« October 2019 | Main | December 2019 »

Friday, November 29, 2019

More state action and private vendettas

I wrote awhile back about a case in which police officers took private action against a citizen (trashing his car) based on a personal vendetta resulting from a professional dispute (the citizen filed a departmental complaint about them). The Seventh Circuit found no state action in an analogous case. A citizen shouted at a police officer while he was making an arrest and criticized the officer (and perhaps threatened his family) on Facebook, prompting the officer to file a criminal complaint with a fellow officer, prompting that officer to arrest the citizen. The court held that, although the original interaction came when the officer was on the job, he acted as a private citizen in filing a criminal complaint with another officer, who then pursued those charges.

The Seventh Circuit's analysis would reject the potential claim in the earlier case. I imagine the court would say the officers acted as private citizens in trashing the guy's car and it is not enough that the dispute traces to official police conduct.

Posted by Howard Wasserman on November 29, 2019 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, November 27, 2019

JOTWELL: Azad on McAlister on unpublished dispositions

The new Courts Law essay is a guest submission from Ryan Azad (a clerk on the California Supreme Court), reviewing Megan McAlister, "Downright Indifference": Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. 1 (2019), arguing that unpublished opinions should at least explain the reasoning for the benefit of the (often pro se) litigants.

Posted by Howard Wasserman on November 27, 2019 at 10:55 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 26, 2019

Lawsky Practice Problems - On-Line Tax Teaching and Learning Tool

I've put together an on-line teaching and learning tool for introductory tax courses at

https://www.lawskypracticeproblems.org/

Some questions and answers follow after the break.


Q: What does this website do?
A: It generates multiple-choice federal individual income tax practice problems. The problems are a random selection of facts, names, and randomly (but thoughtfully) generated numbers about a range of basic tax topics. You can pick a particular topic, or you can have the website to pick both  a topic and problem at random.

Q: Are the answers also random?
A: No. The multiple-choice answers are based on mistakes that students commonly make.

Q: What happens once the student picks an answer?
A: If the student picks a wrong answer, the website usually provides a substantive hint about what the student did wrong. A right answer usually returns a full explanation. In many of the explanations of answers both right and wrong, there is a link to the relevant code section. (There is usually a single answer that is randomly generated--if a student selects that, the feedback is the crushing, "This number was randomly generated.")

Q: What topics are covered?
A: Among others, restricted property as compensation; options as compensation; the principal residence sale exclusion; depreciation; recapture; like-kind exchanges; installment sales; and more. You can see the full current list, with information about what’s covered within each topic, here.

Q: Do the questions repeat?
A: Eventually--there are not an infinite number of problems--but there are a lot of different problems. Setting aside the numbers' changing, which doesn't necessarily provide conceptually different questions, different types of problems toggle a bunch of different facts and relationships between the numbers, all of which change the problem conceptually. For example, for like-kind exchanges, there are five different facts than can toggle (asset is personal use or business use, whether there is debt relief and whom that debt relief favors (someone who provides boot or not), etc.) and four different questions. For installment sales there are even more toggles; for unrestricted property as compensation, many fewer. Suffice it to say that so much changes that the most efficient way to solve these problems is to learn the law.

Q: What is this for?
A: Whatever you want. A professor can use to generate problems for teaching or you give students direct access to it; students can use it to practice for their tax classes--whatever works for you. The website is free and is made available under a Creative Commons Attribution-Share Alike 4.0 license, which means, roughly, that you can share this or use it for any purpose, just so long as you give appropriate credit, distribute the material so other people can use it under the same terms, and don't create any additional restrictions.

Q: Is it just problems?
A: No. There is also a page with rate graphs and a rate calculator (and of course some pages that are more on the administrative side—a list of all topics covered, for example).

Q: Does the website take into account inflation adjustments?
A: Yes. Problems, rate graphs, and rate calculations take into account inflation adjustments for 2019 and will, for the foreseeable future, update with the current year’s inflation adjustments.

Q: I found a mistake!
A: Yes! This website is in its early stages, so there are certainly errors. When you find an error, please let me know so I can correct it.

Q: I teach topic X, and I think it would really lend itself to problems like those on the website.
A: Great. Send it my way -- I can't make any guarantees, but I can give it a shot.

Q: This would work for tax classes other than basic tax.
A: Yes indeed! I currently plan to add a page that similarly generates partnership tax problems.

Q: I have another suggestion.
A: Awesome--please send it my way. I very much welcome any suggestions or thoughts.

Posted by Sarah Lawsky on November 26, 2019 at 05:18 PM in Tax, Teaching Law | Permalink | Comments (3)

Monday, November 25, 2019

Organizing Fed Courts

My Fed Courts class ended this week. For the second straight year, I ran out of time and was unable to reach the last section, on  Congressional Control over the Federal Courts; this covers Klein and Plaut, as well as the fun theoretical stuff on jurisdiction-stripping, court-packing, etc.

After the jump is the broad strokes of my syllabus. I would welcome thoughts of what I can or should cut to give me the two days I would need to include this final section. Or, alternatively, is the congressional control stuff the least important and it falling by the wayside, while unfortunate, is less problematic than if I skipped something else.

By way of background, I teach Fed Courts as (in the words of one former student) "the love child of Con Law and Civ Pro." It is a federal-court litigation course, interspersed with some constitutional and judicial theory.

Introduction: Broad strokes of the text of Art. III and the broad structure of the federal judicial and judicial decisionmaking.

SCOTUS Jurisdiction: Original; § 1257; § 1254

Ct App Jurisdiction

District Court Jurisdiction: Federal Question (including Grable); Complete Preemption; ATS

Non-Article III Jurisdiction: Magistrates, Bankruptcy, CAAF

11th Am

Justiciability: Standing/Ripeness/Mootness

Abstention:

I added Non-Article III a few years ago. It takes about 1-1 1/2 days, so it could go and leave most of the additional time I need. But I thought (and think) is is too important, given how much more decisionmaking is done by non-Article III actors. I also used to spend less time on 11th Amendment, which I cover in Civil Rights. But I have no guarantee students will take that course and I believed they needed fuller coverage.

Just to clarify: We get to the basics of congressional control--the difference between the source of SCOTUS power as opposed to lower-court power, for example. We do not get to things like the Hart-Wechsler debate, the stripping debates of the 1980s, court-packing, and the various recent  proposals to change SCOTUS structure--in other words, the fun, theoretical, and not likely to happen stuff.

Thoughts?

Posted by Howard Wasserman on November 25, 2019 at 11:44 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Eric Rasmusen, IU, and the First Amendment

For those who missed it, Indiana-Bloomington Provost (and law professor) Lauren Robel issued a public statement excoriating business professor Eric Rasmusen's publicly expressed views about women, racial groups, LGBTQ people, and others, while insisting that the First Amendment prevented the school from firing the tenured professor. The school did prohibit Rasmusen from teaching single-section required courses and imposed special blind-grading obligations. Rasmusen has responded. Many, such as Gregory Magarian (Wash. U.) on the blog Lawyers, Guns, and Money saw this as counter-speech in action. Brian Leiter doubts that a university administrator should comment on a faculty member's speech--he argues Robel should have stopped at "the First Amendment protects this speech, Rasmusen does not speak for IU, and we are monitoring to ensure compliance with anti-discrimination laws. Josh Blackman questions whether there is a First Amendment difference between firing a professor and hampering his teaching by reducing the size of his classes--either is a sanction imposed because of his speech.

On a different note, the Magarian interview is interesting as a wide-ranging discussion of where the First Amendment is trending. Note particular his discussion of Citizens United as not quite the bogeyman everyone says.

Posted by Howard Wasserman on November 25, 2019 at 10:59 AM in First Amendment, Howard Wasserman | Permalink | Comments (2)

The Role of Individualization in Kansas v. Glover

Earlier this month, the Supreme Court heard oral argument in Kansas v. Glover, a case about when police have reasonable suspicion to stop vehicles that are owned (but not necessarily being driven) by people with suspended licenses. I want to draw attention to an underappreciated strand of argument in this case—namely, the role of “individualized” or “particularized” evidence. In short, the justices and their commentators have focused on whether police had a reliable or testable basis for their suspicion; but a lack of individualized evidence may actually be the more serious and intractable problem.

Most of the discussion around Glover has had to do with whether the police suspicion had a sufficiently reliable and testable basis in fact. For example, the justices quizzed the parties—especially Sarah Harrington, Glover’s superb counsel—as to whether rigorously collected statistics or an officer’s personal experiences would be a sufficient basis for suspicion, if that evidence had been entered into the record. And the justices also discussed whether requiring those types of evidence would have any practical effect. Perhaps so, on the theory that officers could be cross-examined on their past stops, or a defendant might try to marshal various forms of public data to counter the police’s asserted figures.

But the entire debate about statistics versus testimony—and, even more generally, about whether the police had a reliable or testable basis for their suspicion—does not speak to the potential need for evidence to be individualized. Whether founded on studies or testimony or something else, the government’s inference of suspicion would still depend entirely on two claims: (i) the suspect’s car was registered to someone with a suspended license; and (ii) such cars are often being driven by their registered owners. This inference is just as generalized as any number of others that are thought to be impermissible.

To see this point, consider a dorm room hypothetical developed by Professors Orin Kerr and Jane Bambauer (here and here). Imagine that police sought a warrant to search a particular college dorm room on the grounds that most dorm rooms contain illegal narcotics. If the police are correct that they have identified a dorm room and that most such rooms contain contraband, would they have a lawful basis to obtain a warrant and enter? Note that this question arises whether or not the police ground their inference in statistics or testimony. Either way, we have to separately consider whether the evidence is individualized. Is it?

No. As I have argued in Fourth Amendment Fairness, “individualized” evidence is best understood as evidence that is sensitive to whether someone—some individual—has broken the law. Imagine that the target of the dorm search acted lawfully and so possessed no narcotics in her room. Would the police’s basis for suspicion then change? Not at all. After all, the suspect would presumably still be a dorm resident, and the fact that most dorm rooms contain narcotics would also be unaffected. In this key respect, the dorm search hypo is different from, say, a search based on a reliable eyewitness. Of course, even reliable eyewitnesses can be wrong. But the eyewitness is much less likely to identify the dorm resident as possessing narcotics in her room if the resident in fact avoids doing so.

Now turn back to Glover. Imagine that the government had entered reliable information into the record proving beyond any doubt that most moving cars registered to people with suspended licenses are in fact being driven by their registered owners. Even so, we would still have to ask whether that evidence is sufficiently individualized. The imagined car search, after all, can be viewed as a factual variation on the dorm search hypo. Much as people often have to live in dorms, many people also have to drive the vehicles of family and friends whose licenses are suspended—a claim forcefully made in Glover’s brief. And if police can get reliable evidence on narcotics, ditto for drivers with suspended licenses. So, if the dorm search hypo would pose an individualization problem, the same is true of the car stop in Glover.

This lack of individualization got some attention during the oral argument, especially from Justice Elena Kagan. At one point, for example, she explored whether a “statistic” would “alone” be sufficient to support reasonable suspicion:

JUSTICE KAGAN: … [S]uppose we just had a statistic that said, you know, . . . that 30 percent of drivers are likely to do this [illegal act]. Would you say that, you know, that alone is enough, if it's just statistical?

And then:

JUSTICE KAGAN: … [S]uppose that a particular police department actually did a kind of survey or, you know, a … study … and found that actually 50 percent of teenagers do not carry their driver's license with them at all times. … So now it’s like common sense that if you see a teenager, she won't be carrying her driver’s license with her. Does that -- does that give the police officer the ability to stop every teenager that he sees?

