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Friday, January 31, 2020

The Chief Justice on Tie Votes in an Impeachment Trial

I found the Chief Justice's answer to the parliamentary inquiry interesting. He said that (despite the precedents set by Chief Justice Chase) there was no general authority for him to break tie votes in an impeachment trial. He then said that it would be inappropriate for him to break ties because he is unelected (unlike the Vice President) and not accountable for his vote. Personally, I think he was wrong in disclaiming that authority instead of using the convention followed by the Speaker of the House of Commons. Alas.

Since there was no tie vote to break, I'm somewhat puzzled about why the question was asked now (rather than, say, earlier in the trial). I certainly hope that there is no need to revisit this question anytime soon, because that would mean another President was being impeached.

 

Posted by Gerard Magliocca on January 31, 2020 at 08:35 PM | Permalink | Comments (4)

A Different Way To Look at the Chief Justice's Vote

Suppose that there is a tie vote on witnesses today. Assuming that the Chief Justice says that he can break a tie but then exercises his discretion somehow, does that not create an argument for his recusal in the cases involving the litigation between the President and the Congress over executive privilege or tax returns? If he votes for witnesses, then the White House can argue that creates an appearance of bias. But if he does not vote for witnesses, then Congress can argue the same.

This is why it would be better if he came up with some neutral explanation or rule for his preferred course of action, if he can. 

Posted by Gerard Magliocca on January 31, 2020 at 10:35 AM | Permalink | Comments (7)

Appellate argument (and law school), encapsulated (Updated)

From the Sixth Circuit argument in Higgins v. Kentucky Sports Radio, a lawsuit brought by a college referee who was attacked online by Kentucky basketball fans (particularly through harassing phone calls and negative reviews of his roofing business) following some controversial calls in a game UK lost. The defendants are the radio station and announcer who reported on and promoted the efforts, in a way the plaintiff alleges constitutes incitement and conspiracy to defame. (H/T: Regular reader and commenter Asher Steinberg).

In an argument that otherwise went well for the radio station, I loved this exchange (around 19:00) between the station's attorney and one judge (not sure who turns out to have been Judge Sutton), when the judge asked whether a more direct instance of incitement would have survived 12(b)(6):

Attorney: Your Honor, I'm hesitant to comment on hypotheticals. The point is that is not this case.

Judge Sutton: OK, wait. I hate to break it to you, particularly with some law students here. That is all we do. *** You want to win for your client today. And we do not want to issue a ruling that we will have to denounce tomorrow for the next case.

Posted by Howard Wasserman on January 31, 2020 at 08:33 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, January 30, 2020

Between Truth and Power: The Legal Constructions of Informational Capitalism Roundtable

I'm in Notre Dame and excited to be part of a roundtable in honor of Julie Cohen's new book, Between Truth and Power. The book is dazzling in its breadth and insights. Between Truth and Power asks us to consider the new ways powerful actors extract valuable resources for gain and dominance. Cohen in particular warns that “the universe of personal data as a commons [is] ripe for exploitation.” Cohen writes that “if protections against discrimination, fraud, manipulation, and election interference are to be preserved in the era of infoglut, regulators will need to engage more directly with practices of data-driven, algorithmic intermediation and their uses and abuses.” In my response essay, Biopolitical Opportunities: Between Datafication & Governance, which I am presenting tomorrow, I read Between Truth and Power as not only a compelling account of the contemporary transformations of law and markets but also a call to action. This essay takes up Cohen’s challenge by considering ways in which governments can engage in new forms of governance to leverage the very same biopolitical data extracted by private actors for profit purposes in service of public goals of fairness, equality, and distributive justice. In particular, the essay describes several current initiatives which demonstrate how datafication can, and indeed should, be employed to aid regulatory research, enforcement, and accountability. The two examples I focus on are first, current developments in labor market information flows, attempting to address salary inequities, labor market concentration, and bias, and second, scraping data off platforms in service of regulatory compliance. I argue that if we are to take Cohen’s framework seriously, then policymakers have no choice but to identify opportunities within disruptive technological changes and frequently mirror, rather than attempt to block, these innovations.

Here at Notre Dame, Mark McKenna per his usual has put together a fantastic group of commentators on  Authority and Legitimacy in the Age of Informational Capitalism - Ari Waldman, Bill McGeveran & Dan Burk; Information Capitalism through Lens of Legal and Professional Culture: Jessica Silbey, Andrew Woods, Neil Richards & Anupam Chander; and Alternative Futures: Orly Lobel, Deirdre Mulligan, Jennifer Daskal & Elliot Visconsi.

 

Posted by Orly Lobel on January 30, 2020 at 11:52 PM | Permalink | Comments (1)

Between Truth and Power: The Legal Constructions of Informational Capitalism Roundtable

I'm in Notre Dame and excited to be part of a roundtable in honor of Julie Cohen's new book, Between Truth and Power. The book is dazzling in its breadth and insights. Between Truth and Power asks us to consider the new ways powerful actors extract valuable resources for gain and dominance. Cohen in particular warns that “the universe of personal data as a commons [is] ripe for exploitation.” Cohen writes that “if protections against discrimination, fraud, manipulation, and election interference are to be preserved in the era of infoglut, regulators will need to engage more directly with practices of data-driven, algorithmic intermediation and their uses and abuses.” In my response essay, Biopolitical Opportunities: Between Datafication & Governance, which I am presenting tomorrow, I read Between Truth and Power as not only a compelling account of the contemporary transformations of law and markets but also a call to action. This essay takes up Cohen’s challenge by considering ways in which governments can engage in new forms of governance to leverage the very same biopolitical data extracted by private actors for profit purposes in service of public goals of fairness, equality, and distributive justice. In particular, the essay describes several current initiatives which demonstrate how datafication can, and indeed should, be employed to aid regulatory research, enforcement, and accountability. The two examples I focus on are first, current developments in labor market information flows, attempting to address salary inequities, labor market concentration, and bias, and second, scraping data off platforms in service of regulatory compliance. I argue that if we are to take Cohen’s framework seriously, then policymakers have no choice but to identify opportunities within disruptive technological changes and frequently mirror, rather than attempt to block, these innovations.

Here at Notre Dame, Mark McKenna per his usual has put together a fantastic group of commentators on  Authority and Legitimacy in the Age of Informational Capitalism - Ari Waldman, Bill McGeveran & Dan Burk; Information Capitalism through Lens of Legal and Professional Culture: Jessica Silbey, Andrew Woods, Neil Richards & Anupam Chander; and Alternative Futures: Orly Lobel, Deirdre Mulligan, Jennifer Daskal & Elliot Visconsi.

 

Posted by Orly Lobel on January 30, 2020 at 11:52 PM | Permalink | Comments (1)

Academic Feeder Judges

I have posted to SSRN the pre-submission draft of Academic Feeder Judges--a study of the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and who “produce” law professors from the ranks of their former clerks. Coming soon to a law-review mailbox near you.

Update: Karen Sloan at National Law Journal gave the piece a nice little write-up, as did Above the Law.

The abstract is after the jump. Spoiler alert above the jump: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), Dorothy Nelson (Ninth Circuit), Richard Posner (Seventh Circuit, resigned in 2018), and Harry Edwards (D.C. Circuit).

PermaPrawfs' former judges are well-represented in the top-101 (arbitrarily set at 8+ academic former clerks)--John Walker of the Second Circuit (Ethan), Patrick Higginbotham of the Fifth Circuit (Rick H.), Joseph Sneed of the Ninth Circuit, died in 2008 (Lyrissa), Alex Kozinski of the Ninth Circuit (Dan), Raymond Randolph of the D.C. Circuit (Carissa), Calabresi (Gerard), and Jane Roth of the Third Circuit (me, as well as current guest Christine Chabot). Marsha Berzon of the Ninth Circuit (Steve), Richard Arnold of the Eighth CIrcuit (Rick G.), and Ed Carnes of the Eleventh Circuit (Paul) just missed the 8-prof line.

I wrote previously about the origins of the paper: Seven or eight years ago while helping with a reunion/portrait unveiling for Judge Roth, I noticed what seemed a lot of .edu addresses on the list of former clerks. I wondered how many of her former clerks went into teaching (13, it turned out, plus several in other disciplines), whether that was a lot or a little, and who among lower-court judges "produced" academics from among their former clerks. I finally got around to doing the study and writing the paper.

Comments welcome.

This paper identifies “academic feeder judges”—the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and the judges who “produce” law professors from the ranks of their former clerks. The study is based on a summer 2019 review of publicly available biographies and c.v.’s of full-time faculty at ABA-accredited law schools, identifying more than 3000 “academic former clerks” and the judges for whom each clerked. From this, the paper identifies 1) 101 lower federal judges with the most academic former clerks, 2) 52 federal trial judges, 3) 53 federal judges appointed since 1995, 4) top state-court judges, and 5) SCOTUS justices, current and past. For each judge within each grouping, the study examines appointing presidents, biographical information such as former career, numbers of academic former clerks, rankings of the schools at which former clerks teach, and a projection of how many academics newer judges might produce over a 35-year judicial career. The study closes with some comments and conclusions from the data. (Spoiler alert: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed closely by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), and Dorothy Nelson (Ninth Circuit)).

Posted by Howard Wasserman on January 30, 2020 at 03:17 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (3)

On Presidential Accountability and Running Out the Clock

There are really very few opportunities to meaningfully hold a modern American president personally accountable when his party stands behind him.

1. A sitting President can't be criminally prosecuted, at least according to the executive branch and notable executive branch alumni.

2. Civilly, the President is absolutely immune, even after leaving office, for official actions taken while President.

3. Electorally, since the 22nd Amendment, a President stands for reelection only once, but typically has enormous advantages as incumbent and head of a major political party. If the President prioritizes self-preservation over party, the subsequent political fallout for party is a non-check.

4. Then, there’s removal from office through impeachment and conviction.

That bicameral "hundred-ton-gun" is difficult to bring to bear against a President. And Congress has terrible aim. Congress: 0, POTUS: 2. And, no, we shouldn't count Nixon's in terrorem resignation. My inquiry is interested in holding a president accountable even when his party stands behind him. The GOP of Nixon's era was unwilling to support him. As the Post reported, "Mr. Nixon said he decided he must resign when he concluded that he no longer had 'a strong enough political base in the Congress' to make it possible for him to complete his term of office."

The slowness of impeachment and the 4-year-term clock is an acute problem.

Trump's trial team has pressed the procedural argument that the House should have (effectively) conducted all investigation and fact development prior to the Senate trial. Of course, this process argument against witnesses and additional evidence would suffocate most impeachment efforts that involve factual disputes. If the Democratically controlled House actually decided to go back and try and gather additional evidence now by litigating House subpoenas, the ensuing presidential assertions of executive privilege and litigation would drag on for months if not years.

Thus, if a President ran out the clock on the term of office, impeachment of Presidents (but not judges) effectively becomes a dead letter. The delay would not only blunt accountability, but deny it altogether.

That outcome's absurdity suggests that:

(1) the original impeachment process cannot effectively function in cases of presidential impeachment and requires amendment, for example, by (i) very clearly empowering a presiding Chief Justice to adjudicate disputes about privilege (as a substitute for satellite pre-trial litigation), and (ii) authorizing both chambers of Congress to legislatively commit to more detailed impeachment procedure--at a time not connected with a live impeachment controversy--to lessen the problem of partisan bespoke trial process; and

(2) the other legal and political methods of holding presidents accountable, such as #1, the executive branch's self-serving view of immunity against criminal prosecution of a sitting president, should be revisited.

A constitutional amendment may be the deus ex machina of intractable governance problems, but that feels like where we are now. Pragmatism about partisanship tells me, given current political realities, Article V would never be unsuccessfully invoked to address this particular impeachment or perhaps even this President. A prospective-only amendment, however, might prove a more successful strategy, particularly if partisans could, through futurity's uncertainty, come to look at the problem impartially.

