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Sunday, November 29, 2020

The 20-day coup (and counting)

Everyone is sharing the Washington Post story on Trump's 20-day attempted coup, so here it is. It does not change my overall pessimism about how close we came or where we now stand. A few notable things:

• While the story describes the fringiest of the fringe taking control in the White House and the campaign, no one (other than some lawyers) walked away or spoke out against what he was doing. Most at least humored or appeased him. No one went on the record for this story. All of which enabled the narrative about fraud and a stolen election as much as Rudy's direct insanity.

• In her letter releasing transition funds, GSA head Emily Murphy insisted she delayed her decision and released funds "independently," without direct or indirect pressure from anyone, including the White House. The Post states that it happened only when Trump, after "prodding," "agreed to permit the General Services Administration to formally initiate the Biden transition." Someone is not telling the truth.

• The article's narrative is that this was a 20-day thing, running from Election Day until GSA acknowledged the transition on November 23. But Trump's effort to undo the election did not end on the 23d. Or now. The efforts continue--through his interviews on Fox News, his GOP allies in Pennsylvania seeking to change state law to override the popular vote, and the constant din of allegations of fraud, stolen elections, and illegitimate successors that have undermined Biden, likely irrevocably.

• Even with this new information, no one in the GOP establishment has spoken out. The story as they see it is "he just didn't have the facts to make the argument," rather than "he is genuinely trying to pull down democracy."

Posted by Howard Wasserman on November 29, 2020 at 03:12 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Updating the Standing section on my Fed Courts syllabus

1) Constitutional and Statutory Considerations                         

2) Taxpayer Standing                                                                

3) Third-Party and Other Standing

4) Presidential Standing                                  

5) Legislative Standing to Sue                                            

I am ready for the new semester. I also have another source for the section on SCOTUS jurisdiction and how hard it is to get a case to the Court.

Posted by Howard Wasserman on November 29, 2020 at 02:46 PM in Howard Wasserman | Permalink | Comments (0)

Saturday, November 28, 2020

More state universality

A judge in the Eastern District of Kentucky enjoined a Kentucky executive order closing schools, finding it violated the First Amendment rights of a K-12 religious school. (H/T: Eugene Volokh). It is unsurprising in its analysis--the order was not generally applicable because it applied to K-12 schools but not preschools or colleges and universities. Whatever--I have given up reading these decisions as anything other than a sub silentio reading of the First Amendment to opt-outs for religious institutions and behaviors, no matter the societal costs.

More interesting to me is that the court made the injunction universal/non-particularized, prohibiting enforcement of the EO as to all religious schools, not only the plaintiff. The court did not use the words universal or non-particularized and did not acknowledge the ongoing scope-of-injunction controversy, while providing further evidence that this issue is not limited to challenges to federal law. I presume the key here is that the lawsuit was brought not only by the school, but also by the Attorney General on behalf of the Commonwealth. "Complete relief" for the AG must protect all members of the public.

In the Before Times of 2018, I spoke on universal injunctions before the meeting of the National Association of Attorneys General. I suggested they might be of two minds on the issue. On one hand, universality works against them as the defendants to be enjoined from enforcing many state laws. On the other hand, they want universality when suing the federal government to stpp. This is a third hand--the AG suing the Governor to stop enforcement of a provision of state law.

Posted by Howard Wasserman on November 28, 2020 at 12:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Evidentiary problems (Updated)

Election-law attorney Marc Elias has kept a running tally of the Trump Campaign's litigation record, which stands at 1-38 and has a chance of getting to 50 losses. As his litigation efforts flail, however, his political efforts have succeeded--not in keeping him in the White House (which may not even be the point), but in destroying public confidence in electoral and political processes, undermining the Biden presidency before it begins, and in creating space for an army of state-level mini-Trumps to make noise (even if unsuccessful) about overriding the results of the election.

The difference is evidence.

Trump has lost in court because courts have strict rules about what constitutes valid allegations and evidence (under oath, reliable, credible, based on actual understanding of things such as how elections work, and subject to testing) and they are bound by the allegations and evidence in making decisions. As Judge Bibas wrote, "calling an election unfair does not make it so. Charges require specific allegations and then proof." On the other hand, Trump has won in hotel ballrooms and porn-shop-adjacent parking lots because evidence is whatever nonsense, however fantastical, can be spouted at the highest volume with the straightest face. And decisionmakers (the voters who believe the election was stolen) can base their beliefs on whatever they want.

Whither legislative bodies? They have rules about what constitutes valid evidence--witnesses are under oath and cannot lie. But no external rules limit what legislators can hear or use in reaching their decisions. Which leaves room for people like Pennsylvania Sen. Doug Mastriano, who is leading a legislative move to appoint the state's electors. And he can base his efforts on "findings" of "substantial irregularities and improprieties associated with mail-in balloting, pre-canvassing, and canvassing" based on "facts and evidence presented and our own Board of Elections data" that the presidential election (although, miraculously, no other elections within Commonwealth), was "irredeemably corrupted."

But where is the evidence of this irredeemable corruption? There is none, at least nothing that any court has taken seriously or could rely upon. So it must be that legislatures, or at least some legislators, believe they can and should base decisions not on what suffices in court, but on what suffices in ballrooms and parking lots. In a legislature, unlike in court, it is enough to call an election unfair and act on that call. And that is the problem.

This is not new. Legislators often make bad policy off bad evidence and bad findings. Policy can be undone. The votes of almost 7 million people cannot. And neither can a widespread belief that the system is corrupt whenever your preferred candidate loses. That Mastriano's effort will fail is beside the point. That he is making it and that it will be taken seriously suggests we have crossed some lines.

Updated: Phillip Bump at the Washington Post calls for the Republicans to release the evidence or shut up, then defines what is and is not evidence. But there is no agreement on what constitutes valid evidence, at least outside of court. So Trumpists will reject the premise of Bump's argument.

