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Tuesday, April 30, 2019

Declination Decisions and Privacy

In response to my post from yesterday about the Special Counsel’s decision not to prosecute Don Jr. a few people have remarked that the need to protect individual privacy counsels against publicizing nonprosecution decisions. If prosecutors were to declare that someone committed a crime but not actually bring charges, so the argument goes, then the defendant would be unable to clear her name through the adversarial process. 

This argument has been around for quite some time.  Courts have used a variation on this argument to state that prosecutors may not identify unindicted coconspirators by name in indictments.  And it was famously part of the reason that Rod Rosenstein offered in his infamous letter suggesting that James Comey ought to be fired as Director of the FBI. 

I want to take the argument seriously, but I have some reservations about the argument, not only in this particular case, but also more generally.  First, to the extent that Don Jr.’s privacy needed to be protected in the Special Counsel’s report, I’d note that the relevant facts to support a CFAA prosecution were *not* redacted from the report---all that was redacted was the reasoning behind the decision not to prosecute.  I find it difficult to see how the redaction of the analysis, but not the facts, protects Don Jr.’s privacy.  I can think of at least two responses to this point: (a) that the factual discussion also should have been redacted, and (b) that a declaration by prosecutors that Don Jr.’s conduct constituted a crime is far more damaging than the recitation of facts, most of which had been previously reported in the media.  I don’t really have a rebuttal to counterargument (a).  But I’m not thoroughly persuaded by (b).  If nothing else, the harm to Don Jr. at that point seems to be one of reputation, not privacy.  Also, if we were truly committed to the idea that we need to protect individual privacy in all cases that do not result in formal charges, we would have to seriously alter how police publicize arrests of suspects before prosecutors have decided whether to file charges. 

In any event, if the real concern with nonprosecution decisions is that they might invade the privacy or harm the reputation of a particular individual, it seems to me that prosecutors could articulate their decisions in a way that minimized the privacy and reputational harms.  For example, in the Special Counsel’s report, Don Jr.’s name and identifying information could have been redacted, but the substantive analysis on which the declination decision was based could have been left in.  That would allow the public to have more information about when DOJ pursues charges under overly broad statutes---information that, as I’ll explain in more detail below, is extremely important for the public to have.

But before turning to that argument, I wanted to address a comment by Orin Kerr, namely that he didn’t think that the Mueller report needed to “offer a broader explanation when to enforce the law” because “DOJ policy docs already have that for those interested.”

Assuming that Orin is correct that DOJ policies offer sufficient detail on this issue for those who seek it out, I think it is important to note that the general public knows very little about nonprosecution decisions.  I have seen many nonlawyers (and some noncriminal lawyers) repeatedly express the view that prosecutors must bring charges in cases where the defendant has broken the law.  It is not only that these criminal justice outsiders think that prosecutors *should not* decline to prosecute for policy reasons, but rather that they are *entirely unaware* of how often prosecutors decline to prosecute on policy grounds.  This ignorance is understandable because even those of us who know that nonprosecution is common have a hard time obtaining information about how frequently it occurs and under what circumstances.  Put differently, even if Orin is correct that interested parties could learn more about DOJ nonprosecution policies, a great number of Americans don’t even know that such things happen, so they are unlikely to seek out additional information on the topic.

But even assuming everyone knew about nonprosecution as a policy, how much could we learn from reading DOJ public policies? In my opinion, not very much.  Let’s look at the full list of factors listed in 9-27.230, the section cited in the CFAA analysis in the Mueller report:

In determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh all relevant considerations, including:

    1. Federal law enforcement priorities, including any federal law enforcement initiatives or operations aimed at accomplishing those priorities;
    2. The nature and seriousness of the offense;
    3. The deterrent effect of prosecution;
    4. The person's culpability in connection with the offense;
    5. The person's history with respect to criminal activity;
    6. The person's willingness to cooperate in the investigation or prosecution of others;
    7. The person’s personal circumstances;
    8. The interests of any victims; and
    9. The probable sentence or other consequences if the person is convicted.

I don’t know about you, but I don’t think that this list allows me to make any educated predictions about when prosecutors will pursue charges and when they will not.  For example, the list does not include the aggravating factors that James Comey identified as necessary in order for DOJ to bring charges for mishandling classified information.  Nor am I able to determine based on this list whether the decision not to charge Don Jr. was made because of some unique facts in his case or because DOJ, as a general matter, does not bring CFAA charges for unauthorized password sharing unless there are other aggravating circumstances present.  (There is commentary to this policy, but it also does not provide that sort of substantive information.)

Perhaps those law professors who served as federal prosecutors think that DOJ policies gave enough guidance about when nonprosecution was appropriate---I’d be interested to hear from them.  But as a member of the public, I don’t think that these policies give us enough information about how prosecutors choose to enforce overly broad laws.  In my opinion, that is a serious problem because it means that the public doesn’t have sufficient notice about what will be treated as illegal.  It can also allow for arbitrary and discriminatory enforcement.  And it doesn’t allow the public to serve as a democratic check on prosecutorial decisionmaking.  (I discuss the problem in some detail in Part III of this forthcoming article.)

The ability of the public to serve as a democratic check on prosecutorial discretion may seem less important in the federal system, where the Attorney General and the U.S. Attorneys are appointed by the President.  After all, criminal justice issues likely play a very small role in who people vote for in presidential elections.  But the vast majority of state prosecutors are elected.  How elected prosecutors choose to exercise their discretion—including when they decide not to prosecute--is probably the most important information that voters need (and almost never get).

Anyway, these are just some preliminary thoughts.  I definitely need to reflect further on how to balance these concerns that I’ve identified against the need to protect individual privacy and reputations.  Nonprosecution decisions raise complicated questions, which a number of law profs address in various very thoughtful articles.

As for the topic of democratic accountability and prosecutors, that’s an area where I hope to spend more time and effort

Posted by Carissa Byrne Hessick on April 30, 2019 at 10:37 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink | Comments (1)

Taking universality seriously (Updated)

One of the criticisms of universal/non-particularized injunctions is that they preempt percolation in lower courts, because the universal injunction by Court I short-circuits litigation in Court II, because Court I's injunction precludes the government from undertaking new enforcement efforts. Supporters of universal/non-particularized injunctions counter that the substantial amount of parallel litigation shows that percolation still occurs, as multiple parties bring multiple lawsuits in multiple courts. My reply has been that this shows courts are not serious about universality, in which case it would be better if each court kept its injunctions particularized and avoided the controversy over the scope.

Now comes this Ninth Circuit order in California v. HHS (involving repeal of the contraception mandate), in which the court requests briefing on whether the appeal of a particularized injunction has been rendered moot by a universal injunction issued by the Eastern District of Pennsylvania and how the mootness analysis is affected by the universal injunction coming from a trial court in another circuit.

Update: Sam Bray argues that the court should think of this in terms of "equitable mootness" rather than Article III mootness--equity may weigh against an injunction in the 9th Circuit case because the 9th Circuit plaintiffs are protected as non-parties to the EDPa universal injunction.

The correct answers should be as follows:

• The EDPa injunction makes this case unnecessary. There is no possibility that the government could enforce the revised mandate in a way that would violate the rights of the California plaintiff, because doing so would violate that universal injunction and could be halted with a motion to enforce the injunction in EDPa. So California or those on whose behalf it is suing no longer are having their rights violated and no longer face a reasonable prospect of having the law enforced against them, because doing so would subject the government to contempt of court.

• It does not matter that the injunction came from a district court. A district court injunction, unstayed, carries the same force and effect as an injunction affirmed by a court of appeals. District court decisions carry less force as precedent in affecting future cases; they do not carry less force as judgments, unless and until stayed or reversed on appeal.

• It does not matter that the injunction was issued from a court outside the Ninth Circuit. This is where the nomenclature matters. All injunctions are (and should be) "nationwide," in that they protect everywhere a protected person goes. A plaintiff protected against enforcement of some law is protected against enforcement wherever he is and the bound government is prohibited from enforcing wherever the target is. It follows that if a court has the power to protect non-parties (to issue a non-particularized or universal injunction), then it protects those non-parties everywhere. If EDPa had the power to issue an injunction prohibiting enforcement against all targets of the regulation, then that injunction protects them everywhere those targets may be.

• The argument against mootness is that the EDPa injunction might be reversed on appeal, which would revive the current case or force the California plaintiffs to come back to court for their own injunction if the EDPa injunction goes away. This creates the individualized litigation that proponents of universality want to avoid--the individualized litigation that I argue the system requires (outside of class actions). Courts could avoid the uncertainty if they would simply keep their injunctions to themselves--limit them to the parties before them, but protecting those parties everywhere they go.

Posted by Howard Wasserman on April 30, 2019 at 07:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, April 29, 2019

Third Annual Law and STEM Junior Scholars' Conference


Stanford Law School, Stanford, California
September 27-28, 2019

Call for Papers

The Northwestern, Penn and Stanford Law Schools are pleased to announce that the Third Annual Junior Faculty Forum will be held at Stanford on September 27-28, 2019. The Forum is dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).  The Inaugural Forum was held in October 2017 at Penn Law, and the second Forum in September 2018 at Northwestern. The forum is currently seeking submissions from junior faculty interested in presenting papers at the forum.  The deadline for submissions is Friday, June 14

Presenters will be chosen on a blind basis from among those submitting papers.  Senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper.  The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. Participating junior faculty are expected to stay for the full duration of the Forum.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa.  Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

The Forum invites submissions on any topic related to the intersection of law and any STEM field.  Potential topics include (but are not limited to):

  • 3D printing
  • Artificial intelligence
  • Autonomous vehicles
  • Bitcoin and other blockchain technologies
  • Computational law
  • Customized medicine
  • Genetics and epigenetics
  • Machine learning and predictive analytics
  • Nanotechnology
  • Neuroscience and law
  • Online security and privacy
  • Regulation of online platforms
  • Robotics
  • Synthetic biology
  • Virtual and augmented reality

A jury of accomplished scholars with expertise in the particular topic will select the papers to be presented.  Suggestions of possible commentators are also welcome.

There is no publication commitment.  Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: To be eligible, an author must be teaching at a U.S. school of higher education in a tenured or tenure-track position and must have received their first tenure-track appointment no more than seven years before the conference.  American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years, and that they earned their last degree after 2008.  We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years. Papers that will be published prior to the meeting in September 28-29, 2018, are not eligible.  Authors may submit more than one paper, but no author will be allowed to present more than one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to [email protected].  The deadline for submissions is Friday, June 14, 2019.  Please remove all references to the author(s) in the paper.  Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls.  Any questions about the submission procedure should be directed both to Professor Mark Lemley ([email protected]) and Jeff Spencer ([email protected]).

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to David Schwartz at the Northwestern University School of Law, Christopher Yoo at the University of Pennsylvania Law School, or Mark Lemley at the Stanford Law School.

Posted by Sarah Lawsky on April 29, 2019 at 09:58 PM in Information and Technology, Intellectual Property | Permalink | Comments (0)

Electing women

A question asked over dinner: Why are so many nations ahead of the United States in electing women to the highest national office?

