed the Direct Tax Clauses? I don't know. Not in the Supreme Court's cases construing "direct taxes" after 1868. Whether there is anything in the debates on the Fourteenth Amendment or other commentary from that time is something I plan to check.

Sometimes reading the text closely yields new insights. Sometimes not. Which one is this?

Posted by Gerard Magliocca on February 22, 2019 at 09:38 AM | Permalink | Comments (3)

Thursday, February 21, 2019

The Litigation on the National Emergency Declaration

When you read the complaint filed by the states, then you can see that the constitutional arguments are largely window dressing. If the statute does not give the President the authority to shift money around to fund the law, then I agree that his action is unconstitutional. I'm not sure, though, that the President will even argue that he has inherent authority to build the wall. The states do not say that they think the National Emergencies Act is unconstitutional.

One other thought. Suppose a preliminary injunction is granted by the District Court. The Government appeals is denied emergency relief in the Ninth Circuit. If the Supreme Court also denied emergency relief, isn't that a rather telling statement that there is not, in fact, an emergency? How can emergency relief be denied if there is an emergency under the relevant statute? (I realize this connection does not necessarily follow as a statutory matter, but in a common-sense way it kind of does.)

 

Posted by Gerard Magliocca on February 21, 2019 at 11:25 AM | Permalink | Comments (8)

Tuesday, February 19, 2019

Thomas calls for reconsideration of NYT v. Sullivan

In a solo opinion concurring in denial of cert in a defamation action brought by one of the women who accused Bill Cosby of sexual assault. It is typical Thomas fare--rejecting a precedent as an improper judicial policy choice that should be reexamined in light of history, convincing to no one else on the Court. But do not be surprised if it makes its way into a presidential tweet as part of his plan to "open up" libel laws--overruling Sullivan is the first, necessary step to that end.

In the final paragraph, Thomas writes "We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified." But this seems like a rhetorical cheat. The Free Speech Clause was not incorporated against the states under the Fourteenth Amendment until 1925. So, to the extent time matters, it took less than 40 years for the Court to begin meddling in this area, a shorter period of time.

Update: Someone reminded me of an additional point. Another reason that the Court did not use the First Amendment to limit defamation until 1964 was because it was not until 1960 that public officials in Alabama began an organized campaign to use big-money defamation lawsuits to stop the northern press from reporting about segregation and Massive Resistance to Brown, revealing the similarity between seditious libel and defamation when brought to bear by public officials in this context.

Posted by Howard Wasserman on February 19, 2019 at 12:07 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (9)

Monday, February 18, 2019

Judicial Dignity

In a recent conversation with a judge from another country, I heard something that made me think. He said that a key aspect of judicial authority is dignity. Judges have authority in part because they act in a sober and thoughtful manner that is constrained. Take that away, and judges will lose the respect that they rely upon.

This idea dovetails with some comments that Winston Churchill made about judges in a speech arguing for a pay increase for them in 1954. The Prime Minister told the House of Commons: "A form of life and conduct far more severe and restricted than that of ordinary people is required from judges, and though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct."

There are many ways, of course, in which judicial ethics (written or unwritten) support this principle. Perhaps more should be done, however. One wonders, for example, whether judges should be on social media. One wonders if some more developed Code of Ethics should be applied to the Supreme Court. And one might wonder how norms of civility should inform the rhetoric in judicial opinions.

 

Posted by Gerard Magliocca on February 18, 2019 at 12:27 PM | Permalink | Comments (6)

Sunday, February 17, 2019

The continued relevance of Barnette (Updated)

In Lakeland, Florida.

Update, Monday, 2/18: More stories and details coming out about the arrest, including the Lakeland Police offering the following:

To be clear, the student was NOT arrested for refusing to participate in the pledge; students are not required to participate in the Pledge of Allegiance as noted in the Polk County School Board Code of Conduct for Students. This arrest was based on the student’s choice to disrupt the classroom, make threats and resisting the officer’s efforts to leave the classroom. The students name is not being released in accordance with Florida Public Record Laws regarding juveniles arrested for a misdemeanor.

But note the question-begging here. The Dean of Students and a police officer went to the classroom on a report of a disturbance and asked the student to leave, which he finally did after 20 requests; the student was arrested for disrupting a school function and resisting the officer. But the "disturbance" that triggered the initial classroom visit was created by the substitute teacher who argued with the student when he declined to recite the pledge. The Dean and the police removed the student from the classroom even though the teacher acted inappropriately, as the school recognized in asking the teacher to leave the school immediately.

There also is some blame-shifting and ass-covering between the school and the police. The school insists that it did not request an arrest or that charges be filed, that it merely discussed the code of conduct with the student and his family, and that it does not condone what the substitute teacher did. Meanwhile, the police are setting up a contempt-of-cop argument: The kid got lippy and resistant, justifying the arrest; it is not about the speech in which he engaged. This as we wait for SCOTUS to decide whether probable cause for some charges justifies retaliation for First Amendment conduct.

Posted by Howard Wasserman on February 17, 2019 at 02:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (13)

Call for Papers: A Critical Guide to Civil Procedure

Boston University School of Law (host; co-sponsors Seattle University and University of Washington)

Workshop Date: Wednesday, May 8, 2019

Abstract Deadline: March 15, 2019

Convenors: Portia Pedro, Brooke Coleman, Suzette Malveaux, & Elizabeth Porter

Civil Procedure is not a technocratic, neutral area of study, yet there is no collection of civil procedural scholarship engaging perspectives at the margins. In this workshop, we will discuss these perspectives. The workshop will support a book project that the convenors are editing.

The idea for the book project is to create a critical reference guide for the core civ pro concepts students learn every year. We envision a collection of essays - loosely keyed to traditional textbook topics - that reveal the relationship between civil procedural rules/doctrines and race, gender, sexual orientation, national origin, class, and disability. In addition to basic civil procedure concepts like pleading, jurisdiction, discovery, and aggregate litigation, we hope to include a critical analysis of related topics such as rulemaking institutions, arbitration, and remedies.

