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Wednesday, February 26, 2020

YouTube not a state actor

When SCOTUS decided Halleck last term and held that a private company managing public-access cable channels is not a state actor, it was obvious that this meant online platforms such as YouTube or Twitter. And so the Ninth Circuit held on Thursday in PragerU v. Google, a challenge to YouTube policies restricting or demonetizing certain videos. The court rejected the argument that YouTube performed a traditional-and-exclusive public function or that YouTube's public declaration that it is committed to free expression changes its private nature.

This part of the opinion ended on an interesting point, telling everyone, in essence, to calm down:

Both sides say that the sky will fall if we do not adopt their position. PragerU prophesizes living under the tyranny of big-tech, possessing the power to censor any speech it does not like. YouTube and several amicus curiae, on the other hand, foretell the undoing of the Internet if online speech is regulated. While these arguments have interesting and important roles to play in policy discussions concerning the future of the Internet, they do not figure into our straightforward application of the First Amendment.

Posted by Howard Wasserman on February 26, 2020 at 06:00 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Hiring Announcement: City Law School (London, UK)

The City Law School (London, UK) is seeking to hire twelve new faculty members (including entry level and lateral candidates). Situated in the heart of London, The City Law School is a prominent law school with alumni that includes three former British Prime Ministers and many of London’s most illustrious barristers, solicitors, and judges. (The term ‘lecturer’ is an entry-level position broadly equivalent to Assistant Professor in North America. Lateral candidates may be more interested in the ‘senior lecturer’ and ‘professor’ positions.)

The closing date for applications is Sunday, April 5, 2020.

For more information, including the application procedure, visit: www.city.ac.uk/about/working-at-city

Posted by Sarah Lawsky on February 26, 2020 at 04:10 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Circuit Correspondence in the Marshall Court

Part of my biography on Bushrod Washington will focus on his work as a circuit judge. During the Marshall Court, each Justice was required to ride circuit in a designated portion of the country, conducting trials and hearing appeals. The Justices wrote to each other about their cases. Sometimes this involved asking another Justice for advice (in other words, "Has this question ever come up in your circuit?" Or "What is your opinion about this issue?"). Sometimes the letters just provided a rundown on the holdings in the decided cases. And sometimes they would share draft opinions with their colleagues. 

One letter at Mount Vernon, though, shows that this practice went a step further. Justice Washington wrote to his newish colleague, Smith Thompson, in 1825 about a set of circuit opinions Thompson had written and sent to him. Bushrod's two-page letter said that he concurred with Thompson's conclusion in each case, but then pointed out various problems that he had with the reasoning of some of them. (This sounds like giving someone comments on a paper where you start by saying that you love the project and then point out twenty specific things you don't like.)

I'm thinking about the import of this letter. (Thompson's initial letter is lost.) Did Thompson ask for Bushrod's view? If so, why? Because he was a newish judge? Because Bushrod was highly-respected within the Court? Because he was trying to curry favor? Or was Bushrod trying to mould his junior colleague without a prompt. Was this an example of how the senior Justices (at that point Marshall, Bushrod, and Story) attempted to tame/socialize the new appointees. I'm not sure yet.

Posted by Gerard Magliocca on February 26, 2020 at 01:28 PM | Permalink | Comments (0)

Tuesday, February 25, 2020

Time for Congress to Codify Bivens?

Bivens and its implication of a remedy to sue officers directly under provisions of the U.S. Constitution are on life support (see Howard's post). After Hernandez, is Congress ready yet to codify Bivens?

It’s a gross understatement to say that I’m no legislative lawyer. Nonetheless, here’s a quick draft based on the language of 42 U.S.C. § 1983:

Unless otherwise expressly provided by statute, every person who, under color of any statute, regulation, order, custom, or usage, of the United States government, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction of the United States, or at its territorial borders, to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. The availability of alternative remedies shall not preclude relief under this provision.

In any action to enforce the provisions of this section, the court may allow the prevailing party, other than the United States, a reasonable attorney’s fees as part of the costs.

For purposes of this section, “person” includes any natural person.

* * *

It would seem desirable too for any legislation to insist on a court first addressing the issue of whether there was a constitutional violation before reaching the question of any officer immunity. And while we're dreaming perhaps the bill could address the widespread dissatisfaction with current qualified immunity doctrine. Perhaps our commentariat can propose suitable language.

As for political realities, Howard notes conservative distaste for Bivens actions, but I can easily see federal employees unions being equally testy about the prospect of civil liability for their abuses. My sense is that conservative opposition principally originates from two places: (i) institutional concerns about competency for implying that right to sue, which a statutorily enacted right to sue addresses; and (ii) balancing security over individual liberty in security sensitive functions, including external relations. I could imagine compromise legislation conservatives could accept if they had carve outs.

What interesting coalitions could emerge to support this legislation? In 1946, the U.S. government felt enough public pressure to enact the Federal Tort Claims Act to waive federal sovereign immunity. Short of a bomber crashing into a skyscraper or citizens deluging Congress with private bills for wrongs suffered at the hands of federal officials, what would actually get Congress to address this problem?

P.S. I recognize the comparison to the FTCA and waivers of federal sovereign immunity is not on all fours with suits against officers and the creation of a federal statutory right to sue them for their actions, but it seems less remote than the circumstances motivating the enactment of 1983.

Posted by T. Samahon on February 25, 2020 at 02:21 PM in Judicial Process, Law and Politics | Permalink | Comments (4)

Bivens closer to death (and Thomas would kill it)

In one of the (unfortunately) least surprising decisions of the Term, SCOTUS held Tuesday in Hernandez v. Mesa that a Bivens claim was not available against a border-patrol agent who shot a Mexican national standing on the Mexico side of the border.

Justice Alito's opinion for five adopts the most restrictive view of Bivens, defining a new context to include virtually any identifiable factual distinction (here, the fact that the plaintiff was injured outside the U.S.), despite the right (Fourth and Fifth Amendment) and basic facts (excessive force by law enforcement standing on U.S. soil) being the same. Justice Thomas, joined by Justice Gorsuch, goes bigger--having cabined Bivens scope and limited its precedential value, the Court should "abandon the doctrine altogether." Justice Ginsburg wrote the dissent for Breyer, Sotomayor, and Kagan.

One notable point of departure between majority and dissent is how each reads Abbasi. The majority reads it as the latest in a 40-year line of cases rejecting Bivens claims, reaffirming the narrowness of past factual contexts and the newness (and thus inappropriateness of a Bivens suit) in other contexts.. The dissent emphasizes that Abbasi, while rejecting a Bivens action against high-level policymaking officials for national-security policy choices, "cautioned" against reading it to eliminate or limit core Bivens claims against rank-and-file law enforcement officers for unreasonable seizures.

If any case not on all factual fours with Bivens repesents a new context, the majority gets where Justice Thomas wants to go, without the political cost of overrulings. The "special factors" analysis will come around to congressional failure to authorize such a cause of action by pointing to § 1983 and the fact that it is limited to state (not federal) officials and plaintiffs within in the United States; that congressional failure will require judicial hesitation. The dissent's response--Congress enacted § 1983 in the middle of Reconstruction with a specific concern in mind and was not thinking about federal officials shooting people across borders--does not sway the rest of the Court. This factor always comes to conflicting views of what to do with congressional silence: The majority reads inaction as congressional intent not to reach the situation, while the dissent reads it as leaving the situation to Bivens (lest it create a situation in which it is "damages or nothing").

This decision is unsurprising, as conservatives have long hated Bivens. On the other hand, conservatives increasingly resort to the courts and constitutional litigation. What happens when conservative groups want to challenge ATF agents raiding their compounds?

Posted by Howard Wasserman on February 25, 2020 at 01:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Teaching Federal Income Tax to the Current Generation of Law Students

The following post is by Jeffrey l. Kwall, Kathleen and Bernard Beazley Professor of Law (Loyola-Chicago) and is sponsored by West Academic.

The basic Individual Income Tax course opens a new world to most law students. Our challenge as professors is to find ways to make this unfamiliar area of law accessible to students with a wide variety of backgrounds and learning styles.

To break down barriers, I begin the course by exploring income issues in the context of relationships with which all students are likely to be familiar (e.g., a business owner and an employee, a donor and a donee, a lender and a borrower). To accommodate students with different learning styles, it is helpful to supplement cases with explanatory text, detailed examples, and many practice problems, and to highlight applications to the practice of law, online references, points worth noting and insights.

One of my primary goals is for Individual Income Tax students to walk away from the course understanding that economic considerations are more important than tax considerations. Students can become so enamored with the art of tax planning that they lose sight of the fact that the amount of taxes paid is far less important than the amount of money left over after taxes have been paid. The importance of economic considerations is a valuable lesson for all law students.

Stressing the importance of economic considerations opens the door to exposing students to quality of practice issues. The vast majority of our students will be practicing attorneys. Regardless of their area of practice, they can learn much about the practice of law by reading not only the traditional tax cases familiar to all of us, but provocative, contemporary cases that illustrate good planning skills as well those that reveal poor planning.

The new Doctrine and Practice Series™ (Foundation Press®) is an ideal vehicle for teaching the basic Individual Income Tax course. Its features make tax law accessible to students with a wide variety of backgrounds and learnings styles. In addition to the problems in the text, this new series offers students significant practice opportunities with online quiz questions after each chapter and cumulative review questions. I encourage you to review THE FEDERAL INCOME TAXATION OF INDIVIDUALS: AN INTEGRATED APPROACH and determine if this new approach to teaching tax resonates with you.

Posted by Howard Wasserman on February 25, 2020 at 09:31 AM in Books, Sponsored Announcements | Permalink | Comments (0)

Vice Presidential Trivia

Suppose Bernie Sanders is the Democratic nominee for President. He decides to go with a young, exciting running mate and picks Alexandria Ocasio-Cortez. An objection is raised that goes something like this: She turns 31 in October. A President must be at least 35. She is therefore not eligible to be Vice-President.

Is this correct? Arguably yes. One thought is that the Vice-President must fulfill all of the eligibility requirements of President from day one. But arguably no. A Vice-President who is ineligible to be President may simply not become President if the President dies--the Speaker of the House does instead. Or maybe she can be VP because she would turn 35 during a Sanders presidency (i.e. the term for which she would elected). 

Posted by Gerard Magliocca on February 25, 2020 at 09:04 AM | Permalink | Comments (8)

Monday, February 24, 2020

Sneak in Contracts

My co-author Shmuel I. Becher (our forthcoming article on consumer protection is here) has a new article with Uri Benoliel in which they report an empirical study they conducted. The article Sneak in Contracts: An Empirical Perspective, available here. They examine 500 contracts of the most popular American website and show that the vast majority of those contracts allow firms a unilateral discretion to change the rights and obligations after acceptance. They warn: "The findings of this study raise concerns as to whether sneak in contracts are aligned with some of the prominent core values and principles of contract law, such as consent, promise, reliance, consideration, freedom, choice, empowerment and community. The study thus calls for the introduction of an underdeveloped principle in the law that governs the modification of consumer contracts: the principle of transparency. It then offers a set of concrete recommendations, which will allow policymakers and courts to exhibit a more developed, sound and effective approach to the problem of sneak in contracts."

Posted by Orly Lobel on February 24, 2020 at 06:00 PM | Permalink | Comments (0)

JOTWELL: Kalajdzic on Fitzpatrick on the conservative argument for class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Brian Fitzpatrick, The Conservative Case for Class Actions (2019). Brian gave a Fed Soc on the book at FIU last month.

Posted by Howard Wasserman on February 24, 2020 at 10:25 AM in Article Spotlight, Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, February 22, 2020

Scope of the felon-enfranchisement injunction

The Eleventh Circuit last week affirmed a district court judgment declaring invalid a Florida law that required released felons to pay restitution and other "legal financial obligations" before their voting rights can be reinstated.