Posted by Howard Wasserman on November 28, 2020 at 12:09 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

We have not pulled back from the edge

Molly McKew argues that we did, if barely. But evidence suggests we still are heading off the cliff.

The election was close, no massive repudiation of the person who history will show as a worse president than the guy who started the Civil War and the guy who allowed the South to win. Jeff Greenfield argues that the past month has revealed the vulnerabilities in the political and electoral systems; it is a blueprint for a future authoritarian who is more competent, represented by better attorneys, able to come up with better facts, able to influence more state and local officials, and working with a marginally closer election. Trump has succeeded, aided by state and local officials, in convincing majorities of Republican voters that the election was stolen, through repetition and oathless hotel-ballroom show "hearings"* at which fanciful allegations are presented and accepted as true (unlike in court, where there are penalties for lying). Republicans--the same Republicans who have enabled, supported, and never abandoned the President through his antics, no matter how fanciful and dangerous to the democratic process--gained in the House and Senate, giving them a stronger position come January. The ongoing national political sorting reflects badly on Democrats' long-term prospects in Congress.

[*] A new one has been announced for Arizona for Monday.

The Biden Presidency is DOA. Some percentage of voters, egged on by Trump and Republican officials at all levels of government, do not believe Biden legitimately won the presidency (or won it at all), because the election was irretrievably tainted by overwhelming (if unpresented or unreliable) evidence of fraud. Large numbers of people, including those holding the levers of political power, will wield this "lost cause" narrative y to oppose everything he attempts for the next four years.* There will be no legislative action, as McConnell has no incentive to work with Biden to actually govern for the benefit of the public. Has any president appointed zero judges?** Might McConnell attempt to reinstate the filibuster for appointments, neutering the few Republican Senators (Collins, Murkowski, Romney) who might vote to confirm Biden nominees? Federal courts and ex-officials (hi, Bill Barr) will discover previously unknown limits on unilateral executive power, including the use of acting cabinet members. Universal injunctions are looking good again. And suspicions and aspersions will be cast on every future election.

[*] Any comments comparing the lonely tilting at windmills by John Lewis and a handful of other will be deleted. Save us both the time.

[**] There are no current appellate vacancies. But Marin Levy has shown that approximately 60 active Democratic-appointed circuit judges are eligible for senior status. A critical mass of this group taking senior status could reshift the court balance. But any vacancies will remain unfilled until a Democratic Senate or a Republican President. Which do we think is more likely to happen first?

McKew recognizes that the answer to her question is not clear, presenting two options.

The election of Joe Biden is still, in a way, a condemnation of America — a defeat of Trump, but not Trumpism, a small-minded, self-centric view of the world that is anti-system rather than collaborative, brittle rather than resilient, hollow rather than vital, and fundamentally defined by the idea that others must suffer for you to do well.

With any luck, this particular red-hatted cult madness will wane, its power less effective when it is viewed in the rear view mirror, a neon-lit road-side mirage that seemed so marvelous in the night, but now garish and rusted and cheap in the light of another day. A realization that the identification of problems is not enough to solve them, that if dehumanization and cruelty are the “policies” you like, maybe you need to have a look at what that says about you.

But Trumpism could also become sharper with smarter, less lazy champions of its dark and anti-democratic ideals. Personalities who are more acceptable, and better able to hide the intention behind cruel policies. While many were drowned by the surging tide of Trump, and others seemed to ride with him a while only to be smashed into the rocks when he crashed into the shore — there were a small number who rode the wave, never at the crest, never subsumed, but surfing, surfing the edges, carried along by the madness, now alighting unscathed, and waiting, waiting to fight for the crown that Donald Trump never attained but made real for too many who should know better and want more.

Other than Biden's comfortable-but-closer-than-expected-and-hoped-for victory, the answer, to me, is the latter rather than former. The results of this election and the post-election madness, aided-and-abetted by most Republicans, supports that answer. And the early 2024 contenders (Cotton, Cruz, Hawley, Rubio) are practicing their mini-Trumps, as is Trump himself, all convinced that this is the path to political victory.

Posted by Howard Wasserman on November 28, 2020 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, November 27, 2020

Making students thirsty for Civ Pro

The Third Circuit unanimously rejected the Trump Campaign's appeal seeking leave to amend and to enjoin Pennsylvania certification pending appeal. Other commenters have described this vivisection of an opinion. I will add a few random thoughts.

• Trump attorney Jenna Ellis says the quiet parts out loud by complaining that the "activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud," before cheering that it is "on to SCOTUS." Never mind that the complaint pointedly does not allege fraud, which is part of the problem. The "activist judicial machinery" is three Republican appointees, including a Trump appointee as the opinion author. Under what possible definition is this decision--declining to undo the results of the majoritarian process--activist? Unless, as we all suspect, activist is a decision that rules against us.

• I was glad to see the court reject the argument that due process or other federal law requires partisan poll watchers, let alone that poll watchers be given particular access or vantage. This has been creeping into the political arguments, including during Trump's press conference at the Irresolute Desk when he extolled poll watchers as "sacred in our country."* They are not, never have been, and need not be, as a matter of federal constitutional law.

[*] He surrounded this with an unusual use of his "a lot of people don't know this" verbal tic. Usually that tic accompanies something true that everyone (except Trump, presumably) has always known, such as that Abraham Lincoln was a Republican. Here, he is using it with a statement that no one knows because it is not true.

• The opinion throws Twiqbal and FRCP 15(a) into the public eye, which should make my students long for Civ Pro next semester. The case offers a somewhat different example of undue delay. The paradigm case is "we're 15 months into litigation, discovery is closed, we are three months from trial, why did you wait so long." Here, the delay is undue because of the plaintiff's litigation posture--a motion on your original pleading is fully briefed and amending now requires us to start over, contra your particular request to the court to rule quickly on time-sensitive injunctive relief.