A possible answer: The influence of a nation's political system. Many (most?) of the women in these countries have been elected as prime minister (or its equivalent), the head of government who is not also the  head of state. So they are not elected nationally, at least not as a formal matter; they are elected in legislative districts and assume national office by virtue of leadership in a political party that attains a legislative majority (or leads a legislative coalition). This seems true of many of the European and Commonwealth countries that most Americans think of as having elected high-profile women leaders, although there are counter-examples in South American and Asia.

Note that the United States has elected a woman in this manner--Nancy Pelosi. But the U.S. political system does not give her the same power that Germany or Norway or New Zealand does.

Posted by Howard Wasserman on April 29, 2019 at 08:00 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

The Special Counsel’s Decision Not To Prosecute Donald Trump Jr.

Since Robert Mueller’s report was released on April 18, a number of people have commented on the Special Counsel’s decision not to make a “traditional prosecutorial judgment” about whether President Trump obstructed justice and thus committed a crime.  But the Mueller Report contains other decisions not to prosecute.  And I’d like to focus on one of them here.

Mueller decided not to prosecute a person who violated 18 U.S.C. 1030, a section of the Computer Fraud and Abuse Act.  Although the person’s name has been redacted for “personal privacy,” it seems obvious to me that the person in question is the President’s son, Donald Trump, Jr.  The portion of the report that describes Don Jr.’s conduct is not redacted (it is described on page 60 of the Mueller Report), and Orin Kerr published this helpful article over at LawFare last year explaining how Don Jr.’s conduct falls within the criminal prohibition in section 1030(a)(2).  The partially redacted declination decision appears at pages 179-80.

I assume that the decision to redact Don Jr.’s name from the declination analysis is grounded in the same “fairness concerns” that prompted Mueller not to reach a judgment on whether the President obstructed justice:

The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

It isn’t immediately clear to me why those fairness considerations would shield only a legal determination of guilt and not a recounting of underlying facts.  But that appears to be what happened here.  (Those who are interested in the law and norms surrounding decisions not to identify people who aren’t being charged might be interested in this essay by Ryan Goodman on unindicted coconspirators.)

I am less interested in the decision to redact than I am the decision not to prosecute.  Although much of the text is redacted, it appears that the decision not to bring charges against Don Jr. was not a decision about weak facts or uncertain law.  Instead it appears to have been a policy decision—specifically a decision that the crime was not serious enough to warrant prosecution.  Here is the key passage:

Applying the Principles of Federal Prosecution, however, the Office determined that prosecution of this potential violation was not warranted. Those Principles instruct prosecutors to consider, among other things, the nature and seriousness of the offense, the person's culpability in connection with the offense, and the probable sentence to be imposed if the prosecution is successful. Justice Manual 9-27.230.

I don’t disagree with the decision not to prosecute Don Jr.  The Computer Fraud and Abuse Act is, in my opinion, an overly broad statute.  That is to say, I believe that the text of the statute sweeps in far more conduct than it ought to.  In particular, it includes unauthorized password sharing.  So if, for example, I were to allow my friend to use my Netflix password so that she did not have to pay for her own, separate account, I have likely committed a crime under the Computer Fraud and Abuse Act.

The CFAA is far from the only overly broad criminal statute on the books.  There are plenty of overly broad federal and state crimes.  We allow our representatives to pass these laws because we rely on the good judgment of prosecutors not to bring charges in all cases that fit within the language of these statutes.  But there are many problems with this state of affairs.  For one thing, we rarely know what criteria prosecutors use in deciding when not to bring charges.  So long as we do not know what criteria prosecutors are using, we do not know the real content of the criminal law.  For another thing, there is no requirement that prosecutors adopt generally applicable criteria to decline prosecutions or that they use the same criteria in all cases.  To the extent that declination decisions are made on an ad hoc basis, people are not getting equal treatment, and prosecutors may make prosecution decisions for arbitrary or discriminatory reasons.

Finally, the fact that we allow prosecutors to decline prosecution under overly broad statutes doesn’t mean that they are under any obligation not to bring charges in trivial cases.  There are plenty of cases in which prosecutors have decided to file charges against defendants whose conduct does not resemble harm that the legislature was trying to prevent when it enacted a criminal law.  But, as I argue in a forthcoming paper, the modern embrace of textualism leaves defendants with essentially no recourse if their behavior fits within the incredibly broad statutory language.

While I agree with the decision not to charge Don Jr., I wish that the report had redacted less of the analysis associated with the declination decision.  We do not know whether the Department of Justice has adopted an internal policy not to charge all defendants in these sorts of cases, or whether this was a one-off decision based on the unique facts and circumstances surrounding this case.  What is more, because most of the analysis is redacted, we do not have a statement from a respected group of federal lawyers – including not only Robert Mueller, but also Deputy Solicitor General Michael Dreeben – explaining why such a case is so trivial that it does not warrant prosecution.  Such a statement could have potentially helped defendants who have been threatened with charges for similar conduct.  It also could have prompted a national conversation about whether we should rewrite the Computer Fraud and Abuse Act.

Posted by Carissa Byrne Hessick on April 29, 2019 at 08:10 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink | Comments (6)

Sunday, April 28, 2019

Lamps Plus Is Bad for Arbitration: A Commentary by Pamela Bookman

Last week, the Supreme Court decided Lamps Plus v. Varela, reversing the Ninth Circuit’s holding that an ambiguous arbitration agreement should be interpreted to authorize class arbitration. The Ninth Circuit had followed the classic rule of contract interpretation that interprets contract ambiguities against the drafter—here, the employer— who opposed class treatment. The opinion has received no shortage of criticism, including by the three well-articulated dissents and responses on this blog by Ethan Leib and Tal Kastner.  But most critics have assumed that the decision is—consistent with what we’ve come to expect from the Supreme Court—“pro-arbitration.”

It’s not. Lamps Plusis bad for arbitration.

The majority contends that its decision is consistent with previous cases that required interpreting “ambiguities about the scope of an arbitration agreement” “in favor of arbitration.” But there was no question here about whether the court should require arbitration. The question was about what kind of arbitration. (Indeed, as Justice Ginsburg’s dissent highlights, even that wasn’t the question. Without the opportunity to bring his claims as part of a class, there will likely be no dispute, and no possible vindication of Mr. Varela’s rights, at all.) 

Lamps Plus reinforces a trend that I explore in The Arbitration-Litigation Paradox, forthcoming next month in the Vanderbilt Law Review. A growing line of cases views the Federal Arbitration Act (FAA) as protecting only a certain vision of arbitration: “traditional individualized arbitration.” Class arbitration, the Court explains, would “undermine[] the most important benefits of that familiar form of arbitration.” Lamps Plus repeats the Court’s pronouncement last term in Epic Systems v. Lewisthat “with class arbitration[,] ‘the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.’” (emphasis mine).

As Justice Kagan notes in dissent, the majority’s opinion may specifically target class arbitration, which the majority sees as a “fundamental change” from traditional arbitration. But the individualized nature of “traditional arbitration” is not the only characteristic the Court says is fundamental to the kind of arbitration the FAA protects. The enemy, it seems, is arbitration that looks “like the litigation [arbitration] was meant to displace.” AT&T Mobility v. Concepcion focused on arbitration as “informal, streamlined proceedings.” In Hall Street v. Mattel, the Court limited judicial review of arbitration awards in part “to maintain arbitration’s essential virtue of resolving disputes straightaway.”

Arbitration, however, is not the monolithic quick and dirty dispute resolution mechanism the Court seems to envision. It is many and varied. Interestingly, international commercial arbitration—the original context in which the Court began enforcing arbitration clauses and arguably most legitimate context for enforcing arbitration—often has attributes that contrast sharply with those the Court deems “fundamental.” A hallmark of modern international commercial arbitration is the arbitrator’s ability to select procedures appropriate for the dispute she is presented with, within the limits of the governing agreement. So sometimes, arbitration is procedurally complex, expensive, and slow. It can include multiparty proceedings, appellate processes, and controversies over evidence, discovery, and internal procedures. The essence of arbitration is not any particular procedural characteristic. Because it is “a creature of contract,” its procedural specifics are left open to the parties and the arbitrators to determine.

But according to Lamps Plus,the FAA requires courts to interpret arbitration agreements pursuant to federal default contract principles—not state rules of contract interpretation—to ensure that arbitration follows the “traditional” model. This understanding of the FAA raises real problems. It undermines important arbitration values—including the fundamental value the Court refers to so often in Lamps Plus: that arbitration is a creature of contract. As such, parties usually assume that generally applicable contract interpretation rules will apply to their contract generally and their arbitration agreement in particular. They are also choosing a form of dispute resolution where they’re entrusting many procedural decisions to arbitrators, not to default rules crafted by Supreme Court justices. Indeed, sophisticated business parties specifically delegate resolution of their disputes—and decisions about how they’re processed—to trusted arbitrators instead of courts. And they trust that courts will respect and defer to arbitrators’ decisions about procedure and the merits, even if the arbitration looks like litigation in certain ways.

The arbitration that the Supreme Court prefers is not real arbitration but a caricature that turns the FAA into an end-run around procedures that federal and state policymakers created to facilitate—and encourage—private litigation. The Court’s embrace of the caricature leaves no doubt that it views arbitration and litigation as opposites and antagonists. To the Justices in the majority, the FAA is a mechanism to protect arbitration from becoming too much like litigation. But that vision is at odds with what arbitration is. And when contract principles conflict with the Court’s hostility toward litigation, the hostility to litigation wins. As Justice Kagan ably points out, that’s what happened in Lamps Plus.

This is not good for arbitration, especially international commercial arbitration, in the long run.


Posted by Ethan Leib on April 28, 2019 at 10:09 PM | Permalink | Comments (0)

A Note About the Census Case

Josh Blackman had an interesting post over on Volokh that asks the following question: Does the original public meaning of the Fourteenth Amendment require the census to ask about citizenship? 

My answer to his question, based on my article on Our Unconstitutional Reapportionment System, is yes. There is considerable evidence from the debate on the Fourteenth Amendment and from the 1870 census (the first conducted after ratification) that the census was supposed to ask all about all of the suffrage criteria specified in Section Two of the Fourteenth Amendment. In the article, I pointed out that given the subsequent practice that did not ask about these things, I could not say that the census must ask these questions. Water under the bridge, yada yada.

I doubt, though, that even Justice Thomas will say that the addition of the citizenship question to the 2020 census is mandated by the Fourteenth Amendment. To say that, you would also have to say that the other information called for by Section Two (such as the denial or abridgment of the vote by those same citizens) is constitutionally required for the census. Thus, the 2020 proposal would be invalid. The liberal Justices, who do not seem to think that a citizenship question should be asked, are equally unlikely to embrace the original public meaning. 

Posted by Gerard Magliocca on April 28, 2019 at 09:14 PM | Permalink | Comments (3)

About that New York Times cartoon

Hypo: A cartoonist wants to make the point that Vladimir Putin and Russia are dictating U.S. policy and that President Trump is following without thought or consideration and without knowing where he is going. The cartoonist depicts Putin as a guide dog, leading a sightless Trump; the guide dog has Putin's face and a collar with the Russian flag, while Trump is shown as a sightless man with dark glasses, with the guide dog on a lead taking him he knows not where.

I presume the meaning of that cartoon would be clear and that such a cartoon would be ok. If so, I do not understand why this cartoon becomes filled with anti-Semitic tropes when making what I believe to be the same point about Netanyahu and Israel. And any answer must not reduce to a prohibition on criticizing Israel in the same terms and using the same tools, including cartoons and satire, that would be used without objection against other nations and other political leaders.