Update (Feb. 6, 2020): Senator Rick Scott (R-FL) has proposed amending the impeachment process -- definitely not the constitutional amendment to the impeachment process I was proposing and principally offered as a partisan sally following acquittal.

Posted by T. Samahon on January 30, 2020 at 08:00 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (4)

Tuesday, January 28, 2020

A Necessary Implication

Professor Dershowitz said yesterday that the articles of impeachment are defective because abuse of power and obstruction of Congress without a violation of law is not an impeachable offense. He added, therefore, that the Bolton revelations, even if true, are irrelevant.

If the Senate decides to call Bolton as a witness or subpoena his draft book, though, then that means that the Senate does not see those facts as irrelevant. It follows from that, I think, that the Senate would then be rejecting the President's legal position that an abuse of power can never be an impeachable offense. 

Posted by Gerard Magliocca on January 28, 2020 at 02:23 PM | Permalink | Comments (4)

Monday, January 27, 2020

Thomas and Gorsuch on universal injunctions (Updated)

SCOTUS stayed pending appeal the injunction prohibiting enforcement of the Trump Administration's public-charge regulation, another example of the government seeking and the Court granting extraordinary relief to allow the administration to continue enforcing policies pending litigation where the lower court found the policies defective. Justice Gorsuch, joined by Justice Thomas, concurred in the stay, to take aim at universal injunctions (with citation to the work of Sam Bray and Michael Morley), properly defining them as injunctions protecting beyond parties rather than in geographic terms.

Unsurprisingly, I agree with Gorsuch's basic point against universal injunctions. I am not sure what it has to do with this case. Gorsuch would have granted this stay regardless of the injunction's scope. And I am sure he is waiting for the government to challenge a particularized Illinois injunction that (he acknowledges) remains in effect so he can stay that, as well.

Update: I wanted to come back to the question of whether the stay was proper. Given the make-up of the Court, it seems clear that, when the case comes to the Court on the merits, the majority will declare the policy valid. That aside, what about the stay? Where the district court granted an injunction, the question should be what will create more permanent and long-lasting chaos--staying the injunction (thus allowing enforcement of the underlying policy) or allowing the injunction to remain in effect (thus stopping enforcement of the underlying policy, allowing continuation of the primary conduct the regulation is designed to stop.

Today's order means the U.S. can deny status to certain people for the moment, although should the reg be declared invalid at the end of the day, those people could then reapply and be considered without the now-unlawful policy. Had the Court not stayed the injunction, people otherwise subject to the order could enter and/or gain status; if the order ultimately is declared valid, the government would have people in the U.S. or with status who otherwise should not have been permitted. It does not seem that the government could retroactively apply the regulation to remove presence or status already granted under the old rules. So as abhorrent as I find the policy, it seems a stay was appropriate. Where am I going wrong?

Posted by Howard Wasserman on January 27, 2020 at 01:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Congressional design, Senate partisanship by class, and impeachment trial politics

Post-17th Amendment, both the House and the Senate are directly elected--a change from the earlier dual constituency of state legislative election of senators. Still, important differences remain that result in intra-branch friction such as we're seeing in the impeachment process.

By design, the House would be more democratically responsive than the Senate due to its shorter terms and its method of direct election. One perceived downside was the House would be "liable to err also, from fickleness and passion." This is consistent with the apocryphal explanation that the Senate was designed to "cool" the politically responsive House as a tea saucer cooled hot tea.  The chambers’ different characters were features, not flaws, such as the requirement that the more politically accountable House “hold the purse” by originating all tax revenue measures but requiring Senate concurrence for them. Like hot and cold faucets, the chambers could deliver warm, but non-scalding (and non-freezing) water to the public.

Beyond Senate direct election and the 17th Amendment, consider an important political development on the House side that makes the House's "water" even more scalding. Aggressive gerrymandering in the House effectively allows representatives to choose their voters rather than the other way around. This bipartisan opportunity has changed over time and is far more effective now than it was at the founding. The House has very heavily gerrymandered districts (except for 1 representative states with at large districts, e.g. Wyoming, Montana, etc.) with very low rates of incumbents losing those seats. The increase in polarized House districts maintains that body's penchant for fiery politics, but it also makes the seats securely partisan. The Framers were right the House would prove hot headed, but not because the body was being responsive to what Americans in the aggregate in the several states would want. In a sense, with the new gerrymandering, the House lost some of the feature but kept the flaw - the House now is only modestly politically responsive, but still subject to fits and passions from partisanly gerrymandered, center fleeing districts.

The House-side development is not a phenomenon that occurs in isolation, however. If the House's still scalding water temperature is to be cooled, it requires the Senate to be more removed from partisanship. But today's elected Senate seats, incapable of being gerrymandered, are more competitive than House races. Consequently, senators up for reelection must be more politically responsive to their states’ voters in the run up to an election as they try to capture the median voter for their state. In the continuous body of the Senate, different Senate classes of senators (I, II, or III) will weight their responsiveness to voters depending on their proximity to election. Senators temporally closest to Election Day will, relatively speaking, be most responsive to voters in their states and the donors who facilitate their reelection. As one unidentified senator reported to political scientist Richard Fenno, “[w]e say in the Senate that we spend four years as a statesman and two years as a politician.” Those most distant to election will be able to vote their independent judgments. The basis for acting with greater independence includes beliefs that voters have short memories, that time will vindicate the wisdom of a senator's vote, or that voters back home will find subsequent action that they approve to outweigh earlier displays of independence.

Steven Levitt modeled (JSTOR access required) how senators vote, estimating the relative weights of overall voter preferences of the state electorate, supporter preferences, the national party line, and the senator’s personal ideology. His research called into doubt the median voter theorem as it found the primary determinant of a vote was a senator's ideology (63%). Importantly, though, the effect of election proximity and Senate tenure did bear out Fenno's anecdote: “[a]s elections near [i.e. votes in the election year for non-retiring senators], the weight given to overall state voter preferences doubles [from 9% to 18%], with that increase being offset by a decline in the weight placed on the party line.” In short, senators in classes I (reelection in 2024), II (reelection in 2020), and III (reelection in 2022) can be expected to vote differently.

Turning to impeachment votes to be held prior to November 2020, I've noted the Senate was selected to act as the court of impeachment because it was considered to be "sufficiently independent." But the level of independence will differ across the body given senator proximity to election. There is no legal sanction for breaking one’s impeachment trial oath to "do impartial justice according to the Constitution and laws." The only here-and-now sanction for oath breaking is the republican remedy of election. And the administering of that remedy lies in the hands of electorates back home.

So, on this account, laying impeachment law and evidence aside, it's unsurprising that Class II senators McConnell (KY, in state Trump net approval +14) or Graham (SC, Trump net approval +5) would coordinate with Trump or otherwise support a Trump acquittal; or that Collins (R-ME, Trump net approval -6) would position herself as independent; or that McSally would prove taciturn (R-AZ, Trump net approval -3); or that Jones would withhold judgment yet question whether there was enough evidence to convict (D-AL, Trump net approval +22); or that Coons would signal his approval of the case made by the House managers (D-DE, Trump net approval -15), etc.

This is not to say "it's all politics" in response to voter preferences or that all voter preferences are bad, especially if in the context of impeachment voters are demanding non-partisanship and the exercise of judgment. But it might mean Senate Classes I and III will need to be the segments of the continuing body willing to exercise "sufficient" independence.

Posted by T. Samahon on January 27, 2020 at 11:45 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (3)

Sunday, January 26, 2020

Alan Dershowitz Is Barking Up the Wrong Tree

Tomorrow the President's lawyers will argue that an abuse of power, without an alleged violation of law, cannot be a high crime and misdemeanor under the Constitution. Alan Dershowitz, who is expected to make this claim, took the opposite view during President Clinton's impeachment. But he now says he's changed his mind, based in part on his research into President Andrew Johnson's impeachment trial. As someone who has studied and written about the Johnson trial, I cannot see how that precedent can lead to the conclusion that an abuse of power is not impeachable. Professor Dershowitz is wrong if says otherwise. Let me explain why.

President Johnson's lawyers did contend that an abuse of power--standing alone--was not impeachable. This  argument was made in response to one of the articles of impeachment--Article X--that did not allege a violation of law and only alleged an abuse of power. The Senate, of course, acquitted President Johnson. From this, I gather, Professor Dershowitz wants to argue that the Johnson trial created a precedent that an abuse of power cannot be an impeachable offense.

One problem with this claim is that many of the Senators in the Johnson trial explained their votes in written "opinions" published after the verdict was delivered. You can read those opinions here (from pages 417 to 524 in the Supplement to the Congressional Globe.) Guess how many Senators endorsed the view that an abuse of power alone cannot be a high crime and misdemeanor? Zero. That's right--zero. The Senators who voted not guilty and wrote opinions instead said that they either thought President Johnson did not abuse his power or that he did not do so in a manner serious enough to warrant removal. These written opinions are the law of the Johnson impeachment trial, just as written judicial opinions are for an ordinary court case.

Accordingly, the Johnson precedent does not support President Trump's claim than an abuse of power alone is not impeachable. There are other ways of making that argument, I suppose, but this is not one of them. 

Posted by Gerard Magliocca on January 26, 2020 at 07:59 PM | Permalink | Comments (3)

Saturday, January 25, 2020

On Disappointed Presidents

President Trump’s response to impeachment proceedings seems more defiant than regretful. The President has expressed regret in other areas, however.  He “may[]” regret his appointment of Jerome Powell as Chair of the Federal Reserve. The President may also have reason to be disappointed in Chief Justice Roberts, a Republican appointee who has publicly countered the President’s attack on the independence of federal judges. Any disappointment suffered by the President would reflect Powell’s and Roberts’ independence and ability to remain in office while making decisions contrary to the President’s wishes. The independence of administrative agencies such as the Fed has been controversial. The independence of the federal judiciary is established by Article III of the Constitution.  

Supreme Court Justices have a long history of casting independent votes that disappoint the presidents who appointed them. President Eisenhower declared Justice Brennan one of his greatest “mistakes.” A disappointed President Theodore Roosevelt complained that he “could carve out of a banana a Judge with more backbone than” Justice Holmes. Historically, Justices’ voting records in non-unanimous cases reflect a strong tradition of independence, though there is reason to think that presidents have enhanced their ability to appoint ideologically compatible Justices in recent decades. As noted by Lee Epstein and Eric Posner, we may be on the cusp of a new era in which Justices’ votes align with the parties of their appointing presidents more than ever before. It seems unlikely that the Court will ever have another Justice like John Paul Stevens, a Republican appointee who generally sided with the liberal wing of the Court, or even a more moderate Republican appointee like Justice Kennedy.

Any shift to a more political court would still depend on Chief Justice Roberts, who may have a broader commitment to the Court’s institutional independence. And perhaps Justice Gorsuch’s commitment to originalism and textualism will lead to unexpected results in certain cases. The magnitude of any change would also depend on the types of cases that the Court chooses to decide. A Term in which the Court overruled Roe v. Wade and declared vast swaths of the administrative state unconstitutional would be very different than one in which none of these things occurred. 

Notwithstanding any increase in politicized voting, presidents ultimately lack power to create vacancies that allow them to appoint new Justices to the Court. Article III’s life tenure provisions instead allow Justices to choose when they will retire. In recent decades many Justices have chosen to remain on the bench and pass up politically opportune retirements. Justice Ginsburg declined to retire when President Obama was in office, and last year Justice Thomas declined to retire during President Trump’s first term in office. (Because it is an election year, none of the Justices are likely to retire voluntarily this year.) Both of these possible retirements would have maximized Justice Ginsburg’s and Justice Thomas’s odds of being replaced by like-minded successors who would remain on the Court for many decades to come. Justices’ autonomous retirement decisions present another facet of judicial independence that one would not expect to change any time soon.