• I agree with those who have said that Judge Bibas is a wonderful writer--crisp and able to turn a phrase, without being showy or obnoxious. A good example of legal writing.

Posted by Howard Wasserman on November 27, 2020 at 04:57 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Reshuffling the Court? (Updated)

Josh Blackman offers an interesting proposal/prediction/speculation: Chief Justice Roberts should retire, allowing soon-to-be-President Biden to elevate Justice Kagan to chief and to fill a seat on the Court. Josh originated this proposal in September as the new way to save nine, when polls suggested a Biden presidency and Democratic Senate that would expand the Court. While Court-expansion is off the table, Josh renews the speculation in light of the Court's new shape and the Chief's role, as revealed in this week's decision enjoining New York gathering regulations, in which he dissented for himself. With the appointment of Justice Barrett, Roberts no longer is the median Justice and may be in the minority more often. At the same time, Justices Breyer, Sotomayor, and Kagan have less incentive to join his opinions, because they cannot produce a majority. The result is a Chief Justice consistently voting alone.

In December 2016, I wrote that Roberts won and Kagan lost the Merrick Garland debacle. Roberts avoided being a Chief Justice consistently in the minority thereby retaining the power to assign and cultivate majorities, while Kagan lost the opportunity to be the Brennan-esque intellectual heart of a liberal majority. Josh argues that this moment passed with Trump's appointment of three solid conserbatives. This proposal would somewhat reverse what I described--Roberts leaves before his power wanes, while Kagan gets a promotion. Of course, Kagan would find herself where Roberts would have been had Garland been confirmed--a Chief Justice regularly in the minority (unless she proves even better than advertised at bringing the Court together in the middle). And the real winner of the exchange would be Justice Thomas, who regularly becomes senior Associate Justice in the majority with the power to assign opinions.

In fairness, I believe it is safe to say that Josh is no fan of the Chief and would shed no tears if he left the Court while leaving a secure, and young, conservative majority.

Update: One point I forgot: If this were to happen, it would give Biden three appointments in one term, as I expect Breyer to retire by spring 2022.

Posted by Howard Wasserman on November 27, 2020 at 04:00 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

JOTWELL: Vladeck on the new Supreme Court Practice

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing the new 11th edition of Supreme Court Practice.

Posted by Howard Wasserman on November 27, 2020 at 02:56 PM in Article Spotlight, Books, Civil Procedure | Permalink | Comments (0)

Thursday, November 26, 2020

Baseline Hell in Brooklyn: The Futility of Neutrality Talk in Roman Catholic Diocese v. Cuomo

With weary predictability, each side, secular and religious, is playing its accustomed role in the Roman Catholic Diocese of Brooklyn v. Cuomo. Is a religious service more like a visit to a liquor store? Or more like attending a movie house? If the former, then Cuomo’s order strictly limiting numbers of attendees “single[s] out houses of worship for especially harsh treatment,” as the per curiam opinion declares. But maybe religious services are more like a night at the movies, because (as Breyer notes in dissent) “the risk of transmission is higher when people are in close contact with one another for prolonged periods of time.” On this view, a few minutes spent grabbing and buying Old Forester is just not the same as an hour spent singing hymns in close proximity to other singers.

Welcome to baseline hell, that infernal prison for all those who think there is an easy way to define “neutral” treatment in a polarized age. In baseline hell, no one can agree on the proper baseline by which to measure “neutrality.” This disagreement about baselines insures that "neutrality talk" is a waste of breath, because there is no Olympian perspective of some "reasonable observer" by which to assess whether or not a law is covertly discriminatory or scrupulously impartial.

The futility of “neutrality talk” in baseline hell is well-illustrated by Justice Kavanaugh’s concurrence in Roman Catholic Diocese. Justice Kavanaugh suggests a “most favored institution” rule of automatic suspicion towards even apparently neutral regulations. “[O]nce a State creates a favored class of businesses, as New York has done in this case,” Kavanaugh states, “the State must justify why houses of worship are excluded from that favored class.” This rule of "neutrality" is plainly a special exemption for churches, because there will always be some non-church institution that will enjoy some “special” treatment not generally available to others. Hospitals, for instance, will always be deemed “essential” in a pandemic. Must the state then explain carefully why churches are not like hospitals when the latter are allowed to perform surgeries but the former are banned from performing baptisms? To religiously minded people, however, Kavanaugh’s rule looks like a sensible safeguard against the hidden anti-religious prejudices allegedly coloring the Secular Left. If the "elaborate system of exemptions and waivers" in Trump's a travel ban could give rise to suspicions of anti-Muslim bias, as Breyer argued in his dissenting opinion in Trump v. Hawaii, then why can't the equally elaborate and perplexing system of restrictions in Cuomo's order raise similar suspicions? After all, Cuomo's order contains completely absurd elements such as the ten-person limit on church attendance regardless of the size of the meeting place where the religious service is conducted. Why doesn't such absurdity suggest deliberate indifference to religious needs?

Here are two suggestions for etiquette in baseline hell: (1) Stop with the question-begging “neutrality talk,” and instead (2) try to see things from your opponents' point of view rather than the viewpoint of some imaginary “"reasonable observer." So viewed, Cuomo’s executive order looks like really sloppy work. Was it biased against religion? Who knows -- and why should we care? Regardless of how we answer that unanswerable baseline question, the order's sloppiness was likely to inspire distrust from religious people. That distrust, far more than anything done by SCOTUS, undermines effective pandemic response.

Posted by Rick Hills on November 26, 2020 at 09:41 PM | Permalink | Comments (4)

Tuesday, November 24, 2020

Dumping Rule 11

I have been thinking about dropping Rule 11 from Civ Pro. I have had trouble getting to Erie the past few years, a problem made worse  being remote (everything takes just a bit longer, which adds up over 13 weeks) and the likely addition of a new personal-jurisdiction case in Ford. I enjoy teaching it and it is a good source for essay questions. But I think Erie is more important.