What is anti-Semitic about this cartoon? (FWIW, my wife--who is more likely to find something anti-Semitic than I am and was less forgiving of Rep. Ilhan Omar than I was--is similarly confused).

   • Is it depicting a Jewish person as an animal, particularly a dog?  Anti-Semitic literature and cartoons (both old-fashioned European and modern Islamic) have depicted and described Jews as animals. But there also is a long history of depicting political leaders as animals. I interpret the picture depicting Netanyahu as the leader of a nation rather than as a Jew or a representation of Jews and the Star of David as the central piece of the Flag of Israel rather than as a Jewish symbol. Is my interpretation wrong? Can Israeli (or all Jewish) leaders not be depicted as animals because of the historic link to anti-Semitism?

   • Is it having Trump dressed like an Orthodox Jew, wearing a yarmulke, black suit, and white shirt? I find that piece out of step with what (I believe) the cartoon is trying to show. Unless Trump represents not only the U.S. but also American Jewry (or a segment of American Jewry). Either way, I do not see why this is anti-Semitic.

   • Is it the overall message that Israel dictates U.S. policy, recalling the ideas of secret-and-nefarious Jewish influence? That reduces to an argument that a common political critique--one country or one leader unduly influencing another country or leader--cannot be made against Israel or Israeli leaders. Or that criticism of Israel must be even-handed and reasoned ("Israel is wielding undue influence over U.S. policy, as do other nations") to avoid the charge of treating Israel differently because it is a Jewish State. Which precludes political cartoons criticizing Israel or Israeli leaders, as the "art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided."

I end with this: Describe a political cartoon making the criticism discussed at the top of the post--Netanyahu and Israel are dictating policy or action to a blindly following Trump--that would not be anti-Semitic.

Posted by Howard Wasserman on April 28, 2019 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (22)

Saturday, April 27, 2019

More fast-food justice

The "Hash Brown Defense" worked.

A Connecticut driver was acquitted of distracted driving, with the judge ruling that the state had not proven beyond a reasonable doubt that Jason Stiber was talking on the phone. According to the Washington Post, the ticketing officer testified that he clearly saw Stiber holding an illuminated object to his mouth while moving his lips. Stiber offered evidence that his lip movement was "consistent with chewing," that cell-phone records showed he was not on the phone at that time, that his car had Bluetooth capabilities,  and that the arresting officer, Shawn Wong Won, was on the 15th hour of a 16-hour double shift at the time of the arrest. There is a written opinion out there (the WaPo story mentioned it, but did not link).

Two thoughts, one frivolous, one serious.

In my essay, I began with Hedgepeth v. Washington Area Metropolitan Transit Authority, in which then-Judge John Roberts rejected a § 1983 action by a teen who was arrested and handcuffed for eating McDonald's french fries in a Metro Station. So does the Connecticut case mean that hash browns enjoy more constitutional protection in the fast-food hierarchy than french fries?

The more serious thought is that courts virtually always believe police officers when they testify to talismanic phrases--"I smelled marijuana," "He reached for the waistband of his pants," "I clearly saw a weapon in his hand." But here the court did not believe the officer when he said he clearly saw a cell phone in the driver's hand. And the stakes of taking the officer's word in this case--a $300 fine--are infinitely lower than when courts justify police shooting an unarmed person. I am not questioning the outcome or suggesting that the court should have believed the officer here; I am highlighting the different approach and outcome.

Posted by Howard Wasserman on April 27, 2019 at 08:52 AM in Howard Wasserman | Permalink | Comments (5)

Friday, April 26, 2019

The Kansas Abortion Opinion

Today the Kansas Supreme Court held that abortion is a fundamental right under its state constitution. The relevant provision is Section 1 of the Kansas Bill of Rights, which essentially uses the natural rights' language of the Virginia Declaration of Rights and the Declaration of Independence. In my book on the Bill of Rights, I discussed the fact that virtually all state constitutions contain a similar provision but that they are rarely used by state courts. The Kansas decision may signal that this is about to change.

Another observation from my book was that courts tend to lean more heavily on Bill-of-Rights rhetoric when the subject matter of a constitutional decision is controversial. The Kansas Supreme Court refers to its Bill of Rights many times (I lost count) to justify its conclusion that the right to have an abortion is, in part, a natural right that necessitates strict scrutiny for state regulation. We'll see how persuasive this move is when the inevitable effort to amend the Kansas Constitution to overrule the Court comes.

Posted by Gerard Magliocca on April 26, 2019 at 09:55 PM | Permalink | Comments (2)

Thursday, April 25, 2019

Diversity and Judicial Review

As I've mentioned before, one aspect of my draft paper on Winston Churchill and the Constitution discusses his claim that judicial review is necessary as a society becomes more diverse. In a prior post, I pointed out that Japan, which is among the least diverse major democracies, provides evidence in favor of Churchill's hypothesis in that the Japanese Supreme Court exercises judicial review rarely.

Turning the point around, I tried to think of an example of a Supreme Court in a very diverse nation. The first one that came to mind was India. Turns out that the Indian Supreme Court is among the most aggressive in the world in using judicial review.

The Japanese and Indian examples do not prove that Churchill was correct. But they are interesting starting points for a more thorough analysis.

Posted by Gerard Magliocca on April 25, 2019 at 09:14 PM | Permalink | Comments (4)

Innovation & Equality

Three related parts to this piece:

  1. I am incredibly honored to be deliver next year's Frankel Lecture at University of Houston. My plan is to speak about, and write an article that will be published by the Univ of Houston Law Review, on innovation and equality, and specifically how the legal infrastructure of markets, contracts, and the rules of the game have distributional effects. I know there are alot of studies and debates about the distributional effects of IP but I want to focus more on the Lost Einsteins (the series of studies about the lost Einsteins focus more on the educational and socio-economic background impacts, I want to focus on the legal infrastructure while we are already in the game of market competition) and the ways that power, voice and access are shaped by the inventive and creative markets.
  2. I am teaching for the first time this coming fall a course on Entrepreneurship and IP law. If you have related research do you send it my way, I'd love to read it and maybe include it in our readings.
  3. I recently attended a small innovation pitch night at a high school, Shark Tank style. The panel of judges was a #manel, it consisted only of adult men, from the school and the local community. Yes, manels are still pervasive and in some settings it doesn't even occur to the organizers that it's a problem. The students who presented were a majority of boys, sadly, and the quality of judging was questionable. The panel didn't ask key questions and seemed to not grasp some of the ideas presented.  At some point, the panel suggested to one of the few girl student teams that since they were competing in a very saturated market of kitchenware, the girls should use the fact that they are high school students as a publicity and marketing pitch to get attention at fairs. As one smart observer commented to me, the optics of an all-male adult panel giving advice to a teen girls team about using their identities as marketing since their product was not necessarily unique were not good. This team did get funding -- note that the gender aligned with the "sphere" or market in which they were pitching, whereas gender non-alignment - for example a team of girls pitching the creation of a sophisticated app that develops proprietary algorithms is more confusing to a #manel. One of the studies that I am assigning in my Entrepreneurship course is this one: Dana Kanze et al., Male and Female Entrepreneurs Get Asked Different Questions by VCs—and It Affects How Much Funding They Get, HARV. BUS. REV., June 27, 2017. The research begins with the pressing question on why: "There is an enormous gender gap in venture capital funding in the United States. Female entrepreneurs receive only about 2% of all venture funding, despite owning 38% of the businesses in the country." The Columbia University researchers analyzed teams interactions with VC investors at TechCrunch Disrupt New York, an annual startup funding competition. They found that VCs tend to ask men about potential gains and women about potential losses. According to the study, "investors adopted what’s called a promotion orientation when quizzing male entrepreneurs, which means they focused on hopes, achievements, advancement, and ideals. Conversely, when questioning female entrepreneurs they embraced a prevention orientation, which is concerned with safety, responsibility, security, and vigilance." A lot to think about and this fits with the much smaller anecdotal evidence that I witnessed recently. I am super excited and honored to be heading to Wharton in the fall for a special conference in honor of the prolific and groundbreak Ron Gilson, who has been such a leader in questions about start-ups and entrepreneurship and the law. I will be presenting an article that honors his contributions on non-competes but I look forward to thinking more across his many contributions and into these pressing questions about funding, innovation and equality.

Posted by Orly Lobel on April 25, 2019 at 05:25 PM | Permalink | Comments (0)

The Contract Thicket; or The Sum is Larger than the Parts: Supra Addition in Contract Law

Summer is coming and with it time to delve into half baked, or quarter baked projects. Here is something I have been thinking about for a while and would like to turn into a law review article. I would love any reactions, comments, ideas about other examples that fit:

In employment relations we often see what I call a contract thicket. First, contracts contain multiple clauses that together have a greater effect than the aggregation of their parts. For example, contracts will include multiple clauses about post-employment competition, including non-competes, ndas, non-solicit, assignment clauses, non-disparagement clauses (I have written about this breadth of clauses most recently in two forthcoming papers, Knowledge Pays, forthcoming in the Columbia Law Review and Gentlemen Prefer Bonds forthcoming in an antitrust symposium in Santa Clara Law Review). They will also include procedural clauses including choice of law and forum, arbitration and class waivers. Many of the clauses contain misleading and unenforceable terms and would be deemed void by courts if they were the subject to contract breach claims.The idea is that public policy should develop a better way to consider contractual arrangements where the sum is something larger than the parts. This means that for example clauses that restrict mobility should be judged in relation to each other, on how much they operate together to signal, and to create, a lock-in talent and prevent competition. Similarly, clauses that restrict voice or procedural rights should be judged on how they operate together. The jurisprudence on unconscionability includes some such considerations when judged on substantive and procedural effects and multi-factors are taken into account, but I don't the law has developed a direct and consistent framework to adjudication what I am calling "Supra Addition" - how the whole is larger than the sum of the parts in contract law.

Other related examples are consumer contracts, landlord-tenant contracts, and IP licensing arrangements. 

Second, a contract thicket, and this may be a separate paper - exists when an entire workforce or industry are signed on similar clauses, which again creates a supra addition effect: for example, if everyone is signing non-solicitation of co-worker clauses or everyone is signed on class waivers or arbitration agreements or secrecy arrangements, the effects are on the industry at large, beyond the number of employees who sign the clauses, and they also have an effect on the terms and conditions of employee who have not signed these contracts.

The implications are broad. A better conceptualization and adjudication of supra addition has implications both at the assessment stage: contract interpretation and whether contracts are enforceable, void, voidable, misleading, should be blue-penciled or completely tossed. Second, a better understanding of the phenomenon of supra addition should suggest a more proactive approach to contract policy: waiting for each individual clause to be the subject of litigation never reveals the full picture. The lens of unfair competition, a tort lens, seems more suitable.

As a I said, this is a law review project in the initial stages -- I know it touches on a lot of related area of law, such as the relationship between contract law and torts; antitrust law, policy areas such as consumer protection, employment regulation, IP...but I think what I most want to focus on is the lens of contract doctrine. I would so appreciate any and all feedback and ideas to propel the summer project forward! 