Posted by Christine Chabot on January 25, 2020 at 09:48 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (2)

Judge Easterbrook does judicial departmentalism

People are talking about Judge Easterbrook's opinion for the Seventh Circuit in Baez-Sanchez v. Barr, taking the BIA to task for not following the court's instructions on remand. Easterbrook is outraged about executive conduct that "beggars belief.' The court has "never before encountered defiance of a remand order,and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails."

Easterbrook then says the following:

A judicial decision does not require the Executive Branch to abandon its views about what the law provides, for the doctrine of offensive non-mutual issue preclusion does not apply to the United States. United States v. Mendoza, 464 U.S. 154 (1984). The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistakenthough it has been followed elsewhere, see Meridor v. Attorney General, 891 F.3d 1302, 1307 & n.8 (11th Cir. 2018). But they are not free to disregard our mandate in the very case making the decision. That much, at least, is well established, not only in Plaut but also in many other cases. See, e.g., United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

Although he does not use the term, this is a nice and succinct encapsulation of judicial departmentalism: The executive can disagree with and disregard a judicial decision it regards as mistaken in some other case. But the executive cannot disregard the court's mandate in the current case when that mandate has become final and unreviewable.

Posted by Howard Wasserman on January 25, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Immigration, Judicial Process | Permalink | Comments (6)

Friday, January 24, 2020

A False Argument About the Impeachment Trial

Some Republican Senators are arguing that calling witnesses in the impeachment trial would lead to litigation and delay the proceedings for months. This assertion is false and sounds like an excuse not to call witnesses.

Nixon v. United States (the case about Judge Nixon, not President Nixon) makes clear that the federal courts have no authority over the manner in which the Senate conducts impeachment trials. Period. This conclusion is firmly supported by the text of the Constitution, which gives the Senate the sole power to try all impeachments. Period. Any other conclusion creates all sorts of problems. Can a federal district court enjoin the Senate from holding the trial? Can that court order the Chief Justice to halt the proceedings? The idea is preposterous and unlawful.

Posted by Gerard Magliocca on January 24, 2020 at 10:31 AM | Permalink | Comments (7)

In (Partial) Defense of Chief Justice Chase

Salmon Chase is getting clobbered in the press this week. People are criticizing his conduct  in presiding over the Andrew Johnson trial and urging Chief Justice Roberts not to follow his example. There is merit to these criticisms. Chief Justice Chase was trying to run for President in 1868 and shaped his rulings in the trial to further that goal. Shame on him.

Chief Justice Chase's aggressive view of his authority as the presiding officer, though, is another matter. One important point that is often overlooked is that Chase was a former Senator. As a result, he was very familiar with the Senate's procedures and probably felt confident in his ability and authority to run the trial. By contrast, Chief Justice Roberts is new to the Senate and must rely heavily on the parliamentarian. So he is probably more hesitant to take any initiative, though that may change as the trial unfolds. I don't think, though, that Chief Justice's political aspirations undercut the validity of the precedents that he set in 1868 (such as the Chief's power to break tie votes in the Senate). 

Posted by Gerard Magliocca on January 24, 2020 at 09:17 AM | Permalink | Comments (0)

Musical grammar scolds

I recently found myself having to explain the difference between "was" and "were" as the verb in a conditional sentence ("If X were true" rather than "If X was true"). I offered the example of the song What if God Was One of Us, which, of course, should have been "What if God were one of us."

This got me thinking of other songs with glaring grammatical errors. I thought of Live and Let Die's "if this ever-changing world in which we live in."

Other thoughts? A non-law diversion for a Friday.

Posted by Howard Wasserman on January 24, 2020 at 08:53 AM in Culture, Howard Wasserman | Permalink | Comments (10)

Thursday, January 23, 2020

Janus and Stare Decisis

Labor scholars have explored Janus and its implications to unions and the job market, but Mike Gentithes has written an article arguing that the most pernicious effect of the case will be the way it undermines stare decisis generally, with dire consequences for abortion rights, civil liberties...

here is the abstract: 

Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly and undermine trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court, acting as a bulwark to wholesale jurisprudential reversals by the Justices. Yet in recent years, the stare decisis doctrine itself has come under threat.

With little public or scholarly notice, the Supreme Court has radically weakened stare decisis. The Court has long suggested that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. But in several recent decisions, the Court has suggested that “poor reasoning” in a prior decision both triggers stare decisis analysis and justifies overruling cases. This presents a grave threat to legal stability. Justices can always find reasoning they believe is “poor” in prior decisions. Stare decisis under this formulation provides little restraint against changing course. It also opens the door to “wave theories” of stare decisis, whereby new Justices seeking rapid change can claim fidelity to a weak version of stare decisis early in their careers, only to suggest a stronger version later to protect their own decisions.

This weakened version of stare decisis has deep analytical flaws that would allow perpetual changes to legal doctrine based simply on the current Justices’ policy preferences. The Court must not accept the alarming effects such a weak version of stare decisis would have on legal stability, consistency, and judicial legitimacy.

very interesting read. H/T Rick Bales.

Posted by Orly Lobel on January 23, 2020 at 11:36 AM | Permalink | Comments (8)

Wednesday, January 22, 2020

Notice, Vagueness, and Trump’s Anti-Impeachment Argument

On Monday, the President’s lawyers filed a memorandum with the Senate that lays out his response to the House’s impeachment case. One argument in the memo stood out to me—the idea that President Trump cannot be impeached because he did not violate a specific criminal law.  The President’s lawyers are making this argument in response to the first article of impeachment—the one that alleges an abuse of power. 

This argument has gotten a lot of attention because Alan Dershowitz, who recently joined the President’s legal team, has argued that, as a historical matter, impeachment and removal are only constitutionally permitted if Congress proves the President committed a crime.  There is ample evidence that contradicts Dershowitz’s historical argument—evidence that constitutional experts across the country have been quick to identify

Importantly, the President’s lawyers have framed the argument in terms that are not purely historical.  They have also argued that, as a substantive legal matter, a President may only be impeached and removed for conduct that is clearly forbidden by law.  That substantive argument is not receiving the same level of attention as Dershowitz’s historical argument. (Though I do recommend this great essay from Ilya Somin over at the Volokh Conspiracy.)  Because the substantive argument is intuitively appealing, I think that it is important to highlight what is wrong with it.

The President’s substantive argument, in a nutshell, is that he cannot be impeached for abuse of power because there is no clear, legal definition of “abuse of power.”  In the absence of a clear definition, the argument goes, it would be unfair to impeach the President because, at the time he acted, President Trump did not know that conduct was forbidden.  It would also give Congress too much power because Congress could use the nebulous charge of “abuse of power” to impeach and remove future presidents based on legitimate policy disagreements.  If these sound familiar to you, it may be because they are similar to an argument that Josh Blackman made several weeks ago.

These may also seem like familiar arguments because they are based on due process principles.  In particular, they rely on arguments that justify the rule of lenity and the void-for-vagueness doctrine—due process limitations that many of us learned about in our first year criminal law classes.  Personally, I love teaching these topics to my students, and I have also used those principles in my scholarship to repeatedly argue for more narrow and more specific criminal laws.  But here is the rub:  I make these arguments because this is not the current law in this country.  We routinely punish people without making clear beforehand what people can and cannot do.  We have done so since this country was founded nearly 250 years ago.  We do this despite the fact that it isn’t fair to the people we punish.  And we do it despite the fact that it gives police and prosecutors enormous amounts of power.

For example, we routinely criminalize certain conduct only if it is “unreasonable.”  That term appears in literally hundreds of criminal laws in all fifty states.  What distinguishes reasonable conduct from unreasonable conduct?  The answer to that question probably changes from person to person.  And so criminal laws that forbid “unreasonable” conduct require people to guess whether prosecutors or jurors will think that their actions were reasonable or unreasonable.  Yet, the Supreme Court confirmed as recently as 2015 that those laws are constitutional.  We’ve used that same malleable standard for literally centuries.  As Supreme Court Justice Oliver Wendell Holmes once said: “[T]he  law  is  full  of  instances  where  a  man’s  fate  depends  on  his estimating  rightly,  that  is,  as  the  jury  subsequently  estimates  it,  some matter of degree.  If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.”

To be sure, the Supreme Court has, on a small number of occasions, said that a criminal law can be so vague that it violates the Constitution’s guarantee of due process.  But those decisions have either involved laws that appeared to impinge on other important constitutional rights, like the right to free speech, or they have come in the wake of repeated unsuccessful attempts by courts to make sense of confusing or conflicting statutory language

But “abuse of power” doesn’t fit into either of those categories.  Instead, it looks quite similar to other phrases that the Court has allowed stand, relying on courts to give meaning to them over time.  The Sherman Act’s prohibition on any “contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce” provides an example.  The cases decided since the passage of the statute have confirmed that Congress essentially delegated to the federal courts the task of creating a criminal common law of antitrust.  When it comes to “abuse of power,” it isn’t as though there is no guidance about what the phrase means.  As Harvard Law Professor Niko Bowie recently pointed out, abuse of power was considered a common law crime in this country, which means that there are cases and treatises that give real content to the concept.  It is precisely this sort of case law that has insulated similar legal phrases against vagueness attacks in the past.

President Trump’s own administration houses some of the strongest advocates for imposing punishment for violations of vague laws. Lawyers in Trump’s Justice Department have argued that statutes with vague language should be enforced against individual Americans.  This doesn’t really distinguish President Trump from the presidents that proceeded him—the Department of Justice has historically defended federal laws against vagueness challenges.  But it does seem ironic that Trump’s lawyers would claim constitutional protections in an impeachment trial while his administration works to deny those same protections to people in criminal trials. 

To the extent that people want to see more robust protections against imprecise criminal laws—and I assure you that I do—it makes no sense that we would first adopt those protections in a legal proceeding involving the most powerful person in the country where the only consequence he’d suffer is removal from office.  In fact, it would stand due process on its head to say that the President would be entitled to more protections in an impeachment trial than we are willing to give to criminal defendants who are facing the possibility of lengthy sentences of imprisonment.

It is also worth noting that the President’s substantive argument—even if it is appealing in the abstract—doesn’t make any sense in this particular factual situation.  The vast majority of Americans disapprove of the President’s decision to withhold military funding from Ukraine in order to get a public announcement about an investigation into a political rival.  So even if people might disagree about how, precisely, to define a presidential abuse of power, there is a lot of agreement that these particular actions qualify.  It is also incredibly difficult to argue that President Trump didn’t know that it was an illegal abuse of power to withhold military funding from Ukraine when he made the decision to do so.  As President Trump was refusing to release the money that Congress had appropriated, career officials were sending the message to him and his advisors that this course of action was not legally permissible

Finally, it is hard to ignore how President’s own actions.  He has previously said that Article II gives him unlimited power.  And since his actions became public, President Trump has insisted that he did nothing wrong and that his phone call with the Ukrainian president was “perfect.”  This behavior is hardly what we would expect from someone who is merely uncertain about the limits of his power.  To the contrary, President Trump appears to believe that his presidential powers include the ability to put this sort of pressure on a foreign nation.  And he likely will see an acquittal in the Senate of a confirmation of such sweeping power.

Posted by Carissa Byrne Hessick on January 22, 2020 at 08:18 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink | Comments (4)

Tuesday, January 21, 2020

Defining a show trial

Some people are decrying-in-advance the upcoming Senate impeachment as a "show trial." At some level the term is apt. The factfinder seems to have its mind made up; the procedures in place do not seem calculated to discover the truth; and the proceeding will bear the cover of a judicial proceeding but serve as little more than a cover for the political decision of those in power.

But  think of "show trials" in the context of the Soviet Union or other totalitarian regimes, where the government uses the sheen of judicial process to purge and execute an enemy of the state, where a conviction is the pre-ordained result. This is going the opposite way--an acquittal is the pre-ordained result. The comparator is not Soviet or authoritarian show trials of ordained enemies. The comparator is state criminal proceedings against Klan members and other Southern whites charged with crimes against African-Americans (e.g., Byron De La Beckwith).

