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Monday, September 30, 2019

Bleg: Great Recession and the Legal Academy

Can anyone point me to studies or articles on the slowdown in legal academic hiring during and just after the Great Recession?

Posted by Howard Wasserman on September 30, 2019 at 07:24 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Saturday, September 28, 2019

Ex-Wards of the Admiralty

I'm teaching Admiralty--my favorite course--this semester. This gives me an opportunity to address an important development from a Supreme Court decision earlier this year. In The Dutra Group v. Batterton, the Court held that punitive damages are unavailable in an unseaworthiness action. One passage of Justice Alito's opinion for the Court stated:

Batterton points to the maritime doctrine that encourages special solicitude for the welfare of seamen. But that doctrine has its roots in the paternalistic approach taken toward mariners by 19th century courts. [citations omitted] The doctrine has never been a commandment that maritime law must favor seamen whenever possible. Indeed, the doctrine’s apex coincided with many of the harsh common-law limitations on recovery that were not set aside until the passage of the Jones Act. And, while sailors today face hardships not encountered by those who work on land, neither are they as isolated nor as dependent on the master as their predecessors from the age of sail. In light of these changes and of the roles now played by the Judiciary and the political branches in protecting sailors, the special solicitude to sailors has only a small role to play in contemporary maritime law.  It is not sufficient to overcome the weight of authority indicating that punitive damages are unavailable.

This marks a substantial change for maritime law. For the past two centuries, seaman have been, in the words of Justice Joseph Story, "wards of the admiralty." This was, in part, based on paternalistic stereotypes about sailors, as the Court said. There was also, though, a valid recognition that they deserved more help. The diminution of that idea is in keeping with the ongoing "normalization" of maritime law, by which I mean that its special characteristics are being gradually eroded. In some instances this is a good development and more would be better (such as ending the limitation of liability doctrine). Sometimes, though, treating seamen like other workers just means they are now being treated worse.

Posted by Gerard Magliocca on September 28, 2019 at 08:52 PM | Permalink | Comments (8)

Friday, September 27, 2019

Qualified Immunity and Stare Decisis

Recently, a lot of terrific scholarship has attacked qualified immunity as unsound both as a legal and as a policy matter. I applaud this work and largely agree. If the question then is "Should Congress abolish or dramatically curtail qualified immunity?" I would say yes. If the question, though, is "Should the Court overrule its predecents on qualified immunity?" I would say no (or no chance).

Stare decisis, the Court has told us a million times, is at its apex in statutory cases. Qualified immunity, for better or worse, is an interpretation of Acts of Congress. And we are just talking about one precedent or a few--there are almost too many cases to count where the Court has applied qualified immunity since Fitzgerald set forth the modern framework in 1982. I just don't see the Justices revisiting any of this. Granted, they could start using a more favorable (for plaintiffs) definition of "clearly established law" in cases going forward, but that would be more of a marginal change. More than that can (and should) come only from Congress.

Posted by Gerard Magliocca on September 27, 2019 at 02:16 PM | Permalink | Comments (4)

Wednesday, September 25, 2019

A Shout Out

To my former co-blogger Danielle Citron, who today was awarded one of the MacArthur "Genius" Grants. Way to go Danielle!

Posted by Gerard Magliocca on September 25, 2019 at 09:43 AM | Permalink | Comments (1)

I am so confused...(or: how I made a cameo in the Peloton trademark case, as a consumer)

Thanks to Rebecca Tushnet's great coverage, I just realized that I am a confused Peloton rider in this new trademark case. And I happen to be teaching trademarks tomorrow morning. 

So it all started when Hugh Jackman was bragging about his Peloton leaderboard times and I got off my bike and tweeted "“Hugh giving all the rest of us in the #Peloton family goals to aspire to @onepeloton @pelotonmagazine though I bet he doesn’t have near 500 @classpass classes yet!” [update: I am now nearing 700 classes on classpass]. 

And now this tweet is brought in Move Press, LLC v. Peloton Interactive, Inc., No. LA CV18-01686 JAK (RAOx), 2019 WL 4570018 (C.D. Cal. Sept. 5, 2019) to establish that consumers confuse Peloton Magazine as associated with Peloton the indoor online cycling community.

Happy to also serve as an expert, not just a confused consumer - give me a call, if I don't answer I might be on my bike trying to beat Hugh...



Posted by Orly Lobel on September 25, 2019 at 01:12 AM | Permalink | Comments (1)

Monday, September 23, 2019

JOTWELL: Campos on Bartholomew on e-notice in class actions

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Christine P. Bartholomew, E-Notice, 68 Duke L.J. 217 (2018), exploring the use (or non-use) of new technologies for providing notice in class actions.

Posted by Howard Wasserman on September 23, 2019 at 10:50 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, September 22, 2019

Minding the abstention gaps

I am trying to make heads or tales of this Third Circuit decision, which reveals some problems and holes in abstention.

A family court awarded custody of Malhan's children to Myronova, his ex-wife, ordered him to pay child and spousal support, and to give his ex rental income from their jointly owned properties. Malhan eventually received joint custody (and more than half of residential time) and the court ordered Myronova to return some money. But the court postponed a request to reduce child-support obligations until final judgment (which has not issued), although the children spend more time with Malhan and he earns less money than is ex. At one point Malhan stopped paying child support (in erroneous reliance on a comment by the judge), causing the court to garnish his wages. Malhan sued in federal court, challenging (among other things) the disclosure and administrative levy of his bank accounts, the garnishing of his wages (which order was vacated), and the refusal to allow the plaintiff to claim certain offsets and counterclaims in the state proceedings.

This type of case has been identified as the paradigm Rooker-Feldman case: A party claiming constitutional injury by the custody and similar orders of a state family court. And the district court dismissed the action on that ground. But the Third Circuit reversed, holding that the plaintiff was not a state-court loser because there was no "judgment" from the state court, no order that was final as a formal or practical matter over which SCOTUS might have jurisduction under § 1257. The state proceedings are ongoing--motions are pending, discovery has not closed, no trial is scheduled, and the court has declined to give Malhan relief until that final judgment.

There is a circuit split was to whether Rooker-Feldman applies to interlocutory state-court orders. The Third Circuit adopted the textual argument to say no. RF is based on § 1257 giving SCOTUS exclusive jurisdiction to review state-court judgments; a district court thus lacks jurisdiction to review a challenge to a state-court judgment, which should instead be appealed through the state system and then to SCOTUS. On that view, RF does not apply to state-court orders that could not be appealed to SCOTUS, such as non-final orders.

The argument for RF barring challenges to interlocutory orders relies on the policies underlying RF that federal district courts should not interfere with state-court proceedings or be a forum for obtaining review and relief from state-court decisions. That policy is as offended by an attempt to circumvent state appellate procedure on an interlocutory order as on a final order. One could identify a textual component, tying it to § 1331 granting district court "original" jurisdiction, leaving them without power to, in practice, exercise appellate jurisdiction over a state-court order, even an interlocutory order.

The court rejected an alternate argument that the three claims were barred by Younger. None of the three claims fit the third Younger category of involving "certain orders uniquely in furtherance of the state courts' ability to perform their judicial functions." Count 2 challenged the administrative rules for collecting non-final money judgments; Count 5 challenged orders that are more like final monetary judgments and less like orders (such as contempt or appeal bonds) in furtherance of other judicial orders and thus enabling judicial functions. And the garnishment orders in Count 6 are threatened but not pending, thus federal jurisdiction would not interfere with state-court adjudication of those issues. The Younger analysis probably is correct, although the analysis as to Count 2 seems strained and the analysis and the analysis as to Count 6 suggests the challenge is moot, although the court strains to explain why it is not.