For my purposes, the injunction is limited to the 17 named plaintiffs in several consolidated cases. The Eleventh Circuit describes the district court preliminary injunction as "requiring the State to allow the named plaintiffs to register and vote if they are able to show that they are genuinely unable to pay their LFOs and would otherwise be eligible to vote." And it ends the opinion as affirming "the district court’s preliminary injunction enjoining the defendants . . . from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations." No matter how some sources have read the order, the court of appeals is clear that this is a non-universal/particularized injunction, entitling the seventeen plaintiffs, but no one else, to vote.

The question is what happens next. The state remains free to decline to enforce the payment law against anyone while it continues to fight this litigation, even if not enjoined from doing so. That avoids either new litigation and a new injunction involving new plaintiffs or the court certifying a 23(b)(2) class of all felons unable to pay LFOs and extending the existing injunction to the class.

Posted by Howard Wasserman on February 22, 2020 at 02:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, February 21, 2020

Access to the Court

For the last ten years, I’ve taken groups of Villanova Law students to the Supreme Court of the United States almost annually to watch oral argument in cases, some relatively low profile, some blockbusters. We leave VERY early in the morning from Villanova Law (located in the greater Philadelphia area) to drive to 1 First Street NE in order to arrive by no later than 4:30 am. That timing is important because you need to secure a decent place in the public line to get in. The first 50 get in, 51 and later get rotated through for a few minutes of arguments.

Nowadays getting into the Court through the public line can be a bit like trying to get into a rock concert, especially with all the paid line standers — the going rate is about $50/hour, except when demand really surges  — camped out early on lawn chairs with blankets to cut the early morning chill. The line standers are often for interested lawyers who are not Supreme Court bar members. The Court polices the much shorter Supreme Court bar line, but only spontaneous order governs the public line -- a social norm of first in time with reasonable allowance for a tardy friend. Test that norm by bringing 10 friends, however, and you’re likely to risk triggering a Hobbesian state of nature. (During the U.S. v. Texas DAPA case, I witnessed a large group of uniformed private school students cut in line to join an adult claiming to "hold" a place for them. Those behind them were exceedingly unhappy; it almost escalated to violence.)

Once upon a time you could call the Marshal’s Office to ask for advance tickets, but in recent years I’ve had no success. Authoring an amicus brief or serving as counsel below doesn’t cut it for reserved seats - you get either the SCOTUS bar line or the public line. Still, when my bedraggled students and I finally get access to the courtroom (I typically remain with them in the public line in solidarity), we are always stunned at the (relatively) large number of people who arrive inside the Court at 9 am with ticketed seating and who are then seated preferentially. I’ve asked on occasion who these late ticketed arrivals are. Some have identified themselves as guests of the Justices and friends of friends of people connected to the Justices, such as students of prominent lawprofs who have clerked at the Court. Clerking on the Court confers big advantages that last a long time. It’s a nice privilege for those in the Club. For the have nots, though, access is stingy and ultimately discretionary. Perhaps, then, physical access to the Court isn't that different from legal access to it. It too is very limited, mostly discretionary, but greatly eased by knowing someone on "the inside."

Posted by T. Samahon on February 21, 2020 at 10:00 AM in Judicial Process | Permalink | Comments (6)

The Death of a Presidential Nominee

I don't know the answer to the following question. Suppose someone is formally nominated as the presidential candidate of one of the two parties. On Labor Day, that nominee dies. Who then becomes the new nominee? The running-mate? The person who came in second? Does a party committee decide? 

The Republican Party has a procedure in place if something like this occurs. The RNC can select a new candidate or they can call for another party convention to make that choice. I can find, though, no equivalent rule in the Democratic Party rules. Does anyone know the answer there? 

Posted by Gerard Magliocca on February 21, 2020 at 09:17 AM | Permalink | Comments (5)

Thursday, February 20, 2020

The Ultimate Research Assistant

I am half-way through my draft of the Bushrod Washington book, and so I'll start sharing more tidbits from my research. Here is one I found charming:

In the 1790, Bushrod published a two-volume set of reports on the decisions of Virginia's highest court. (Bushrod and Marshall were directly involved in some of those cases.) Thirty years later, Bushrod decided to publish a second edition. He was not satisfied with one of the reports and wanted to check the official record of the case kept in Richmond. Whom did he send as his research assistant? The Chief Justice of the United States. Marshall got the record, went through it, and then wrote Bushrod a detailed report on what he found. I think, though, that he was not included in any dagger cite.  

Posted by Gerard Magliocca on February 20, 2020 at 08:16 PM | Permalink | Comments (3)

Thurgood Marshall and James Patterson: A Comment on Tushnet on Dane

Mark Tushnet, the only blogger for whom I would be willing to break my "characteristically thoughtful" rule (especially for his posts on legal scholarship and his occasional comments on specific articles), adds a "supplemental note" on the discussion of Perry Dane's piece on law clerks and jurisprudence, about which Howard and I have written our own posts below. Here I add a supplemental "note" to Tushnet's supplemental note. Let me first repeat: Read Dane's piece. It is provocative and productive of new ideas, as good scholarship should be, and at times (as in its discussion of "open secrets" and American clerk culture) quite timely. Tushnet's intervention is narrow but, I think, gives rise to interesting questions of its own.

Tushnet writes:

A short and therefore distorted version of Dane's argument is that the appearance of the judge's name on an opinion acts as an "icon" or signal about something--on my reading, about the fact that the opinion should be understood to be part of a larger project of developing "the judge's" vision of the law that is consistent across large-ish domains and over large-ish periods of time (the "ish's" inserted to show that a person's views and understanding of the relevant domains can change without casting doubt on the proposition that the person is pursuing a project). But, Dane worries, how much confidence can we have that the words published under the judge's name are part of such a project when they are produced by an ever-changing population of law clerks?

To this he adds two pieces of recollection about serving as Thurgood Marshall's law clerk. First, "because the clerks knew that post-drafting review would be light, we were extremely careful not to send a draft to the judge before it had been carefully vetted by all three of us." Second and more important, 

[W]e operated with a strong norm of what (as I recall) we called "personal stare decisis." That is, we thought that we should draft opinions that were as consistent as we could make them with the judge's prior decisions. (Note that this was Marshall's fifth year on the Court, and he had a small-ish relevant body of decisions from his time on the Second Circuit.) Clerks following the norm of personal stare decisis would make the opinions published under the judge's name part of the Dane-like project.

I think this is a pretty common practice. I read it for present purposes in a descriptive and not normative fashion. Tushnet is right that it fits in with Dane's account. Insofar as it suggests that there are some institutional norms that help tie the corporate practice of opinion-writing to the project pursued by the "judge," it may help address Dane's question about how much confidence we should have in the continuity and reliability of that project. Inasmuch as Dane offers his piece as a "catalyst" for thinking about jurisprudential issues concerning the courts (and the other branches), however, and concludes by noting rather than trying to resolve the "deep and uncomfortable questions" raised by our practices, I think Tushnet's observation itself can be a catalyst for more "uncomfortable questions." 

In reading Tushnet's post, I was reminded of James Patterson--and "James Patterson." Patterson is the "author" of scores of best-selling books. They "all share stylistic similarities." And "[t]o maintain his frenetic pace of production, Patterson now uses co-authors for nearly all of his books. He is part executive producer, part head writer, setting out the vision for each book or series and then ensuring that his writers stay the course." According to one profile, "Patterson will write a detailed outline--sometimes as long as 50 pages, triple-spaced--and one of his co-authors will draft the chapters for him to read, revise and, when necessary, rewrite. When he’s first starting to work with a new collaborator, a book will typically require numerous drafts. Over time, the process invariably becomes more efficient." Patterson-as-author has thus become the "James Patterson" brand, a brand that draws many millions of readers. Unsurprisingly, given the tradition of viewing a book as "the product of one person’s imagination and sensibility, rendered in a singular, unreproducible style and voice," his practice has drawn criticism and derision. But it is eminently successful, and I assume (not being one of his readers) that some care is taken to make sure that each book is sufficiently within the stylistic universe of "James Patterson" to maintain a consistent brand and retain readers' trust. If each book was radically different, "James Patterson" would be less a unique brand than a sort of retailer of varied books. Note that his frequent "co-authors" develop a comfort with his style, so that "the process invariably becomes more efficient." It is not hard to imagine the next step, in which Patterson departs this vale of tears and a committee of those co-authors ensures that "James Patterson" is still putting new books in airport bookstores every month or two. Many popular authors have, in this manner, been remarkably productive after they stopped breathing.

How different is the living "James Patterson, Inc." enterprise from the "Thurgood Marshall" enterprise? Not very much, it seems to me. Indeed, on Tushnet's account and given the description of Patterson's process, there may be greater quality control and more authorial personality in the Patterson model. That model and that approach to books is not to everyone's taste, but as a process it appears to work. Is there anything wrong with it? Is there anything more or less wrong with the Marshall "project" that Tushnet describes than with the Patterson enterprise? Maybe not. (And it is worth asking again, to repeat the aside I offered in my first post: If there's nothing wrong with it in these cases, why exactly would it be wrong if applied in a similar fashion to scholarly writing, especially if, as with Patterson, the academic whose name is his or her brand provides the idea and the outline and reviews the "product" carefully?)

 If one thinks, in keeping with a long liberal and Romantic tradition that has been explored elsewhere, that a key element of true literature, and perhaps of human life more generally, is "authenticity," then one might have problems with the Patterson enterprise. And that concern would seem to apply as well to the Marshall method, and to similar methods on the part of other judges and their clerks. I think this is a legitimate concern and worth taking seriously. But taking it seriously also requires considering that authenticity has become a fetish, that many cultural products and even individuals who are said to be, or sell themselves as, "authentic" or "unique" or "artisanal" are anything but, and that even as to more "authentic" people or things we can question the very notion of authenticity itself.

A similar question has to do with character and moral authority. I suggested in my first post that "we care about the personality or character of a judge's writing, about the human and intellectual force behind the canalized reasoning and official order, not so much for biographical as for vaguely aretaic reasons." In some cases, indeed, we care not only about the judge's virtues but about his or her biography and the authority and perspective it adds to his or her work as a judge. Marshall's profoundly important experiences and work surely brought moral authority to his judicial work, and that authority is often invoked in speaking about that work. Even apart from his decisions, he was famously said by his colleagues to have influenced them in his capacity as a "raconteur," sharing his experiences in a way that affected how they saw the law. To the extent that we think of his opinions themselves as deriving moral and intellectual force from those experiences and the moral authority they brought with them, should we reconsider this if the opinions were the product of a process, however carefully vetted? Of course this question is not limited to Marshall and his work. Other judges are said to have particular value and/or moral authority as judges because of their background and unique or representative or under-represented perspective, their work in various capacities before taking the bench, and so on. Depending on how firm or light their hand is on the tiller, should we question this?

We might add some practical questions to this inquiry. Does it matter who the clerks that form the "project team" are? If, say, a judge's moral authority is said to derive from having grown up with hardship and outside the usual cities, regions, and schools that produce so many elite lawyers and judges, of having scrabbled or dug ditches or attended night schools, does it matter if the judge hires a team that is composed exclusively of young people who all grew up in roughly the same privileged circumstances, received roughly the same elite educations, and share roughly the same narrow life experience, most of it distant from the judge's? Or should we care only that they be skilled mimics and ammanuenses for that jurist? And what part of the judicial office, exactly, counts for purposes of moral authority and authenticity in contributing to the law? Just the vote itself? The basic position? The actual reasoning? Not the reasoning, but just particular moments of eloquent rhetoric? The language and passion with which one delivers an opinion or dissent from the bench or offers an extrajudicial comment? How close or far from the judge him- or herself does any of this need to be to retain its moral authority and force, if indeed we do care about these things?