Does the term "show trial" still apply?

Posted by Howard Wasserman on January 21, 2020 at 03:10 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

JOTWELL: Michalski on Copus on judicial attention

The new Courts Law essay comes from Roger Michalski (Oklahoma), reviewing Ryan Copus, Statistical Precedent: Allocating Judicial Attention (Vand. L. Rev., forthcoming), which considers ways to determine the types of cases that warrant judicial attention.

Posted by Howard Wasserman on January 21, 2020 at 08:15 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, January 20, 2020

Could Congress Put Chief Justice Roberts on the Federal Reserve’s Open Market Committee? It’s Not As Crazy As You Might Think

The Supreme Court has paid careful attention to Article II’s Appointments Clause requirements in recent cases. Such enhanced scrutiny coincides with renewed constitutional challenges to the appointments process for members of the Federal Reserve’s Federal Open Market Committee. Drawing on my recent paper, this post provides several reasons why the Committee’s appointments should be considered constitutional. These appointments even find support in the First Congress’s decision to make Chief Justice John Jay an ex officio member of the Sinking Fund Commission. The Commission is a founding-era antecedent to the Open Market Committee, and Chief Justice Jay served on the Commission without ever receiving an appointment as a principal officer in the executive branch.

First consider the Appointments Clause issues raised by the Open Market Committee. Its monetary policy decisions have enormous ramifications for the U.S. economy, and yet only seven of the Committee’s twelve members (the governors) are appointed as principal officers. The remaining five members of the Committee are presidents of regional Federal Reserve banks. The bank presidents vote independently and as the governors’ colleagues on the Open Market Committee, but their appointments are approved by the governors rather than the President and Senate. Thus the bank presidents meet only the requirements for inferior officers. Peter Conti-Brown has argued that multiple vacancies on the board of governors have exacerbated the problem by granting bank presidents a majority of votes on the Open Market Committee. It’s not clear that this change (or underlying factors) would render bank presidents principal officers under current precedent. A minority of governors would still retain power to remove bank presidents at will, and regional bank presidents cannot form a quorum of the Committee necessary to transact business without the presence of at least two governors.  (Please see my paper for citations to relevant authority.)

Nor do the bank presidents’ appointments run afoul of originalist arguments for broader Appointments Clause requirements. The Sinking Fund Commission, which again was the Open Market Committee’s founding-era antecedent, provides helpful precedent on this issue. As explained earlier, the Sinking Fund Commission was proposed by Alexander Hamilton, passed by the First Congress, and signed into law by President George Washington. Like the Open Market Committee, the Sinking Fund Commission conducted open market purchases of U.S. securities pursuant to a statutory mandate. In this legislation, Congress specified that five principal officers would become ex officio members of the Sinking Fund Commission: the President of the Senate/Vice President, the Chief Justice, the Secretary of State, the Secretary of Treasury, and the Attorney General. The decision to bestow ex officio positions upon five persons who were already properly appointed principal officers is distinct from appointments concerns raised by the Open Market Committee. Still, the Sinking Fund Commission’s ex officio provisions suggest that some members of multi-member agencies may serve without meeting Appointments Clause requirements for executive officers.

Consider the Chief Justice. Chief Justice Jay was first appointed to an Article III office outside of the executive branch and performed judicial duties that had nothing to do with the Sinking Fund Commission’s open-market purchases of U.S. securities. The new duties Congress assigned as a Sinking Fund Commissioner were not germane to his existing judicial duties or even duties within the judicial branch. It would seem that the Chief Justice served on the Commission without a second appointment qualifying him to be an executive officer. The historical record does not clarify whether the Chief Justice’s role was permissible because he served alongside other properly appointed executive officers, or because the Commission’s open-market purchases were quasi-private actions that did not involve significant authority of the United States. Either way, Chief Justice Jay’s service on the Commission without an appointment to an executive post suggests that the limited appointments process for regional Federal Reserve bank presidents is also permissible.  

Posted by Christine Chabot on January 20, 2020 at 10:17 AM in Constitutional thoughts, Legal History | Permalink | Comments (1)

Securing Constitutional Change

The 22nd Amendment and its provision for presidential term limits has a neat bit of constitutional circumlocution in it to avoid “burdening” that Document with the filthy particulars of a proper noun, specifically, Harry S. Truman.  First, the Amendment articulated a general rule: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once.”

Then, the Amendment carves out an exception: “But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.” The category the exception defines has only one person within it. It never mentions Truman by name, but sure enough it applies only to him as the person who held the office of President when Congress proposed the 22nd Amendment on February 6, 1947.

Beyond this curious attention to form, this Amendment embodies pragmatic wisdom when thinking about securing future amendments. It is clear enough why Republicans would favor the 22nd Amendment after the breach of the two term so-called "tradition" with FDR and Truman's succession after FDR's death. But why would any Democrat support an amendment that term limited an incumbent Democratic President in an apparent partisan sally against FDR? To win the support of enough Democrats in Congress and the state legislatures, Truman was grandfathered. The present addressed, Democrats looked beyond that horizon to consider (i) the uncertainty of a possible future where a Republican president could potentially serve multiple terms and (ii) the wisdom of lengthy presidential tenures generally. The House and the Senate voted to pass the amendment with Democrats crossing over to join Republicans in the bicameral supermajorities.

Constitutional change requires: (1) addressing upstream political constraints of the status quo, through strategies that "buy out” incumbents whose short term political oxen would otherwise be gored, thereby making change unlikely under supermajority regimes; and (2) relying on uncertainty, such as occasionally created by futurity (or distant futurity), in order to place parties in an original position behind a veil of ignorance, at least for those changes that lack any clear substantive political valence beyond the short run. In this way, supermajority rules privilege incumbents and provide them leverage in any political bargaining, but uncertainty resulting from futurity can aid parties in thinking evenhandedly about political principles. That's not to say partisanship disappears, but this kind of strategy can peel away enough moderates on the margins to allow change to occur. As one detailed academic account explains (JSTOR subscription required), several Democrats in the House and in the Senate as well as in the state legislatures crossed over to support the amendment.

In this way, the 22nd Amendment can be seen as embodying pragmatic advice when thinking about how to secure constitutional change for what might otherwise prove political nonstarters, such as limiting and regularizing Supreme Court terms. If an amendment proposes term limiting the currently constituted Supreme Court, it's unclear why Republicans would agree. They would perceive several more 5-4 opportunities in the short run. A proposal, however, that grandfathered all existing court members while applying the limitation prospectively might be more likely to get political traction than one targeting the political status quo.

Posted by T. Samahon on January 20, 2020 at 08:00 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (3)

Sunday, January 19, 2020

The Thirteen Amendment and Criminal Convictions

I want to flag an interesting new article by James Gray Pope in NYU Law Review. Professor Pope does terrific work on Reconstruction, and I want to digest this one before discussing the implications for the Fourteenth Amendment. Here is the Abstract:

Judging from present-day legal and popular discourse, one might think that the Punishment Clause of the Thirteenth Amendment has always had one single, clear meaning: that a criminal conviction strips the offender of protection against slavery or involuntary servitude. Upon examination, however, it appears that the Amendment’s Republican framers took an entirely different view. It was the former slave masters and their Democratic allies in Congress who promoted the interpretation that prevails today. From their point of view, the text clearly specified that, once convicted of a crime, a person could be sold into slavery for life or leased for a term at the discretion of state legislatures and officials. But contemporary Republicans emphatically rejected that reading. They held that convicted persons retained protection against any servitude that was inflicted not as a punishment for crime but for some non-penological end, such as raising state revenue, generating private profits, or subjugating black labor. Within a few months of the Amendment’s ratification, the Republican majority in the Thirty-Ninth Congress had outlawed the early, race-based forms of convict leasing. When that proved insufficient, the House passed a bill outlawing race-neutral convict leasing, which the Senate postponed when the focus of Republican strategy shifted to black voting rights. 

The Republican reading faded from view after the Democratic Party regained control of the Deep South. For several decades, white supremacist regimes incarcerated African-American laborers en masse and leased them to private employers without facing a serious Thirteenth Amendment challenge. Present-day scholars sometimes treat this silence as evidence that the Amendment authorizes such practices. Courts similarly honor the Democratic reading on the assumption it has always prevailed. So thoroughly has it triumphed that even prisoners’ rights advocates accept it as constitutional truth. 

Neither courts nor advocates have, however, taken into account the framers’ views. Their interpretation sank from sight not because it was wrong but because Democratic paramilitaries terminated Reconstruction, freeing states to expand convict leasing and insulate it against challenges, constitutional or otherwise. Had the Republican reading been enforced during the era of convict leasing, it might have prevented one of the most barbaric and shameful episodes in United States history. And perhaps, if revived today, it might yet accomplish similar results. Nothing in the text, original meaning, or Supreme Court jurisprudence of the Punishment Clause blocks that path. 

Posted by Gerard Magliocca on January 19, 2020 at 09:12 PM | Permalink | Comments (3)

Law Professors, Lawyers, and Ethics

It was announced last week that Harvard law professor Alan Dershowitz has been added to President Trump’s impeachment legal team.  As Dershowitz has told multiple media outlets, it will be his role to argue that, as a constitutional matter, a President cannot be impeached unless he committed a crime.  I assume that Dershowitz’s faculty position at Harvard will give his argument additional gravitas and authority in the eyes of at least some Senators and some members of the public.

When Dershowitz appeared on CNN’s State of the Union this weekend, CNN legal analyst Jeffrey Toobin took great pains to point out that Dershowitz was making his argument about what the Constitution requires as an advocate for Trump, not as a neutral expert.  Dershowitz seemed surprised and annoyed that Toobin made such a big deal about the issue. Dershowitz readily conceded that of course he was “just a lawyer” who will be acting as an advocate, not as an expert witness. (You can see the exchange here, beginning around the one minute mark.)

But we shouldn’t overlook why Toobin thought it was important to emphasize this point on national TV.  Dershowitz is routinely identified as a constitutional scholar and a Harvard law professor. Those titles allow him to claim expertise. It gives him an air of neutrality that he wouldn’t have if he were appearing only as a lawyer. As Toobin implied, because of Dershowitz’s position at Harvard and because he will be making an argument about how to interpret the Constitution, people might mistake Dershowitz as a neutral expert.  Indeed, I imagine that it is his position at Harvard that has (at least in part) given Dershowitz the large public platform that he enjoys and that led President Trump to ask Dershowitz to join his legal team.

I’ve previously expressed concerns about law professors offering opinions on matters of public discussion.  In particular, I have concerns about law professors offering opinions outside of their areas of expertise—concerns that have only grown with the current impeachment.  But I think that Dershowitz’s joining the President’s legal team as a lawyer in order to make a particular legal argument sets up a conflict between his ethical obligations as a lawyer and his ethical obligations as a scholar. 

I believe that Dershowitz, as a scholar, has obligations of sincerity, candor, and openmindedness.  And I think that those scholarly obligations may conflict with his ethical obligation as a lawyer to “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.”   For example, I don’t see how a law professor who has been specifically asked to represent an individual in order to make a particular legal argument about a difficult legal question, such as the original meaning of a particular constitutional provision, can say that he approached that question in an openminded fashion.  He was retained to arrive at a particular conclusion; that seems like the opposite of openmindedness to me.