Later, however, Kagan seemed to express an opposing view—namely, the idea that statistics become “particularized” when linked to relevant individuals:

HUSTON: The difference, Your Honor, is that you need a reason—you need—the officer needs something that identifies the particularized suspicion that this driver is committing a crime.

JUSTICE KAGAN: There is the particularized suspicion: Look, she's a teenager.

Apart from those pointed exchanges, most of the debate about the case—both on and off the Court—has focused on so-called “hit rates.” This evocative phrase refers to the odds that police will “hit” criminality when they conduct a particular stop or search. That information is surely important, and commentators like Professor Andrew Crespo are right to insist that the Court must approach that issue in a careful way. But the hit rate adopts the perspective of the officer or, more broadly, of the state. In other words, the hit rate tells us a great deal about whether the government is successfully meeting its law-enforcement goals.

Attention to individualization points toward another variable to consider—what we might call the “being-hit rate.” By that phrase, I mean the odds that a law-abiding person will be searched. This additional metric has the virtue of adopting the perspective of the individuals who hold Fourth Amendment rights. When someone experiences a high being-hit rate, she can plausibly claim to have suffered a greater infringement of her Fourth Amendment rights. And, critically, an individual’s being-hit rate is linked to whether the government’s evidence is individualized. Again, individualized evidence is evidence that is sensitive to whether someone—some individual—has broken the law. When the individualization requirement is met, individuals reduce their odds of being searched by following the law.

So the Court and its commentators need to keep the issue of individualization in view. It isn’t enough to figure out how often stops like the one in Glover will catch offenders, whether through statistics or testimony. In addition, it is critical to consider how a rule in favor of such stops will affect Fourth Amendment rights-holders. If Glover is right that many individuals have to drive cars owned by people with suspended licenses, then driving such a car is like living in a dorm, or (to use Kagan’s example) like being a teenager. Unless greater individualization is required, people who are lawfully going about their lives—such as by residing in a dorm, being a teenager, or driving a family member’s car—will face a heightened risk of being “hit” with a burdensome search. The Fourth Amendment should care about that.

This line of thought helps explain why Fourth Amendment case law usually disfavors intrusive steps, including car stops, that lack individualization. Yes, investigation based on generalized evidence can still be permissible, such as when there is an exigency or when the intrusion is negligible. In those cases, rights-holders who benefit from police investigation have a strong interest in demanding that the investigation takes place. But those scenarios, while important, are exceptional. The doctrine’s preference for individualization suggests that car stops like the one in Glover should be impermissible, provided there is no exigency.

If we would not stand for residential searches based on generalized crime statistics (even if the statistics accurately show a high likelihood of finding crime), then we should at least pause before approving similarly generalized car stops.

Posted by Richard M. Re on November 25, 2019 at 08:30 AM | Permalink | Comments (1)

Sunday, November 24, 2019

A pleading question

The Comcast argument from two weeks ago featured competing hypotheticals designed to show proximate cause under § 1981, but instead showed the problem of pleading oneself out of court. Following some comments on my prior post, I have been thinking about both (which I would like to use in Civ Pro next semester).

Hypo # 1: African-American not hired by law firm; receives letter saying "You're African American and we don't hire non-lawyers."

Option # 1: Complaint quotes the "You're African-American" language of letter but nothing else. I think the Complaint passes muster, although the defendant may be able to offer the full letter on a 12(b)(6), which would change the analysis.

Option # 2: Complaint quotes entire letter (or attaches letter as written instrument). Complaint fails unless plaintiff alleges fact rebutting the non-lawyer piece of the letter. We would say P has pleaded himself out of court, but including a fact that undermines his claim.

Hypo # 2: Hotel refuses to rent room to African-American, telling him "We don't rent to African-Americans and we are out of rooms."

Option # 1: Complaint only quotes the first statement. Again, I think the complaint passes muster.

Option # 2: Complaint quotes both statements. I think the Complaint would fail for the same reason as the first case. A commenter suggests otherwise, because it may be that the hotel was lying about there being no rooms. But must the plaintiff allege a fact rebutting the statement that there are no rooms, at least on information and belief, to show that it might be false? Just as the lawyer-applicant must allege facts rebutting non-lawyerness as the basis for not hiring? If the "reasonable alternative explanation" language of Iqbal does any work, this would be it--the complaint provided the alternative explanation. Or does drawing all reasonable inferences for the plaintiff allow for the inference that the hotel is lying about the adverse fact?

Posted by Howard Wasserman on November 24, 2019 at 11:15 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, November 23, 2019

Protesting Harvard-Yale (Updated)

Yale_Harvard_Protests-e1574537307629The second half of the Harvard-Yale Game was delayed for 48 minutes when students from both schools rushed the field to stage a climate-change protest calling for both institutions to divest from oil, gas, and other energy investments. Many protesters eventually left the field, while the last stragglers were escorted by police; I do not know how many students were arrested. [Update: This report says 42 students were charged with misdemeanor disorderly conduct]

Just to be clear (and putting state action to one side);

• The students should have been untouchable had the protest remained in the stands. While climate change has nothing to do with football, chanting and displaying signs about divestment is not inconsistent with cheering and displaying signs at a football game.

• The students were properly subject to arrest (reports suggest some wanted to be arrested). While engaging in expressive behavior, they did so in a place they had no right to be. This is civil disobedience--breaking the law, and accepting the consequences, to draw attention to the cause and the protest.

• This demonstrates why politics and speech are inseparable from sports. No one would be talking about a few hundred Ivy League students protesting climate change in the middle of campus. The protest now is a national story. And it is part of the story of a great football game--Yale won 50-43 in Double-OT, staging a late-game comeback, clinching the victory in darkness (no lights at the Yale Bowl), and claiming a share of the Ivy League title.

Posted by Howard Wasserman on November 23, 2019 at 04:45 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, November 21, 2019

Bribery, Impeachment, and the Common Law

Earlier this morning I published an online essay with The Atlantic about how the crime of bribery fits into impeachment. The editors at The Atlantic made me take out a lot of nerdy stuff about legal treatises.  And while I totally understand why that level of detail probably isn’t appropriate for a general audience, I wanted to offer that level of detail to the other law professors and lawyers out there who care about how we ought to understand bribery as it relates to impeachment.

The Constitution specifically lists bribery as grounds for impeachment.  Article II, section 4 says: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  I’m intrigued by the use of the word “shall” in that Clause.  (Does that mean it's mandatory rather than a matter of discretion?!)  But I’m a criminal law professor, not a constitutional law expert, and so I want to try and stay within my area of expertise.

Because there is a credible argument that President Trump committed bribery when he withheld military aid to Ukraine in return for announcements of political investigations, the public obviously cares what the word bribery means in the Constitution.  I’ve seen a number of people offer opinions on the issue. And while I do not think that there are clear cut answers here, I think that the opinions that are being bandied about are insufficiently nuanced, if not wrong.  So here is my more nuanced take.

First, let’s be crystal clear that current federal bribery statute does not tell us what the word bribery means in the Constitution itself.  The current federal bribery statute, 18 U.S.C. 201, wasn’t enacted until well after the Constitution was adopted. That doesn’t mean that whether Trump committed statutory bribery is irrelevant to impeachment. It could most certainly establish that Trump committed a high crime or misdemeanor.  But it doesn’t tell us whether he committed constitutional bribery.

So what is constitutional bribery?  Ben Wittes said on Twitter a couple of days ago that the House of Representatives gets to define the term.

I have a ton of respect for Ben. But I don’t think that, as a legal matter, the House gets to adopt its own definition of bribery.  To be clear, Ben’s point may be that the House has the de facto power to define bribery. But if we are talking about what the Constitution *means*, then we should care about legal definition, not de facto power.  And it makes me a little queasy every time that I hear people say that impeachment is a purely political issue.  Maybe it is as a practical matter.  But as a law professor, I’m unwilling to accept that law has no role to play in Constitutional moments, such as impeachment.

So what does bribery mean in the Constitution as a legal matter?  After all, the Constitution specifically defines the only other crime that it lists as grounds for impeachment—treason.  Yet it doesn’t define bribery. 

Even though it isn’t defined in the Constitution, we still know what the people who wrote and ratified the Constitution meant by the word bribery.  As Justice Story said in his influential Commentaries on the Constitution, they meant the common law crime of bribery.  “For the definition of treason, resort may be had to the Constitution itself; but for the definition of bribery, resort is naturally and necessarily had to the common law; for that, as the common basis of our jurisprudences, can along furnish the proper exposition of the nature and limits of this offence.” 

So what was the common law crime of bribery at the time the Constitution was written?  In particular, does it include a President who solicits a bribe from a foreign official but never receives it?  Well, that’s complicated.  And, unfortunately, there are a few takes floating around out there right now suggesting that it is cut and dry.  It is not.

Here is the Wall Street Journal saying that the President’s behavior doesn’t qualify as common law bribery.  Apparently the folks at WSJ who wrote this relied on a “friend” to help them with the historical argument. But I don’t think that friend did them any favors.  More important, because these authors apparently aren’t lawyers, there are some real ambiguities in the two arguments they make.

One of their arguments is that this isn’t bribery unless President Trump sought something “specific and tangible” like money.  It’s a little unclear if the WSJ editors are making a statutory argument here, or if they are making a common law argument.  As a matter of statutory law, they are definitely wrong.  As Randall Eliason has explained the “thing of value” that the official tries to obtain in a bribery case is very broad:

It encompasses anything of subjective value to the official that would have the potential to influence his or her behavior. Offers of future contracts or employment, sexual favors, companionship, and other intangibles all have been held to be things of value for purposes of the bribery statute. Publicly-announced investigations that would benefit Trump politically would certainly qualify. Trump’s actions in seeking the investigations, both personally and through intermediaries such as his lawyer Rudy Giuliani, amply demonstrate how personally valuable he thought Ukraine’s actions could be.

As a question of common law, the WSJ doesn’t provide any historical support for the idea that bribery has to involve something “specific and tangible” like money.  In fact, the historical sources that the WSJ editors do provide—Blackstone and Jacob’s Law Dictionary—seem to undercut their argument.  Both of those sources talk about “any undue reward.”  The most obvious reading of that phrase is much broader than just money.

The Wall Street Journal op ed also argues that this isn’t bribery because the exchange never happened.  Trump released the aid, and the Ukrainian President never announced the investigation.  Of course, as a matter of statutory law, no exchange is required.  It is enough for someone to solicit a bribe or to offer one.  But what about as a matter of common law?

Well, that’s not entirely clear.  Ben Berwick and Justin Florence have an essay over at Lawfare that explains this in some detail why the common law probably did not require an exchange to have occurred. They cite a number of treatises which include the mere offer of a bribe in the definition of bribery.

However, I have some concerns about the Berwick/Florence essay.  I agree with them that the majority of relevant treatises include the *offering* of a bribe in the definition of bribery.  But the treatises don’t include the solicitation of or demand for a bribe in their definitions.  They speak in terms of the official accepting or receiving a bribe.

To be clear, it was still illegal for officials to solicit or demand bribes.  But if an exchange didn’t actually occur, then the official may have been charged with a different crime—like attempted bribery or extortion—rather than bribery itself.  As an old Harvard Law Review development explains: “At common law the distinction between bribery and an attempt to bribe was largely academic; both were misdemeanors, and equally punishable.”

So where does that leave us?  Is Laura Ingraham correct (at least as a constitutional matter) that this is only “attempted bribery”?

I don’t think so—especially not if we look at the fact that Trump’s actions could be seen not only as an official *seeking* a bribe, but also as someone who offered a bribe.

Think about this from Ukraine’s perspective.  Trump offered them hundreds of millions of dollars in return for the official act of launching an investigation.  Nobody is really talking about this because the federal bribery statute is concerned with bribing officials here in the U.S.  But common law bribery didn’t have jurisdictional limits. 