But the case produces a large abstention gap. An ordinary state-court interlocutory order in private civil litigation, one that is not akin to a contempt or appeals-bond order (orders that SCOTUS identified as enabling the state court to operate, as opposed to resolving the particular case), can be challenged in a § 1983 action. But Younger and RF together should mean that state courts must be allowed to decide the cases before them, without interference from federal district courts, subject to eventual review through the state system and to SCOTUS under § 1257. This case may allow substantial number of such cases into federal court.

Posted by Howard Wasserman on September 22, 2019 at 07:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Friday, September 20, 2019

Book Review of "The Heart of the Constitution"

Lael Weinberger has posted a draft paper reviewing my most recent book.

I am currently writing my next book (about Bushrod Washington). Blogging will thus be reduced for some time, though as I reach the parts of the book on law that will change.

Posted by Gerard Magliocca on September 20, 2019 at 02:01 PM | Permalink | Comments (0)

Thursday, September 19, 2019

Trump is not getting any Younger

The President filed in the Southern District of New York a complaint and a motion for TRO/Preliminary Injunction, seeking to stop New York D.A. Cyrus Vance from using a state grand jury to obtain the President's tax returns. The motion argues that a sitting president is immune from state prosecution, including grand jury proceedings. The motion does not mention or respond to what many commentators thought of when they saw the lawsuit--Younger abstention, which prohibits a federal court from enjoining ongoing state criminal proceedings, including grand jury.

But Younger is subject to some rare exceptions. The federal court may act (i.e., need not abstain) when the state proceeding is brought in bad faith or for harassing purposes, where the underlying law is flagrantly and patently unconstitutional, and perhaps in other unusual circumstances, such as biased decisionmakers and in some circuits a colorable claim that the state prosecution is barred by double jeopardy. A colorable defense of presidential immunity seems similar to a claim of double jeopardy or bad faith to perhaps fit within that exception--a prosecution with no hope of success or or producing a sustainable verdict, particularly one that implicates substantial federal interests that outweigh the state's interests in law enforcement.

Posted by Howard Wasserman on September 19, 2019 at 10:40 PM | Permalink | Comments (1)

Wednesday, September 18, 2019

Research Fellowships at Stanford Constitutional Law Center

For those seeking an academic career. Information here.

Posted by Administrators on September 18, 2019 at 08:59 PM in Teaching Law | Permalink | Comments (0)

Tuesday, September 17, 2019

On Account of Sex

Next month, the Supreme Court will hear argument in a set if cases that pose the question of what "sex" means in Title VII of the Civil Rights Act of 1964. Does "sex"encompass sexual orientation? Does "sex" encompass a claim of transgender discrimination? And so on.

One thing I'll be watching is whether any of the Justices mention the implications of these cases for the Equal Rights Amendment. At least one of the amicus briefs makes the following point: The Court's interpretation of "sex" in these cases will be highly relevant for the meaning of "sex" in the ERA if one more state ratifies that proposed amendment and puts the constitutional issue back before Congress. If any of them think that ERA ratification is on the table, they may be wary of giving a broad reading to "sex" in Title VII. On the other hand, a narrow reading of "sex" may end up making the ERA's ratification more likely by narrowing its scope.

Posted by Gerard Magliocca on September 17, 2019 at 04:22 PM | Permalink | Comments (4)

Monday, September 16, 2019

FIU Bar Passage

I do not know if I have ever done this before, but I wanted to highlight that FIU Law grads had a 95.7 % pass rate (111/116) for the July 2019 administration of the Florida Bar. A ton of credit to Louis Schulze, assistant dean for academic support, who does an amazing job working with students on how to learn and study, and Raul Ruiz, who runs our bar-prep program.

Posted by Howard Wasserman on September 16, 2019 at 10:46 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, September 15, 2019

Conference at Penn Honoring the Scholarship of Ronald Gilson

This Thursday I am excited and honored to be part of a wonderful conference at Penn, co-organized by Stanford Law, Columbia Law, Wharton & the Journal of Corporate Law, honoring the scholarship of Professor Ronald Gilson. There will be six speakers, each presenting a paper that responds to a line of Gilson's scholarship (my paper is about his influential article on noncompetes and the rise of Silicon Valley's high tech region). Gilson will be delivering the luncheon keynote speech and the papers of the conference will all be published in the Journal of Corporate Law. Here is a glimpse of the agenda:


9:05 – 9:45                  First Paper, Kate Judge, Columbia Law School

Gilson Paper:  The Mechanisms of Market Efficiency, 70 Va. L. Rev. 549 (1984) (with Reinier Kraakman)      

9:45 – 10:30                Second Paper, Mariana Pargendler, Fundação Getulio Vargas (FGV) Law School

Gilson Paper:  Controlling Shareholders and Corporate Governance: Complicating the Comparative Taxonomy, 119 Harv. L. Rev. 1642 (2006) 

10:45 – 11:30              Third Paper, Peter Conti-Brown, The Wharton School

Gilson Paper:  Rethinking the Outside Director: An Agenda for Institutional Investors, 43 Stan. L. Rev. 863 (1990) (with Reinier Kraakman)

11:30 – 12:15              Fourth Paper, Orly Lobel, University of San Diego Law School

Gilson Paper:  The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants Not To Compete, 74 NYU L. Rev. 575 (1999)

12:30 – 1:15                Keynote Address, Ron Gilson

1:30 – 2:15                  Fifth Paper, Matt Jennejohn, BYU Law School

Gilson Paper:  Braiding: The Interaction of Formal and Informal Contracting in Theory, Practice, and Doctrine, 110 Colum. L. Rev. 1377 (2010) (with Chuck Sabel and Bob Scott)

2:15 – 3:00                  Sixth Paper, Colleen Honigsberg, Stanford Law School

Gilson Paper:  Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 Yale L.J. (1984).

Posted by Orly Lobel on September 15, 2019 at 04:37 PM | Permalink | Comments (0)

Thursday, September 12, 2019

Dorf on the irrepressible myth of the great scholar/bad teacher

My experience, as a student and faculty member, lines up with Mike's: I have had, as teachers and colleagues, many excellent scholars who also were also excellent teachers. And I would add another category: Great scholars who are not great teachers, but want to be  and, even well into their careers, think a lot about teaching and how to improve. The archetype of the "prof who can't be bothered with teaching" is not a thing--or no more of a thing than the insurance salesman who can't be bothered. There are always people who are not good at their jobs.

Posted by Howard Wasserman on September 12, 2019 at 04:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (13)

Public Ministers and Original Jurisdiction

Article Three, Section Two of the Constitution provides, in part: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."

Simple question. Has there ever been an original jurisdiction case involving an ambassador, public minister, or consul? I think that the answer is no, but if anyone knows of one I would be much obliged.

