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Wednesday, September 30, 2020

The ERA and Justice Barrett

Many people are speculating about what might happen next year if Democrats win and want to respond to Justice Barrett's impending confirmation. Court-packing? Jurisdiction-stripping? More lower court judges?

Here's a more modest thought. The chances that Congress will declare the Equal Rights Amendment part of the Constitution next year are probably higher. Under a common reading of the Constitution, Congress has the sole power to determine if a proposed amendment is ratified. Maybe there are sixty votes for that in the Senate. If not, the Senate filibuster may soon be a thing of the past anyway. But declaring the ERA ratified is a war for the Democrats to satisfy anger about Justice Barrett's confirmation without taking up the more radical remedies.

Would ratifying the ERA be just symbolic? Probably. But symbols matter, especially in politics.

Posted by Gerard Magliocca on September 30, 2020 at 09:19 AM | Permalink | Comments (7)

Humans v. Machine in Creative Design - experimental research

My favorite behavioral economist On Amir and his collaborators compare artificial intelligence logos against those produced by human designers & find that on average humans are rated higher:

Technological advances have enabled machines to displace humans both in physical tasks and in higher-skilled fields that require extensive knowledge or training. Recently, there has been an outpour contending that advances in artificial intelligence mean technology can outperform human creative experts. We explore whether artificial intelligence outperforms humans in domains that depend upon the spark of creativity. Two logo design studies and seven evaluation studies explore the performance of human designers as compared to artificial intelligence logo makers. Relative to logos produced through artificial intelligence, those created by expert humans are judged to be of higher quality. This advantage to expert humans is tied to their logos being more expressive and differentiated than the artificial intelligence logos. Finally, we discuss boundary conditions of these results.


Posted by Orly Lobel on September 30, 2020 at 12:55 AM | Permalink | Comments (4)


This Thursday and Friday at NYU a terrific program  (alas I am zooming in rather than having the pleasure to visit one of my favorite cities and be wined and dined...) -- speakers include Secretary of Labor Eugene Scalia, NLRB Chairman John Ring, EEOC Commissioner Charlotte Burrows,  and scholars from a variety of fields including Matt Bodie, Kate Andrias, economist Richard Freeman (who I had the pleasure to work with during my doctoral studies), Catherine Fisk, Sam Estreicher, and myself. Read the entire agenda after the page break. 


Day 1 – Thursday, October 1


8:45 a.m.

Prof. Samuel Estreicher (NYU Law)
Michael Gray, Esq. (Jones Day)


Introduction by Mark E. Brossman (Schulte Roth)

Morning Session Moderator: Zoe Salzman (Emery, Celli, Brinckerhoff & Abady)


Is Income Inequality Getting Worse and If So, Why?
Prof. Richard B. Freeman (Harvard)

Causes of Inequality in the Workplace
Prof. Matthew Bodie (St. Louis Univ. School of Law)
Comments:  Prof. John Addison (Univ. of S. Carolina)


Corporate Reporting Requirements, Shareholder Activism & State Law Approaches
Michael Delikat, Esq. (Orrick)

EEOC Pay Disclosure Initiatives, Past And Future
David Lopez (Rutgers Law School; former GC, EEOC)

Role of Internal Audits: Pay Equity Claims
Joseph O’Keefe (Proskauer)

Comments:  Johnna Torsone (Pitney Bowes)





Introduction by Virginia Hardwick, (Hardwick Benfer)

Afternoon Session Moderator: Gerald Hathaway (Faegre Drinker Biddle & Reath)


‘Joint Employer’ Issues
Prof. Michael C. Harper (Boston Univ.)
Comments: Jeffrey Rosin (O’Hagan Meyer)

Bolstering Union Power
Prof. Catherine Fisk (Berkeley Law School)
Comments: Frederick Braid (Holland & Knight)

Role of Antidiscrimination & Equal Pay Litigation
Joseph Sellers (Cohen Milstein)
Comments: Amy Traub (Baker Hostetler)

No-Compete Clauses as a Brake on Employee Wage Gains
Prof. Orly Lobel (Univ. of San Diego Law School)
Comments: Ann-Elizabeth Ostrager (Sullivan & Cromwell)


Day 2 – Friday, October 2




Introduction by Marshall Babson (Seyfarth Shaw)


Morning Session Moderator: Davida Perry (Schwartz, Perry & Heller)



Prof. Edward Rock (NYU School of Law)
Comments: Pearl Zuchlewski (Kraus & Zuchlewski)



Prof. Joseph Blasi (Rutgers School of Management)



Jeffrey Kessler (Winston Strawn)



Craig Leen, Director (USDOL, OFCCP)
Comments: Karen Gillen (O’Melveny)








Wendi Lazar (Outten & Golden)
Littler Mendelson International Offices:
    Hannah Mahon, London
    Sari Springer, Toronto
    Juan Carlos Varela, Caracas
Hironobu Tsukamoto (Nagashima Ohno)
Comments: Phil Berkowitz (Littler Mendelson)



Krissy A. Katzenstein (Morgan Lewis)
Other Speakers TBA




Posted by Orly Lobel on September 30, 2020 at 12:44 AM | Permalink | Comments (1)

Tuesday, September 29, 2020

A Jewish MLB post-season

No baseball on Yom Kippur 5781. But this is shaping up as one of the great Jewish MLB post-seasons. Ten of the 13 Jewish MLB players are in the post-season spread across eight teams (five NL, three AL). This includes four starting position players (Alex Bregman of Houston, Ryan Braun of Milwaukee, Joc Pederson of the Dodgers, and Rowdy Tellez of Toronto, who will miss the opening round with an injury); one starting pitcher (Max Fried of Atlanta); and three workhorse relief pitchers who can be expected to log some big innings in a format with no travel and thus no off-days.

Posted by Howard Wasserman on September 29, 2020 at 11:35 AM in Howard Wasserman, Sports | Permalink | Comments (17)

Bad legal reporting yields bad legal takes

Over the weekend, media outlets reported that a federal judge had removed or ousted William Pendley Perry as acting director or as person functioning as director of BLM. This prompted ALittleRebellion to make Bad Legal Takes for insisting that "no judge has the power to remove any executive appointee." In fairness, he may have made it more for further insisting that Perry "must ignore any such diktats," a screed about constitutional determinations under Article V, and a later insistence that "advice and consent" does not mean approval, just informal consultation.

But this tweeter's basic point--judges cannot remove executive appointees--is correct. Fortunately, the judge did not remove an executive appointee. The court declared that Perry was serving in the role in violation of federal law, enjoined him from continuing to act in that capacity because any conduct in the office is unlawful, and asked the parties to identify actions that may be invalid because enacted by someone unlawfully serving a role. All of which is what judges have the power to do and are expected to do in resoling cases and controversies. The problem--that long predates the rise of Twitter Law--is that much of the mainstream media does an awful job of covering courts and judicial processes, resulting in in fundamentally inaccurate reporting and information such as this. Which the uninformed of Twitter Law can run with as proof of an out-of-control judiciary with power-abusing judges who must be stopped.

Posted by Howard Wasserman on September 29, 2020 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (27)

Sunday, September 27, 2020

The Barrett Nomination

At Judge Barrett's confirmation hearing, I would be interested to know if she gave any consideration to declining the nomination. Someone should ask her. Maybe the answer is no. Maybe the answer is yes, but she concluded that she should accept. Either way, I'd be interested to hear her reasoning. This question strikes me as entirely appropriate and might be more illuminating than the standard game that Supreme Court nominees play with the Senate. 

In the interests of full disclosure, Judge Barrett and I were in the same summer associate class in 1997. I don't have any particular recollections of her though.

Posted by Gerard Magliocca on September 27, 2020 at 09:00 PM | Permalink | Comments (133)

Proving anti-Jewish discrimination

Eugene Volokh unearths a 10-year-old S.D.N.Y. decision in an action alleging co-workers in a government job referred to him as a "dumb Jew" or "fucking Jew."

Eugene focuses on one defense--that the plaintiff was not Jewish because his mother was not Jewish, he had not converted, and he was not practicing. The court rejected the argument, deeming it not the court's place to define who is Jewish and finding it sufficient that the plaintiff defined himself as being of Jewish "heritage," even if not practicing. One of Eugene's commentators nominates this as the new definition of chutzpah--calling someone a "fucking Jew," then arguing that he is not Jewish.

The rest of the decision is interesting apart from the chutzpah. The court denied summary judgment on a Title VII claim against the city. But the court dismissed a § 1981 claim, because the plaintiff alleged religious rather than racial discrimination. This seems like a pleading error. Courts will treat Judaism as more than a religion for § 1981 purposes. And that would have been an appropriate approach in this case, where the plaintiff did not practice Judaism and focused more on his "heritage" than his religion.

The court  granted summary judgment on claims against several harassing co-workers. Although there was evidence the co-workers had created a hostile religious environment, they were not state actors because they were not his supervisors. This is incoherent. The under-color question should be whether the defendant used his official position to engage in unconstitutional conduct and whether that position made the unconstitutional conduct possible. That should be satisfied here--the unconstitutional conduct is the religiously motivated harassment and they could engage in that harassment only because of their official positions in government. Harassment does not require a supervisory relationship, so it should be irrelevant to the under-color/state-action analysis.

Posted by Howard Wasserman on September 27, 2020 at 01:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 25, 2020

JOTWELL: Campos on Civ Pro Unavailability Workshop

The new Courts Law essay comes from Sergio Campos (Miami), discussing the Civil Procedure Unavailability Workshop, a remote civ pro workshop that Suzanna Sherry (Vanderbilt) and Adam Steinman (Alabama) established late last spring. (I did one of the talks, on Erie and SLAPP laws). Edward Cheng (Vanderbilt) originated the program with an evidence workshop.

Posted by Howard Wasserman on September 25, 2020 at 11:16 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 22, 2020

Jamelle Bouie misunderstands judicial supremacy and other comments

Jamelle Bouie calls on Democrats to reject judicial supremacy. Unfortunately, he does not seem to understand what judicial supremacy is or what it means to fight it. Instead, he conflates challenges to judicial supremacy with court reform. He offers the historical example* of Jeffersonians undoing the Midnight Judges Act--eliminating judgeships, restoring a SCOTUS seat, and restoring circuit riding. But none of that had anything to do with judicial supremacy. That was a dispute between competing parties in the political process about the structure of the federal courts, which everyone agrees was and remains within congressional control. It has nothing to do with who, if anyone, gets the final word on constitutional meaning. And the Court had no say in either the original act or the Jeffersonian response. One can support court packing or other  proposals for reforming the structure of the courts while believing in judicial supremacy.