Looking at Trump as the person who offered the bribe, the common law case against him is incredibly hard to dismiss.  It fits in the definitions provided by Blackstone and other treatises. It’s also consistent with the actus reus of a bribery crime that Congress adopted in 1790.

So where does that leave us as a constitutional matter?  As I said in the Atlantic essay—it’s not entirely clear cut.  But the weight of the historical record is against the President’s defenders who are trying to say that this behavior doesn’t fall within the Constitution’s use of the word bribery.

Posted by Carissa Byrne Hessick on November 21, 2019 at 11:56 AM in Carissa Byrne Hessick, Constitutional thoughts, Criminal Law | Permalink | Comments (5)

Wednesday, November 20, 2019

Leavenworth, ep.5: The Fight Continues

Final post from Eric Carpenter (FIU)  on Leavenworth. Thank to Eric for doing this.

Here are links to the prior posts: Prologue; Episode 1; Episode 2, Part I; Episode 2, Part II; Episode 3; Breaking News; Episode 4.

The series ends without a complete answer from the director on why the far-right has embraced Lorance (or Golsteyn or Gallagher). I think this is the reason: the far-right rejects counter-insurgency doctrine in general—even if they don’t recognize that they do.

The producers provide some new insights into this theory. They bring in some Vietnam vets to talk about how good it was back in the day when they could shoot up everything in sight. That wasn’t quite the case in Vietnam, but the rules of engagement then were very broad in some parts of the country for some periods of time (in some cases, those rules may have violated the laws of war). In contrast, while Lorance was in Afghanistan, the rules of engagement were as restrictive as they can get, only allowing force in self-defense.

Arguments about rules of engagement are sometimes reflected in buzz phrases like “We can’t send them over there with one hand tied behind their backs” or “his job was to bring his soldiers back alive.” Ultimately, the issue comes down to who assumes the risk of harm during interactions between soldiers and civilians—the soldiers, or the civilians. In counter-insurgency doctrine, the soldiers do.

Here is where I go that the producers do not. Those on the far-right tend to be very hierarchical, and this shifting of risk does not sit well, particularly when those on the far-right have a colonial vision of our relationship to the local civilians. Those local civilians are beneath them in the hierarchy. They, not we, should assume the risk. I think the producers recognize this to some extent because they spend a significant amount of time humanizing the local civilians, maybe trying to send the implicit message that their lives are worth the same as ours.

The far-right’s rejection of counter-insurgency is not new. The director includes the far-right’s reaction to those accused of committing atrocities in the village of My Lai in Vietnam, with clips from defenders of Lieutenant Calley where they echo Hannity’s current talking points. And we get a foreshadowing of the parallel between Nixon’s pardon of Lieutenant Calley and Trump’s pardon of Lorance.

This assignment of risk is an issue in community policing, too. Who should assume the risk of harm during an interaction between a citizen and a police officer? In many American communities, we see that police are trained to protect themselves first. The citizen assumes the risk. That assignment of risk is concerning for many advocates of police reform.

Ultimately, we know that the assignment of risk to civilians who live in contested battle spaces does not win counter-insurgencies. It didn’t work in Vietnam. It didn’t work in the early stages of Iraq.

In the context of this case, the argument about rules of engagement is a red herring. The issue here is that Lorance did not follow them. Strategic-level commanders make those decisions. We can’t have soldiers deciding that those rules only apply when they think they should.

Moving to a couple of different points, we do not get any resolution on the impact of Lorance’s sexual identity on this case. It looks like no one in his platoon knew about it. It appears to not have played a role in why he was prosecuted. I’m not even sure it played a role in why he went into the platoon with the attitude he did. The producer leaves us with the impression that the reason he went in with such an aggressive attitude had much more to do with him proving to the troops that he was a bad-ass platoon leader. He appeared to be overcompensating for his lack of a Ranger Tab and combat experience instead of trying to fit himself into some hyper-masculine stereotype.

I have been critical of Lorance in these posts, but here comes a bit of a defense. In this episode, we hear from Lorance’s squadron sergeant major. This senior noncommissioned officer who explains that Lorance was not set up to succeed. Usually, when leadership swaps out, the leaders do a “left seat, right seat ride.” The outgoing leader takes the incoming leader under his or her wing and shows him or her the ropes for a couple of weeks. That couldn’t happen here because the old leader was wounded and was not around to train Lorance. The sergeant major makes a good point, which is that the company commander should have done that training himself. The sergeant major is right. The company commander should have trained Lorance for a few days before sending him out. If he had, none of this might have happened.

Thanks, Howard, for the opportunity to comment on the show.

Here are links to all of Eric's posts:

 

Posted by Howard Wasserman on November 20, 2019 at 11:40 AM | Permalink | Comments (0)

The Six Stages of Scandal

This old chestnut works for any political scandal and for this impeachment (Hat Tip to Mickey Kaus)

Stage 1: It can’t possibly be true.

Stage 2: It’s not true.

State 3: You can’t prove it’s true.

Stage 4: Why are you trying to prove it’s true?

Stage 5: It’s disgusting that you’ve proved it’s true.

Stage 6: What’s the big deal anyway?

Posted by Gerard Magliocca on November 20, 2019 at 09:34 AM | Permalink | Comments (4)

Tuesday, November 19, 2019

I'm old

I taught Hicks v. Miranda in Civil Rights today. A student was explaining Miranda's close connection to and interest in the state in rem civil forfeiture action as a basis for Younger abstention. The following exchange occurred:

Student: They were his DVDs.

Me: It was 1975.

Student: They were his videotapes.

Me: It was 1975.

[Student stares blankly]

Posted by Howard Wasserman on November 19, 2019 at 12:37 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (5)

Monday, November 18, 2019

Martin Van Buren's Memoir

One of the most interesting sources that I'm working with in the Bushrod Washington biography is Martin Van Buren's autobiography. Here is a wonderful passage in which he shares his thoughts about Madison, Bushrod, and Chancellor Kent.

In my experience of men I have never known three men who received so nearly the same stamp from the hand of Nature as James Madison, Bushrod Washington and James Kent. In the simplicity, sincerity and inoffensiveness of their dispositions they were identical; each owned a delightful cheerfulness of temperament and anunvarying desire to develop that heaven-born quality in others. With a buoyancy of spirits and manners sometimes bordering on levity, they never for a moment hazarded the respect of their friends or of those about them. Mr. Madison's life having been devoted to politics he was more reserved in regard to public affairs, but upon all other subjects they spoke their sentiments with the simplicity and directness of children. Kent possessed more genius and learning than his brother Judge, but Washington's mind was of a highly respectable order.

Mr. Emmet, in speaking to me of Kent, said that he was a learned and able Judge—but a poor Jury-man. The justice of this distinction frequently occurred to me. Elevated to the Bench at an early age, and ardently devoted to domestic life, he had mixed but little with the world and was proportionally disqualified to sift and weigh testimony. This was strikingly exhibited at the commencement of his official duties as Chancellor. Being obliged in most cases to decide both law and fact, and too liable to be led into extremes, by his detestation of fraud, several of his first decrees failed to stand the test of review in the Court for the Correction of Errors. At the first or second Term of that Court, not fewer than six of his Decrees (speaking from memory) were reversed with the concurrence of his former brethren of the Supreme Court.

Having occasion to call at his office the next morning on professional business, he displayed, in my presence, what, in almost any other man, would have been regarded as undignified violence of temper and manner, but would not, to one who knew him well, bear any such construction. The reversals of the preceding day having been referred to, he broke out into a mock tirade against the Judges, to the following effect;—"They are unfit for their places, Mr. Van Buren; You know that they are! Spencer and Van Ness are able enough, but instead of studying their cases they devote their time to politics! You know that, as well as I do! As to Judge Yates"—raising his hands—" I need say nothing! You should roll him back to Schenectady!" . . . "And as to my cousin Platt! He is only fit to be Head Deacon to a Presbyterian Church, and for nothing e1se!"

Posted by Gerard Magliocca on November 18, 2019 at 08:38 PM | Permalink | Comments (3)

Sunday, November 17, 2019

Presidential Impoundment

One aspect of the impeachment inquiry that is not getting enough attention is that the President almost certainly broke the law by holding up the Ukraine aid no matter what his reason was. The money was appropriated by Congress. All of the statutory conditions for releasing the funds were met. But the money was not released for months.

The Budget and Impoundment Control Act of 1974, which was enacted after President Nixon's aggressive impoundment of appropriated funds, says that Presidents must spend appropriated money within 45 days unless the specific appropriation says otherwise. If the money is not spent, then the President must explain himself and get Congress's approval for the refusal to spend. Needless to say, in this case the President did not explain himself to Congress and did not seek approval 45 days after the Ukraine aid was appropriated.

Impoundment itself is not an impeachable offense (at least when done once) but the act of impoundment refutes the argument that no laws were violated in this situation.

Posted by Gerard Magliocca on November 17, 2019 at 05:57 PM | Permalink | Comments (6)

Pleading yourself out of court and other thoughts on Comcast

Some thoughts after listening to arguments in Comcast, where the question was the causation standard ("but-for" or "motivating factor") for a § 1981 action.

• I did not understand the  argument from respondent (represented by Erwin Chemerinsky) that the standard could be motivating factor at pleading and but-for at trial or summary judgment. A motion under 12(b)(6) is supposed to ask whether, if everything the plaintiff alleges is true, the plaintiff can prevail--under whatever the controlling legal standard will be. It makes no sense--especially given the spin in Twiqbal--to allow a pleading to pass scrutiny when its facts could not meet the applicable standard.

The argument and questions seemed to conflate this with the distinct, and unremarkable, proposition that a plaintiff need not plead all the evidence she will have or use to prove her or claim. Or that a plaintiff should only be expected to plead what she can know or learn pre-discovery (an idea to which Justices Gorsuch and Kavanaugh, as well as Kagan, seemed receptive). Or that a plaintiff can prove her case with different evidence and different rationales than she pleads it.

• There were competing hypotheticals that illustrate the idea of a plaintiff pleading herself out of court, but that do not necessarily grapple with the problem here. The first, proposed by ASG Morgan Ratner, involves a law-firm applicant who receives a rejection letter saying "you're African-American and we're not hiring you because you never went to law school;" Ratner argued there would be no plausible claim of discrimination, because it was not plausible that the law-firm plaintiff could have been hired in any event. The second, proposed by Chemerinsky, is a plaintiff told by a hotel that it will not give him a room because no rooms are available and the hotel does rent to African-Americans; he argues that those allegations should be sufficient to survive a motion to dismiss.

The problem is that the hypos do not reflect how pleading works, because the fundamental nature of pleading and 12(b)(6) motions is that they are one-sided--only the facts alleged by the plaintiff are considered and the plaintiff can limit her pleading to those true facts (or facts she believes supportable on reasonable inquiry) that support her case. There is no obligation to plead adverse facts. And, as several justices and Chemerinsky reiterated during the argument, no need to anticipate and rebut the contrary facts the defendant may present.

So how would a plaintiff plead each of those cases? I imagine the rejected lawyer would plead that he was denied a job and the rejection letter mentioned his being African-American; the hotel guest would plead that they told him they do not rent rooms to African-Americans. A motion to dismiss would be denied, because those facts, if true and without more, could plausibly show that race was a but-for cause.

Both complaints are incomplete, as they withhold facts favorable to the defendant. But the defendant cannot introduce those facts at 12(b)(6). It must wait for summary judgment. Or maybe it could answer, add the additional facts (not a lawyer or no room at the inn), then move under 12(c) for judgment on the pleadings. It could prevail at either stage, because there is a non-discriminatory reason for its action and the result would have been the same--a point Chemerinsky seems to concede.