This workshop will include authors who have already agreed to contribute to this book project, but we also want to bring in more voices. At the workshop, contributors will discuss a five-page precis of their essay (precis are to be submitted in advance of the workshop). The final essays should be roughly 10,000 words, including footnotes. (Essays should not include “Part I” basic background, but should center on the author’s critical analysis.) The essays for the book project are due by August 1, 2019.

If you are interested in participating in the workshop and contributing to the book, please submit an abstract and author biography (no longer than 500 words each) by March 15, 2019 to [email protected]. We will select papers by April 1, 2019

The workshop will provide meals for contributors. Contributors must cover travel and lodging costs. Information about reasonably-priced hotels will be provided as the date approaches.  

 Financial Assistance: Convenors may allocate limited funds to help cover partial travel expenses or accommodations for a small number of selected participants. If you wish to be considered for financial assistance, please submit a separate written request, specifying your city of departure and an estimate of travel costs, along with your abstract submission. We regret in advance that we are unable to provide full financial assistance to participants. Feel free to contact us with any questions.

Brooke Coleman ([email protected])

Suzette Malveaux ([email protected])

Portia Pedro ([email protected])

Elizabeth Porter ([email protected])

 

Posted by Howard Wasserman on February 17, 2019 at 02:33 PM in Civil Procedure | Permalink | Comments (0)

Saturday, February 16, 2019

Random thoughts on a Saturday

• In announcing his state of emergency, President Trump went on a rambling and oddly cadenced tangent about how horrible the Ninth Circuit is. I wonder how he feels about the District of D.C. and the D.C. Circuit and whether he believes the case belongs there.

• This offers another example of indivisible rights and remedies. The President cannot be enjoined from moving money or building the wall as to some people and not others, especially as to the environmental groups, who claim standing (on behalf of their members) arising from the loss of enjoyment of many stretches along the border.

• When pro golfer Matt Kuchar won $ 1.3 million and paid fill-in caddie David Ortiz $ 5000 (whereas caddies typically earn  10% of the golfer's purse), did he also promise that on his deathbed Ortiz would receive total consciousness?

Posted by Howard Wasserman on February 16, 2019 at 02:40 PM in Howard Wasserman | Permalink | Comments (2)

Friday, February 15, 2019

Cert before judgment

SCOTUS granted cert before judgment under § 1254(1) in Dept. of Commerce v. New York, the challenge to the inclusion of a citizenship question on the census format. The Court added it to the April sitting. This is the first time it has done this with a stand-alone case since Dames & Moore in 1982. Other high-profile examples were Youngstown Steel and Nixon.

Presumably the Court sees the case as uniquely time-sensitive because DOC must complete the census form by the end of spring/beginning of summer.

Posted by Howard Wasserman on February 15, 2019 at 02:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

The Non-Non-Delegation Doctrine

One common talking point about the national emergency declaration is that the President's action is unconstitutional. For this to be true, the National Emergencies Act must be invalid. Why might that be true though?

I can't think of a reason. Congress has broad discretion to delegate its authority. Why then could Congress not delegate its spending authority under certain circumstances? Because the power of the purse is not delegable? The fact that such a delegation was foolish is not a constitutional claim. I'll be curious to see whether the forthcoming lawsuits stick to statutory arguments or come up with some novel limitation on Congress's authority to delegate.

UPDATE: Perhaps you could say that Congress cannot delegate the power of the purse. I do not know what examples there are of Congress doing that. They have delegated the President broad discretion over tariffs, but maybe that can be distinguished from delegations of spending authority. There are self-funded agencies (such as the Federal Reserve) but maybe that is also different. Lots to chew over.

Posted by Gerard Magliocca on February 15, 2019 at 11:53 AM | Permalink | Comments (5)

Thursday, February 14, 2019

Kansas seeks VAP

The University of Kansas School of Law invites applications for Visiting Assistant Professor positions to begin in the Fall of 2019. These are full-time, non-tenure track positions for the 2019-2020 academic year.

We are seeking entry-level candidates with a demonstrated potential for scholarly achievement and teaching excellence particularly in Torts, Constitutional Law, Contracts, Criminal Law, and Business Law. In a continuing effort to enrich its academic environment and provide equal educational and employment opportunities, the university actively encourages applications from members of underrepresented groups in higher education. Women, minorities, and candidates who will contribute to the climate of diversity in the Law School, including a diversity of scholarly approaches, are especially encouraged to apply.

https://urldefense.proofpoint.com/v2/url?u=https-3A__employment.ku.edu_visiting-2Dassistant-2Dprofessor_13597br&d=DwIFAg&c=lhMMI368wojMYNABHh1gQQ&r=25iL7pHNVMMBonOKjqd7dQ&m=ODAfYf7aWYsZR3XX5LzsWFLtvr3n04PGoQgy4ZRyEHo&s=BpKDVaG8e6g_bqEq5umvtIu9qu0b6FJCLr3iLT5GjS0&e=

Posted by Howard Wasserman on February 14, 2019 at 01:15 PM in Teaching Law | Permalink | Comments (0)

"Over My Dead Body"

We have intentionally avoided talking about Dan's murder, the investigations and prosecutions that have followed, and various stories and speculation about all of it.

Nevertheless, I want to flag the new Podcast Over My Dead Body (from the same company that did Dirty John, which I did not listen to, and Dr. Death, which was great), which will spend the first season talking about Dan, the marriage, and the case. The first three episodes dropped this week; I am about halfway through # 1. So far, the reporting is straight-forward and not salacious or tacky, if a bit tongue-in-cheek at points (as most podcasts are). Dan's parents are interviewed and are sources for the material, as is David Lat of Above the Law.

Posted by Howard Wasserman on February 14, 2019 at 11:25 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Chapman, "Money for Missionaries"

Nathan Chapman (Georgia) has posted a fascinating new paper at SSRN.  It's called "Money for Missionaries:  Rethinking Establishment Clause History."  (He workshopped this paper a while back, at Notre Dame, and I learned a lot.)  Here's the abstract:

In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.

What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.

This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.