Posted by Orly Lobel on April 25, 2019 at 12:25 PM | Permalink | Comments (6)

The Unbearable Darkness of Lamps Plus

I agree with my co-author Tal Kastner about how creepy yesterday's Lamps Plus decision was -- and how it exemplified our thesis in our forthcoming Georgetown Law Journal article Contract Creep too well.  Indeed, the opinion basically made our points for us: there is no way this is your grandma's Federal Arbitration Act that the majority was "interpreting" -- as they allowed a law for sophisticated parties creep outside that context -- nor was this your grandfather's contra proferentem rule that was there to help non-drafters on the receiving end of adhesion contracts.  The Court decided to pre-empt well-worn state contract law (that was surely around at the time the FAA was passed) in service of a new-fangled court-commitment to (now individualized rather than class) arbitration, which itself is supposed to be a product of contract.

There often seems to be at least one arbitration case every few years that I irrationally believe will be the one to break up the conservative bloc.  Although I didn't think Varela's lawyer did a very good job at oral argument, Kagan in dissent pretty much makes clear why this result is so deeply cynical.  The FAA was created to make sure courts weren't disfavoring arbitration or discriminating against arbitration agreements.  Put aside that the FAA drafters were focused on sophisticated party transactions (where consent and equal bargaining power was presumed) and that the Court has developed what amounts to a strong federal policy in favor of arbitration even in consumer and employment transactions (where consent is usually pretty thin in form contracts).  Yet the Court in Lamps Plus balked when it realized that its policy in favor of arbitration might actually lead to a company/employer rather than a consumer/employee being compelled to arbitrate.  The opinion relies on the deep need for consent from the drafting company that effectively controls the "consent" of the consumer/employee!  We are now supposed to worry about drafters' consent to arbitrate in class arbitrations, notwithstanding that the drafter has complete control over the arbitration agreement and is fully capable of drafting against a well-known and widely applied doctrine of core contract law.  This is dark and willful stuff.

When the California courts used unconscionability law somewhat selectively -- mostly to kill arbitration agreements but otherwise not do much else -- I could get myself to see how discriminatory applications of contract law could be in some tension with the FAA's core purpose not to have courts disfavoring arbitration agreements.  Preemption in such a context was plausible.  But contra proferentem is used broadly and commonly in the common law of contract with no discriminatory effect on arbitration.  Swiping it away because the Court's version of the FAA purportedly preempts it is deeply off-track.  I'm embarrassed to be surprised that the conservative bloc wants to displace state contract law when neither the text nor the purpose of the federal law requires it. 

Posted by Ethan Leib on April 25, 2019 at 09:24 AM | Permalink | Comments (0)

Creepy Lamps: A Commentary by Tal Kastner

Today in Lamps Plus Inc. v Varelathe Supreme Court reversed the Ninth Circuit’s ruling that an ambiguous arbitration provision in an employment agreement may be construed against the drafter to allow class-wide arbitration. Beyond the implications for those concerned with the ever-expanding presumption of enforceability of arbitration provisions, Lamps Plus promises to complicate further another fundamental project in contract law.  

As Ethan Leib and I explore in Contract Creep, forthcoming in the Georgetown Law Journal, scholars and judges widely accept that so-called “sophisticated party” transactions should be treated differently than consumer or employment transactions involving individuals. The wisdom of developing distinct doctrinal tracks in contract law for different transaction types traces to the distinctive goals of contract law in different contexts as well as empirical evidence of the distinctive ways sophisticated parties, on one hand, and individuals, on the other, are able to mobilize terms like arbitration to allocate risk.  As we argue, however, the project of developing a contract law for sophisticated parties and another track for employees or consumers overlooks a fundamental challenge—one that today’s ruling both demonstrates and exacerbates.  Specifically, we highlight the tendency of doctrine to creep between doctrinal tracks and muddy doctrinal rationales. 

In solidifying the privileged presumption of individual rather than class-wide arbitration and sidelining the principle of contra proferentem—construing an ambiguity against the drafter— today’s ruling facilitates creep in two directions.  It reinforces the trend of treating arbitration provisions—originally recognized by bespoke doctrine as a tool for sophisticated parties—as a matter of general contract law in which the employer-drafter’s consent is paramount. And framing contra proferentem as a public policy doctrine beyond the issue of consent, the ruling circumscribes the applicability of the doctrine in the context of an employee presented with a form agreement.  As we outline, this old principle of contract construction has migrated in its current form from insurance law, where its most compelling rationale is pro-consumer, into general contract law, to be applied in sophisticated party transactions. Today’s ruling further muddies the distinction between doctrinal tracks in both directions: limiting contra proferentemin the context of a form agreement drafted by a powerful repeat player, and protecting employers’ consent to arbitration without regard to transaction type. In doing so, the Court not only widens the on-ramps for transaction-specific doctrine to jump tracks but demonstrates the generalizing trend that will complicate the project of developing bespoke doctrine.



Posted by Ethan Leib on April 25, 2019 at 12:01 AM | Permalink | Comments (1)

Wednesday, April 24, 2019

Debating the Meaning of Privileges or Immunities

I wanted to flag an important scholarly debate that is underway about the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. On one side are Randy Barnett and Evan Bernick, with a paper on The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment. Professor Lash responded with paper entitled The Enumerated Rights Reading of the Privileges or Immunities Clause: A Response to Randy E. Barnett and Evan D. Bernick's 'The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment.' Both papers will appear in Notre Dame Law Review this Fall. (I have a shorter paper that will appear in the same law review issue on Corfield v. Coryell, though my paper will not address the other two.)

I highly recommend reading both papers to see how first-rate constitutional work is done.

Posted by Gerard Magliocca on April 24, 2019 at 10:03 PM | Permalink | Comments (1)

Tuesday, April 23, 2019

Improvident Certiorari Grants

Today the Supreme Court dismissed a recently argued case with a one-sentence order stating that the writ of certiorari was improvidently granted. This is the standard practice nowadays. It is worth noting, however, that the Supreme Court used to actually explain why the writ should not have been granted before stating that conclusion.  (You can find lots of examples through a simple Westlaw search). I wonder if the parties in such a case are owed an explanation, however brief, for the Court's change of heart.

Posted by Gerard Magliocca on April 23, 2019 at 10:03 PM | Permalink | Comments (6)

JOTWELL: Coleman on public comments on the code of judicial conduct

The new Courts Law essay comes from Brooke Coleman (Seattle), commenting on the proposed changes to the federal judicial code of conduct and the advocacy work by the Law Clerks for Workplace Accountability.

Posted by Howard Wasserman on April 23, 2019 at 10:59 AM in Article Spotlight, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, April 22, 2019

President Trump meets the Speech or Debate Clause

With this complaint seeking to enjoin a subpoena directed towards the Trump Organization's accounting firm. The pleading tries to argue that there is no legitimate legislative purpose behind the subpoena, because "oversight" is not, in the vacuum, legitimate legislative activity. I cannot believe a court would be anything but highly deferential of a congressional committee's determination of what is within its legislative jurisdiction. Plus, Trump's argument basically amounts to "this subpoena is not legitimate because there are too many subpoenas," such that Congress loses the power of oversight when the President engages in too much misconduct.

Posted by Howard Wasserman on April 22, 2019 at 01:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (13)

Saturday, April 20, 2019

On the need and scope of the Infield Fly Rule, Exhibit # 613

The Mariners turned a double play against the Angels on a fly ball to second base, on a play that illustrates two points about the need for and scope of the Infield Fly Rule.

The Angels had runner on first with one out. The runner, Brian Goodwin, broke for second; the batter, Justin Bour, popped the ball on the infield dirt near the second baseman. Goodwin ran back to first, while Bour, assuming the ball would be caught, began walking towards the dugout. Seeing this, one Mariners infielder yelled to his teammate to let the ball fall to the ground, which he did. He threw to second for the force on Goodwin (the third baseman was covering second on a shift against the lefty Bour), then a relay to first for the inning-ending double play on the non-running batter.

This demonstrates why baseball does not have or need a limiting rule for fly balls with a runner on first base only (so a force in effect at only one base). There would have been no chance for a double play on this play had Bour run (or even jogged) to first base. The Mariners might have chosen to let the ball fall to the ground to get the one out as a force on the speedy Goodwin while allowing Bour to reach first. But that is a relatively equitable exchange--one out for one baserunner, with a loss of speed on the basepaths. The Mariners gained the inequitable advantage of an inning-ending double play only because Bour did not do what he is expected to do--run to first base on a batted ball.

The video provides a great shot of why the Infield Fly Rule is necessary. Watch the play, imagining a second baserunner on second. We can see how easy it would have been for the second baseman to let the ball hit the ground and immediately make the first of one or two throws for a double play--had the fielder been quicker grabbing the ball off the ground, he could have made one throw to second base for a tag-the-runner-on-second/tag-the-base-to-force-the-runner-on-first double play. And we can see how screwed the baserunnners would be. Having run all the way back to first, Goodwin could not turn around and run 90 feet the other way in time to beat the throws; neither could a second baserunner. And this is with the defense being somewhat nonchalant on the play and a bit confused, because it was unexpected. Imagine life without the Infield Fly Rule, when the defense plans and practices for this play and is ready to pull it off.

Posted by Howard Wasserman on April 20, 2019 at 04:25 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Thursday, April 18, 2019

SCOTUS argument recap: Too many metaphors

My SCOTUSBlog recap of Wednesday's argument in McDonough v. Smith is now up. This was the most metaphorical argument I have read, with everyone returning to heads spinning and constitutional rights swimming to and from conclusions (this all seemed to appeal to Justice Gorsuch).

It appears that the petitioner is going to win and that the Court will find the § 1983 claim timely because filed within three years of the favorable termination of criminal proceedings. Counsel for respondent had a rough time. He declined to dispute Justice Ginsburg's contention that the claim is one for procedural (rather than substantive) due process, triggering a suggestion from Justice Sotomayor that he had given the game away. And he received an avalanche of questions--including from the Chief and Justice Kavanaugh--showing sympathy for the argument that favorable termination should be required for policy reasons of avoiding collapse and confusion between criminal and civil proceedings.

The real question is going to be how the Court gets there--whether by focusing on the elements of a § 1983 claim (as the United States urges) or at the level of judicial policy (as petitioner urges). And what happens on remand, where the government argues that, while timely, the claim is barred by prosecutorial immunity.

Posted by Howard Wasserman on April 18, 2019 at 12:00 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Wednesday, April 17, 2019

FIU Law Review: Barnette at 75

I am happy to announce that the new issue of FIU Law Review is available online, featuring last fall's symposium Barnette at 75: The Past, Present, and Future of the Fixed Star in Our Constitutional Constellation. The hard version (which includes Q&A transcripts and a contribution from keynote speaker John Q. Barrett) should be available soon. Ron Collins wrote something up at FIRE. My introduction includes a discussion of an issue I have been playing with--whether, if you could establish state action (which I do not believe you can), the NFL violates the First Amendment by prohibiting players from kneeling during the anthem.

The TOC and links are available after the jump.

Volume 13, Number 4 (2019) Barnette at 75: The Past, Present, and Future of the Fixed Star in Our Constitutional Constellation

Front Matter


Introduction: Barnette at 75
Howard M. Wasserman


Posted by Howard Wasserman on April 17, 2019 at 01:38 PM in Article Spotlight, First Amendment | Permalink | Comments (1)

Guest Post (Josh Douglas): Vote for US – The Organizations

This is the third in a series of guest posts from former guest Josh Douglas (Kentucky) that will appear this week. The series was posted on the Election Law Blog. Thanks to Rick Hasen for letting us publish it, with some minor edits.