I want to acknowledge, of course, that some law professors earn money by consulting with practicing lawyers or by appearing as experts in litigation.  And plenty of law professors will, at least from time to time, litigate on behalf of one or more clients.  Those positions probably come into conflict—at least some of the time—with our ethical obligations as scholars.  And so I wish that law professors would spend more time thinking about our ethical obligations.  (For those who are interested in the topic, I recommend this effort that I was a part of a couple years ago in connection with the Marquette Law Review; relatedly I also recommend this excellent article by Richard Fallon about law professor amicus briefs: )

But I do worry that the particular example of Dershowitz and the Trump impeachment raises even more problems that these other situations—namely, it raises a serious problem of role confusion and unsophisticated actors.  When a law professor makes representations as an expert witness in a litigation, she has not assumed the ethical obligations of a lawyer.  She can still give an honest expert opinion that complies with her ethical obligations as a scholar without worrying that she has breached an ethical obligation to the client.* When law professors represents clients in litigation, they often do not identify themselves as law professors and so there is no role confusion.  When law professors do identify themselves by their academic role in litigation—such as when they sign a brief and include their academic institution—judges can act as a check on any role confusion.**  Perhaps judges might be more likely to accept a constitutional argument that is made by a high-profile constitutional law professor at a fancy school.  But judges also know that, once they are representing a client, law professors are bound to zealously advocate for that client.  In other words, judges are unlikely to mistake a law professor who is acting as a lawyer as a neutral expert in that case.

But Senators and the general public may well mistake Dershowitz as a neutral expert in this case.  They may be unaware of the ethical obligations that he has towards the President --- obligations that will almost certainly affect how he shapes his testimony and answers questions posed by the Senators.  In light of that, I worry that it may not be enough for Dershowitz to concede in a television interview that he will be acting as an advocate.  He may need to acknowledge it during his Senate argument.  He may need to articulate how his role as an advocate necessarily affects what he can say or do. It might even be necessary for him to say that he is appearing, not in his role as law professor, but in his role as a lawyer for the President.

 

* Of course, the law professor might have a financial incentive to give something other than an honest expert opinion that complies with her scholarly ethical obligations.  And that is also troubling.

** I don’t know how often law professors will identify themselves as such at a trial.  And even if they did, I imagine that they will rarely make arguments based on personal legal expertise.  And if they did, the judge will always instruct the jury on the actual.

Posted by Carissa Byrne Hessick on January 19, 2020 at 04:54 PM in Carissa Byrne Hessick | Permalink | Comments (14)

Friday, January 17, 2020

Faithless Electors

As if the Supreme Court did not have enough on its plate, the Justices today agreed to decide whether states can punish presidential electors who vote contrary to state law. (Personally, I think that the answer is no, but leave that aside for a moment.)

One thing that the Court could say, I suppose, is that Congress can decline to count the votes of faithless electors but that states lack the power to regulate these officials. While Congress has always counted faithless elector votes as valid, there have been debates in Congress over some of those counts. I don't know enough about those debates to reach a firm conclusion, but you might say that Congress in some sense can decide what to count.

Posted by Gerard Magliocca on January 17, 2020 at 07:55 PM | Permalink | Comments (0)

Two from the Fifth Circuit

From John Ross' invaluable weekly round-up of federal court of appeals decisions at Volokh Conspiracy come two from the Fifth Circuit.

• In U.S. v. Varner, a trans female prisoner moved the court to amend the judgment of confinement to reflect her new name, while asking the court to use her new name and preferred pronoun. My interest in the case is that the majority held that the motion to amend should have been denied for lack of jurisdiction, because no statutory or rule basis for amending a judgment applied. The dissent properly accuses the majority of issuing a "drive-by jurisdictional ruling;" what the majority labels a lack of jurisdiction is better understood as a failure of the petition on the merits, because Federal Rule of Criminal Procedure 36 allows for correction of clerical errors; the problem is that a clerical error is not at issue here. That is, the failure of the petition to satisfy the rule defeats the petition, but not for lack of jurisdiction.

I will not say much about the dispute between majority and dissent about the pronoun request, except that the dissent has the better reading of the request and I cannot imagine a court being more dismissive of the preferred-pronoun issue.

• In Horvath v. City of Leander, the court affirmed a grant of summary judgment against a firefighter on a claim that the city violated the First Amendment by insisting that he take a different job or wear a respirator because he claimed a religious objection to the TDAP vaccine. The majority found that the city offered a reasonable accommodation, which the plaintiff refused.

Judge Ho concurred in the judgment in part and dissented in part. Ho would affirm the judgment on the clearly established prong of qualified immunity, but then proceeds to rail against qualified immunity as unjustified by common law, the Constitution, or § 1983. He argues that the concerns justifying qualified immunity can be addressed if courts do a better job with the merits prong; the current problem "stems from misuse of the first prong of the doctrine. Simply put, courts find constitutional violations where they do not exist." If courts did a better job with the constitutional analysis, police would not be chilled or over-deterred.

But then he gives the game away about where this would take us. After all, "the Fourth Amendment does not prohibit reasonable efforts to protect law-abiding citizens from violent criminals--it forbids only unreasonable searches and seizures." Unspoken is the view that police can do whatever they believe necessary in the moment against someone they believe poses a threat to law-abiding citizens--it would be open season on anyone perceived as a threat. Unless, of course, those police officers speak rudely to a white woman who wants to pray while the officers are searching her house.

Look, I agree with Judge Ho that we should get rid of qualified immunity and let the Constitution do the work. But his opinion shows that the cross-ideological opposition to qualified immunity will give way to ideological splits on substantive rights--lots of Free Exercise violations when officers are mean t0 Christians, few Fourth Amendment violations when officers shoot African-Americans.

Posted by Howard Wasserman on January 17, 2020 at 07:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

*Does* Paul, Weiss "Need" Harvard Law?

No doubt there are many things one could say about this Harvard Law School student protest against Paul, Weiss designed to urge it to drop ExxonMobil as a client. Many of those observations would depend on one's substantive and political views and would be too obvious to need saying and convincing only to one's allies, so let's skip it. (Although one want to might read the actual opinion dismissing claims against that company and ask whether the merits of some of that litigation are that great. State attorneys general have been known from time to time to file lawsuits that have more to do with political optics and the questionable use of state power than with an interest in actually seeking a remedy.) And the first thing I would say is that of course the students are free to urge whatever they want, whether they represent one or one hundred percent of the student body. But I would like to ask two questions.

The first is to question the supposition put forward by a HLS law student (who I can hardly blame either for framing things this way or believing the statement, given our culture): that the students recruited by big firms at these or any other elite law school are "the future lawyers they need to stay on top of their field." I don't doubt their intelligence: in my brief time studying and teaching at such schools, I really did find the students highly smart, talented, and hard-working, and this was true not just of the best students but of a large percentage of them. The most relevant comparison between law school student bodies is with the "middle" of the class, and the middle at these elite schools is very impressive. But I have found that the same thing is true, at a minimum, of the top students at every law school I have taught at, no matter where it is on the US News rankings. Students choose to go to different schools for many reasons. Some have family obligations or work obligations, or financial limitations. Some have extraordinary talents but, perhaps because they are first-generation students who don't come from professional-managerial-elite families, lack social capital of a certain kind. They haven't been told about the advantages that accrue disproportionately to going to an elite school, or that employers economize on search costs by sticking with a few conventional schools, or that judges do the same in selecting the clerks who will end up commanding job-seeking advantages. But they bring other advantages that some of the students at top schools may not have. They are hungry and ambitious. They don't take such job opportunities for granted. They don't take such salaries for granted, and think working their asses off in return is not an injustice or inhumanity but a reasonable return and an enormous opportunity. They may be less likely to leave after three or four years and thus less likely to take for granted the enormous early investment made in them by the firms. They may get their sense of moral and social identity and satisfaction elsewhere than their jobs and job status--say, in working through a church or local community or in many other places.   

When I worked at one of the big firms and was involved in summer associate hiring, at least some colleagues (not all, of course) wouldn't even deign to look at an applicant who didn't come from one of a very few schools. I'm not sure they had a reason for this, other than convention and a narrow band of life experience limited to those schools. But despite the added search costs, and keeping in mind that many students at top schools surely view things differently than the negative caricature of entitlement I've offered, it has long seemed to me that top law firms looking not just for talented students but also for a good long-term investment in the future of their firm would be better off picking off the top students at the schools they most often seem to ignore. They might have to invest more in certain kinds of training. But they would still get terrific raw material, and might find that these hires would have more commitment, gratitude, ambition, and seriousness about the work than some of their conventional hires. A typical rejoinder is that there is a benefit to these firms in having students from the top schools. It reassures clients that they are getting the best of the bet and makes these firms look as elite as their competitor firms. Such hires are thus safe picks. But that's just one factor to consider, and it must be balanced against the actual benefits they might get from going against the grain. A firm that eschewed the safe and comfortable path and took a flier on top students at these non-"top" schools might find that such a strategy would enable it to do great instead of just well. In any event, and without meaning any ill will to the students at the usual top schools, it is far from clear to me that these are the students these firms "need." This is common rhetoric and a common assumption, but it shouldn't be taken for granted.

My second question is: What, exactly, is moral seriousness? The position of these students has a high cosmetic appearance of ostensible moral seriousness. But it might also be seen as an example of the kinds of phenomena that have been discussed in connection with the meritocracy: of actual or self-described progressives who are "under meritocracy’s thumb . . . captives who embrace their captor, through a sort of ideological Stockholm syndrome,” and whose complaints and prescriptions tend to demand certain changes (especially regarding horizontal equality) while leaving other perquisites and prerogatives (especially regarding questions of vertical equality and social class) blissfully under-examined and undisturbed. It may be nice to dream of and work for a world in which all owners of BMWs or Teslas, or residents of Georgetown or Chevy Chase or Palo Alto, represent a remarkably diverse group of people. But it seems a little incomplete, and rather conveniently so. I have no objection as such to worrying about the representation of a particular client or about arbitration agreements for summer associates. But if that is enough to buy one off, while leaving a hundred other corporate clients in place and unquestioned and not, say, demanding that secretaries and mailroom workers get paid as well as or better than summer associates, then it seems to me that this form of moral seriousness might have as much or more to do with one's desire to have one's luxurious cake, and feel (or look) virtuous while eating it, than with a more genuine and thoroughgoing form of moral seriousness.                   

Posted by Paul Horwitz on January 17, 2020 at 10:05 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, January 16, 2020

Alexander Hamilton and Independent Monetary Policy

Many thanks to Howard and PrawfsBlawg for the opportunity to post. I’ll start with my latest paper, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies. The discussion should be of interest to anyone concerned with executive power, finance, originalism, the longstanding constitutional debate over independent agencies, or Alexander Hamilton. (Although you will have to check out Tuan Samahon’s interesting post for Hamilton’s views on impeachment.)

The Federal Reserve’s independent monetary policy decisions have greatly vexed President Trump. The President’s complaints happen to align with leading originalists’ arguments that the Federal Reserve and other independent agencies are unconstitutional novelties of the twentieth century. My paper demonstrates that the Fed’s independent monetary policy has an impeccable originalist provenance in the Sinking Fund Commission. The Commission was an obscure agency proposed by Alexander Hamilton, passed by the First Congress, and signed into law by President George Washington in 1790. Like the Federal Reserve, the Sinking Fund Commission conducted open market purchases of U.S. securities pursuant to a statutory mandate. Hamilton, Washington, and the First Congress all approved an independent structure for the Sinking Fund Commission. Their decisions to create an independent Commission with five members to check one another — and to include the Vice President and Chief Justice as ex officio Commissioners who could not be replaced or removed by the President — belie the notion that such independence violated the newly minted Constitution.

In its “Act Making Provision for the Reduction of Public Debt,” Congress delegated purchases of debt, in the form of U.S. securities, to an independent, multi-member body comprised of “the President of the Senate[and Vice President], the Chief Justice, the Secretary of State, the Secretary of the Treasury, and the Attorney General . . . .” ch. 47, 1 Stat. 186 § 2 (1790). Thus, five founders who occupied key principal offices became ex officio members of the Sinking Fund Commission: Vice President John Adams, Chief Justice John Jay, Secretary of State Thomas Jefferson, Secretary of Treasury Alexander Hamilton, and Attorney General Edmund Randolph. The Act provided for purchases “under the direction of” these Commissioners, “who, or any three of whom, with the approbation of the President of the United States, shall cause the said purchases to be made . . .” Id. Congress directed the Commission to make purchases “best calculated to fulfill the intent of [the] act,” which was designed to both “reduc[e] the amount of public debt” and benefit the creditors of the United States “by raising the price of their stock” in U.S. securities. Id. at §§ 1-2.