This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.

Posted by Rick Garnett on February 14, 2019 at 09:48 AM in Religion | Permalink | Comments (3)

Wednesday, February 13, 2019

5th Annual Civil Procedure Workshop, Oct. 25-29, 2019

The Civil Procedure Workshop gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure . Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2019 include Kevin Clermont, Mechele Dickerson, J. Maria Glover, Tara Leigh Grove, Olatunde Johnson, Linda Mullenix, James Pfander, Charlie Silver, Shirin Sinnar, Steve Vladeck, and Patrick Woolley. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 15, 2019.

While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years . We will select papers to be presented by April 22, 2019. Please send all submissions or related questions to Bob Bone.

The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.

Bob Bone (UT Austin), [email protected]
Dave Marcus (UCLA), [email protected] .edu
Liz Porter (UW), [email protected]
Brooke Coleman (Seattle U), [email protected]

Posted by Howard Wasserman on February 13, 2019 at 03:01 PM in Civil Procedure | Permalink | Comments (0)

Paying for Public Records

Much to the delight of legal reporters and researchers who study the courts, PACER fees are under attack.  A lawsuit challenging the fees is pending in the Federal Circuit, and the media coverage of the suit is decidedly in favor of the plaintiffs. PACER allows the public to electronically access motions, complaints, briefs, and other documents filed in federal cases.  It charges a fee of $0.10 per page, which is far more than what it costs the courts to store these documents and make them available to the public.  By one estimate, “the cost of retrieving a document from PACER—including the cost  of  data  storage with a  secure  service  used  by many  federal  agencies—[is] only $0.0000006 per page.”  As the New Republic reported: “The PACER system itself brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate.”  The courts use the extra money to fund other projects, such as courtroom technology needs, that would otherwise be paid for by funds appropriated by Congress.

It appears that the PACER litigation will ultimately turn on a question of statutory interpretation involving the legislation that created the program and allowed for the collection of these fees.  But I’m interested in the case because it raises larger issues about access to public documents.

You see, for the past year, I’ve been conducting a massive research project in which I collect the campaign finance documents for every candidate who ran for district attorney and enter information about the campaign contributions into a database.  (You can learn more about the project here. You can see a summary of our data here.  And our raw data is being compiled here.)

Because we are collecting information from all 46 states that elect their local prosecutors, I’ve been dealing with dramatically different public records regimes while collecting this data.  Some states are fantastic—they put this information online in a centralized state database.  Some even fully digitize that information, allowing you to search not only by candidate, but also by donor.  Other states have decided to leave the collection of campaign finance information to the counties.  And some counties do a terrible job providing access to that information.

More than one county has informed me that they have been unable to locate these records.  Some can’t find the records because they do not have a formal filing system.  Some can’t find them because they keep only paper copies of these records, which were damaged through some sort of accident.

Other counties do a perfectly good job retaining these records.  But they refuse to allow access to the records without significant payment.  For example, one county in North Dakota insisted that I send a check for $50 before they would even look for the responsive documents.  And while I can understand why counties would need to charge for making physical copies and mailing those copies, some counties insist on charging fees for emailing documents—treating email pages no differently than physical copies for fee purposes.  (Here is a recent op ed that I co-authored with a student that describes some specific problems in Kansas.)

I have even encountered counties that charge fees higher than what is permitted by their state open records laws.  One county has a posted fee schedule of $1.00 per page, even though state law only permits charges of 25 cents.  When I asked about the discrepancy, the county clerk responded by waiving the fee.  Another county in different state with a 25 cent per page cap invoiced me for 50 cents per page.  When asked about the cap, the county insisted it had made a mistake—of course they only meant to charge me the statutorily-permitted fees. 

Because I work for a public institution, I routinely asked that these fees be waived.  A small number of counties granted those requests.  But most didn’t.

The responses that I received when I asked for a waiver were interesting.  Some counties said that they never grant waivers—even though the state statutes specifically give them the power to waive—because they want to treat everyone the same.  Several county officials told me that they were unable to grant waivers because their offices depended on these fees to stay operational.  Their state and local governments have cut their tax revenues to such a degree that they cannot afford to operate their county offices without charging people fees.  In other words, the offices were charging these fees not only to support the time an effort of responding to individual requests, but also to offset the ordinary costs of running their government office.  They were using these fees to make up the shortfalls in their budgets.

I find that state of affairs very troubling.  I appreciate that user fees are quite popular, and that they are touted as an efficient way to ensure that those who are actually benefiting from services are the ones paying for them. But even if you might ordinarily support user fees for some government services, I don’t think it is a good idea to depend on fees to run your government.  Governments aren’t business; they are governments.  And we should make sure that they operate even when people don’t “buy” their goods and services.

I am especially troubled at the idea of charging fees for information like campaign finance data.  That is because we make campaign finance data publicly available in order to ensure transparency and accountability.  For example, if my DA failing to indict officers involved shootings of civilians, I need to know if she is also taking money from police unions.  I need to know because it helps me to evaluate her charging decisions.  And if I disagree with my DAs charging decisions, my only recourse is to vote her out of office.  But I need to understand those decisions in order to make an informed decision at the ballot box.  But if my county clerk is going to charge me $50 before even trying to locate those documents, then I am less likely to request them and thus less likely to find out about the donations.  What’s worse, the people who aren’t going to spend $50 to check the campaign finance records of their elected officials are also the same people who are unlikely to be donating to campaigns.  Put differently, it seems bizarre that one of the most important checks we have on money in politics—transparency about that money—can be frustrated by requiring people to pay additional money in order to get access to that transparency.

I am glad that PACER fees are facing scrutiny.  And I am hopeful that they will be lowered.  But I hope that our conversation about document access fees can extend beyond the federal courts.  Some state courts charge even higher fees than PACER.  More importantly, if we decide to deal with issues like corruption through disclosures rather than direct regulation—i.e., making campaign finance information publicly available rather than outlawing campaign contributions—then we shouldn’t charge fees to see those disclosures.