Had either plaintiff pleaded complete information (or had the law-firm plaintiff attached the rejection letter to the complaint), I think both complaints should be dismissed, because the plaintiff had "pleaded himself out of court." A defendant could move under 12(b)(6) and say "look at the four corners of the complaint, it shows the plaintiff cannot state a claim because it is not plausible that discrimination, as opposed to his not being a lawyer, caused his non-hiring, because the facts in the complaint show he was not hired because he is not a lawyer." Which, again, is as it should be. If the plaintiff offers and does not contest facts of a legitimate non-discriminatory reason for the action, his claim should fail.

Here is a different, interesting procedural question: Suppose the law-firm plaintiff just pleaded that the rejection letter contained racially motivated language. Could the defendant on a 12(b)(6) present the letter to give full context to what the plaintiff was told and still have it be treated as a 12(b)(6) (rather than converted to summary judgment)? The letter is not part of the four corners of the complaint. But the complaint references the letter, so the letter itself provides context. The Twombly Court did this with the magazine feature on Dick Notebaert in which Notebaert said competition was a way to turn a quick buck, but that didn't make it right.

• There was some discussion of Summers v. Tice (the two-hunters case from torts) for the idea that a claim can succeed when two plausible causes are presented showing liability, either of which was a but-for cause. But Summers does not seem the appropriate analogue here. The issue in Summers was that either of two people engaged in unlawful actions that might have caused the plaintiff's death--because either could have unlawfully caused the death, either could be liable, so both could be liable (and we will leave it them to sort out liability between them). The issue in the hypos is that one person engaged in two actions that caused the non-hiring or non-rental--one of those acts was lawful, the other was unlawful. So in Summers, the result (death) was the same and someone must be responsible because it resulted from one of two unlawful acts. In the hypos, the result (not hired/not given a room) was the same, but it resulted from one of two acts, one of which was lawful.

• Breyer and Gorsuch pushed that a plaintiff can satisfy 8(a)(2) by pleading mental state on information and belief. Gorsuch and Kavanaugh also suggested that discrimination cases should not be easily dismissed at the pleading stage. Such comments suggest a potential opinion loosening pleading standards. I wait to see if it is something that might become part of the Civ Pro course.

Posted by Howard Wasserman on November 17, 2019 at 11:50 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Leavenworth, ep. 4: Perspectives

The following is from my FIU colleague Eric Carpenter.

The timing of this episode is perfect. It covers pardons and the far-right’s efforts to get one for Lorance. The director shows how the right-wing media (primarily Sean Hannity) and Lorance’s supporters in Congress (primarily, Duncan Hunter—yes, the one under indictment) got the facts wrong and repeated these misrepresentations over and over and over again. And remember, this is where President Trump gets his information. The director includes a clip where Duncan Hunter says as much.

When Trump first floated the idea of these pardons before last Memorial Day, the response was overwhelmingly negative and he backed off. This time, when he floated it before Veterans Day, the media did not immediately pick up on the story. After a few days, several outlets did report that the Secretary of Defense went in to talk to Trump, advised him not to grant the pardons, and then told the President that he would send up files for the President to review so the President could get his facts straight.

Really. He expected the President to read about the cases. Surprise. That didn’t work.

This episode starts to approach the question that interests me the most: why did the far-right decide that Lorance (and Golsteyn and Gallagher) are heroes? Some of the talking heads in this episode made a good point: the “support the troops” reasoning that the far-right uses is perverse. Hannity was not supporting the troops in that platoon that were doing the right thing before Lorance came along. Many of them suffered long-term negative consequences because of this incident, and seeing the facts continually misrepresented in the media did not help. Hannity was not supporting all of the honorable service members who have deployed, followed the rules of engagement, and helped advance our missions. Instead, he supported a soldier who violated the rules of engagement and single-handedly lost that particular battle space in Afghanistan to the Taliban.

The producers still don’t give us a firm answer to that question. The author of this New York Times article approaches it (he appears in the episode), and we get some sense that the far right is really just at odds with counter-insurgency doctrine. Maybe we will get more in the finale.

The feature of the military justice system that is in focus in this episode is the appellate process. In the military, almost every court-martial gets an automatic appeal to a service-level appellate court. These courts are made up of three-judge panels, where the judges are judge advocates with three-year tenures. Lorance and others make it seem like these courts aren’t independent but that just isn’t the case. (Lorance and his team also skip over the fact that a panel composed of combat-veterans, not left-leaning hippies, heard his case and convicted him. Those members were independent, too.)

Above the service-level courts is the Court of Appeals for the Armed Forces (CAAF). With a couple of minor exceptions, CAAF is a discretionary court. This court has five civilian judges that serve fifteen-year terms. The service level courts and CAAF are Article I courts.

By statute, the Supreme Court can review CAAF decisions except for CAAF’s denials of petitions for review. One of the commentators in this episode thought that was the biggest defect in the military justice system. I’m not so sure that it is. Once CAAF denies a petition for review, the appellant can file a writ in a federal district court. The case can make its way up the Article III channels that way. And, practically speaking, military cases are not high on SCOTUS’s priority list. The Supreme Court rarely grants cert for decided CAAF cases.

Then there is this wrinkle. Remember, CAAF is an Article I court. In 1989, Congress granted the Supreme Court jurisdiction over CAAF decisions (10 USC §867a). The problem is that the Constitution does not grant the Supreme Court original jurisdiction over these cases, just appellate jurisdiction. All of the cases coming out of CAAF should have to go to another lesser Art. III court first (Congress could have sent them to the U.S. Court of Appeals for the District of Columbia Circuit, for example). That is a pretty straightforward argument, but it wasn’t raised until nearly thirty years after the statute was passed, via an amicus brief in Ortiz v. United States. The Supreme Court did some head-scratching, and in some not particularly persuasive reasoning, said there is nothing to see here and affirmed that it had jurisdiction over direct appeals from CAAF.

 

Posted by Howard Wasserman on November 17, 2019 at 09:31 AM in Criminal Law, Howard Wasserman | Permalink | Comments (1)

Saturday, November 16, 2019

Inexplicable decisions, in one post

The unifying themes of these decisions is that I heard about them yesterday and I do not understand.

• The Tenth Circuit held that officials of the University of New Mexico School of Medicine enjoyed qualified immunity from First Amendment claims arising from the school sanctioning a med student for "unprofessional" speech, because it was not clearly established that a professional school could not punish speech in the name of instilling professional values.

The court jumped to the second, "clearly established" prong of the qualified-immunity analysis, as it has discretion to do; but the court went beyond that, insisting that merits-first should be the exception, because of constitutional avoidance. But this seems problematic, generally and in this case. Generally, it will produce fewer opportunities for courts to develop constitutional law. In this case, skipping the merits no sense because the plaintiff also sought injunctive and declaratory relief, which is not subject to immunity and requires consideration of the constitutional merits. The court never explains what happened to those claims or why they do not compel the court to reach the constitutional question.

The case also reveals how courts, despite rhetoric to the contrary, demand factual overlap. As the court put it, the plaintiff “failed to identify a case where [a medical school administrator] acting under similar circumstances as [the defendants in this case] was held to have violated the [First] Amendment.” A" patchwork of cases connected by broad legal principles" is insufficient.

Also, note that the court ignored one factor weighing in favor of reaching the merits--the presence of amicus briefs from several First Amendment advocacy organizations, as well as Eugene Volokh. When the Third Circuit reached the merits and recognized a First Amendment right-to-record (while finding the right not clearly established at the time), it pointed to the presence of amici and the quality of the briefing in the case.

• The Fifth Circuit continues to be the only circuit to categorically reject state-created danger as a basis for substantive due process liability. The case involves  the mishandling of a 911 call--including waiting for officers to volunteer to respond and later refusing to help family members enter the victim's house unless they confirmed with local prisons and hospitals that she was not there, as well as the responding officers stopping at 7-Eleven before proceeding to the scene.

More standing/merits overlap (or confusion) in this Sixth Circuit affirmance of denial of a preliminary injunction. Plaintiffs are parents of a child with autism, who placed him in a private therapy program instead of public school; although he improved in private therapy, the state convicted the parents of truancy. They then enrolled him in a state-approved private school. But they are concerned that he may regress, that they may want to pull him out, and that they again will be prosecuted for truancy. So they sued for an injunction. The court of appeals affirmed the denial, agreeing that the parents could not show irreparable harm without the injunction because the hypothetical threat of enforcement was not "certain and immediate," but "speculative or theoretical," dependent on ifs (if the son regresses, if they pull him out of the current school, if they cannot find a new option, if the state decides to prosecute).

Assuming the court is correct about imminence, why is that not a standing problem--the family is not suffering a concrete and particularized injury because they have not shown "an intention to engage in a course of conduct" proscribed by statute for which there is a credible threat of prosecution. The course of conduct (pulling him entirely out of school) may not occur, depending on too many variables. But that seems to be precisely what the injury-in-fact prong of standing asks. The answer should not be different at the standing analysis than at the injunction analysis--if the injury is sufficiently imminent to establish standing, it should be sufficiently imminent to satisfy the irreparable harm requirement. This is why irreparable harm is often assumed in constitutional cases--the violation of rights (or threatened violation, sufficient for standing) qualifies as irreparable harm unless the injunction issues.

As a normative matter, it is interesting to consider whether the plaintiffs might have fared better had they sought a declaratory judgment rather than an injunction. They would not have had to show irreparable injury (although the court almost certainly would have moved this immediacy analysis up to standing and dumped the case on that basis--see above). This illustrates the type of case Sam Bray argues is appropriate for a declaratory judgment--the plaintiffs need an explication of rights but do not need judicial oversight or supervision going forward. The plaintiffs wanted and needed  guidance and certainty--to know where they stood and what they could (and could not) do as they tried to create the best opportunities for their son; they did not need a court order prohibiting government officials from acting at this time.

Posted by Howard Wasserman on November 16, 2019 at 03:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

All that is wrong with Twitter, in one story

In 2017, an undergraduate at a college in South Dakota joined the selection committee for the schools' Common Read program because she did not want a certain YA author's book included, because YA is not what college students should be studying, and preferred one of several books on social justice. Last week, the local paper runs a story about the Common Read program (2019 is its 10-year anniversary), including a quotation from that undergrad (who is now in grad school) about joining the committee.

The following ensues:

• The criticized author took to Twitter to say "I’m having a really hard time right now and this is just mean and cruel. I hope it made you feel good."

• The author's YA-author friends took to Twitter with such incisive comments as "Fuck that fucking bitch" and "fuck that RAGGEDY ASS fucking bitch." Another author friend suggested the student's comment reflected the same idea that allowed Larry Nasser to prey on women athletes.

• The university publicly apologized to the author for its former student having a negative opinion about her work. The school explained that it was afraid of harming its relationship with a different author in the wake of the graduate's pointed comments. That tweet is not being received well; apologies for the apology no doubt in short order.

• The grad student has been harassed off social media and is worried about career backlash.

• Starting sometime Friday, everyone began deleting many of these tweets.

• The original author apologized on Friday afternoon. But her apology used a first-person pronoun 11 times and never explained what she had done or who she had hurt and how. (Judging by the Twitter responses, the apology did not work).

• One of her author-friends apologized, explaining that she "didn't read the article" that had started the controversy (uniquely ironic from authors who consistently fight criticism from people who have not read their works).

• A third author--the one who compared this to MeToo and Larry Nasser and had on Friday insisted she had "zero regrets" about calling the student out--apologized late Friday. She did slightly better, including promising to reach out to the student (whom she had named in various online comments). But she did not acknowledge the problem with her Larry Nasser rhetoric. Nor did she acknowledge doubling down and having "zero regrets" two days earlier.