[*] Bouie's other example is Lincoln's First Inaugural, where he suggests ignoring Dred Scot as precedent as to the validity of the Missouri Compromise, while recognizing that he is stuck with the judgment in that case. This envisions judicial departmentalism--bound by the judgment, free to ignore precedent.

Kevin Drum comments on Bouie's column and understands the issues better, arguing for jurisdiction stripping as the answer. This hits on something I did not consider or address in my work on judicial departmentalism. Departmentalism collapses into judicial supremacy because many (most?) constitutional questions devolve into judicial ones, producing a court judgment that the executive must enforce and obey, on pain of contempt. The solution--for those who want one--is stripping the courts of jurisdiction to decide some constitutional issues. But not because it eliminates courts' power to make new precedent--since the the other branches can ignore that. But because it eliminates courts' power to produce new judgments, which the other branches cannot ignore.

Posted by Howard Wasserman on September 22, 2020 at 10:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The Segall Court and a stopping point to Court-packing

As I was completing my prior post on the time passing for Eric Segall's eight-person partisan-divide Court, I thought of a way to save that plan and to put a check on infinite tit-for-tat Court expansion through mutual disarmament: Expand the Court to twelve with three Democratic appointees, then run the Segall plan with a 6-6 partisan divide.

Posted by Howard Wasserman on September 22, 2020 at 11:28 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Implementing the Carrington Plan (Updated)

With the prospect of attempted court-packing looming in the event of a President Biden and Democratic Senate, thoughts turn to alternatives involving 18-year terms and regularized appointments. The Carrington Plan, introduced in 2009, would achieve this by statute through the creation of the position of "senior justice," a Court of more than nine, but cases heard by a panel of the nine junior-most members.

The benefit of the Carrington Plan is that it could be done by statute. The 2009 version contained a sunrise provision, taking effect only with the first vacancy after passage and allowing current members to serve until death or retirement. This was to avoid constitutional objections to Congress violating Article III by changing the nature of the Justice's position--after 18 years, although still an Associate Justice, the person does not adjudicate cases. I was not, and am not, convinced by the constitutional arguments. If Congress can strip the Court of some (if not all) of its appellate jurisdiction, it can strip individual Justices of their role in exercising that jurisdiction. It is complicated and uncertain, but the constitutional problem is not obvious.

But the sunrise may be necessary to make it work across a full Court, because a President cannot make a regular biennial appointment if the junior-most Justice has not reached 18 years.

This was not the case in 2009, when Carrington and others presented the plan to Congress. Five Justices already had served 18 years and two more were close.Had it been implemented then, the Court could have turned over under the plan within 16 years: 2009 (Stevens), 2011 (Scalia), 2013 (Kennedy), 2015 (Souter*), 2017 (Thomas), 2019 (Ginsburg), 2021 (Breyer), 2023 (Roberts--who would have reached 18 years), 2025 (Alito, who gets a couple extra years on the Court). By 2025, we have an entirely new primary Court.

[*] Or Souter retires, as he did, in 2009 and everyone gets pushed back two years.

But the current Court structure prevents that clean implementation. In 2021, two Justices are beyond 18 years and four are close; those six would be replaced by 2031. But then it runs out. In 2033, the time for the next appointment, Gorsuch will have been on the Court for 16 years, two years short of the end of his term as active justice.

It would be unfortunate if the time for the best plan has passed, much as the time for Eric Segall's eight-person partisan-split Court passed in 2017.

Updated: Steven Calabresi (Northwestern) argues in The Times for a constitutional amendment and offers a solution to this problem: The eight current Justices would draw lots for the order in which their terms would end beginning in 2023, meaning some Justices may serve fewer than 18 years (e.g., if Kavanaugh drew short straw in 2023, he would serve five years). We could modify Calabresi's proposal and retain basic equity by going in reverse order through Alito Kagan, then drawing lots among Gorsuch, Kavanaugh, and Barrett in 2033. This ensures everyone serves at least 15 years, which Calabresi argues is longer than the term on other constitutional courts.

Also, note this feature of Calabresi's proposal--he is not messing around:

Failure to confirm a justice by July 1 of a president’s first or third year should lead to a salary and benefits freeze for the president and all 100 senators, and they should be confined together until a nominee has been approved. The vice president would act as president during this time and the Senate would be forbidden from taking action whatsoever on any of its calendars.

By the way, with all of this in the news, I must rethink the order of my Fed Courts class for next semester. I save jurisdiction-stripping and the issues of congressional control over the Court, including proposals for term limits and other restructuring, for last--they are highly theoretical topics that my students are better able to handle at the end of the course. The problem is that I have not gotten to this the last couple of years. But the life tenure and term limits stuff now is too central to the political discussion. I may put SCOTUS structure, including term limits, up front (the class begins with SCOTUS jurisdiction), even if jurisdiction stripping and similar issues remain at the end.

Posted by Howard Wasserman on September 22, 2020 at 11:22 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, September 21, 2020

Secrecy in Higher Ed Hiring

Here's what's been happening at GW - and here's a taste of my interview in the Hatchet today:

"Orly Lobel, a distinguished professor of law at the University of San Diego, said while the president doesn’t have a legal obligation to speak about the hiring process, he isn’t legally barred from it either.
Lobel said a president’s only limitation to revealing information would be signing a non-disclosure agreement. She said depending on how the NDA was drafted and the scopes of the contract, LeBlanc may have limits in speaking out.
“It is good practice for a university to have relative transparency in hiring processes,” she said in an email. “Though the reality is that these organizations, especially private universities, have been increasingly conducting hiring processes with opacity and secrecy.
She said the president could supply some information about the hire rather than information that was disclosed during the vetting process, like reassuring the community that the people involved in the process were independently investigated.
Lobel added that universities have a high interest in doing “due diligence” with respect to candidates, like contacting previous employers and vetting the candidate so that there “aren’t any skeletons left uncovered.”
“This is especially true at universities where faculty governance is a fundamental principle,” she said. “Especially true these days when we know that systematic patterns of wrongdoing and hushing of unlawful and unethical activities have been exposed in a range of institutions.”"

Posted by Orly Lobel on September 21, 2020 at 11:55 PM | Permalink | Comments (0)

Remembering Justices

Jack Balkin describes what Sandy Levinson and he call the "biography rule," dividing Justices between those whose primary achievement and notoriety derives from their service on the Court and those who would have had biographies written about them had they never served on the Court. Balkin places Ruth Bader Ginsburg in the second category, based on her advocacy for women's rights.

I wonder if we can sub-divide that second category: Whether their greater legacy is from their service on the Court or from their great pre-Court achievements. I think Taft is in the latter box, at least for non-lawyers; more lay people know he was President of the United States than know he was Chief Justice, even if he was better in the latter than the former role. I think Black and Warren go in the former box; Warren had a greater effect as Chief Justice than as Governor of California or unsuccessful VP candidate, Black a greater effect as a Justice than as a Senator.

What of Ginsburg? Balkin highlighted her opinion for the Court in U.S. v. Virginia and her dissent in Shelby County. She earned a reputation as a "great dissenter" (following in the footsteps of Holmes and Brennan), especially after Stevens left the Court in 2010 and she became the senior-most Justice in dissent. I would add her jurisdictionality opinions (she wrote numerous opinions narrowing the class of rules regarded as jurisdictional) and her opinions on personal jurisdiction (she wrote the opinions adopting and reifying the "essentially at home" standard for general jurisdiction).

The obvious comparator for Ginsburg is Thurgood Marshall. Both established significant equal protection law as litigators and their careers on the Court were similar (RBG served three years longer). But the prevailing view (rightly or wrongly) is that Marshall affected the law more as a litigator than as a member of the Court (putting aside the significance of being the first African American Justice) and authored relatively few canonical opinions that are remembered as "Marshall opinions." I expect that Ginsburg will be remembered more for her work as a Justice, if for no other reason than because a segment of pop culture adopted her in that role in a different cultural environment than Marshall worked. But time will tell.

Posted by Howard Wasserman on September 21, 2020 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

YLJ Submissions Deadline


Posted by Howard Wasserman on September 21, 2020 at 08:31 AM | Permalink | Comments (0)

Reynolds on cameras in the classroom

An article of note by Glenn Reynolds (Tennessee) on using (inexpensive) real cameras to create a better-looking remote classroom.

Posted by Howard Wasserman on September 21, 2020 at 08:30 AM in Article Spotlight | Permalink | Comments (0)

Sunday, September 20, 2020

New Courts (Updated)

It is said that the change of one Justice changes "the Court." Not at the the obvious macro level of partisan/ideological divides and case outcomes, but in small and incalculable ways involving positions and interactions among Justices. The Court in October 2017 was going to be different that the Court in January 2016, whether Merrick Garland or Neil Gorsuch was junior-most Justice, even if case outcomes look more similar with Gorsuch than they would have with Garland.

On that metric, we are about to get our fifth and sixth different Courts since October Term 2015: A nine-Justice Court with Scalia until February 2016; an eight-Justice Court until April 2017; a nine-Justice Court with Gorsuch until October 2018; a nine-Justice Court with Kavanaugh until two days ago; an eight-Justice Court until someone (I continue to believe Amy Coney Barrett) is confirmed (I presume this will not happen by October 5, but I put nothing past Mitch McConnell); and a nine-Justice Court with Barrett (or whomever). And I am will make a weak prediction that Breyer retires by summer 2022 if Biden wins and the Democrats retake the Senate--making it seven Courts over about eight terms.

Which makes the period from 1994, when Breyer joined the Court, to 2005, when Roberts became Chief, unique. There was one Court for 11 years and one month, the second-longest-serving Court. The longest is an 11 1/2-year gap between the appointment of Justice Duvall in 1812 and the appointment of Justice Story in 1823--another universe in terms of the Court's prestige and power and the attention paid to it. Otherwise, there have been mulitple five-ish-year Courts throughout history, including one between Kagan's appointment and Scalia's death. I wonder if we will see this kind of stability any time soon.

I also wonder whether the recentness of this anomaly influences some of the new opposition to life tenure. Despite more individual Justices serving ever-longer terms and increasing life expectancies, there still is (sometimes rapid) turnover within the Court. Barrett is 48 and Barbara Lagoa, the other leading candidate, is 52. But even adding either to Kavanaugh and Gorsuch (both 55 or younger) and a hyp0thetical young Biden appointee, it leaves two Justices in their 70s and two over 65. It seems unlikely that we will see another decade-long Court.

The arguments against life tenure shift from longer-lasting Courts to the randomness of timing and who makes appointments. It seems insane that Donald Trump will make more appointments in one term as Obama, Bush II, and Clinton each made in two terms.* The real benefit of the Carrington Plan for 18-year terms is regulating the appointments process--every President gets the same number of appointments in the same time served and on the same regular schedule.* On the other hand, the notion of a "new" Court every two years supports critics of the plan, who worry about the instability the system would create. Of course, we have been getting a version of that system, accidentally and with the attendant political collisions and overreactions, for six years.

