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Thursday, October 31, 2019

Faculty Fellow, The Center for Innovation Policy at Duke Law

From the Center for Innovation Policy (CIP) at Duke Law:

The Center for Innovation Policy (CIP) at Duke Law seeks a Faculty Fellow for the 2020-2021 academic year. The Center brings together technology and business leaders, government officials, legal professionals, and academic experts to promote welfare-enhancing innovation by identifying improvements in federal law and policy focused on intellectual property and technology regulation. It has partnerships with Duke University’s Innovation & Entrepreneurship Initiative, the Center for Entrepreneurship and Innovation at Duke’s Fuqua School of Business, and the Center on Law and Technology at Duke Law. The Faculty Fellow’s duties will include working with Center co-Director Professor Arti Rai on a number of different grant-funded projects and articles involving 1) administrative lever for improving patent quality and 2) the intersection of patents and trade secrecy, particularly in the area of machine learning. The Faculty Fellow will also be able to spend considerable time on independent academic work.

The position will include invitations to all faculty workshops and support for scholarship. The Fellow will also have the option of co-teaching a class with Professor Rai. The starting date is the fall of 2020. The salary for the position will be commensurate with experience. The Faculty Fellow will also receive Duke University benefits. Initial appointment is for one year, renewable upon mutual agreement by the Faculty Fellow and the Center. Candidates should have either a J.D. or a graduate degree in a STEM discipline or quantitative social science.

Duke is an Affirmative Action / Equal Opportunity Employer committed to providing employment opportunity without regard to an individual’s age, color, disability, gender, gender expression, gender identity, genetic information, national origin, race, religion, sex, sexual orientation, or veteran status.

Apply through https://academicjobsonline.org/ajo/jobs/15290. For questions or more information, contact Balfour Smith ([email protected]).

Posted by Sarah Lawsky on October 31, 2019 at 08:17 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Leavenworth, Ep. 2: Casualties, part 1.

The following is by Eric Carpenter (FIU), who is live-blogging the show

We get to the actual shooting in this episode. I think the facts in the case, as I have learned them, convincingly show that Lorance is guilty of specific intent murder. I was wondering how the director was going to portray the facts, and it appears the director thinks so, too. Again, this is basically a self-defense case. In this post, I’ll go over a few of those facts and discuss an issue with the investigation that came up in the show. In the next post, I’ll give a quick discussion on how military law deals with the problem of when a superior gives an illegal order to a subordinate.

The director left out a couple of facts and didn’t emphasize the significance of another event. To start, right when Lorance took over his platoon, he threatened a villager and his child. That farmer came up to the observation post and, understandably, asked Lorance if he would move a role of barbed wire that was making it difficult to work his field. Lorance’s response was to threaten the kill the man and his family.

The next day, Lorance ordered his men to shoot harassing fire at the village (think of a scene from a Western movie where an outlaw shoots within feet of someone to make that person dance). That was clearly illegal and beyond the bounds of the Rules of Engagement (ROE). Lorance did this to get the villagers to show up to a meeting later in the week where he would apparently start building a good relationship with them. Some villagers came up to the observation post the next day to complain about the harassing fire and then Lorance threated to kill them, too. The day after that was when the patrol killed the two villagers. All of that in three days.

The director does a pretty good job describing the actual shooting, and the facts show that the unit was not facing a hostile act or hostile intent from the men on the motorcycle. As the motorcycle was approaching at a moderate pace on a washed-out road, Lorance had a soldier shoot at it. The soldier missed (maybe intentionally). The motorcycle kept going down the road, and afterwards Lorance said that because it kept going, it showed a hostile intent. The problem with that is that after those rounds were fired, the villagers stopped, dismounted, and went over to talk to members of the Afghan National Army who were part of the patrol. They then went to wait by their motorcycle. That is when Lorance ordered the shooting.

Those Afghan soldiers knew that the villagers did not pose a threat. So did the members of the American platoon. A fact I did not know about before I watched this episode is that another sergeant in the platoon, the one responsible for the gun truck, had told his soldiers earlier not to fire unless he told them to because he was concerned about some things that Lorance had said. In the moments leading to the shooting, he and Lorance were arguing on the radio, with Lorance telling the soldiers in the gun truck to fire and the sergeant telling those soldiers not to. The soldiers in the gun truck followed Lorance’s order and opened up with a medium-weight machine gun, killing two of the villagers.

Add to that a bunch of evidence of consciousness of guilt and the case seems pretty tight. Lorance told a soldier who was specially trained on gathering intelligence from dead combatants not to do the assessment and instead had two untrained soldiers do it. When they did not find any evidence that the villagers were Taliban, Lorance ordered some soldiers to report to headquarters that the bodies were dragged away before they could be searched. Those soldiers refused that order so Lorance made the report false himself.

The facts were pretty bad for Lorance, and his defense team had to have been in a tough spot. We get a hint of the defense strategy at the end of the episode. After the shooting, the company commander called the platoon back to the company area, put the soldiers in a tent, and had them fill out sworn statements about what they had seen. (The statements were all consistent.) The defense counsel suggests that they spent their time getting their stories straight.

That process may seem a little odd. Usually law enforcement (and not a commander) would do the investigation from the start. In the military, though, commanders are supposed to do an initial investigation. Rule for Courts-Martial 303 says that when commanders receive a report of misconduct, the immediate commander shall conduct a preliminary inquiry. The discussion to the rule says that these investigations are often informal, but also says that in complex cases, the commander should seek the assistance of law enforcement.

Here, it looks like the commander wanted to quickly find out what happened, brought the soldiers in, and had them give statements. That is what the rule contemplates. The commander then brought in formal law enforcement once he had a sense that something bad really had happened. The facts suggest that the soldiers sat quietly filling out the statements and were not getting their stories straight.

This rule can cause problems. Commanders can sometimes get wind of misconduct (say, drug use), do a preliminary inquiry, and then mess up a larger, undercover investigation that law enforcement is conducting. Or commanders might interview potential suspects without giving proper rights warnings. Or, the initial witness statements might be sparse or off-point and those statements can later be used to impeach those witnesses. Of those, maybe the last one will be implicated in this case.

Here, the director implies that the defense will be saying that the platoon got together to tell a story so that they could get rid of this new platoon leader they did not like. And I think he will say, they did not like him because he was gay.

The first part of the episode discusses how Lorance came to terms with his sexual identity, and how his parents could not come to terms with it (adopting the, “Hate the sin, love the sinner” approach). We also learn that even though Don’t Ask, Don’t Tell had been formally appealed, Lorance tried to keep his identity secret. This appears to have caused some issues in his relationship with his partner. While Lorance was deployed, his partner went on a family support group Facebook page to post a message to Lorance. Lorance was able to keep the post from going live, but the page manager appears to have spread a rumor that he was gay. That rumor made it to the headquarters unit he was serving with; however, it does not appear to have reached the platoon. We may find out in the next episode if that rumor become relevant.

Posted by Howard Wasserman on October 31, 2019 at 05:54 PM in Criminal Law, Law and Politics | Permalink | Comments (0)

Expert Witnesses in the Impeachment Trial

One question that may come up in the trial is whether the House managers can call expert witnesses to testify about whether the facts support their allegation of a high crime and misdemeanor. This was not done in the Johnson and Clinton trials, but there is a fair argument for that testimony here. One can imagine calling foreign policy officials from Republican Administrations past (Colin Powell, for example) to offer their opinions on the President's alleged conduct toward Ukraine. And the President could call his own experts to counter whatever they say. 

Granted, John Bolton arguably serves both roles (as a fact witness and an expert). But his testimony before the House committee is still uncertain.

Posted by Gerard Magliocca on October 31, 2019 at 12:49 PM | Permalink | Comments (5)

Wednesday, October 30, 2019

JOTWELL: Mullenix on Choi on class-action mega fees

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions, which examines "mega fee" awards in class actions.

Posted by Howard Wasserman on October 30, 2019 at 11:36 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Capping off a year in a yarmulke

Sunday marked one-year (on the Western calendar) since the shooting at Tree of Life Synagogue in Pittsburgh. Today marks one year since, in reaction, I began wearing a yarmulke.

So what have I learned after a year?

• While I said at the time I did not know how long it would last, I am happy to say I have no plans to change. My daughter's Bat Mitzvah was in January and we have leftovers to keep my head covered for another 25 years. The expression of Jewish community and the sense of humility before Hashem represented by the head covering (and awareness of it--I always feel it there) remain and I do not intend to give them up.

• Strangers become friendly. There is "The Nod" from other Jews, even more-observant Jews in tzitzit; several have struck up conversations in airport security lines. A person approached me on the street once to say "God bless you." And I cannot forget the Lyft driver in Boulder who wished me a "Happy Shabbat Shalom," earning high marks for effort.

• My students enjoy the many times it flies off during class.

• I continue to struggle with the idea that wearing a yarmulke means I must refrain from certain activities or at certain times--driving on Shabbat, eating non-kosher food, etc. My rabbi explained it by the concept of not leading others into sin--by eating at a certain restaurant or driving on Saturday afternoon, I send an erroneous signal to other Jewish people that it is ok to engage in those activities, which may cause them to do so. Others explain it as sending mixed signals to the world--how can this Jewish person do that?

The rabbi's solution is to wear a hat over the yarmulke when he eats in a non-kosher restaurant or drives on Saturday, which I do at times. Even if I do not refrain, I am conscious of engaging in certain conduct while wearing it. I did not order shrimp in a restaurant last week because I thought of how it would read to my (non-Jewish) companions. On the other hand, the principle seems under-inclusive: Why do these obligations attach to this expression of Jewish identity but not others; why does more-observant Jewry define the obligations that attach to different Jewish symbols. As I said, I have been thinking about this for a year and I do not believe I am closer to an answer. I mostly live my life as before, but with my head covered.

• I am conscious of walking into some truly non-Jewish spaces, such as my daughter's Episcopalian school. I am not conscious in "mixed" spaces. As I said, living my life as before, but with my head covered.

• I will be reading Torah at the weekly minyan in a few weeks. The rabbi chose the story of Joseph and his coat, which speaks to a piece of this--the idea of clothing and how we dress instilling humility. Or, in Joseph's case, not, prompting his brothers to throw him in a hole and sell him into slavery.

Posted by Howard Wasserman on October 30, 2019 at 09:31 AM in Howard Wasserman, Religion | Permalink | Comments (0)

Tuesday, October 29, 2019

Aaarrrgument preview: Allen v. Cooper

I have a SCOTUSBlog case preview on next Tuesday's arguments in Allen v. Cooper, considering whether states enjoy 11th Amendment/sovereign immunity from suit for copyright violations. The dispute arises from film and video documenting the salvaging of Blackbeard's flagship, the Queen Anne's Revenge. Thanks to the SCOTUSBlog editors for letting me get away with that title.

Speaking of the Eleventh Amendment, download while it's hot the new paper by Will Baude and Stephen Sachs, The Misunderstood Eleventh Amendment. Because the plaintiff is from North Carolina, their plain-language argument would be that the Amendment does not apply, but there are questions about the state being subject to personal jurisdiction in the action.

Posted by Howard Wasserman on October 29, 2019 at 01:54 PM | Permalink | Comments (5)

Judging Lawyers Based On Their Clients

Yesterday the New York Times published a lengthy story on external work that Elizabeth Warren did while she was still a law professor.  The story, which is titled “Elizabeth Warren’s Days Defending Big Corporations” focuses on a few different themes—the amount of money that Warren made off of these external gigs, the fact that her campaign’s summaries of these representations is overly simplified, and the identity of the clients she represented. 

As I explained last spring, when the Washington Post wrote about the fees that Warren collected for this work, the amount of money that Warren made for these representations seems to be within the range of what other professors with comparable experience and profiles charge.  And while I think that we could have a fruitful and worthwhile conversation about the desirability of law professors taking on this paid external work, that doesn’t seem to be the upshot of the Times or WaPo stories. 

The Times does point out that the summaries that the Warren campaign put out of these representations are overly simplified.  And as someone who generally expects candor and nuance from other law professors (even former law professors), I was sorry to see that Warren’s campaign isn’t holding themselves to that standard.  But the Twitter horde’s response to the story seems to be one of outrage: How dare Warren have any corporate clients? Corporations are, by definition, evil!!  In light of this weird, kneejerk response, I understand the campaign’s decision—even if I don’t approve of it—to oversimplify in order to push back against this lack of nuance in public opinion.  And the Times headline suggests that the editors at the paper at least know about this rabidly anti-corporate viewpoint (and perhaps share it themselves).

I won’t rehash here the argument that I made on Twitter – which is that even a non-simplified description of Warren’s work for corporations shows that she was, in all of these, cases pushing for a robust bankruptcy system in which the bankruptcy process fully and finally discharges all debts and liabilities.  (In other words, according to the Times’ own reporting, Warren’s work for corporate clients was consistent with her academic principles—principles, which she undoubtedly believes are important to protecting ordinary people.)  Instead, I’d rather talk about why it’s newsworthy to talk about the identity of Warren’s clients.  Because there is no denying that it is the identity of Warren’s clients—i.e., that they are corporations—that folks who support other candidates in the Democratic primary seem to be most worked up about.

I think this is a topic worth talking about because it is part of a larger question—namely whether to judge lawyers based on the identity of their clients.

 

Whether to judge lawyers based on their clients is, of course, hardly a new issue.  The issue is even mentioned in the ABA Rules of Professional Responsibility, which say that “A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.” I’d always assumed that this rule represented the conventional wisdom within the legal community, but I’m no longer so sure.

My doubts started when I saw a number of lawyers and law professors that I know criticize Jamie Gorelick for her decision to represent Jared Kushner.  Gorelick is a long-time Democrat who served in Bill Clinton’s DOJ.  My doubts grew as Harvard Law School’s Ron Sullivan faced heavy criticism by other lawyers for representing Harvey Weinstein.  Some people defended Sullivan (and criticized Harvard’s actions), but other lawyers and law professors who I admire joined the chorus of Sullivan’s critics.

The criticisms about Gorelick and Sullivan seemed to fall into two related but different categories:  The first was about the professional choices that the lawyers were making.  Specifically, the argument was that high-profile lawyers can pick and choose among their clients.  Every client that a lawyer represents comes with opportunity costs—if you represent client A, then you may not have the time to represent client B.  Because lawyers must choose between clients, so the argument goes, their choices should account for whether clients or causes are worthy of their time.