I would add a final observation about Tushnet's account of "personal stare decisis." It seems to me that it can be complicated in ways that are consistent with the kinds of questions that Dane asks and that I asked in my own post. Note that Tushnet speaks specifically and narrowly about personal stare decisis as the effort to ensure that the judge's opinions are consistent with the "judge's prior decisions." Again, I think this is common. But I suspect that for many or most clerks, depending on how much their judge either does his or her own writing or cares at all about that writing showing something of his or her own character, personality, language, style, and so on, the goal is not just doctrinal consistency but consistency of character and style. (A judge might, after all, prefer a more formal, impersonal, bureaucratic style. That's a stylistic choice too, but easier to copy without any insight into that judge and only indirectly revealing of the judge's personality.)

At some point, I would think, it can be easy for even a sincere and conscientious law clerk to stop channeling Judge X, and start portraying or enacting "Judge X"--a kind of fictionalized ideal of what they imagine that judge to be, not false but not entirely true, not quite the real thing but more of a biopic version based on real events. Judicial tributes and other monuments built by former law clerks suggest that this goes on long after they have gone on to other things. But it may start before they ever start their clerkship, if they wanted to clerk for the judge precisely because of who he or she ostensibly "is" and if they are inculcated into that iconic understanding of the judge by mentors and former clerks and by what they read about him or her. This slippage between wanting to represent the "real" judge and channeling or creating the iconic "judge" is made more likely by the very youth and inexperience of the law clerk and by an elite legal culture that is steeped in judicial hero-worship. And, as Sarah Barringer Gordon noted in her contribution to an excellent symposium on judicial biography, that tendency is also more likely if the judge is seen by the law clerk as a leading figure in an ongoing legal and political conflict in which the clerk is deeply invested, and in which it is useful both to construct your judge as a legend and, perhaps, to believe that legend. (The editor in The Man Who Shot Liberty Valance learns the truth, and understands that it is true, but tears up the story and prints the legend. Imagine going a step further and conditioning oneself to believe against the evidence that the legend is the truth. Surely we do this to ourselves all the time, especially when things like primaries and confirmation hearings roll around.) The shift from the real judge-X to "Judge X" may be strategic or unconscious, or strategic at first and then subject to a process of internalization and motivated reasoning. It may happen without the judge's contribution or with the judge's connivance, or may be a collateral but inevitable consequence of the judge hiring the kinds of people who do indeed see themselves as doing battle for the forces of good. In any event, my basic suggestion is that while Tushnet's description of "personal stare decisis" is more narrow and doctrinal, I suspect that many law clerks see "personal stare decisis" as involving more than that--as involving some attempt to channel the judge as a living personality--and that it easy to shift from this to "channeling" an idealized version of that judge.

My goal is to raise questions about this, not to criticize it or offer recommendations. It is relevant if we really do care about authenticity, or if we think that a judge's opinions are a reflection of and draw sustenance and authority from his or her authentic self. But we may not, or may question the firmness of the distinction between the judge as an actual person, the judge as an idealized or iconic presentation, and the judge's work as a "project." About the only conclusion I can draw is that all this is deeply imbricated in our strange American legal culture, its hero worship, its connection to political conflict, its smallness in elite circles, and its tendency to meld substance and personality.

Let me note that given his use of quotation marks around words like "judge" and his borrowing from Dane of the word "project," Tushnet is surely well aware of these issues--as is Dane. And Tushnet, wisely and as is his wont, has offered a far narrower intervention than mine--a genuine "supplemental note." As is my wont, I have taken someone else's footnote and built an essay on it. I prefer Tushnet's approach, and sane readers surely will as well. But I find the general issue interesting and provocative of many questions, and find that the seemingly little things are often the very things that reveal greater underlying questions about a whole enterprise and are immensely fun to tease out.               

Posted by Paul Horwitz on February 20, 2020 at 11:43 AM in Paul Horwitz | Permalink | Comments (5)

Wednesday, February 19, 2020

The Fourth Vesting Clause and Explicitly Authorized Delegation

Beyond the cognate Article I, II, and III vesting clauses that parcel sovereignty into legislative, executive, and judicial powers, there is a fourth “vesting” clause that uses the language of “vest” to allow the grant of power to another branch of government. It is the “Excepting Clause,” or the excepting provision of the Appointments Clause. It is instructive for what it allows and how it allows it.

“But the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” (Art. II, § 2, cl. 2, emphasis added.)

As far as I’m aware, it’s the sole clause in the Constitution to explicitly contemplate horizontal delegation of power, by which I mean legislative reallocation of initially granted authority to another branch. The Take Care Clause contemplates vertical subdelegation within the executive branch.

How is the delegation allowed? Initially, Article II grants the nomination and appointment power to the President upon the qualification that the Senate provides its advice and consent. The Senate and House acting together, however, can opt out of that default regime for inferior officers through ordinary legislation.

The policy basis for the delegation is convenience in light of the anticipated possibility of numerous officers requiring appointment. Notwithstanding that important value, the scope of authorized delegation is only a cabined one. The Clause authorizes only delegation of a portion of the appointment power—for inferior officers only—and only to particular recipients of delegated power, i.e. the Courts, in the Heads of (executive) Departments, or in the President alone. Finally, delegation ends formal congressional involvement in the appointment, at least until the legislative grant of appointing authority is repealed.

This instance of explicitly authorized delegation is instructive in at least two ways:

  1. It is evidence the Framers knew how to authorize delegation when they wanted to, and when they did, the scope of the delegation was authorized only limitedly.
  2. It recognizes that delegation is never just a horizontal choice. The Clause indicated concern over the anticipated recipients of the delegated power who were clearly identified too, recognizing delegation as a vector with "x" and "y" components. Inter-branch delegation is horizontal (from one branch to another, e.g. Article I to Article II) but also vertical in that Congress grants the power with a designated level of officer within the branch, e.g. President v. Attorney General. That anchoring of delegated functions more remotely from the President within the executive branch anticipated the modern trend toward presidential administration of power.

Of course, the Excepting Clause by its terms doesn't say anything about delegation of rulemaking authority and need not be read to disallow delegation of rulemaking. Those who eschew formalism can certainly resort to many functionalist, pragmatic justifications for delegation. Those, however, like myself, who find textualism and formalism persuasive should consider the existence of a fourth vesting clause as textual evidence that the Founders knew how to authorize and limit delegation when they intended to.

Posted by T. Samahon on February 19, 2020 at 02:53 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (3)

A Constitutional Power That Ought Not Be Used

I want to draw an analogy that might be helpful in assessing the current standoff between the President and the Attorney General.

Suppose there is a very close election for a Senate seat in November. A legal fight is then waged in state court as part of a recount. The State Supreme Court says that the Democrat won. But in January 2021, Senate Majority Leader McConnell says "not so fast." The Senate, exercising its Article I power to judge the election of its members, then votes along party lines and says that the Republican won. The Republican is seated, and the Democrat goes home empty-handed.

Can the Senate do this? Of course it can. It just chooses not to. More precisely, since the 1980s each House of Congress has treated a state judgment about who wins a race as binding. But that judgment is not binding. The relevant house of Congress is the ultimate judge. Still, there are good reasons for treating the state judgment as binding. It's more neutral and more legitimate, unless there is some serious crookedness going on in a state's electoral process.

I think that same can be said for the President making individual decisions about prosecutions or sentencing recommendations. He can do this, but he shouldn't. If there are problems in the DOJ, the President should get a new Attorney General or replace some U.S. Attorneys.

Posted by Gerard Magliocca on February 19, 2020 at 12:10 PM | Permalink | Comments (2)

More on Dane on law clerks

Inspired by Paul's post, I read Perry Dane's piece on law clerks and their role in drafting opinions. And it seems to me that Dane's discussion meshes with Suzanna Sherry's argument for eliminating signed opinions (all majority opinions must be per curiam, no concurrences or dissents).

Both worry about the judge's-name-as-icon; the no-signed-opinions solution addresses their common worries. For Dane, the attachment between opinion and name is "why the contributions of law clerks to that work product raises such deep and uncomfortable questions."  For Sherry, the attachment between opinion and name creates the judge-as-celebrity culture that, she argues, has broken the Court. Eliminating signed opinions (which are neither required, inevitable, nor essential outside the U.S.) reduces the opportunities for judges to trade on their celebrity and play to their base. And it renders clerk ghost-writing less problematic because readers no longer read and interpret the opinion--the law--as the work of a named judge with an iconic identity.

Posted by Howard Wasserman on February 19, 2020 at 09:31 AM in Howard Wasserman, Judicial Process | Permalink | Comments (3)

Tuesday, February 18, 2020

Elam Ending and the NBA

The Elam Ending is an alternative format for the end of basketball games, designed to eliminate late-game fouling by the trailing team. The basic idea is that the game clock stops in the final 3 minutes, then the teams play to a target score (+ some number from the leading team's score at the 3:00 mark).

Sunday's NBA All-Star Game used a modified version--playing the Fourth Quarter without a game clock with a target score of +24 from the leading team (the 24 in honor of Kobe Bryant). The format was a huge hit, drawing raves from players, NBA officials, and the media. ESPN's Zach Lowe interviews Elam (now a professor of educational leadership at Ball State) about the game, the system, and what happens next.

I have never minded intentional fouling and I do not believe it makes the game unwatchable. But Elam's argument focuses not on aesthetics but on strategic success-fouling generally does not work, both because leading teams make enough free throws and the lapsing game clock forces trailing teams to rush shots. This format, in theory, allows both teams to run their regular offenses without the game-clock pressure. Elam said his format enables more comebacks (as seen in its use in The Basketball Tournament in 2017, '18, and '19).

Posted by Howard Wasserman on February 18, 2020 at 07:25 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Perry Dane on Law Clerks and Jurisprudence

A tip of the hat to Perry Dane and his new article on SSRN, Law Clerks: A Jurisprudential Lens. It's a fine article and a timely one. (Actually, it is always a timely topic.) Here's the abstract:

American law clerks often draft opinions for their judges. Yet American legal culture is remarkably diffident about that simple fact. The role that law clerks play in drafting opinions is not a secret. Far from it. But it might qualify to be somewhere in the outer vicinity of being an “open secret.” And it continues to be controversial.

This essay explores a set of questions about opinion-writing by law clerks. The first major question is meta-normative. The goal is not to decide whether the practice of law clerks drafting opinions is proper or improper, but why it is occluded and controversial in the first place. Specifically, why is there so much more diffidence and doubt about the role of law clerks than about the work of aides in the other branches of government such as Presidential speechwriters and Congressional staff?

The second question is hermeneutic. Should the fact that judges might not always draft their own opinions lead us to read and interpret those opinions differently, especially when we draw conclusions about the “jurisprudence” of this or that judge or Justice or the way that legal doctrines often seem to be shaped by longstanding, dialectical, debates among judges or Justices?

The discussion of both questions tries to shed some light on broader constitutional and jurisprudential questions, including the distinctly metonymic relationship between the “President” and the rest of the Executive Branch and the complicated connections between judicial reasoning, the exercise of judicial authority, and the identity of the individual judge.

This essay was written as part of symposium marking the hundredth anniversary of the formal institution of Supreme Court law clerks.