Posted by Carissa Byrne Hessick on February 13, 2019 at 11:15 AM in Carissa Byrne Hessick, Law and Politics | Permalink | Comments (9)

Right result, mess of an analysis

Erie can be complicated. But a lot of that complication comes from courts conflating different strands of the analysis. Pappas v. Philip Morris from the Second Circuit illustrates that problem.

At issue is whether an executrix suing on behalf of an estate can proceed pro se; Connecticut law says no, while Second Circuit precedent interpreting 28 U.S.C. § 1654 says yes. The court then went into several disconnected aspects of Erie--whether rules of practice are procedural or substantive, § 1654 and precedent, local rules and inherent power to regulate practice before a district, and the twin aims of Erie.

But this should have been a pretty easy case and I am not sure why the court took such a complicated route.

• At times the court says the issue of whether a representative plaintiff can proceed pro se is controlled by § 1654 and judicial interpretations of that. If so, the only question should have been whether § 1654 was valid under the Necessary and Proper Clause and the power to constitute the federal courts. Under the RDA, state law controls except where "Acts of Congress otherwise require or provide." Section 1654 is an Act of Congress that provides (as interpreted) that a representative can proceed pro se in certain circumstances; if valid (which it is), it controls. There was no need to ask whether it was procedural or substantive, to mention the twin aims of Erie, or to ask whether the statute "encroaches" on federal law, except to the extent that encroachment renders § 1654 constitutionally invalid. When the conflicting federal rule comes from a congressional enactment, the rule controls so long as Congress had the power to enact the rule. This is the separation-of-powers gloss on the constitutional issues in Erie--the issue is not that state law had to control, it was that the source of superseding federal law had to be Congress.

• At other times the court says the issue is a matter of local rules and inherent power. If so, the court needed to do a full Erie analysis--asking about forum shopping and inequitable administration of laws. But the sum of this analysis was the statement that there was "no reason to believe" it would lead to forum shopping or inequitable administration. If this is a true conflict between state law and federal common law, a lot more is required.

As I said, the right result. But a convoluted way to get there.

Posted by Howard Wasserman on February 13, 2019 at 10:16 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Tuesday, February 12, 2019

Tulane Law School Fellowships

Posted for Tulane Law School:

Tulane Law School invites applications for three positions: a Forrester Fellowship, a visiting assistant professorship, and a Yongxiong Fellowship.

All three positions are designed for promising scholars who plan to apply for tenure-track law school positions. All three positions are full-time faculty in the law school and are encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support, both formal and informal, including faculty mentors, a professional travel budget, and opportunities to present works-in-progress in various settings.

Tulane’s Forrester Fellows teach legal writing in the first-year curriculum to two sections of 25 to 30 first-year law students in a program coordinated by the Director of Legal Writing. Fellows are appointed to a one-year term with the possibility of a single one-year renewal. Applicants must have a JD from an ABA-accredited law school, outstanding academic credentials, and significant law-related practice and/or clerkship experience. Candidates should apply through Interfolio, at http://apply.interfolio.com/59403. If you have any questions, please contact Erin Donelon at [email protected].

Tulane’s visiting assistant professor (VAP), a two-year position, is supported by the Murphy Institute at Tulane (http://murphy.tulane.edu), an interdisciplinary unit specializing in political economy and ethics that draws faculty from the university’s departments of economics, philosophy, history, and political science. The position entails teaching a law school course or seminar in three of the four semesters of the professorship (presumably the last three semesters). It is designed for scholars focusing on regulation of economic activity very broadly construed (including, for example, research with a methodological or analytical focus relevant to scholars of regulation). In addition to participating in the intellectual life of the law school, the VAP will be expected to participate in scholarly activities at the Murphy Institute. Candidates should apply through Interfolio, at http://apply.interfolio.com/59420, providing a CV identifying at least three references, post-graduate transcripts, electronic copies of any scholarship completed or in-progress, and a letter explaining their teaching interests and their research agenda. If you have any questions, please contact Adam Feibelman at [email protected].

Tulane’s Yongxiong Fellow will teach a required course in U.S. legal research and writing to a cohort of LLM students at Tulane Law School under the auspices of the Yongxiong-Tulane Center for International Credit Law. The Fellow will also teach one upper-level course in a topic relating to financial markets, banking or credit law. The Fellow will be appointed to a two-year term with the possibility of renewal. Applicants must have a JD or graduate degree in law from an ABA-accredited law school, outstanding academic credentials, excellent research and writing skills, and scholarly interests related to financial regulation. Applicants proficient in Mandarin Chinese are especially encouraged to apply, although there is no language requirement for the position. Candidates should apply through Interfolio, at http://apply.interfolio.com/59521, providing a CV identifying at least three references, post-graduate transcripts, electronic copies of any scholarship completed or in-progress, and a letter explaining their teaching interests and their research agenda. If you have any questions, please contact Adam Feibelman at [email protected].

The law school aims to fill all three positions by March 2019. Tulane is an equal opportunity employer and encourages women and members of minority communities to apply.

Posted by Sarah Lawsky on February 12, 2019 at 10:40 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Harvard Law School Program on Corporate Governance Post-Graduate Academic Fellows

Posted for the Harvard Law School Program on Corporate Governance:

The Harvard Law School Program on Corporate Governance invites applications for Post-Graduate Academic Fellows in the areas of corporate governance and law & finance. Qualified candidates who are interested in working with the Program as Post-Graduate Academic Fellows may apply at any time and the start date is flexible.

Candidates should be interested in spending two to three years at Harvard Law School (longer periods may be possible). Candidates should have a J.D., LL.M., or S.J.D. from a U.S. law school, or a Ph.D. in economics, finance, or related areas by the time they commence their fellowship. Candidates still pursuing an S.J.D. or Ph.D. are eligible so long as they will have completed their program’s coursework requirements by the time they start. During the term of their appointment, Post-Graduate Academic Fellows work on research and corporate governance activities of the Program, depending on their skills, interests, and Program needs. Fellows may also work on their own research and publishing in preparation for a career in academia or policy research. Former Fellows of the Program now teach in leading law schools in the U.S. and abroad.