• A fourth author-friend apologized and explained that she had tweeted what she meant to DM.

Two more followed on Saturday, although only with the generic "to all who have been hurt" for "my part" and with such bad-apology disclaimers as "I didn't know the person involved was a college student" and "it upsets me."

The last set of apologists capture why Twitter sucks. Authors used to gather or correspond privately) and, among themselves, complain about critics and call critics names; over a bottle of wine, they felt better. Twitter allows (nay, encourages and incentivizes) them to complain and call-out critics in public. But they use the same language they had used in private. And that language reaches hundreds of thousands of people, who have no qualms, given the distance and anonymity of Twitter, of going after the original critic in a personal and aggressive manner. The two from Saturday insisted they were trying to support a friend and do not encourage or condone targeting and harassment. But what did they think was going to happen when they said things like "fuck that bitch" and "you are as bad for women as Larry Nasser"? Did they not think people would run with that?

Finally, note that no one apologized until beginning Friday afternoon and continuing to today. What happened? Beginning Friday morning, The Guardian, Washington Post, Slate, and New York Magazine picked up the story, moving it from the Abderdeen News to the national scene. Unlikely to be a coincidence.

Posted by Howard Wasserman on November 16, 2019 at 01:32 PM in Culture, Howard Wasserman | Permalink | Comments (0)

Leavenworth, Breaking News

The following is by my FIU colleague Eric Carpenter, who has been live-blogging the Starz documentary.

Yesterday, President Trump pardoned Clint Lorance, along with Major Matthew Golsteyn (charged with the summary execution of a detainee). He also ordered the promotion of Special Warfare Operator First Class Edward Gallagher to the grade of E-7, the rank he held before he was court-martialed for murdering a detainee (he was acquitted of that charge but convicted of another charge, and the grade reduction was punishment for that other charge).

This was a terrible decision. He basically ignored the advice of his military counselors and followed the advice of Sean Hannity, thereby politicizing a justice system that already has issues with public confidence. The current coverage (and the coverage from when he thought about doing this earlier in the year but backed down) lays out many of the reasons why this was a bad decision. Further, by taking these actions, Trump may have committed a war crime.

All that aside, the press release announcing this decision shows that those giving Trump advice don’t really understand the military justice system. When the test balloon for the pardons was floated last week, the first idea was that Trump would disapprove the findings in Lorance’s and Gallagher’s courts-martial. An odd feature of the courts-martial is that the authority who convenes the court-martial must later approve the findings. This is a vestige from when a court-martial provided non-binding advice to convening authorities. The convening authorities would then approve or disapprove of those findings. Until 1916, commanders could send back acquittals or light sentences for a retrial. All of that has now gone away and the act is largely ceremonial. Here, the convening authorities had already approved these findings. The President could not undo that.

Someone must have figured that out because Trump looked to other presidential powers so that he could act on these cases. The President can pardon, and what he did with Lorance was within that power.

I am in the camp that the President can only pardon those who have been convicted, and so what he did with Golsteyn was not within that power. (This is one of those exercises in mental gymnastics, as we will never know the answer until a later administration tries to prosecute someone that an earlier administration has granted a pre-emptive pardon.)

He has another legitimate source of authority, though. Golsteyn’s case was still active. The President, as commander-in-chief, can withhold and dismiss any court-martial charges. Unlike what we see with the Department of Justice where the President is supposed to stay hands-off, there is no norm that the President should not get involved in court-martial proceedings. He is the commander-in-chief, and courts-martial are a tool of discipline. He is not allowed to unlawfully influence a court-martial or otherwise violate a service-member right to due process (for example, he is not allowed to tell subordinate commanders to take harsh action in a case or tell panel members to return a verdict of guilt), but anytime he disagrees with how a case is being handled, he withhold the case to himself and take whatever action he feels is appropriate.

He could have done that here. He could have then discharged Golsteyn, thereby ending the military’s jurisdiction over Golsteyn, which would prevent a subsequent president from reinstating the charges.

Turning to Gallagher, the President can grant clemency to Gallagher and reinstate his rank that way. Why he thought he had to order that Gallagher be promoted is beyond me, and Congress may have limited his authority to do that, anyway.

I think that is what happens when you ignore the advice of the experts and instead rely on talking heads to solve these problems.

 

Posted by Howard Wasserman on November 16, 2019 at 11:14 AM in Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, November 14, 2019

Lawsuit Against the ERA

Three states recently filed a lawsuit that seeks to stop the Archivist of the United States from recognizing the ERA as part of the Constitution. This is odd because neither the Archivist (nor anyone else) thinks that the ERA is part of the Constitution.

Assuming (as expected) that Virginia ratifies the ERA sometime this year, the Archivist could in theory declare the ERA ratified under Article Five. But there is no reason to think that the Archivist will say that. It would rather astonishing (and wrongheaded) for him to do so. And in the unlikely event that he did, that action could be challenged as unlawful.

In short, the pending suit should be dismissed as unripe. And probably will be, either before Virginia ratifies or afterwards. 

Posted by Gerard Magliocca on November 14, 2019 at 08:50 PM | Permalink | Comments (1)

VAP/Fellowship Reflections: An Overview of the Different Types of Programs

Over the summer and fall, I interviewed the directors of 14 VAP/fellowship/PhD programs.  As the series comes to an end, I wanted to discuss some of the main takeaways as well as highlight some questions that these interviews raised for me.  These reflections may take a few posts, but in this first one, my goals are fairly modest.  I want to provide an overview of the different types of VAPs and fellowships out there, along with some pluses and minuses of each kind of program.  I offer this up not for those of us already in academia who think we already know all of this.  Instead, my intended audience here are people who are curious about academia and have come to learn that a VAP/fellowship/Ph.D. is a de facto requirement for entering the profession these days, even if they aren’t exactly sure how to evaluate all the different programs out there. 

By my count, there are five different types of VAPs and fellowships, plus a few law-related Ph.D. programs.  Let me know in the comments if you think I’ve missed or conflated any of these categories.

Legal Writing VAPs/Fellowships:  In these programs, the fellows teach one or more sections of 1L legal research & writing.  Of the programs I covered, Harvard, Stanford, Chicago, NYU, Columbia, and Tulane all fell into this category.  Like all programs, these have upsides and downsides.  The upside of these programs is that fellows get a lot of experience teaching an important and difficult topic.  Some of these programs also have good pedagogical training, and because schools often need many legal writing teachers, there can be a sizeable cohort of fellows.  Many of these schools also have well-developed systems for helping to connect fellows with established legal scholars, getting the fellows feedback on their work, and helping to prepare them for the job market through moot camps, mock interviews, etc.  The downside is that teaching legal writing is a very demanding teaching load.  It’s much harder to teach 30 1Ls legal writing than for me, for example, to teach 90 students in a typical Business Associations class.  Fellows are trying to grade papers, hold individual student conferences, and prep lesson plans while also trying to write and in their terminal year, fly around the country doing job talks.  That’s a lot to juggle. 

So in evaluating these types of programs, pay close attention to the exact teaching load.  Are you teaching during the entire academic year?  Are the materials and assignments already prepared?  How many students will you have?  30-35 students is a lot!  Indeed, at my institution (Richmond Law), that’s a full-time job for our legal writing faculty.  Unless the class is much shorter than the average semester, you should assume that the vast majority of your time during the academic year will be spent teaching, so you’ll have to make a lot of progress on your scholarship during academic breaks.  More than 30 students is really tough, in my view, especially when the class lasts through all/most of the academic year and involves intense feedback and individual conferences with students.  Finally, legal writing VAP/fellows can be isolated from the rest of the faculty.   Being in a cohort of 5-10 other fellows has its benefits, but it can also mean that you have to really work to make contacts out of this cohort. 

Doctrinal VAPs/Fellowships:  Some schools only hire a few fellows, and these fellows teach traditional doctrinal courses.  Of the programs I covered, those at Duke, Illinois, and Stetson, as well as the Sharswood fellowship at Penn, fell into this category.  In these programs, the fellows are more a part of the regular faculty – their offices are on the same halls and they teach the same sorts of classes they’ll be teaching later on. 

After talking to lots of program directors, I’ve become partial to these kinds of programs.  They seem like the best of both worlds.  Fellows get some teaching experience, and they are prepping courses that they’ll teach later on, which makes this prep time a decent investment timewise.  And they’re integrated into the faculty in a way that VAPs/fellows at other programs may not be.  The downside is that there may not be a sizeable cohort of other fellows, so the fellows may not have other people around them going through what they’re going through.  I imagine that can be a little isolating, so you’ll have to work hard to build your community, either among other faculty at the school or with fellows at other schools.

Center-Based VAPs/Fellowships:  Some programs hire VAPs and fellows to run an academic center.  I didn’t talk to as many of these programs as I planned, but the Center for Private Law at Yale and the center-based fellowships at Penn fall into this category and there are a lot more out there.  These fellowships tend not to have teaching responsibilities; instead, the responsibilities focus more on running a center (handling the logistics with speakers, running workshops, etc.).  That can be a plus or a minus, depending on what you want to get out of the fellowship.  On one hand, administrative responsibilities tend to take less time than teaching responsibilities, which frees up more time for writing.  On the flip side, teaching is a significant part of an academic’s job, and you don’t get to hone those skills, which will lead to a steeper learning curve when you start a tenure-track job. 

Another upside/downside is that you are working really closely with the faculty member who runs your particular center.  That’s great if they invest in you, read your work closely, help you develop your own voice, and introduce you to others in the field.  It’s not so great if they are less hands-on and leave you to figure things out on your own.  And, of course, it’s hard to suss out on the front end how much assistance you’ll receive, at least without talking to former fellows from the center. 

Writing-Based VAPs/Fellowships:  A few programs have minimal/no teaching or administrative responsibilities, with the idea that the fellow will spend nearly all of their time working on their scholarship.  The Hastie fellowship, for example, falls into this category, as does the Lewis fellowship at Harvard.  Both of these fellowships are aimed at candidates who will enhance the diversity of the profession, but there may be other fellowships out there without significant teaching or administrative responsibilities. 

The pluses and minuses here are similar to the center-based fellowships – more time to write, but less/no teaching experience.  At the Hastie, it sounds like the fellow is fairly integrated into the faculty, but that may not always be the case.  And these fellowships often come with a lower salary than other fellowships since the fellow is not teaching or performing other responsibilities for the school. 

Podium-Filler VAPs:  Plenty of schools hire VAPs and fellows as podium fillers on an ad hoc basis.  I didn’t include any of these VAPs in my interview series because these schools typically don’t have established programs, but I think these positions are really common.  My guess is that they also have far lower success rates when it comes to landing a tenure-track job.  Landing a tenure-track job requires lots of time to write, lots of mentoring, including people reading your drafts and offering feedback, and connections.  If you’re a podium-filler VAP at a school where you’re teaching a lot of classes (and with new preps, even 3 classes is a lot) and no one is really that invested in you, that can be a recipe for disaster.  A VAP at one of these schools will have to be a lot more entrepreneurial in terms of finding mentors, asking for feedback, and protecting writing time. 

The challenge is that these programs can often masquerade as another type of VAP – the doctrinal VAPs/fellowships described above where a school hires a few fellows and has them teach doctrinal courses.  The main difference is in the level of institutional support that the VAP/fellow receives , and that can be hard to figure out during the interview process where schools are trying hard to paint themselves in the best possible light.  Ask hard questions – how many VAPs/fellows has the school had in the past?, where have they landed?, how many times did they go on the market?  And talk to the prior VAPs if you can – how much time did they have to write and how much mentoring did they receive?  If the school doesn’t usually hire VAPs, , find out if they have a plan for helping you land a tenure-track job or if they just need you to cover classes.