The Commission’s multi-member structure, appointments, and tenure provisions insulated the Commissioners from presidential control. Congress gave the President no say in appointing members of the Commission when it specified ex officio Commissioners. Although the President had already appointed the Attorney General and Secretaries of Treasury and State to ostensibly related executive offices, the President never appointed the Chief Justice or Vice President to executive posts. Nor did the President have any power to remove the Vice President and Chief Justice. This structure left the President no recourse if the Vice President or Chief Justice refused to perform their basic duties as Commissioners. Such neglect of duty actually occurred when Chief Justice Jay refused to set aside his judicial work for a crucial Commission vote in 1792.

The Act further checked the President by requiring at least three Commissioners to approve any purchases the President may have desired under the Act. The Vice President and Chief Justice did not answer to the President, and the three remaining executive officers on the Commission (Hamilton, Jefferson, and Randolph) openly voted against one another rather than following a singular executive directive. The Commission’s multi-member structure trumped any opportunity for executive direction and facilitated independent decisionmaking.

The Sinking Fund Commission provides a founding-era precedent for the Federal Reserve. Like the Sinking Fund Commission, the Federal Reserve’s Federal Open Market Committee is free to decline presidential requests to purchase U.S. securities or take other action designed to lower interest rates. The Sinking Fund Commission shows that independent monetary policy decisions date all the way back to the founding of our Republic.

Posted by Christine Chabot on January 16, 2020 at 07:11 PM | Permalink | Comments (3)

Universal consent decrees

Two U Conn students who were prosecuted and sanctioned by the university for violating the school policy against "disruptive behavior" for uttering a racial slur have filed suit in the District of Connecticut, claiming the school sanctions violate the First Amendment. (H/T: Eugene Volokh). The case should be easy as a First Amendment matter--the students seem to have shouted the slur into the ether, not directed at anyone and not accompanied by any threatening conduct.

But it is procedurally interesting, potentially complicated, and seemingly wrong. After the jump.

In 1990, U. Conn. entered a consent decree in a lawsuit brought by a then-student named Nina Wu, who was sanctioned for saying "no homos" on a board on her dorm-room door. The consent decree permanently enjoined U. Conn. from enforcing a provision of its student code "against this plaintiff or any other student." This is a universal injunction, protecting the universe of U. Conn. students (or it is at least non-particularized). I would argue the court cannot and should not issue such an injunction. The completeness of Nina Wu's remedy is unaffected what might happen to do students 30 years later--that is, students who were not born at the time of the injunction. On the other hand, U. Conn. could have entered the consent decree with Wu, then voluntarily altered its conduct and declined to enforce the provision against any other student (which is what usually happens). But this case offers a third option--U. Conn. voluntarily bound itself to non-enforcement as to non-parties as a matter of an enforceable judicial order. Can a defendant do this? Can the court do it if the defendant agrees? Can a court enforce it as it would a properly scoped injunction?

The plaintiffs frame their case, at least in part, as an attempt to enforce the consent decree. They allege in ¶ 8 that they have standing to enforce the decree because of its stated scope. But then the procedural posture makes no sense--why (and how) can a plaintiff file a new lawsuit to enforce a judgment in a different action, even if in the same district and assigned (under a local related-case rule) to the same judge. It seems to me that the proper course have been to move to intervene or join as plaintiff in Wu and to move the court with jurisdiction over the injunction to enforce or modify. Filing a new lawsuit before a new judge is proper if asking for a new injunction protecting these plaintiffs as to these defendants.

Posted by Howard Wasserman on January 16, 2020 at 04:47 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Impeachment and the Direct Election of U.S. Senators

My thanks to Prawfsblawg for permitting me this guest writing stint. As a long-time reader, I have enjoyed others’ insights and now hope to contribute a few worthwhile nuggets during the next few weeks.

What type of impeachment trial can we reasonably expect in a Senate constituted by directly elected senators? As other commentators have observed (e.g. Jonathan Adler and Carissa Byrne Hessick), Alexander Hamilton anticipated the possibility that the House process could degenerate into a partisan food fight where House members, laying all merits aside, rush to defend or rise to oppose, a President along party lines. Nonetheless, Hamilton thought the Senate, constituted as a court of impeachment, would act as "a tribunal sufficiently dignified, or sufficiently independent" to save the process from a crassly partisan fate ruled by political bosses.

The impeachment of a President entails different political calculations than impeachment of a judicial officer, and the case of presidential impeachment probably more sorely tests the procedure's limits than the relatively lower stakes of a U.S. district court judge. It's unsurprising that many judicial impeachments, say, of an Alcee Hastings, a Walter Nixon, or a Thomas Porteous, occasion little partisan fanfare.

In contrast to lower court impeachments, we are about to witness a presidential impeachment trial where the Senate majority leader has publicly pledged “total coordination” with the White House Counsel’s office to kill the Trump impeachment. And House leadership, recognizing that reality, stalled transmitting the articles and attempted to secure an agreement on how the trial should proceed in the Senate. Political prognosticators regularly consult the Cook Senate Race report to guess which senators might be peeled away from the GOP majority and which Democratic senators might feel pragmatically obliged to side with Republicans due to close races. Notwithstanding oaths, senators today have strong structural incentives to behave as partisans, disappointing Hamilton's expectation of a sufficiently dignified, sufficiently independent process.

When Hamilton wrote Federalist No. 65, he didn't know that in the late 19th century, Oregon and other states would informally adopt popular direct election of U.S. senators by straw poll popular elections or that in 1913 we would formalize and lock in direct senatorial election with the 17th Amendment. As Todd Zywicki has explained (Hein online subscription required), this change had important consequences for bicameralism by making both chambers subject to direct election.

Importantly, direct election means the relevant voting audience is no longer a body of roughly 120 state legislators, conveniently gathered in a single location for a senatorial vote. Instead, voting is done by (rationally) politically ignorant voters who only variably show up to vote. Moreover, successful direct election campaigns now must reach millions of dispersed voters through costly campaigns. And these campaigns facilitate contributors gaining significant influence over their senatorial candidates. Of course, several indirect election pathologies, including corruption, were offered to justify direct election, but the direct election remedy entailed substantial tradeoffs.

My posts, while acknowledging a range of views about the 17th Amendment and its probable effects, will question skeptically whether the benefits were really worth the changes in how the Senate today discharges its constitutional functions.

Posted by T. Samahon on January 16, 2020 at 08:00 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (4)

Wednesday, January 15, 2020

Privileges Or Immunities Palooza

The new issue of the Notre Dame Law Review is out. In that issue you will find three terrific papers about the Privileges Or Immunities Clause of the Fourteenth Amendment, plus a fourth one by my (which I decline to characterize). Check them out if you have any interest in this subject.

Posted by Gerard Magliocca on January 15, 2020 at 01:16 PM | Permalink | Comments (1)

Upcoming guests

I am thrilled that we are going to have some guest-prawfs joining us in the coming weeks.

Beginning later this month and into February, we will be joined by Tuan Samahon (Villanova) and Christine Chabot (Loyola and a fellow former Jane Roth clerk). Welcome to both and I hope you enjoy their contributions.

In late February and March, we will have an on-line symposium on Ben Barton's new book, Fixing Law Schools: From Collapse to the Trump Bump and Beyond (NYU). More details to come.

Posted by Howard Wasserman on January 15, 2020 at 08:32 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, January 13, 2020

Why not just have oral argument?

Bloomberg has a story (behind paywall) Judge Alan Albright of the Western District of Texas and some of his standing orders and practices. Among them: The use of "audio briefs," recordings of briefs longer than 10 pages, which the judge listens to while driving and biking.

I am in favor of greater orality in litigation. But part of the benefit of more orality is more bench presence and more contact between the court and the advocates. This seems to provide the worst of both worlds--the looser argumentation of oral compared with written advocacy, but without the presence and contact.

Posted by Howard Wasserman on January 13, 2020 at 11:02 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, January 12, 2020

What we mean by one-sided

Reviews for the documentary "No Safe Spaces"--an exploration featuring Adam Corolla and Dennis Prager of anti-conservative speech restrictions on college campuses--have divided along expected partisan lines. Conservative publications praise it for exposing anti-conservative-speech biases on campus, liberal publications decry its one-sidedness in criticizing campus liberals as censorious, without considering the problems that racist, sexist, etc., speech causes on campus.

This column is the first I have seen calling the film out for a different one-sidedness: Not engaging with equal-and-opposite efforts by conservative groups and leaders--including the President--against liberal speech. The author labels this "free-speech tourism," waving the banner of free speech when their political compatriots are attacked, while seeking to impose similar restrictions on speakers they find political objectionable. Thus, the film celebrates supposed free-speech champions who have called for de-platforming of liberal speakers and have sued critics on specious defamation claims. In an interview described in the piece, Corolla pleaded ignorance to censorship efforts from the other side, which should show a lack of seriousness or understanding of the project.

The combination of this column and left-leaning criticism of the film reveals where we are: Much of the right is not serious about its First Amendment advocacy, while much of the left does not want to talk about, or use, the First Amendment.

The piece closes on a nice point about free speech:

The doc's inability to grapple with growing animosity toward free speech on both sides of the political aisle shows just how hollow these concerns among conservative "free-speech tourists" are. * If you don't call out your own side or loudly defend the First Amendment rights of your political enemies, you're not a free-speech warrior. You're a free-speech tourist.

Posted by Howard Wasserman on January 12, 2020 at 04:09 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Saturday, January 11, 2020

James Pogue on "The Decline of Nonfiction in the IP Era"

I quite enjoyed this piece from The Baffler. It may be overstated and over-amped, but that is par for the course for The Baffler and most magazine journalism; it is still enjoyable even if it should be read, like everything else, skeptically. The contemporary tendency, including for legal academics, is to celebrate the multi-platform world in a way that echoes the now purportedly dated and much-mocked earlier burst of enthusiasm about "synergy." Seeing the parallel may perhaps lead us to mock those days a little less, to see some of the undue utopianism and lack of self-awareness of the modern tendency more clearly, and to see more clearly the value of institutions (in the Mary Douglas sense), the downsides of blurring or eliminating them, and the degree to which our current enthusiasms are more consumerism than connoisseurship.

Pogue's piece does not argue that nonfiction is dying or dead. If anything, it is thriving in one sense, as the profusion of narrative podcasts, among other things, suggests. (Although I'm not a fan of those podcasts, and think they are highly mannered--God save me from another post-This American-Life voice, with its uptalk and other vocal affectations, male or female, or another somber-music dramatic pause--and mostly trivial, and are bringing back practices that we rightly came to think of as ethically dubious in journalism.) Rather, he argues that "[w]e are now in the mature stage of a book-to-film boom that is quietly transforming how Americans read and tell stories—and not for the better." And not just books, of course, but magazine articles, podcasts, and other forms of nonfiction. 

In discussing how the narrative-industrial complex affects nonfiction, he writes:

[T]he book-to-film complex is bolstered by two imperatives that now govern our nonfiction almost without exception: foreground story as an ultimate good, ahead of deep personal insight, literary style, investigative reporting, or almost any other consideration that goes into the shaping of written work; and do not question too closely the aristocracy of tech and capital that looms over us, the same people who subsidize the system that produces America’s writing....The power of book-to-film in American writing is in how it sits at the edge of the consciousness of every writer, editor, and podcast producer, a dark energy of the entertainment market that drives wealth and reward. You just have to tell a gripping story and leave the powers-that-be unnamed.