In my previous posts about my new book, Vote for US: How to Take Back Our Elections and Change the Future of Voting, I discussed some of the Democracy Champions working on positive election reforms and highlighted some of the reforms themselves. The third piece of the puzzle is the incredible local, state, and national organizations focused on these issues.

The book tells the stories of lots of great groups and the work they are doing to reach voters in their communities. Perhaps my favorite story is from the Texas affiliate of Mi Familia Vota. That organization went to taco trucks in heavily-Latino areas of Houston to give them voter registration forms to hand out to their customers. On the voter registration deadline, taco truck owners were calling Mi Familia Vota to ask for more forms, as so many people wanted to register to vote. Organizations like these actively work in local communities to reach voters where they are.

I also tell the stories of two amazing organizations, VoteRiders and Spread the Vote, that focus on voter mobilization and issues of voter ID, each with their own strategy and reach. Their models rely on local volunteers, who often help to secure the necessary underlying documentation that a voter may need and offer rides to the DMV to obtain an ID. As Spread the Vote notes, having an ID is helpful for everyday life, not just Election Day.

These are just a few examples. Great organizations exist in all 50 states. The Appendix lists groups in every state, as well as national organizations, dedicated to voting rights, election reform, and campaign finance. No matter your state, you can flip to the back of the book and find a couple of organizations that focus on voting rights and election reform. Give one of them a call.

This is, I hope, a different book. Although I spent considerable time doing research, the focus goes beyond an academic audience. I hope that everyday Americans will read the book and feel inspired about what is possible. We need not suffer from the doom-and-gloom that most people think invades our voting rights discourse. We can promote positive reforms that will truly improve our election system. We can achieve much higher turnout and much less apathy about our democracy. All of us can help to take back our elections and change the future of voting.

Posted by Howard Wasserman on April 17, 2019 at 09:31 AM in Books | Permalink | Comments (0)

Tuesday, April 16, 2019

"profane past participle form of a well-known word of profanity"

Anyone else find absurd the Court's refusal to use or allow the use of profanity in a case that is all about profanity and the ridiculous (if clever) work-around the government's lawyer found? Melville Nimmer rolls over in his grave.

Posted by Howard Wasserman on April 16, 2019 at 05:44 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Justice O'Connor and the ERA

I recently finished the new Sandra Day O'Connor biography by Evan Thomas. There is much to chew in her life story (especially about what people want from judges). One interesting thread is how her public life was shaped by the Equal Rights Amendment. (Even failed amendments have consequences.)

Part of the book covers the debate on the ERA in the Arizona Legislature when O'Connor served there. She was pretty cagey about that issue due to the surrounding politics. (Arizona did not and still has not ratified the ERA.) In a sense, though, this contributed to her moderate Republican image that ended up helping her become the first woman on the Court.

Moreover, Justice O'Connor was selected largely because Ronald Reagan, who opposed the ERA, tried to make up for that position during the 1980 campaign by pledging that he would appoint a woman to the first Court vacancy he faced. What she said about the ERA later I do not know, though of course she authored and joined opinions that furthered sex equality under the Equal Protection Clause.


Posted by Gerard Magliocca on April 16, 2019 at 11:11 AM | Permalink | Comments (0)

Florida State University System Free Expression Statement

The Florida State University System issued a Free Expression Statement to "support and encourage full and open discourse and the robust exchange of ideas and perspectives on our respective campuses." It is a good statement from a First Amendment standpoint. It emphasizes the purpose of higher education in allowing divergent ideas to be debated (a proposition with which my colleague Stanley Fish disagrees); the importance of not stifling ideas because some find them offensive or abhorrent; and that concerns for civility or respect be a cover for stifling expression. It also reiterates schools' power to regulate through neutral time, place, and manner regulations, which still allows administrations to restrict a lot of expression (including by counter-protesters).

The full statement is after the jump.

State University System Free Expression Statement

The State University System of Florida and its twelve public postsecondary institutions adopt
this Statement on Free Expression to support and encourage full and open discourse and the robust exchange of ideas and perspectives on our respective campuses. The principles of freedom of speech and freedom of expression in the United States and Florida Constitutions, in addition to being legal rights, are an integral part of our three-part university mission to deliver a high quality academic experience for our students, engage in meaningful and productive research, and provide valuable public service for the benefit of our local communities and the state. The purpose of this Statement is to affirm our dedication to these principles and to seek our campus communities’ commitment to maintaining our campuses as places where the open exchange of knowledge and ideas furthers our mission.

A fundamental purpose of an institution of higher education is to provide a learning environment where divergent ideas, opinions and philosophies, new and old, can be rigorously debated and critically evaluated. Through this process, often referred to as the marketplace of ideas, individuals are free to express any ideas and opinions they wish, even if others may disagree with them or find those ideas and opinions to be offensive or otherwise antithetical to their own world view. The very process of debating divergent ideas and challenging others’ opinions develops the intellectual skills necessary to respectfully argue through civil discourse. Development of such skills leads to personal and scholarly growth and is an essential component of the academic and research missions of each of our institutions.

It is equally important not to stifle the dissemination of any ideas, even if other members of our community may find those ideas abhorrent. Individuals wishing to express ideas with which others may disagree must be free to do so, without fear of being bullied, threatened or silenced. This does not mean that such ideas should go unchallenged, as that is part of the learning process. And though we believe all members of our campus communities have a role to play in promoting civility and mutual respect in that type of discourse, we must not let concerns over civility or respect be used as a reason to silence expression. We should empower and enable one another to speak and listen, rather than interfere with or silence the open expression of ideas.

Each member of our campus communities must also recognize that institutions may restrict expression that is unlawful, such as true threats or defamation. Because universities and colleges are first and foremost places where people go to engage in scholarly endeavors, it is necessary to the efficient and effective operations of each institution for there to be reasonable limitations on the time, place, and manner in which these rights are exercised. Each institution has adopted regulations that align with Florida’s Campus Free Expression Act, section 1004.097, Florida Statutes, and with the United States and Florida Constitutions and the legal opinions interpreting those provisions. These limitations are narrowly drawn and content-neutral and serve to ensure that all members of our campus communities have an equal ability to express their ideas and opinions, while preserving campus order and security.

Posted by Howard Wasserman on April 16, 2019 at 10:01 AM in First Amendment, Teaching Law | Permalink | Comments (3)

Guest Post (Josh Douglas): Vote for US-The Reforms

This is the second in a series of guest posts from former guest Josh Douglas (Kentucky) that will appear this week. The series was posted on the Election Law Blog. Thanks to Rick Hasen for letting us publish it, with some minor edits.

Yesterday I highlighted some of the amazing individuals I profile in my new book, Vote for US: How to Take Back Our Elections and Change the Future of Voting. These inspiring people are promoting positive voting rights reforms in their local and state communities. Today I’ll say a little bit about some of the reforms themselves.

I discuss, for example, the origins of automatic voter registration, started statewide in Oregon largely thanks to some innovative thinking by Steve Trout, the elections director, and Kate Brown, then the secretary of state who became governor. That reform is now spreading throughout the country. I devote a chapter to disabled voters and the use of a voting machine that all voters can use, which can reduce the stigma of having a disability. I talk about the adoption of ranked choice voting in numerous local elections and then Maine’s statewide implementation last year, highlighting both the reformers who made it happen and the reasons why the system can improve our elections. I go in-depth about Michigan’s constitutional amendment to create an independent redistricting commission and also highlight similar local measures, such as in Sacramento. There’s a discussion of incorporating “action civics” into our classrooms and why local journalism is so important to our democracy.

The book purposefully highlights local reforms. Justice Louis Brandeis once said that states are laboratories of democracy: “a state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” If states are laboratories of democracy, then I like to think of cities and localities as “test tubes of democracy” that can try out reforms on an even smaller scale. The best ideas will then spread to other localities and eventually to states. That’s the case for many of these election reforms.

Importantly, the book focuses on reforms actually working in state and local elections already. The book is less concerned about major changes to our constitutional structure, like abolishing the Electoral College. Those ideas are important, of course, and I discuss some of them in the Epilogue, but the point of this book is to highlight and promote electoral changes that are already in force – with positive results – in states and localities all over.

Moreover, while pushing back against voter suppression is vitally important, it can’t be our only strategy to improve our democracy. That’s the message of the final chapter, “The Perils of Only Playing Defense.” We also need to focus on positive voting rights reforms. The goal is much higher turnout and an election process that is more inclusive and convenient for all voters.

Tomorrow I’ll discuss a few of the local organizations dedicated to these efforts and the resource I provide in the Appendix to find them, no matter your location.

Posted by Howard Wasserman on April 16, 2019 at 09:31 AM in Books | Permalink | Comments (0)

Monday, April 15, 2019

Guest Post (Josh Douglas): Vote for US

This is the first in a series of guest posts from former guest Josh Douglas (Kentucky) that will appear this week. The series was posted on the Election Law Blog. Thanks to Rick Hasen for letting us publish it, with some minor edits.

I’m proud to share that I’ve just published a new book, titled Vote for US: How to Take Back Our Elections and Change the Future of Voting. It’s a popular press book that tells some truly inspiring stories of everyday Americans who are working in communities all over the country to fix our election system. In the process, the book advocates for various reforms to our democracy that are already seeing success in numerous local and state elections. And it highlights lot of amazing organizations that are taking on these efforts.

Today I’ll focus on a few of the people I profile in the book – the Democracy Champions in communities all over who are at the forefront of improvements to state and local democracy.

Some of these people are election officials or regular policy advocates. But more exciting, I think, are the people I interviewed who are doing this work quietly, during nights and weekends, and without much fanfare.

For example, I open the book with the story of West Powell of Covington, Kentucky. West was 18 years old when he stole a car radio from an auto salvage yard. He was convicted of a felony, served his time, and lost his right to vote for life. Over twenty-five years later, the Kentucky legislature was considering a bill to allow some low-level felons to seek an expungement of their records. West went to testify, telling his story about how he had cleaned up his life, married, became a father to five kids, and opened his own computer repair shop.

Republican Whitney Westerfield listened to West Powell’s testimony. Westerfield was initially opposed to the felony expungement bill and told me that he thought nothing would change his mind. But something about West’s story altered his views. He immediately became a champion for the expungement bill, which eventually passed with bipartisan support.

West Powell regained his right to vote and now never misses an election.

There are tons of individual Democracy Champions just like West Powell who are working in their local communities to improve the election process, making it more inclusive and convenient. Joshua Cardenas of San Francisco, then 16 years old, advocated to lower the voting age to 16 for local elections, which came very close to passing in 2016 and likely will win enough support in the near future. Scott Doyle, a baseball loving Republican county clerk in Larimer County, Colorado, found a way to make the voting process more convenient through countywide Vote Centers. Alison Smith of Maine became a public champion for public financing. Jenifer Hitchcock, a social studies teacher in Virginia, has crafted innovative ways to engage her students in civics education.

Ultimately, this is a book of stories about inspiring Americans who are working to promote positive changes to our democracy. Fighting voter suppression is important, of course, but it can’t be the only strategy to fix our electoral system. We also must promote positive voting rights reforms. That’s what the Democracy Champions I profile in the book are all about.