Law Ph.D. Programs:  Finally, I also did two interviews of law-related Ph.D. programs – Berkeley’s JSP program and Yale’s Ph.D. in Law program.  These programs reminded me a little of the writing-based VAPs described above – the Ph.D. candidates do not have significant teaching responsibilities so they get more time to write, but the financial support is far less than a traditional teaching fellowship.  Of course, Ph.D. programs offer something that these fellowships do not—coursework and an opportunity for intense study.  Berkeley’s JSP program offers this study through an interdisciplinary lens, while Yale’s program is focused on law more as a standalone discipline.  


I’ll have more to say on these different paths in my next post, but I’ll end here with a thank you.  When I started this project, I wasn’t sure if any program would be willing to talk to me, but as it turned out, not a single one turned me down.  As a profession, we still have work to do to make our on-ramps as transparent as possible, but I’m grateful that so many people were willing to share the innerworkings of their individual programs.

Stay tuned for more!

 

Posted by Jessica Erickson on November 14, 2019 at 02:36 PM in Getting a Job on the Law Teaching Market, VAPS & Fellowships | Permalink | Comments (3)

Wednesday, November 13, 2019

FIU wins ATL Halloween Costume Contest

The winner of Above the Law's Legally Themed Halloween Costume ContestProf. Tom Baker's Con Law Section at FIU, continuing the since-2012 tradition of dressing like Prof. Baker on or around October 31.

FIU: We pass the bar and we dress well.

Posted by Howard Wasserman on November 13, 2019 at 09:29 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

JOTWELL: Tidmarsh on McGovern & Rubenstein on negotiation class actions

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Francis E. McGovern & William B. Rubenstein, The Negotiation Class: A Cooperative Approach to Class Actions Involving Large Shareholders. The timing is perfect, because the Sixth Circuit just agreed to review the class certification decisions in the opioid litigation that followed the McGovern & Rubenstein approach.

Posted by Howard Wasserman on November 13, 2019 at 11:49 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 12, 2019

Daily Northwestern gets pummeled--some thoughts (Updated)

I am a graduate of Northwestern's Medill School of Journalism, although I never worked at The Daily Northwestern and never pursued journalism as a career. I am following and interested in the scorching negative reaction to the paper's apology for its coverage of a campus speech by Jeff Sessions last week, at which protesters gathered outside and some protesters attempted to force their way into the lecture hall, where they were confronted and restrained by campus police.

It appears the paper overreacted and that its reporting, including the photographs it took and posted online, followed appropriate journalistic standards. It also appears that some of the sharp reaction to the apology reflects the "these damn snowflakes" annoyance with millenials, such as the paper's suggesting that it harmed and "retraumatized" student protesters by reporting on them (which is what the protesters seem to charge). And the paper seemed to be motivated by the possibility that its photographs and reporting could be used as a basis to identify and sanction student protesters--Northwestern does not provide amnesty for protesters who violate university rules (such as sneaking into the reserved lecture hall) and students are not excused from attendance policies because they were out protesting.

On the other hand, I would like to see more criticism of NU President Morton Schapiro, who uttered the following (according to The Daily) in a speech he gave to visitors over parents-weekend (my friend whose kid goes to Northwestern did not attend the speech).

Although Schapiro said he supports Sessions’ right to speak on campus and NUCR’s right to invite him, he questioned whether the former attorney general was “the right speaker” for NU. He said that on a campus as liberal as Northwestern’s, there is little opportunity to share conservative thought in a way that starts dialogue.

Schapiro — who said he is personally “not a fan” of Sessions — said NUCR missed a chance to do so by inviting him rather than a different conservative speaker.

“They had an opportunity and they didn’t use it,” he said. “All it was was polarizing. All it was was making the campus more unhappy. All it did was blow up and make things even worse.”

I await Schapiro's list of conservative speakers who would be "right" for NU, sharing conservative thought in a way that starts a dialogue but that does not make the campus unhappy. Say what you will about Sessions--and he apparently criticized the protesters in his speech, while paying lip service to freedom of speech. But Sessions was Attorney General of the United States and compared with the current occupant of the office, he looks like Nicholas Katzenbach. So what speaker would have been more acceptable to this crowd?

Finally, a thought on civil disobedience. Part of the debate is whether students should be sanctioned for breaking rules or obligations when protesting--skipping class to attend the lecture, sneaking into the closed hall in an attempt to interrupt Sessions' speech, etc. NU does not excuse such violations, taking the position that there are trade-offs and that students must make choices and bear responsibility for their actions. The Associated Student Government called on the university to change those policies, at least for "students with marginalized identities."

It seems to me the dispute here is over what civil disobedience means. NU students (the protesters, the ASG, the Daily editors) appear to believe that there is a free-speech opt-out from the rules--that if you are protesting, then university rules about attendance or closed spaces do not apply. But the idea of civil disobedience is that you peacefully violate a law--and accept the consequences for that violation--to call attention to the injustice of that law or something else. There is no right to interrupt the speech within the reserved hall; if you believe it is important to interrupt anyway, civil disobedience means you will do it anyway--and you accept the consequences.

The fascinating thing is how much has changed in 30 years. I would not have described NU as a particularly liberal place when I was there.

Update: A statement from Medill Dean Charles Whitaker. It is a strong statement that: Defends the Daily's coverage of the protests as consistent with journalistic standards; takes student activists to task for threatening paper staff and insisting that journalists should not have covered disadvantaged communities in a public protest; criticizes the editors for apologizing which, while well-intentioned, sends a chilling message about journalism; and calls on angry alums to give them a break, reminding them that these are students who are learning and dealing with a unique firestorm.

Posted by Howard Wasserman on November 12, 2019 at 06:52 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Turpin v. Locket

I am nearly done with the first portion of my Bushrod Washington biography. This is the part that covers his career before he was appointed to the Supreme Court in 1798. I am going to start to posting some items about my research that I think might be of interest.

Here's one nugget that I came across. In Turpin v. Locket, the Virginia Court of Appeals (the highest court in Virginia) found itself equally divided on whether the state legislature could revoke a prior grant of property to the Episcopalian Church. Why was the Court equally divided when there were five judges? Here is what the Court Reporter said by way of explanation:

The above case had been argued at a former term; and, during the succeeding vacation, Mr. Pendleton, then president of the court, and who sat in the cause, prepared his opinion in writing, (which the reporter has seen,) that the glebes belonged to the protestant episcopal church; and that the act of 1802, was unconstitutional. But the opinion was not delivered, as he died the night before it was to have been pronounced.

Yikes!

  

Posted by Gerard Magliocca on November 12, 2019 at 01:47 PM | Permalink | Comments (2)

Argument in Hernandez v. Mesa

Good luck to Steve Vladeck in this morning's argument in Hernandez v. Mesa, on whether a U.S. law enforcement officer can be sued for damages in a Bivens action for killing a non-U.S. person on the other side of the border.

Update: Transcript here.

Posted by Howard Wasserman on November 12, 2019 at 07:07 AM in Howard Wasserman | Permalink | Comments (1)

Monday, November 11, 2019

John Oliver on SLAPP suits

John Oliver's Last Week Tonight did a long piece on SLAPP suits, including his experience as the target of one by coal baron Bob Murrary in state court in West Virginia (a state that lacks a SLAPP suit). And Devin Nunes sued Twitter in Virginia (which refused to dismiss) because its SLAPP statute is weaker than the one in California (the natural forum for that suit). The video is embedded after the jump.

The piece is funny, although too simplistic in a blanket call for statutes with a call for coordination. A federal statute cannot define the pleading standard in state court, although it perhaps could require attorney's fees.* So a federal statute would not have jelped State statutes cannot define the pleading standard in federal court (the subject of a circuit split, where the "does not apply" position seems to be winning) but can require attorney's fees in federal court.

[*] This would be an interesting § 5 question. Are procedural protections such as a pleading standard and fee-shifting congruent-and-proportional to protecting the First Amendment rights of the targets of these suits?

Also, the show missed a great irony. It discussed a $ 5 billion SLAPP suit that Trump brought against journalist Bob O'Brien, admittedly for the point of hurting O'Brien. But the story did not mention that Trump prevailed in the Stormy Daniels lawsuit--a suit designed to criticize the President of the United States--under California's SLAPP law and recovered six-figures in attorney's fees.

 

Posted by Howard Wasserman on November 11, 2019 at 07:00 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, November 10, 2019

Kentucky Law Journal: 2020 Symposium Topic Submissions

How to Submit

Kentucky Law Journal is now accepting symposium topic proposals for the 2020–2021 academic year. Please submit symposium topic suggestions following the instructions below no later than November 22, 2019 at 7:00 pm EST. If you have questions, please email our Special Features Editor, Summer Bablitz, [email protected] or Editor-in-Chief, Kyle Schroader, at [email protected]

How a Topic will be Chosen

The Symposium Committee, comprised of KLJ student members, will review submissions in the upcoming weeks with the goal of selecting a symposium topic soon after

General Information About Past KLJ Symposia

  1. KLJ generally hosts a symposium on campus at the University of Kentucky during the fall semester. Symposium is usually held on a Thursday and Friday in October or November.
  2. KLJ has historically provided funding for the cost of coach travel, lodging, transportation in Lexington, and meals and social events for all symposium speakers. On average, past symposia have cost between $10,000 and $14,000 total. KLJ has received financial support from the University of Kentucky College of Law and the University of Kentucky Student Government Association in the past. Still, KLJ has historically been responsible for between 50–65% of the total costs of past symposia through funds collected from students through their annual membership dues.
  3. Generally, all symposium presentations are recorded and uploaded on UKnowledge, a digital collection of scholarship held by UK Libraries
  4. KLJ publishes a symposium issue each year with articles from the presenters.

Recent KLJ Symposia Topics:

  • 2019–20 - American Monuments and Monument-Protection Laws
  • 2018–19 - Intermeddlers or Innovators? States and Federal Copyright Law
  • 2017–18 - Religious Exemptions and Harm to Others (hosted in collaboration with Southeastern Association of Law Schools (SEALS))
  • 2016–17 - 30 Years of Batson: A Retrospective
  • 2015–16 - An Elective Perspective: Judicial Regulation of Politics in an Election Year
  • 2014–15 - Your Rights in a Digital World (Data Privacy)

When formulating symposium topic proposals, please consider the following:

  1. KLJ anticipates an in-person symposium on the campus at the University of Kentucky on a Thursday and Friday during the month in October or early November 2020. Generally,

      7–10 speakers are invited to attend symposium.

  1. While publication is not guaranteed, we anticipate that all symposium attendees will be invited to write an article for publication in Volume 109, Issue 4 of Kentucky Law Journal. Final manuscripts should be no longer than 14,000 words in length and will be due around December 15, 2020. KLJ will provide publication contracts to certain symposium participants based on recommendations from the Editorial Board and Symposium Committee.
  2. The Journal does have limited funds set aside for symposium. Even so, KLJ cannot guarantee funding for travel, lodging, meals, or associated expenses. We will work to obtain additional funding and sponsorships. Proposals that include anticipated sources of full or partial funding will be viewed favorably.
  3. This call for submissions is an open call to the legal academic community. Still, proposals led by or including members of the University of Kentucky College of Law faculty will be prioritized. We encourage all proposals to include UK Law faculty among their participants.