It's a very enjoyable piece. I would flatter it more, but I am enjoined not to. My initial reaction to the piece was that one reason we might distinguish between practices in this area and practices in Congress and the executive branch, where laws are drafted by others and the President is rarely responsible for his own words, is that we care only about the legal force of their words--the president's executive order or Congress's legislative text--while in the case of judges we care about the force of their reasoning. I'm not sure Dane convinces me otherwise. But he does convince me that this is too trite a response. Perhaps more to the point would be that we care about the personality or character of a judge's writing, about the human and intellectual force behind the canalized reasoning and official order, not so much for biographical as for vaguely aretaic reasons. To the extent that presidents have become reliant on a corps of staff-writers, we should not so much shrug our shoulders about judges as acknowledge that character has become either less important or more fictionalized in the case of presidents, and that much of our myth-making about this or that great modern president and the great and eloquent character shown by his (so far) words is just that and not a fit activity for mature adults. Idolizing as a person a president for having delivered a great speech written by a stable of employees is a lot like (but worse than), to use an example Dane also discusses, being utterly convinced that the "author" of some ghost-written memoir really is that pal you always wanted to have, based on his or her (false) written voice.   

Perhaps that points to another common trait shared by all three branches, one that Dane at least touches on in the paper: that the workload of each branch is such that "increased delegation...is simply unavoidable." In short, each branch (judiciary included) has become, ever more so, a fully bureaucratic enterprise, in which personality, character, and virtue are either less essential or, at a minimum, less important and less visibly a key element. (At least when the branch functions properly; I grant that some presidents and perhaps some judges may present a challenge to this observation.) I think there is substantial truth to this and substantial necessity, but that taking it on board means jettisoning the tendency to treat judges as intellectual and aretaic giants. They may be just that, but they needn't be. If we saw them as corporate offices engaged in the bureaucratic exercise of "justice," we would hardly need the phony mystery, omerta, and "open secret" tendencies--the "diffidence"--that Dane describes well about law clerks and their work. (I very much enjoyed his brief discussion of "open secrets," which again seems quite timely.) I have a touch of suspicion that there are reasons, many not entirely attractive or worthy, why many might prefer the open secret to what can be a more prosaic and less romantic daily reality. Mythmaking around judges, judging, and clerkships is of benefit to more than just the judiciary itself.

A final, intriguing question is raised as something of an aside in Dane's exploration. Dane raises a question about "whether judicial opinions are more akin to political and corporate speeches, on the one hand, or to scholarly articles, on the other." In setting up this question, he offers the conventional wisdom about "scholarly ghostwriting:" "It happens. It is almost certainly wrong. And scholars themselves have articulated specific sound reasons for concluding that it is unethical and pernicious." Certainly I think so, but Dane's own reasoning, and the kinds of arguments he cites about judges, now have me questioning that conclusion. Granted that this is so if the scholar steals the work of an assistant, or publishes an assistant's work without attribution and without doing any of the research or thought involved in the work. But what is radically different about a judge checking, editing and altering, and then publishing under her own name a judicial opinion authored, after some instruction about what the opinion should say, by an law clerk--and a scholar doing the same with a piece of work performed after instructions have been issued and with some end-stage supervision and editing? One difference is that advancement for the assistant in the latter case, at least if we're talking about grad students, depends on being able to claim authorship or co-authorship and build a body of work. But I'm not sure why the reputational and career incentives should drive our over-all conclusions about the propriety of the practice, or about which professional reward structure might be in need of altering. We could just as easily not insist on a pile of publications by a junior academic, but instead look at the body of work to which they "contributed"--or insist conversely that judges ought to give some public credit to the law clerks involved in each opinion.

All in all, a fun piece. I wish I had been at that symposium! I hope that a sufficient number of skunks were invited to the garden party, so to speak.       

Posted by Paul Horwitz on February 18, 2020 at 04:43 PM in Paul Horwitz | Permalink | Comments (0)

The Missing Element in "This is the first article to..." Sentences

I have written all too often questioning the standard "novelty" or "this is the first" line in law review articles, on multiple grounds, such as: 1) It is often, and fairly explicitly, merely a crass form of marketing; 2) it is often at best only somewhat true, both in terms of current work and especially if one goes past the date at which most law reviews are included in the most popular databases and looks at pre-1980 scholarship; 3) not every important question is a "novel" one, and law review editors ought to be looking for important discussions, some of which are "novel" and some of which are not; and 4) there is a tail-wagging-the-dog aspect to the whole trend, in which scholarship becomes driven by placement tactics instead of placement being driven by scholarship (or, better yet, scholarship being driven by itself and evaluated on its own terms instead of where it lands, and to the devil with placement).

So it is appropriate that I find myself being punished by working on an article that does indeed seem to explore a "novel," "curiously under-explored," etc. topic. (Even so, as I have asked around to confirm with reliable scholars that it is indeed seriously under-examined, I have found at least one other person working on the same question and a couple of others writing about it online. This should be no surprise. Questions that are novel and important are bound to attract attention; what is then important is not the race to be first past the post, but that the topic be discussed thoroughly and well.) 

In doing so, I find myself asking why the question, which is not hidden or obscure, has not been discussed, or has been discussed so little. And I am led to the conclusion that something is missing from most "This is the first article" or "novelty" claims that would greatly enrich the articles they come from and lend some perspective to the "firstness" of any such scholarship. What's missing is a discussion of why (to the extent that the claim is actually accurate) the topic has not been discussed before. 

Sometimes the answer is obvious. A new case or rule or doctrine or statute has emerged. Even there, it rarely develops out of whole cloth and there is probably a good deal of scholarship on the basic issue. But at least there is a new official legal element of some sort. Or a new fact about the world--a new technology, a new disease, or something else--with legal implications has come along. Or a new line of thought has emerged in some other discipline, one that is only five or ten years old in that discipline, but which has not yet been fully applied or exploited in legal scholarship. (Again, one often finds that some perspicacious scholar has already noted the existence of that line of scholarship. Most legal discussion of "behavioral law and economics" or "behavioral analysis" or "biases and heuristics" dates to the late 1990s. But serious discussions were around as early as 1985, and the first reference I found to Kahneman and Tversky in a law review dates back to 1974.)

But sometimes the reason is none of these. Therein, at least sometimes, lies a puzzle. Why did some relatively obvious and non-trivial question, one often hinted at or mentioned in the existing scholarship, never get a proper examination? It seems to be that: 1) the answer will depend on a multitude of legitimate and more questionable factors--social currents, professional incentives, elite sentiment, reluctance to disturb a beneficial established or developing legal order, a "sufficient unto the day" attitude, the state of contestability of some question and its movement from being "taken for granted" to being "up for grabs," and so on; and that 2) even if no single or definite answer can be reached as to why the question has been left untreated, it's something worth exploring.

It's a "meta" question, to be sure. Some scholars may shy away from such questions or see them as distractions or imponderables. I suspect they are also seen, unconsciously or otherwise, as complicating and/or undermining the selling value of the novelty claim as a marketing device. (I cannot help but see that as a feature and not a bug of such a question.) But I should think that at least in some cases, and perhaps in many, trying to answer this question will reveal interesting features or aspects of the "novel" question. It may say something about legal scholarship as an enterprise. But it may also say something about larger social, political, and legal currents, about the boundaries of "acceptable" questions, and about when and why some questions are seen as significant or insignificant, relevant or irrelevant, important or trivial. It may say a great deal about how elite networks or circles think and act, about what they see--and about what their position and perspective blinds them to seeing or deters them from discussing. 

I would love it if every law review article that insists on making a novelty claim at least included a footnote--in addition to the "honorable exceptions" or "here's how I distinguish the following articles that also discuss this topic, so that I can maintain my novelty claim" footnote--that attempts to give some reason why "this is the first article to" do something or other. As I suggested, sometimes the answer will be short, accurate, and obvious. Sometimes it may raise doubts about the novelty claim itself; surely, if the author is not then impelled to remove the novelty claim, the piece will at least be more appropriately candid. In other cases, however, the answer may be interesting and important enough to affect our understanding of the issue and perhaps alter and enrich the author's own discussion. At a minimum, "Why is this article the 'first?'" is a useful question for law review editors to ask. It may lead them to doubt the author's claim; but in some cases it may also lead to useful questions and comments to the author as he or she develops the article and goes through the editing process. 

Posted by Paul Horwitz on February 18, 2020 at 11:15 AM | Permalink | Comments (0)

Monday, February 17, 2020

Job Posting - Assistant Professor of Practice

The University of Mississippi School of Law invites applications for an Assistant Professor of Practice whose primary responsibility will be directing a comprehensive program to ensure bar exam passage and overall academic success. The full job announcement can be found here.

Candidates should apply online, submit a cover letter, a curriculum vitae, and the names of three references. Forward questions to Farish Percy, Search Committee Chair, at [email protected]. All applicants MUST apply online at https://careers.olemiss.edu/go/Faculty/4438900/

Posted by Sarah Lawsky on February 17, 2020 at 05:50 PM | Permalink | Comments (0)

Call for Nominations: Peter Gonville Stein Book Award

Nominations are being sought for the Peter Gonville Stein Book Award from the American Society for Legal History, awarded to the best book in legal history (written in English) outside the field of US legal history, published during the previous calendar year.

Nominations are due by March 16, 2020. Direct inquiries to Matthew C. Mirow ([email protected]).

Posted by Howard Wasserman on February 17, 2020 at 10:53 AM in Teaching Law | Permalink | Comments (0)

Saturday, February 15, 2020

The Trump Impeachment and Bad News for Federal Judges

The “Rules of Proceedings” Clause grants the Senate the power to frame the rules of its proceedings. And the impeachment trial clause specifies that the Senate has the "sole power to try all impeachments." "Sole" textually commits the impeachment trial power to the Senate, and "try" is a word that the Supreme Court claims, ironically enough, lacks any judicially discoverable and manageable standards. In Walter Nixon, Chief Justice Rehnquist enlisted fainthearted originalist votes to conclude there was a lack of discoverable standards to allow judicial review of Nixon's impeachment. Justices Scalia and Thomas joined the majority in consulting a 1971 Webster's dictionary to claim, due to a "variety of definitions" in conflict with ratification era dictionaries, ambiguity in the meaning of the word "try." Thus, the case was a political question unsuitable for judicial review. Of course, in the Seventh Amendment context, the Court regularly decides what a jury trial entails by looking to English common law at the time of ratification.

Walter Nixon's holding roped off the Senate's impeachment trial process from any judicial review. Effectively, it announced, to quote Justice Souter, "an unreviewable discretion in the Senate to ignore completely the constitutional direction to 'try' impeachment cases." Now, post Walter Nixon, we have just witnessed the Senate "trying" a case without any witnesses. That absence of witnesses (prosecution or otherwise) did not prejudice defendant Trump. Had he actually been injured rather than helped by the Senate majority, Trump might have attempted judicial review only to be confronted with Walter Nixon.

But Walter Nixon together with the new "Trump v. House Managers" no-witness precedent are swords that can cut offensively as well as defensively. One potential proposition from Trump that could serve as precedent is that the Senate need not allow any witnesses at any impeachment trial. What if a future accused wants defense witnesses yet the Senate majority finds no constitutional duty to hear from them in order to "try" an accused and instead it elects to convict on the basis of a "coin toss" or its view the accused is a really "bad guy," to invoke Souter's hypotheticals? And what if the impeachment target is not a President with comparatively greater legal resources and political allies, but a judge?

Consider that judicial impeachments are lower visibility events than presidential impeachments with less fanfare; politically, federal judges have a different relationship with senators than a President, as head of a party, enjoys; the resolution of judicial impeachments is relatively fast, entailing less opportunity cost for Congress, especially with subdelegation of evidence gathering functions under Senate Impeachment Rule XI; and judges are impeachable for whatever constitutes not "good behavior," which might be conceived as a more specific and higher Article III standard for appropriate judicial behavior—not simply a shorthand cross-reference to the very bad behavior embodied in Article II grounds as "treason, bribery and other high crimes and misdemeanors."