[*] Even FDR is prey to this temporal randomness. We accept that it makes sense that FDR appointed 8 Justices, since he was President for 12 years. But note the timing. He made zero appointments in his first term (during a 5+-year Court between the appointments of Cardozo and Black), five appointments in his second, and three in his third. Had FDR been a one-termer, he would have had the same effect on the Court as Jimmy Carter. Had he not violated the two-term norm (or had the 22d Amendment been in place in 1940), he still would have appointed the majority of the Court.

Posted by Howard Wasserman on September 20, 2020 at 01:12 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Structural principles and SCOTUS appointments (Updated Again)

Two preliminary points.

First, for Ruth Bader Ginsburg, may the memory of the righteous  be a blessing (zekher tzadik livrakha). It is said that a tzadik (a righteous person, particularly one who is humble in life and whose righteousness becomes fully known only after her death) dies on Rosh Hashanah. I write this on the yahrzeit (anniversary of death) of my father-in-law, a truly righteous person.

Second, I expect Trump to nominate and the Senate to confirm Amy Coney Barrett (Seventh Circuit),* although it is not clear whether the confirmation will be prior to or following the election. Ilya Somin's proposal (both sides stand down--no confirmation until after January 20 in exchange for a Democratic promise not to expand the Court) is a brilliant compromise that he recognizes is unlikely to happen. And McConnell, Lindsey Graham, et al., do not care about being accused of hypocrisy in any shift in their views of confirming Justices during an election year.

[*] The alternative name appears to be Barbara Lagoa, a former Justice on the Supreme Court of Florida and recent appointee to the 11th Circuit; Lagoa is Cuban-American and the appointment might be an attempt to shore-up support among the Cuban-American community in Florida. Lagoa was in the majority holding that Florida did not violate the 14th or 24th Amendments in requiring ex-felons to repay unknown fees before their voting rights could be restored.

After the jump, I want to think about the "shift" in these positions.

In an early publication, I argue that the Constitution's structural questions can be understood and answered by resort to one, some, or all of three competing principles--democracy, separation of powers, and partisanship. The principles may conflict. Or they may undermine original structures--the system was supposed to be based on separation of powers because political parties were unknown and conceptions of democracy limited. Or emphasis on one principle may lead to a different conclusion than emphasis on another principle. Any conclusion is presumptively constitutionally valid; the question is choosing among several valid options, depending on choice of principle.

In 2016, McConnell could have framed the refusal to hold hearings and a vote on Merrick Garland's nomination in separation-of-powers terms. The Senate is required to provide "advice and consent" and the Senate establishes its rules of proceeding. It thus can exercise that advice-and-consent power through whatever rules of proceeding the majority of the body sees fit, including by withholding advice or consent through inaction. This would have gone against historical norms and practices. But it would have fit the model of an independent Senate doing what it believes best. It also would have preserved separation of powers as to the executive--not suggesting that the President's constitutional power runs out earlier than the four years enumerated in the Constitution.

Instead, McConnell framed his "rule" of no election-year confirmations in terms of democracy--the People should have a say in who makes this appointment. And several Senators, notably Graham in fall 2018, have affirmed the "rule" in those terms and on that principle. This framing is problematic on its own terms. The People had a say when they re-elected President Obama in 2012 with the understanding that he would be President, and exercise executive power, for four years. On this understanding, democracy was forward-looking to what the coming popular majority might do, not backward-looking to what the prior, still-controlling popular majority had done. In any event, that rule, based on that democratic principle, is absolute: No confirmation during the final year of a presidency.

Here is McConnell's statement on Ginsburg's death and the new vacancy:

In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.

McConnell has shifted the controlling principle from democracy to partisanship (or partisanship reframing democracy). The right of the coming majority to pick the new President and influence the new justice yields to unified party control of the Senate and White House. A Senate controlled by one party does not confirm nominees of a President of another party in an election year. But the same restriction does not apply when the Senate and President are of the same party--party control is more important than forward-looking democracy. One can agree or disagree with McConnell's conclusion or plan, but it does reflect proper application of that principle. Alternatively, the partisan outcome of backward-looking democracy reaffirming unified party control is more important than unknown forward-looking democracy. Either way, this represents the explicit triumph of the Pildes/Levinson thesis that we have a system of separation of parties rather than powers.

McConnell also shifts the segment of the People that matters. The segment of the public that elected 1/3 of the Senate is more democratically important than the segment who re-elected Obama in 2012 or who will decide the presidency in November. This produces a strange vision of democracy, in which the popular will of a small sub-part prevails over the will of the whole.*

[*] Compare statutory presidential succession, the issue on which I described these principles. Congress put the Speaker and President Pro Tem at the top in the name of democracy. The line should pass to officers elected by some popular segment and placed in their positions by fellow officers elected by different popular segments, thus representing some national majority. But critics of legislative succession justify their conclusion in democratic terms by resort to a different majority--cabinet officials enjoy "apostolic democratic legitimacy (Akhil Amar and Vik Amar coined the term) by virtue of their appointment by, and in service of, a nationally elected officer.

McConnell's conclusion--OK not to vote on Garland, OK to confirm Barrett)--represents a plausible argument from these competing principles. But that is neither the rule nor the principle on which he relied four years ago. Any charge of hypocrisy (which, again, McConnell does not care about) derives not from the change in conclusion but from the change in controlling principle to justify divergent conclusions.

Update: For the first time, President Trump said something I agree with: McConnell did not want to consider Garland, but the current situation is difference because Republicans now have the Senate and can do what they want. Yes. Whether framed as separation of powers or partisanship, there is a distinction and Republicans can run with that distinction. But, again, the problem, and the hypocrisy charge, comes from framing the Garland move as a matter of democracy, no doubt out of a felt need for a "neutral principle." Trump feels no such need.

Posted by Howard Wasserman on September 20, 2020 at 12:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Saturday, September 19, 2020

Fourteenth Amendment Esoterica

I'm come across a curious law that I want to write about. In June 1868, Congress enacted a law to admit several of the ex-Confederate states to the Union upon certain conditions. One, of course, was that they ratify the Fourteenth Amendment. The Act then said this:

That the constitutions of neither of said States shall ever be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote in said State, who are entitled to vote by the constitution thereof herein recognized, changed as, &c. except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State.

The states covered by this Act were North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida.

Why do I find this interesting? A few reasons. First, this is at odds with the Supreme Court's statement in Shelby County that the states are on equal footing with respect to voting rights. Some states in the South are treated differently in that they are still subject (at least formally) to the Act's requirement. Now you could say something like the following in response: Congress lacks the power to tell a state what to do in its organic law once the state is readmitted. Thus, the post-admission condition stated here is unconstitutional. Maybe, but that gets you into deep waters that I won't go into here.

Second, the Act gives a contemporaneous interpretation of Section Two of the Fourteenth Amendment. The Act refers to crimes as are now felonies. Suppose we said that states could only disenfranchise people convicted of felonies recognized in 1868. That (as others have observed) would be less sweeping than the way a state such as Florida imposes felon disenfranchisement now.

Anyway, this may just be a sideshow in my Section Three article, but I need to give this further thought.

Posted by Gerard Magliocca on September 19, 2020 at 09:04 PM | Permalink | Comments (2)

Rosh Hashanah more joyous than Yom Kipper

So less expectation that Jewish players will sit out. This begins with Hank Greenberg in 1934, who played (on advice of rabbis) on Rosh Hashanah but sat on Yom Kippur.

On Friday night (Erev Rosh Hashanah), Alex Bregman (Astros)  went 0-for-4 in a loss; Kevin Pillar (Rockies) went 2-for-4 with 2 runs scored in a loss;, and Ryan Braun (Brewers) went 2-for-2 in a win. Pitcher Max Fried (Braves) gave up a run on three hits in 5 innings in a blowout win, running his record to 7-0. And relief pitcher Ryan Sherriff (Rays) pitched a scoreless ninth to earn a save. That is a pretty good day. (H/T: Jewish Baseball News).

The Astros, Rockies, and Brewers play evening games on Saturday, beginning 7 p.m. or later. While Rosh Hashanah is two days outside Israel, fewer Jews observe the second day and so it is rarely part of the conversation about playing "on" the holy days.

This will be it for baseball on the holy days 5781. Yom Kippur begins at sundown next Sunday. That is the final day of the regular season; all MLB games are scheduled for afternoon and should be complete. Monday (Yom Kippur) is an off-day before the beginning of the post-season Tuesday. And MLB will not hold one-game tie-breaker playoffs during that off-day; any ties for division winner or wild-card spots will be determined by a series of tie-breakers.

Posted by Howard Wasserman on September 19, 2020 at 08:31 PM | Permalink | Comments (0)

Friday, September 18, 2020

"Law Like Love": Jeffrie Murphy, RIP

I was very sorry to learn of the passing from this life of Prof. Jeffrie Murphy (RIP).  Here's the Arizona State University announcement.  For me, Murphy's punishment-theory and criminal-law work was influential -- formative, really -- and he was also a kind and generous advisor and mentor.  My Criminal Law students (thanks to Joshua Dressler and Stephen Garvey) have, for years, encountered a bit of his work with Jean Hampton, and I've used his little essay, "Law Like Love", as well as "Christianity and Criminal Punishment", to conclude my class in recent years.  If you're a Crim teacher, and you want a bracing read, check out his "'In the Penal Colony' and Why I Am Reluctant to Teach Criminal Law." May his memory be a blessing.

UPDATE:  I really should have quoted this, from the ASU announcement:

For those who knew Murphy, he was always larger than life: a big man with a booming voice and a strength of conviction in his work and scholarship that was never outmatched. His early experiences as head of the Philosophy Department led to a deep and abiding hatred of administration — which gave him ample time to explore his greatest passions: the teaching of gifted students and exploring the contours of moral philosophy and its connection to the law.

Posted by Rick Garnett on September 18, 2020 at 02:15 PM | Permalink | Comments (1)

Thursday, September 17, 2020

Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform, September 25-26, 2020

The following post is by Michael Serota, who is a Visiting Assistant Professor at the ASU Sandra Day O’Connor College of Law and a Deputy Associate Director of the Academy for Justice.     


Why does the criminal law care about mental states, and do they have a role to play in criminal justice reform?  Come join the Academy for Justice and the Arizona State Law Journal next Friday and Saturday for an extended conversation about mens rea policy and reform. 