And let me quote some more:

This is more or less how most editors I know describe what they want these days. One—clearly hoping to land stories that would get bought for film since he was hardly offering enough money to make writing a feature for him worth it otherwise—recently sent me a call asking for “ripping yarns, stories of true crime, of loves lost and won. Rivalries in sports, tech, and entertainment. Chronicles of dreams realized and broken. We want to take readers on spell-binding adventures, introduce them to powerful jerks they don’t know (or don’t know enough about), weirdos, eccentrics, and folks in search of redemption.”

This email almost made me throw my laptop off my balcony. We all know this kind of storytelling, even if we don’t exactly have a name for it. It is your non-friend’s favorite true-crime podcast. It is the magazine story that the documentary you just watched was based on, and it is the novel that was based on the real event that the even-better magazine piece described and that will soon be a television show. It is the books that now dominate the bestseller lists by writers like [David] Grann or Patrick Radden Keefe or Gillian Flynn, which have all been pre-engineered to read like movie thrillers long before anyone even sat down to start on the script.

We think less about what this kind of writing isn’t. These editors asking you to rip the yarn never talk about politics beyond a possible desultory nod toward wanting stories from writers of “diverse backgrounds.” They do not talk about voice or literary style. They do not ask for excavations of an inner life or the forces of history or any of the things that once would have made a work of writing lasting. A writer may find clever ways to worm these things in, but in the end they are ancillary goods. The desire is always for work that puts narrative ahead of all other considerations, and this is the kind of writing that now dominates our literature: it describes the world without having a worldview. Which is a workable definition of the kind of writing most easily converted into IP....

At least some of my peers are now handing over their working lives to producing cynical content rigged to fit the desires of streaming services, which, when you think about it, is a small tragedy for a world as fucked as ours. Most of the good writers are not. But how could you not at least think about these imperatives when a strange new amalgam of Hollywood and tech offers the greatest rewards for a hit second novel and when magazines pay below rates that were standard three decades ago?...

We have a perfectly good word for the kind of writing and reporting this all encourages: trash. Trash is how we once thought of work designed above all to fit commercial demands and generic narrative forms. The imperative to produce it isn’t going away soon. But I don’t think we have to accept it. 

Very enjoyable. 

  

Posted by Paul Horwitz on January 11, 2020 at 11:07 AM in Paul Horwitz | Permalink | Comments (0)

Friday, January 10, 2020

Baude and Chilton offer advice to scholars (junior and otherwise)

Great posts by Will Baude and Adam Chilton advising junior scholar--and, really, all scholars. A good way of thinking and talking about the scholarly game and what we do.

Posted by Howard Wasserman on January 10, 2020 at 12:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, January 09, 2020

JOTWELL: Malveaux on Burbank & Farhang on rights retrenchment

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Stephen B. Burbank & Sean Farhang, Rights and Retrenchment in the Trump Era, 87 Ford. L. Rev. 37 (2019), a follow-up to their 2017 book on the counter-revolution against federal litigation.

Posted by Howard Wasserman on January 9, 2020 at 11:15 AM in Article Spotlight, Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The Rule of Recognition for Constitutional Amendments

Who decides whether a proposed constitutional amendment is ratified? Up until now, the answer was "the elected branches." In other words, the Executive Branch and Congress must concur that an amendment is ratified. Once they do, that decision is treated as final by the courts. At times, the Executive and Congress have sparred over which elected branch should make the determination, but never with any consequence.

The ERA presents a new problem. The OLC is taking the position that Congress may not recognize the current ERA proposal as ratified. (I'll talk more about why the OLC is wrong about that in a later post.) But suppose Congress reaches the opposite conclusion. Then the Supreme Court will be asked to weigh in about who is right.

I doubt that the Court wants to decide whether a constitutional amendment is part of the Constitution. That opens up a big can of worms. They could respond in this scenario by simply saying that it's up to the elected branches. If they are divided, then an amendment is not ratified. If they concur, then it is. That probably makes more sense than getting into the weeds on the ratification process. But we'll see if and when we reach that point.

Posted by Gerard Magliocca on January 9, 2020 at 09:57 AM | Permalink | Comments (9)

Wednesday, January 08, 2020

The Home-Institution Benefits of Visiting Stints

I enjoyed Josh Blackman's post on look-see visits. I have done only one such visit, so I am no expert. I only wanted to add a small point to the discussion.

Josh writes, in response to some of his commenters, "It is fairly common for people to travel a lot within their current jobs, often for weeks or months at a time. Such roles, however difficult they may be, are designed to create opportunities for upward mobility within an organization. Look-see visits are different. The professor is not traveling to promote opportunities within the home institution; rather, the professor is leaving the home institution to try to find opportunities elsewhere. It is difficult to think of any non-academic jobs, in which employers allow employees to embark on a 6 month interview at a different firm. Moreover, at the end of this 6-month interview, there is a very low chance of success for promotion; at that juncture, the professor simply returns to the home institution."

I understand the point, of course. But I think it would be a mistake to view things entirely in this way. (Assuming it to be a mistake, I'm not saying it's Josh's own view; but I do think it is probably one that is made by others, both by visitors and by home and visiting institutions.) A visit does benefit the visiting professor's home institution--and the professor qua professor (that is, in his or her teaching, scholarship, and institutional service), even if no move results. Owing to a fortuitous lack of greatness and/or stability, I had the pleasure of teaching at several law schools before landing at my home school, and one post-lateral visit elsewhere. It is tremendously useful to see how other professors and institutions do things; to learn something about the different capacities of students at different institutions and the ways in which different law schools succeed or fail at exercising and enlarging those capacities; to see what a different curricular structure looks like in practice; to see what faculty governance (or dysfunction) looks like in different places; and so on. Law school travel, in short, broadens the mind. Some people start and end their careers at the same institution; the advantages in institutional memory and loyalty are real, but so is the possibility of being cocooned or losing a sense of alternative ways of doing things. Some of the things I learned from visiting or teaching at other institutions have affected both my own teaching here at Alabama and my sense of what things my institution as a whole could and perhaps should do differently. (The University of Alabama, among other things, is very poor on freedom of speech and academic freedom, and could learn a lot from some of the things that the faculty senate at Emory instituted in the wake of some speech controversies there.)

Not every visit results in an offer, or does so in the short run, so the visitor can indeed bring back what he or she has learned and make use of it. Whether they do so now or not, home institutions should welcome this and make some effort to "debrief" the returning colleague. I would add that we could get some of those benefits from podium visits, and students in individual classes may in fact get some of them; but even more than look-see visitors (who often find a less welcoming environment than they ought to), podium visitors often don't get much integrated into the life of the school they're visiting at all. And I would add that the fact that a look-see visit can confer benefits of this sort does not mean that look-see visits make much sense. I'm not sure they do. Josh quotes Mike Dorf on several other possible visiting formats, all of which (if undertaken in a conscious fashion) would confer the same mutual benefits. The idea of an "enrichment" visit, in particular, makes some sense. So do short-course programs and intersessions, which probably convey less benefit but also are less burdensome for those with family or other obligations.       

Posted by Paul Horwitz on January 8, 2020 at 02:13 PM in Paul Horwitz | Permalink | Comments (0)

Tomorrow - FTC Public Hearing about Non-Competes

For the first time ever, the Federal Trade Commission is holding tomorrow a public event about non-competes. I am honored and excited to be the first speaker of the day, setting the agenda for an economic and policy discussion about whether the FTC should pass a rule that limits non-competes as an unfair method of competition. Last year I helped draft a petition to the FTC calling for such a rule and it is very rewarding to see the government responding. Other speakers of the day include several FTC commissioners, professors Evan Starr, Eric Posner, Howard Shelanski, and William E. Kovacic (who was the FTC chairman under the Bush admin). The event will be livestreamed so tune in! Here is the agenda.

 
 
 

Posted by Orly Lobel on January 8, 2020 at 01:03 PM | Permalink | Comments (0)

C.J. Roberts and the Year-End Report

At SEALS next summer, there will be a discussion group to mark fifteen years of the Roberts Court and the Court's renewed engagement in civ pro (something I wrote about at the six-year mark). For a topic, I was considering the way that Roberts has used his Year-End Reports to talk about civil procedure and the FRCP, in ways both good and bad, proper and less so.

Adam Feldman on Empirical SCOTUS looks at the particular words Roberts uses in these Reports to talk about the power and role of judges and the judiciary. Although about the judiciary broadly and not only civ pro, it offers a good starting point.

Posted by Howard Wasserman on January 8, 2020 at 11:50 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 06, 2020

A teaching experiment

Our new scheduling guru is trying something new this semester--teaching on consecutive days rather than alternate days. So rather than Civ Pro meeting Monday/Wednesday/Friday, it will meet Wednesday/Thursday/Friday.

I am excited to see how this works. It should be interesting to have students working and focused on just my material (or my material and material in one other class) in a few-day block. And it fits how I structure the class and syllabus by topic rather class session--we work through something in however much time it takes, even if that time cuts across multiple classes. I am anxious to see whether that works better when students return to a case or problem in 24, rather than 48, hours.

Posted by Howard Wasserman on January 6, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (7)

AJC's @JewishandProud Day (Updated)

AJC has designated today--Monday, January 6--as #JewishandProud Day, with a campaign urging people to "wear your Jewishness publicly" and to post pictures with your Jewishness and the slogan below on social media.

Action Alert_#JewishProud_v2

One somewhat related, if delayed point: The story from last week about the dismissal of the entire class of cadets at West Virginia's corrections academy after they were photographed giving a Nazi salute beneath a sign reading "Hail, Byrd," in reference to instructor Karrie Byrd. According to reports, Byrd got into trouble (and is no longer employed by the state) because her statement to investigators that she was "not familiar with the 'historical or racial implications of the gesture' and that it was 'simply a greeting,'" was contradicted by testimony that Byrd encouraged the gesture and told a secretary that she is "a hard-ass like Hitler." Which suggests that had her defense not been contradicted by evidence that reveled in the salute, she might have kept her job--had it been true that she did not know the history or racism at issue, she would not have been fired.

Which brings me to what I have been thinking: Can we please agree that anyone who is not familiar with the historical and racial implications of the Nazi salute and "Heil Hitler" is too fucking stupid to hold any position of public trust?

Update I: A colleague stumbled across this 2004 RBG speech at the U.S. Holocaust Memorial, talking about how the Shoah played in Hungary and about her Jewish experience. Appropriate for the day.

Update II: I have closed comments, having spent the better part of today deleting updwards of 30 anonymous comments saying that the author hated me and thought I was vermin because I am anti-gun. Also comparing Justice Steven's Heller dissent to Holocaust denial. Not sure how this post could become about guns (or what I have ever written indicating I am anti-gun), but it got out of hand in a hurry.

Posted by Howard Wasserman on January 6, 2020 at 09:31 AM in Howard Wasserman | Permalink | Comments (2)

Sunday, January 05, 2020

Limiting rules in football

On Saturday, the Tennessee Titans ran almost two minutes off the clock without a snap in their Wildcard Round win over the New England Patriots, exploiting a glitch in the rules that calls for a limiting rule.

Lining to punt on 4th down with the game clock running, the Titans took a delay-of-game penalty; the clock restarted when the ball was placed after the 5-yard walk-off. The Titans then false-started; the clock restarted when the ball was placed. The Patriots then jumped offside; the clock restarted when the ball was replaced. Finally, the Titans punted.

When a team commits a foul and the penalty yardage is walked off, the clock proceeds as it would have had there been no infraction--if the clock would have stopped, it restarts on the snap; if the clock would have run, it restarts once the ball is replaced. Inside of 5 minutes remaining in the second half, the clock restarts on the snap. As I explain here and here, the second rule is designed to inject excitement by preventing leading teams from wasting time and forcing them to run more plays, from the point in the game in which the incentive to waste time begins.

This game reveals three things:

First, although I did not think of it this way when writing the book (but should have), the second rule qualifies as a limiting rule addressing a cost-benefit imbalance under the default rule, akin to the Infield Fly Rule. The offense is acting contrary to expectation (taking a penalty); the time benefits it gains are much overwhelmingly greater than the yardage costs (and vice versa for the trailing defensive team);  the defense cannot do anything to stop the offense from intentionally committing pre-snap fouls; and a leading team has a perverse incentive to try this.