But isn't the 2/3 supermajority vote to convict a safeguard against a no-defense-witness impeachment trial? Institutionally, individual judicial targets have significantly fewer legal resources at the ready for their defense than incumbent Presidents. It's no wonder that threats of impeachment against federal judges frequently precipitate resignations in impeachment's shadow; impeachment's in terrorem effect reaches many more federal judges than those formally impeached and convicted.

Of course, we could try and "read" the Trump nonjudicial precedent more limitedly, i.e. the Senate can deny the House prosecution, but not a defendant, all witnesses. It's unclear, though, why that would be the case where the Senate holds the judicially unreviewable "sole power to try all impeachments." Told by the Court that the Senate can do what it wants when trying impeachments, we should be unsurprised when it does just that.

Posted by T. Samahon on February 15, 2020 at 01:22 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (5)

Friday, February 14, 2020

Transitions, and Some Reflections on Clerking

I learned very recently that the judge for whom I clerked, Ed Carnes, currently the Chief Judge for the U.S. Court of Appeals for the Eleventh Circuit, has announced his intention to take senior status. Given that when I clerked for him he was younger than I am now, this ages me more than a little. I wish him well. That news offers a nice hook to re-up a link or two to an article I published in the Alabama Law Review on the occasion of his 25th anniversary as a judge.  (The other articles in that tribute can be found here.) Although I worried about this piece some at the time, it was a pleasure to write and readers have seemed to enjoy it, if only out of shock and gratitude that I wrote something relatively short. I worried because the piece was a little unusual, especially within the genre of judicial tributes. In part, although I certainly spoke about the judge and about my clerkship experience, the tribute was also a platform or opportunity to offer some explorations of the unique, not to say downright odd and not necessarily healthy, place that the judicial clerkship holds in American legal culture, including elite and academic legal culture. I had talked about these things on this blog, but welcomed the opportunity to say them more fully and formally, as it were.

The first point I explore in the piece is to question what seems to me a widespread culture of lifelong hero-worship of one's judge, something that I think has to do not only with the age at which one clerks and the fineness of one's judge, but with various odd features of our legal (and perhaps especially elite and academic legal) culture. Less odd, but equally important, in my view, is the connection between clerking, one's judge's reputation, one's professional network, and one's own success and reputation--in short, the particular kind of careerism that is practiced in small and select circles. Of course not every clerk thinks about things in these terms, but our actions and incentives are not always perfectly transparent to us. And surely not every former clerk thinks like this forever. Surely many "grow up" and out of it, as it were. But law reviews do not devote issues to judicial tributes of that sort--more's the pity--and by and large our culture gives primacy to the hero-worship, clerk-for-life model. In the piece, I suggest that William Simon was right when he wrote in 1986 that this culture tends to "prolong the style of adolescence to which privileged Americans tend to become compulsively habituated," and that this prolonged adolescence retards true independence and maturity.

The other set of observations I offer in the piece has to do with the nature of a clerkship, and particularly the tendency in law reviews and other such elite watering-holes to hold up as an exemplar what I call a "familial" model of a judicial clerkship, rather than a "just a job" model. The clerkships that are said to be most desirable, or at least the picture that people tend to paint when they are rhapsodizing publicly about their judge and their clerkship, is one of closeness and intimacy, in which the chambers is a "family." It is no insult to Judge Carnes--quite the contrary, it is a high compliment--that I never felt like I was one of his family. He already had one of those. The clerkship was a job--a very, very good job, but still just a job. The relationship was simply a professional one. Of course, a good professional relationship, with one's boss and one's colleagues, at its best can be a friendly and a fun one, and that's how I felt about my own clerkship. But it's not an intimate one. There is a difference between asking and caring about one's colleagues or colleagues' children, and thinking of them as one's own children or grandchildren. Although I may initially have been disappointed that my own clerkship was not in the familial mold, I write in the piece that ultimately I found the "just a job" model "a virtue and a valuable learning experience of its own sort," one that was conducive to "independence, perspective, and realism." I might add that I think it was healthier all around. The most unpleasant work experience I ever had was in a small workplace where the employers encouraged us to think of them as "family"--something that was lovely right up until the moment one found that "family"-type employers can also be just as emotional, harsh, and personal in their words and actions as real-life unhappy families. It is a virtue of professionalism and of a workplace that it is not a family and cannot be mistaken for one. A family is a place of intimacy, and intimacy by its nature lacks boundaries. A workplace lacks intimacy, and has boundaries and rules. In the long run, although I could never boast, as the culture seemed to expect of me, that my clerkship involved joining a lifelong "family," I concluded that I was much better off for being able to say that it was a very good job, with a very nice guy and a great bunch of colleagues (who are indeed my friends), but distinctly just a job. That, too, can be cause for due gratitude, and I am indeed duly grateful to Judge Carnes.    



Posted by Paul Horwitz on February 14, 2020 at 03:15 PM in Paul Horwitz | Permalink | Comments (0)

Iowa Law Faculty Fellowship

The Iowa Law Faculty Fellowship is a new program that is intended to provide research opportunities, faculty mentoring, and career development for promising legal scholars and teachers. Fellows will be expected to teach one course during the academic year, develop one or more major works of scholarship, and contribute to diversity, equity and inclusion goals at the College and University. While the Iowa Law Faculty Fellowship does not have a specific subject matter focus, it prioritizes applicants who seek to conduct interdisciplinary research that connects with other fields of study at the University of Iowa.

Initial Faculty Fellowship appointments are for one year and can be renewed once.  Fellows will be appointed at the rank of Visiting Assistant Professor of Law.  The salary for the 2020-21 Academic Year will be competitive with well-regarded law fellowship and VAP programs, and fellows will be provided with additional research support.  Fellows will be expected to be in full-time residence at Iowa Law during the academic year--a great opportunity to live in the quintessential college town, home of the Iowa Writer's Workshop and a major public research university.

For fullest consideration, candidates should submit applications before March 5, 2020. For more information, they can contact Adrien Wing, chair of the Faculty Appointments Committee at [email protected].

More details are available at https://law.uiowa.edu/iowa-law-faculty-fellowship

Posted by Sarah Lawsky on February 14, 2020 at 10:25 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

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

The Northwestern University Law Review is pleased to announce its third annual issue dedicated to empirical legal scholarship, to be published in Spring 2021. We welcome papers making use of any and all empirical tools—including qualitative, quantitative, and mixed methods—to examine and engage questions of legal interest. The Northwestern University Law Review accepts empirical articles on an exclusive basis only. The exclusive submission window for the 2021 empirical issue will run from February 15–April 1, 2020. Because the Law Review’s empirical submission track operates on an exclusive basis only, participating authors must agree to withhold the manuscript from submission to any other publications until receiving a decision from us. All pieces of interest will be sent out for anonymous and thorough peer review in advance of publication decisions, which will be issued no later than June 15, 2020.

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

Posted by Sarah Lawsky on February 14, 2020 at 10:00 AM in Law Review Review | Permalink | Comments (0)

Thursday, February 13, 2020

Before Law Schools

It is an important time to think about teaching law. After attending a recent teaching workshop, I noticed that (for whatever reason) I had focused on my experiences teaching doctrinal courses. My primary courses on administrative law and sales/contracts cover essential subjects. These classes span the public-private divide and incorporate my background in telecommunications litigation, as well as my scholarly interest in interpretive questions raised by regulatory statutes and contracts.

But doctrinal classes are only part of the teaching I do at Loyola. I also run a fantastic student fellowship program through Loyola’s Institute for Consumer Antitrust Studies. In addition to substantive courses on competition policy and consumer protection, our fellowship program facilitates other types of learning. We introduce our fellows to practicing lawyers through mentoring programs and monthly lunches, and fellows also engage in legal writing projects with opportunities for multiple rounds of faculty comments and revisions. These opportunities to connect with practitioners and develop writing skills are also integral to law students’ education.

My initial focus on doctrinal classes tracks a historical distinction between formal legal education and reading the law. Lawyers in the United States did not always enter the profession primarily by attending law school. Reading the law (à la Kim Kardashian) was once the norm. Aspiring lawyers who read the law in the 18th-19th centuries apprenticed in law offices, where they gained valuable exposure to professional traditions and practicing attorneys. Although this system did not do a good job of teaching broader legal principles and sometimes left apprentices alone while their teachers tended to clients, it was how most lawyers were trained. Even many Supreme Court Justices never attended law school. I explored this phenomenon in Schooling the Supreme Court — an empirical analysis of a period when Justices’ educational backgrounds were far more diverse than they are today. (I am indebted to Mike Zimmer for the title of this article, and fear I will never publish another article with a title that I like as well.)

Today law schools offer doctrinal courses, training in legal writing and other critical skills, and experiential learning. Some historical methods of teaching law, such as rambling lectures delivered by a professor sipping whiskey at the long-defunct Litchfield Law School, have gone by the wayside in today’s engaged learning environment. Law schools have also become more attuned to producing practice-ready lawyers.

My research suggests the importance of formal legal education. Historically, Justices who shared the benefit of formal legal education voted independently of the ideologies of their appointing presidents. Votes of Justices without this background were significantly predicted by ideologies of their appointing presidents. Thus, presidents lost political influence when they appointed Justices who had attended law school. Although my statistical analysis provides too blunt a measure to explain exactly why this was the case, the correlation between formal legal education and apolitical voting was significant. It suggests the value of learning about the law as a discipline with the potential to transcend the outcomes of presidential elections.  

My historical research also provides reason to think that the value of legal education extends beyond doctrine and skills taught in the classroom. Law schools currently operate as gatekeepers and control who has the opportunity to enter the legal profession. When entry into the legal profession turned on apprenticeships, these opportunities were most readily available to white men from affluent families. Today’s system of higher and legal education has expanded opportunities for women and minorities, although it still seems to favor privilege and lack optimal diversity. Law schools have made some significant strides in diversity. This year, the editors in chief of law journals at the top 16 U.S. law schools are women. Greater diversity in the legal profession and its leadership is another aspiration that the legal academy is uniquely situated to promote.

Posted by Christine Chabot on February 13, 2020 at 05:09 PM in Legal History, Life of Law Schools, Teaching Law | Permalink | Comments (3)

Wednesday, February 12, 2020

Forrester Fellowship - Tulane Law School

Tulane Law School invites applications for a Forrester Fellowship. Forrester Fellowships are designed for promising scholars who plan to apply for tenure-track law school positions. The Fellows are full-time faculty in the law school and are encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support, both formal and informal, including faculty mentors, a professional travel budget, and opportunities to present works-in-progress in various settings.

Tulane’s Forrester Fellows teach legal writing in the first-year curriculum in a program coordinated by the Director of Legal Writing. Fellows are appointed to a one-year term with the possibility of a single one-year renewal. Applicants must have a JD from an ABA-accredited law school, outstanding academic credentials, and significant law-related practice and/or clerkship experience. Candidates should apply through Interfolio. If you have any questions, please contact Erin Donelon at [email protected].

The law school aims to fill this position by March 2020. Tulane is an equal opportunity employer and encourages women and members of minority communities to apply.

Posted by Sarah Lawsky on February 12, 2020 at 08:41 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Caminker & Chemerinsky on Pete Rose, MLB, and the Hall of Fame

Evan Caminker and Erwin Chemerinsky argue in The Times that Major League Baseball should reinstate Pete Rose, making him eligible for election and induction into the Hall of Fame.

Steve Lubet (Faculty Lounge) hits the glaring defect in their argument--they minimize the severity of Rose's misdeeds and their effects on the game by emphasizing that Rose never bet against the Reds, without acknowledging the downstream effects of his gambling choices. I do not have much to add to his argument.