Tomorrow I’ll highlight in some more detail the reforms that these inspiring individuals are championing.

By the way, I’ll be speaking about the book all over the country this spring and summer. I hope to see Prawfs readers at these events!

Posted by Howard Wasserman on April 15, 2019 at 09:55 AM in Books | Permalink | Comments (0)

"Barnette at 75" and "A Close Reading of Barnette, in Honor of Vincent Blasi"

I was grateful to Howard, the stationmaster of our blog, for inviting me to participate last fall in a wonderful symposium at Florida International University's law school on the 75th anniversary of West Virginia State Board of Education v. Barnette. Howard and the editors of the FIU Law Review invited a fine group of scholars (plus me) to speak, and it was a very good day, keeping in mind that "a very good day" is sort of the baseline in Miami. Now the Barnette symposium has come out in print and online. It can be found here

As Howard notes in his good and substantive introduction, the symposium is divided into three general topic areas. The first set of articles "focuses on Barnette's historical context." The second set focuses on "Barnette as text and the best way to read and interpret Jackson's words." (Justice Robert Jackson wrote the famously eloquent and aphoristic opinion for the Court.) The third and final set is on Barnette's "modern context" and "continued relevance"--especially its appearance in three major Supreme Court decisions in its 75 anniversary year: Masterpiece Cakeshop, Becerra, and Janus.

My contribution, A Close Reading of Barnette, in Honor of Vincent Blasi, is in the second category. As the title suggests, it's a "close reading" of Barnette, one that aims at reading Jackson's opinion itself and drawing all that I can from the text alone. My approach was inspired by the teaching and writing of Vince Blasi, who is one of my teachers and whose "close reading" assignments have inspired many of his former students who now teach in First Amendment law and other areas. Vince has long lamented that in legal education, students are generally asked to read and synthesize large chunks of doctrine drawn from small, chopped-up excerpts of cases, rather than reading individual cases in full and  engaging carefully with them as individual texts. His close reading assignments are an antidote to that. For years, I have gratefully stolen the idea from him and used it in my Law and Religion course, in which students do two close readings of individual cases or texts. Given the elite-reproduction nature of law school hiring, most of us owe considerable debts to teachers whose fame and prestige we can hardly advance and for whom we can do little in return that they really need. The best way to repay that debt is in how we treat our own students. But it was fun to pay explicit tribute to Blasi in this piece.

As it developed, I decided that I wanted to focus on passages other than the famous "fixed star" passage. It is almost literally an arresting passage: so evocative and powerful that it often hijacks the attention of scholars writing about Barnette, who thus neglect much else of importance in the opinion, including much that might help us read the "fixed star" passage more clearly. It is also worth noting and lamenting that my focus on the single majority opinion forced me to omit discussion of the concurring opinions, by Justices Black and Murphy, and Justice Frankfurter's dissent. The concurrences are generally ignored. Frankfurter's dissent in particular has long been short-changed, in large part because of the arresting nature of the opening, deeply personal passage in which he identifies himself as "one who belongs to the most vilified and persecuted minority in history." That passage has encouraged a general dismissiveness toward the dissent, in which casebooks (which skip the concurrences altogether) quote its dramatic opening but treat the dissent (most of which they omit) as a defensive outburst justifying his opinion in Gobitis and his place on the so-called "wrong side of history" in the flag salute litigation. There is actually much to learn from the concurrences and Frankfurter's dissent, each of which in various ways previews arguments and competing views--especially about law and religion--that would recur for the next 75 years and counting. For a fine recent discussion of Frankfurter's dissent, check out this piece by Sam Moyn. For various reasons that I hint at below, I think we can expect a revival of somewhat supportive scholarly interest in Frankfurter's dissent.        

Here's the abstract for my piece:

This article, written for a symposium marking the 75th anniversary of West Virginia State Board of Education v. Barnette, offers a close reading of Justice Jackson's opinion for the Court. In doing so, it offers an implicit and explicit tribute to Vincent Blasi, whose teaching and writing have emphasized the value of deep, careful engagement with the language and arguments of a single text, such as a judicial opinion, and who has been an inspiration to me and many other contemporary First Amendment scholars.

This close reading explores a gallery of passages from Barnette that have received relatively little scholarly attention, largely because Jackson's arresting "fixed star" passage has monopolized much of the discussion. But other passages in the opinion help reveal additional important points about the case with important broader implications. They suggest something about why Jackson treated this as a speech rather than a religion case and as an individual liberty case rather than an equal treatment case. They have implications for arguments about third-party harms, "government nonendorsement," student speech, and heckler's veto doctrine. And they underscore the importance of Jackson's description of an autonomous "sphere of intellect and spirit" and of the limits of state power in this area. Perhaps much more than has been recognized, Barnette is a paean to the sovereignty of the mind, and in doing so it treats this realm as much or more as a matter of state non-interference than as a subject for measured judicial balancing.

Although I focus closely on the text of the opinion itself, I offer some larger assessments of Barnette's condition today. I make two general observations. First, on the one hand, Barnette had an excellent 75th anniversary year, with citations and discussions in major Supreme Court decisions suggesting its stock is high. On the other, I suggest that it is in much poorer health in academic circles. A striking number of scholarly discussions of current issues, such as the wedding vendor cases, omit Barnette altogether. I suggest that these omissions are evidence of a deeper discomfort with Barnette. And for good reason: As this close reading reveals, the words and deeper music of Barnette are in genuine tension with current popular positions on these issues, and suggest that at some point these scholars need to engage directly and seriously with Barnette. Second, I argue that in interesting ways Barnette is a kind of "pre-capitulation" of much that happened in First Amendment law in the 75 years that followed it. This is true not just in the sense that Barnette positively inspired a great deal of First Amendment doctrine, but also in the sense that much of the jurisprudence that followed consisted of efforts to cabin Barnette and its implications and to build safety valves around it.

As the abstract suggests, although the heart of the article is the close reading itself, I do make some broader points about Barnette's place in First Amendment law and about how constitutional doctrine develops. I also argue, in an admittedly speculative fashion, that there is a kind of disjunction between Barnette's status on the Supreme Court and its status among legal scholars. As I note, many articles that might well have been expected to discuss Barnette have instead omitted it altogether. That may change after the most recent Supreme Court decisions, but that's hardly certain (and not all citations are genuine discussions). Of course, in making a general observation based on a citation search of recent legal scholarship, I do not deny that there are "honorable exceptions." But I do suggest that there are good reasons to suspect that many modern scholars might be (or ought to be) ambivalent about Barnette, given the import of that case for the implications of the theories and arguments they have been advancing of late, and that this ambivalence might express itself in part by bracketing Barnette through silence. I hope more of them will take it on directly and forthrightly, and without simply employing the usual lawyer's skill of narrowing or distinguishing it. Read for all it is worth and with its "music" in mind, it means more than that, and suggests real conflicts with the kinds of arguments that have been popular in recent years among First Amendment scholars--but not, for the most part and notwithstanding Justice Kagan's dissent in Janus [the initial post accidentally said "Masterpiece Cakeshop" here; my apologies and thanks to a commenter for pointing out the error] and its invocation of the rather unhelpful meme of so-called "weaponization," on the Supreme Court itself.

For some of these scholars, it might be that reflection will lead them to reject Barnette, in whole or in part. There's nothing wrong with that. The opinion isn't Holy Writ and indeed it's not the scholar's job to treat any text or opinion as beyond question. The worst that can happen is that openly questioning Jackson's opinion might deprive them of some strategic or rhetorical resources in advancing their arguments, and make it less likely that such arguments will win support from judges. But that only matters for political or litigation purposes and is irrelevant for actual scholarly purposes. Taking on Barnette directly, and without resorting to the usual lawyers' expedients, seems to me necessary for scholarly purposes and likely to make the kind of scholarship I am thinking of richer, more candid, and perhaps more self-critical (or bolder). And let me note finally that this symposium itself provides some such efforts. Pieces by Abner Greene, Erica Goldberg, Genevieve Lakier, and Leslie Kendrick all take on Barnette in the context of modern First Amendment debates on and off the courts. I'm delighted. I commend those pieces and the entire symposium, possibly including my own contribution, to readers. Enjoy! 


Posted by Paul Horwitz on April 15, 2019 at 09:41 AM in Paul Horwitz | Permalink | Comments (1)

Sunday, April 14, 2019

Human Capital Accumulation, Mobility & Equality (plus talk tomorrow at Yale)

I am working on a new  paper titled, Gentlemen Prefer Bonds: How Employers Fix the Talent Market very soon on ssrn. here is an abstract:

The labor market is precisely as the name indicates: a market. The currency of this market is talent. Competition principles apply in equal force to the labor market as to the product market, with the added effect that human capital is a living resource—its quality is endogenous to the competition for it. Competition among firms in the product markets spurs innovation, competitive pricing, and higher quality products and services. Competition among firms over talent ensures higher wages, better work conditions, and higher quality human capital. The strength of competition in the labor market depends on a range of factors, but a key measure of competition is the number of alternatives available for employees to consider. A powerful armor employed by companies to reduce alternative job opportunities is the restrictive covenant. The purpose of this article, written for a symposium on frontier in antitrust law is threefold. First, it explains the broader landscape of anti-competitive restrictions that are routinely placed on employees including horizontal collusion between employers agreeing to fix wages or refraining from poaching each other's employees and vertical arrangements between employers and employees, which may include employees agreeing not to solicit customers or former co-workers post-employment; to incur penalty for competition; and to avoid building on their professional knowledge, reaching beyond trade secrecy protections and into information that should remain in the competitive markets public domain, such as customer lists, compensation information, and general know-how. Second, while many of the harms potentially caused by non-competes are well-documented, the article presents a neglected aspect of labor market concentration: the perpetuation of wage gaps and inequalities. The article argues that mobility restrictions have a disproportionate effect on certain protected identities—primarily women, minorities, and older workers. In particular, I provide an original analysis of the effects of restrictive covenants on the gender wage gap and presents supporting empirical evidence. Third, the article presents a pervasive problem in the landscape of restrictive covenants: the prevalence of unenforceable contractual terms. I argue that the problem of unenforceable anti-competitive restrictions in employment contracts calls for a proactive approach, including notice requirements in employment contracts; regulatory action and penalties that target the contracts before litigation has been pursued; and a private right of action, including class actions by employees who have been harmed by unenforceable contracts.

I will be presenting it tomorrow at Yale Law School, if you happen to be in New Haven would love for you to join!

Posted by Orly Lobel on April 14, 2019 at 07:18 PM | Permalink | Comments (0)

Saturday, April 13, 2019

Judicial departmentalism and the rule of law

President Trump has made two recent moves that some are labeling threats to the rule of law: 1) DOJ (at White House urging) declining to defend the Affordable Care Act and 2) Trump instructing the head of ICE to deny entry at the border and to disregard court orders to stop denying entry and promising to pardon officials held in contempt for disregarding court orders. Judicial departmentalism--under which the executive may reach independent constitutional conclusions and act on them, but must obey court orders--looks at these differently.

The first is constitutionally permissible, if politically fraught. From the premise that the executive can reach independent constitutional determinations it follows that the executive can make litigation choices consistent with those determinations, including declining to defend laws. DOJ guidelines on when to decline are just that--prudential guidelines for making controversial choices and avoiding defeat in court, but not constitutionally compelled and not inconsistent with an idealized rule of law.