The clown show that is the Trump Campaign litigation in the Middle District of Pennsylvania (and now the Third Circuit) confirms the choice. No one will be sanctioned for pursuing litigation violating 11(b)(1), (2), and (3). Even the great find precedent the Campaign has touted (they brought the plaintiff to last week's hearing) does not stand for the proposition they say it does. And beyond this single extraordinary case, the reality is that sanctions are imposed on the most-egregious behavior after four or five freebies. Against all of that, class time is better spent on other things.

Posted by Howard Wasserman on November 24, 2020 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (11)

Monday, November 23, 2020

Paying for vaccination and the First Amendment

I am intrigued by this idea making the rounds: Pay people (amounts thrown around are $ 1000-$1400) for getting the COVID vaccine. The plan achieves three things: 1) Ensures broader vaccination towards herd immunity (estimates say a 70% rate is necessary); 2) economic stimulus; and 3) support those suffering financial loss in the economic downturn.

A question: Would someone with a religious objection to vaccination have a First Amendment or RFRA claim? Is not receiving a widely available benefit, unavailable to you because of your religious beliefs, a violation of religious exercise? And, because that is all the rage these days, what would be the remedy if this is a violation? How would the Court level up--requiring the government give the religiously unvaccinated $ 1000? Or would the Court level down and prohibit the government from doing this?

Posted by Howard Wasserman on November 23, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Can you sue a psychiatrist for malpractice?

A divided Eleventh Circuit declared invalid a Florida municipal ordinance prohibiting conversion therapy. The court treated the ordinance as content- (indeed, viewpoint-) based and failing strict scrutiny. On one hand, this is not surprising, as the court had previously declared invalid a Florida statute prohibiting pediatricians from asking patients (and parents) whether they kept guns in the home. If anything, that law could have found stronger footing as an incidental regulation of a medical check-up.

The Eleventh Circuit rejected that possibility with the conversion-therapy ban. This is not speech incidental to medical conduct. Rather, "[w]hat the governments call a 'medical procedure' consists—entirely—of words. As the district court itself recognized, plaintiffs’ therapy 'is not just carried out in part through speech: the treatment provided by Drs. Otto and Hamilton is entirely speech.'”

If so, can a therapist be successfully sued for malpractice for the harmful effects of talk therapy (put aside medical issues, such as prescriptions)? Imagine a therapist who bullied and shouted at her patients, worsening their emotional and mental problems. If the "treatment" is entirely speech, then a malpractice claim would impose liability for speech. The majority insists the decision does not go so far and "does not stand in the way of '[l]ongstanding torts for professional malpractice' or other state-law penalties for bad acts that produce actual harm." The court distinguished this broad prophylactic rule prohibiting speech from tort rules imposing accountability for actual harm to children. But I do not understand why that matters for First Amendment purposes--the law would be regulating "entirely speech" in either situation.

Posted by Howard Wasserman on November 23, 2020 at 09:31 AM | Permalink | Comments (5)

Sunday, November 22, 2020

Trump campaign loses big in Pennsylvania (Updated)

Update: Just wanted to highlight a few things discussed below, as the Pennsylvania litigation continues apace. First, Trump's lawyers are as bad at appellate procedure as they are at civil procedure--the motion for expedited review insists that they are only challenging the denial of leave to amend to file a Second Amended Complaint, not the dismissal of the First Amended Complaint. And they have not asked for an injunction pending appeal, which means Pennsylvania could certify the results today and moot the case. Second, Trump's lawyers are being hoisted on their Twiqbal petards. They continue to insist they are entitled to discovery and the chance to present evidence at trial, ignoring the obligation to plead a plausible claim, including standing. Third, liberal delight in flaunting Twiqbal is disturbing.

Opinion here. This was always a weak case, so the result is unsurprising. Giuliani's involvement brought a brighter spotlight to it than its merits deserved, making it more farce than lawsuit. But the decision is as much of a smackdown as people are saying, with the court dropping occasional phrases suggesting annoyance. Some quick thoughts.

1) This case further convinces me that standing as a merits-independent threshold inquiry makes no sense. For the two voter plaintiffs, the court focuses on the fact that they sued the wrong people, people who did not violate their rights and thus injure them. That should be part of the merits--your county violated your rights by treating you poorly, but other counties do not violate your rights by treating other people favorably (as permitted by law). Similarly, redressability was framed in terms of remedy--the plaintiffs lacked standing because they requested the wrong remedy--which should be a post-merits determination. The goal seems to be to make what are effectively merits determinations while denying the case is about constitutional merits.

2) The Campaign asserted associational standing,which the court rejected. But it did not assert third-party standing on behalf of voters. Was this another pleading error? Political campaigns have always struck me as a classic example of third-party standing--their interests align with the voters and individual voters lack the incentive to bring broad-based litigation.

3) Given the GOP campaign against universal injunctions the past four years (with which I agree, of course), it is ironic that they requested the ultimate universal injunction. The plaintiffs asked the court to stop Pennsylvania from certifying the election--functionally nullifying every vote in the state--to remedy the violation suffered by two voters who were denied equal protection by the actions of a non-party. But it also would have been insufficiently universal, in that they only wanted to stop certification of the presidential election but no other election, although the voters were denied equal protection to cure their votes in those elections, as well (unless they could allege that they only voted in the presidential election).

4) The case illustrates the disconnect between litigation, which is often small-bore and centered on discrete violations of discrete people's discrete rights, and the vast international and technological conspiracy that Trump's lawyers sought to prove. Put aside that the evidence does not exist. There was no room for such evidence on the claims alleged. But does this create a catch-22? The Campaign will complain that it never had an opportunity to present its evidence in court (as people have been demanding), because the court never accepted its unsubstantiated allegations (which is all a complaint is supposed to be) and allowed it to find and present that evidence. At the same time, this is how much litigation works since Twiqbal--a state of affairs about which Civ Pro scholars have been complaining for almost 15 years.