Caminker and Chemerinsky also minimize Rose's misdeeds by comparing them with revelations about sign-stealing and PED use, maximizing the evils of those practice. But reasonable minds differ about sign-stealing and PED use. Many (including many who played the game) believe sign-stealing to be a well-worn part of the game and the ongoing search for a competitive advance and PED use to be the same as other scientific advances that improve performance. No one (I do not think) argues that gambling on baseball is OK.

The timing is interesting because President Trump last week called for TrumpRose* to be in the Hall, for many of the reasons Caminker & Chemerinsky present. Although they do not mention Trump, they agree on something.

[*] Freudian slip. Trump probably does believe he should be in the Hall of Fame.

It might be tempting to view this question through the controversy over Trump's many actual and threatened pardons, which C&C (especially Chemerinsky) have criticized. But that is not the right way to look at this. Rose was punished with a lifetime ban that included the opportunity to petition for reinstatement, with a presumption that any petition would be considered in good faith, if not with a presumption in favor reinstatement (and likely the opposite). Rose accepted the same punishment imposed on Shoeless Joe Jackson, Buck Weaver, and the rest of the Black Sox, several of whom petitioned (unsuccessfully) over the years. Caminker and Chemerinksy thus do not call for a pardon, but for the exercise of the discretion built into the sanction. They make arguments similar to those of  several Hall of Famers (including, I believe, Ted Williams) in the late-'80s/early '90s in favor of Jackson's reinstatement, following release of Field of Dreams.

Unsurprisingly, C&C do get the procedure right. They do not argue for Rose to be placed in the Hall. They urge MLB Commissioner Rob Manfred to reinstate Rose on the grounds that Rose has served the time for his crime against the game. Reinstatement would allow Hall voters to elect him, without requiring it; voters could decline to elect him as they have with Barry Bonds, Roger Clemens, and Mark McGwire, believing that the shadow of misconduct precludes election. Ironically, the rule that formally prevents Rose's (but not the others') election was codified in 1990, in response to the tide of pro-Jackson sentiment.  On the other hand, as a commenter on Steve's post points out, the Hall could repeal its rule and elect Rose even if he remains banned by MLB. 

Posted by Howard Wasserman on February 12, 2020 at 05:13 PM in Howard Wasserman, Sports | Permalink | Comments (2)

The House Resolution on the ERA

Later this week the House of Representatives will take take up a joint resolution that would waive the prior ratification deadline for the ERA. (The prior deadline expired in 1982). This resolution probably has no chance of passing the Senate.

Interestingly, the resolution as currently drafted takes no position on whether any of the state ratification rescissions count. In other words, the resolution does not say that the ERA is ratified if the Senate passes the same resolution. Instead, it just says that the amendment is valid whenever three-fourths of the states ratify.

In theory, Congress could waive the ratification deadline but refuse to direct the Archivist of the United States to recognize the ERA as the 28th Amendment until five more states ratify (since five states rescinded their ratifications in the 1970s). Or Congress could require that directive as a separate resolution (which seems to be what this resolution contemplates). Thus, one way to read the House resolution is as an implicit recognition of the right of a state to rescind.

Posted by Gerard Magliocca on February 12, 2020 at 01:13 PM | Permalink | Comments (6)

A Commendable Shande: Bennardo on Legal Writing

Kevin Bennardo, a clinical associate professor and legal writing teacher at UNC, has a short and interesting piece recently posted on SSRN titled "Legal Writing's Harmful Psyche." He argues that legal writing professors "perceive themselves as victims of unfair treatment," and then "explores the consequences of that self-perception." In particular, he argues that this self-perception "has led to a norm of protectionism," manifesting as a sense of the group as a "family" with "a powerful sense of solidarity," that "stands as a barrier to meaningful growth within the discipline." He argues that the atmosphere of familial mutual support and loyalty inhibits internal criticism, "to avoid the risk of providing fodder that would validate the community's lesser status within legal academia" and to avoid "tear[ing] down other members of the group," and that this is wrong. "An academic discipline should not be a family in the mythical 'family-before-duty sense of the word. An overly forgiving nature may be a positive attribute in some settings, but not in the context of scholarly discourse....Legal writing shouldn't be treated as a safe space where all ideas are validated. The wheat can't be recognized as wheat unless we also [openly] recognize the chaff as chaff" by criticizing the work of others within the discipline of legal writing and legal writing scholarship.

I somehow suspect that the paper will not be well-received in the legal writing community, although I may of course be mistaken. Note that Bennardo does not challenge the proposition that legal writing teachers are treated unfairly. (Neither does this post.) I am not a member of the legal writing community, so I can't speak to whether his description of this purported self-perception is open to empirical challenge or not. Nor can I speak to whether he is right that legal writing conferences are subject to a surfeit of back-patting and omerta and a deficit of serious internal criticism, which I assume will also be a target of factual disagreement.

It does seem to me that the culture of perhaps overweening mutual support, habitual compliments, and unwillingness to engage in strong direct criticism of the work of others, especially within one's own community and especially within a community that shares many views, beliefs, goals, or premises, is hardly limited to legal writing, but has had much broader purchase throughout the academic community. I suspect that the reasons for this are varied and that there are cultural, generational, economic, and other factors. Thus, even those who agree with Bennardo's premises or are willing to accept them arguendo may still champion a good deal more "mutual support," "solidarity," and even "protectionism" (all quoting Bennardo) than he would. How much of this atmosphere is enough, how much (or what sort) is too much and ultimately counter-productive, and how much becomes less a matter of genuine mutual support and more a matter first of etiquette and ultimately of glib custom--Must one really preface virtually every response with the phrase "characteristically thoughtful?" Does it not, like "with all respect," mean less the more often and reflexively it is used? Personally, while I favor etiquette and sympathetic readings of others' statements and writing--and not just of one's academic interlocutors, but also of the third parties who are so routinely caricatured and criticized in most pieces of writing about the world at large--I find the phrase and others like it mostly unnecessary and in need of some pruning; one can be polite while still being direct, and I generally don't bother criticizing academic writing that I don't respect and/or find worthy of serious consideration, no matter how much I disagree with it, so the basic compliment can be assumed--is a worthy subject of open discussion and debate.

In any event, although I acknowledge that there is room for disagreement about Bennardo's premises, I found the piece refreshingly different, independent, and provocative, and relevant to broader discussions of the duties and norms that do, or should, apply within any academic community.  


Posted by Paul Horwitz on February 12, 2020 at 12:44 PM in Paul Horwitz | Permalink | Comments (0)

Gender & IP: Addressing the Gap - Univ of Texas next week

In Austin next week, Feb 21, Univ of Texas is holding its annual IP symposium. This year the topic is a very timely one and near and dear to me: Gender and IP. Speakers include judges and USPTO directors and my panel include Dan Burk (UCI) and Melissa Wasserman (Texas). I will be presenting the same paper I presented last week in Santa Clara's WIPIP, which Eric Goldman masterfully hosted. The paper is called Exit, Voice & Innovation: How Human Capital Policy Impacts Equality (& How Inequality Hurts Growth) based on my Frankel lecture, nearby in Houston last semester. The field of innovation and equality is surprisingly thin and I am happy there is current momentum, supported by a new gender and IP report by the USPTO to address this gap in the literature and in practice.

If you are in Austin, hope to see you.

Posted by Orly Lobel on February 12, 2020 at 12:02 PM | Permalink | Comments (0)

Administrative Law New Scholarship Roundtable on June 8–9, 2020 at Yale Law School

Yale Law School is pleased to host the fifth annual Administrative Law New Scholarship Roundtable on June 8–9, 2020, in New Haven, Connecticut.  

Approximately twelve authors will workshop their papers in a series of individual sessions, one for each paper, over the course of a day and a half. Each paper will be introduced by a distinguished scholar who will comment on the work and then facilitate discussion of it with all participants.  Confirmed commentators include Rachel Barkow (NYU), Jessica Bulman-Pozen (Columbia), Nathan Cortez (Southern Methodist University), Jerry Mashaw (Yale), Anne Joseph O’Connell (Stanford), Cristina Rodríguez (Yale), and Melissa Wasserman (University of Texas at Austin). Attendees will also include most or all members of the Roundtable organizing committee, listed below. 

Scholars wishing to participate in the Roundtable and present a paper must submit a one-to-two-page abstract by Friday, March 20, 2020. Applicants should include their title, institutional affiliation, and number of years teaching in the academy. Scholars holding fellowships or visiting assistant professorships are welcome to submit. Preference will be given to those with less than ten years of tenure-track teaching. Abstracts should be emailed to Nicholas Parrillo at [email protected]. You may also contact him with any questions about the event. 

The Roundtable will provide meals for all participants. Participants must cover their own travel and lodging costs. Yale will reserve a block of reasonably priced rooms at a local hotel in advance of the Roundtable.

Organizing Committee

Nicholas Bagley, University of Michigan

Nicholas Parrillo, Yale 

Michael Sant’Ambrogio, Michigan State 

Miriam Seifter, University of Wisconsin

Peter Shane, Ohio State 

Glen Staszewski, Michigan State

Christopher Walker, Ohio State


The conference webpage, with an online version of the CFP, is here.

Posted by Ethan Leib on February 12, 2020 at 09:11 AM | Permalink | Comments (0)

Monday, February 10, 2020

A Model of Constitutional Litigation

My new piece on universal injunctions has been published in Lewis & Clark Law Review. Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A Model of Constitutional Litigation joins three threads that I have been writing and blogging about here--the requirement of particularized injunctions, the distinction between precedent and judgment, and a model of departmentalism in which all branches are bound by judgments but only courts are bound by judicial precedent. The result is a model of how constitutional litigation functions in fact and should function in our understanding.

Abstract after the jump.

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” injunctions;

4) a judgment controls the parties to the case, while the court’s opinion creates precedent to resolve future cases; and

5) rather than judicial supremacy, federal courts operate on a model of “judicial departmentalism,” in which executive and legislative officials must abide by judgments in particular cases, but exercise independent interpretive authority as to constitutional meaning, even where those interpretations conflict with judicial understanding.

The synthesis of these five principles produces a constitutional system defined by the following features:

1) the judgment in one case declaring a law invalid prohibits enforcement of the law as to the parties to the case;

2) the challenged law remains on the books; and

3) the challenged law may be enforced against non-parties to the original case, but systemic and institutional incentives weigh against such enforcement efforts and push towards compliance with judicial understandings.

Posted by Howard Wasserman on February 10, 2020 at 07:15 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, February 09, 2020


I would like to tell a story that I've not shared in public before. In the Spring of 1994, I met Chief Justice William Rehnquist. I was an undergraduate at Stanford and was enrolled for a quarter in Stanford's Washington DC Program. The Chief Justice was a Stanford alumnus and came to meet the students. (There were about 20 of us and it was a private event.)

The Chief Justice was introduced by a man (whose name I do not recall) who was one of the Rehnquist's roommates when he lived in DC and was clerking for Justice Robert H. Jackson. In the introduction, the man talked about how he and Rehnquist used to argue about everything in the news back then, with a specific mention of  "racial segregation," and that "Bill always won."

I vividly remember that upon hearing this line the Chief grimaced and looked sort of distracted. It then occurred to me why. Either his roommate had said "I was for racial segregation and Bill convinced me otherwise" or the opposite. And the look on the Chief's face indicated it was the opposite.

Thus, when I read discussions about the meaning of Rehnquist's memo to Justice Jackson on Brown v. Board of Education, I feel sure that I know the correct answer, though of course my recollection of the Stanford event is not irrefutable proof. 