Posted by Gerard Magliocca on September 12, 2019 at 03:33 PM | Permalink | Comments (3)

Asylum injunction stayed, everyone confused

Sam Bray and I agree on the impropriety of universal injunctions--I am the NAIA version of Sam as opponent of universality. But I disagree with Sam's suggestion that Thursday's SCOTUS order staying the asylum regulations portends the end of universal/nationwide/whatever injunctions. This case is too confused and too much of a procedural and analytical mess to be that vehicle or even the canary in the coal mine.

First, the unstayed injunction that reached SCOTUS had been narrowed in the court of appeals to be circuit-wide rather than nationwide. So nationwideness should not have been an issue in this case. The court was staying a narrow injunction against a federal regulation.

Second, both lower courts had entirely conflated the issues and analysis, I believe because they continue to use the wrong nomenclature. The result was a mess. The modified-but-unstayed injunction that reached SCOTUS protected the named plaintiffs (immigration-rights advocacy organizations) within the Ninth Circuit, making it over- and under-broad. It was overbroad  because it purported to continue to protect non-plaintiffs; it was under-broad in focusing on geography, thus failing to provide sufficient protection to these plaintiffs by not barring enforcement against them everywhere they might operate and be affected by the challenged regs. In fact, Tuesday's order from the trial court reimposing the "nationwide" injunction (by supplementing the record that the Ninth Circuit found failed to support nationwideness) applied the appropriate analysis: It focused on the extra-circuit activities of the four named plaintiffs, that they operated and were injured outside the Ninth Circuit, and thus needed protection in other states; no mention made of protection for non-parties, which is the real problem. And the Ninth Circuit one day later limited that new injunction to the Ninth Circuit--inappropriately, as there were findings that the organizations work outside the Ninth Circuit and thus needed the protections of the injunction outside the circuit.*

[*] The result of this circuit-only approach is that one plaintiff who operates in multiple states must bring multiple actions to obtain complete relief. What should happen is that one plaintiff should have to obtain one injunction for itself, protecting everywhere. The further litigation should be by other plaintiffs, obligated to obtain their own judgment and remedy.

Instead, this seems an example of what Steve wrote about in his forthcoming Harvard piece (which Sotomayor cites in her dissental): The government increasingly seeking, and gaining, extraordinary relief from the Court in constitutional-injunction cases, rather than allowing litigation to proceed in the lower courts. It reflects the Court's general opposition to injunctions against federal regulations (a concern that seems to have begun on January 20, 2017 and likely will end on January 20, 2021). Scope had nothing to do with it.

Process aside, I am not sure the result--stay of the injunction--is not appropriate. I like to apply the chaos theory to the stay question--would allowing the injunction to take effect create irrevocable chaos if the lower court is reversed. On that theory, for example, stays of injunctions were appropriate in the marriage cases, lest the state have to either rescind marriages or have some same-sex couples married by the fortuity of the time that litigation takes. On the other hand, the stay of the injunction was inappropriate in The Wall case, since the harm is irreparable if government funds are unlawfully spent and an environmentally harmful wall is even partially built. As for this case, while the asylum-regs are enjoined, the government must allow this class of people to seek asylum. But there will be chaos in handling this group of people if the injunction is reversed on appeal because the regs are found to be lawful, yet some asylum-seekers are present when they should not have been and would not have been but for the erroneous injunction. I have to think more about that.

Posted by Howard Wasserman on September 12, 2019 at 07:44 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, September 10, 2019

Interview with Dean Theodore Ruger on Penn Law's Academic Fellowships

I’m excited to announce the latest interview in my series interviewing VAP and fellowship directors.  We're coming to the end of this series, but I hope to have one or two more this fall.  This interview is with Theodore Ruger, the Dean and Bernard G. Segal Professor of Law at the University of Pennsylvania Law School. He spoke to me about the various fellowship programs at Penn Law, including the George Sharswood Fellowship, the Regulation Fellow, the Center for Technology, Innovation and Competition (CTIC) Fellowship, the Quattrone Fellowship, and a new fellowship with the Center for Ethics and the Rule of Law (CERL).  An edited transcript of our conversation is below, and I have invited Ted to respond to any questions in the comments.  Thanks, Ted, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here. For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at https://teach.aals.org/

Q. Thank you for speaking with me about Penn's fellowship programs, I appreciate it.

A. Sure, I'm happy to discuss them. We've really expanded our programs in the past several years. With multiple programs running simultaneously, it forms a great cohort of fellows, but there's not a single director, so as Dean I'm someone who has seen the growth of our fellowships and can speak to all of the different kinds.

Q. That's perfect. Sometimes in schools there are several fellowships, it can be tricky to find somebody who is familiar with all of them, so I appreciate that you were willing to talk to me about them.

Can you start by giving me a brief overview of the different programs at Penn?

A. I’m happy to. The centerpiece of our fellowships, which has been part of our intellectual community for about a dozen years now, is a generalist flagship fellowship called the Sharswood Fellowship. This fellowship that allows future academics to spend two years here researching, writing, presenting their work, and being a part of our faculty. In terms of continuous existence, that’s the most longstanding. Every year, there are as many as four Sharswood Fellows in the building on two-year fellowships, which means we often hire two every year, although sometimes we'll have three in a given year and then hire one the next year.

We've been able to recruit top scholars and place them well through this program, and I think the distinguishing feature is that we want our fellows to focus on both their own work and their collegial contributions to our intellectual and scholarly community, which means that we make a really light teaching ask of them. More to the point, we don't conflate the functions of being an emerging scholar and also doing the incredibly important job of teaching our 1Ls how to write. We've got a fabulous half-dozen professional faculty in our Legal Practice Skills department who are full-time here. They're not under the fellow model, which we think is great for our students’ development of legal practice skills. It also means that the Sharswood Fellowship is attractive for emerging scholars planning to hit the entry market because we don't load onto it that really demanding 1L teaching function.

Q. Do the Sharswoods teach any classes?

A. Yeah, they teach one class a year in the spring, which is typically a research seminar in their area of expertise. We certainly give them the opportunity in their second year spring to teach a larger class if they'd like to in order to develop their teaching experience, but again, we're not bringing them here with any kind of notion that we're going to rely on them to teach core classes. The teaching follows from their scholarly research.

Q. That does set it apart from some of the programs that you referenced earlier. We can talk more about the teaching side of it in a bit, but can you also describe the other fellowships at Penn?

A. Sure. What's grown dramatically and successfully in, say, the last four or five years has been fellows that come to us through various of our leading research centers and are more subject-area specific. These fellows come to us at a similar time in their career and with similar academic aspirations as the Sharswood Fellows. However, the application processes are separate and they are hired by the directors of a few specialized centers.

For instance, there's a successful criminal justice reform center we have called the Quattrone Center for the Fair Administration of Justice, and they have hired two to four fellows every year for the last several years who come specifically to do cross-disciplinary data-driven work on criminal justice reform. It's also a two-year fellowship, which has the goal and an excellent track record of placing people in tenure track law jobs. Just last year we placed somebody in a tenure-track position in the sociology department at Stanford doing criminal justice work, and the year before sent Quattrone Fellows to George Mason’s Scalia Law School and the University of Georgia Law School.

Another center that has had a successful track record with fellows is our Penn Program on Regulation, which is run by Professor Cary Coglianese. As the name would imply, these are administrative law and regulatory scholars who come for one or two years and do both their own research and partner with some of our faculty on research. They've also placed well on the academic job market.