The second argument was about the fact that these clients could choose between lawyers.  Because Kushner and Weinstein could afford to pay for an attorney, the ordinary arguments about how everyone needs a lawyer didn’t apply.  Their wealth was going to buy them a lawyer, the critics argued, and so people like Gorelick and Sullivan didn’t have to take the case in order to ensure that justice was done.  In some ways I think that this argument was made defensively.  If the argument is about whether clients can pay, then it distinguishes the Kushners and Weinsteins of the world from the indigent criminal defendants who are accused of horrific crimes.  Those indigent clients can’t pay, the critics argued, and so the access to justice argument still has force.

I raised the question of judging lawyers for their clients in my Professional Responsibility class earlier this semester.  The students were pretty split.  Those who students who see lawyering as a way to bring about change in the world seemed more open to criticizing those who choose to represent the Kushners and Weinsteins.  But others argued that the distinction between clients who can pay and those who can’t is unable to take the weight of the argument—they seemed to think that the worldview that endorsed judging lawyers for their paying clients is all too likely to bleed over into judging lawyers for their non-paying clients.

Personally, I’m not really sure what to think.  My inclination is that we should judge lawyers by the quality of their arguments, rather than the deeds of their clients.  But I am hardly confident about that view, and I’d be interested to hear from others.

As for law professors in particular, I think that the issue is probably more complicated than we’d like to think about.  It’s tempting to say that this external work is entirely discretionary, and so we ought to feel more comfortable judging law professors for their clients.  But for some law professors—especially those who live in expensive cities or who don’t come from family money—I’m sure that they take on this work, at least in part, because they are trying to pay their mortgage or pay their kids’ tuition bills.  And, in any event, if a law professor is using external representation or consulting as a way to change the law—especially to change the law in a way that is consistent with her scholarship—I’m not really sure that it matters who the client is.  The law is, after all, generally applicable. And the fact that a change in the law might benefit people or companies that we don’t like hardly seems like a good reason not to improve the law itself.

Posted by Carissa Byrne Hessick on October 29, 2019 at 09:28 AM in Carissa Byrne Hessick, Current Affairs, Law and Politics | Permalink | Comments (4)

Saturday, October 26, 2019

Leavenworth, Ep. 1: Soldiers.

This post is by my FIU colleague Eric Carpenter, a retired Ranger and JAG attorney. He is covering the HBO documentary for us. Episode 1 aired last Sunday; Episode 2 premieres tomorrow.

If Clint Lorance had not deployed to Afghanistan, he would have never committed a crime like murder. By all accounts, he was a productive member of society and joined the military for honorable purposes. In Episode 1 of Leavenworth, the director appears to start his argument for why a law-abiding, disciplined soldier would commit a crime like this. His basic thesis will be, I think, that Lorance was overcompensating for several factors and felt he had to quickly establish himself as a tough leader who would impose his will on the enemy. Ignoring the rules of engagement (or creating his own) fit that image.

One of these factors is that Lorance was tasked mid-tour, on short notice, to replace the battle-seasoned platoon leader of a battle-seasoned platoon. The original platoon leader—the one who led the unit through the preparations for combat and the initial part of the deployment—was wounded in an improvised explosive device (IED) explosion. This platoon leader appears to have been well-respected by his soldiers and was Ranger-qualified.  

The platoon was battle-seasoned, too. The platoon had already been in firefights and, presumably, had already been awarded the coveted Combat Infantryman Badge (CIB). Two other members of the platoon were also seriously wounded in combat. And the director brings in a social psychologist to explain how people bond in situations like these.

Replacing that platoon leader in that platoon would be a tough leadership task for anyone to undertake. Lorance had some strikes against him.

To start, he did not graduate from Ranger School. In the Army, having bells and whistles on your uniform matters. Lorance walked into the unit without a Ranger Tab and without a CIB.

After new lieutenants graduate from Infantry Basic Officer Leadership Course, they go to Ranger School. If they graduate from Ranger School, they can expect to be a platoon leader in a light infantry unit. If they do not, they often go to a mechanized infantry unit, or go to a light infantry unit but serve in a headquarters element. Lorance did not graduate from Ranger School and so was serving in a headquarters unit. When I deployed, I was a judge advocate and served in a headquarters unit. An anacronym exists for people in headquarters elements: REMF. Rear-echelon . . . 

So not only did Lorance show up without the right bells and whistles, he had been, up to that point, a REMF. He may have thought that he had something to prove.

Plus another factor. I have been following this case for a while, and I did not know about it.

Lorance is gay. He grew up within a conservative family, as a Pentecostalist, in Hobart, Oklahoma, itself a very conservative area. The director leads us to believe that his family was not accepting of his sexual orientation. As I think through how that fact might be relevant to the story, I expect the director will argue that he felt he had to overcompensate within what many would consider to be a hyper-masculine society.

Congress repealed Don’t Ask, Don’t Tell (DADT) on September 20, 2011. The repeal was supported by a large number of senior military leaders. I was a student at the Command and General Staff College in the period leading up to the repeal. We routinely heard from senior leaders in government as they talked about complex problems. One of the best comments I heard was from Admiral Mike Mullen, then the Chairman of the Joint Chiefs of Staff. He said that his turning point was when he recognized that the policy ran contrary to one of the military’s key values: integrity. His point was, “How can we say that we value integrity, and then turn around and tell a service member that they have to lie about who they are?”

Those who opposed the repeal warned of dire consequences (primarily, that unit cohesion will fall apart), but in the part of the Army where I served, none of the dire consequences came about. From the perspective of many straight service members, nothing really changed. (I was against the policy and glad for the symbolic meaning of repeal.) There were LGBTQ service members in the military during DADT, everyone knew it, and most people did not care. People cared about whether you were good at your job.

I recognize that those in the LGBTQ community must have had a completely different experience under DADT, and even if 95 out of 100 service people treated them with dignity and respect (I am making that number up), they would still have to constantly deal with the 5 out of 100 who didn’t.

Lorance took over his platoon in 2012. DADT was only a year in the grave, and I don’t know what the experience during this period was like for members of the LGBTQ community. Further, I don’t know what the culture was like in infantry units at the time. I expect the director will fill us in.

Posted by Howard Wasserman on October 26, 2019 at 04:40 PM in Criminal Law, Law and Politics | Permalink | Comments (0)

An Impeachment Trial as Original Jurisdiction

Yesterday, one of the President's advisors (a deputy of John Bolton) filed suit asking a federal court to determine if he must obey a House subpoena in the impeachment inquiry if the President is telling him not to testify. The suit is a good way of avoiding a decision on testifying that is bound to anger someone. But the case also illustrates a unique aspect of impeachment trials. 

Long before this suit is resolved by the courts, the House will send impeachment articles to the Senate. At that point, the issue will change into: "Must someone subpoenaed by the Senate for an impeachment trial testify when the President tells him not to testify?" The House impeachment managers or the President's lawyers, though, can raise this question directly with the Chief Justice as presiding officer. Thus, the High Court of impeachment in the Senate functions as a form of original jurisdiction.

Three implications flow from this observation. First, delay becomes impossible. Filing lawsuits to drag things out in the courts won't work when the Chief Justice has original jurisdiction over impeachment trial matters. Second, the Associate Justices are totally cut out of the process. Only the Chief Justice's views matter. Third, there are no lower courts to sift arguments and help the Chief Justice as is typically true for constitutional issues. He is on his own, though he can seek the advice of the Senate parliamentarian.

The bottom line, once again, is that the Chief Justice will wield considerable power over the upcoming trial, and will be largely exercising his own discretion. 

Posted by Gerard Magliocca on October 26, 2019 at 03:35 PM | Permalink | Comments (3)

Baseball and politics, again

The Astros win in Game 3 last night means there will be a Game 5 in Washington Sunday night, which means a game attended by President Trump (although not to throw out the first pitch).

Question to watch: Will fans boo trump, chant "impeachment" or "Ukraine," or otherwise criticize the President? And how will MLB and the Nationals respond?

Update: MLB Commissioner Rob Manfred golfed last week with Trump and Lindsey Graham. I think I have my answer to the third question.

Posted by Howard Wasserman on October 26, 2019 at 02:03 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1)

Friday, October 25, 2019

Aaron Sorkin wrote Donald Trump, Example No. 31

I have argued before that Aaron's Sorkin's The West Wing reflects and lauds the politics practiced in the Trump White House, albeit in service of different substantive policy ends. The latest example is the announcement that the White House would cancel subscriptions to The New York Times and Washington Post and was ordering agencies and departments to cancel their subscriptions.

In one episode of The West Wing, President Bartlet and C.J. Cregg are mad about coverage of the administration by reporter Danny Concannon and his paper (I do not remember if it was the Post or a fictional paper). In a meeting among the three, Bartlet announces that he is canceling "our" subscription to Danny's paper. C.J. applauds the move as a way to damage the paper financially. Bartlet then reveals that he was speaking only of his personal subscription, not the governmental subscription, which disappoints C.J.

The point is that Sorkin liked the sort of politics in which the government punishes critics financially, in a way that would worsen the effectiveness of government (if we believe that staying abreast of the news is important for government officials). C.J. is the POV character in that scene and she is incensed that Bartlet will not do more to sanction and financially injure the paper and his critics.

Nor does this explanation cut it:

The difference is that Bartlet was a good president, who was prone to being occasionally snitty. In contrast, Donald Trump is an awful president who routinely displays the immaturity of an infant.

That cannot be right. Either it is ok for a President to lash at his critics in this way or it isn't. Either it is ok to call political adversaries names or it isn't; either it is ok to strip press credentials from critical reporters or it isn't. Neither the political position nor perceived quality of the President and administration should make a difference.

Posted by Howard Wasserman on October 25, 2019 at 03:27 PM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Pledge to Reduce Academic Marketing Waste

This is making the academic rounds today. I post it without comment.

In honor of International Day of Climate Action (October 24), a group of law professors have announced the Pledge to Reduce Academic Marketing Waste, which seeks to address the routine and indiscriminate use of paper-based flyers, newsletters, offprints and postcards by law professors and law schools.  Most of this material is discarded without ever being read.  However, law schools continue to produce and distribute these materials in an effort to increase or maintain their national and international rankings.

Continuing this practice is unconscionable in the current era, given the availability of electronic marketing options.  Limiting or eliminating reliance on paper-based materials will not only reduce the destruction of forests, it will also reduce carbon emissions generated as part of the printing and transportation processes.

Given the competitive nature of higher education, it is unlikely that individual law schools will act on their own initiative to stop or significantly curtail paper-based marketing for fear of risking their rankings.  However, positive results may be obtained by coordinating actions across numerous law schools. 

Individual faculty members as well as law schools both inside and outside the United States are therefore invited to join the Pledge to Reduce Academic Marketing Waste by emailing Prof. S.I. Strong ([email protected]) to indicate their support.  The names of individual law professors and institutions who have adopted the Pledge will be published on a webpage housed at Pace University.  That webpage is regularly updated to show increased support for this initiative.

The language of the Pledge is as follows:

We, the undersigned, hereby pledge to reduce academic marketing waste, individually and institutionally, by limiting or eliminating the production and transmission of paper-based marketing materials and/or by encouraging the relevant decision makers at our institutions to adopt actions and polices consistent with that goal.  Reducing academic marketing waste can take a variety of forms, including but not limited to:  (1) reducing the size of paper-based marketing materials (eg, replacing newsletters with postcards); (2) reducing the frequency of paper-based marketing initiatives; (3) adopting an opt-in rather than opt-out approach to paper-based mailing initiatives; (4) replacing some or all paper-based marketing with electronic or other forms of marketing. 

Please feel free to forward this message to anyone at your institution or in your network who you think might be interested in joining the Pledge.  The current signatories can be seen here -

https://law.pace.edu/academics/juris-doctor-program/environmental-law-program/pledge-reduce%C2%A0academic-marketing-waste - although more are being added all the time.

Posted by Howard Wasserman on October 25, 2019 at 02:38 PM in Teaching Law | Permalink | Comments (0)

The End of John Bingham's Closing Argument in the Impeachment Trial . . .

of Andrew Johnson

"[P]osition, however high, patronage, however powerful, cannot be permitted to shelter crime to the peril of the Republic. It only remains for me, Senators, to thank you, as I do, for the honor you have done me by your kind attention, and to demand, in the name of the House of Representatives, and of the people of the United States, judgment against the accused for the high crimes and misdemeanors in office whereof he stands impeached, and of which before God and man he is guilty." 

Posted by Gerard Magliocca on October 25, 2019 at 02:01 PM | Permalink | Comments (0)

Thursday, October 24, 2019

Frankel Lecture at University of Houston: Exit, Voice & Innovation

If you are in Houston this week, do come tomorrow to the 24th Annual Frankel Lecture. And if you aren't, below is a taste of my lecture, which will be published in the University of Houston Law Review with responses from Todd Rakoff and Lisa Oullette (I've already seen their draft responses and they are super). 

Orly Lobel, Exit Voice & Innovation: How Human Capital Policy Impacts Equality (& How Inequality Hurts Growth)

If an employee believes her organization is failing, she can take action using one of two strategies: exit (leaving the company) or voice (advocating change from within). But what happens when both exit and voice are restricted? Change itself–including both innovation and equality–suffers. This article investigates the connections between fields that are usually kept separate: intellectual property and innovation policy; antitrust law and market competition; employment law and contract norms; and anti-discrimination law and equality policy.  

In employment, non-disclosure agreements (NDAs), non-compete agreements, innovation assignment clauses, non-disparagement agreements, mandatory arbitration, and secrecy policies all create exit constraints. These restrictive clauses also serve to silence employees, inventors, creators, and entrepreneurs from speaking up and from expressing themselves creatively. These trends impede mobility in the job market while also suppressing voice.

The recent steep rise in the use of restrictive clauses has shaped human capital in ways that are harmful to all workers, as well as to industries and innovation at large. Still, the burden of these restrictions is not equally distributed. By integrating economic theory and new empirical research in the field of equality and innovation, this article shows that restricting mobility and voice has negative effects on gender diversity, particularly with respect to women’s opportunities to lead, create, and invent. As a result, industries using these techniques become more concentrated, with less new entry and start-up activity and less gender parity. And because the process operates endogenously, the more an industry is concentrated, the more mobility and equality suffer. The article argues that recent findings on the gender deficit in patenting activity, intellectual property ownership, leadership, and entrepreneurship should be understood in relation to exit and voice policy infrastructure. It concludes with directions to the future and policy recommendations.

Image may contain: Orly Lobel, smiling

Posted by Orly Lobel on October 24, 2019 at 10:57 PM | Permalink | Comments (0)

Wanted: Trial Experience

The Framers probably assumed that the Chief Justice would have trial experience when they made him the presiding officer for a Senate impeachment trial of a president. This assumption held for Chief Justice Chase and Chief Justice Rehnquist. As far as I know, though, Chief Justice Roberts has never tried a case or participated in a trial. (He did not, for instance, clerk for a Federal District Court judge.) This means that the upcoming trial will be his first. Good luck.