The discussions will revolve around a collection of papers that will be published in a special symposium issue of the Arizona State Law Journal.  Topics that will be covered include: strict liability, felony murder, complicity, intoxication, mental illness, willful blindness, ignorance of wrongdoing, malice, hate crimes, statutory interpretation, and the politics of mens rea reform.  For balance and diversity of perspective, every conference panel will include a mix of criminal law scholars and practitioners.  To maximize the opportunities for group discussion, conference panelists have pre-recorded video presentations.  

All aspects of this event are open to the public.  The event will be broadcast via Zoom webinar on September 25-26, 2020 from 9am to 3pm PST.  To attend,  please register here.  The conference papers and presentations are available on the conference website, which has additional details—including a list of the more than 30 scholars and practitioners participating in the event.

Additionally, the Academy for Justice is sponsoring two different student competitions in conjunction with the event.  More details about those contests (please share with your students!) can be found here.

Posted by Ethan Leib on September 17, 2020 at 12:32 PM | Permalink | Comments (0)

Monday, September 14, 2020

Dorf on ending the anthem at sporting events

Michael Dorf considers the argument, floated by former NBA coach Stan Van Gundy, for eliminating the national anthem from sporting events. We do not do it at any other public or entertainment gatherings (movies, plays, concerts); it is not the type of event requiring public ritual (compare, e.g., a government proceeding); and it is creating more problems than it solves. It also is an historical accident--a band played it spontaneously during the Seventh Inning Stretch at a game in the 1918 World Series (in the closing month of World War I)--that caught on.

I confess that I enjoy the anthem as part of the game. But I see Dorf's and Van Gundy's point.

Posted by Howard Wasserman on September 14, 2020 at 09:58 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (18)

Two Pieces on Algorithms and Institutions

This is a good time to be writing about institutions, which I have done for some time--and a depressing time for those who think institutions are valuable and are watching them suffer in real time, as much from the inside as the outside. Via the invaluable Arts & Letters Daily, here are two recent pieces on the effects of metrics and algorithms on two "First Amendment institutions." 

The first, from the LA Review of Books, is by Mario Biagioli, a professor of law and communication at UCLA. In it, Biagioli discusses new and old forms of academic misconduct, largely but not exclusively around publication and citation practices, and their relationship to various forms of ranking or influence metrics. (The focus here is on other disciplines, especially the sciences and social sciences, not on law. I would be interested in seeing a similar piece from him about legal academic practices, although I think the difficulty here would be getting people to see some practices as academic misconduct, or at least institution- or discipline-damaging conduct, rather than as baseline or even commendable practices.)

The second is an essay in The Walrus by Russell Smith, a former columnist for The Globe and Mail. It discusses the effects on newspapers of algorithms tracking reader interest in various stories, including the looming presence in newsrooms of large screens monitoring "engagement, in real time, with the stories currently on the paper’s website"--where "engagement" means something other than any meaningful definition of the word--and their effect on editorial judgment and resource allocation in the major press. (Any online reader of the New York Times, whose decline as a quality newspaper is steady, remarkable, and far-reaching in its effects on the business and content decisions of the institution, can see the traces of these practices daily. They are evident not only in the devotion of prime space to things like recaps of late-night monologues, but in the practice of using and testing different and increasingly clickbait-y headlines for same op-ed pieces and other stories. This is the kind of practice that major media organizations used to worry about rather than engage in with seemingly untroubled enthusiasm.)

I recommend both pieces, dispiriting though they may be.  

Posted by Paul Horwitz on September 14, 2020 at 09:36 AM in Paul Horwitz | Permalink | Comments (0)

Call for Papers: Akron Law Review

Akron Law Review seeks articles for a symposium on Criminal Justice Reform. Relevant Relevant topics
include exploring new and existing ways of holding police accountable; collateral consequences of conviction; and recent efforts in and new ideas regarding bail reform.

Submissions should be sent to [email protected] by October 15, 2020.

Posted by Howard Wasserman on September 14, 2020 at 09:31 AM in Law Review Review | Permalink | Comments (0)

Saturday, September 12, 2020

Testing the Koufax Curse

In anticipation of the High Holy Days, the Forward has published a summary version of my longer study of Jewish players' and teams' performance on Yom Kippur.

Posted by Howard Wasserman on September 12, 2020 at 10:58 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, September 11, 2020

Cancel culture as a circle of baseline hell

Thinking out loud.

Skip Bayless' comments on Dallas Cowboys quarterback Dak Prescott ("being quarterback of the Cowboys is too important a position for someone who struggles with mental-health issues, or at least not for someone who wants to talk about those issues") are so stupid that they are unworthy of a response. They are noise--an "inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." They certainly are too stupid to have been spoken in a media outlet that purports to be a forum for serious discussion, even of sports. And they suggest that Bayless is an unserious person.

Will Bayless be "canceled"--fired, suspended, or whatever? Fox Sports issued a statement disagreeing with Bayless' comments and saying they had "addressed" the issues with Bayless. I expect that to end it--no cancellation. And I do not expect Bayless to apologize or otherwise address it.

The separate question is whether Bayless should be cancelled, to which critics of "cancel culture" will say no. But I wonder if those who oppose cancelling someone for bad speech are trapped in a form of Rick Hills' baseline hell-the inability to establish a neutral baseline from which to analyze a problem. I presume that even the strongest critic of cancel culture would agree with the following:

    1) A private media organization could decide that it should not hire Bayless because it does not like his views on mental illness.

    2) A private media organization is not obligated to pay money and provide a platform to any person, so it can decide who it does or does not wish to give a platform based on the content of his speech and whether the organization shares, agrees with, and wishes to promote those views.

    3) The decision not to hire Bayless because of his absurd views would be a valid exercise of the organization's expressive rights--a decision about with what people and views it wishes to associate.

If the above is true, then firing Bayless should not raise different issues or problems. Either is an exercise of the media organization's judgment as to the views it wants to promote and with which it wants to associate. It would require a distinction between beginning and continuing--that ending a relationship because of disagreement with speech is different than declining to begin a relationship because of disagreement with speech. But that is a baseline problem--it rests on a belief that the starting point (on the platform or not on the platform) makes a substantive difference.

Similarly, sponsors could make the three decisions described above as to whether to sponsor Bayless' program and decline to buy time, from which it follows they could pull their money after-the-fact. To say otherwise requires the same distinction-without-a-difference between ending a relationship because of speech and declining to start that relationship because of speech.

I also wonder if we can distinguish cancelling Bayless for his speech from cancelling the Chicks or Mel Gibson or a professor for his speech. With the latter, we are cancelling from a primary role (making movies, making music, teaching classes) because of their out-of-role speech. But cancelling Bayless would reject him from his primary role because of his behavior in that primary role. Does that make a difference?

Posted by Howard Wasserman on September 11, 2020 at 10:46 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (14)

Thursday, September 10, 2020

Bostock, Cline, and the SCOTUS's Repression of Textualism's Unresolvable Contradictions

This week in “Legislation and the Regulatory State,” I taught General Dynamics Land Systems, Inc. v. Cline and Bostock v. Clayton County. Reading these two opinions together reveals a truly weird omission in Bostock: Neither the majority nor dissenting opinions in Bostock cite or discuss Cline. This is such an extraordinary omission that it cannot be an accident. It is, instead, most likely the jurisprudential version of Freudian repression: Cline is the earlier traumatic precedent that exposes painful contradictions at the heart of textualism, so it is conveniently ignored for the sake of preserving the illusion, believed by some to be necessary for the “rule of law,” that “plain” text somehow can be construed without attributing to it some statutory purpose.

Consider, first, how Justice Souter’s majority opinion in Cline seems to provide near-perfect support for Justice Kavanaugh's argument in his Bostock dissent that the narrow ordinary understanding of "discriminate...because of sex" trumps the phrase's broad literal meaning. Cline held that "discriminat[ion]...because of...age" in ADEA did not include General Dynamics' discriminating against Dennis Cline in favor of older workers, because the ADEA did not cover discrimination that favored older over younger workers. Cline reached this conclusion despite the fact that, "[i]n the abstract, the phrase is open to an argument for a broader construction, since reference to 'age' carries no express modifier and the word could be read to look two ways." The literal meaning of "age," however, did not govern, because that broad reading "does not...square with the natural reading of the whole provision prohibiting discrimination." According to the Cline majority,"Congress used the phrase 'discriminat[ion] … because of [an] individual’s age' the same way that ordinary people in common usage might speak of age discrimination any day of the week," because the "commonplace conception of American society in recent decades is its character as a 'youth culture,' and in a world where younger is better, talk about discrimination because of age is naturally understood to refer to discrimination against the older." Because "we are not asking an abstract question about the meaning of 'age'" but instead "seeking the meaning of the whole phrase 'discriminate … because of such individual’s age,'" Cline looked to the "social history" of that phrase, which "emphatically reveals an understanding of age discrimination as aimed against the old."

Cline’s reasoning is obviously helpful to Justice Kavanaugh’s claim that "discriminat[ion] ... because of...sex" does not include discrimination based on sexual orientation, because ordinary people do not understand the latter to be an instance of the former. So why would Justice Kavanaugh ignore Cline? The most obvious hypothesis: Justice Thomas‘ dissent in Cline suggested to Justice Kavanaugh that Cline represents a sort of "Textualism Lite" that good textualists must not endorse. After the jump, an argument that Cline does indeed suggest the incoherence of drawing a sharp line between context-based "social usage" of a whole statutory phrase and a statute's overall purpose. That incoherence suggests that Bostock's majority opinion would have been more persuasive if it had not repressed all memory of Cline but instead pondered more deeply the purpose of Title VII separate from the word games that feature so prominently in Justice Gorsuch’s majority opinion.

1. Why Gorsuch's textual literalism in Bostock seems inconsistent with Cline

Start, first, with the tension between Cline's easy-going contextualism and Bostock's literalism. Bostock rests on the idea that every distinction based on sexual orientation entails ipso facto a distinction based on sex, because "sexual orientation" is determining whether or not the employee's sex is the same as or different from the object of the employee's desire. As Bostock puts it, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” But for Gerald Bostock's being male, his romantic orientation towards other men would not indicate a gay orientation.

This "literalist approach" (to use Justice Kavanaugh's phrase) seems starkly at odds with Cline, which rejected the same sort of literalism with respect to "discriminat[ion] because of ...age" in the ADEA. Every instance of an employer's favoring older over younger workers automatically constitutes an age-based distinction if one considers “age” as an abstract category. Cline, however, held that favoritism for older workers was not the kind of age-based distinction that ADEA meant to proscribe, because, when confronted with references to "discrimination because of age," ordinary English speakers infer an implicit "old" before "age." This reading of "discrimination because of age" to mean “discrimination because of old age" is, according to Cline, just as much a "natural reading" as is inferring that "gray with age" or "bent with age" means being afflicted with "old age," not "age" in general. The proximate words — “discriminate,” “gray,” “bent,” etc. — all naturally lead the listener's or reader's mind to the state of being elderly.