Then the other center which has had strong placement success in recent years has been the Center for Technology, Innovation, and Competition, which brings scholars who are working at the intersection of law and technology. Likewise, it's typically a two-year stint, and then they go on the market.

Q. Looking at the total number of fellows then who are in the building in a given year, is it around 10 to 12?

A. Yeah, that's about right. Some years a bit fewer but in most years it’s about 10 to 12 or even 15 more recently.

This may anticipate one of your questions, but partly because these fellows come to us through slightly different pathways and are maybe working on different specific subject areas, in recent years as we've gotten a bigger cohort, we've implemented some programming for the full group of fellows as a whole, including both a smaller lunch series and workshops that — in addition to the regular faculty workshops that they take part in — help them interact as a cohort as well as learn some specifics from faculty about doing a job talk paper and working in an academic setting.

Q. Great. I definitely want to circle back to that. Let’s start by moving chronologically through the fellowships, starting with the application process, then turning to the fellowship itself, and then the job market.

Starting with the application, do your various fellowship programs run on the same application timeline?

A. The precise timelines are not exactly the same, but the fellowships all begin to review applications in the fall and then operate, in most cases, on a rolling basis through the fall and winter.

In terms of precise dates and consideration, some of the center fellows are going to be on a slightly different time fame than the general fellowship, the Sharswood.

Q. I take it then that there are essentially four or five different sets of decision makers.

A. Correct.

Q. I'm not looking for particular names, but who decides? Is there a committee for each of them? Is it the head of the centers for the center ones?

A. That’s right in terms of the center-based fellowships, it’s the faculty member or members who lead the centers. There is an Academic Careers committee which is the primary decision-maker for the Sharswood Fellowships.

Q. How does that work?

A. The most proceduralized is the general fellowship, the Sharswood, where there's a committee called the Academic Careers Committee, which has two roles. One is supporting our current and former fellows as well as other Penn Law alumni who are going out on the job market. Then the other role is soliciting, managing, winnowing and then deciding among the Sharswood Fellowship candidates. Then that committee's recommended choices are also put to the full faculty for a vote. Another difference with the Sharswood Fellowship compared with our center-specific fellowships is that all of the Sharswoods who come to us receive full faculty discussion and a vote before coming here, which is not the case for the center-specific fellows.

Q. That's interesting. I haven't heard that before in my discussions with other law schools, so that's an interesting distinction. Why do you do it that way?

A. Well, I think the reason we do it that way for the Sharswoods is, for these individuals who come to us with very diverse topical and methodological backgrounds, we want to have the full faculty vested in their success. We want to introduce them to the full faculty and discuss their work in a faculty meeting before we invite them to join us, and we want them as engaged across the building as possible. I think as a de facto matter, several of our successful center fellows have, once they're here, achieved the same internal recognition throughout the building, but by design for our flagship Sharswood Fellowship program, we want to have that ex-ante with the full faculty. We know that the Sharswood fellows are going to succeed more as scholars and as candidates on the job market if they have the support of the full faculty, so we want to bake that into the process.

Q. What does that mean for the interview process? Do they interview with the entire faculty?

A. The interviews are done at the committee level, so we don't go so far as to bring the fellow candidates in for full faculty job talks or interviews. That's something the faculty is willing to delegate to the committee members. But every fellow that comes to us as a Sharswood Fellow has interviewed with the full Academic Careers Committee.

Q. Is that over Skype or in-person?

A. If at all possible, we do in-person interviews. We strongly prefer in-person discussion. I believe there may be some very rare instances where we'll do only Skype if necessary to accommodate a candidate, but we like to spend plenty of time and have an in-person visit from the candidate.

Q. Do they interview with anybody else, say you or the students?

A. The core of the interview process is with the full committee, although again, we will add individual interviews if it fits with the candidates’ schedule just to both get a better sense of their work and give them a better sense of what to expect here at Penn Law.

Q. How does the interview process for the other fellowships differ from that process?

A. The most distinctive difference is in the decision makers themselves. In the case of the center-based fellows, the call for applications, the screening of applications, and then the ultimate interviews and selection are done by the faculty who lead and participate in those individual centers. Having said that, the actual process looks fairly similar. There's a call for applications, there's submission of materials, there would be an interview, in-person if at all possible. The two big differences are the identity of the ultimate decision makers, who are more specialized in the case of the center-based fellows, and then the fact that center fellows are not put forward to the full faculty for a vote.

Q. Let's talk about the criteria that these different groups use and reviewing applications. On the scholarship side, how much scholarship do successful applicants typically have? Do they have a published paper, more than one published paper, only a draft?

A. This is a really important question and one on which I think there are good faith differences of perspective on our internal committees. Frankly, even as Dean, I'm of two minds. What I mean by that is, there's one conception of these fellowships, particularly the Sharswood Fellowship, where the original intent was that they would be an alternative pathway for really talented aspiring academics to consider rather than pursuing a JD-PhD or other post-JD academic work before going on the market. Under this view we might look for really talented people who did well in law school but then have worked at the highest levels of practice in the public sector or the private sector and haven't had as much time to write. So, some of the people who’ve come on Sharswood Fellowships have not written much more than a single paper and could really benefit from a two-year fellowship because they haven't had the time to write academic papers given their top-level work in practice.

Having said that, when we are reviewing a group of incredibly impressive applicants, it is hard not to be swayed by somebody who has already been successful at publishing articles or books. And some of our most successful Sharswoods have already completed doctoral or master’s degrees before coming into the fellowship. Having a proven track record of publication is certainly helpful. What I can say empirically from the scholars we have chosen, is a substantial proportion are scholars who have already written one or two or five published articles before they even apply for the fellowship.

I think that kind of internal tension in our selection process is to be expected and is a healthy one, and will probably always be there, so we do look for outstanding candidates from both pathways, both folks who have been doing such interesting and demanding things in practice that they haven't written much, but also scholars who — maybe due to an advanced degree or doctorate, or other experience in a scholarly setting — are further along in their scholarly career. We don’t have a single mandatory model.

Q. If you had you try to put a percentage on it, do you think most successful candidates follow the path where they have multiple published papers already?

A. We try to look for outstanding candidates on all parts of the spectrum in terms of how much they've already written. I think if you look back at the past 10 Sharswood Fellows, you'd find a substantial proportion who are kind of already quasi-academics even before they apply, but then you'd find also a number who have come out of top levels of practice. We do try to look for really talented future scholars in both cohorts.

Q. For candidates in the first bucket, clearly practice experience is very relevant. For candidates in the second bucket, who may have come out of a Ph.D. program or the likes, how much does practice experience matter for that group and how much practice experience would you typically be looking for?

A. Well, I think in law school hiring generally and in fellow hiring specifically, I would say that practice experience is no longer required in all, or even most cases. We're projecting that someone will be a topflight scholar and teacher, and although practice experience can be extraordinarily useful, if we see evidence of a top scholarly potential and teaching skill, we would take, and have taken, candidates with little or no practice experience. Every other top law school does the same. I think for a candidate coming out of a PHD program, where the bar might be slightly higher for them is that we want to see evidence of potential for further forward movement in their work. Given that this person has already been in a scholarly setting for a number of years, we would pose the sharpened question: what tangible additional benefit would they gain by working with us for another two years, above and beyond just more time to write?

We try to prioritize the candidates who we think would grow in their particular skillset and desire to work across disciplines here at Penn and Penn Law, who would particularly thrive here. That may not apply to every single candidate coming out of a PHD program.