Interested candidates should submit a CV, transcripts, writing sample, list of references, and cover letter to the coordinator of the Program, Ms. Jordan Figueroa, at [email protected]. The cover letter should describe the candidate’s experience, reasons for seeking the position, career plans, and the kinds of projects and activities in which he or she would like to be involved at the Program. The position includes Harvard University benefits and a competitive fellowship salary.

Posted by Sarah Lawsky on February 12, 2019 at 10:38 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

JOTWELL: Tidmarsh on Hodges & Voet on collective redress

The new Courts Law essay comes form Jay Tidmarsh (Notre Dame), reviewing Christopher Hodges & Stefaan Vogt, Delivering Collective Redress: New Technologies (Hart 2018), which explores the European search for alternative approaches to collective litigation and redress.

Posted by Howard Wasserman on February 12, 2019 at 09:53 AM in Article Spotlight, Books, Civil Procedure | Permalink | Comments (1)

Monday, February 11, 2019

Peter Gonville Stein Book Award-ASLH

The following is from the American Society for Legal History

The Peter Gonville Stein Book Award is awarded annually for the best book in legal history written in English. This award is designed to recognize and encourage the further growth of fine work in legal history that focuses on all non-US regions, as well as global and international history. To be eligible, a book must sit outside of the field of US legal history and be published during the previous calendar year. Announced at the annual meeting of the ASLH, this honor includes a citation on the contributions of the work to the broader field of legal history. A book may only be considered for the Stein Award, the Reid Award, or the Cromwell Book Prize. It may not be nominated for more than one of these three prizes.

The Stein Award is named in memory of Peter Gonville Stein, BA, LLB (Cantab); PhD (Aberdeen); QC; FBA; Honorary Fellow, ASLH, and eminent scholar of Roman law at the University of Cambridge, and made possible by a generous contribution from an anonymous donor. Read more about Dr. Stein here.

For the 2019 prize, the Stein Award Committee will accept nominations of any book (not including textbooks, critical editions, and collections of essays) that bears a copyright date of 2018 as it appears on the printed version of the book. Translations into English may be nominated, provided they are published within two years of the publication date of the original version.

Nominations for the Stein Award (including self-nominations) should be submitted by March 15, 2019. Please send an e-mail to the Committee at [email protected] and include: (1) a curriculum vitae of the author (including the author’s e-mail address); and (2) the name, mailing address, e-mail address, and phone number of the contact person at the press who will provide the committee with two copies of the book. This person will be contacted shortly after the deadline. (If a title is short-listed, four further copies will be requested from the publisher.)

Please contact the committee chair, Matthew Mirow, with any questions at [email protected].

Posted by Howard Wasserman on February 11, 2019 at 02:39 PM in Legal History, Teaching Law | Permalink | Comments (0)

Saturday, February 09, 2019

11th Junior Faculty Federal Courts Workshop

The University of Arkansas School of Law will host the Eleventh Annual Junior Faculty Federal Courts Workshop on September 6-7, 2019. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.

The workshop is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present.  There is no registration fee.

The conference will begin on the morning of Friday, September 6, and conclude by lunchtime on Saturday, September 7. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.

The workshop will take place on the University of Arkansas’s flagship campus in Fayetteville. The Law School will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. Those wishing to present a paper must submit an abstract to [email protected] by March 29, 2019. Papers will be selected by a committee of past participants, and presenters will be notified by the end of May.

Posted by Howard Wasserman on February 9, 2019 at 01:21 PM in Civil Procedure, Teaching Law | Permalink | Comments (0)

Thursday, February 07, 2019

FIU College of Law seeks visitor

Florida International University College of Law, Miami, seeks a Visiting Professor of Law for the 2019-2020 academic year with particular needs in Wills and Trusts, Environmental Law, and Natural Resources.  The visit may be for one semester or for the academic year.  Please send an expression of interest and c.v. to Matthew C. Mirow, chair, Visiting Appointments Committee, [email protected].

Posted by Howard Wasserman on February 7, 2019 at 10:37 PM in Teaching Law | Permalink | Comments (0)

More personal jurisdiction on the internet

A few weeks ago, I mentioned the threatened defamation lawsuits by the students at Covington Catholic against journalists who tweeted about the incident. I wondered whether there would be personal jurisdiction in Kentucky--whether there was enough Kentuckiness (beyond the plaintiffs being from there) to satisfy Walden/Calder.

An analytical hint (from within the Sixth Circuit) comes from the Eastern District of Michigan in an action brought by two men wrongly reported as the driver and owner of the car that struck and killed Heather Heyer in Charlottesville in 2017; defendants were a news organization and bunch of individuals who tweeted or circulated the news reports. Three individuals (one in California, one in Wisconsin, and one in Indiana) challenged personal jurisdiction. The court explored cases (including Clemens v. McNamee) to establish the principle that the defamatory statements must involve the forum state in some way other than being about someone from that forum.

The California defendant was subject to jurisdiction because she had doxed the plaintiffs, republishing information about their physical home in Michigan. This allowed the inference that she was attempting to cause action in Michigan or to catch the attention of people in Michigan.* By contrast, the two defendants who had merely retweeted or circulated a news article identifying the plaintiffs as the driver did not satisfy the effects test, because there was "nothing 'Michigan'" about circulating the article identifying a Michigander as the driver.

[*] The "traditional notions" prong carried some heft as to the California defendant, a disabled elderly woman living on social security. The court recognized the hardship, but found the state interest to prevail in the balance.

So where does this analysis leave the potential defendants as to Covington Catholic? Were the tweets identifying the students as from Kentucky, criticizing and calling on the Kentucky-based school to take action "sufficiently 'Kentucky'"? That will be the question.

Posted by Howard Wasserman on February 7, 2019 at 07:46 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, February 06, 2019

The Equal Rights Amendment

I have revised my forthcoming article on the ratification of the ERA. The revised draft is here.