5) I liked Judge Brann putting citations in footnotes, a practice I am surprised has not caught on more (some judges on the 5th and 6th Circuits do this). On that note, check out footnote 80, sure to go down in history as the new footnote 4.

Posted by Howard Wasserman on November 22, 2020 at 10:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Thursday, November 19, 2020

Congressional Authority over the Federal Judicial Docket

In the First Ku Klux Klan Act, Congress provided that actions brought to enforce Section Three of the Fourteenth Amendment "shall take precedence of all other cases on the docket of the court to which it is made returnable, and shall not be continued unless for cause proved to the satisfaction of the court." 

Here's my question for civ pro and federal court folks out there. How often has Congress done this? Are there any current examples?

Posted by Gerard Magliocca on November 19, 2020 at 01:11 PM | Permalink | Comments (6)

Wednesday, November 18, 2020

Procedure matters

Civ Pro is a spring class at FIU, so I do not get them until January. But I hope they are paying some attention to the Trump litigation campaign, particularly the case in MDPa. That mess shows how much procedure matters, if only to getting the court to take you seriously as a competent advocate and thus your claims seriously as presented. But Giuliani (and other's) complete lack of understanding of how litigation operates at the level of a basic Civ Pro class--when leave to amend must be sought, what claims and allegations are or not in a case, the meaning of pleading standards--has been stunning. Grasp of procedure also marks the difference between legal and political activities, which supports news reports that Giulian's gambit is entirely the latter and none of the former.

Posted by Howard Wasserman on November 18, 2020 at 08:38 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (4)

Departmentalism and virtue signalling

A mini controversy erupted at Northern Iowa in October, when the student government refused to recognize a chapter of Students for Life, calling it a "hate group." The university President reversed the decision and recognized the group.

From a First Amendment standpoint, the President's decision was correct. Had the initial denial stood, SFL would have sued and won, obtaining an injunction, perhaps (limited) damages, and attorney's fees. But that prospect arose during student-government debates, when one student senator "opined that recognizing Students for Life out of concern that refusal could subject UNI to legal liability was an 'extremely facile and weak' defense that 'privilege[d] . . . money and . . . admins over student well-being.'”

The university did not share the student's position, for obvious reasons. But suppose it did? And how does that position--"we are going to do (what we believe to be) the right thing, judicial defeat be damned"--square with judicial departmentalism? My assumption has been that executive/legislative departmentalism ends when the certainty of judicial liability and attendant consequences (particularly attorney's fees) begins. But suppose government adopts that student senator's ideal that it should promote "student well-being" even at the threat of legal liability. That is, the government takes the position that it is better to promote its constitutional vision even knowing that vision will lose in court, in exchange for the goodwill of some constituency. This may be especially appealing to a public university. It can do the "right" thing in the moment (such as promoting the anti-racism cause or protecting students from offending messages)--and if the court forces the university to change, so be it. The university might benefit from that approach--"we can't do what you want because we will lose in court" becomes "we really tried to do what you wanted but those unelected federal judges got in the way." I am glib in the title in labeling this virtue signalling, but it would allow the university to keep some groups happy. Ironically given the new anti-racist context, this is why governments often welcomed judicial involvement in the early days of reform for schools and other institutions post-Brown--they could make the necessary changes, while blaming the courts.

Returning to the UNI case, the president might let the student government decision stand, then recognize SFL once the court orders it to do so; a win-win situation for the university, which keeps a segment of the student body happy while ultimately doing what the Constitution compels.

I heard about the UNI story while thinking about FIU, which has seen two public incidents of students posting social-media videos of them using using racial epithets while singing and dancing. And to hear undergrads tell it, such expression is quite common in the community. Students would like to see the university take action, while the university has recognized what happens if it does. In an interview, a student from FIU's Black Student Union brought up the 2015 case in which the University of Oklahoma expelled two students and revoked a fraternity charter over a viral video. That Oklahoma case is unique in that the students never challenged their expulsions; they (perhaps wisely) accepted the punishment and escaped the limelight rather than trying to become public free-speech martyrs. Oklahoma's actions might serve as precedent that a university could take a stand if it is willing to take its chances in court. On the other hand, I remain convinced that had the students sued, they would have won. A university that follows the OU model thus will encounter one student who sues and the game will be over. The separate question is how many schools would take that path?

To be sure, I am not urging this situation. I hope a university adopts the First Amendment position that ideas, even hateful and offensive ones, are protected and that government cannot engage in viewpoint discrimination. And I hope the university is willing to defend that view in the face of student anger. But there is more than a little wiggle room for those schools that do not. And then what happens?

Posted by Howard Wasserman on November 18, 2020 at 12:42 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, November 17, 2020

Northwestern University Law Review Exclusive Submission Track

 

From the Northwestern University Law Review:

Exclusive Submissions

The Northwestern University Law Review Exclusive Submission Track will open on January 1, 2021 and close January 15, 2021 at 11:59 PM CT. For all Article that have been submitted by January 15, 2021 in accordance with the instructions outlined below, the Law Review guarantees consideration by an Articles Board editor and a final publication decision on or before January 30, 2021.

 

Submission Terms

Participating authors agree to withhold the Article submitted through our Exclusive Submission Track from submission to any other publication until receiving a final decision from the Northwestern University Law Review. Participating authors further agree to accept a binding publication offer, should one be extended.

Submission Procedure

Interested authors must submit Articles to NULR via email, during the submission window, at [email protected].