Q. Okay, that makes sense. How about teaching ability? How do the decision makers try to gauge teaching ability in the interview process?

A. I think there, again we have the luxury of the fact that we are not relying on these fellows as teachers. We can take the long view about their teaching and their ability to interact with students, which means that we certainly look for somebody with great ideas, who is able to express themselves clearly and who has the capability to engage with colleagues, whether they be faculty or students. But we're not looking for — nor do we need to look for — a fully formed teacher or somebody who can dive right in there and work with students on day one.

Once the fellows get here, we throw them into the heart of our faculty workshops. They see a lot of ideas in action there, and we also encourage them to sit in on large classes with some of our best teachers and enhance their teaching that way. Then we ease them into teaching with a very small seminar in their first year. We view our role not as hiring fully formed teachers who will go immediately into the core classroom, but really developing their teaching at the same time that we develop their scholarship.

Q. Do you have a preference for candidates in particular practice areas? Obviously, some of the center fellowships are focused on specific areas, but for the Sharswood, is there any preference, for example, for candidates in areas that may be more in demand on the entry level market?

A. No. I think the bedrock principle of the Sharswood Fellowship is it spans all areas of legal academia and law practice. We use a so-called best available athlete model for selecting them, and I would say the only way in which subject matter area comes into our consideration with respect to the Sharswood Fellows is that we do want to make sure that there are multiple standing faculty members here at Penn Law who can work with and mentor the applicant. Because again, the whole goal is to help them develop as a scholar and a teacher. Indeed, I should mention that part of our process with the Sharswood is that during the application process, we think hard about identifying key mentors and talk with these faculty about the candidates and we want to be sure that they are in place to advise the fellows who come here.

We have a broad enough faculty that we can cover almost any area, but we do look to the subject area when it comes to thinking about the development of the fellow, were they to come to Penn Law, and we want to make sure that we have the faculty in place to support that.

Q. Do the programs make any special efforts to hire candidates from diverse backgrounds?

A. Yes. As with all aspects of our hiring, we want to look for multiple dimensions of diversity at every stage of the process. That involves our initial outreach, that involves our screening of applications, that involves our interviews, that involves our efforts to match people with specific mentors when they come here. In some cases, it even leads us to actually add additional fellows. In the past decade more than half of our fellows have been women and about 40% have been people of color. We’re proud of the role we have played in helping launch these extremely talented individuals into the legal academy. We also benefit from getting to know these scholars and their work very well, and that helps in building the strength and diversity of our permanent faculty. Two former Sharswood Fellows – Tess Wilkinson-Ryan and Jean Galbraith – are currently on our tenured faculty, and a third, Karen Tani (now at Berkeley), will join us next year.

We also look for diversity in terms of methodological and experiential background. Our newest “graduate” of the Sharswood program, Mark Nevitt, was a Navy jet pilot and then high-level military attorney in the Pentagon before coming to Penn – he will soon join the permanent faculty of the U.S. Naval Academy teaching law and ethics and we anticipate his continued involvement here exposing his students, and ours, to the unique perspective of each other’s institution. Other fellows have come to us with doctorates but without JDs, and after two years immersed in the law school environment here have been able to land jobs on law school faculties.

Q. Do you happen to know how many applications are typically received for these programs?

A. On the center fellows, it’s a couple dozen. For the Sharswood Fellowship, it’s about a hundred.

Q. When I started talking about this interview series on prawfsblawg, I had a number of people reach out to me and essentially say, “Please ask the people who oversee these fellowships, what candidates should do if they don't have the typical markers of law professors?” Let's say they didn't go to a top 10 law school, they didn't do an elite clerkship, what advice would you have for those candidates?

A. One thing that we look at really closely for the fellow applications is the statement of scholarly agenda or trajectory. I think what's most important for any candidate, whether they come from a traditional law school background or less traditional. Every time we hired a fellow, we're making a prediction and even a bet on the future, so we really read carefully what each fellow says about his or her vision of their future work not just for the two years they would be at Penn Law, but for the next five or 10 years. I think that’s one way that candidates have impressed us no matter what their past track record, really talking about a clear vision and an impressive and even ambitious vision for what they want to accomplish moving ahead.

Another advantage we have is that, if I think about the dozens of people who have done fellowships here over the past five years, they do have different backgrounds in terms of where they went to law school. Some of them didn't have law degrees, some of them came to us with PhDs in other fields. Because there are multiple decision makers, it probably helps us get more diversity in terms of educational background because it could be that somebody who has a particular interest and expertise in one of our more focused fields and centers might come here and wow everybody in the building, even though their initial background might not have put them at the top of the overall Sharswood committee for instance.

Q. That's helpful. Let's turn away from the application process and move over to the fellowship itself. I'm going to ask a couple of nuts and bolts questions before we turn to the intellectual life part of the fellowship. You mentioned that the fellowship typically lasts two years, are they ever renewable for a third year or longer?

A. The standard model is two years and we have sometimes extended if the fellow himself or herself is able to come up with some additional funding. We can sometimes extend, but we typically only budget for funding for two years.

Q. Are you comfortable sharing how much the fellows are paid for a year?

A. Each fellowship is different, but they are competitive with comparable fellowships at other top law schools.

Q. Do the fellows receive health benefits?

A. Yes.

Q. How about access to university or subsidized housing?

A. We are fortunate in Philadelphia, for both fellows and faculty, to have a range of great neighborhoods that are relatively affordable for a coastal city our size, so we typically do not give a housing stipend. Also, so long as the fellows are spending enough time here to connect with colleagues, its possible for them to make the longer but doable commute from New York City, New Jersey, or perhaps even the DC area. This is not ideal given the travel time, but several fellows have successfully done it.

Q. Do the fellows receive any travel funding or other professional development funding?

A. We support the fellows in traveling to relevant conferences and other venues for their professional development.

Q. Can they hire research assistants?

A. Yes, we will support, up to a reasonable amount, the fellows hiring research assistants.

Q. Do the fellows have to live in Philadelphia? Obviously, I assume most of them do, but if somebody wanted to commute from New York or Chicago, could they do that?

A. Yes to the commuting point. We have no fixed residency requirement. We do want the fellow to be engaged enough in the intellectual community both to support their development as well as to contribute to our overall academic discourse, but within that rule of reason, there is no mandate about where they live. I do think commuting by train an hour or two is workable and fellows have done that, but I’m not sure that a plane commute would work.

Q. Let's turn to making the most of the fellowship years themselves. You mentioned that the school typically has between 10 and 15 fellows at a given time. Tell me about the workshop series that they have just for the fellows, the one that you mentioned earlier?

A. One of the major parts of our fellowship experience for all our fellows is the ability, and even our expectation, that they participate as full faculty colleagues in our weekly general faculty workshop series as well as a host of other specialty faculty workshops that we run every week. Among top law schools we’re relatively mid-sized, with a standing faculty of about 50, which means that our workshops are likewise medium sized, so our fellows feel that they're very much a part of that intellectual life. I think that's something that we do well and that our fellows have benefited from.