Posted by Gerard Magliocca on October 24, 2019 at 09:31 PM | Permalink | Comments (1)

Wednesday, October 23, 2019

Why not standing?

The problem with standing is not only that it is an improperly constitutiuonalized merits inquiry. It also is the inconsistency in the movement between standing and merits. Take this unpublished Third Circuit decision. Plaintiffs are anti-choice advocates who with to engage in sidewalk counseling through one-on-one conversations with entering clinic patients. The court performed a limiting construction on the statute, reading it (as it had done a similar ordinance in another case) as not reaching one-on-one sidewalk counseling.

But then shouldn't the result have been that the plaintiffs lacked standing? The conduct in which they intended to engage was not prohibited or regulated by the statute (as interpreted), so they were not suffering an injury-in-fact fairly traceable to the conduct of enforcing that statute, since that statute could not be enforced against them. At least that is how some courts resolve similar cases. And if not standing (as, normatively, it is not), that should mean that all of this is a question of the scope of the challenged law and the scope of constitutional rights?

Posted by Howard Wasserman on October 23, 2019 at 04:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Breaking Tie Votes in the Impeachment Trial

Based on the precedent set during Andrew Johnson's trial, the Chief Justice is permitted to vote when there is a tie in the Senate on a motion. The Chief Justice may want to think about establishing some principle that will guide his votes. For example, he could adopt the practice of the Speaker of the House of Commons, who exercises his tie-breaking vote to extend debate or to reject a substantive motion, on the theory that a motion to end debate or do something substantive lacked a majority. 

Posted by Gerard Magliocca on October 23, 2019 at 03:39 PM | Permalink | Comments (3)

On Normal Journalism, with the Payment of a Debt and a Note on Triviality and Inertia

I've been in poor health this semester and hence blogging even less than usual. The difficulty in restarting has less to do with priorities--there are surely more important things to be doing, but activity begets activity, so making a start anywhere ultimately helps push everything along--than with the crushing inertia that comes from not writing.

Few contemporary events strike me as worth writing about, and the vast majority of things that people seem actually to write these days about strike me as especially and remarkably trivial. A fair measure of the importance of most of what we talk or write about, especially on social media, is to skip the daily papers and online media for a week and ask a few days later which stories it actually matters that one missed. I share the conventional negative reaction to many stories of outrage from, say, the President, or silly-season conduct from, say, some activist group or other. But restarting my engines to respond to such ephemera seems to give them unworthy dignity and attention and to be a poor use of energy that I ought to be husbanding with care. One loses a measure of engagement, which is indeed a loss. On the other hand, one gains a little of the long view, and appreciates the degree to which much day-to-day expenditure of energy, anger, action, and so on has a great deal to do with serving career, emotional, tribal, solidaristic, conformist, and self-amusement purposes as opposed to anything more lasting or other-regarding.

In this case, I can at least take finger to keyboard again for one decent purpose, which is to repay a debt. Many months ago Corey Brettschneider was kind enough to send me a copy of his no-longer-quite-new book, The Oath and the Office: A Guide to the Constitution for Future Presidents. Given my interest in oath, office, and honor, I was delighted by the focus of the book and wanted to alert blog readers to it. Time passed me by and the book has already made the journey to paperback, but I am happy to call attention to it just the same. Here is a useful review of the book by Josh Chafetz, much better than most of what now appears in the diminished New York Times Book Review. It's a worthy subject; regardless of whether I agree or disagree with Brettschneider's positions in particular areas, it's worthwhile for its focus on the oath and the concept of office, and hence on the centrality of the marriage of the official and the personal to the American political and constitutional system. I'm grateful to Corey both for the book and for his generosity in sending it to me--not to mention his patience.

Although, again, any given anecdata or daily-outrage story hardly seems reason enough to try to pick up my blogging duties again, I was also struck, as an institutionalist and someone interested in journalism, by a story this week concerning the Harvard Crimson. I don't consider it a major story; just one of many that justify gloom but not panic. Just the same, it struck me enough to write about, given its subject matter, its silliness, and the possibility that some of the young people involved could go on to the kinds of jobs where they might transmit misconceived views to a wider audience.

As newspapers will do, the Crimson published a workmanlike report of a protest by various Harvard community members who are part of a "student-led immigration advocacy group," calling for the abolition of U.S. Immigration and Customs Enforcement. (I imagine this had mostly to do with immigration and less to do with customs.) As newspapers will also do, the Crimson sought comment from ICE, which did not respond, as well as the Harvard University Police Department, which came in for criticism at the march for prior actions.    

The response to these standard acts of journalism was a petition, replete with the obligatory banal hashtag, condemning the Crimson's actions and its temerarious insistence that it would follow journalistic norms in the future. Seeking comment from the agency whose abolition had been demanded, it declared, demonstrated "cultural insensitivity." Moreover, "In this political climate, a request for comment is virtually the same as tipping them off, regardless of how they are contacted." Of course any petition, regardless of its content, will find signers as honey draws flies. But I did find it remarkable that the signers included the Harvard College Democrats, among others.      

Had the paper called ICE not for comment but to ask why it had not taken action against some identified set of students, I could at least understand some of the objections. Of course, the paper did none of this: I am sure the reporter asked something along the lines of, "Hey, this group wants to abolish you. Any thoughts?" The notion that this is tantamount to tipping them off is absurd, at least if one operates on the assumption that the protest itself was not secret; that its organizers, who used daylight and bullhorns rather than convening in a crypt at midnight while speaking in whispers, wanted it to be noticed by others; and that some customs or immigration official or employee somewhere might pick up a free college paper or even accidentally walk through Harvard Square.

One might question the custom of calling official bodies for comment on the ground that official bodies in such cases, like eulogists and college presidents, are foreordained to say nothing interesting. This is true. But then, inconsequential and standard-issue statements are par for the course for the whole roundelay of protest and response, and I doubt anything ICE might have said would have been any more or less predictable than the statements of the protesters themselves ("definitely an issue that needs to be put into conversation," "unwavering solidarity," "the power that we have in all coming together," and so on), which the Crimson duly reported. 

The mistaken belief that calling ICE for comment on an event intended to announce loudly that ICE should be abolished amounted to reporting specific individuals to the agency's notice can at least be assuaged by the Crimson's explanation, and responded to by an appropriate apology on the part of the petition writers. Of greater concern are some other statements. According to the Crimson, the communications director for another group, a person with years of experience in journalism (and who, in fairness, said she understood the views of both sides), offered the view that "getting both sides isn't always what is fair, especially when one side has already made its views well known through the megaphones of government." I'm not sure how well this calculus applies to a story in the Crimson, for whose readers the megaphones of immigration policy protestors ring at least as loudly as those of ICE. But in any event, the notion that getting both sides is not always sufficient is not the same as saying one should not at least do that. (It's also far from justification for the petition's further demand, as far as I understood it, that the Crimson adopt a policy of not asking ICE for comment on stories for which it would normally be asked for comment.) Nor, for those who support the press and journalism as (at its infrequent best) a professional institution, is it encouraging to see various groups falling in line with the student group and pledging not to speak to the Crimson at all until it ceases "asking ICE for comment on stories about immigration activism on campus." As a former journalist, I'm all in favor of refusing to speak to the press, especially on, say, issues about which one doesn't really know much or stories that one thinks are foolish or trivial--but not as a means of trying to push a newspaper to adopt policies that will further contribute to the decline of professional standards.      

The Crimson is to be congratulated for acting unlike many contemporary institutions and instead making clear that it had no intention of changing its policy or of throwing anyone under the bus. Having done nothing wrong, why would or should it? Other papers (I doubt the New York Times will stop or slow its rapid decline as a newspaper until its standard answer to its staff's demands for town halls and meetings with top editors is "No") and not a few universities could learn from this. But we should worry at least a bit that people want from journalism what it can't and shouldn't give them--let alone that an increasing number of the people who want those things actually work in journalism. It may or may not be a dying institution; but there's little sense in sending it off to the morgue any more hastily. Of course one must make allowances for callowness or error among college students, and especially generous allowances for Ivy League students. But it's hardly suggestive of a better future for an institution we both still need, and need to get well soon.   

 

Posted by Paul Horwitz on October 23, 2019 at 02:29 PM in Paul Horwitz | Permalink | Comments (0)

Leavenworth: Prologue

The following is by my FIU colleague Eric Carpenter. It is the first in a series of regular posts blogging the new Starz documentary "Leavenworth." Eric teaches Crim, Evidence, and Military Justice at FIU and served in Army JAG before coming to law teaching. He covered the second season (Bergdahl) of "Serial."

Thank you, Howard, for the opportunity to provide some running commentary on another true-crime docuseries that covers a military justice case. Leavenworth follows the story of Lieutenant Clint Lorance, an American infantry platoon leader who ordered his soldiers to open fire on three Aghans who were riding a motorcycle, resulting in two deaths. In this blog series, I hope to explain some of the peculiarities of the military justice system that will pop up. As I expect the director will offer criticisms of the system, I will give my thoughts on those, too.

I also hope to discuss some of the bigger themes that this case raises. First, this case is nested among several others where service members allegedly committed or did commit crimes against host-nation nationals (Navy SEAL Special Operations Chief Edward Gallagher, Major Matthew Golsteyn, for example) and then had their causes championed by Sean Hannity and others. Trump had considered stopping the prosecutions or granting pardons last Memorial Day but changed his mind after facing significant criticism.  One of my questions is, what explains that support?

Are we placing service members in complex situations where the enemy looks like the local population and does not play by the rules, and then forcing our troops to choose being buried by six or tried by twelve? If so, that might explain it. It is just not fair to prosecute them. Or are servicemembers well-trained on the rules and counter-insurgency operations, and Lorance (and the others) just ignored the rules? If the second is true, why are some still championing their cause?

A related theme is that there is nothing new under the sun. The problem of using force in counter-insurgency warfare is not new. I start my military justice class by playing the movie Breaker Morant, a true story from the Second Boar War in South Africa in 1902 (available for free in Kanopy and well-worth the watch). The basic issues in Lorance are the same as those faced by those British and Australian soldiers. U.S. service members dealt with these problems in Vietnam. While the Lorance shooting cannot be equated to the My Lai massacre (where several hundred civilians were killed), the facts leading into both are similar. Nothing is new. We just forget.

Several years into the war in Iraq, the American military finally recognized that it was fighting a counter-insurgency. David Petraeus (featured in Leavenworth) then wrote a manual on counter-insurgency operations that rejected the colonial “use force to get them to do what we want” approach and instead recognized that we need to provide the local population with security from insurgents. He put that doctrine into action while commanding forces in Iraq and Afghanistan. But adopting that strategy involves having soldiers assume risk that they did not have to before. And that is the world that Lorance worked within. Perhaps his champions’ real issue is with that assumption of risk and the rejection of the colonial approach.

The main legal issue will feel familiar: did Lorance act in self-defense of his unit? While he was deployed to Afghanistan, the rules of engagement were basically the same as the elements of common law self-defense. These rules are unclassified. The force has to be necessary: if unit commanders are on the receiving end of a hostile act, they can fight back; if they are moments away from facing a hostile act (they see a hostile intent), they can engage before the other side has a chance to act on that intent. The force used must be proportional, and if unit commanders can de-escalate the situation without using force, they should.

There are some interesting side issues. Lorance didn’t pull the trigger. Someone else did. If that soldier—the one who pulled the trigger—were put on trial, would he have a defense of obedience to orders? If he refused the order, could he be tried for failing to obey an order? I use the Lorance appellate case when teaching that defense and that crime to my military justice students. I hope to unpack those along the way. It turns out that some soldiers refused his orders to commit crimes and others did not. (Most were granted immunity to testify.)

Last, and in keeping with Prawfs origin story, I hope to share some lessons I learned while participating in this project. I gave a four-hour interview and the producer filmed my criminal law class and evidence class as they discussed issues in the case. I have no idea how the director put these scenes together, though. We’ll learn together.

Posted by Howard Wasserman on October 23, 2019 at 09:31 AM in Criminal Law, Law and Politics | Permalink | Comments (1)

Tuesday, October 22, 2019

All apologies

A storm is brewing surrounding the Houston Astros and their assistant GM, Brandon Taubman. According to a Sports Illustrated report, during the post-game lockerroom celebration on Saturday night, Taubman yelled (several times) towards three female journalists "Thank God we got Osuna! I'm so fucking glad we got Osuna!" This is in reference to reliever Roberto Osuna, who served a 75-game suspension for domestic violence, before signing with Houston this year (the charges, in Toronto, were dropped when the Mexican-national accuser refused to travel to Canada to testify).

The Astros say the story is misleading, that Taubman was supporting the player during a "difficult time" and responding to the "game situation that just occurred," and that the remarks were not directed at any persons. The second point seems odd, because the game situation was that Osuna had blown a two-run lead in the top of the ninth inning, only to have the Astros win it in the bottom of the ninth; it seems odd to shout about being glad to have signed a player who almost gave a clinching game away. MLB announced an investigation into the incident.

Taubman issued the following through the Astros:

This past Saturday, during our clubhouse celebration, I used inappropriate language for which I am deeply sorry and embarrassed . . .In retrospect, I realize that my comments were unprofessional and inappropriate. My overexuberance in support of a player has been misinterpreted as a demonstration of a regressive attitude about an important social issue. Those that know me know that I am a progressive and charitable member of the community, and a loving and committed husband and father. I hope that those who do not know me understand that the Sports Illustrated article does not reflect who I am or my values. I am sorry if anyone was offended by my actions.

Yom Kippur, at which we think hard about apologies and what it means to apologize, has passed. But let's play with this.

What is Taubman apologizing for and how should we understand that apology? He is "deeply sorry" for his "inappropriate language," comments that were "unprofessional and inappropriate." But that is silly--profanity is quite common in sports and the three women, experienced sports reports, are used to hearing such language; it is not as if he swore at them. He apologized "if anyone was offended," the common non-apology-apology. Finally, he claims his statements have been misinterpreted. If so, how does that affect his apology. Should he have to apologize if he does not believe he did anything wrong? Do/must /should we apologize for someone else's misinterpretation or misunderstanding of our actions, actions that we believe were not wrong or harmful but that someone else has taken as wrong due to their mistake?

Update I: Marjorie Ingall of Tablet Magazine runs SorryWatch, a blog that analyzes apologies. She is not pleased.

Update II: The Astros GM Jeff Luhnow defended Taubman in a way that highlights my original question. Luhnow says we will never know the intent behind Taubman's inappropriate comments. Luhnow noted that Taubman apologized for his "inappropriate behavior" and for doing something that he regrets. But no one will say what that is--what was inappropriate and what does he regret? They are not helping themselves.