The second is impermissible, as the President and the rest of the executive branch cannot disregard court orders that bind them or refuse to enforce court orders binding others. The promise to pardon any contempt convictions is inconsistent with that obligation and perhaps with due process. While troubling, this move reflects Trump's limited understanding of how law and judicial processes work. It would be a long way before any federal official who did what Trump suggested would be convicted of criminal contempt. So the pardon power would not be useful if any official did as Trump urged (and reports are that ICE supervisors immediately told officers not to do as Trump suggested).

Posted by Howard Wasserman on April 13, 2019 at 12:54 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Thursday, April 11, 2019

FIU Law Review: Summit on the Future of Legal Education and Entry to the Profession

FIU Law Review has published its new issue, A Summit on the Future of Legal Education and Entry to the Profession; this was a live symposium in spring 2018. It was a great live event and the issue includes published contributions from Scott Norberg of FIU, who organized the program; Bernard Burk; Joan Howarth and Judith Wegner; Kyle McEntee; and Aaron Taylor.

Posted by Howard Wasserman on April 11, 2019 at 03:43 PM in Teaching Law | Permalink | Comments (0)

Wednesday, April 10, 2019

SCOTUSBlog preview: Accrual § 1983 actions

I have a SCOTUSBlog preview of next Wednesday's arguments in McDonough v. Smith, considering when a § 1983 fabrication-of-evidence claim accrues for statute of limitations purposes. The basic dispute is whether the limitations period starts running on favorable termination of the underlying criminal proceedings.

It is an interesting arrangement, with the United States supporting the petitioner/plaintiff position that the lawsuit (filed within three years of his acquittal on criminal charges that were based on fabricated evidence) was timely, but arguing that the plaintiff's claims should be dismissed on prosecutorial immunity grounds on remand. There are amicus briefs from criminal-defenses lawyers and fed courts scholars supporting the petitioner, urging the Court to maintain a scheme in which a criminal defendant is not forced to pursue § 1983 litigation until the criminal proceedings have resolved.

Posted by Howard Wasserman on April 10, 2019 at 04:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

The Implied Repeal of Abortion Restrictions

Here's a question I'm thinking about. Suppose a state prohibited nearly all abortions prior to Roe v. Wade. After Roe, the state attempted to restrict abortion as much as constitutionally possible (say by banning nearly all third trimester abortions) and enacted a statute doing that. Would that subsequent statute be an implicit repeal of the earlier prohibition or not?

Here's why this is interesting. Suppose Roe were overruled tomorrow. What would state law be on abortion? One view could be that the pre-Roe statute applies unless it was expressly repealed. Another would be that the only the post-Roe restrictions would apply until the state legislated differently. This might matter a lot. A new state ban (or near ban) on abortion would take time to enact. Maybe it would not get enacted at all.  What would state law be in the interim?

Posted by Gerard Magliocca on April 10, 2019 at 12:51 PM | Permalink | Comments (8)

Tuesday, April 09, 2019

Call for Submissions -- Northwestern University Law Review Empirical Legal Scholarship Issue

Posted on behalf of the Northwestern University Law Review:
The Northwestern University Law Review is pleased to announce its second annual issue dedicated to empirical legal scholarship, to be published in Spring 2020. We welcome pieces making use of any and all empirical tools—including qualitative, quantitative, and mixed methods—to illuminate and engage questions of legal interest.

The Northwestern University Law Review accepts empirical articles on an exclusive basis only. The exclusive submission window for the 2020 empirical issue will run from March 15–April 15, 2019. Participating authors must agree to withhold the manuscript from submission to any other publications until receiving a decision from us. All publication decisions will be released no later than July 31, 2019.

Interested authors must submit articles and essays via email to Empirical Articles Editor Kerri Howard at [email protected]northwestern.edu. Please submit the article as a .doc or .docx file with a cover letter or similar email; CV; and, if desired, supporting materials. More information about submission requirements and the empirical selection process is available at http://northwesternlawreview.org/empirical-issue-submissions

Posted by Sarah Lawsky on April 9, 2019 at 03:49 PM | Permalink | Comments (0)

A Special Relationship

My draft paper on Winston Churchill and the Constitution is now up on SSRN. Feedback please.

Posted by Gerard Magliocca on April 9, 2019 at 12:45 PM | Permalink | Comments (0)

JOTWELL: Thomas on Fountain & Willard on plea bargaining with juveniles

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Erika N. Fountain & Jennifer L. Willard, How defense attorneys consult with juvenile clients about plea bargains, 24 Psych. Pub. Pol'y & L. 192 (2017).

Posted by Howard Wasserman on April 9, 2019 at 09:20 AM in Article Spotlight | Permalink | Comments (0)

Monday, April 08, 2019

The Myth of Justice McReynolds and Justice Brandeis

In an otherwise terrific book by Justin Driver and in a recent post by Sandy Levinson over at Balkinization (where I also blog), the false story that Justice McReynolds refused to sit next to Justice Brandeis one year for the Court's official photograph was repeated. The story was debunked in a recent article in the Journal of the Supreme Court Historical Society. It has no factual basis--it was invented decades after the fact.

The story does capture the larger point that McReynolds was an Anti-Semite. That is true. But there are lots of ways to explain that which are not false.  

Posted by Gerard Magliocca on April 8, 2019 at 04:02 PM | Permalink | Comments (1)

Thoughts on the Rothgerber Constitutional Law Conference-National Injunctions

I mentioned that last Friday I had the privilege of attending the 27th Rothgerber Constitutional Law Conference at Colorado Law, on the subject of national injunctions.

I did not take comprehensive notes on all the papers, but here are a few highlights, ideas, and questions that I took away:

• Two of the eleven presenters--Michael Morley (FSU) and I--oppose universal injunctions. And Michael thinks my reliance on judicial departmentalism is monstrous (my word, not his). Ahmed White (Colorado) talked about the use of labor injunctions and the jailing of Eugene V. Debs to warn against reliance on injunctions to achieve progressive policy goals. Everyone else argued that universality is fine, although courts should exercise discretion in issuing them. (Part of my objection is that I have not seen grounds for discretion that are not satisfied in every case).

• Alan Trammell (Arkansas) made a cute rhetorical move, trying to shift the focus from Trump and Obama (which naturally provoke partisan reaction) to the case of Kim Davis and whether, once she disregarded Obergefell, the district court should have been able to order Davis to issue licenses to all couples. I say no (and suggested that Alan could use the pre-Obergefell mess in Alabama as another example). Alan also made a nice historical move, tying these injunctions as another example of procedural innovation, the predecessor to 1960s developments such as Monroe v. Pape, structural-reform injunctions, and 23(b)(2) classes.

• Charlton Copeland (Miami) offered a separation-of-powers perspective, arguing that universal injunctions may be uniquely appropriate against executive overreach to restore a balance among the branches, even if universality would not be appropriate against the same policy enacted by the legislature. In other words, the separation of powers arguments against executive policies (in addition to any substantive constitutional arguments) changes the nature of the remedy.

• Zach Clopton (Cornell) talked about how preclusion (if applicable against the government, as it should be) can provide an additional policy consideration for the court in deciding the scope of the injunction. This triggered a question I have to address in my contribution for the symposium and in another article--Would allowing non-mutual offensive preclusion against the government undermine judicial departmentalism? If the executive has the power to disagree with judicial precedent but not injunctions in a given case, does giving that judgment preclusive effect undermine that executive power.

• Mila Sohoni (San Diego) talked about the history of universal injunctions against state laws, including in some famous First Amendment cases such as Barnette and Hague v. CIO. She showed the language of several of these injunctions, some of which expressly prohibited application to the plaintiff and others, while others were silent as to who was protected. As to the latter group, that presents an interesting question of default rules--if the injunction is silent, should we presume that the injunction is particularized to the plaintiff or presume that it is universal? Sohoni's history shows that these injunctions are not new. The  response is whether it matters--perhaps we have been doing it wrong all along. Mila joins me in using universality as the proper term, which captures the expansive who of the injunction.

• Portia Pedro (BU) started from her experience working for an LGBT organization during the marriage-equality litigation. She argued that prohibiting universality treats government defendants more favorably than other defendants. Or functionally prohibits injunctions, turning everything into nothing more than a declaratory judgment.

It was a great program. And it gave me a lot to think about and a lot to add to some current projects.

Posted by Howard Wasserman on April 8, 2019 at 02:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Your [Office holder]

President Trump likes to refer to himself as "Your President," as in "This is outrageous harassment of Your President by the Democrats." Over the weekend, speaking to a group of Jewish Republicans, he referred to Benjamin Netanyahu as "Your Prime Minister."

Has any previous President used this framing? It sounds new to me. It also has a ring of monarchism or authoritarianism--"Your Majesty," "Your King," "Your Dear Leader."

Posted by Howard Wasserman on April 8, 2019 at 01:25 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

"Honor, Oath, and Office"

I've put up on SSRN a short piece I wrote for my law school's alumni magazine, The Capstone Lawyer. It's a kind of introduction to a larger project--a book project, I hope, although it will have to wait in line behind several other projects--on oaths and the Constitution. The abstract is not much shorter than the piece itself, which is short--probably shorter than many of my blog posts!--and (I hope) readable. (It also has great art and some neat photos. I'm grateful to Monique Fields, who is responsible for the Capstone Lawyer and for making it look so good.) I hope readers enjoy it. Here's the abstract: 

This contribution to the Culverhouse School of Law's Capstone Lawyer magazine is a short introduction to a larger, ongoing project on oaths and the Constitution. That project seeks to examine the relationship between oaths and constitutional interpretation, and to argue for the revival of honor, suitably revised, as an essential virtue in citizenship and office-holding.

The focus here is on the intimate connection between the concepts and institutions that I call the "troika": office, honor, and the oath. Office is best thought of not simply in terms of power, and with the officer viewed merely as any individual who happens to exercise a power-wielding office at a given moment. Instead, the key feature of office is duty, and the officer is defined as much by the limits on his or her power as by its exercise.

Honor is the institution that connects the officer to his or her office. Properly understood, it has both internal and external aspects and involves more than the love of fame. Honor is the desire to be thought well of by those whose opinion ought to count, and the desire to *deserve* to be thought well of by that honor group. This "quality of character," as Sharon Krause puts it, this "ambitious desire to live up to one's code and to be publicly recognized for doing so," is essential if office-holders are to fulfill the duties of their office with virtue and excellence. And it provides the office-holder with a valuable sense of energy and agency. The character of the men and women who occupy offices thus remains an essential element of our political and constitutional order.

In our constitutional system, the device that ties individual honor to the ostensibly "impersonal" office is the oath. The oath is a linchpin that connects the individual to the office and the office-holder to the commitment to act honorably. It is imperfect, and in contemporary society both honor and oath require substantial rethinking and revivification to function properly. But the oath is not unimportant and is no mere empty ritual. Taken together, this troika of institutions--office, honor, and oath--encourage the sound and faithful performance of one's duties in a democratic constitutional republic. Thinking about the troika shifts our focus from power to duty, and from substance and doctrine to character and virtue. It helps us to see that a "government of laws and not of men" is and must be powerfully and ineluctably personal.