What we started to do a couple of years ago though, in addition to that, was to run a series several times a semester, supported by the law school, where the fellows got together themselves in a smaller setting across all of their different types of fellowships and took turns presenting their own work. We then folded in certain kinds of faculty advising for that process so that there are also opportunities for fellows to workshop papers either just with other fellows or with a select group of faculty, and then also listen to faculty present their own work. There are multiple tracks going on any given week or month in terms of the chance to share ideas and comment on each other's ideas. To summarize, our core vision is that the fellows are diving right into the full faculty discourse, but we also wanted to provide a space for them to trade ideas just among themselves as beginning scholars.

Q. Are the fellows matched with an assigned mentor or guided towards faculty in their area in any formal way?

A. Yes. Every fellow we bring in, we bring in with one or more faculty who are assigned to them as their primary mentors. Having said that, of course we hope and in most cases see that through their interactions with the faculty, fellows more informally develop a wide network of deep mentoring. We want to encourage both of those processes.

Q. Are they given assistance in making connections outside of Penn Law with faculty in their area at other law schools?

A. Yes. Another thing that starts almost from day one, but then picks up in earnest by the spring of their first year, is specifically targeted advice and support for going on the national job market. Part of that is talking with them and in some cases connecting them with or exposing them to the individuals who would be their recommenders and supporters at other schools. From day one, we're thinking about what that AALS form will look like.

We're looking at every aspect of the form and helping to support the fellow in making sure that they've got the right networks of support around the country.

Q. Do they have people reading their papers inside Penn and helping them with specific ideas saying, "Hey, part three needs to be developed," that sort of thing?

A. Yes, that is part of the substantial active mentorship we do. And then further on in the process, that role is also played by the Academic Careers Committee, the same committee that the year prior might have selected the fellow. We also run workshops and mock job talks and things like that in looking ahead toward the job talk paper presentation.

Q. Obviously, some of your fellows are coming in with PhDs. Do you have any special advice for those candidates in terms of making a transition over to legal scholarship or back to legal scholarship, and/or taking advantage of their interdisciplinary training?

A. First of all, we're in a wonderfully rich time in legal academia where legal scholarship is connected to other fields as never before. That certainly is true here at Penn where much of our recent hiring and over half of our current faculty holds advanced degrees in addition to their JD. For candidates with a PHD who are contemplating going on the market, I think an important feature to remember is that they're going to be more attractive to many more schools if, in addition to their methodologically sophisticated and focused scholarship, they are at the same time able to teach and speak about a range of core legal subjects. Sometimes coming straight of out of the doctoral program, that conception of breadth and a focus on core legal topics can be de-emphasized.

What we've seen our fellows do really effectively, and what I would suggest any fellow anywhere ought to do if she comes out of a PHD program, is to spend time during the law school fellowship listening to workshops and hearing colleagues talk about other areas of law, to comment on papers outside of her field, to perhaps even sit in on large introductory classes of the sort that she might teach as a first year law professor. None of that will diminish the sophistication of the core research, but it will make the candidate that much more attractive on the market as a teacher as well as a scholar.

Q. Let's turn it back over to the teaching side, we talked about the teaching responsibilities of the Sharswood Fellows, do the other fellows have teaching responsibilities and if so, how many courses do they teach?

A. I would say the baseline presumption for the center-based fellows is that they have no teaching responsibilities. That’s another reason why we don't feel it necessary to run them through full faculty approval, because it's presumed that they won't be teaching a class.

That said, we do encourage them to do shorter modules or guest lecturing or take advantage of other opportunities to present their work to students and faculty orally. We want to help them develop that skill, but we don't presume that they're going to teach a class as part of their fellowship.

Q. Do they have other administrative duties related to the centers?

A. Many of them do support the overall work of the centers in addition to doing their own research. Often this can entail presenting at conferences the center runs, and conducting research and coauthoring papers with the faculty who lead the center. There've been some really successful examples of this, and it’s a win for everybody involved because it allows all of the scholars on the paper to amplify their reach and combine their talents. A good example of that was the paper our Academic Director of the Quattrone Center, Paul Heaton, co-wrote with two then-fellows, Sandra Mayson and Megan Stevenson two year ago. They co-authored the definitive empirical article on misdemeanor bail reform, which was published in 2017 in the Stanford Law Review and has since been cited widely by courts and other journals.

Both of those fellows are now in tenure track law jobs: Mayson is at the University of Georgia Law School and Stevenson is at George Mason's Scalia Law School. The paper they wrote with Professor Heaton is a good example of the intellectual collaboration that we love to see between our fellows and the current faculty.

Q. For the fellows who are teaching, do they receive any feedback or mentoring related to teaching?

A. The short answer is yes. The longer answer is that it's much more regularized and substantial for the Sharswood Fellows because they are teaching their own class and that's a standard part of their program and mentorship. For the center fellows, many of whom have developed into excellent teachers, feedback and mentoring are somewhat more individualized based on their preferences and the structure of their relationship with the faculty running the centers.

Q. We've been talking about a lot of the details of these fellowships, let's step back for a moment. If you were talking to a candidate who perhaps had lots of options on the fellowship market, how would you sell them on Penn’s fellowships? What do you think makes Penn’s fellowships specifically stand out?

A. I think from the fellow's perspective, what makes the Penn Law fellowships stand out is a unique opportunity to focus on your own research and be supported and engaged with a collegial cross-disciplinary faculty that's situated within a research university that has many connections with the law school. Fellows are able to do all this with minimal teaching obligations, which underscores the fact that we think the role of fellowships is really to improve the research and teaching ability of the fellow. At Penn, we don't hire fellows to serve two purposes — we believe that our intellectual community is going to thrive if the fellow thrives in his or her own research, so that's what we want to support.

Q. Do you have any advice for fellows when it comes to making the most of a VAP or fellowship?

A. Sure. I think first and foremost, fellows should realize from the start that those two years are going to go really fast, particularly if the plan is to go on the market in the fall of the second year. That means they should jump in with both feet and take full advantage of the intellectual atmosphere, listen to as many new ideas as possible, make as many new scholarly connections as possible and also keep the momentum of their own work as a fellow going. It can be challenging to do all of those things at once, but it's also a really engaging and exciting atmosphere to do it.

Q. Let's talk about the job market briefly, you mentioned that the fellows have an opportunity to do a mock job talk in front of their faculty. How about a screening interview, do they have any opportunity to do a mock screening interview?

A. Yes. Through our Academic Careers Committee as well as more informal structures, we want to make sure that the candidates are as prepared as possible for the job market. Just to start, it entails lots of feedback on their written job talk paper, lots of feedback even on the nitty-gritty of their AALS form and their CV, but also the more performative aspects so lots of mock interviews and mock job talks. I think we want to be there to backstop all of our fellows to do that. There are some fellows who ask for more help than others, but we make that part of the process for all of them.

Q. Do you happen to know off the top of your head what percentage of Penn Fellows over say the last 10 years have landed in tenure track positions at law school?

A. I know that for Sharswood Fellows the placement rate into tenure-track law jobs is over 90% on both a five- and ten-year time period. The center-based fellows have also placed really well, most of them to law schools but also a significant fraction into arts and sciences departments like political science and sociology.

Q. I would love, if you don't mind, to take the last few minutes of our conversation and focus on some of the broader policy questions around VAPs and fellowships. I don't know if you saw the data, but last year 96% of the candidates who landed entry level law teaching jobs had either a Ph.D. and/or had done a VAP or a fellowship. What do you think are the benefits of this trend and what do you think are the costs?