Posted by Howard Wasserman on October 22, 2019 at 06:43 PM in Howard Wasserman, Sports | Permalink | Comments (4)

Universal injunctions and mootness

A divided Ninth Circuit affirmed the preliminary injunction prohibiting enforcement of the new regulations regarding the ACA contraception mandate. One issue in the case, which the court ordered briefed, is whether a universal injunction issued by a different district court (and affirmed by the Third Circuit) moots this case. Because the plaintiffs are protected by the other injunction, a Ninth Circuit ruling will not change their situation. (H/T: Brian Cardile of the Daily Journal).

The majority held the case not moot, although some of its analysis does not capture the issue. The court began by discussing the risk of conflicting injunctions, which is not the issue here--the denial of the injunction in the Ninth Circuit would not conflict in the sense of creating competing obligations--the Third Circuit injunction obligates (or restrains) the government from acting as to anyone in the universe, so nothing the Ninth Circuit does changes that. The court also spoke about the territorial limits about its injunction, ignoring that the issue is not geographic where but party who. It said that the injunctions "complement each other and do not conflict." In fact, however, it is not that they complement--it is that they repeat one another, because the Third Circuit universal injunction, which protects the California plaintiffs, renders a second injunction unnecessary.

The majority avoided mootness by applying capable-of-repetition-yet-evading-review. The Third Circuit injunction is preliminary (thus of limited duration) and before SCOTUS on a cert petition, both of which could result in the vacatur of its injunction or at least of its universality. The injury would not be capable of repetition only if the Third Circuit turned this into a universal permanent injunction, which is speculative and far off.

Judge Kleinfeld dissented on mootness, standing, and the merits. As to the different injunctions, he gets it:

That nationwide injunction means that the preliminary injunction before us is entirely without effect. If we affirm, as the majority does, nothing is stopped that the Pennsylvania injunction has not already stopped. Were we to reverse, and direct that the district court injunction be vacated, the rule would still not go into effect, because of the Pennsylvania injunction. Nothing the district court in our case did, or that we do, matters. We are talking to the air, without practical consequence. Whatever differences there may be in the reasoning for our decision and the Third Circuit’s have no material significance, because they do not change the outcome at all; the new regulation cannot come into effect.

This is correct and a proper recognition of what happens when courts take universality seriously.

I am not sure if the proper conclusion is that the appeal becomes constitutionally moot (I am not a fan of justiciability doctrines). Or, as Sam Bray argues, this is a good reason the Ninth Circuit should have stayed its hand.

Update: I took a quick look at the Third Circuit decision affirming the injunction. It misses the point, talking about people who work in different states than they live and the problem of geographic limitations. Again, however, the problem is not where. A protected plaintiff (including a state) is protected everywhere.

Posted by Howard Wasserman on October 22, 2019 at 04:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, October 21, 2019

Why Yom Kippur

Writing on the lack of success enjoyed by Jewish players and their teams on the recent Yom Kippur, Tablet's Armin Rosen hints at an interesting question: Why the focus among American Jewry for players playing or not playing on Yom Kippur (and, to a lesser extent, Rosh Hashanah). Rosen points out that we do not care or expect players not to play on Shabbat, which is arguably more important within the faith.

One answer is the impracticality of a player not playing every Shabbat. The MLB regular season is built around series of 3-4 games, including series every weekend, Friday through Sunday. Except for the Cubs, virtually every Friday game is at night and some (although a smaller percentage) Saturday games are played during the day. Figuring four Fridays and Saturday per month in a six-month season, a Jewish player who would not play on Shabbat would miss 24--48 games. No player could do that and no team could afford to employ that player. Especially not the Cubs, who play most of their Friday and Saturday games during the day.

A second answer is this matches the Jewish calendar for many American Jews. Most do not observe Shabbat. Many who attend Shabbat services otherwise treat it as an ordinary weekend day--I attend morning services, but the rest of the day I might hold a make-up class, coach my daughter's basketball team (in a temple-sponsored league, no less), or spend the day writing. Shabbat is not, for most, a break in the calendar. Rosh Hashanah and Yom Kippur are--schools are closed, many Jews do not work, and those are the two days on which a substantial portion of Jews go to synagogue. The logical leap--if I take this day off, so would a Jewish baseball player. Then it comes to the supposed Halachic difference between the joyous Rosh Hashanah and the somber Yom Kippur.

So fear not, Alex Bregman. Simcha Torah will be over before Game 1 begins tomorrow night.

Posted by Howard Wasserman on October 21, 2019 at 11:41 AM in Howard Wasserman, Sports | Permalink | Comments (3)

VAPs and Fellowships: Open Thread, 2019-2020

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

You may also add information to the spreadsheet.

Posted by Sarah Lawsky on October 21, 2019 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (23)

Friday, October 18, 2019

"Leavenworth" on Starz

This Sunday, Starz airs the first episode of the 5-hour documentary series Leavenworth, directed by Steven Soderburgh and telling the story of Lt. Clint Lorance. Episodes 3 and 5 feature FIU and my colleague Eric Carpenter (a former JAG officer); Eric is interviewed and the program includes footage of students mooting the case in his Military Justice class.

Posted by Howard Wasserman on October 18, 2019 at 12:31 PM in Criminal Law, Howard Wasserman, Television | Permalink | Comments (0)

More post-season infield flies

Twice in one night.

I missed this USA Today piece by Andrew Joseph arguing that the Nationals were lucky in their clinching Game 4 of the NLCS that infield fly was not declared on a run-scoring uncaught bases-loaded blooper to right field that scored the first of four first-inning runs. Joseph compares this with the infamous call in the 2012 NL Wild Card, arguing that the umpire was right not to invoke here, which shows why the 2012 call was wrong (he calls it a "fiasco"). (He provides video links to both plays, so watch for yourself).

I do not understand why the Nationals should be "thankful" the rule was not invoked. They scored one run on the play; that run scores anyway, since baserunners can run at their own risk when infield fly is declared. They scored three more runs in the inning subsequent to the fly ball. Two came on consecutive hits by the two batters following the fly ball, runs which would have scored anyway. The second out of the inning came on a sacrifice bunt by the pitcher, after which the fourth run scored on a hit. The Nats would not have had the pitcher bunt with two outs (as would have been the case had the rule been invoked, making the batter out for the second out of the inning). But who knows what would have happened in that at-bat were the circumstances different--maybe the pitcher is put out and the fourth run does not score, maybe the pitcher manages to get a hit. For that matter, the entire inning could have gone in any direction. The point is that it is not so obvious that an infield fly call would have killed the Nats' rally.

The comparison to the 2012 call is inapt, because the plays are different in significant respects. This year's ball was hit to right field while the 2012 ball was hit to left. Umpires are less likely to invoke on a ball to right field, especially near the foul line, because the first throw to start a double play would be so long that no double play is possible (thus the rule's purpose of preventing a double play by disincentivizing the intentional non-catch is not implicated); this was the area with the fewest infield-fly calls in every season I watched. The Cards' second-baseman also tried to catch the ball sideways, facing the foul line, body language that does not indicate that he was "settled comfortably" under the ball, which is what umpires look for. In 2012, the Cards' shortstop was facing the infield with his hands up, body language indicating he was settled and waiting for the ball to come down and calling his teammates off. The 2012 play owed, in part, to the foul-line ump's perspective--because of his position and perspective, the ump believed the ball was closer to the infield than it was, such that a double play might have been possible (thus the rule's purpose implicated). Or perhaps the ump on the 2012 call was a textualist (thus the call was indisputably correct), while the ump in 2019 was a purposivist (so the unlikelihood of the double play rendered the rule inapplicable).

Anyway, I thought we were past the point that this 2012 call was regarded as the Citizens United of baseball calls.

Posted by Howard Wasserman on October 18, 2019 at 01:20 AM in Howard Wasserman, Sports | Permalink | Comments (0)

The unknown nuances of the Infield Fly Rule

A play in the top of the 8th inning of ALCS Game 4 may have illustrated a finer point of the Infield Fly Rule. It also might have made the announcers' heads explode, had they been paying attention.

The Astros had bases-loaded/1-out when the batter hit a pop-up to the right of second base, about ten beyond the infield dirt. The Yankees shortstop, playing behind second, drifted back and to his left. He turned so he was facing the infield while backpedaling and waving his arms. At the last instance, he was called off by the charging right-fielder, who caught the ball about 15-20 onto the grass.

I do not know whether the umpires declared infield fly. The video does not show the second-base (and nearest) umpire and the announcers did not say anything (such as "infield fly rule is in effect", as they did on an obvious ball near the mound in the top of the 9th). It appears it should have been called: The second baseman was in position to catch the ball and while backpedaling a bit, he was moving less and less far than the infielders on dozens of plays I watched over seven seasons on which the rule was invoked. He was trying to wave-off his teammates. And the ball was close enough to the infield and to second base that a double play might have been in the offing without the rule.

Had the rule been obviously invoked, it would have illustrated an important principle under the rule: It can be invoked when an outfielder handles the ball, if the ball could as easily have been handled by an infielder. Which was the case here--the second baseman looked ready to catch the ball, until the right-fielder called him off and made the catch. And it would have sparked a fascinating (and likely ill-informed) discussion among the announcers about the rule, as they struggled to figure out and explain how IFR was invoked on a ball caught by an outfielder. Too bad; it would have been a fun discussion.

Posted by Howard Wasserman on October 18, 2019 at 12:05 AM in Howard Wasserman, Sports | Permalink | Comments (1)

Thursday, October 17, 2019

Ramos and the Fate of Fragmented Rulings

In Ramos v. Louisiana, the Court is considering whether to hold that the Sixth Amendment requirement of jury unanimity applies to states via the incorporation doctrine. But a lot of the Court’s discussion at oral argument focused on issues of stare decisis, particularly what to do with fragmented decisions. Is the Court bound by its prior 4-1-4 rulings; and, if so, what rule is binding? Surprisingly, this question—which I have explored before—bears directly on whether the defendants in Ramos can prevail.

Here’s the background. In Apodaca v. Oregon (1972), the Court affirmed convictions based on non-unanimous state criminal verdicts, but it did so in a 4-1-4 decision. The plurality denied that the Sixth Amendment required jury unanimity. The dissenters thought it did. And all eight of those justices thought the same rule applied in both federal and state court. Justice Powell alone thought that the Sixth Amendment unanimity rule existed but didn’t apply to states via incorporation.

The practical result has been that the Powell view prevailed: non-unanimous jury verdicts continue, but only in state court. And that result makes some sense. When Apodaca was decided, incorporation was still proceeding piecemeal. Against that background, a decision that did not clearly hold in favor of incorporation might simply leave the relevant right unincorporated. If there is a right-by-right presumption against incorporation, in other words, a failed ruling could safely be treated as ruling against incorporation. It would be as though the decision never happened.

But there is another possibility: maybe Apodaca actually did decide the matter, thereby creating precedent on incorporation that cuts against the defendants in Ramos. The source for that intuition flows mainly from a later Court decision, Marks v. United States (1977), which adopted the eponymous “Marks rule” or “narrowest grounds” test:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .’

I don’t think it’s a coincidence that the author of Marks was Justice Powell. As someone who had written a number of “middle ground” concurrences in the judgment, Powell probably liked the idea of treating those opinions as precedential. Apodaca is just one example.

But if we apply the Marks rule, is the Powell opinion the narrowest and therefore binding? Maybe not, on the theory that his account of partial incorporation isn’t obviously “narrower” than the plurality’s view that the Sixth Amendment doesn’t include a unanimity requirement at all. Or maybe Powell’s opinion is the narrowest, or otherwise properly viewed as controlling, simply because his proposed rule can combine with the other Apodaca opinions to produce majoritarian outcomes in particular cases.

Or maybe the Court can simply ignore the entire Marks inquiry altogether. That was what Jeff Fisher argued on behalf of the Ramos defendants, and he had a good case to make. In a number of rulings—even more than Fisher noted, actually—the Court has waived away Marks rule questions and just decided the underlying merits as though encountering them for the first time. In other words, the Court has repeatedly acted as though it isn't bound by its own prior Marks holdings. That happened last year in Hughes v. United States, for instance. Other examples include Seminole Tribe v. Florida and Grutter v. Bollinger.

But the Court has not been consistent in taking that position. Sometimes, as in Marks itself, the Court seems to view its past Marks holdings as real holdings, even when most justices rejected the purported "narrowest ground." Glossip v. Gross supplies a recent example. So if Fisher's suggestion were adopted, Ramos would strike at the heart of the Marks rule.

While the Court equivocates on the import of the Marks rule, some courts and commentators have gleaned a difference between what might be called the horizontal and vertical dimensions of Marks. For instance, then-Judge Brett Kavanaugh once wrote the following in a footnote:

When the Supreme Court itself applies Marks, it is not bound in the same way that lower courts are bound by Marks to strictly follow the narrowest opinion from a prior splintered Supreme Court decision. That's because the Supreme Court is free to reconsider or refine or tweak its own precedents — including splintered precedents — and it does so in appropriate cases. Lower courts, by contrast, are not free to reconsider or refine or tweak Supreme Court precedents. Marks is therefore even more important at the lower court level.

The idea here seems to be that fragmented rulings do matter at the Court; but, like many other aspects of stare decisis, the Marks rule has a greater effect in the lower courts. Ramos gives Justice Kavanaugh an opportunity to refine this idea and put it into practice.

Alternatively, Ramos could finally make crystal clear that the Court treats the Marks rule as optional—but if so, the consequences wouldn’t be limited to the justices. In the Hughes oral argument, Chief Justice Roberts plausibly asserted that lower courts generally want to be affirmed. And the way to do that, he suggested, is to apply some version of the “narrowest grounds” test. Yet that logic simply doesn’t apply in many cases. Justices are replaced, or change their minds. The result is that fragmented decisions aren’t reliable guides to lower courts, particularly if fragmented decisions have no precedential effect in the Supreme Court. Hughes itself ended up illustrating that reality. So if the justices openly ignore Marks, we can expect lower courts to think more often about doing so as well. Fragmented rulings' fate in the Supreme Court will inform how they are treated elsewhere.

If you’ve read this far, you probably know that I am an inveterate opponent of the Marks rule. I don’t hold out hope that Ramos will eliminate the rule, but I do think it will leave the rule even weaker than it has already become.

Posted by Richard M. Re on October 17, 2019 at 10:45 AM | Permalink | Comments (3)

The Chief Justice and the Impeachment Trial

The upcoming Senate impeachment trial will be different from the one that many of us remember--the trial of President Clinton. In that case, there were no witnesses presented to the Senate. The facts were laid out in the Independent Counsel's report. The "trial" was basically a series of speeches by the House managers and by the President's lawyers. As a result, Chief Justice Rehnquist did not have to do much and kept a low profile.