Comments on the larger project are emphatically welcome [via email]. I note that the subject of the oath, and of the importance of duty and character in office-holding, has given rise to a growing literature that is well worth exploring.

Posted by Paul Horwitz on April 8, 2019 at 10:00 AM in Paul Horwitz | Permalink | Comments (0)

Entry Level Hiring: The 2019 Report - Second Call for Information

This a reminder of the Entry Level Hiring Report.

If you have information about entry-level hires for this year, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

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

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

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

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

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

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

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on April 8, 2019 at 08:59 AM | Permalink | Comments (0)

Sunday, April 07, 2019

The President's Tax Returns

Thus far, I have not heard a legal argument against the right of the House Ways and Means Committee to examine the President's tax returns. The statute, which was enacted after the Teapot Dome scandal, says that the Committee may examine the tax returns of "any person" as part of an investigation. Is the argument against compliance some sort of constitutional argument? 

Posted by Gerard Magliocca on April 7, 2019 at 07:54 PM | Permalink | Comments (6)

Thursday, April 04, 2019

Social Media Punctuation Reaches the Federal Courts

Today the Sixth Circuit issued an opinion in EMW Women's Surgical Center v. Beshear, which upheld a state statute regulating abortion. Judge Donald issued a dissent, which concluded with "I dissent!"

We used to focus on whether dissents said "I respectfully dissent" as opposed to "I dissent." Now we must consider whether a period or an exclamation point is used. After that, I suppose there will be "I DISSENT." Or "I DISSENT!"  Or "I DISSENT!!!!"

Posted by Gerard Magliocca on April 4, 2019 at 09:34 PM | Permalink | Comments (1)

North Dakota ERA Rescission Fails by One Vote

In contrast to some states that are considering the ratification of the ERA, North Dakota just considered rescinding its ratification from the 1970s. The rescission passed in the State House but failed in the State Senate by one vote! Thus, North Dakota's ratification stands. For now.

I doubt that there will be further news on ERA ratification efforts this year. Maybe in 2020 Virginia, which is electing a new Legislature this Fall, will take up the measure again.

Posted by Gerard Magliocca on April 4, 2019 at 01:42 PM | Permalink | Comments (1)

27th Annual Rothgerber Constitutional Law Conference: National Injunctions

On Friday, I will participate in the 27th Annual Rothgerber Constitutional Law Conference, sponsored by the Byron R. White Center at University of Colorado Law School. Thanks to Suzette Malveaux for putting this great program together and including me in the conversation.

Participants include Zachary Clopton (Cornell), Charlton Copeland (Miami), Davis Hausman (ACLU), Michael Morley (Florida State), Portia Pedro (Boston University), Doug Rendelman (Washington & Lee), Mila Sohoni (San Diego), Alan Trammell (Arkansas), Ahmed White (Colorado). I look forward to the weather in Denver and to seeing how the speakers divide on the core question of the propriety of universal injunctions.

Posted by Howard Wasserman on April 4, 2019 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

A Jot on Jamal Greene's "Foreword: Rights as Trumps?"

At Jotwell, I have this "jot" about Jamal Greene's Rights as Trumps?, the most recent Foreword in the Harvard Law Review Supreme Court issue. As I note in the piece, the Foreword "project" is itself a fascinating one, superbly discussed in this article by Mark Tushnet and Timothy Lynch, which suggests among other things that for various reasons Foreword articles are often disappointing. There are good reasons to think the article needs an update in the present era, discussing whether and how the "project" of those Forewords, and of the Supreme Court issue, might or must change given developments in the technology and timing of scholarship. Regardless, as a confirmed and unrepentant old fogey, who still likes looking at new issues and tables of contents and thinking of journal issues as issues rather than accidental collections that are soon to be disembodied and float around Westlaw, I still look forward to the Foreword, even when it disappoints me.

Greene's article does not disappoint. It makes some valuable points--including one, about the "less momentous" nature of the "paradigmatic conflicts of a modern, pluralistic political order," that runs pleasingly contrary to the usual rhetoric of scholarship and extra-scholarly propaganda by legal academics, who have strong political, professional, and careerist incentives to treat every new dispute as an urgent, high-stakes one and scoff at the existence of serious competing claims on the other side of the position taken. As is usually the case with my jots, I try to remain loyal to Jotwell's mission of telling the reader why I like Greene's article "lots," while also raising questions about it. Enjoy. Or skip the jot and read Greene's article. 

Posted by Paul Horwitz on April 4, 2019 at 08:44 AM in Paul Horwitz | Permalink | Comments (1)

Wednesday, April 03, 2019

Call for authors: Feminist Judgments: Rewritten Property Opinions

Deadline for Applying: Friday, April 26, 2019

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on the rewritten opinions for an edited collection tentatively titled Feminist Judgments: Rewritten Property Opinions.

This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published by Cambridge University Press in 2016. Cambridge University Press has approved a series of Feminist Judgments books. In 2017, Cambridge University Press published the tax volume titled Feminist Judgments: Rewritten Tax Opinions. Other volumes in the pipeline include rewritten trusts and estates opinions and rewritten family law opinions.

Property law volume editors Eloisa C. Rodriguez-Dod and Elena Maria Marty-Nelson seek prospective authors and commentators for fifteen rewritten property opinions covering a range of topics. With the help of an advisory board of distinguished property law scholars, the editors have selected a list of cases that have not appeared in other Feminist Judgment volumes; potential authors are welcome to suggest opinions which do not appear on the list.

Proposals must be either to (1) rewrite a case opinion (subject to a 10,000-word limit) or (2) comment on a rewritten opinion (subject to a 4,000-word limit). Rewritten opinions may be re-imagined majority opinions, concurrences, or dissents. Authors of rewritten opinions will be bound by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the rewritten feminist opinion differs from the original decision, and the impact the rewritten feminist opinion might have made. The volume editors conceive of feminism as a broad movement and welcome proposals that bring into focus intersectional concerns beyond gender, such as race, class, disability, gender identity, age, sexual orientation, national origin, and immigration status.

To apply, please email (1) a paragraph or two describing your area of expertise and your interest in this project; (2) your top two or three preferences from the list of cases below; and (3) whether you prefer to serve as an author of a rewritten opinion or an author of a commentary to a rewritten opinion. Please submit this information via email to the editors, Eloisa C. Rodriguez-Dod and Elena Maria Marty-Nelson, at [email protected] and [email protected] by Friday, April 26, 2019. The Feminist Judgments Project and the Property book editors are committed to including authors from diverse backgrounds. If you feel an aspect of your personal identity is important to your participation, please feel free to include that in your expression of interest. The editors will notify accepted authors and commentators by Monday, May 13, 2019. First drafts of rewritten opinions will be due on Monday, September 16, 2019. First drafts of commentaries will be due on Monday, October 28, 2019.

Tentative List of Cases:  

1.         Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (exclusionary zoning)

2.         Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013) (patents)

3.         Sawada v. Endo, 561 P.2d 1291 (Haw. 1977) (tenancy by the entireties)

4.         Gruen v. Gruen, 496 N.E.2d 869 (N.Y. 1986) (inter vivos gifts)

5.         Coggan v. Coggan, 239 So. 2d 17 (Fla. 1970) (ouster of co-tenant)

6.         Phillips Neighborhood Hous. Tr. v. Brown, 564 N.W.2d 573 (Minn. Ct. App. 1997) (lease termination for illegal activity)

7.         Taylor v. Canterbury, 92 P.3d 961 (Colo. 2004) (secret severance of joint tenancy)

8.         White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992) (publicity rights)

9.         Johnson v. M’Intosh, 21 U.S. 543 (1823) (Native American property rights)

10.       Dolan v. City of Tigard, 512 U.S. 374 (1994) (exactions/eminent domain)

11.       Bartley v. Sweetser, 890 S.W.2d 250 (Ark. 1994) (premises liability)

12.       Tate v. Water Works & Sewer Bd. of City of Oxford, 217 So. 3d 906 (Ala. Civ. App. 2016) (adverse possession and condemnation)

13.       Blake v. Stradford, 725 N.Y.S.2d 189 (Dist. Ct. 2001) (ejectment of domestic partner)

14.       Moore v. Regents of Univ. of California, 793 P.2d 479 (Cal. 1990) (property interest in one’s genetic material)

15.       Pocono Springs Civic Ass’n, Inc. v. MacKenzie, 667 A.2d 233 (Pa. Super. Ct.1995) (abandonment of real property)

Posted by Howard Wasserman on April 3, 2019 at 05:09 PM in Teaching Law | Permalink | Comments (0)

Free speech petards

Last month I wrote about the controversy at UC-Davis, where people unearthed old tweets from an English professor calling for police officers to be killed, prompting introduction of a California House Resolution calling for the professor's firing. Last week, Davis rejected the call in a letter to Republican Assemblyman James Gallagher, citing the First Amendment and President Trump's executive order purporting to require universities receiving federal funds to  promote free enquiry on campus consistent with the First Amendment. Gallagher today wrote a letter to President Trump, insisting that the professor's speech is what suppresses campus speech and asking the President whether: 1) the intent of the order was to protect speech such as this, 2) whether Gallagher's call to fire the prof is consistent with the order's intent to stop intimidation and violence, and 3) whether Davis would lose funding if it fires the professor.

The answers, in order: 1) Of course not; 2) Of course not; 3) Of course not. But the President's intent cannot overcome charges of viewpoint discrimination.

Posted by Howard Wasserman on April 3, 2019 at 05:07 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, April 02, 2019

CrimFest! 2019 at Brooklyn Law -- Registration still open!

As many of you know, Dan Markel did an amazing job creating a community for law professors.  One of the many things that he did to create that community was to start CrimFest!  CrimFest is an informal, annual conference where those of us who study criminal law, criminal procedure, and related criminal justice topics meet to workshop papers.  

Even though Danny is gone, CrimFest continues.  This year’s conference will be held at Brooklyn Law School in New York.  The conference will open with an informal dinner on the evening of Sunday, July 14.  Then we will have two full days of panels on Monday July 15 and Tuesday July 16.  Attendees are responsible for their own travel and hotel expenses. The conference will provide breakfast and lunch, and will subsidize a happy hour on Monday evening.  The registration fee will be $65.00.

If you would like attend, please add your information to this spreadsheet:  https://docs.google.com/spreadsheets/d/1DbYmO7GXCZZF7ABzZx7LcuB7MDUU7QgemvrxDihy-rA/edit?usp=sharing

As you will see, this is an open access document.  So please be very careful when adding your own information not to delete or otherwise alter any information that has been added by others.

Registration will remain open until May 31.  So you need not complete all registration information at this time, including whether you intend to workshop a paper, or the topic of the paper you intend to workshop.  But please be advised that, as in years past, we are limiting presentations to true works in progress.  You are welcome to present as little as a 3-page sketch of a project idea, a fully written draft, or anything in between.  But papers that have already been submitted for publication are not eligible.

Finally, CrimFest is intended to be a very inclusive conference:  It is not limited to those who have tenure or tenure-track positions.  In fact, we usually have a good crowd of fellows and VAPs who are planning to go on the market.  So please feel free to share this email with your colleagues.  Anyone who has the link to the spreadsheet can register!

I look forward to seeing many of you in Brooklyn this summer!

Posted by Carissa Byrne Hessick on April 2, 2019 at 03:22 PM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (1)