Posted by Gerard Magliocca on February 6, 2019 at 08:18 PM | Permalink | Comments (2)

Oral Argument in Pyler v. Doe

One on-again, off-again project of mine is to listen to old Supreme Court arguments. The other day I listened to Plyler v. Doe. Quite fascinating for a couple of reasons.

First, the Justices were unaware of the fact that many people were here illegally for a long period of time. Several asked why the parents of the schoolchildren in Texas had not been deported promptly. They simply did not know that INS was underfunded or that there might be a de facto amnesty policy. Indeed, a couple were quite surprised to learn that INS did not act sometimes when told that a family was here illegally. Ignorance can sometimes be charming.

Second, the case was argued in the midst of Justice William Rehnquist's addiction to painkillers. (About a month after Plyler was argued, he sought treatment.) When you listen to his questions, his speech does sound odd. Sometimes a word is slurred and sometimes he struggles to find the word that he wants to use. Without knowing that he was addicted at the time, I don't think, though, that I would have reached that conclusion based solely on what can be heard.

Third, much of the advocacy was bad. The average quality of Supreme Court argument was lower back then, probably because the Court just heard more cases. One guy from Texas was clearly out of his depth, and one guy for the children was so far off point most that one of the Justices more or less made his argument for him. You still get clunkers like that today, but less often.

Posted by Gerard Magliocca on February 6, 2019 at 01:39 PM | Permalink | Comments (7)

Tuesday, February 05, 2019

Amos Oz

Last week was the Shloshim - the thirty day remembrance day - of Amos Oz who died in December at the age of 79. He was a novelist, journalist, peace advocate, literature professor and intellectual. Four years ago I posted here a review of one of his last novels, Between Friends. If you have never read Oz you might want to start (though it's long and heavy) with his brilliant autobiographical novel, A Tale of Love and Darkness. My Michael, To Know A Woman and Black Box are among his most known books, but you can't go wrong with any book you pick. A few years ago he co-authored a non-fiction book with his law professor daughter, Fania Oz-Salzberger (who is married to law professor Eli Salzberger - because Israelis, including Israeli law professors, are each a Kevin Bacon of connectivity) called Jews and Words (Yale Press). Oz's writing will forever remain in the canon of great literature with a deep moral compass. 

Posted by Orly Lobel on February 5, 2019 at 08:45 PM | Permalink | Comments (2)

Blogging's Future

Rick Garnett writes at Mirror of Justice that this week marks 15 years of his blogging there (and slightly less time blogging here). He closes the post as follows:

The flow (as well as the speed and, perhaps, the snarkiness) of the public conversation has changed over the last 15 years.  Twitter wasn't around.  Facebook, believe it or not, was launched on the same day as Mirror of Justice.  (Arguably, we've done better at our mission than they have at theirs!)  Legal practice, legal scholarship, and legal education have changed significantly, reflecting the ongoing Digitization of Everything.  A lot that used to be said, in paragraphs, on blogs is now said, with a few words (or emojis or gifs) on Twitter.

It's not clear to me what the future holds for this blog-venture, or for blogging generally.  I'd welcome others' thoughts! 

Paul has thought and written about this question in the past, so he is the best and most thoughtful person to answer. We had a brief exchange here about the migration of some blog writing to Facebook and, as Rick notes, to  Twitter in fewer words and emojis; there is some debate about how heavy that migration has been. As someone who is not on Facebook or Twitter and believes both have made discourse worse, I hope blogs do not go the way of the 8-track.

It may be that fewer blogs remain, but those that do will keep going strong, whether as a replacement for or complement to Facebook and Twitter. The Volokh Conspiracy announced that Irina Manta, Stephen Sachs, and Keith Whittington have joined as permanent authors. I am thrilled that Gerard has joined us, a move I expect will add new life to this site. And MoJ serves a particular and special message that is not easily replaced and so should continue.

In any event, congrats to Rick on 15 years.

Posted by Howard Wasserman on February 5, 2019 at 11:34 AM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (5)

Criddle et al., Fiduciary Government (and one other general recommendation)

A friend just wrote noting that he has been blogging for 15 years now. We ran a series of posts around our tenth anniversary asking about the future of blogging and of Prawfsblawg itself, and doubtless one could write more today, probably gloomily, on the same subject. For those of us who are not enamored of hot takes or siloed "conversations," along with others who have been enthusiasts about the robust democratic world of social media but are starting to suspect that a platform like Twitter is not completely healthy, there is still (I hope) a role for blogs, although no doubt a smaller and chastened one. Certainly specialized blogs that are less about disguised op-eds or short draft versions of articles, but instead focus on the sifting and dissemination of useful information in a world of overwhelming content, like Larry Solum's blog or Jotwell, are still go-to sources for many of us. Similarly, one thing that some blogs I still frequent do well is to announce new or forthcoming books. People are still writing them and, I hope, reading them: there is more in heaven and earth than can be accessed through the Westlaw database. 

With that in mind, let me note the announcement by Cambridge University Press of a new book, edited by Evan J. Criddle and four other co-editors, simply titled Fiduciary GovernmentCriddle and other co-editors like Evan Fox-Decent have been writing on fiduciary theories of law--especially public law--for some time. But the subject, in my view, has flourished and taken on new interest in recent years. A larger number of authors--many of them seemingly influenced by what they may consider the rise of less faithful office-holders--are speaking in terms of fiduciary obligations, official norms and roles, and so on. As one who is specifically interested in the relationship between oaths, offices, and honor and the United States Constitution, I'm glad the subject is taking on more fans. I hope that new readers in this area will not be fair-weather friends, that they'll think and write about this subject (positively or negatively, but in a critical and engaged fashion either way) over the long term and extend their interest to related subjects (like, say, oaths, honor, and virtue ethics), apply it with equal vigor to other officers besides the ones they're not fond of, and won't necessarily feel the urge to turn the topic into one that is judicially enforceable or applicable through some doctrinal mechanism.