This time around, there will be witnesses. Plenty of them. This means actual questioning and cross-examination. That, in turn, means that the Chief Justice will have to make a lot more rulings and will play a larger role. A particularly tricky issue, one would think, will be how to handle the identity of the whistleblower. In an impeachment trial, do the principles of the Sixth Amendment apply? Should the President be able to call the whistleblower and compel him or her to testify in the Senate? Here's a separate issue. Can the President invoke executive privilege to stop people from testifying if the House managers call them? There is no precedent for that, but who knows what the Chief will say if asked.

Granted, the Senate can overturn any ruling by the Chief Justice with 51 votes. (A tie means that the Chief's ruling stands). In practice, though, some Republican Senators might be reluctant to do this because that would make the trial look too political. I would note also that, while a Senate trial of a president is obviously political, the presence of the Chief Justice and the trappings of a trial tend to push lawyers and Senators more in a legalistic direction. (This was especially true during Andrew Johnson's trial.) 

I'll have more on this soon.

Posted by Gerard Magliocca on October 17, 2019 at 09:03 AM | Permalink | Comments (10)

Wednesday, October 16, 2019

JOTWELL: Bookman on new approaches to dispute resolution

The new Courts Law essay comes from Pamela Bookman (Fordham), reviewing Matthew Erie, The Emergent Landscape of International Commercial Dispute Resolution, ( Va. J. Int'l. L., forthcoming 2020) and Will Moon, Delaware's New Competition (Nw. U. L. Rev., forthcoming 2020), exploring new procedural mechanisms for handling business disputes in other countries.

Posted by Howard Wasserman on October 16, 2019 at 11:45 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 15, 2019

Legislative Capacity and the Law

Andrew Coan has recently written an excellent book (the subject of a Symposium on Balkinization) explaining how the limited capacity of the Supreme Court to decide cases filters into the substantive doctrine that the Court generates. This got me to thinking--could you not say the same about Congress?

In other words, the size of Congress has changed hardly at all since 1913. (Except that the Senate has four more members). The demands upon Congress and the population of the nation, though, have grown by leaps and bounds since 1913. How has Congress reacted? Partly through a large increase in its staff and support (for instance, the CBO). But mainly by creating federal agencies and delegating power to them.

Undoing some aspects of the administrative state, therefore, might require increasing the size of Congress. Conducting the necessary oversight to legislate more precisely or do the work that agencies currently do may not be possible without more members too share the work. And since the Senate cannot be made larger without admitting more states, the only remedy involves increasing the size of the House of Representatives. Perhaps this would be a better balance between legislative and administrative authority--I don't know. What I do know from my research is that Congress was not thinking about when they fixed the number of House members at 435 in 1929. Four years before the New Deal.

Posted by Gerard Magliocca on October 15, 2019 at 09:42 PM | Permalink | Comments (4)

A progressive SCOTUS short list

The progressive group Demand Justice has issued a Supreme Court Shortlist, offering 32 names for SCOTUS appointments by a new Democratic President. It is an interesting list.

It contains only two federal court of appeals judges--Jane Kelly (8th Circuit, a short-lister for the Garland nomination), and Cornelia Pillar (D.C. Circuit). And not Patricia Millett of the D.C. Circuit, who had become the left's darling with her opinions in the undocumented-immigrant-abortion cases.

The list consists of 17 women and 13 men. Besides the two court of appeals judges, thirteen do some sort of public-interest representation, seven are in the academy,* four are on a state court (three on the Supreme Court of California, including Goodwin Liu, who Obama tried to put on the Ninth Circuit), four serve in elected or appointed office, and two serve on a federal district court. The organization expressly sought to move away from the former prosecutors and law-firm partners who have dominated among Trump appointees.

[*] Sharon Bloch (Harvard), James Forman, Jr. (Yale), Pam Karlan (Stanford), M. Elizabeth Magill (Provost at UVa, former dean at Stanford), Melissa Murray (NYU), Zephyr Teachout (Fordham), and Tim Wu (Columbia). Plus, Sherrilyn Ifill of the NAACP LDEF was on the faculty at Maryland and Rep. Katie Porter (Cal) was on the faculty at Iowa and Irvine.

The list is short on federal judicial experience, making it a throwback to a time when judicial experience was not regarded as essential to a SCOTUS seat and when service on a state court was respected judicial experience for that position. I wonder if this is a SCOTUS shortlist or a good place for a Democratic President to begin filling lower-court seats.

I am surprised our own Steve Vladeck did not make the cut. The combination of his scholarship, public advocacy, and recent litigation experience places him within the legal milieu reflected on the list.

Posted by Howard Wasserman on October 15, 2019 at 05:42 PM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

Interview with Stuart Benjamin from Duke Law on its Visiting Assistant Professor Program

I’m excited to announce the latest interview in my series on VAP and fellowship programs. This interview is with Stuart Benjamin, the Douglas B. Maggs Professor of Law and co-director of the Center for Innovation Policy at Duke Law School. He spoke to me about Duke’s Visiting Assistant Professor Program. An edited transcript of our conversation is below, and I have invited Stuart to respond to any questions in the comments. Thanks, Stuart, 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.: Can you start by telling me about Duke’s VAP programs?

A.: We have one main VAP program and, by design, it is a very small program. And so we hire anywhere from zero to two VAPs a year. We keep it that small because we want to make sure that the VAPs have a great experience and can be fully part of the faculty. Ultimately, because of the small size of the program, we really can make sure that they get a lot of attention and a lot of feedback that will really benefit them.

Q.: What I’d like to do is essentially move through the VAP program, chronologically, starting with the application process and then moving through the fellowship itself and then the job market, if that works. When does the program start accepting applications typically?

A.: We accept applications on a rolling basis and applicants can send them in any time through November 15th.

Q.: And when do they open up in the fall?

A.: It is open now.

Q.: What materials do candidates need to submit?

A.: A CV, a transcript, references, copies of any articles they've written, whether published or unpublished (including a rough draft), a list of the courses they would be interested in teaching listed in order of preference, and an outline of their scholarly agenda with a particular focus on what it is they plan to complete during the VAP.

Q.: And what's the timeline once somebody submits those application materials?

A.: The law teaching committee does a fairly intensive review of all of the materials. We'll read the articles, we'll discuss the various candidates, and we will then come up with a list of candidates to interview. We tend to reach out to candidates by the end of November or early December and try to have those interviews usually in mid-December.

Q.: Those interviews, are those at Duke’s campus or by Skype?

A.: They're generally by Skype.

Q.: And is it just with the law teaching committee?

A.: Correct.

Q.: How many applications do you typically receive?

A.: In recent years we’ve had anywhere from 40 to 75.

Q.: And then when do you typically fill all of the positions, recognizing that it may vary by year?

A.: Usually we make offers by mid-January. But let me reiterate that we fill zero to two positions. We offer a VAP only when we think an applicant really would benefit from the program and have scholarly promise. In some years there may not be anybody that we think is a great fit.

Q.: Do the fellows have teaching responsibilities at Duke?

A.: We designed this program to be maximally beneficial to the fellows. So they teach only one class a year and it's usually a small seminar. It is always a class that they're interested in teaching – every VAP has taught a class they wanted to teach. We never have them teach legal writing. We don't have them teach any first-year classes. The idea really is to give them time to write, and we want them to be able to teach a class that's going to help their scholarship.

Q.: So then during the application process, how were you gauging teaching ability?

A.: That can be tricky to assess, and our main gauge is the interview itself, trying to get a feel for the person and how that person would be in the classroom. But sometimes an applicant’s teaching ability is noted in a letter of recommendation or evaluations from a TA-ship are included, and we consider all of that information as well.

Q.: Are you looking at practice experience at all and how much practice experience do you typically want or prefer?

A.: I think we're unusual among VAP programs. We have a preference, for one of the two VAP slots each year, for those with two or more years of practice experience. And the reason is we know that it can be challenging to find time to write when you're in practice and that you might not have as much writing as somebody who's been in a more writing intensive program like a PhD. We want to give people from practice a chance to come into a VAP and shine.

Q.: Let's turn to the scholarship side. How much have the typical successful applicants typically written when they apply? Are they coming in with one piece, five pieces, no pieces, typically?

A.: I wouldn’t say that there is a single, typical successful applicant. Everybody we've hired has had at least a draft, although that draft might not be something that they end up working on as a VAP. We might say to them that this draft shows you have great promise as a scholar, but actually this might not be the best way for you to spend your time, here might be some suggestions on slightly different routes to go. And we're often looking for diamonds in the rough. Some programs are essentially post docs. Ours isn't. We really want to give a person the opportunity for a higher trajectory. And so our focus is less on people who have written a significant amount and more on people who we think have enormous potential and who can benefit from coming to a program like ours.

Q.: So let me ask you a question, which is something that I've been thinking a lot about on the entry level hiring side, which is how do you find the diamonds in the rough? In other words, you're looking at people who presumably aren't fully polished yet, right? And so what are you looking for that gives you a fair level of confidence that they will become great scholars even if they're not there yet?

A.: That’s a great question. And of course there's no simple answer.

Q.: I wish there was.

A.: Especially because the same question arises for entry level hiring. Let's be honest—what is now required for a VAP was in earlier decades what was required to be an entry level hire.

Q.: That’s what I had when I was on the entry level market -- I had a draft.

A.: Right, exactly. I often think of it as looking for someone with a lively mind who has a methodology or approach that will add something to what already exists in that field. So it's somebody who looks like they can make a contribution. It's tough at the draft stage, no question. But does it look like this is a person who's really got a fire in the belly and is really ready to write interesting things? This is difficult to determine.

Q.: Right, right. I mean, it's very much the inquiry we go through on the entry level side as well. So I feel the challenge in that question. Is there any preference in the application process for candidates from particular curricular areas?

A.: No.

Q.: Not at all?

A.: Not at all.

Q.: How about preference for candidates with PhDs?

A.: No particular preference for PhDs. As I noted, in fact for one of our two slots we have an explicit preference for candidates with two or more years of practice experience. That said, we have hired a bunch of PhDs over the years because PhDs often come in showing exactly the kinds of scholarly potential that makes them really attractive.

I think other programs might be looking for people who just seem like safe bets, and that tends to favor people with lots of writing and academic experience. We don’t limit ourselves to safe bets because we're hoping to enlarge the pipeline with our program. We're hoping to give opportunities to people who otherwise might not have the opportunity to go into law teaching.

Q.: Well, let me follow up there because when I started this blog series, I had a lot of emails from people saying essentially I didn't go to one of the top 10 law schools. I didn't perhaps do an elite clerkship. How do I stand out in this process? If you're looking at 70 applications, how do those people stand out? What advice would you have for them?

A.: Given that we are looking for people who will benefit from our program, we're naturally interested in candidates who come from all backgrounds, including non-traditional backgrounds. They often can benefit the most. And as it happens, three of our last five VAPs came from law schools outside of the three schools you mentioned in your email, Harvard, Yale, and Stanford – these three came from GW, Duke, and Illinois law schools. Again, the reason is we want to cast our net as widely as possible. So the way to stand out in our process isn’t based on what law school you went to. The way to stand out is to have a draft that shows, wow, this is a person who has interesting ideas and has an interesting approach or methodology. And with the benefit of our program this person can develop into a great scholar who law schools and law professors will value. That is what we're focused on.

Q.: Do you make any special efforts through that process to hire candidates from diverse backgrounds?

A.: Oh yes. We greatly value diversity—a value that is reflected in who has come through our VAP program. For example, over the last decade, more than half of our VAPs have been people of color. Beyond that we're interested in multiple aspects of diversity, including ideological diversity and methodological diversity. And I think we've done pretty well on all those scores.

Q.: Do you have any special ways that you try to broaden your pipelines to recruit diverse candidates into your pool?

A.: We hope that anybody who looks at the program will see that we aren't limiting ourselves to the people who've already gone to the same law schools and then gone to the same PhD programs. And so I would hope that anybody who examined our program would say to themselves, it really does look like rather than just talking about enlarging the pipeline, they're actually doing it. I don't know how to advertise that, but the proof is in the pudding.

Q.: Is there anything else that comes into the application process? Any additional criteria that I might've missed?

A.: I don't think so.

Q.: Okay. Let's turn to the fellowship itself. You mentioned that you hire anywhere between zero and two a year. How long is the fellowship?

A.: It's generally a two year program, with the VAP going on the teaching market in the second year. We're open to the possibility that somebody coming right out of practice might feel that in their first year as a VAP they might not be able to go from having never been in academia to writing all the scholarship they feel they would need to go on the teaching market. And so we're open to people doing a third year, but ordinarily it's a two year VAP.

Q.: And so in some circumstances you were saying perhaps it's renewable if somebody needs a third year, is that possible?

A.: Right. There are some people who might think, “I need two years to write instead of instead of one year to write.” We're totally open to that. And whatever year you go on the teaching market is your terminal year.

Q.: Okay. And are you comfortable sharing how much the fellows are paid?

A.: It's 60,000 dollars plus benefits including health insurance. And then there's also a faculty account that you have as a VAP, just like the faculty account we have. It's a $5,000 account that covers travel to conferences, etc.

Q.: And is that 5,000 per year or over the course of the VAP?

A.: Per year.

Q.: Okay. And are fellows expected to live in the Durham area?

A.: Yes. And the reason is that our VAP is not about adding one more line on a CV. This is a VAP for people who will benefit from the intense experience of being a faculty colleague right alongside the rest of us -- with an office along the same corridor as us, going to all the faculty workshops, invited to all the job talks, etc. So you're going to benefit from the program if you're actually here.

Q.: Yeah, yeah, I agree. I think that's probably the most valuable part of VAP or fellowship. Do the VAPs have their own intellectual community of sorts? Do they get together on their own to workshop papers or anything else?

A.: There is a group of VAPs and fellows who get together and workshop papers. But the amazing thing about our program is, because it's so small, we don't need to have a separate program: as a VAP, you are guaranteed at least one slot to present in the general faculty workshop and you're participating in all of the workshops. So VAPS don't need to be their own cohort. My understanding is that at some law schools, there are so many VAPs and fellows that the faculty often don't often know who all of them are, and the VAPs and fellows need to be their own cohort in order to get feedback. That's just not the case here. Everybody in the faculty is going to know you and you're going to get all the feedback you could want and so you don't need to create your own route to get that feedback. VAPs aren’t part of a separate program; they are part of the faculty.