Submission Instructions

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

  1. Your topic idea, including the topic’s originality, timeliness, how it contributes to legal scholarship, and any reasons why the topic may be relevant to Kentucky;
  2. A list of potential symposium speakers who may be willing to attend the event and accept an invitation to publish an article in Kentucky Law Journal;
  3. The name, contact information, and title of the proposed Symposium Liaison, who will serve as a point person for decisions pertaining to the symposium and will coordinate with the Volume 109 Special Features Editor;
  4. Any organizations or groups who will co-sponsor or collaborate on the symposium;
  5. Any anticipated sources of funding or sponsorship;
  6. Any social events, banquets, or luncheons that may be part of the symposium program; and
  7. Any potential symposium dates in October or November 2020 that conflict with the Symposium Liaison’s schedule.

Again, please submit your proposal in a PDF or Word document format via email to [email protected], no later than November 22, 2019 at 7:00 pm EST. See the proposal template below.

Kentucky Law Journal

2020–21 Symposium Topic Submission

Symposium Idea/Topic

Description of Symposium Topic

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

Symposium Liaison*

(1) Name:

(2) Title:

(3) Email:

(4) Phone:

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

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

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

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

Potential Dates in October or November 2020 that Conflict with the Symposium Liaison’s Schedule

Posted by Howard Wasserman on November 10, 2019 at 11:02 PM | Permalink | Comments (0)

Friday, November 08, 2019

State-level universality

Much of the controversy over "nationwide" or "universal" injunctions has arisen in suits challenging federal las and regulations. But the reason for finding and using the appropriate nomenclature is that the real problem--injunctions protecting beyond the plaintiffs--can arise in challenges to all laws at all levels.

A divided Eighth Circuit addressed this in Rodgers v. Bryant, a challenge by two individual beggars (their term) to Arkansas's anti-loitering law. The district court granted a preliminary injunction prohibiting all enforcement and the majority of the court of appeals affirmed, relying on the district court finding that the law is "plainly unconstitutional," so it should not be enforced against anyone. Even the courts most willing to issue non-particularized injunctions in challenges to federal law have advanced beyond "the law violates the Constitution, so it can't be enforced against anyone" rationale.

Dissenting, Judge David Stras gets it perfectly right--the district court granted a universal preliminary injunction, prohibiting state police from "enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs." It is "universal" in that it protects the universe of people who might be subject to Arkansas law-as universal as the travel ban, only applicable to a smaller universe.

Stras examines the history equity to conclude that such non-particularized relief was not proper in individual actions and that equity's representative actions are now reflected in FRCP 23. Stras also hits the essential point that there is no reason to believe (and neither the district court nor the majority found) that "safeguarding Rodgers’s and Dilbeck’s right to speak somehow depends on preventing enforcement of the anti-loitering law against anyone else." The plaintiffs, he argued, sued to vindicate their own rights, so they obtain "complete relief" from an injunction protecting them from arrest under the statute.

Posted by Howard Wasserman on November 8, 2019 at 07:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Wealth Taxes Are Not Unconstitutional

I want to make a point that is getting lost in the discussion of wealth taxes. Assume for the sake of argument that a wealth tax is a "direct tax" as defined by the Constitution. The Constitution does not say that direct taxes are prohibited. Rather, direct taxes must just be apportioned among the states according to their respective numbers. Thus, a wealth tax is not unconstitutional, though the way in which such a tax is applied can be.

Posted by Gerard Magliocca on November 8, 2019 at 03:23 PM | Permalink | Comments (6)

Leavenworth Ep. 3, Judgment

The latest from Eric Carpenter of FIU on the series. Episode 3 featured Eric and his Military Justice class.

After you are convicted of an offense, one option is to blame your defense attorney for that result instead of the facts. Another is to come up with conspiracy theories to explain what happened. In this episode, we see Lorance use both options. I’ll talk about some issues related to those options and comment on some of the unusual features of the military justice system (why wasn’t Lorance in pretrial confinement leading up to the court-martial? why did he have a civilian defense counsel?) that come up in that context.

First, the ineffective assistance of counsel (IAC) claim. To start, every military accused, indigent or not, gets a military defense counsel. Military defense counsel work for a stove-piped, independent defense organization, are licensed members of a state or federal bar, and are well-trained and supervised. I was a military defense counsel for four years, and I have full confidence that military defense counsel, even though they are often junior attorneys, provide extraordinary service to their clients.

An accused also has the right to hire a civilian defense counsel (CDC) at his own expense. Here, Lorance did that. Many people in the system do not trust the system, and if they or their families have money (usually a court-martial defense costs $10-20k), they often hire a CDC.

After the conviction, Lorance filed an IAC claim on appeal, asserting (among other things) that his CDC did not meet with him frequently and didn’t show up to Fort Bragg, NC, until the day before the court-martial. One thing that did not come out in the episode is that Lorance also had several military defense counsel working for him who were doing a ton of work.

When someone hires a CDC, the military counsel stay on the case but take on a second-chair role. Often, the CDC will do the opening statement and closing argument and will handle a lot of the guilt-phase witnesses. The military counsel will do the sentencing case (in the military, the sentencing case is as intensive as the merits case). Even with this division of labor, the military counsel meet frequently with the client and do a lot of the prep work for the guilt-phase witnesses. Lorance’s defense team divided up labor along those lines. Viewers should not come away with the impression that Lorance did not have an active defense team.

The producers interviewed Lorance’s defense counsel for this project (I am going to assume he got a waiver from his client—the Army has rules of professional conduct that are essentially the same as the ABA’s). His attorney said that he thought he made a mistake by not asking for instructions on lesser included offenses to specific intent murder, like manslaughter. However, under the facts of this case, that was not a mistake.

The military does not have degrees of murder. It just has murder, but six types: premediated, specific intent to kill, intent to inflict great bodily harm, wanton disregard (the same thing as abandoned and malignant heart or implied malice, akin to super-recklessness), and felony. Premediated and felony are capital-eligible. Lorance was charged with specific intent murder, and the facts are that he intended to kill the men on the motorcycle when he ordered a soldier to shoot at them.

Like most jurisdictions, murder can be mitigated to voluntary manslaughter if the killer acted under adequate provocation. The provocation must have been adequate to excite an uncontrollable passion in a reasonable person. Words alone are not enough. Here, the problem is that there was no provocation. The men on the motorcycle did not do anything to Lorance or his unit. Even if the CDC asked for this instruction, the military judge should not have read it—the defense did not raise sufficient evidence of that issue. Failing to ask for it was not a mistake.

The military also has involuntary manslaughter (culpable negligence) and negligent homicide (simple negligence). Neither of those mental states (examples of unintentional homicide caused by risk-taking or failing to recognize a risk) occurred here. It is uncontroverted that Lorance intended to kill those villagers. The military judge should not have read an instruction on these offenses, either.

The only thing the CDC could have hoped for was that the military judge would read one of these instructions and then possibly the panel would have compromised on something that is legally illogical—basically, hoping nullification would trump reason.  Failing to do something that relies only on jury nullification to work is not IAC.

I went through the trial transcript in preparation for my interviews, and I am confident that his CDC did a competent job. His cross-examinations of the witnesses were pretty good. Lorance just had bad facts.

Now to the conspiracy theories. The director exposes us to some of these, but my sense is that he does that to show their absurdity rather than to give them validity. Here are some of them: the CDC was in cahoots with the Army; the Army knew what the result was going to be all along; the Army was doing this to appease the Afghan government in partial response to another mass murder than was committed by an American soldier; and, senior officers were doing this to protect their careers.

Of these, only one holds any reflection of the truth. One of the reasons we prosecute soldiers who commit crimes within the host country is to show the people of that country that we hold our soldiers accountable. That is a legitimate reason (among other reasons) for prosecuting soldiers who commit crimes.

There were a couple of facts that need some explanation. First, the names of the dead men were initially written on the charge sheet, then prosecutors lined through those names and wrote in something like “adult male.” The conspiracy theory is that had to do with a cover-up or hiding the fact that they may have been enemy combatants. The better explanation is, things like that happen all the time in the military on charge sheets and it is allowed, provided the defense gets proper notice.

Proving the name of an Afghan is difficult. For most Afghans, there are no birth records or death records. But proving that two men died was easy: there were aerial photographs of their bodies. The names were not legally required to be on the charge sheet. By crossing through the names, the government did not have to try to prove the names. They just needed to prove two dead bodies, and they can point to the photos for that. 

The other fact is that one of the people on the motorcycle may have had some contact with the Taliban. The government did not disclose this to the defense ahead of trial. The conspiracy theory is basically the same: the government knew Lorance did the right thing but scapegoated him to appease the Afghan government.

The defense raised this on appeal as a Brady issue. Under Brady, the government must disclose evidence that is favorable to the defense. If they don’t, the error is tested for prejudice: if the evidence was material to the defense (essentially hyper-relative), then the error requires reversal.

Here, there was no error. The only way this information could be favorable is if Lorance knew about it before the shooting. If he knew that information, then it could factor into the self-defense reasoning. But he didn’t. It was irrelevant to his decision making. (The Army appellate court decided this issue the same way).

Further, even if the men on the motorcycle had been known Taliban, under the Rules of Engagement (ROE) Lorance was operating under, he would not have been able to shoot them on sight. He would still have had to have perceived a hostile act or imminent threat. (Under the laws of war, you can shoot the enemy on sight, even if they are not shooting at you. Those were not the ROE in effect in Afghanistan, though).

One side note. Viewers may have been surprised to see that Lorance was not in jail pending the trial or during the trial. He rode to the courthouse every day in a van with this family.

For the most part, service members do not go to jail before trial. There is no bail in the military. You either go into pretrial confinement, or you don’t. The unit commander makes that decision, but the rules are weighted heavily in favor of not putting soldiers into pretrial confinement.

To do so, there must be probable cause that the service member committed the offense (this is usually apparent). Next, confinement must be necessary because it is foreseeable that (1) the accused is a flight risk OR will engage in future serious criminal misconduct, AND (2) less severe forms of restraint are inadequate. Here, Lorance was not a flight risk and there is no indication that he would commit a violent crime or engage in obstruction of justice. Like many accused, he spent his time before trial doing productive work in his unit.

Posted by Howard Wasserman on November 8, 2019 at 02:18 PM in Criminal Law, Law and Politics | Permalink | Comments (0)

Law and Entrepreneurship Association - Call for Papers

The 14th annual meeting of the Law and Entrepreneurship Association (LEA) will be held on Friday, March 20, 2020, at the University of North Carolina School of Law.

The LEA is a group of legal scholars interested in the topic of entrepreneurship—broadly construed. Scholars include those who write about corporate law and finance, securities, intellectual property, labor and employment law, tax, and other fields related to entrepreneurship and innovation policy. Our annual meeting is an intimate gathering where each participant is expected to read and actively engage with all papers under discussion.

The LEA welcomes papers and proposals on all topics relevant to entrepreneurship. Proposals should be comprehensive enough to allow the LEA board to evaluate the aims and likely content of the papers they propose. Papers may be accepted for publication but must not be published prior to the meeting. Works in progress, even those at a relatively early stage, are welcome. Junior scholars and those considering entering the legal academy are especially encouraged to participate.

To submit a proposal or paper, please email Professor John Coyle at [email protected] by January 13, 2020.  Please include the subject line: “LEA Submission – {Name}.”

The University of North Carolina is located in Chapel Hill, North Carolina, with easy access to Raleigh-Durham International Airport (RDU).  For additional information, please email Professor John Coyle at [email protected].

Posted by Carissa Byrne Hessick on November 8, 2019 at 08:07 AM | Permalink | Comments (0)

Thursday, November 07, 2019

Two thoughts on the Socratic method (or whatever we call Q&A teaching)

1) My colleague Stanley Fish appeared on FIRE's So to Speak podcast, discussing his new book, his old book that there is no such thing as free speech, and other topics. It is a wide-ranging hour-plus discussion.