In any event, the book looks very interesting and wide-ranging. Contributors include the other co-editors, Andrew S. Gold, Sung Hui Kim, and Paul B. Miller; Laura Underkuffler; Nicholas Parrillo; and Prawfs' own Ethan Leib, who has a number of valuable articles published or forthcoming on this subject. It's priced to move--to libraries and other institutional buyers. But if you have a relationship with such a library, I hope you'll encourage it to obtain the book.

A quick note for those who like to keep track of new books: Another useful source for me is the St. John's Law and Religion Forum, which is an excellent source for news of new, mostly but not exclusively academic books, not only in the core of law and religion but across a broader range of interests and subjects. It's well worth reading it regularly.      

Posted by Paul Horwitz on February 5, 2019 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

Submission Angsting Spring 2019

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.)

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron and Levit's extremely helpful guide to submitting to law reviews is available here (this is the January 2019 version). The article now also includes hyperlinks to law review websites.

Comments now appear from newest to oldest.

Posted by Sarah Lawsky on February 5, 2019 at 09:00 AM | Permalink | Comments (928)

Monday, February 04, 2019

The Upside of YA Literature's Internecine Warfare

This post is neither about law nor about the substance, such as it is, of controversies such as that surrounding Amelie Wen Zhao and her once-forthcoming debut novel "Blood Heir," which she has now apparently requested her publisher to pull from its scheduled release. This episode was part of a larger phenomenon of internal debate and internecine warfare in the Young Adult literature community, and particularly the version of that community that appears on That Dreadful, Socially Destructive Social Media site. A substantial, and certainly partial, take can be found on the Zhao episode and its larger context in this article by Jesse Singal, although I gather vaguely that there are some for whom citing Singal is like citing the Devil and who argue that the whole thing is substantially his fault for having the temerity to write about it. Doubtless the same is true, for some readers, about Kat Rosenfeld, who has also written about what she, and apparently other people, call the "toxicity" of "YA Twitter." (I want to be fair here and suggest that while that sector may be particularly egregious, it's hardly unique. Is there a non-toxic sector of Twitter?) But although I have views on these matters, these links are purely for context (and, for fairness's sake, here is a contrary take), and my views on the controversy are irrelevant here. I want to talk instead about the distinct upside of the possible implosion of the young adult literature industry. 

If I may indulge in a "When I was young" moment: In my youth, there was much less literature that could be characterized as "Young Adult" literature, and plenty of it was, as I recall, unsatisfying for any reader of even faint ambition. For an active and eager reader, the paucity of fiction (and non-fiction) aimed at intermediate readers led to an obvious response: To walk across the room, in a library or bookstore, and start reading adult literature. Some of it was a stretch, no doubt, but stretching is good. Some of it was beyond me, I'm sure, but that's not a terrible thing either and actually has interesting and valuable effects. One could sense the larger themes and ideas even if one was not yet fully conscious of or able to see all of them; that sense created a feeling of resonance and of looming deeper mysteries and experiences in life that enriched both one's reading and one's sense of the world; and rereading those books over time, as one got older and saw more of those ideas more clearly, created a layered sense of richness in one's reading life. This was an important part of how one actually became a young adult, and eventually an actual adult.  

I can't say whether the same ratio of good to mediocre or bad still applies to YA writing today, although I have no particular reason to doubt it. But the sheer quantity has certainly changed, and as such the number of what I will stipulate as "good" or involving books for young readers, especially novels and series of novels, has grown hugely. My kids are both skilled and eager readers, and I have seen in them (and in other kids) one result of the availability of all that YA writing: It's harder to get them to make that move across the library or bookstore, to make the transition from "young adult" to "adult" literature, even though they are more than capable of reading the more adult work. They read and reread their favorite books and series--and the profit motive ensures there's often a fifth or ninth book in that series. And they resist the suggestion that if they like a particular YA book, they might well enjoy a vast range of more challenging books, written for adults, that involve some of the same themes or genres but are much better written and much more challenging and involving. With so much available to them between the shallows and the depths, and with all of their friends reading the same things, they can simply stay in place and tread water--if not indefinitely, then for much longer than one could when there was a lower volume of such literature.

Let me suggest, or speculate, that if the entire YA industry (and an industry it surely is) were to implode tomorrow, torn apart in mutual recrimination and political warfare, or if that warfare were to result in the available work becoming ever more homogeneous, schematic, and unsatisfying, the result could be good for young readers. Leave aside the fact that much of this enormous inventory is mediocre: that's true of any large inventory of writing. But they would be more likely to do sooner what they should do in the first place, and preferably as soon as (or before) they are able: to move on, to move up, to read more challenging writing pitched above their reading level, and so to actually advance as readers, thinkers, and individuals. They would read LeGuin or Orwell or Huxley or Cormac McCarthy's The Road instead of the endless pile of so-so dystopian novels and series that they can gorge on indefinitely but without much nutrition. They would grow as readers and grow up as people. Every cloud has its silver lining, and it seems to me that the diminution or death of YA literature would have a pretty big upside. And that's just for young readers. It seems to me that a pretty substantial number of actual adults, both relatively young and older, are more than happy to remain in a semi-infantilized state, wallowing in the same literature as 11-year-olds, treading water below their "reading level," and treating fiction as comfort food. Perhaps some of them came up in the Harry Potter era and suffered the lasting effects of not having to stretch as much and as soon. (This is one reason that, although I know that in theory my kids should grow out of the YA field as they get older, I'm not positive it will perforce happen in practice.) They might have to grow, or grow up, as readers too.

As a postscript, let me note an idea that I stole quite happily from a friend. As a condition of the use of electronics (one could condition it on other things; for my friend, it's paying their phone bills), my wife and I require my kids to read one adult book of our choice each month. We keep their tastes and preferences in mind, since part of the goal is to help them realize that within their range of current interests there are many better and more challenging choices available to them, both in fiction and in history and other forms of non-fiction, and to get them to start browsing the adult shelves for themselves. But we also sometimes force them to read books we think they ought to read or to have read, regardless of their preferences. Parenthood is not, of course, all about making and keeping your children happy, being their friends, or doing what they want, and children are not their parents' equals in these or many other matters. Some of the books we've assigned haven't hit much of a responsive chord with them--for now, that is; who knows what effect reading that book will have on them some time in the future? Other selections have hit a chord, and have encouraged them to seek out other books and learn about new topics, but at a serious and challenging level instead of remaining perpetual Goldilocks types, content with what's "good enough" or "just right." It's been a very useful house rule. I encourage others to try it out if they too worry about their kids treading water instead of pushing into the depths, and certainly would love to hear about similar or other approaches. 