Anonymized Review

For the Winter 2021 Exclusive Track, the Law Review will be piloting an anonymized review process. Accordingly, to be considered, all authors must fully anonymize their submissions. We ask that each manuscript be stripped of the author’s name, institutional affiliation, and any other identifying information. Additionally, citations using phrases, or supporting phrases above the line, that reference the author’s prior work (e.g., “as I have argued previously” or “in a previous article”) must be redacted to ensure complete anonymity. We will prioritize submissions that comply with these requirements; a failure to submit a properly anonymized manuscript may negatively affect our review. Our review process will be fully anonymized until the Article Board’s final vote.

Submission Requirement

In addition to a completely anonymized manuscript (consistent with the procedure outlined above), we ask authors submit (1) a cover letter that includes your name, Article title, word count, phone number, and email address and (2) a CV or résumé.

Confirmation & Communication

We will confirm receipt of your manuscript via email within 48 hours of submission. If you do not receive confirmation within five (5) days, please email the Editor-in-Chief directly at [email protected]edu. To ensure anonymity, please direct all questions regarding the Exclusive Submission Track to us at [email protected] with the subject line “Exclusive Submission Track.”

Posted by Sarah Lawsky on November 17, 2020 at 10:20 AM in Law Review Review | Permalink | Comments (0)

The New Citizenship Test

A new citizenship test was recently unveiled. Take a look and see how you would do. 

One thing I always find amusing about the tests is that way that the group of acceptable answers is limited. For example, there is a question that says "Name one document that influenced the drafting of the Constitution." Suppose I said "Magna Carta." That is wrong according to the test. Why? I have no idea--it just didn't make the list of correct answers.

Another question that is getting attention is the one about who Senators represent. The old answer was "all of the people of a state." The new answer is"all of the citizens of a state." I'm not clear what this is correct. If a legal permanent resident in a state asks his or her Senator for help, are they not entitled to help? Citizen children don't vote for Senators, but Senators still represent them. Why not legal permanent residents?

Then, of course, there is "How are changes made to the U.S. Constitution?" If I said, "sometimes by the Supreme Court," I would be wrong. Maybe I would just do poorly on the citizenship test.

Posted by Gerard Magliocca on November 17, 2020 at 08:12 AM | Permalink | Comments (5)

Sunday, November 15, 2020

Legal Indeterminacy and Robert Jackson

I've been working with some of Justice Robert Jackson's writings recently. One theme that connects them is his conclusion that the text he is considering is something of a mystery. In his famous concurrence in Youngstown, he explained that there were almost no helpful authorities on the separation of powers between the President and Congress. In developing the Feres doctrine barring members of the military from bringing a negligence action against the United States, he said that he had no idea what Congress intended in the Federal Tort Claims Act for service members. In both cases, Justice Jackson followed up with a pragmatic or policy-based argument to fill the gap.

Jackson's view is very much at odds with modern jurisprudence. Judges and scholars today are much more confident that they can know what a statutory provision means by parsing the text or purpose of the law. Likewise, they are often sure that they know what the original public meaning of a constitutional provision is. Rarely do you see someone write an opinion that says something like "I have no idea what this means, so we need to construct a sensible meaning from other sources." (Richard Posner was probably the closest modern counterpart to Jackson in this respect.) I'm not sure if there is any bigger payoff to this observation, but I'm thinking it over.

 

Posted by Gerard Magliocca on November 15, 2020 at 08:01 PM | Permalink | Comments (7)

Friday, November 13, 2020

Fellowship Opening and Tenure Track Job Opening - Belmont

From Belmont University College of Law, two separate job listings, one for a tenure track position, one for a fellowship:

Hiring Announcement: Belmont University College of Law Tenure-Track Faculty Position

Belmont University College of Law, in Nashville, Tennessee, invites applications from entry level and experienced candidates to fill a tenure-track faculty position.  We are seeking candidates across a broad range of teaching and research areas, starting with the 2021-2022 academic year, with the successful candidate's teaching load including Evidence.  

A successful applicant must have a J.D., strong academic background, and record that indicates the promise of both teaching excellence and high scholarly achievement.  Belmont is an EOE/AA employer and welcomes applications from candidates who may add to the diversity at Belmont College of Law.  Belmont College of Law reserves the right to exercise a preference for those candidates who support the goals and missions of the University. 

If interested, please submit a letter of interest and curriculum vitae to the Chair of the Faculty Recruitment Committee Professor Loren Mulraine at [email protected] or [email protected]

Belmont University is a private, Christian university focusing on academic excellence and is located in the heart of Nashville, one of the fastest growing and most culturally rich cities in the country.  Belmont’s student body of over 8,400 includes students from every state, more than 35 countries, and all faiths.  The Belmont faculty is dedicated to teaching, service, and active engagement in scholarship.  The median LSAT/GPA for the 142 students who entered the law school in August 2019 were 156 and 3.63 (75th percentile: 158 and 3.84; 25th percentile: 153 and 3.28), placing the school well within the top 100 U.S. law schools for quality of applicants.  Belmont’s first-time bar passage rate for the July 2018 and 2019 Tennessee bar exams was 95.8%, one of the highest pass rates in the country, and its employment rate for the 2018 & 2019 classes was 95%.

Hiring Announcement: Belmont University College of Law Fellowship Position

Belmont University College of Law invites applications for a law school fellowship through the Belmont University Fellows Program. Belmont University is a private, Christian university focusing on academic excellence and is located in the heart of Nashville, one of the fastest growing and most culturally rich cities in the country.  Belmont’s student body of over 8,400 includes students from every state, more than 35 countries, and all faiths.  The Belmont faculty is dedicated to teaching, service, and active engagement in scholarship.  The median LSAT/GPA for the one hundred and forty-two students who entered the law school in August 2019 were 156 and 3.63 (75th percentile: 158 and 3.84; 25th percentile: 153 and 3.28), placing the school well within the top 100 U.S. law schools for quality of applicants.  Belmont’s average first-time bar passage rate for the July 2018 and 2019 Tennessee bar exams was 95.8%, one of the highest pass rates in the country, and its average employment rate for the 2018 & 2019 classes was 95%.