Cline, in other words, adopts what James Phillips has called the "principle of compositionality”: The meaning of phrases are more than the sums of their parts, and that meaning turns on how ordinary speakers would understand the entire phrase.

Put to one side, for just a moment, whether or not Justice Souter correctly applied this principle in Cline. (FWIW my class voted 17-14 this year in favor of Justice Thomas' reading). Even if misapplied in Cline, that principle seems to support Justice Kavanaugh’s dissent, not Justice Gorsuch’s majority opinion in Bostock. As Justice Kavanaugh noted, "[i]n common parlance, Bostock and Zarda were fired because they were gay, not because they were men," even though, but for their being men, they would not have been fired for being gay. (Again, my quick poll of my students suggests that Kavanaugh is correct: The overwhelming majority would not describe what was inflicted on Gerald Bostock as discrimination against him because he is a man). The Bostock majority tries to side-step Kavanaugh's argument from common usage by noting that both sex and sexual orientation could equally be but-for causes of an employment decision. True enough -- but if no ordinary speaker of English would describe Gerald Bostock's being fired for being gay as discrimination because of Bostock's being male, then Cline's logic suggests that that discrimination does not fall within Title VII, even if male-ness is a but-for cause of Bostock’s being fired. Put another way, Bostock’s firing might indeed require employers to draw distinctions based on sex, but that firing might also not be the sort of thing that ordinary speakers of English would naturally describe with the whole phrase, "discrimination because of sex."

2. How Cline rejects lexical priority of purposeless semantics over statutory purpose

So why did Kavanaugh not cite and discuss Cline? One reason might be that Cline undercuts the entire textualist project of refusing to examine statutory purposes if the semantic meaning of a phrase, considered without respect to such purposes, is "plain." The implicit premise of this project is that the semantic meaning of a phrase (what the phrase means) can be distinguished from, and should be lexically prior to, the pragmatic function played by that phrase (the purposes that the phrase was intended to accomplish). The extreme version of this view would exclude any consideration of a statute's enacted findings, preamble, and title -- all indications of what Congress intended to accomplish by enacting the statute -- if the words of the command within the statute were deemed to be "plain" without any consideration of such evidence of statutory purpose. For an example of this extreme version of the textualist's "plain statement rule," consider Justice Kagan's dissent in Yates v. United States, 574 U.S. 528, 559 (2015), in which she complains that the majority "relied on a title to override the law’s clear terms" instead of following “'the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text.'"

Textualists' primary justification for this "wise rule" has been that statutes have multiple and even conflicting purposes the vector of which is best captured by the details of grammar and diction in a specific statutory command. Judges who modify the result yielded by such grammatical technicalities to accommodate the judge's view of statutory purpose will likely slight those other purposes that contract or expand the statute for the sake of what the judge takes to be the statute's "main" goal. Better, then, for judges (somehow) to blind themselves to the purposes that statute seeks to achieve whenever grammar and diction, considered in isolation from such purpose, yields some definitive result. This approach to read statutes might be "mindless" (to use Steve Smith's phrase), but selective mindlessness might improve decision-making by preventing judges from distorting the finely calibrated balance of purposes written into the details of text. (My colleague Adam Samaha has an insightful analysis of whether and how lexically privileging text over purpose could be justified. Short summary: It ain't easy).

Whatever the merits of the textualists' giving lexical priority to semantics over statutory purpose,Cline explodes the practice by making popular perception of a phrase's purpose part of phrase's meaning. According to Cline, “talk about discrimination because of age is naturally understood to refer to discrimination against the older," because the "commonplace conception of American society...as a 'youth culture.'" "[I]n a world where younger is better," the Cline majority concluded, "talk about discrimination because of age is naturally understood to refer to discrimination against the older." The obvious implied premise of this logic is that ordinary people read "discrimination because of age" to mean "discrimination because of old age," because old-age discrimination is the mischief that ordinary people want to fix. Small wonder, then, that Thomas dissented on the ground that the majority had elevated ADEA's primary purpose" over the ADEA's "plain" text in violation of textual purism: Cline does indeed seem to reject that textualist dogma.

And, perhaps for the same reason, it should be small wonder that Justice Kavanaugh ignored Cline. Justice Kavanaugh's "ordinary language" dissent purported to stay within the conventional textualism championed by Justice Scalia ("As Justice Scalia explained, 'the good textualist is not a literalist,'" Kavanaugh intones). Cline pulled at the loosest thread in the textualist system--the idea that an interpretation produced by parsing commas and last antecedents the textual clarity of which SCOTUS justices disagree should preclude consideration of statutory purpose because such grammatical hair-splitting is deemed to be the statute's lexically prior "plain" meaning. By smuggling statutory purpose into the evidence of linguistic usage that takes priority over "extra-textual" sources in the textualist hierarchy, Cline makes nonsense out of this system.

3. Should statutory purpose trumps literal text in the ordinary usage of statutory phrases?

Repression, however, is not adaptive, as any good psychiatrist will tell you. Just because you ignore Cline's challenge to conventional textualism does not mean that the challenge will go away. Once one concedes that the common usage of phrases, not the literal meaning of words, should determine statutory meaning, it is really difficult to relegate statutory purpose to a secondary disambiguating role. It also makes zero sense to refuse to consult a statute's title, findings, or enacted purposes unless the semantics of a particular sentence are deemed to be ambiguous.

Statutory phrases like "chemical weapon" (construed in Bond v. United States) or "any air pollutant" (phrase at issue in Utility Air Regulatory Group v. EPA) are literally capacious terms. They tend to reach far beyond what anyone would dream is an intelligible goal of the statutes in which they occur. Construed according to ordinary understanding, however, their scope shrinks dramatically in light of the purpose of the statutory scheme. Since FDA v. Brown & Williamson, the SCOTUS has routinely trimmed back on literal language to make room for such common sense. Yes, literally speaking, every office building that emits more than 100 tons of CO₂ is a "major stationary source" that emits "any air pollutant" under Title V of the Clean Air Act. SCOTUS, however, tempered literalism with common sense, finding that "it would be patently unreasonable-—not to say outrageous—-for EPA to insist on seizing expansive power that it admits the statute is not designed to grant."

One might try to fit decisions like Bond and Utility Air Regulatory Group into the textualists' procrustean bed by arguing that the contested statutory terms were "ambiguous." Those terms, however, were literally plain. They only became ambiguous once one contemplated the practical consequences of taking them literally. Textualists proclaim that such purpose-based trimming back on statutory language is impermissible, but SCOTUS has plainly rejected this sort of "Fiat ad litteram, et pereat mundus."

In so doing, SCOTUS has rejected not only bad policy but also bad linguistics. As I have noted in an earlier post, Will Baude and Ryan Doerfler in one article, and Richard Re in another, have both argued that it seems illogical to exclude consideration of statutory purpose just because the semantics of text, divorced from purpose, seem "plain." If statutory purpose is relevant to resolving an ambiguity, then it is equally relevant for determining whether or not an ambiguity exists in the first place. (Ryan Doerfler has further explained that this separation of semantics from pragmatics is simply bad linguistic philosophy).

Cline backs up Baude, Doerfler, and Re insofar as Cline holds that statutory purpose is part of how ordinary people read phrases like "discrimination because of age." More generally, if literal meaning leads to an outcome plainly at odds with the point of the statute, then that's reason to question whether literal usage really is common usage -- and to bring in statutory purpose to come up with a more sensible reading of the literal words.

4. Can Bostock’s result be justified by Title VII’s purposes?

Suppose that one were to re-write Bostock to take into account the social understanding of what Title VII’s prohibition on “discrimination because of sex” was imagined by most people to accomplish and not merely say. Could one justify the outcome despite the widespread prejudice against LGBTQ people in 1964? Or does Bostock necessarily rest on what Steven Smith calls (rightly in my view) "mindless" literalism?

The easy purpose-based answer is that, since 1964, the doctrine has expanded Title VII's coverage in such a way as to make it ludicrous to exclude anti-gay discrimination from the scope of Title VII's prohibition. It is now well-settled that an employer cannot discriminate against male employees because they are "effeminate" or female employees because they are too "masculine." As the SCOTUS declared in Price Waterhouse v. Hopkins, "[a]s for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for,"'[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'"

These post-enactment developments have made anti-gay bias in the workplace absurd. There is a deep senselessness to prohibiting an employer from firing a woman like Ann Hopkins because she is too "masculine" but allowing that employer to fire her because she is a lesbian. Likewise, it seems beyond silly to say that a boss may not fire a woman because she will not have sex with him but may fire her because she has sex with another woman. If the former is "discrimination because of sex," then surely the latter is as well.

Randy Barnett and Josh Blackman have criticized this reliance on post-enactment precedent as inconsistent with purists' brand of textualism. Maybe so, but then so much the worst for full-throttle textualism: If textualism requires courts to draw distinction between employers who fire workers who violate sex norms by (say) speaking too loudly and workers who violate sex norms by dating people of the wrong sex, then, to quote Mr. Bumble, "the law is a ass -- a idiot." Both sorts of criteria are based on sex stereotypes that are sex-neutral in one sense but obviously sexist in another sense.

Is it acceptable to rely on post-enactment precedents to figure out the meaning of a statutory phrase? Why not, if the point (to quote Scalia) is "to make sense rather, than nonsense, out of the corpus juris." Those post-enactment precedents define the ordinary usage of Title VII's terms today: They are just as legitimate a source of meaning as all of the post-enactment statutes like the Violence Against Women Act Title III of which Justice Kavanaugh cited in his Bostock dissent to show that "sex" did not include "sexual orientation." They also reflect popular usage of the term "discriminate because of sex."

There is, in short, an easy way to reach the result in Bostock without the textual literalism that the Court has repeatedly rejected from Cline to Bond. Such an argument, however, requires one to throw the towel in on "plain meaning" rhetoric with which the SCOTUS has been garnishing its opinions since the early 1990s. I guess such window-dressing is fine if it provides psychological comfort to justices fearful of abandoning the "rule of law." But we should recognize such rhetoric as jurisprudential repression to be diagnosed, not analyzed: It did not drive outcomes in Cline, and it won't determine outcomes in any other case where the "literal" text departs from common usage that, in turns depends on practical purpose.

Posted by Rick Hills on September 10, 2020 at 08:15 PM | Permalink | Comments (12)

JOTWELL: Mangat on Weinstein-Tull on local courts

The new Courts Law essay comes from guest Leonard Mangat, reviewing Justin Weinstein-Tull, The Structure of Local Courts (Va. L. Rev., forthcoming), analyzing the hidden-but-consequential practices of local courts.