At one point in the conversation, Fish explains why he does not want to hear student opinions or what they think/believe about some subject; interviewer Nico Perrino asks if that means Fish does not like the Socratic Method. But is there any connection between the Socratic Method and students offering their opinions and personal views? I believe I would be regarded as a highly and rigourous Socratic professor, in that I ask a lot of directed questions. But I give students no opportunity to espouse their opinions or to tell me what they think; I  use tight, specific questions to draw out specific answers tied to the material. There is little danger of a student going off on an unrelated tangent or saying something offensive. There are some professors who allow and welcome student pontificating through less-directed questions. But that is a matter of professorial style--it is not inherent in being Socratic.

2) Judge Jane Roth (3d Circuit and my former Judge) visited FIU this week as a Jurist-in-Residence and the lead judge for our intramural moot court final. As part of her visit, she spoke with students about oral argument, especially about the centrality of answering questions directly, slowly, and as specifically and precisely as possible. Judge Roth visited some classes and commented on how well the students had handled hard questions in those discussions. That reminded me of something I tell 1Ls on the eve of their first argument in legal writing--the Q&A teaching style imitates oral arguments. You should be prepared in your argument the way you are prepared in class. And if you can handle a Socratic class, you can handle moot court.

Posted by Howard Wasserman on November 7, 2019 at 07:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Wednesday, November 06, 2019

Sport and speech, again (edited slightly)

Two items.

1)  The Washington Nationals visited the White House earlier this week, down several players, including outspoken pitcher Sean Doolittle. Doolittle and others were criticized for politicizing sports; Rep. Crenshaw labeled Doolittle's actions juvenile and said "These ceremonies aren’t about your petty political sensibilities, they are about celebrating a great American pastime in the Oval Office." But the visit included one player donning a MAGA hat and receiving a presidential hug and another player heaping praise on the President. That sounds like more than a celebration of the great American pastime that happens to occur in the Oval Office--that sounds like a nakedly political celebration of the current occupant of the Oval Office. (We can debate whether MAGA is racist; there is no debate that it is an electoral message unique to one candidate). Which is fine, I suppose. But then the right of players to opt-out is more urgent--it is not a petty political sensibility, but a right not to be associated with a blatantly political message and a blatantly political event you find offensive.

2) The President will attend the LSU-Alabama game in Tuscaloosa this weekend. On Tuesday, the President of the Alabama Student Government Association sent an notice about increased security and the need to arrive early, then closed with "Any organizations that engage in disruptive behavior during the game will be removed from block seating instantly for the remainder of the season."*

[*] Alabama apparently has one home game left this season, against Western Carolina. Quite the threat.

The response was both unexpected and appropriate. By Wednesday, the SGA announced it "strongly affirms its beliefs in free speech rights and the rights of all students to express their opinions." (Good to know the student government strongly affirms the First Amendment). Of course, then it blamed the media for "assigning political context" to a message meant to be about heightened security--damn media for quoting the SGA's words. A later email did slightly better (no:

Some have misinterpreted my comment regarding ‘disruptive behavior.’ … By disruptive behavior, we are asking students to be respectful to all students and staff and avoid altercations . . . My email has nothing do with anyone’s First Amendment rights and I am sorry for any confusion. Please express yourself and especially your pride for the Tide.

But the explanation--we wanted people to avoid altercations and to show respect to staff--still beggars belief unless the SGA sends a similar message before every game. Which it clearly does not. It was obviously worried about people booing or protesting the President and did so in the ham-handed way we have come to expect from those with government power.

I like when sports/speech controversies are this easy and arise at public universities, where the application of the First Amendment is not in dispute.

Posted by Howard Wasserman on November 6, 2019 at 11:33 PM | Permalink | Comments (3)

Can Presidential Electors be Computers?

There are two common criticisms of the Electoral College. One is that sometimes a person who loses the national popular vote can still become president. The other is that presidential electors are not bound by the vote of their state and can, in close elections, change the result.

Let's think a little about the second point. Suppose a state with 10 electoral votes designated 10 computers as its presidential electors? The computers are told to vote in accordance with whatever state law says about presidential elections (e.g., whomever wins the popular vote in the state gets all of the electoral votes). They execute the program and send the votes to Congress. Would such a state scheme be constitutional?

Maybe. The Constitution says who cannot be electors (members of Congress and any person "holding an Office of Trust or Profit under the United States") but says nothing about who or what can be an elector. The Electors are then instructed to meet and vote. Can a group of computers meet? Sure they can. That just means "put them in the same room" or network them together.

Can they vote? Sure they can, unless vote means "exercise discretion." The last point is not so clear to me. The recent Tenth Circuit opinion on presidential electors suggested that giving them the power to vote meant that they could not be bound by a state to make a particular decision. Voting implies a free choice. A free choice is not compatible with an automaton. But is the Tenth Circuit correct in putting that sort of weight on the word vote in the Constitution? What if artificial intelligence is programmed in a way that allows some minimal level of discretion? Is that good enough? Just food for thought. 

 

Posted by Gerard Magliocca on November 6, 2019 at 02:08 PM | Permalink | Comments (5)

Allen v. Cooper argument review

My SCOTUSBlog review of Tuesday's argument. It seems pretty clear the Court is going to reverse--only Justice Alito pushed petititoner's counsel and he seemed just as suspicious of the arguments from counsel for the state. Four justices--Ginsburg, Breyer, Kagan, and Kavanaugh--all expressed different versions of a suspicion that the state was asking for a license to violate rights.

A few interesting stray comments and exchanges from the state's side. The first was his assumption that sovereign immunity only bars claims for damages but no injunction relief; this is true in effect because of Ex Parte Young, but not true as a matter of formal sovereign immunity doctrine. The other was the Court's response to the state's argument that, even if the state cannot be sued, the individual infringing officers can be sued, while conceding they will be indemnified and may enjoy qualified immunity. That last point raised the Chief's hackles--he did not seem to buy an individual suit as an alternative if the officer would be immune; counsel for the state argued that the showing for an intentional infringement (and thus a due process violation) is the same as the showing for clearly established, so any officer claiming immunity likely did not violate due process. Anyway, that was the most exorcised the Chief has been about an officer enjoying qualified immunity.

And, of course, I could not resist some pirate jokes.

Posted by Howard Wasserman on November 6, 2019 at 11:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Saturday, November 02, 2019

Leavenworth, Ep. 2: Casualties, part 2

The following is by my FIU colleague Eric Carpenter, who is blogging this show. Episode 3, airing Sunday, features talking-head interviews with Eric and footage of his Military Justice class mooting the case.

The Lorance fact pattern isn’t a classic “following orders” case. Lorance was not following any orders when he ordered the shooting. The fact pattern does set up interesting issues with the soldiers in his platoon, though. Some followed illegal orders (like shooting harassing fire at the village) and some refused illegal orders (like reporting false information to the higher headquarters). It looks like the soldiers were granted immunity for those actions so that they would testify, and I expect that the defense will tie this into the idea that the whole platoon had a motive to lie. By saying Lorance was 100% at fault, they could get the immunity they needed.

Here is the basic quandary. We want soldiers to follow orders immediately. If they don’t, they can be prosecuted for failing to follow an order. However, if they do follow the order, and it turns out that the underlying action is unlawful, they can be prosecuted for doing that unlawful action. When put in a sketchy circumstance, it looks like they are damned if they do, damned if they don’t. Should they risk being prosecuted for refusing the order, or risk being prosecuted for doing something that might be illegal?

In 1621, Gustavus Adolphus included a section in his Code that dealt with this problem. Article 46 says that no officers may order anyone to do anything unlawful. Article 45 tells soldiers to follow orders, but if an order is unlawful, to disobey the order and report the problem to higher.

Current American military law is not too far off from that. The law is weighted toward having the service member follow the order. Service members should infer that the order is lawful and they assume the risk of not following the order. They should only refuse patently illegal orders. Usually, this issue comes up when soldiers refuse to follow an order to deploy somewhere, arguing that the war is illegal. This issue is litigated before trial, where the military judge decides whether the order was lawful or not. If lawful, then the soldier has a tough case ahead (it is pretty clear that they did not follow an order). If the military judge says that the order was unlawful, then the government has failed to state an offense (it is not against the law to refuse to do something illegal).

If service members do follow the order, and it turns out that the underlying action was illegal, then they can raise the defense of following orders. Under that defense, they are excused unless they know or should have known that the order was illegal (which is the same thing as the order being patently illegal). Once raised, the government must disprove the defense beyond a reasonable doubt.

Returning to the Lorance facts, the soldiers who fired the harassing fire into the village followed an order, it turns out that underlying action was unlawful, and if they had been prosecuted, they could have raised a defense. They would likely lose on that defense, though, because everyone knows you can’t shoot harassing fire. The order was patently illegal.

The soldiers who refused to make false reports could have been prosecuted for that (that would be very unlikely). They would have argued before trial that the order was unlawful, and a military judge would certainly agree with that.

How about the soldiers who shot at the men on the motorcycle? Again, they followed orders. If they were prosecuted, they could raise the defense of following orders. I think they would win on that. They had no idea what Lorance might have known. Lorance could have received intelligence from higher that the men were about to threaten the unit, for example. Further, the soldier in the gun truck was separated from the rest of the unit. He didn’t know what Lorance might have seen that he did not. The government would have to prove beyond a reasonable doubt that they knew or should have known that the order was illegal, and I don’t think the government would be able to meet that burden.

These issues should come up in the next episode, but with more of a focus on the granting of immunity. The soldiers who fired the harassing shots needed immunity and maybe they would have the potential for bias. I don’t think anyone else needed immunity so I can’t see why they would be biased.

Posted by Howard Wasserman on November 2, 2019 at 02:03 PM in Criminal Law, Culture, Howard Wasserman | Permalink | Comments (1)

Friday, November 01, 2019

Fun with diversity (Updated)

Two fun news stories on diversity.

1) President Trump announced yesterday that he was changing his domicile from New York to Florida, although he insists he enjoys living in the White House and plans to continue to do so for another five years. The jurisdiction essay for spring 2017 had Trump attempting to remove Summer Zervos' lawsuit; the best answer was despite having moved to Washington and owning property in Florida at which he spent a bit of time, he remained a New York citizen and was barred from removal by the Forum Defendant Rule.

So has Trump affected a change of domicile with his announcement, seeing as how he owns property and spends some part of the year in Florida? Or does he need to be present there more permanently after leaving the White House? Better still, does his stated desire to remain the White House five more years suggest an intent to remain (and thus a change to DC), at least for now?

2) I got a call from a journalist about this one. An insurance company filed suit against a Washington, D.C.-based law firm (a limited partnership). The firm moved to dismiss because it has a London office and a partner a U.S. citizen) who moved to London to staff the office, has been there for five years, and intends to remain in London for the foreseeable future, while keeping his U.S. citizenship. Because that London partner is domiciled in the U.K. while remaining a U.S. citizen, he is "stateless" for diversity purposes. And because a partnership takes on the citizenship of all partners, the partnership is stateless for diversity purposes. Thank you, Elizabeth Taylor.

I could not tell the reporter whether this was unusual or whether it was an increasing trend. The firm's motion cites a 1990 case from the Second Circuit holding that Sullivan Cromwell could not be sued in diversity because of its U.S.-citizen partners staffing overseas offices.

What I cannot figure out is why the firm (which filed its own suit in state court) would rather be in NC state court against a NC-based insurer. It is both an outsider to the state and a defendant, the two groups who generally want to be in federal court.

Posted by Howard Wasserman on November 1, 2019 at 01:58 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)