The Belmont University Fellows Program provides a unique and valuable opportunity to increase diversity in the legal academy. A successful applicant must have a J.D., strong academic background, and record that indicates the promise of both teaching excellence and high scholarly achievement.  Fellows will be recruited based on their academic and professional accomplishments and will be selected with a focus on under-represented groups in their discipline. This two-year program allows for the Belmont Fellow to be mentored by a Faculty Mentor at Belmont University in the development and delivery of academic courses while engaging in scholarly research. The intent is to help develop the pipeline for faculty to transition from practice into teaching-research positions within academia. Additional, information, including how to apply, can be found at http://www.belmont.edu/academics/faculty-fellows/

Belmont is an EOE/AA employer and welcomes applications from candidates who may add to the diversity at Belmont College of Law.  Belmont College of Law reserves the right to exercise a preference for those candidates who support the goals and missions of the University. Additional questions can be directed to the Chair of the Faculty Recruitment Committee Professor Loren Mulraine at [email protected] or [email protected] 

Posted by Sarah Lawsky on November 13, 2020 at 04:22 PM | Permalink | Comments (0)

Retaliation or Evidence?

A weird case from MD Fla: The owner of an indoor farmer's market, a vocal opponent of masks, sues over enactment and enforcement of a county mask ordinance, in which the market was twice cited for having maskless customers. Among the claims was First Amendment retaliation--that the county singled the business out because the owner has spoken out against masks.

But this seems an odd retaliation case because his speech would appear to justify the county in enforcing against him because it provides evidence of a possible violation. Garden-variety retaliation is the owner of a business criticizes the mayor about something, so the county singles him out for enforcement of general code provisions, unrelated to the speech (e.g., the owner criticizes the mayor's redevelopment plans, so the county sends in the health inspector). But here, the speech that was retaliated against seems to provide cause, or at least evidence, for the enforcement decision. If county officials are trying to determine where to direct enforcement efforts and what businesses might not comply with the mandate, it is is reasonable to infer that the business owned by the outspoken critic of masks might violate the ordinance. It becomes problematic if his is the only business cited. But it is a stretch to claim retaliation that his is one, or even the first one, to be cited.

The case is at the 12(b)(6) stage, so more will be fleshed out later in the case.

Posted by Howard Wasserman on November 13, 2020 at 09:38 AM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Thursday, November 12, 2020

JOTWELL: Levy on Garder and McAlister on nonbinding authority

The new Courts Law essay comes from Marin Levy (Duke), reviewing Maggie Gardner, Dangerous Citations (forthcoming N.Y.U. L. Rev.) and Merritt E. McAlister, Missing Decisions (forthcoming U. Pa. L. Rev.), each addressing different problems related to the use of nonbinding authority.

Posted by Howard Wasserman on November 12, 2020 at 02:23 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 11, 2020

Repeating other's thoughts

As I wrote yesterday, I have not been able to organize my thoughts on everything going on. Fortunately, I agree with everything Benjamin Wittes says at Lawfare.

Meanwhile, we can have fun with hearsay and those who did not pay attention in class:

The Trump campaign also sought to temporarily stop counting some ballots in Detroit. It cited a GOP poll watcher who had said she had been told by an unidentified person that late mail ballots were being predated to before Election Day, so they would be considered valid.

The judge repeatedly asserted this was hearsay, but Trump campaign lawyer Thor Hearne sought to argue that it wasn’t — despite it having been someone who said they heard about something they weren’t personally involved in. He pointed to a vague note the poll watcher produced — which said “entered receive date as 11/2/20 on 11/4/20” — as evidence:

STEPHENS: So I want to make sure I understand you. The affiant is not the person who had knowledge of this. Is that correct?
HEARNE: The affiant had direct firsthand knowledge of the communication with the elections inspector and the document they provided them.
STEPHENS: Okay, which is generally known as hearsay, right?
HEARNE: I would not think that’s hearsay, Your Honor. That’s firsthand personal knowledge by the affiant of what she physically observed. And we included an exhibit which is a physical copy of the note that she was provided.

The two later returned to the point, after Stephens reviewed the note, and Stephens echoed Judge Diamond’s exasperation:

STEPHENS: I’m still trying to understand why this isn’t hearsay.
HEARNE: Well, it’s, it, I –
STEPHENS: I absolutely understand what the affiant says she heard someone say to her. But the truth of the matter … that you’re going for was that there was an illegal act occurring. Because other than that I don’t know what its relevancy is.
HEARNE: Right. I would say, Your Honor, in terms of the hearsay point, this is a firsthand factual statement made by Ms. Connarn, and she has made that statement based on her own firsthand physical evidence and knowledge --
STEPHENS: “I heard somebody else say something.” Tell me why that’s not hearsay. Come on, now.
HEARNE: Well it’s a firsthand statement of her physical –
STEPHENS: It’s an out-of-court statement offered where the truth of the matter is [at-issue], right?

Posted by Howard Wasserman on November 11, 2020 at 04:47 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Job Posting -- Kelley School of Business, Indiana University

The Kelley School of Business at Indiana University is hiring in the business law and ethics department.  They have one tenure-track position and one non-tenure-track position.  Full postings after the jump.

Tenure-Track Posting:

The Kelley School of Business at Indiana University seeks applications for a tenured/tenure-track position in the Department of Business Law and Ethics, effective fall 2021. The candidate selected will join a well-established department of 26 full-time faculty members who teach a variety of courses on legal topics, business ethics, and critical thinking at the undergraduate and graduate levels. It is anticipated that the position will be at the assistant professor rank, though appointment at a higher rank could occur if a selected candidate’s record so warrants.

To be qualified, a candidate must have a J.D. degree (or equivalent terminal law degree) with an excellent academic record and must demonstrate the potential for outstanding teaching and research in law and/or ethics.