A. There has been a clear trend over the past 10 or 20 years in requiring more evidence of scholarly achievement before making an entry-level tenure track hire than might have existed two decades or certainly three decades ago. That may have been driven in part by the appreciation of and proliferation of JD-PhDs. Even for those without a Ph.D., there's no question that the bar to entry is higher in terms of demonstrable published work.

Clearly, in that area, one purpose fellowships or VAPs serve is to give the really talented future scholar who may have been in a practice setting and unable to write as though they were in a doctoral program, time and space to develop and publish their ideas.

I do think it's interesting and perhaps counterintuitive that a substantial number of fellowships at top law schools have nonetheless gone to people who have JD-PhDs before they even entered the fellowship. As I mentioned earlier in the interview, in our own selection for the Sharswoods, we struggle with that tension because we do believe that one purpose of the fellowships is to provide a chance to do scholarship for those who have been in a practice setting. I think that the data on how prevalent VAPs or fellowships are for those who enter the law teaching market does underscore just how incredibly competitive that market is, how there are fewer positions perhaps than there were a decade ago, and how in that world law schools are demanding ever more evidence of not just scholarly potential, but demonstrated productivity before we make that initial hire.

Perhaps it becomes a predictable circumstance that those who have had more time to write are going to do better in this competitive market. From a student's perspective, leaving a JD program, even at the very top of his or her class, I can imagine how this seems to be a daunting phenomenon in that it extends the pathway into academia by at least a couple of years. I do think that's the new reality we're in across the country in terms of legal hiring.

Q. There has been a criticism that VAPs and fellows may get too much help on their papers and that therefore it's hard for hiring committees to tell how much of the work and the ideas come from the VAPs or fellows themselves and how much comes from, say, Penn Law faculty. Do you have a thought on that?

A. I think there's no question that their papers are read with care. I know that even the most senior Penn faculty, when they write papers, have them read and critiqued and commented on by their colleagues, so the dynamic of rigorous review doesn't stop with the tenure track job here or at most other good law schools. I would certainly hope and know that here, colleagues are reading their own papers as carefully as they read the fellows’.

I guess you'd say it's an argument that proves too much, because we would hope that faculty papers are workshopped and critiqued and modified through that collaborative process almost as heavily as fellows’ papers.

Q. Last question, given that life is zero sum in so many ways, time spent in a fellowship is obviously time that's not spent in practice. What do you think about that trade off, especially given that law schools are in the business of educating lawyers?

A. Given the trend we've been discussing of the increased scholarly productivity that is required even to enter the entry-level job market, I think there is a zero sum trade off where we're seeing relatively less practice experience and relatively more great candidates who've never practiced law on either the public or private side. I do think that is a cause for concern, and ought to be a cause for concern both at every law school and in the legal academy at large, in that we ought to draw great teachers and scholars from multiple different backgrounds. We know from specific hires we've made that some of the best scholars and teachers we have are those who started in a topflight practice background and then made the shift to extend the insights from their practice career into topflight, methodologically rigorous scholarship.

There's no question the phenomenon of the academization of entry level law hiring is real. It has real benefits, but there's a point at which we ought to support candidates who come out of the highest level of practice who want to enter the profession.

Q. Anything else that you want to add, either about Penn Fellowships or about the state of law, faculty hiring, or generally?

A. Well, that's a good question. I can't think of anything else. This has been a really great wide-ranging interview; you've asked a ton of great questions. I can't think of anything else that I would add now. Thank you for the opportunity to talk with you.

Q. Thanks so much, Ted.

A. Thank you, Jessica.

Posted by Jessica Erickson on September 10, 2019 at 09:36 PM in Getting a Job on the Law Teaching Market, VAPS & Fellowships | Permalink | Comments (0)

Root, root, root for the new citizens

Thoughts about nationalization ceremonies being held at baseball games? Too informal and non-serious? Does the "frivolity of hotdogs, peanuts and Cracker Jack" detract from the solemnity of the citizenship ceremony? Or is it a subtle recognition that baseball was, at least a century ago, the vehicle through which immigrants and new citizens became American (unfortunately, neither baseball nor welcoming new people to the American policy are as popular as they once were). And what if some jerks at the game decided to jeer or hold "go back where you came from" signs?

Posted by Howard Wasserman on September 10, 2019 at 02:36 PM in Howard Wasserman | Permalink | Comments (4)

I am not alone


I would add that, based on Ferguson's description of the examples Gladwell uses in the book, he is again trying to squeeze widely disparate examples into a single category. The issue with Chamberlain/Hitler, Madoff, Sandusky, and Cuban spies is that they successfully lied to people about their actions or intentions. The problem with Bland was--at best--a racially charged, power-imbalanced confrontation between a police officer and a person of color--the kind that happens too frequently.

Posted by Howard Wasserman on September 10, 2019 at 10:06 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Monday, September 09, 2019

Nicole Garnett JOT on "The War Against Chinese Restaurants"

I'm posting/linking to a short JOT (Download Garnett JOT 2019)written by Prof. Nicole Stelle Garnett on Gabriel Chin's and John Ormonde's 2018 article, “The War Against Chinese Restaurants."  (The piece turned out not to be run-able in JOTWELL because, the author and editors realized after the piece was completed, the article had already been JOT-ed.  But, that's no reason not to post or read it here!)

Petty Tyrants and their Property-Law Arsenal:  A Cautionary Tale

 Nicole Stelle Garnett*

Gabriel J. Chin & John Ormonde, “The War Against Chinese Restaurants,”

67 Duke Law Review 681 (2018)

For my friend and colleague, John Copeland Nagle (1960-2019), with whom I shared many Chinese meals, and for Jean Chen, the best chef in South Bend, Indiana, who cooked most of them.

            Today, according to the Chinese American Restaurant Association, there are over 45,000 Chinese restaurants in the United States – more than the number of McDonald’s, KFCs, Pizza Huts, Taco Bells, and Wendy’s combined.[1]  That statistic surprised me, but not as much as the revelation in Gabriel Chin & John Ormonde’s fascinating article, “The War Against Chinese Restaurants,” that Chinese restaurants have flourished in the U.S. for the past century and a half.  Indeed, in the late-nineteenth and early-twentieth centuries, Chinese restaurants were so successful that that they were considered a cultural menace and became the target of a xenophobic “war” declared by early labor unions and their political allies who employed a variety of legal tools, including the tools of property regulation, to prevent them from opening (or force them to close).[2]


* John P. Murphy Foundation Professor of Law, Notre Dame Law School.                           

[1] Emelyn Rude, A Very Brief History of Chinese Food in America, Time Magazine, Feb. 8, 2016, available at http://time.com/4211871/chinese-food-history/.

[2] In 1920, AFL President Samuel Gompers (a leader of the Chinese exclusion movement), wrote a book entitled Meat v. Rice: American Manhood against Asiatic Coolieism, Which Shall Survive?

Chin and Ormonde detail the reasons for the late-nineteenth-century growth in Chinese restaurants, including discriminatory labor practices that dramatically limited employment opportunities for Chinese immigrants and the fact that Americans, apparently, have always liked Chinese food (or at least an Americanized version of it).[1]  They also explain the economic and political motivations for opposing Chinese restaurants, including concerns about the victimization of white women by Chinese men, the risk of miscegenation,[2] and competition between Chinese restaurants (and their inexpensive labor force) and American restaurants (and their unionized labor force).[3]  The bulk of their fascinating article, however, details the various tools employed to fight the “war” against Chinese restaurants, including labor union boycotts,[4] state laws prohibiting white women from working in and/or patronizing them,[5] citizenship-based employment- and business-licensing requirements,[6] and—importantly for present purposes—the discriminatory use of the tools of property regulation.