Posted by Howard Wasserman on September 10, 2020 at 10:26 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Look! A Gift Horse

One unusual fact about where I live (West Lafayette, Indiana) is that C-Span's Archive is about five minutes from my house. (Brian Lamb, the founder of C-Span, is from West Lafayette and went to Purdue.). I drive by the archive a few times a week to pick up my daughter from school.

Yesterday as I was doing so I thought to myself, "I really should try to design a research project that would actually use the archive. I mean, it's right here." But what should I do? A project on Congress is the most obvious thought, but in what sense? Maybe how televising the House (and then later the Senate) changed how Congress operated. Or is there is some particular event that I should look at from the past forty years where watching wall-to-wall coverage would help. I'd be curious to hear from anyone who is doing research that involves looking at old C-Span footage to hear what you are doing.

Posted by Gerard Magliocca on September 10, 2020 at 08:15 AM | Permalink | Comments (6)

Tuesday, September 08, 2020

Amnesty Under the Fourteenth Amendment

I've been reading through the debates in Congress during the early 1870s about whether to remove the disability to hold office imposed on many ex-Confederates by Section Three of the Fourteenth Amendment. These debates culminated in an amnesty that extended to most, though not all, of those covered by Section Three. The arguments made in favor of amnesty are quite revealing.

1. Some Republicans argued that amnesty would improve their party's prospects. In other words, there was simply a pragmatic judgment that more whites would vote for Republicans if amnesty were given. Or that more whites would support Reconstruction with amnesty.

2. Some contended that the disabilities were ineffective. They said that officials or representatives in the South would inevitably reflect the electorate's wishes. Thus, no useful purpose was was served by barring some people from only holding office---local policies or politics would remain the same. (This was not a Burkean view of what representatives do, to say the least).

3. Some said that amnesty should be linked to a broad civil rights bill. Amnesty was something that could be traded for more civil rights protection. 

4. Amnesty was already being granted to people, but in a haphazard way through private bills. There was no rhyme or reason to these legislative pardons and hence some more logical or systematic approach was required.

5. Here's the most fascinating argument. Some people said that Section Three of the Fourteenth Amendment was in tension with the spirit of Section One. Barring some citizens from holding office worked a denial of their privileges or immunities or denied them equal protection of the laws. Why are we treating some Americans unequally, they asked? 

The last point highlights the conflict between an anti-classification and an anti-subordination view of the Fourteenth Amendment. One answer to "Why are we treating some Americans unequally" is that they were leading white supremacists. That is a reason for applying the law unequally, but only if you concede that the law can be applied unequally. I'll have more to say about that in another post.   


Posted by Gerard Magliocca on September 8, 2020 at 12:32 PM | Permalink | Comments (4)

Guest Post:Could Pipeline and Non-Residential Fellowships Increase the Diversity of the Academy?

The following is by Matthew B. Lawrence (Emory) and Bijal Shah (Arizona State).

As one of us has noted, our shared field of “administrative law, both in academia and practice, suffers from a lack of representative diversity.”  But this problem is bigger than administrative law, and recent tenure-track hiring trends may be complicating things.  In this short post, we seek to spur conversation about how to improve the diversity of the legal academy, and encourage possibilities that offer a chance to gain some traction.

 Entry-level hiring data (collected here and compiled by Sarah Lawsky) indicates that a fellowship has become a “de facto requirement for entering the profession these days” (to quote Jessica Erickson’s series on fellowships and VAPs here).  83% of tenure-track hires in the report this past year had a fellowship.  Several of the guests on Orin Kerr’s terrific podcast on legal academia see this as a problem.  Chief among concerns about the fellowship-as-prerequisite model is the possibility that it excludes many great candidates, including people of color and women, as well as those who are unable to leave a good, stable job for a lower-paid position with an expiration date (and no guarantee of a permanent job) because of family obligations, income constraints, or other barriers. 

We want to call greater attention to a partial solution that some of us on the administrative law professors list serv have been discussing.  Why not invest in practice-to-professorship pipelines?  One option is pipelines that focus on nurturing candidates of color and women in particular areas of the legal academy with poor representation.  Another is a non-residential program that replicates the benefits of a traditional fellowship without requiring fellows to quit their day jobs.  The two could very well overlap.  Meera Deo suggests schools hoping to promote diversity think “outside the box,” and illustrates her point with the story of one associate dean who found and nurtured a fantastic professor through a bar association.  Legal academia could systematize this approach by building out institutionally-supported practice-to-professorship pipelines, including non-residential fellowships.    

  • The problem: There are many institutional challenges for people of color and women who seek to become professors. One obstacle that the fellowship model exacerbates is the fact that many potential candidates are not in a position to risk their and perhaps their family’s financial security by quitting their jobs for a full-time but temporary fellowship, especially when the academic job market is so unpredictable. 
  • Some solutions: To support potential academics for whom quitting their day jobs is untenable, scholarly fields (like administrative law or health law) should stand up their own pipelines focused on lifting the gate to academics who would increase the diversity of the profession. These could be established independently, by law schools or other institutions, and spearheaded by senior faculty in the field.  They could also be created and implemented by umbrella organizations like the American Bar Association or the Association of American Law Schools sections.  In addition, schools that operate their own, often terrific visiting assistant professorships (VAPs) or fellowships could opt to build a non-residential option into their programs so as to be inclusive of those unable to take on a full-time role.  Including a non-residential, part-time option in an existing, prestigious VAP or fellowship would bring instant cache, and would be particular beneficial if schools were careful not to foster hierarchies between full-time and part-time fellows.  If any schools or institutions are running part-time programs, or interested in doing so, we would love to hear about and publicize them.   
  • Specifics: Both pipeline programs and part-time fellowships could include significant mentoring, include on the particular problems faced by diverse candidates; the opportunity to attend faculty workshops (in person or online); exposure; the signal that goes along with selection by a competitive program; the opportunity to gain teaching experience (in evenings as an adjunct, or in a winter term, or online); and research support (including Scholastica and ExpressO coaching and support).
  • Diversity goals: We focus for purposes of this blog post on people of color and women more generally, building on Meera Deo’s study of women of color law professors. We believe that any institution or group building a pipeline would need to have an honest and difficult conversation about the target field or fields’ challenges and the program’s goals, which might well lead to a different emphasis. For example, it may be appropriate to adopt a different emphasis that explicitly includes academics who are LGBTQUIA, or an emphasis targeted at increasing the representation of academics who are Black in the academy. 
  • “If you build it, would they come?” There are a number of potential obstacles to these approaches. One is that pipeline programs for diverse candidates might run the risk of being under-resourced and marginalized, especially as compared to more generalized programs. Significant institutional and senior scholar level support would combat this tendency. As for a non-residential fellowship, a stumbling block might be that practitioners would not be able to afford to moonlight for multiple years in a fellowship program before going on the market. We do think any program would need to be cognizant of the fact that inequity also distorts who is able to moonlight, and tailor its design and selection to account for that.

With the goals of improving diversity and representation in mind, we would love to hear comments, concerns, stories, or ideas!    

Posted by Howard Wasserman on September 8, 2020 at 09:31 AM in Teaching Law | Permalink | Comments (9)

Monday, September 07, 2020

Data--Rough Data--on Bar Exams and Covid Cases Among Test-Takers

With due caution and various caveats but a serious underlying point, I commend to you this post by Derek Muller at the Excess of Democracy blog. Derek writes of his efforts to obtain information on "the spread of Covid-19 related to the administration of" the July 2020 bar exam in the jurisdictions that held in-person bar exams this summer.

Derek reports that he heard back from bar officials in seven jurisdictions and, "to their knowledge, no one contracted the coronavirus on account of the administration of the bar exam. . . . Some additionally confirmed that no proctors or staff contracted it, either." He adds that "some jurisdictions did emphasize they asked test-takers to disclose if they contracted the coronavirus within 14 days after the exam, and none did so."

Of course caveats apply. I can come up with many; you can come up with many; Derek did come up with many, and notes them near the top of his post. I am personally less sanguine than him when he writes, "My instinct is that if someone did contract the coronavirus during the administration of the bar exam, we’d probably know by now." I'm not sure I have an instinct about this one way or the other. But my imagined scenarios for under-reporting embrace, at a minimum, secrecy, incompetence, caution about making disclosures, uncertain standards of causation, and a lack of organized data collection. (Asking test-takers to disclose is better than nothing but doesn't seem a terribly powerful effort.)  

I do not, then, take the post as strong proof of anything. And its interest for me is quite disconnected from my policy views on the bar exam, now and generally. It is possible to think the in-person bar exam is dangerous for current public health reasons without opposing the bar exam generally, and equally possible to think that it's relatively safe, or can be made so, and that the bar exam should be replaced by something else for other reasons. Our normative and policy views and our sense of the evidence on a particular point needn't move in parallel, and there may be reasons to be suspicious when they do. 

I appreciate and commend Derek's post because it is an effort at collecting data to evaluate the many warnings and predictions that were made about the bar exam ex ante. Leaving aside the students and recent graduates, many academics made various predictions or voiced various concerns before the bar exam. These concerns included but weren't limited to the question whether in-person bar exams would spread the virus among test-takers. (Another ex ante argument was that there would be a shortage of lawyers and a surfeit of new clients with pandemic-related legal service needs, and that diploma privileges or other measures would assist in improving access to legal services for those individuals by those new lawyers.)

Voicing ex ante concerns about risks is perfectly understandable. One can hardly wait until after the event to express worries about future risks. And the outcome doesn't mean the concerns about risk were unwarranted. But it seems to me that, at least for those whose arguments were based on academic expertise, or invoked that expertise and appealed to past and ongoing empirical study of the issue, or otherwise invoked a kind of academic or data-driven or scientistic authority in making various arguments, there is an arguable duty to follow up and see what the data ultimately revealed about the accuracy of those warnings. In the long run that would include, I should think, studies of the discipline levels of this cohort of new lawyers depending on the approach taken in different states. And it would be useful in the shorter term to work to find out whether any state's approach actually resulted in any difference in the level of legal services provided to clients in need, and whether those services were provided by new lawyers or by already existing practitioners.

I'm not a particular fan of the bar exam, as I've written before, although I also think some claims for the value of the diploma privilege and some claims against the bar exam seem overstated, and that a period of mandatory supervision in lieu of examination ought to be of meaningful length and contain reasonably detailed requirements for both the supervised and the supervising lawyer. But none of these views have anything to do with whether it's a good idea for those who make predictions to follow up on those predictions with data after the fact. Of course it is. The data would be interesting in themselves, and a better measure of the authority of those making predictions than a general appeal to their credentials. (Even experts can fare poorly in making predictions.) 