  

Posted by Paul Horwitz on February 4, 2019 at 09:18 AM in Paul Horwitz | Permalink | Comments (16)

Friday, February 01, 2019

2019 Symposium Submissions: Kentucky Law Journal

Kentucky Law Journal is now accepting symposium topic proposals for the 2019–2020 academic year. Please submit symposium topic suggestions following the instructions below no later than February 8, 2019 at 11:59 pm EST. If you have questions, please email our Special Features Editor, Summer Bablitz, [email protected] or Editor-in-Chief, Kyle Schroader, at [email protected]

Kentucky Law Journal will begin accepting symposium submissions through a more formal and open process for a variety of reasons, including:

·      To ensure fairness to all parties interested in collaborating on a symposium with KLJ.

·      To encourage submissions on a diverse range of topics of relevance to the legal community and to encourage participation from scholars across the United States.

·      Many law reviews accept symposium submissions electronically in an open and competitive process. This procedure is more transparent, competitive, and brings KLJ’s procedures in line with the processes of our peer law reviews.

How a Topic will be Chosen

The Symposium Committee, comprised of a dozen KLJ student members, will review submissions in early February with the goal of selecting a symposium topic soon after.

General Information About Past KLJ Symposia

1.     KLJ generally hosts a symposium on campus at the University of Kentucky during the fall semester. Symposium is usually held on a Thursday and Friday in October or November.

2.     KLJ has historically provided funding for the cost of coach travel, lodging, transportation in Lexington, and meals and social events for all symposium speakers. On average, past symposia have cost between $10,000 and $14,000 total. KLJ has received financial support from the University of Kentucky College of Law and the University of Kentucky Student Government Association in the past. Still, KLJ has historically been responsible for between 50–65% of the total costs of past symposia through funds collected from annual membership dues.

3.     Generally, all symposium presentations are recorded and uploaded on UKnowledge, a digital collection of scholarship held by UK Libraries

 

Recent KLJ Symposia Topics:

·      2018-2019 - “Intermeddlers or Innovators? States and Federal Copyright Law”

· 2017–18 - Religious Exemptions and Harm to Others (hosted in collaboration with Southeastern Association of Law Schools (SEALS))

·      2016–17 - 30 Years of Batson: A Retrospective

·      2015–16 - An Elective Perspective: Judicial Regulation of Politics in an Election Year

·      2014–15 - Your Rights in a Digital World (Data Privacy)

 

When formulating symposium topic proposals, please consider the following:

 

1.     KLJ anticipates an in-person symposium on the campus at the University of Kentucky on a Thursday and Friday during the month in October or early November 2018. Generally,

      7–10 speakers are invited to attend symposium.

2.     While publication is not guaranteed, we anticipate that all symposium attendees will be invited to write an article for publication in Volume 108, Issue 4 of Kentucky Law Journal. Final manuscripts should be no longer than 14,000 words in length and will be due around December 15, 2019. KLJ will provide publication contracts to certain symposium participants based on recommendations from the Editorial Board and Symposium Committee.

3.     The Journal does have limited funds set aside for symposium. Even so, KLJ cannot guarantee funding for travel, lodging, meals, or associated expenses. We will work to obtain additional funding and sponsorships. Proposals that include anticipated sources of full or partial funding will be viewed favorably.

4.     This call for submissions is an open call to the legal academic community. Still, proposals led by or including members of the University of Kentucky College of Law faculty will be prioritized. We encourage all proposals to include UK Law faculty among their participants.

 

Submission Instructions

Please submit a proposal in a PDF or Word document format that includes the following information:

 

1.     Your topic idea, including the topic’s originality, timeliness, how it contributes to legal scholarship, and any reasons why the topic may be relevant to Kentucky;

2.     A list of potential symposium speakers who may be willing to attend the event and accept an invitation to publish an article in Kentucky Law Journal;

3.     The name, contact information, and title of the proposed Symposium Liaison, who will serve as a point person for decisions pertaining to the symposium and will coordinate with the Volume 108 Special Features Editor;

4.     Any organizations or groups who will co-sponsor or collaborate on the symposium;

5.     Any anticipated sources of funding or sponsorship;

6.     Any social events, banquets, or luncheons that may be part of the symposium program; and

7.     Any potential symposium dates in October or November 2018 that conflict with the Symposium Liaison’s schedule.

 

Again, please submit your proposal in a PDF or Word document format via email to [email protected], no later than February 8, 2019 at 11:59pm EST. See the proposal template below.

  

Kentucky Law Journal

2019–20 Symposium Topic Submission

 

Symposium Idea/Topic

 

Description of Symposium Topic

 

 

List of Potential Symposium Speakers (please include title and college or university affiliation for faculty)

 

Symposium Liaison*

(1) Name:

(2) Title:

(3) Email:

(4) Phone:

 

* The symposium liaison understands that he or she will serve as a point of contact for the symposium and will work collaboratively with the KLJ Special Features Editor to plan the symposium.

 

Co-Sponsors/Collaborative Organizations (These can be potential co-sponsors such as the UK Law Diversity Committee, OUTlaw, ACLU, Federalist Society, etc.)

 

 

 

Anticipated or Potential Sources of Sponsorship (This can include the prospective sponsor’s own funds or potential sponsors that could be solicited)

 

 

 

Potential Social Events or Other Symposium Programming (Ex. Bourbon Distillery Tour, Panel Discussion, Keynote Speaker, etc.)

 

 

 

Potential Dates in October or November 2019 that Conflict with the Symposium Liaison’s Schedule

 

Posted by Howard Wasserman on February 1, 2019 at 09:48 AM in Teaching Law | Permalink | Comments (0)