Q.: That's a great opportunity to then make those connections and get people reading your stuff. I mean is it the case that for example, the regular Duke law faculty are routinely reading the VAP’s papers, giving feedback?

A.: Absolutely. If we make an offer to a VAP, that means that not only has the Law Teaching committee been impressed but also faculty in the VAP’s areas of scholarly interest have said they are interested in working with the VAP and have committed to mentoring the VAP. So any VAP comes in with a group of faculty in their fields who are interested in helping them develop.

Q.: And are they given assistance in developing their broader research agenda, not just their job talk paper, but thinking about their scholarship more generally?

A.: Yes. Those are the main conversations that most of us have with VAPs. For most of those who are not in their field, it's difficult to give great, detailed substantive comments on a paper, but those faculty can and do give a lot of advice about how the VAP can develop a scholarly agenda.

Q.: Are they given assistance making connections with faculty in their area of interest outside of Duke in other law schools?

A.: Absolutely, and that’s easy for us, because the VAPs arrive at Duke with faculty in their field who are excited to work with them and who help them make connections with faculty in other schools.

Q.: Yeah, that's great. I'm wondering if you have any advice for candidates who come in with PhDs? Any special considerations that they should keep in mind during their fellowship to make the transition back over to legal scholarship?

A.: That's a great question. I think that the kinds of questions we ask in faculty workshops and about papers that we read are probably different from the kinds of questions that people ask in other disciplines and in legal practice. So there is a way in which, if you've gotten accustomed to certain lines of inquiry, you have to re-acclimate yourself to the way we approach things in law schools. But that's true for PhD students as well as people coming out of practice. The difference for PhD students is that they have to acclimate to a slightly different approach. For people coming out of practice, it may involve being newly exposed to academic workshops as well as acclimating more specifically to law workshops.

Q.: Yeah, I agree. I think it's one of those transitions that's easy to overlook or minimize, but it's a real one. So it's important for candidates with PhDs to keep in mind I think. Let's flip over to the teaching side again. I'm wondering if the VAP, when they're teaching that seminar every year, if they receive any training or feedback or mentoring related to their teaching.

A.: Yes, but we leave it up to the VAP’s discretion how they want to utilize what we can offer. So for instance, we offer to have people sit in on their classes. Some VAPs don't want that in a small seminar because it can change the feeling around the table if you've got eight students and then one or two faculty colleagues, so VAPs often prefer instead to get input in other ways. We can also record classes, and they are always welcome to sit in on our classes and discuss them with us afterwards. Beyond that, we have resources about how to structure a class so that it goes well, for instance with examples of syllabi and approaches that we use. We have found what works best is letting this be driven by the VAP's own sense of what would be helpful.

Q.: So we've talked about the scholarly side, we've talked about the teaching side. Do the VAPs have any other duties at the law school, any administrative duties, anything else?

A.: No. We see this program as really doing a service to the VAP. To be blunt, the program is not particularly helping us because we aren't filling important teaching needs, and as I noted we don't have them teach legal writing, first year classes, or large lecture classes. We want the program to be maximally beneficial to the VAPs, and we want their time not to get taken up with other kinds of duties. So there are no other responsibilities that VAPs have. They are in a better position than tenured and tenure-track faculty, in that they focus on scholarship and teaching with no administrative responsibilities.

Q.: And so my next question was going to be what do you think makes this VAP program stand out? But I wouldn't be surprised if you said that's what makes it stand out.

A.: Yes, and also that you are completely fully integrated into the faculty. You are right alongside us as another member of our faculty, your office is with us. You're going to all the faculty events, you're joining us. And I think that that's different from a lot of other VAP programs where frankly the VAPs can sometimes be a little bit off on their own.

Q.: And so given that close connection at Duke between the VAPs and the rest of the law school community, I'm wondering if you have any advice to fellows in terms of making the most of that opportunity?

A.: Don't be too shy to knock on people's doors. People will definitely knock on your door to offer help, but don't be shy to knock on their door. You're fully a part of the faculty and you should take full advantage of that.

Q.: Let's switch over then to the job market. What kind of mentoring do the VAPS receive related to the hiring process?

A.: A ton. We're providing support right from the outset, helping them think about what papers they want to write and what their larger research agenda is. We then give them lots of feedback on their papers, and guarantee them a workshop slot. Jumping to preparation for the teaching market, we help them understand what to emphasize in their AALS form and CV so that they can look their strongest and how to flesh out that research agenda that they're going to be sending out to law schools. And then we do mock AALS interviews and mock job talks.

Q.: Who's doing that? Is there a faculty or staff who are responsible for shepherding the candidates in some ways through that hiring process?

A.: That is the responsibility of the Law Teaching Committee, which I chair.

Q.: Yep. Okay, great. Let’s talk about the program’s success rate, so to speak. If you look back over say the last five years, 10 years, what percentage of the fellows have landed in tenure track positions at law schools?

A.: In the history of the program, all but one of the VAPs have gotten tenure track jobs.

Q.: Okay, great. And for candidates who might not get a job in a given year, you mentioned before that the year they go on the market is their terminal year, wondering what happens if somebody doesn't get a job that year?

A.: It only happened one time and the particular VAP decided that legal academia ultimately wasn't where she wanted to go. And so it was less about the market I think, and more about her own interests. So it's really not something that we've had to confront. But that's in part because we are able to choose people who really do have pretty great potential, and give them a lot of support along the way.

Q.: I'd love while I have you on the line to ask you some broader questions about the VAPs and fellowship, I'm wondering what do you think are the benefits of these programs as an entry point into legal academia and what do you think of the cost?

A.: That's a great question. I think the main benefit is that VAP programs, if they are designed to increase the pipeline, can increase the pipeline. But if VAP programs are focused only on those who've already had time to write, it may not accomplish that goal. And that's why we designed our program to look hard for those haven't had tons of time to write and who would benefit from being fully integrated into a law school.

Q.: Do you think that these programs have a greater obligation than perhaps we've seen to open up law faculty positions to candidates from diverse or non traditional backgrounds? And if so, how might we do a better job as a profession at that?

A.: Yeah, absolutely. Law schools traditionally have been very wary about taking risks in entry level hiring. In our VAP program we are willing to take risks on people who haven't yet had as extensive opportunities as others. We think it's really important that a program like ours cast its net as widely as possible. And this isn't just words, we've actually done it.

Q.: I'm sure you've heard the criticism from hiring committees that VAPs and fellows get so much help on their job task paper, on their research agenda, from the faculties, from the schools where they are, that it can be hard for hiring committees to know how much of the work is their own and how much of the ideas come from the faculty where they're employed. What do you think about that criticism?

A.: I'm not persuaded. VAPs workshop their papers with us and we give them tons of feedback just as we do for our tenure track and tenured faculty. And I don't think other schools have difficulty evaluating our tenure track and tenured faculty.

Q.: Perhaps one difference is that a tenure track faculty member is coming up for tenure in that same faculty. So the faculty knows how much help that person's gotten and is able to evaluate it appropriately. It may be harder for a VAP, right?

A.: Right. But when schools are looking at laterals and that person is pre-tenure or immediately post-tenure, they similarly have the person's papers to rely on. School X considering someone at school Y doesn’t know exactly what help the candidate got at school Y. But most of us assume that anyone on the tenure-track received a lot of help, because that's what it means to be on the faculty. That said, ultimately the papers are the author’s responsibility. I don't know why that's different when you're thinking about hiring somebody who's been a few years at another school on the tenure track as opposed to being a couple of years at another school as a VAP.

Q.: That’s a good point. On another point, let’s talk about trade-offs. Time is zero sum in so many ways, and so time spent in a fellowship is obviously not time spent, for example, in practice. I’m wondering what you think of that trade off given that law schools are in the business of educating lawyers?

A.: These days to be competitive on the entry level market, you must have already demonstrated some scholarly productivity. It's hard to do that coming straight out of practice. Part of the reason we designed our VAP program was in particular to help people who have not had time to write, so I think VAPs from active practice makes a lot of sense.

Q.: Do you think the rise of VAPs and fellowships is contributing to the small amount of practice experience we're seeing today in new hires?

A.: Perhaps, but at least with our program there is a countervailing consideration, which is that our program helps to enable those with practice experience to enter the legal academy. If there were no VAP or fellowship programs of any kind, then PhDs would have an enormous advantage over those in practice because the PhD would have had a ton of time to write. It would be very hard for somebody coming out of practice to look attractive compared to someone coming out of a PhD program. So I see VAPs, or at least a program like ours, as providing a greater opportunity for those with practice experience to enter the legal academy.

Q.: So I've asked you a lot of questions. I know we've been through a lot of different topics, but I'm wondering if there's anything else you want to share about Duke's VAP program or thoughts on the law teaching market more generally.

A.: The main feature that I like about our program is you really are a full member of our community. Moreover, it gives people who might not otherwise have a chance at becoming legal academics a real opportunity to cultivate themselves and to have time to write. In some ways I wish our program could be bigger so we could do that for more people. The problem is if it were a bigger program, then it wouldn't be the same program, then VAPs wouldn't get the kind of attention that they actually get in our program.

Q.: Great. Thank you so much Stuart. I really appreciate your time today.

A.: Thank you.

 

Posted by Jessica Erickson on October 15, 2019 at 03:24 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

LeBron James: Shut up and make trades

You would think that LeBron James--who has used his expressive platform more than most mega-stars and has been told on more than one occasion to "shut up and dribble"--would support an NBA colleague attacked for doing the same. You would be wrong.

Everything LeBron said could have been (and has been) applied to his statements on subjects such as Black Lives Matter, police violence, the killing of Eric Garner, etc.: 1) Morey was not educated on the subject (Taiwan Hong Kong) about which he spoke (while admitting it was just his "belief" that Morey was not informed); 2) people could be harmed as a result of his speech; 3) bad things can happen from the exercise of free speech and you cannot think only of yourself when deciding what to say, on or off Twitter. Ironically,the Morey tweet was supported people protesting in favor of democracy and who were subject to police violence--the very ideas James purport and support in his speech.

Posted by Howard Wasserman on October 15, 2019 at 07:10 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (3)

Sunday, October 13, 2019

Some Books to Recommend

There are three new books that are worth your time, IMHO. 

First, there's my former colleague Frank Bowman's new one on impeachment, entitled High Crimes and Misdemeanors. Timely reading, to say the least.

Second, there is David Schwartz's new one on McCulloch v. Maryland, entitled The Spirit of the Constitution. It's the best book ever written on McCulloch.

Finally, there  is Carlton Larson's new on treason during the Revolutionary War, entitled The Trials of Allegiance. Another superb piece of scholarship.

Posted by Gerard Magliocca on October 13, 2019 at 08:03 PM | Permalink | Comments (1)

When is it ok to miss an important ballgame?

On the heels of three Jewish players playing in late or elimination games on or after Yom Kippur comes a new controversy: Nationals reliever Daniel Hudson missed Game 1 of the NLCS (where he was not needed, as starter Anibal Sanchez took a no-hitter into the 8th inning) to be in the hospital for the birth of his daughter. Critics came out in force, not only from the Twitter cesspool, but from mainstream-media types and from former Marlins exec David Samson. Teammate Sean Doolittle defended Hudson with what should be the final word on the subject: "If your reaction to someone having a baby is anything other than, ‘Congratulations, I hope everybody’s healthy,’ you’re an asshole."

The criticism of players missing games in baseball and other sports to be there for childbirth (which my colleague Kerri Stone wrote about a few years ago) is fairly constant, at least if the game is important enough. So what would happen if a Jewish player did miss an important post-season game because of Yom Kippur? We assume that the player would be honored as Sandy Koufax and Hank Greenberg were (not only by Jews, but by all fans), but perhaps not. It is easy to reframe ESPN's Jay Greeson's tweet as "But if you're making $5.5 mil a year and your team needs you to close in the NLCS, well, I'd say go get 'em mom Rabbi."

This could go either of two ways.

Sports people are both religious and misogynist. So the trolls might forgive a player for missing for religious reasons (even a non-Christian religion) but not a player for doing the "woman's work" of being present for childbirth. Both Samson and Greeson qualified their stupidity by saying that if there were health problems with either Hudson's wife or the baby, it would be ok to miss; otherwise, this was a woman's job (never mind that childbirth, by induction, is a major medical procedure) and no reason for Hudson to be present.* Baseball also is steeped (some say stuck) in history. Koufax sat for Yom Kippur in 1965 and Greenberg sat in 1934 (and other years), so it would be consistent with that history for Bregman or Fried or Pederson to sit in 2019. But no one in 1965 or 1934 missed games to be with their wives during childbirth, so it is unique and new and unprecedented and scary and immasculating for anyone to do it in 2019.

[*] No one offered even a nod to a different need--taking care of his two extant children while their mother is in the hospital.

On the other hand, Greeson's touchstone was that Hudson's $ 5.5 million annual salary imposed an obligation to team uber alles. There is no reason to believe that obligation supersedes a player's commitment to his wife and children but not his commitment to his religious values. Or I would love to see Greeson and others twiste themselves into knots distinguishing the two. That we are living in a time of increased anti-Semitism does not help, especially on Twitter.

None of the current Jewish Major Leaguers appears especially observant (neither were Greenberg or Koufax) and none has shown an inclination to sit on the holy days. That is, of course, their choice. But if one did, I increasingly wonder what the public reaction would be.

Posted by Howard Wasserman on October 13, 2019 at 12:15 PM in Howard Wasserman, Sports | Permalink | Comments (6)

Friday, October 11, 2019

The President’s Tax Returns

I highly recommend reading today DC Circuit opinions. The panel opinion by Judge Tatel and the dissent by Judge Rao are both excellent and turn, I think, largely on the standard of review that should be applied to a congressional subpoena of the President or other officials subject to impeachment. 

That said, the most relevant question now is whether the DC Circuit decides to take the case en banc. If it does, then it’s hard to see how the issue can be resolved before the presidential election. 

Posted by Gerard Magliocca on October 11, 2019 at 07:59 PM | Permalink | Comments (8)

Talking Infield Fly Rule in Pittsburgh

For those of you in the Pittsburgh area: I will be at White Whale Bookstore in Pittsburgh on Saturday evening, discussing my book on the infield fly rule  The event was organized in cooperation with the Sports & Entertainment Law Societies at Pitt and Duquesne. It runs 7-9 p.m. Earlier Saturday afternoon, I will speak at the fall meeting of the Forbes Field Chapter of the Society for American Baseball Research.

If you are in the area, please join us.