Second, the rules attempt to address the perverse incentives with two different limiting rules. Two successive delay penalties constitute unsportsmanlike conduct, a 15-yard infraction. This is why the second foul was not another delay, but false start. And a team cannot commit multiple fouls on the same down to "manipulate the game clock;" the penalty is 15 yards, time back on the clock, and the clock restarting on the snap. This rule is why, after the second penalty, the Titans were ready to punt. The third play came because the Patriots committed an infraction that gave the Titans extra time; the Titans cannot be blamed for the opponent's violation. But these two rules should be sufficient, unless officials are reluctant to find clock manipulation off one or even two false starts.

Third, the incentive for a leading team to waste time begins earlier than the 5-minute mark. It is not clear where it begins--that probably depends on score and location on the field. The only solution may be to change the default rule and always have the clock start on the snap following a penalty. That will necessitate other limiting rules involving clock run-offs to eliminate the perverse incentive for trailing teams to commit their own intentional fouls.

Posted by Howard Wasserman on January 5, 2020 at 05:47 PM in Howard Wasserman, Sports | Permalink | Comments (3)

Friday, January 03, 2020

Double Aspect Blog on Canadian Supreme Court Dissents

In a post last year I called attention to the terrific Canadian public law blog Double Aspect, which had a great, very un-Canadian end-of-year series of posts in which the hosts and guests of the blog discussed their least favorite Canadian Supreme Court decisions. This year, Double Aspect has focused on another great subject: ten days worth of host-and-guest contributions discussing their favorite dissenting opinions in the Canadian Supreme Court. It's another wonderful read and, in its focus on dissents rather than majority opinions, a useful corrective to more cheery and approving takes on Canadian constitutional law by constitutional comparativists. I am pleased that a number of the writers picked Justiice LaForest's dissent in the Provincial Judges Reference case, Justice McLachlin's dissent in Keegstra, Justice Moldaver's dissent in the Supreme Court Act Reference case, and the joint dissent of Justices Binnie and LeBel in Chaoulli. Worthy choices all, if only for sounding a much-needed note of caution about judicial capacity and wisdom. A number of the writers also focus on religious liberty cases. I recommend the posts, for those interested in judicial dissents in general as well as those who are interested in learning more, and from a different perspective, about Canadian constitutional law. The posts run from the most recent down and are currently at the top of the blog.    

Posted by Paul Horwitz on January 3, 2020 at 01:18 PM in Paul Horwitz | Permalink | Comments (0)

Taking states seriously: new frontiers of public law

One of the most interesting and revelatory new connections I forged during my post-decanal sabbatical adventure was with Mr. James Tierney.  Teaching currently at the Harvard Law School, Jim is the former attorney general of Maine -- and not just any AG, but someone who has been described as "America's 51st attorney general."  Passionate, brilliant, and energetic, Jim is an evangelist for curricular attention to state public law.  He explains, rightly, that most of our students will become deeply engaged, in one way or another, with state and local legal institutions. These institutions (take the state judiciary as just one obvious example) function in the long shadow of state political institutions.  Lawyers permeate these institutions and the work of lawyers on behalf of clients, whether for private pecuniary interest or the public interest broadly defined, is deeply enmeshed into state legal and political structures. 

To the end of enriching student learning, both doctrinal and experiential, Jim and a number of other resolute colleagues have developed meaningful courses in this space. State constitutional law, which is experiencing a nice renaissance, and local government law are obvious examples.  Less obvious are traditional courses which would benefit from such exposure to the work of, inter alia, the state executive branch and also the network of relationships among state agencies, state courts, and general purpose local governments.  Students could (and perhaps should) be exposed to these issues in the first year private law core, including torts, contracts, and property.

Tierney, who has walked this walk at Columbia and Harvard Law Schools, among others, has also developed a web of resources for current state AGs.  The stateag.org site, linked here, gives one a flavor of a rich bevy of programs and initiatives that assist state lawyer-leaders and also communicate, and not too subtly, the message that understanding the mechanisms of state government is increasingly important. 

At the level of tactics, we ought to look for ways of connecting these professional opportunities with law school curricula, and even academic scholarship.  There is, of course, imaginative and sophisticated work in local government law, some of which connects to state public law themes rather directly. And state con law, as mentioned above, is an active scholarly field with good growth potential.  What Tierney's initiatives, propelled (as I can testify first-hand) by a remarkable lawyer with boundless energy, point to is a marriage between ambitious public law academics and their law school homes on one side of the aisle and seasoned AGs and other public officials who are committed to working within the domain of academic culture to fertilize this field of state public law.   

 

Posted by Dan Rodriguez on January 3, 2020 at 12:32 PM in Daniel Rodriguez | Permalink | Comments (0)

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 January 3, 2020 at 11:58 AM | Permalink | Comments (4)

Thursday, January 02, 2020

Political grass is always greener . . .

Thursday morning, I read this Atlantic piece from Lee Drutman (New America Foundation) arguing that a pure ideological two-party system had broken the Constitution. It produced the situation that Washington, Hamilton, Madison, and others feared of the "alternate domination of one faction over another." Drutman urges Congress or states to institutionalize multi-party democracy and proportional representation; he argues that Madison's Federalist No. 10, "with its praise of fluid and flexible coalitions," envisioned some form of multi-party system.

Thursday evening, I read this Tablet piece from Neil Rogachevsky (Israel Studies and Political Thought at (Yeshiva), arguing that multi-party democracy and proportional representation is what has placed Israel in its current political predicament, with no party able to form a government. He hopes that Benjamin Netanyahu might be able to push first-past-the-post as a parting gift to the country.

There are no right answers.

Posted by Howard Wasserman on January 2, 2020 at 09:06 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

2020: The Year of Regulatory Reform in Legal Services? (And how the law professiorate might help)

The last eighteen months or so has brought an enormously interesting, and potentially quite impactful, stew of proposed regulatory reforms in the legal services delivery space to the fore.  Efforts in Arizona, California, and Utah have been especially notable, and other states are wading it as well.  The ABA Center for Innovation, whose council I have the privilege of chairing, has proposed a resolution that applauds this process of experimentation, focusing on what it represents for potentially enhancing access to justice, and calls for a greater collection and analysis of evidence of these reforms' impacts.  (Text of the resolution and report here). Moreover, the Institute for the Advancement of the American Legal System (IAALS) has embarked on an ambitious project entitled "Unlocking Legal Regulation," the gist of which is a comprehensive look at the state of legal regulation.

For those new to these developments, here are some valuable resources:

Arizona (full task force report here; news reports here and here).

California (the report by Prof. Bill Henderson of Indiana-Bloomington which started the ball rolling.  summary of recommendations, with relevant links here; news report here)

Utah (full report from working group; news reports here and here). 

Chicago, Illinois (announcement of the task force).

Some general commentary on these developments by Jayne Reardon in Illinois, Andrew Arruda of California, a member of the Cal task force, and Zachariah DeMeola of IAALS.  Also, the Innovation Center has a website detailing the current regulatory landscape.

 

As with any spate of experiments, there will be advances and setbacks.  The legal profession is a profoundly conservative one, and there are myriad headwinds -- some borne of protectionist impulses and strategies, and others of skepticism more well meaning (and thus credible) in its contours -- facing these reform efforts.  Utah is perhaps the furthest along this road, with Arizona coming quickly behind. The California efforts, potentially the most significant, given the state's size, have faced great opposition by lawyers within this state, and it remains to be seen whether some of the tremendous work of the state bar task force will bear fruit in the coming months.  So, in all, 2020 is shaping up to be a most interesting year with regard to fundamental change in how lawyers and legal services are regulated.

Law professors have not typically been at the vanguard of these movements. (With important exceptions, to be sure).  Yet, these reforms are of an enormous potential significance to our graduates, our current students, and therefore to our law schools.  How can we engage in these efforts beyond watching patiently as matters unfold?  A few thoughts:

  • Consider programs and projects which seek to connect the dots between the present structure of legal services regulation and access to justice considerations.  Reform evangelists tout the connection between ambitious changes and enhancing A2J; skeptics insist that these connections are tenuous.  Surely the matter is a complicated one; and, to be sure, we won't truly know these impacts until and insofar as we can develop some natural experiments in the U.S. context and therefore measure impact over time.  Law professors, especially those with expertise in these substantive topics and, as well, good empirical chops, will be in a great position to speak and do scholarship on these issues.  Some of this is already happening. (Check out this program at Arizona, just for example);

 

  • Where law profs have confidence in the value of certain reform proposals -- for example, permitting non-JD holding professionals to provide certain legal services or permitting alternative business structures for law firms in order to raise new sources of capital --, advocate in various fora for the implementation of these reforms.  This could be especially valuable in those states which are currently focused on these reforms and where law profs at state law schools are called upon for their input.  I know, for example, that the deans of the law schools in Utah and Arizona (along with key colleagues have been especially valuable interlocutors in these discussions;

 

  • Build bridges between law schools and their alumni so as to collect good data about lawyer performance and the current state of legal services delivery. Sure, there are omnibus groups, such as IAALS, the ABA Innovation Center, the American Bar Foundation and the like who can and should lead these data collection efforts.  However, law schools can be especially useful to this reform process by sharpening the focus on law school-specific cohorts, surveyed with care and evaluated over time, in order to illuminate the challenges and achievements of these lawyers and how the structure of legal services regulation has impacted their advocacy and counseling work.

There are undoubtedly more bullet points to add here.  My main message is that there is great ferment in the area of legal services reform.  Our colleagues who work on legal ethics/professional responsibility are especially knowledgeable in this space.  But expanding the legal academy's focus outward from there, drawing in colleagues in areas such as administrative law, corporate law, law & technology, empirical legal studies, and state constitutional law (among other areas) would help enhance understanding.  And a fruitful byproduct would be to show how law professors can add value to practice-related debates by their scholarship, their teaching, and their convening skills.

 

Posted by Dan Rodriguez on January 2, 2020 at 01:56 PM in Daniel Rodriguez | Permalink | Comments (8)

Wednesday, January 01, 2020

How does a descendent of Huguenots, son of a fur trader . . .

The 2019 Year-End Report on the Federal Judiciary begins, as always, with an historical ditty. This year, it is the Doctors Riot in New York in 1788 as the reason that, as the lyrics in Hamilton tell us, "In the end, they wrote eighty-five essays, in the span of six months/John Jay got sick after writing five/James Madison wrote twenty-nine/Hamilton wrote the other fifty-one." Kudos to Roberts for the line "perhaps if Jay had been more productive, America might have rewarded him with a Broadway musical."

The theme this year is civic education and the essential role of individual judges, the courts, and the judiciary in providing that civic education. Roberts writes:

It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to under-stand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased that the judges and staff of our federal courts are taking up the challenge.

Three other things are sadly ironic. One is that the Court is poised to resolve cases involving congressional subpoenas that should be easy in a democracy--Congress can investigate a President, including through subpoenas of unconnected third parties, however it sees fit--but that seem to be genuine toss-ups given current political divides. Two is that the current President has done more to use social media to spread rumor and false information on a grand scale and the Court, when pressed, has fallen in line and may do so again.

Three, and away from the politics of the day,  Roberts does not mention the role that video or audio-recording-with-speedier-release of arguments could and should play in this civic education. He mentions courts posting opinions* online, giving the "public instant access to the reasoning behind the judgments that affect their lives." Wouldn't "instant access" to the public arguments leading to the "judgments that affect their lives" provide a similar public civic-education benefit?

[*] He does offer a nice description of the distinction between an opinion and a judgment--"judges render their judgments through written opinions that explain their reasoning." That distinction is key to judicial departmentalism and the non-judicial branches engaging in meaningful constitutional interpretation. More on that later.

Posted by Howard Wasserman on January 1, 2020 at 09:26 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)