Posted by Gerard Magliocca on February 9, 2020 at 02:10 PM | Permalink | Comments (3)

Saturday, February 08, 2020

JOTWELL: Steinman on Engstrom on Lone Pine Orders

The latest Courts Law essay comes from Adam Steinman (Alabama), reviewing Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2 (2019), on the history and development of Lone Pine orders in mass-tort class actions.

Posted by Howard Wasserman on February 8, 2020 at 03:31 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Ending The Age of Impeachment

One thing I'm curious about is how the arguments in the High Court of Impeachment will resonate in the Supreme Court. In part, this is because the Chief Justice connects the two bodies. He heard a lot and probably learned a lot in the Senate, but who knows what he took away from that.

Let me give an example. The President's lawyers, especially Ken Starr, talked a lot about ending the age of impeachment. But in the litigation challenging congressional subpoenas for the President's tax returns, Judge Rao's dissenting opinion in the DC Circuit argued that the only way the House could obtain those records was through an impeachment investigation. If the President makes Judge Rao's argument in the Supreme Court, that would be inconsistent with Ken Starr's plea to the Senate. Accepting Judge Rao's view would mean more impeachment inquiries, as there would be no other way for the House to investigate individual official wrongdoing. There is nothing inherently wrong with more impeachment investigations. My only point is that then the President could be exposed to the argument that he can't have it both ways.

Posted by Gerard Magliocca on February 8, 2020 at 08:08 AM | Permalink | Comments (3)

"Thereof," legalese, and the readability of the U.S. Constitution

Should reasonable (non-lawyer) voters be able to read the U.S. Constitution and understand its meaning?

In United States v. Sprague (1931), the Court offered its approach to interpreting the Constitution: "The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction and no excuse for interpolation or addition" (my emphasis).

The Court's notice-to-voters proposition seems reasonable in light of theories of consent, even if sometimes aspirational and sometimes fictional, for example, language drafted ambiguously to achieve political compromise. Yet, notice is undermined when a document bristles with legalese and language that could fairly be read as embodying technical legal terms of art rather than ordinary natural language (e.g. "other high crimes and misdemeanors"). That drafting diminishes the ability of voters to access the text. If it is intended that voters, generation over generation, are still meant to understand the document, that difficulty is compounded.

Take the adverbial legalese "thereof." It is used over a dozen times in the Constitution and its amendments, but it can really muddle the meaning of a text. The First Amendment's religion clauses say that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." "Thereof" means "of the thing just mentioned; of that." But what is the "thing just mentioned" or the "that"? Like the word "herein," "thereof" can be treacherously ambiguous. Consider two possible readings:

1. If "religion" is the word referred to by "thereof," the reading could support an individualistic, religious right of conscience. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise [of religion]." Today, the Supreme Court interprets the clause this way.

2. But "thereof" might refer to "an establishment of religion," not just "religion." Thus, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise [of an establishment of religion.]" The free exercise clause would protect an institutional religion's prerogative, not an individual right of conscience.

"Thereof" and similar legalese introduce ambiguity into the constitutional text, opening the door to misunderstanding and competing interpretations. Like clear legal writers, future drafters should skip the legalese, at least if notice to voters actually remains an object in constitution drafting.

Posted by T. Samahon on February 8, 2020 at 08:00 AM in Constitutional thoughts | Permalink | Comments (15)

Friday, February 07, 2020

The Censure of Joseph McCarthy

I was thinking about this famous episode in light of President's Trump's acquittal. Senator McCarthy was a horrible person who used horrible tactics (aided by Roy Cohn) to destroy innocent people for political gain. When public opinion turned against McCarthy in 1954, more than two-thirds of the Senate voted to censure McCarthy for his misconduct related to a Senate investigation of his behavior. While McCarthy remained in the Senate, he was from then on shunned by his colleagues and died (probably of alcoholism) in 1957.

Why wasn't McCarthy expelled? Evidently, the Senate concluded that his actions did not call for expulsion. There is a similarity between expulsion from the Senate and a Senate impeachment conviction. Both require a two-thirds vote. But the Constitution provides no standard for expulsion from Congress. Still, you could say that Senator McCarthy abused his power (he wasn't accused of a crime) but in a way that did not warrant expulsion (or, put more crudely, two-thirds of the Senate would not have so voted.)

Imagine if Presidents could be formally censured by the Senate. (Yes, the Senate did do this to Andrew Jackson, but the validity of that act was highly questionable.) Maybe the same conclusion reached for McCarthy would have been reached for President Trump. An abuse of power yes: loss of office no.

Posted by Gerard Magliocca on February 7, 2020 at 03:32 PM | Permalink | Comments (6)

"Friendship in a Time of Cyberattack"

Apologies if this is a bit off-Prawfs-topic, but I enjoyed this piece, "Friendship in a Time of Cyberattack," by my theorist-and-theologian friend (and fellow Duke Blue Devils fan!), Mike Baxter.  Pope Francis, Guardini, Pieper, Berry, Simon, and MacIntyre all make appearances in Mike's discussion of friendship, time, technology, the university, and the polis. Here's just a little bit:

What the cyberattack did for us at Regis is open up the possibility of recognizing how our life and work together is so deeply dependent on digital technology and to consider the ways it could be enhanced by making ourselves less dependent on it. . . .

The cyberattack also created commonality between faculty and students, for we were in the same boat, with emails failing, assignments not posting, tests and exams running late. More importantly, there was a more personal touch to the interactions between students and faculty. Papers were graded by hand, in the penmanship of the grader. With no email, more students came by during office hours to ask about something. And there was a deeper sense that class was going to occur in the classroom, with everyone together, rather than dispersed through list-servers, online bulletin boards, and such. Finally, most importantly, it created common ground among faculty, for the simple fact that there was more time, what with fewer meetings, no department and college wide assessments to do, and so on; and with more time comes more conversations about what we are teaching and working on. An added factor here was that with on-line resources down, intellectual conversation is more likely to occur locally, which can be surprisingly fruitful. In other words, with our on-line capacities down, we were less able to have conversations with colleagues across the country and found ourselves drawn more into talking with colleagues down the hall or in the building across the quad.

In these (and other) ways we found ourselves gifted with the time and space for cultivating or renewing friendships in all the varieties and permutations discussed by Aristotle: utility, pleasure, among equals, among those older and younger, and, most importantly, true friendship, based on a common pursuit of the good. . . .

Posted by Rick Garnett on February 7, 2020 at 10:27 AM in Rick Garnett | Permalink | Comments (1)

Thursday, February 06, 2020

Will the Selia Case Provoke Bold Moves from the Roberts Court?

Originalist arguments may provoke bold moves from the Roberts Court this Term. In Seila Law LLC v. Consumer Financial Protection Bureau, the Court will decide whether an independent Consumer Financial Protection Bureau violates the Constitution. Leading originalist scholars have challenged the independent structures incorporated by the Bureau and a slew of other agencies as unconstitutional novelties. These agencies are independent, and arguably trammel on the President’s exercise of “the executive power” under Article II of the Constitution, because the President cannot remove their heads at will.

The originalist critique of independent agencies is no longer purely academic, thanks to a 2008 dissent that Justice Kavanaugh wrote as a judge on the D.C. Circuit. As he noted, the leading Supreme Court precedent supporting independent agencies, Humphrey’s Executor, has “long been criticized . . . as inconsistent with the text of the Constitution and the understanding of the text that largely prevailed from 1789 through 1935.” Free Enterprise Fund v. PCAOB, 537 U.S. 667, 694 (D.C. Cir. 2008). Then-Judge Kavanaugh conceded that he was unable to set aside Humphrey’s Executor, as it was “binding precedent.” Now that Kavanaugh is an Associate Justice of the Supreme Court, this constraint no longer applies.

Originalist arguments raise serious questions about the constitutionality of the Consumer Financial Protection Bureau and a multitude of other independent agencies. I will be part of the discussion of Selia and agency independence in the ABA’s upcoming issue of Administrative and Regulatory Law News. My contribution, Alexander Hamilton’s Independent Agency, will highlight the independent structure of an obscure, founding-era agency known as the Sinking Fund Commission. (For more background on the Commission, please see my working paper and earlier post.) In the article for the ABA, I conclude that the independent structures of the Consumer Financial Protection Bureau and the Federal Trade Commission are much closer to founding-era practice than previously thought.

It will be interesting to see how these issues play out at oral argument on March 3 and in the Court’s ultimate resolution of the Selia case. Given the complexity of the issues and the magnitude of the case, I suspect that Selia will be one of the Court’s end-of-term blockbusters this June. 

Posted by Christine Chabot on February 6, 2020 at 09:25 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (8)

Bad News: The New York Times is Doing Great

I have had a post simmering on the back burner for a while on what's wrong with the NYT's 1619 Project. (Short answer: 1) Journalism is the "first rough draft of history," it's not history, and spending time on things outside the expertise of the profession, especially when so many areas--investigative reporting, foreign bureaus, serious local coverage--need more resources and are within its expertise is a poor choice. That's true regardless of one's views of the substantive claims of the Project. 2) It's the capitalism, stupid. Whatever the intentions of individual actors, institutionally the Project represents another effort, especially through its school-curriculum salesmanship, to find new markets in an environment that is not kind to the old journalism business model. Again regardless of the substance, or of one's sympathy for the plight of newspapers, this is letting the tail wag the god.) It's taken time because I'd like to do it right. In the meantime, motivated by my same love of journalism as the first "institution" I was a part of, here's another Times-related story. It's painted as mostly good if not great news, but it ain't necessarily so.

The Times reports today that it has "reached one major business goal and got more than halfway toward another....in 2019 it passed $800 million in annual digital revenue for the first time, an objective it had pledged to meet by the end of 2020. Most of that $800.8 million — more than $420 million of it — came from news subscribers. In the fourth-quarter earnings report that came out on Thursday, the company said its total subscription figure was over five million, a high. The company’s stated goal is to reach 10 million by 2025." It continues: "The company added more than one million net digital subscriptions last year — the most new subscriptions annually in the newspaper’s history. In a statement, Mark Thompson, the Times Company president and chief executive, called 2019 'a record-setting year for The New York Times’s digital subscription business, the best since the company launched digital subscriptions almost nine years ago.'" The story then notes that "Advertising was a weak spot, with print and digital ad revenue each declining slightly more than 10 percent in the final quarter of 2019, compared with the year before....The company said it expected to continue generating revenue more from readers than from the advertisers that were once integral to the newspaper business."

Sounds good! But it should be cause for worry as much as anything else. Leaving aside straight partisan denunciations of the Times (but not more measured arguments that the Times's style has become more partisan and less connected to its traditional model of mid-century professionalism), relying on subscribers rather than advertising may be a necessity, but it's not necessarily a virtue. A newspaper that relies entirely on its subscribers will rely on keeping them happy, including parroting their views and hiring staff who are likely to do the same thing. That is surely one reason for the change in tone in the paper and the style of its reporting. It also means spending time and editorial resources on the things those subscribers want rather than the things they need, something that newspapers could do more easily when there was an independent stream of advertising, including classified advertising. When one is inclined to praise the seriousness of the Times and the intelligence of its readers, it's always a good idea to take a look at its "Most Popular" list and "Editors' Picks." Today, they include such instructive and indicative pieces as "Coming Home to a New Upper West Side. Which Apartment Did She Pick?" and "7 Podcasts for a Healthier Mind and Body." The online page of the Times manages to include news stories, but also pushes forward a host of luxury and comfort pieces (although many of the news stories and virtually all the opinion pieces are, in essence, comfort pieces for its readers): "'Dad Naps' for Everyone," "Dunkaroos Are Back," and a personal favorite from just the other day: a lavish, impassioned, absurd defense of Goop. As it is written in Scripture, "Jesus wept."