Posted by Howard Wasserman on October 11, 2019 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)

Sports and Speech

I am watching the NBA/China controversy play out, as it has evolved from a simple tweet into a full-blown illustration of the role of speech within sports. From a free-speech (not to be confused with First Amendment, because I doubt there is state action to be found here, except by China) standpoint, the NBA and its teams have done everything wrong. From Commissioner Adam Silver trying to have it both ways ("we respect free speech, but what Morey did was wrong"), to teams removing fans from arenas, to a team PR person cutting off media questioning of players. The NBA apologized for the last one and said the team should not do that. But if the league is going through these contortions to cut-off speech, it should be no surprise that teams would follow suit in their own clumsy ways.

The interesting question is how far into the regular season this bleeds. China may form a unique chapter in the book on the subject of sport-and-speech I someday hope to write.

Posted by Howard Wasserman on October 11, 2019 at 07:51 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, October 10, 2019

Mrs. Felix Frankfurter

I was doing some research for my biography of Justice Washington when I came across the obituary of Marion Denman Frankfurter, the widow of Justice Frankfurter. The obituary appeared in The New York Times in 1975. To show you how much social mores have changed, here was the title of her obituary:

"Mrs. Felix Frankfurter is Dead; High Court Justice's Widow, 84." 

The first line of the obit was: "Mrs. Felix Frankfurter, widow of the Supreme Court Justice, died a nursing home here Sunday at the age of 84. She had been an invalid for more than 20 years." The rest of the obituary, which was eight paragraphs long, continued to refer to her as "Mrs. Frankfurter." Only one time in her own obituary did the Times use her first name, calling her "[t]he former Marion A. Denman."

Posted by Gerard Magliocca on October 10, 2019 at 08:26 PM | Permalink | Comments (0)

Playing on Yom Kippur

Journalist Yair Rosenberg beat me to this, but: Three teams in MLB's post-season have a Jewish player, each Jewish player played either Tuesday night or Wednesday, and each team lost. Alex Bregman of the Astros played on Tuesday night and the Astros lost Game to even the series. Max Fried of the Braves pitched on Wednesday and gave up four runs in an inning-and-change as the Braves lost Game 5 and the series. Joc Pederson of the Dodgers played Wednesday evening in the Dodgers loss of Game 5 and the series.

So is the lesson do not play on Yom Kippur? It may not help. The Dodgers famously lost Game 1 of the 1965 World Series as Koufax sat, with Don Drysdale getting shelled and someone (stories vary as to who) joking that Dodgers manager Walter Alston wished Drysdale were Jewish.

One interesting question: In the era in which all post-season games are at night, what does it mean to play "on Yom Kippur"? Bregman played on Kol Nidre. But many (most) non-Jewish fans probably are not aware that the holy day begins at sundown; so had Bregman not played on Tuesday evening "because it is Yom Kipper," many people might have been confused. On the other hand, the Dodgers game began at 6:45 PDT, past the time that many Jews had broken their fasts (my Reform temple's break fast was at 6:30), so he was not playing on Yom Kippur, which also might have confused people.

Meanwhile, the Astros and Rays play Game 5 tonight. If the Astros lose, it will be our first all-Goyishe LCS and World Series in several years. The new is not all bad; win or lose, Bregman might win American League MVP, making him the fourth Jewish player to win an MVP (joining Greenberg, Koufax, and Al Rosen).

Update: The Phillies fired manager Gabe Kapler. Well, we ask who shall perish by fire.

[Further Update: The Astros won, with Bregman breaking the game open with a 2-run double in the first.]

Posted by Howard Wasserman on October 10, 2019 at 05:09 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Surprising, Disturbing and Encouraging Things We Learned Researching Law Jobs

The following is by Andrew McClurg (Memphis and my former FIU colleague), Christine Nero Coughlin (Wake Forest), and Nancy Levit (UMKC) and is sponsored by West Academic.

As seasoned law professors, we thought we had a good handle on legal careers and the legal job market. We were wrong. In researching and interviewing more than 150 lawyers for our new book Law Jobs: The Complete Guide (West Academic Publishing 2019), we discovered we didn’t know nearly as much as we thought. For this post, we asked ourselves a three-part question: “What was the most surprising, disturbing, and encouraging thing you learned from this book project?”

McClurg: My biggest “surprise” was something I already knew, but had never taken time to really think about, which is how few law students do any serious career-planning at all. Too many students simply resign themselves to taking whatever job comes along. Whose fault is that? Partly the job market. It’s not as easy to find quality entry-level jobs as it was in the good old days. Partly legal education. Not many schools incorporate career-planning into their curriculums. But ultimately it’s up to students to know themselves—their skillsets, personality types, and true aspirations for long-term happiness. Only with that understanding will they be in a position to find the best job fit.

We learned quite a few disturbing things, but one that flies under the radar is the rapid increase in “alternative staffing” arrangements, a benign-sounding term for cutting permanent associate positions in favor of contract lawyers, half-priced staff attorneys, and paraprofessionals. An Altman Weil survey asked 386 large firms to rate twenty new-era performance strategies in terms of their effectiveness for improving profitability. Four of the top five choices involved alternative staffing models. Half of the firms said that the increased use of contract lawyers was their top alternative staffing strategy and also the most effective one.

An encouraging sign is that employment rates continue to rise, to nearly 90% for the graduating Class of 2018 (ten months after graduation), but that’s somewhat misleading because NALP has attributed the increases largely to smaller graduating class sizes over the past several years. For the fifth year in a row, the number of actual jobs went down or stayed flat in every sector except Biglaw. This is worrisome because many schools are increasing enrollment, in part for economic reasons after the lean, down years. Will the job market support these larger classes when they graduate?

Coughlin: What surprised me is how important the majority of lawyers consider their role as “counselors at law.” I was humbled by the stories we heard about the lengths attorneys go—not only to ensure their legal advice is tailored in a manner best for that client—but in ways that consider the client as a whole person. A factor that continues to disturb me is the lack of diversity within the profession. We attempted to give diversity data for each career, where available, but also to explore some of the barriers to diversity in the profession.

While there is room for improvement, law school classrooms are more diverse than ever in terms of gender, race, ethnicity, and sexual orientation. This is a positive step. Studies reflect that increasing diversity makes the classroom more dynamic and positively adds to the learning experience. Unfortunately, the data also reflects that these increases in diversity do not always carry over to the legal profession. Indeed, in a few areas, such as the appointment of federal judges, we may be moving backwards. Real efforts are being made to enhance diversity in the profession, but there are still too many barriers that seem to clog the pipeline between legal education and the practice of law. One area that needs more study is sexual orientation. While society has become far more accepting of sexual orientation, the limited data available shows a wide disparity between the percentage of LGBTQ individuals in the population and the profession.

The most encouraging factor to me was how important today’s lawyers consider the development of “soft skills,” such as communication, time management, problem-solving, empathy, creativity, etc., to having a successful career. I believe there is a correlation between honing these skills and feeling fulfilled in your legal career.

Levit: What surprised me most was the extraordinary array of jobs that people can do with a law degree, ranging from art law and animal law to cybersecurity and gaming law. Hearing the stories of how people developed their niche specialties was fascinating, including jobs people developed by merging their law degrees with a prior passion or expertise, such as in technology. People think about technology as usurping jobs, which is happening to some degree, but specialties are also developing that capitalize on technology.
For each career we cover, we asked attorneys in the field what law students can do to position themselves for a job, what opportunities for advancement exist, and what a typical day is like for each of them. We hope their personal stories and advice will give readers a much richer picture of what different jobs in law entail—and how to get them.

What was disturbing were the number of people who, early in their careers, sought high-paying positions, for reasons of prestige or to pay off loans, and sacrificed a significant amount of time and life satisfaction until they moved toward areas that interested them. The attorneys we surveyed were very candid about the pros and cons of different jobs. Their collective advice was quite clear: don’t take a job for either marquee value or for money.

It was encouraging to see how many (really, almost all) of the lawyers we interviewed expressed a real interest in mentoring newly minted lawyers. There is such a supportive community of practicing attorneys ready to welcome new graduates.

Posted by Howard Wasserman on October 10, 2019 at 09:31 AM in Sponsored Announcements | Permalink | Comments (0)

A Tale of Two Clarity Doctrines

Many controversial legal doctrines are concerned with clarity, but they are not all treated the same way. At the moment, perhaps the most interesting pairing involves qualified immunity and Chevron. Under the doctrine of qualified immunity, police and other government officers may be held personally liable for damages only if they transgressed “clearly established law.” And, under Chevron, administrative agencies have leeway when interpreting statutes, unless “the intent of Congress is clear.” One of these standards asks about law and the other about intent, but both try to get at what is legally clear—and so seem similar.

In practice, however, the Supreme Court treats these two doctrines quite differently. Qualified immunity has morphed into a seemingly insurmountable barrier to damages, with the Court routinely enforcing the “clearly established law” requirement through summary reversals, often unanimously. By contrast, Court majorities have long been prepared to find that agencies have defied clear statutory directives, and the Justices don’t typically enforce Chevron via summary relief. In fact, recent decisions have so diluted and pockmarked Chevron deference that some justices have wondered if the case has been silently overruled. Legal clarity thus seems to have shrunk almost to the vanishing point for qualified immunity, even as it remains substantial, and growing, in connection with Chevron.

Further, a number of justices have found the very idea of legal clarity to be problematic in the context of Chevron and related doctrines, but not in the context of qualified immunity. To wit, then-Judge Brett Kavanaugh wrote an important article arguing that Chevron’s clarity standard is vacuous; and, last summer, four justices cited Kavanaugh’s paper in leveling a similar charge against the clarity standard underlying Auer deference. Even Justice Elena Kagan, no Chevron nihilist, has noted that different justices apply Chevron differently. By contrast, the qualified immunity standard is generally viewed as high, but not amorphous.

How should we account for the discrepancies between qualified immunity and Chevron? I suggest part of the answer in a just-published article entitled Clarity Doctrines. While qualified immunity and Chevron have similarly worded tests for clarity, they adopt dissimilar vantage points. Qualified immunity assesses legal clarity from the perspective of a stylized officer in field. By contrast, Chevron adopts the perspective of the deciding court.

This perspectival difference stems from the doctrines’ different purposes. Qualified immunity aims to accommodate the legal challenges faced by inexpert officials who struggle to understand the law. The doctrine’s focus is thus on legal prediction. Chevron, on the other hand, is often viewed as an attempt to honor legislatively implied delegations. Because Congress’s intent is the lodestar, Chevron cares about legal certainty.

Given their different purposes and perspectives, these two doctrines not only started in different places, but also set out in different directions. Qualified immunity’s focus on predictability made it easy, even natural, for courts to ratchet up the standard for clarity ever higher, so as to accommodate—and respect—legally inexpert officials. By contrast, Chevron’s emphasis on certainty has challenged the justices to draw a fine line between their own beliefs about the law and their own confident beliefs—a point that Justice Stephen Breyer presciently made decades ago. These opposed doctrinal tendencies have compounded over time, yielding problems that are almost mirror-images of one another: one doctrine that demands nearly perfect clarity, and another that blurs clarity with mere correctness.

Once we see the difference between clarity-as-prediction and clarity-as-certainty, a host of potential reforms present themselves. Most obviously, the Court might inject greater attention to certainty into prediction-based doctrines, and greater attention to predictability into certainty-based doctrines. To give just one example, the Court might hold that qualified immunity is generally available, or available in run-of-the-mill cases, only if the deciding court is at least somewhat unsure of the correct answer. I raise that and other possibilities in my article and hope to say more about them in future work.

Some readers may be drawn toward a simpler and more cynical account why qualified immunity and Chevron differ. For instance, the Court’s relatively conservative majority might like to insulate police from damages while invalidating federal regulation. Thus, qualified immunity grows stronger while Chevron withers. That account has something to it. Doctrinal tendencies are not self-executing or inevitable. And judicial ideology does help explain the design of these doctrines, as well as their implementation.

But the cynical picture is still too simple. It misses that many criticisms of these two doctrines are cross-ideological, longstanding, and intensifying. It omits how the doctrines’ initial designs facilitated later ideological exploitation. And it fails to see, perhaps even dismisses, valuable modes of doctrinal reform and recalibration. These two doctrines may have been molded by ideological currents, but they also help to direct those same currents.

Posted by Richard M. Re on October 10, 2019 at 08:35 AM | Permalink | Comments (6)

Wednesday, October 09, 2019

Not A Constitutional Crisis Yet

The claim that we are in a constitutional crisis is as common as it is incorrect. The fact that an impeachment inquiry is underway is not a crisis. The Constitution expressly provides for impeachment. The fact that the President is not cooperating with the impeachment inquiry is not a crisis. He is not required to cooperate. Richard Nixon did not cooperate and was, in part, subjected to an Article of impeachment by the House Judiciary Committee for that.

The real constitutional crisis will come next year if the President loses the election and refuses to leave office because he says he won. (And the deep state or the bogeyman or the Loch Ness Monster sabotaged the vote count against him.). Then we have a problem. Until then, we merely have politics. 

Posted by Gerard Magliocca on October 9, 2019 at 08:12 PM | Permalink | Comments (8)

Foucault and the CCP's social-credit scheme

I highly recommend this book(s) review, by John Lancaster, in the London Review of Books, called "Document Number Nine."  Among other things, it discusses the striking developments in AI/machine learning and the ways that the CCP dictatorship is using them for policing, surveillance, rewards, and punishment.  Along the way, though, there was this, which echoed some themes I've been presenting, in my first-year Criminal Law course, when we talk about "Big Data" and Predictive Policing:

At the moment, the main impacts of people’s social credit are on activities such as travel: people with bad social credit can’t fly, can’t book high-speed train tickets or sleeper berths; they have slower internet access and can’t book fancy hotels or restaurants. It isn’t difficult to project a future in which these sanctions spread to every area of life. The China-wide version of social credit is scheduled to go live in 2020. The ultimate goal is to make people internalise their sense of the state: to make people self-censor, self-monitor, self-supervise. Strittmatter quotes Discipline and Punish: ‘He who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays both roles; he becomes the principle of his own subjection.’ The Chinese version of social credit is the closest thing we’ve ever seen to Foucault’s system in action at a national level.

And this:

Given all this, it is frequently the case that outsiders are surprised by the apparent freedom of the Chinese internet. People do feel able to complain, especially about pollution and food scandals. As Strittmatter puts it, ‘a wide range of competing ideologies continues to circulate on the Chinese internet, despite the blows struck by the censors: Maoists, the New Left, patriots, fanatical nationalists, traditionalists, humanists, liberals, democrats, neoliberals, fans of the USA and various others are launching debates on forums.’ The ultimate goal of this apparatus is to make people internalise the controls, to develop limits to their curiosity and appetite for non-party information. Unfortunately, there is evidence that this approach works: Chinese internet users are measurably less likely to use technology designed to circumvent censorship and access overseas sources of information than they used to be.