I am sure that many of the academics who offered warnings before the fact are working to collect such data, that doing so properly takes time, and that they may well end up being getting and reporting more thorough and careful results than this. I acknowledge the possibility that sometimes no data may be better than some data. Better, sometimes, to know you don't know than to be overconfident that you do know, based on anecdata or weak data. It depends, I think, on whether writers are careful, in the absence of any data, about emphasizing the lack of data and how it affects the strength of their arguments--and on whether a person with some data is equally clear in emphasizing those limits. But I'll take this as an interesting step forward, and one that required genuine time and effort on Derek's part. 



Posted by Paul Horwitz on September 7, 2020 at 04:19 PM in Paul Horwitz | Permalink | Comments (0)

Joel Harrison on "Post-Liberal Religious Liberty"

Dr. Joel Harrison, of the University of Sydney, has a new book with Cambridge University Press, called Post-Liberal Religious Liberty: Forming Communities of Charity.  (Get yours here.)  I'm honored that he engages -- critically, but fairly and carefully -- my own church-state writing.  I asked him to supply Prawfs with an "extended blurb", to give readers a sense of the argument.  Here it is:

Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020)

Why should we care about religious liberty? What is religious liberty meant to protect? In Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020), Joel Harrison argues that religious liberty protects the quest for true religion. It facilitates the free creation of communities of solidarity, fraternity, and charity.

This argument challenges the increasingly popular liberal egalitarian account of religious liberty.  According to this account, found in the writing of scholars like Ronald Dworkin and Cécile Laborde, as well as case law, religious liberty is a subset of or signifier for a broader category of liberty, protecting personal autonomy or authenticity.  Harrison traces how this has two consequences: it treats as suspect any claim to consider religion, traditionally understood, as especially important; and it leads to the claim that religious groups and persons should increasingly be subject to state law, where the law reflects the claimed autonomy interests of individuals.

Harrison argues that challenging this account requires challenging how liberalism fundamentally understands religion, the ends of a political community, and the role of civil authority.  Religion on this understanding is cast as private, and increasingly associated with individual self-definition or even consumption. Political order is cast as secular, with civil authority defined by a logic claimed to be autonomous of religion: negotiating and furthering individual rights-claims. However, this differentiation between religion and the secular rests on a narrative of secularisation that, Harrison argues, is in reality a half-concealed theology.

In contrast, Post-Liberal Religious Liberty recovers a different theological and political vision. It draws especially from Augustine of Hippo, a subsequent tradition of associational thinking, and contemporary post-liberal thinkers like John Milbank.  Harrison argues that civil authority should be understood as an arm for pursuing human flourishing, right relationship, or the virtuous life, one complementary with and responsive to the Church. This requires a commitment to religion – the love of God and neighbour – as central to the ends of a political community.  Such claims are challenged, in whole or in part, even within Christian thought. Harrison contrasts this argument with the writing of three prominent modern Christian scholars: John Finnis, Richard Garnett, and Nicholas Wolterstorff. However, he argues that only such a commitment makes sense of the liberty of plural religious groups. It points to a good – our common good – that religious liberty serves.

(Available here, discount code: PLRL2020; or via Cambridge Core online)

Posted by Rick Garnett on September 7, 2020 at 09:37 AM in Religion, Rick Garnett | Permalink | Comments (2)

Sunday, September 06, 2020

Bad Legal Takes does Talmud

There are reports of protesters in D.C. trying to keep media from recording the demonstrations, including by assigning "minders" to keep reporters from getting too close and using open umbrellas to keep them from seeing.

In response to a reminder that they are in a public space, this legal scholar argues that "by using umbrellas to surround themselves they are creating a quasi-private space for themselves and if in that atmosphere say they do not wish to be filmed they could win a lawsuit."

(Almost certainly) unknowingly, this genius invoked the concept of the eiruv, which is the subject of the current tractate in Daf Yomi (the 7 1/2-year cycle of reading one page of Talmud a day). An eiruv establishes a broader private domain in which Jewish people can carry on Shabbat by connecting multiple private domains into a single private domain through a series of markers and partitions. The Talmud establishes specific and complex rules as to what is sufficient to establish an eiruv. I am quite sure a raised umbrella does not qualify.

Posted by Howard Wasserman on September 6, 2020 at 03:36 PM in Howard Wasserman, Religion | Permalink | Comments (6)

Friday, September 04, 2020

Getting qualified immunity wrong

This letter, from the lobbyist from the Oregon Coalition of Police and Sheriffs to an Oregon legislative committee considering a host of police-reform bills. Benefit of the doubt: The author (according to his LinkedIn page) is not an attorney and he might be talking about some state tort qualified immunity doctrine  rather than § 1983 federal qualified immunity. But presuming he is talking about § 1983, this is not good.

The letter says:

• "Qualified immunity is a legal principle that applies not only to law enforcement officers, but all public employees and officials" (emphasis in original): The only legally accurate statement in here.

• "It states that a public official cannot be sued . . . so long as those actions occur legally within the scope of the public employee's official duties. Qualified immunity is never a shield for illegal activity. It is not applicable if a public employee is acting outside the scope of their responsibilities." (emphasis in original). This is so wrong, which is why I was unsure whether he was talking about a state tort defense as opposed to § 1983. But as an explanation of § 1983, it conflates "under color of law" with immunity. A public official acts under color, and subject to liability, when performing his public job responsibilities; whether immunity applies is a second and distinct question. And the argument ignores the mounting cases in which courts find that an officer, under color of law, did something unlawful (e.g., making a prisoner sit in feces for four hours or stealing property in executing a warrant) but is not liable because no prior officer did the precise thing in the precise manner within that federal circuit.

• "The purpose of Qualified Immunity is to ensure that litigation does not completely place a public employee at the mercy of litigious counterparties." Sort of. It does not protect those employees just because. It protects them so that they will do a better job of policing when they can exercise judgment free from the fear of litigation. But when the result of a doctrine is that some (many?) officers acting as if they are unchecked, that doctrine may not be serving its intended purpose.

• I will not quote the whole thing, but the letter argues that qualified immunity also protects legislators. who are "uniquely and powerfully positioned to broadly deprive individuals of their rights." Again assuming he is talking about immunity from federal suit, he is wrong in the opposite direction. Legislators enjoy absolute immunity for their votes and legislative actions. But that distinction is based on the fact that individual legislators are less able to harm someone, there are political and electoral checks, and any violation is caused by the enforcement of legislation, remedied by a suit against the enforcing executive (who, of course, can claim qualified immunity). Executive immunity is (and should be) more limited than legislative immunity because executives interact with the public and can act individually to violate rights. Oh, and they can shoot people.

Again, if he is attempting to talk about state tort immunity, ignore the above--I know nothing about Colorado law so I do not know if what he says is correct. But if he is attempting to talk about federal claims under § 1983 or if he confused the two, this is a poor piece of advocacy.

Posted by Howard Wasserman on September 4, 2020 at 01:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, September 03, 2020

Universality, facial invalidity, and the First Amendment

I am a couple of days late to this Third Circuit decision declaring invalid as-applied, but not facially, the age-verification, labeling, and record-keeping requirements of the Child Online Protection Act. But the court reversed on scope-of-injunction, limiting the bar on enforcement to the named plaintiffs.

Two bits of good news. The court dropped a footnote that "nationwide" is the imprecise term, citing Justice Thomas' Trump v. Hawaii concurrence that the problem is not geographic scope but "universal character." And the court ended in the right place--with an injunction particularized to the individual plaintiffs.

The bad news is how it got there. These plaintiffs--journalists, commercial photographers, and producers of sex-education materials--were niche actors and different from typical players in the pornography industry. Given their unique facts and positions, the remedy protecting them should not protect differently situated actors. But that should not matter. Even if non-party pornographers were similarly situated to the plaintiffs, absent class certification, the injunction should not protect beyond the plaintiffs; it is unnecessary to accord complete relief or to remedy the violation of those plaintiffs' constitutional rights.

One point of confusion is that two associations--the Free Speech Coalition and the American Society for Media Photographers--were plaintiffs in the case, although their claims were dismissed for lack of associational standing. An injunction protecting an associational plaintiff can become broader, as in protecting the association it must protect its members (Michael Morley describes this as a de facto class action). But this injunction never protected the associations, who lacked standing. But that proves the point. There is no reason to consider the organizations' standing if the injunction protects them at the end of the day. Particularity in the injunction is more consistent with the other rules of civil litigation.

Posted by Howard Wasserman on September 3, 2020 at 03:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Are Colleges and Universities Legally Obligated during the Coronavirus Pandemic to Exempt High-Risk Faculty from In-Person Teaching Requirements?

A new article posted on SSRN of interest to all of us, as teachers and scholars.

Posted by Orly Lobel on September 3, 2020 at 01:44 PM | Permalink | Comments (1)

Ornstein on filibuster reform

Norm Ornstein argues in The Atlantic that even in a best-case scenario, Democrats in 2021 would be unable to eliminate the filibuster. And, he suggests, perhaps they should not eliminate it, lest the Senate become a mini House in which the majority always gets its way and the minority lacks formal power. Ornstein's solution is to flip the default on continuing debate:

Instead of 60 votes required to end debate, the procedure should require 40 votes to continue it. If at any time the minority cannot muster 40 votes, debate ends, cloture is invoked, and the bill can be passed by the votes of a simple majority.

The committed minority would have to be at the Senate around the clock, ready to hit the floor for a vote to continue debate. It would impose a physical and political cost on the minority prolonging debate rather than on the majority seeking to end it and get to a simple-majority vote. He hopes that would limits its use to the extraordinary case.

This also offers a nice example of how default rules operate and how altering a default alters conduct and procedure.

Posted by Howard Wasserman on September 3, 2020 at 11:25 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, September 02, 2020

Nominations for AALS Administrative Section Emerging Scholar Award

Posted on behalf of Prof. Kent Barnett

The Section’s Executive Committee is pleased to announce the bestowal of an Emerging Scholar Award for the Administrative Law Section at the 2021 AALS Annual Meeting.

A section-award committee comprised of five members will select a substantial scholarly work—whether a law-review article, monograph, or chapter—published between September 1, 2019 to August 31, 2020 on an administrative law topic by early-career fulltime faculty members without tenure at the time of the work’s nomination. (Those with fellowships, visiting assistant professorships, or similar positions are not eligible.) Scholarly works on any administrative law topic are eligible, although the committee may favor works with greater general applicability.  

To nominate a work, please send an anonymized version to Kent Barnett at [email protected] by September 25, 2020. The Committee will select a work in mid-December and present the award at the virtual Administrative Law Section Meeting at the AALS Annual Meeting on Saturday, January 9 from 11:00 a.m. to 12:15 p.m. EST.