Of course the Times has always embodied and represented bourgeois sentiment and suited those needs and interests (mine included, to be sure). But it is a lot harder to do anything other than that when you have no cushion from reader satisfaction. If the Times today is not anywhere close to the paper it ought to be--and that is my view, but only because it's true--it is not because it is less popular, but because it has no choice other than to run after popularity, with a particular readership, like a dog chasing a car. (Its other option--diversifying into things in which it has no expertise and which I think tend to harm rather than help its core mission, like TV shows, podcasts, and school curriculum tie-ins--is, as I suggested above, a prominent reason for the 1619 Project, and an unfortunate one.)

In the course of drafting my 1619 post, I came across a recent story boasting that the newsroom staff is larger than it has ever been in the paper's history, at some 1,600 staffers. That seems at first blush to counter my suggestion that the paper is pouring its resources into side projects and intellectual throw-pillows instead of areas of reporting we need much more. I would feel better about that statistic if so large a proportion of its staff did not seem devoted to offering recaps of late-night TV and other television shows and features on "What to Do About an Overtalker," and if it had not already gotten bought out so many of its more experienced editors and writers. The dubious level of experience and quality of its online editors, headline writers, and stories is evident to any reader.

I'm glad the Times is not dying. There are few big newspapers in the United States and few good ones, and such institutions do something different from the alternatives that have arisen and which do not serve the same important functions. But the incentives and necessities that have been a part of its growth, and which inevitably become the subject of sincere but reverse-engineered justifications on the part of its staff and leaders, are going to change it, and are more likely to make it big than good.        


Posted by Paul Horwitz on February 6, 2020 at 01:48 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, February 05, 2020

Delayed executive transparency and political accountability

John Bolton may not be testifying during the Trump Senate trial, but eventually his manuscript, partial leaks of which have already been shared with the Press, will see the light of day, even if after a potentially prolonged (post November 3, 2020?) prior restraint of pre-publication review. As the Just Security blog noted, Republican senators voting to acquit on the basis of factual, rather than legal, deficiency will have to eventually contend with the Bolton’s manuscript disclosure and other subsequent factual developments.

The leaks of the general content of Bolton's book were timely and placed senators on notice that important additional evidence concerning the conduct of our foreign policy was missing that could have been sought. Too often, however, delayed disclosure is the rule, thwarting political accountability for bad actors, leaving only hortatory cautionary tales to be learned from past governance missteps.

Consider a few spectacular delayed disclosures in the use of force context (which I've written about elsewhere) that, had they occurred earlier, could have changed public discourse and perhaps the direction of policy by calling into question the amount of deference paid to the executive branch.

  1. Operation Northwoods. In March 1962, almost a year after the failed April 1961 Bay of Pigs Operation but 7 months prior to the October 1962 Cuban Missile Crisis, the U.S. Department of Defense personnel presented scenarios ("pretexts") to the Secretary of Defense and eventually the President, intended to trick the American public into supporting a war against Cuba. The memorandum disclosing the planning is notable for the explicitness of its object: “It is recognized that any action which becomes pretext for US military intervention in Cuba will lead to a political decision which then would lead to military action.” The pretexts included, inter alia, "develop[ing] a Communist Cuban terror campaign in the Miami area, in other Florida cities and even in Washington," sinking boatloads of Cuban refugees headed to Florida "(real or simulated)," and hijacking civilian aircraft, all while pinning the blame on Castro's Cuba. See the annex to the appendix to enclosure A (pages 9-11 of the PDF). This plotting was conspiracy, but it wasn't merely "theory." It's well documented and became available as a result of the 1992 John F. Kennedy Assassination Records Collection Act, the Act's Assassination Records Review Board, and the efforts of James Bamford. It, however, was many years too late to hold anyone accountable. General Lyman Lemnitzer, who was Chairman of the Joint Chiefs of Staff, was subsequently appointed to leadership in NATO and even a commission designed to investigate CIA abuse of power. NB: The documents are authentic; I copied them while at the National Archives II, College Park Maryland facility.
  2. Saudi involvement with al-Qaeda and 9/11. Soon after 9/11, the FBI during the George W. Bush administration developed credible intelligence that an element of the Saudi government was a sovereign sponsor of the attacks. Some of that intelligence was collected by the Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001, and reported in December 2002 in part 4 of the report, what have been called the "28pages." The Bush administration promptly classified these pages, which were only declassified near the end of the Obama administration. The Obama administration denied the records were evidence of Saudi complicity, but subsequent development of the factual record by Lloyd's of London in its SDNY reinsurance litigation in the 9/11 MDL as well as further government disclosure, cast substantial doubt on those denials. Under the Bush doctrine, where “any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime,” Saudi Arabia was far more connected with 9/11 than was, say, Iraq. Nonetheless, delayed disclosure favors the received narrative that non-state actor al-Qaeda carried out its terror operation on its own while dismissing later credible evidence of state sponsorship as mere "conspiracy theory."
  3. The Afghanistan Papers. As recently reported by the Washington Post, George Washington University's National Security Archive (the Archive) brought a FOIA action for U.S. Department of Defense records relating to the prosecution of the war in Afghanistan. The Archive's lawsuit sought Rumsfeld's early 2000s "snowflakes" memos as well as records generated by the Office of the Special Inspector General for Afghanistan Reconstruction (SIGAR), which interviewed U.S. personnel and NATO allies to develop a series of "Lessons Learned" reports. The secret history critically appraised the prosecution of the war. The mission kept changing; there was a failure to clearly define who the enemy was; money was wastefully spent without good justification; and massive scale corruption ran amok in country and undermined the government's stability.

Competing values, such as security and maintaining the confidentiality of deliberation, prize nondisclosure over political accountability. But one eventually has to ask at what point have we actually sacrificed security and robust deliberation through secrecy that evades political ventilation? The fog of war is not lifted when we are overly deferential to executive claims of privilege and confidentiality.


Posted by T. Samahon on February 5, 2020 at 10:47 AM in Constitutional thoughts | Permalink | Comments (8)

Monday, February 03, 2020

Uh, oh

Following the 2016 election, I identified breaking championship droughts as a random sports predictor that foretold Republican electoral success. If so, Democrats (including me) should be nervous this morning, as the Kansas City (Missouri) Chiefs won their first Super Bowl in 50 years--which I think qualifies as a long, if not quite as legendary, sports drought. This follows a number of other droughts that ended in 2019--St. Louis Blues win first Stanley Cup in 52-year history; Washington Mystics win first WNBA title; Washington Nationals win first World Series for D.C. since 1924 and first World Series in the 50-year history of the Expos/Nationals franchise.

Of course, we do have one counter-example in which end-of-drought coincided with Democratic success--the 2018 mid-terms followed the Washington Capitols' first Stanley Cup in a then-44-year history.

Posted by Howard Wasserman on February 3, 2020 at 03:42 PM in Howard Wasserman, Sports | Permalink | Comments (2)

Saturday, February 01, 2020

The Administrative Law Dispute at the Heart of the Census and DACA Cases

It is an exciting time to study administrative law. The pillars of this field — cases such as Chevron, Humphrey’s Executor, and Whitman v. American Trucking — seem likely to be up for grabs at the Supreme Court. And the Court’s resolution of the controversial census and DACA cases has turned (or will likely turn) on applications of the Administrative Procedure Act’s “arbitrary and capricious” standard of review. Both cases involve decisions of enormous importance to the Trump Administration. What you may not know is that the arbitrary and capricious standard of review is also up for grabs. As explained in my recent paper (written with Barry Sullivan and forthcoming in the Connecticut Law Review), the Supreme Court has never formed a stable majority on the question of how much deference courts owe the executive branch under this standard of review. Should courts find a decision arbitrary and capricious where an officer implements the president’s preferred policies but omits expert analysis of relevant data? Or should courts ease up on analytical requirements and provide greater latitude for policies implemented at the behest of an elected president?

Unfortunately, the Court’s 2019 decision in Department of Commerce v. New York sends mixed messages on these questions. The Secretary of Commerce (Wilbur Ross)’s controversial decision to add a citizenship question to the 2020 census drew shifting coalitions of five Justices. Chief Justice Roberts provided the deciding vote and wrote the opinion for each coalition, and Justices Alito, Gorsuch, Kavanaugh, and Thomas joined the part of the Chief Justice’s opinion that approved the Secretary’s general analysis. The Chief Justice granted great deference when he determined that the Secretary’s explanation need only lie “within the bounds of reasoned decisionmaking.” It was reasonable for Secretary Ross to conclude “that reinstating a citizenship question was worth the risk of a potentially lower response rate,” even though the Secretary bypassed routine testing designed to provide additional empirical evidence about response rates.

Had the Court resolved the case on this first issue alone, its decision may have signaled a shift to a more deferential version of arbitrary and capricious review. However, procedural irregularities led the Chief Justice to switch sides and invalidate the Secretary’s decision on grounds of pretext. Justices Breyer, Ginsburg, Kagan, and Sotomayor joined the Chief Justice’s opinion on this issue. Roberts’s disapproval focused on the “significant mismatch between the decision the Secretary made and the rationale he provided.” While the finding of pretext turned on “unusual circumstances,” none of the opinions expressly discussed late-breaking evidence of a clandestine study conducted by Dr. Thomas Hofeller, a redistricting specialist. This evidence raises the possibility that Secretary Ross was aware of Hofeller’s findings (that a citizenship question would benefit “Republicans and Non-Hispanic Whites”) and that the Secretary declined routine testing to avoid collecting public evidence on these points. The Chief Justice’s finding of pretext implicitly addressed this concern, but it failed to articulate a manageable standard for future cases.  

The Court missed an important opportunity to mitigate similar concerns in future cases. Rather than a finding of pretext “good for this day” only, the Court might have achieved the same result by finding the Secretary’s analytical shortcuts arbitrary and capricious. The initial and more deferential standard of review applied by Chief Justice Roberts glossed over the fact that the Secretary chose to base his official decision on limited evidence about response rates when he bypassed testing routinely employed for new census questions. A less deferential approach would reflect Justice Scalia’s earlier suggestion, in FCC v. Fox I, that “failure to adduce empirical data that can readily be obtained” might render a policy change arbitrary and capricious. It would also align with Justice Kennedy’s concurrence in the same case. Justice Kennedy emphasized the importance of agency decisions that are “explained in light of available data,” “informed by the agency’s experience and expertise,” and “justified by neutral principles and a reasoned explanation.”

It is unclear whether the Court will have a chance to clarify the arbitrary and capricious standard of review when ruling on the Trump Administration’s decision to rescind the DACA (or Deferred Action for Childhood Arrivals) program. While this case is extremely important, it involves a distinct set of humanitarian policy concerns, including reliance interests. Broader questions about the arbitrary and capricious standard of review seem likely to remain unanswered in 2020.

Posted by Christine Chabot on February 1, 2020 at 09:48 PM in 2018 End of Term, Current Affairs, Law and Politics | Permalink | Comments (2)

Submission Angsting Spring 2020

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.)

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron and Levit's extremely helpful guide to submitting to law reviews is available here (this is the January 2020 version). The article now also includes hyperlinks to law review websites.

Posted by Sarah Lawsky on February 1, 2020 at 06:11 PM in Law Review Review | Permalink | Comments (320)

John Bingham on High Crimes and Misdemeanors

"It is too late to construe the Constitution to mean, by the words 'high crimes and misdemeanors,' only offenses indictable at the common law or by statute."

Cong. Globe, 35th Cong., 2d Sees. 90 (1858) (statement of Rep. Bingham).

Posted by Gerard Magliocca on February 1, 2020 at 04:02 PM | Permalink | Comments (0)