            For example, in 1911, lawmakers in Chicago sought to enact proto-zoning legislation that would have excluded Chinese restaurants from Wabash Avenue in the city’s central business district.[7]  Despite being advised that such a law was probably unconstitutional under Yick Wo v. Hopkins,[8] the city council voted to order city commissioners to “refuse the issuance of permits for contraction or remodeling of any building ... by any Chinaman” in the area.[9]  Chicago was not anomalous.  Cities across the nation employed the discriminatory enforcement of facially neutral laws to impose de facto zoning that either excluded Chinese restaurants altogether or limited their operations to “Chinatowns.”[10]  And, as I have previously documented in other contexts, police employed the “order maintenance” tools of law enforcement to limit their operation to restricted “zones” (or to close them for minor—and sometimes fabricated—legal infractions.[11]  Finally, local governments sought to control or close Chinese restaurants by regulating the interior design of restaurants.  Because early-twentieth-century Chinese restaurants typically had small compartments, or booths with curtains, one legal tactic was to prohibit booths in restaurants.  Dozens of municipalities, in fact, banned private booths in restaurants.  The stated justification for these bans was the prevention of solicitation, but the unstated motive—closing Chinese restaurants—was hardly a secret.  Indeed, in a report endorsing booth bans, the U.S. Public Health Service specifically cited the problem of “chop suey joints” with private booths.[12]  Ultimately, restrictive immigration regulations—specifically the Chinese exclusion law—led opponents to declare victory,[13] but the persistent popularity of Chinese restaurants suggests that they may have won the battle and lost the war.

            Chin and Ormonde conclude by drawing connections between the war against Chinese restaurants and contemporary immigration battles.  There are undoubtedly connections to be drawn, but their piece also illustrates a dark underbelly of property regulation.  It is well-understood that land use regulations can be, and are, used to exclude unwanted land uses and users.   Academics and policy makers alike have debated for decades how to curb the exclusionary effects of zoning law, for example.  But both groups tend to discount, overlook (or in some cases obfuscate) the fact that the nuts-and-bolts tools of property regulations (such as permitting and licensing requirements, design review, and off-street-parking requirements) can be used to achieve the same exclusionary effects in far-less transparent ways.[14]  Chin and Ormonde’s article reminds us that, in the hands of petty tyrants, the tools of property regulation are dangerous weapons—ones that perhaps property law scholars should attend too more closely.


[1] Chin & Ormonde, 687-88. 

[2] Id. at 701-705.

[3] Id. at 689-90.

[4] Id.at 691-98.

[5] Id. at 707-16.

[6] Id. at 716-719.

[7] Id. at 719.

[8] 118 U.S. 356 (1886).

[9] Id. 720.

[10] Id. at 721-22.

[11] Id. at 723-24.  Nicole Stelle Garnett, “Relocating Disorder,” 91 Virginia Law Review 1075 (2005).

[12] Chin & Ormonde, 727-30.

[13] Id. at 727-34.

[14] See, e.g., Margaret Brinig& Nicole Garnett, ”A Room of One’s Own?  Accessory-Dwelling-Unit Reforms and Local Parochialism,” 45 Urban Lawyer 519 (2013) (finding that local governments in California used these restrictions to undermine a state-law affordable-housing mandate).


Posted by Rick Garnett on September 9, 2019 at 10:54 AM in Rick Garnett | Permalink | Comments (2)

Friday, September 06, 2019

Penn State Law Review Symposium

The Penn State Law Review is now accepting articles for its annual symposium, which will be hosted in the Spring of 2020. This year, the topic of the Penn State Law Review Symposium will focus on the legal implications of upcoming technological advances, for example, artificial intelligence, autonomous vehicles, and big data.

The symposium is intended to increase the breadth of research on such novel topics; stimulate discussion amongst attorneys, students, and academics; and enhance the overall understanding of the legal effects of such rapidly developing technological advancements. 


To facilitate the application process as easily as possible, the Law Review requests that all applicants use the attached formhere: https://forms.gle/Lt95Z9zamMLKDAiz7. Please submit all application forms and inquiries no later than October 3, 2019 at 5:00 pm (EST) to Gaela Normile, the Law Review’s Executive Articles Editor, at [email protected]. 


Applicants should expect to write and present his or her article at the symposium, which will be either late March or early April. All travel expenses will be reimbursed by the Law Review. In addition, applicants should expect that the Law Review may request further information. The Law Review will notify applicants whether they remain under consideration by October 15, 2019. Thank you.

Posted by Howard Wasserman on September 6, 2019 at 11:13 AM in Teaching Law | Permalink | Comments (0)

Thursday, September 05, 2019

"We the People" on universal injunctions

The new episode of the National Constitution Center's "We the People" podcast featured Amanda Frost and I discussing and debating universal injunctions. It was a great conversation.

Posted by Howard Wasserman on September 5, 2019 at 11:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Under color?

An interesting under color question. The officers were in disguise (and thus out of uniform) and presumably off-duty. But their personal vendetta arose from their professional conduct as police officers about which the citizen-victim had complained. Could they have done this but-for their official position? Being police officers did not enable the conduct. But being police officers is the only reason they had to vandalize this guy's property.

Posted by Howard Wasserman on September 5, 2019 at 11:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, September 04, 2019

JOTWELL: Levy on Fisher and Larsen on virtual briefing

The new Courts Law essay comes from Marin Levy (Duke), reviewing Jeffrey L Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court (Cornell L. Rev., forthcoming), exploring how online speech and writing affects SCOTUS decisionmaking.

Posted by Howard Wasserman on September 4, 2019 at 11:36 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Trade Secrets, FOIA, Research & Platforms

All of the above meet in today's hot story from Bloomberg on how Uber is claiming that the information that cities hold on names of Uber drivers is proprietary confidential information. It all started with an economist Peter Norlander, from Loyola Chicago business school who requested the names of Uber and Lyft license holders from the City of Chicago. The question he wants to ask in his study is a question that is very relevant to the hottest employment and labor law policy debates of the moment: how much overlap exists between the drivers of these two competitors. The reason this question is relevant to the policy debate on employee classification -- see my previous post on this here - is that an argument made in favor of independent contractor status [rather employee classification] of workers on these apps is that they have the freedom to work for multiple platforms simultaneously. Under default employment laws, this parallel work would be in tension with the common law employee duty of loyalty which assumes exclusive work with one company and not competitors [not to be confused with the debates on noncompetes which are about post-employment competition, not during employment].

So the the city told Norlander he can't have the data because making the names public would make it easier for competitors to poach drivers. Seriously? Labor market competition is something we want to protect actually.

While FOIA does have exemptions for trade secrets, names of workers - whether they are employees or ICs should not be a trade secret. There may be privacy concerns from the workers' perspective though I don't think this applies here, but open to think about that. But Uber shouldn't get to claim secrecy because it wants to prevent poaching. I am quoted on this toward the end of the article.

Posted by Orly Lobel on September 4, 2019 at 12:30 AM | Permalink | Comments (7)