Posted by Dan Rodriguez on September 2, 2020 at 03:30 PM in Daniel Rodriguez | Permalink | Comments (0)

Tuesday, September 01, 2020

Upcoming 2020 Victor Schwartz Lecture in Torts: Modernizing Defamation Law

I am honored to be giving the 2020 Victor Schwartz Lecture in Torts at the University of Cincinnati College of Law on October 6. Here's my topic: 

The common law tort of defamation acquired its distinctive shape and labyrinthine doctrines over the course of the last five centuries. In this century, the tort is being confronted with its biggest challenge since the invention of the printing press, namely how can defamation law protect reputation and free expression in a world where social media invite billions of people to impulsively comment on every conceivable topic from devices they carry in their pockets, all while creating a record of their carelessly chosen words? At this juncture in defamation’s long history, the American Law Institute has appointed reporters Robert Post and Lyrissa Lidsky (that would be me), along with a stellar panel of advisers, to “restate” the tort of defamation. The launching of this project creates an opportunity to reconsider how defamation law can accommodate free speech and reputation in a society that weights them very differently than Sixteenth Century England or even the United States of the late 1970s when the Restatement (Second) of Torts: Defamation was completed. This presentation (and a forthcoming essay) will examine and critique recent trends in defamation cases to scry what they portend for modernizing defamation law for the digital age.

Posted by Lyrissa Lidsky on September 1, 2020 at 06:46 PM in Lyrissa Lidsky, Torts | Permalink | Comments (1)

Infield flies, triple plays, and multiple outs on the same guy

A crazy play in Monday's Twins-White Sox game (video in story; H/T: Allan Erbsen at Minnesota): The Twins attempted to turn a triple play off a dropped "humpback liner," but messed up and ended up with one out.

White Sox have bases loaded, none out. Batter hits a low-flying flare behind second. The second baseman drops the ball (perhaps intentionally ) and has it scramble away from him. The runner on second starts to go, then retreats to second. The second baseman flips it to the shortstop covering second who catches the ball while standing on the base. He then throws to the first baseman, who tags the runner on first retreating, while the batter stands on first. The first baseman throws to second, where the runner there beats the tag. They then thrown to home plate (after a discussion), where nothing is happening.

After umpire consultation, the result: The batter is safe at first. The runner on first was out, the remaining runners are safe where they were. One out, bases still loaded. What happened after jump.

No infield fly. The ball was not hit high enough (it lacked the necessary parabolic arc). This is the tricky play that umpires and players struggle with. I would guess the runner on second retreated on a belief that the rule had been invoked or the ball was going to be caught. But it clearly had not been. One announcer started talking about this, without acknowledging how low the ball was hit.

It appears the Twins second baseman intentionally dropped the ball, hoping to start a double (perhaps triple) play. Or he closed his glove too quickly, which happens. But this looks pretty intentional. If the umpires called that, the batter would have been out and the play dead. This play illustrates the need for the rule--the runner on second retreated expecting the ball to be caught and was hung out to dry when the ball was not caught. This is a pure anti-deception rule. The other announcer picked up on this.

Having gotten away with the intentional drop, the second baseman's plans were foiled because he was unable to play the drop cleanly off the ground and it skittered away from him. This gave the batter sufficient time to reach first.

The Twins still could have gotten a double play around second base had the shortstop covering caught the ball and tagged the runner before stepping on the base. Once the ball fell (and intentional drop not called), the runner on second was forced to advance and retreating to second was not an option; he could have been tagged out even if standing on second base, which no longer was a "safe" base for him. But by stepping on the base first, the infielder put out the runner who had been on first; the runner on second was not forced to advance and could return safely to his current base.

The first baseman erred by tagging out the runner on first attempting to retreat, who already was put out on the force at second. In essence, the Twins put out the same baserunner twice--kind of a double play, I suppose. But the first baseman had no other option, since the batter had reached first safely.

Presuming the second baseman dropped the ball intentionally, he might have been looking for a triple play in two ways.

    1) Throw to the shortstop to tag the runner at second, then tag the base, then relay to first to get the batter; had he played the ball cleanly off the ground, this might have worked.

    2) Throw home to force out the runner on third, then throw to third to force the runner on second, then throw to second (shortstop covering) to force the runner on first. This would have been a 4-2-5-6 triple play, which the author of the linked MLB article says happened once, in 1893 between the Brooklyn Grooms and an older version of the Baltimore Orioles. This also would have been a clear option, since the play was right in front of the fielder when he picked up the ball.

Is it any wonder lawyers love baseball?

Posted by Howard Wasserman on September 1, 2020 at 10:00 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Separation of powers, separation of parties, and subpoena enforcement

Following on Monday's post about the D.C. Circuit holding the House lacked a cause of action to enforce a subpoena: I mentioned that Congress could fix this by enacting a statute creating a right to sue. But that effort would offer an interesting test of the Levinson & Pildes "separation of parties, not separation of powers" thesis.

The President would likely veto any such bill. He will not want to subject himself and the executive branch to subpoena-enforcement actions. And he will want to retain control over subpoena enforcement actions, through DOJ.

The question then becomes whether Congress will override that veto. A legislature committed to separation of powers--and the Madisonian conception of ambition counteracting ambition--would override the veto, asserting its institutional prerogatives against executive recalcitrance. But Congress has been interested in checking the executive only when he is from the opposing party. So the question is whether sufficient Republicans in both houses would override a Trump veto or sufficient Democrats in both houses would override a Biden veto. And the answer to that is not clear. Perhaps each party will play a long game--"override my co-partisan President now so the power exists when the opposing party is in the White House." But the answer is not clear.

Posted by Howard Wasserman on September 1, 2020 at 09:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

How to Cover Protests and Crime (*slightly updated)

I just finished reading this thought-provoking article from Arc Digital about media coverage of protests and political implications.  It is a good reminder that media have to make substantive decisions about which stories to cover.   But it also is basically a microcosm of a lot of coverage that I've seen about how the lawlessness at protests and crime more generally is likely to play out in the presidential election.

Implicit (and sometime explicit) in this article is the idea that, although the political arguments about crime and the protests that are being leveled against the Biden/Harris ticket are wrong a a matter of fact and as a matter of logic, the arguments might still succeed.  The author notes that conservative media outlets and prominent Republicans keep saying that Biden and Harris haven't condemned looting and violence at the protests.  But of course they both have.  The author also seems to acknowledge that it's illogical to blame Joe Biden for things that are happening while Trump is president or to say that crime will get worse if Biden is elected.  Even if we think presidents are responsible for crime--which is a silly thing to assume--crime rates dropped when Biden was vice president, and similar protests and violence in Ferguson were handled much more effectively when Obama was president.  Yet this author is quick to tell Biden and Harris that they need to do more to reassure voters that they don't support violence, and that they have to be careful not to be more forceful in condemning vigilantes than antifa because that might give voters the wrong impression.

In short, the article adds to the pile of commentary that seems to assume the current violence in American cities will hurt Democrats, and thus focuses on how the Biden/Harris response could be *better* while largely ignoring that the Trump/Pence response has been pretty awful. 

That same double standard appears in the discussion of media coverage.  The article notes how the mainstream media has ignored some stories that gained traction in the conservative media.  And it argues that these omissions could make people think that Democrats support rioting.  But there’s no similar critique of the conservative media.  There is no detailed catalogue of what stories didn’t get coverage on Fox News or in the National Review.  There’s no concern about stories from these outlets that seem to support vigilantism or turn a blind eye to police violence.  Nor is there an explanation about why alienating voters is only something for mainstream media or left-leaning outlets to worry about.

Don't get me wrong.  I think that the concern and the critique offered in this article are based in good faith.  The author seems to support Biden/Harris and I suspect she wrote this story because she is worried that they might lose.  But I worry about the cumulative effect of stories such as this on criminal justice politics in this country—stories that focus on whether law & order issues will hurt Democrats and that assume they will help Republicans.  This country has only recently started to recover from decades of the two parties trying to out-do each other as tough on crime.  Framing "law & order" as something that Democrats always need to be afraid of could undermine the small reforms that have been made.

My biggest criticism of this reporting and lots of other commentary that I’ve seen is that it doesn’t attempt to put questions about crime and disorder at the protests into a larger context that includes actual empirical evidence about what’s happening (rather than just anecdotes).  For example, I’ve seen dozens of commenters talk about the “sense” or “perception” that the protests are not peaceful, but are instead riots filled with lawlessness and violence.  Isn’t that something that could actually be tested?  How many protests do we see across the country every day where there is no looting or burning of buildings?  A political commentor who is tempted to write another "crime is bad for Biden/Harris" story could do some independent research to provide additional factual context to whatever "there's a sense" conjecture that she wants to write.

For example, I haven't seen very much in-depth reporting about what arrests police are making at these protests.  A quick glance at the Portland Sheriff’s booking database showed me that law enforcement in Portland are still arresting a significant number of people for not following police orders.  That information about arrests in Portland is especially newsworthy given the wide spread coverage about the Portland DA refusing to prosecute people arrested at protests unless they were looting or engaged in violent behavior.  It’s fair to ask why the police are continuing to arrest these people who are literally protesting police aggression.  Similarly, a sheriff from just outside Portland* recently released a statement saying that judges are contributing to the lawlessness in Portland by releasing protestors on their own recognizance, claiming that police are arresting the same people over and over again.  This statement is gaining tons of traction on Twitter, but local reporting makes clear that the statement is factually incorrect:  "Court and jail records show that few people have been arrested multiple times at protests and that the majority of arrests have been for non-violent crimes."**

Finally, it would be nice if critiques of media coverage about crime during these protests seemed to have some appreciation about the ordinary problems associated with media coverage of crime—the disproportionate coverage of serious crime, the uncritical repetition of law enforcement statements, the effects of the availability heuristic on the public.  This article, for example, chides the media for not giving complete accounts of the criminal history of Jacob Blake.  Is that really what we want the media to do?  Do we really think that the fact a person has been accused of a crime makes it more likely that they were violent towards the police? And if so, where is the outrage that the media doesn’t have access to the disciplinary records of the officer who shot Blake?  Or do we assume prior bad acts are only relevant for people who police are shooting and not for the police themselves.

In any event, the article is worth reading because it does a good job highlighting questions about content decisions that those in the media have to make.  But this author had to make similar decisions for this very article, and it’s far from clear that her decisions are more evenhanded or less biased than the decisions she is criticizing.

* Previous version of this post mistakenly said that it was the sheriff of the country that includes Portland.

** This paragraph has been updated to include the information from local media contradicting the sheriff's statement

Posted by Carissa Byrne Hessick on September 1, 2020 at 09:17 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink | Comments (4)