A new chapter, perhaps, in a revised version of Andrew Ferguson's book?

Posted by Rick Garnett on October 9, 2019 at 10:37 AM in Rick Garnett | Permalink | Comments (2)

Tuesday, October 08, 2019

Impeaching Civil Officers

The White House decision to stonewall the impeachment inquiry is not surprising. The House of Representatives could, of course, make that obstruction a separate article of impeachment, as was done with President Nixon. But that probably does not accomplish much. 

There is another path forward though. Other members of the Executive Branch can be impeached. Take Ambassador Sondland, for example. He is not testifying to the House per the direction of the President. If he is impeached, though, he might have to consider to whom his loyalty is owed. The same could be true for others. This is no different than the standard prosecutorial practice of seeking to flip witnesses by threatening them with jail time if they do not cooperate. 

Posted by Gerard Magliocca on October 8, 2019 at 06:53 PM | Permalink | Comments (15)

Good Faith and Removal Authority

The DOJ has asked SCOTUS to give the President unprecedented powers to fire independent agency heads. But Jed Shugerman & I note in today’s NYT that the Constitution's presidential duty of faithful execution might empower Congress to guard against bad faith removals.
 

 

Posted by Ethan Leib on October 8, 2019 at 12:41 PM | Permalink | Comments (0)

Monday, October 07, 2019

Virginia has jurisdiction over Twitter in Nunes suit

It must be awful procedure day. In addition to whatever the Second Circuit did, a Virginia trial court denied Twitter's motion to dismiss for lack of personal jurisdiction Cong. Nunes' suit against Twitter, a Twitter user, and Devin Nunes' Cow.

The court found "general personal jurisdiction" over Twitter, based on its being registered to do business in Virginia, having a registered agent in Virginia, deriving a large amount of revenue from there, and having many users in Virginia, "sufficient minimum contacts to confer jurisdiction." Perhaps in 2005, but not since Good Year, Daimler, and BNSF did away with general jurisdiction based on a company doing a lot of business in a state and seemed to limit general jurisdiction to state of incorporation and principal place of business. The court discussed BNSF to distinguish it based on the injury occurring in the forum state, but ignored the other two cases. It also emphasized that Nunes suffered an injury in Virginia (because that is where the tweets were sent from and read), while not mentioning that locus of injury is not sufficient and Twitter did not direct any activities (not deleting the tweets) at Virginia in relation to this case. Even if knowledge of the plaintiff's location were sufficient (it is not, after Walden), Twitter's assumption would have been that Nunes was in California or Washington, D.C., not Virginia.

The court also rejected a forum non conveniens argument, because it was not clear there was an alternative forum. It was not clear there would be jurisdiction in California, even though both Nunes and Twitter are from there and the individual defendant consented to jurisdiction there. (Nunes does not want to be in California, where he must deal with its SLAPP statute).

Someone said the judge has a reputation as being pretty good. This is not his best work.

Posted by Howard Wasserman on October 7, 2019 at 06:22 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

District court abstains in Trump subpoena case (Fast Update)

The Southern District of New York abstained under Younger from a federal lawsuit by the President seeking to stop enforcement of a New York grand-jury subpoena seeking 8 years of Trump tax returns and financial records. The court abstained in a meticulous Younger analysis, then explained why the President did not enjoy immunity warranting a preliminary injunction even if it kept the case. The Younger analysis is almost certainly correct. The President's attempt to create an exceptional-circumstances exception by analogizing his immunity to double jeopardy (which some courts have held as a basis for not abstaining) was interesting, but I think properly rejected.

Given Steve's thesis that Trump and his DOJ cannot stand passing through the court of appeals, next step SCOTUS on a petition for cert before judgment?

Quick Update: The Second Circuit stayed the decision. But what did it stay and what does it mean to stay it? The district court abstaining? It makes no sense to "stay" a decision declining to hear a case. The denial of the preliminary injunction, which was arguably dicta? What does the stay of the denial of an injunction do--it can't create the injunction, which was never issued (because the district court lacked the power to issue it). What the Second Circuit wanted to "stay" is the state-court subpoena, but it has no power to do that. Ah, procedure.

Further Update: The Second Circuit order states

Appellant has filed a motion seeking an order temporarily staying enforcement of a subpoena to his accountant. Because of the unique issues raised by this appeal, IT IS HEREBY ORDERED that a temporary administrative stay is granted pending expedited review by a panel of the Court.

So the court did stay the subpoena, not the district court order. I have had some conversations with Civ Pro colleagues and the general view is this makes no sense. Administrative stays are routine  as a precursor to turning the stay to a motions panel. But there is nothing to stay here. The court cannot "stay" a dismissal of an action or the denial of an injunction. Now there are mechanisms for the court to do this, namely under the All Writs Act as in aid of the court's appellate jurisdiction. But that is not what Trump asked for (it requested a stay) and the court did not do the (I expect) more complex analysis required before issuing a writ. It seems as if the court took the usual approach to an unusual case. In the routine case, the district court enjoins enforcement of a law or reg and the court of appeals stays that injunction; here, it rotely applied that procedure in a situation that does not match.

Posted by Howard Wasserman on October 7, 2019 at 11:18 AM in Carissa Byrne Hessick, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Sunday, October 06, 2019

So glad sports are not political

Houston Rockets GM last week tweeted "Fight for Freedom. Stand with Hong Kong." This pissed off Rockets owner Tilman Fertitta, who insisted that Morey does not speak for the Rockets, which is a "non-political organization," although Fertitta regularly publicizes his support for the Bushes and President Trump. Morey's tweet caused the Chinese Basketball Association, headed by former Rocket star Yao Ming, to suspend cooperation with the Rockets following Morey's "'improper remarks regarding Hong Kong' to which it expressed its 'strong opposition.'" The NBA, trying to save its business interests, responded with the following word salad:

We recognize that the views expressed by Houston Rockets general manager Daryl Morey have deeply offended many of our friends and fans in China, which is regrettable. While Daryl has made it clear that his tweet does not represent the Rockets or the NBA, the values of the league support individuals' educating themselves and sharing their views on matters important to them. We have great respect for the history and culture of China, and hope that sports and the NBA can be used as a unifying force to bridge cultural divides and bring people together.

The ESPN story highlighted the league trumpeting the "open flow of ideas," although those words appear nowhere in the NBA statement and the reaction by the Rockets owner, the CBA, and the NBA all seem to reflect a desire to staunch the flow of ideas, since the premise of every reaction is that Morey was out of line to tweet a political opinion. Plus, in what universe is a statement in support of people protesting freedom "regrettable"? And who was "deeply offended," besides the leaders of an authoritarian state that is the target of pro-western protests?

Posted by Howard Wasserman on October 6, 2019 at 10:03 PM in First Amendment, Howard Wasserman | Permalink | Comments (8)

Federalism and Guns: Why the Democratic Party should not back a new national gun control law

The Democratic candidates are in a bidding war with each other to see who can back the toughest package of new national gun control laws. Given the justified emotions surrounding firearm fatalities and the efforts at “progressive mobilization” that are goading the candidates to evermore effusive promises of radical change, one would think that this is no time for me to dish out more of my Defensive Crouch federalism. But hear me out. There is a non-frivolous argument that, whatever their merits for whipping up Democrat primary voters, these gun proposals will be, as actual bills and laws, self-defeating. Instead, I urge a program of “gun federalism”: Get rid of centralizing preemption that strips states of power of enact their own gun policies, and protect states from each other by regulating more stringently interstate gun shipments.

Here’s the abstract theory underlying my partisan case for “gun federalism.” The party in power (the “PIP”) has to balance the benefits of pressing for a policy against the risks that such a policy will mobilize the members of the party out of power (the “POOP”). It makes no sense for the PIP to push for a law with modest benefits if that law so outrages the POOP that the PIP loses control of Congress in the midterms, sacrificing the chance to enact other laws with greater benefits. Moreover, the benefits to the PIP of any national law must be reduced by the compromises required to enact that law. One such compromise is that the national law might preempt subnational laws also favored by the PIP. Finally, the PIP should discount the benefits of a national law by the chance that it will be sabotaged by members of the POOP who control subnational governments needed to implement that law.

Judged according to this general logic, the Democrats’ gun proposals are bad bets. They pose high risks of self-defeating preemption clauses, sullen obstruction from local law enforcement, and heavy mobilization of rural gun lovers in swing states. An anti-preemption/anti-encroachment strategy for guns (explained after the jump) might provide much of the same policy benefit at a tiny fraction of the political cost.

1. Why national gun laws present high risks of preemption of state gun laws

It is a familiar point that the price of national regulation is often either simultaneous or seriatim preemption of state laws. In the case of guns, industry and consumer advocates (i.e., the NRA) will demand, as a price for their acquiescence, some preemption clause to suppress the “patchwork” of state laws. Democrats elected from purplish pro-gun states will clamor for some such protection from electoral backlash. (As I have argued elsewhere, anti-preemption canons should force the supporters of a preemption clause to be meticulously plain in defining the preemptive scope of the legislation. But SCOTUS might not be inclined to follow such a canon, so even a weak clause might end up sweeping aside a lot of state laws).

Even if the preemption clause is not contained in the gun bill as initially proposed, the amendment process can get out of hand, as the newly elected Democratic President throws policy priorities overboard to save a legislative trophy. (Think Stupak Amendment). Moreover, the preemption can come later, in tit-for-tat regulation and preemption that is the hallmark of national gun laws.

Will the preemption of state gun regulation actually end up deregulating guns more than the national rules regulate them? Hard to say in advance of an actual bill and an actual Congress. There is, however, a non-frivolous risk of such a net loss of anti-gun regulation.

2. Why labor-intensive federal gun interdiction poses a high risk of being obstructed by Red State sabotage

Suppose the new Democratic Administration manages to pass a law that preempts less regulation than it imposes. To the extent that this new national law is some sort of “labor-intensive” interdiction at point of sale, it could require the cooperation of local law enforcement. In Red States, such cooperation obviously will not be forthcoming. Whatever the merits of such uncooperative federalism in fostering democratic dissent, non-cooperation can stymie labor-intensive gun interdiction policies just as readily as it has sabotaged federal marijuana interdiction. As my colleague Jim Jacobs demonstrated seventeen years ago, the extraordinary proliferation of firearms in the United States makes interdiction (say, through buyback programs) extraordinarily difficult. If the general public and street-level bureaucracy cooperated, as they did in Australia, such a program might be effective. (Or maybe not). But they won't: The USA is far more polarized than Australia, so expect sheriffs and AGs from Red States to grandstand against the law, undermining it wherever they can.

3. What political price will be paid for the nationalization of gun policy?

Suppose the Democrats can pass some sort of national law that actually imposes more regulation than it preempts. Unless that law is a dramatically more effective measure than anyone has any right to expect, the political risk-reward ratio of the law is likely to be lousy. National gun laws are mother’s milk to GOP politicians seeking to mobilize their rural base. The Democrats’ new law will be a rallying cry at midterms in states like Wisconsin and Michigan where Democrats will be vulnerable to rural backlash. Of course, the point of winning elections (ideally) is to make policy — but one chooses one’s battles. If this new gun law is another mediocre, barely-move-the-needle-on-gun-fatalities sort of measure, then is it worth the electoral losses that will frustrate more promising policy measures?

4. Why not try anti-preemption/anti-encroachment “gun federalism” instead?

There is another way in which the Democrats could up-end the gun industry without assuming large electoral risks: Get rid of preemption, and protect anti-gun states from pro-gun states’ encroachments.

Consider, first, the potential gains of an anti-preemption strategy. The most egregious form of such preemption arguably comes from the Protection in Lawful Commerce in Arms Act of 2005 (“PLCAA”). PLCAA prohibits criminal or civil liability against gun sellers and manufacturers for injuries “resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” 15 U.S.C. §7903(5)(A). It has been a major impediment to holding gun dealers and makers liable for injuries foreseeable arising from the negligent sale of guns (frustrating, for instance, a lawsuit by NYC against gunmakers). The effects of such liability could be immense. (Think Purdue). Moreover, the preemptive effect of PLCAA might be sidestepped with a little statutory interpretation and litigation: PLCAA contains a perplexing “predicate exception” for dealers or makers who “knowingly violated a State or Federal statute applicable to the sale or marketing of [guns].” No one has been able to figure out exactly what this odd phrase means, but, if it includes violation of common-law duties codified in a state statute, then the lid is off a lot of state-law liability. (The Connecticut Supreme Court made a bit of a stir in the Sandy Hook case against gunmakers last spring by broadly construing this exception). Why not have a federal agency make a rule and seek Chevron deference for its interpretation of PLCAA? Or just press for a clarifying amendment in Congress?

The anti-preemption strategy can be supplemented by an anti-encroachment strategy: Strictly enforce limits on interstate gun shipments to prevent guns from states with lax rules from invading states with stricter rules. The so-called “Iron Pipeline” floods states like New York with guns from states like Virginia. Why not strengthen enforcement for bans on interstate gun sales to buyers that violate the laws where the gun is shipped? Amending the Communications Decency Act to limit its preemptive effect on the liability of platforms like Armslist.com would be a good place to start.

The advantage of the anti-preemption/anti-encroachment strategy is that it provides federalism as a political cover to Democratic congresspersons at political risk from pro-gun constituents. Such a congressperson can plead that they are simply letting each state go its own way. That political cover can be enhanced by loud proclamations that the proposed legislation preserves all states’ gun policies. (Imagine, for instance, “savings clauses” preserving pro-gun states’ laws from preemption or short titles like “States’ Rights to Firearms”). Just having the Democratic incumbent president publicly disclaim the more aggressive federal regulations now being proposed in favor of “gun federalism” could diminish the mobilizing power of the gun issue.

And that’s the main point of “gun federalism”: Allow the Democratic Party to be identified with a boring modus viviendi rather than an outrage-inspiring power grab. Federalism is playing defense, not offense — and playing defense keeps one’s opponents calmer. The more that rural voters see a threat to a cultural symbol, the more readily they mobilize. The more that those voters see a boring division of jurisdiction over guns that lets Texas be Texas, the more they may change the channel. No one expects these voters to vote Blue out of love for federalism. Appeals to save guns from regulation mobilize voters. But no one mobilizes for the right to ship guns out of their Red State to a Blue State or preempt laws in states where they do not live. Federalism that takes the form of anti-preemption (“let each state decide for itself!”) and anti-encroachment (“You keep your guns: Just don’t send them to my neighborhood”) might be boring enough to induce gun lovers to stay home on Election Day.

Posted by Rick Hills on October 6, 2019 at 06:53 AM | Permalink | Comments (18)