We seek applicants with research and teaching interests across a broad and diverse range of law and ethics issues in business. We would be particularly pleased to receive applications from scholars whose research or teaching interests intersect with issues of racial, ethnic, and gender diversity and equity in corporate and work environments (including but not limited to corporate board diversity, civil rights, employment anti-discrimination and anti-harassment, public accommodation, family leave, business and human rights, feminist and/or critical race theory and law/ethics, etc.).

Candidates with appropriate subject-matter expertise and interest would have the opportunity to be involved on the leading edge of a developing collaboration between the Kelley School of Business and the Kinsey Institute, the premier research institute on human sexuality and relationships and a trusted source for evidence-based information on critical issues in sexuality, gender, and reproduction. Such expertise, however, is not required to be qualified and considered for the position.

Interested candidates should review the application requirements and submit their application at http://indiana.peopleadmin.com/postings/10110. Candidates may direct questions to: Professor Josh Perry, Department Chair ([email protected]), or Professor Angie Raymond, Search Committee Chair ([email protected]), both at Department of Business Law and Ethics, Kelley School of Business, Indiana University, 1309 E. 10th Street, Bloomington, IN 47405.

Application materials received by December 13, 2020 will receive full consideration. However, the search will continue until the position(s) is/are filled.

Indiana University is an equal employment and affirmative action employer and a provider of ADA services. All qualified applicants will receive consideration for employment without regard to age, ethnicity, color, race, religion, sex, sexual orientation, gender identity or expression, genetic information, marital status, national origin, disability status or protected veteran status.

 

Non-Tenure-Track Posting:

The Kelley School of Business at Indiana University seeks applications for a full-time, non-tenure-track lecturer position in the Department of Business Law and Ethics, effective fall 2021. The candidate selected will join a well-established department of 26 full-time faculty members who teach a variety of residential and online courses on legal topics, business ethics, and critical thinking at the undergraduate and graduate levels. Lecturers have teaching and service responsibilities, but are not expected to engage in research activities.

To be qualified, a lecturer candidate must have a J.D. degree (or equivalent terminal law degree) with an excellent academic record and must demonstrate the potential to be an outstanding teacher. We value applicants who have a broad and diverse range of interests and experience and a commitment to teaching classes in both the legal environment of business and practical/applied business ethics. We would be especially pleased to hear from applicants whose interests or experience intersect with issues of racial, ethnic, and gender diversity and equity in corporate and work environments (including but not limited to corporate board diversity, civil rights, employment anti-discrimination and anti-harassment, public accommodation, family leave, business and human rights, feminist and/or critical race theory and law/ethics, etc.).

Candidates with appropriate expertise would have the opportunity to be involved on the leading edge of a developing collaboration between the Kelley School of Business and the Kinsey Institute. The Kinsey Institute is the premier research institute on human sexuality and relationships and a trusted source for evidence-based information on critical issues in sexuality, gender, and reproduction. Such expertise, however, is not required to be qualified and considered for this position

Interested candidates should review the application requirements and submit their application at http://indiana.peopleadmin.com/postings/10109. Candidates may direct questions to: Professor Josh Perry, Department Chair ([email protected]) or Professor Arthur Andrew Lopez, Search Committee Chair ([email protected]), all at Department of Business Law and Ethics, Kelley School of Business, Indiana University, 1309 E. 10th Street, Bloomington, IN 47405.

Application materials received by December 13, 2020, will receive full consideration. However, the search will continue until the position(s) is/are filled.

Indiana University is an equal employment and affirmative action employer and a provider of ADA services. All qualified applicants will receive consideration for employment without regard to age, ethnicity, color, race, religion, sex, sexual orientation, gender identity or expression, genetic information, marital status, national origin, disability status or protected veteran status.

Posted by Carissa Byrne Hessick on November 11, 2020 at 03:39 PM in Teaching Law | Permalink | Comments (0)

Tuesday, November 10, 2020

University of Alabama School of Law Hiring Announcement

I'm pleased to provide for my law school this hiring announcement. 

The University of Alabama School of Law seeks to fill as many as two tenure-track positions for the 2021-22 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. The primary focus of these positions is in Contracts and Torts; however, qualified applicants in other areas may be considered. Among our secondary interests are Family Law and Business Law. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

Interested candidates should apply online at https://facultyjobs.ua.edu/postings/47619. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law; the positions remain open until filled. Questions should be directed to Professor Fred Vars, Chair of the Faculty Appointments Committee ([email protected]).

The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases. Follow the link below to find out more.
“EEO is the Law” http://www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf

Posted by Paul Horwitz on November 10, 2020 at 06:15 PM in Paul Horwitz | Permalink | Comments (0)

We Are All Gig Workers Now

The presidential elections have been so important and turbulent that some of the other outcomes have not been a great media focus as they might otherwise have been. In particular, California voted yes on Prop 22, which will keep rideshare app drivers, drivers of Uber, Lyft, Instacart, Grubhub and others independent contractors. This is significant both to California and nationally. I have written several articles about the need for more protections for gig workers, advocating a third way category, the updating of work laws for the platform economy, and the de-linking of certain social welfare benefits from employment. Now I've posted a new article, We Are All Gig Workers Now: Online Platforms, Freelancers and The Battles Over Employment Status and Rights During the COVID-19 Pandemic, San Diego Law Review, Symposium on Law and the Pandemic, https://ssrn.com/abstract=3725090 .

I also spoke to CNBC about the move to remote work and its implications on the labor market, here

Posted by Orly Lobel on November 10, 2020 at 03:35 PM | Permalink | Comments (0)

Annual sports election predictors

I have thoughts on the election, but too jumbled to and disorganized to write in detail. I began with mixed feelings--thrilled that Biden had won, crushed that he will face a GOP Senate that will undermine his presidency at every turn (has any President gone a full term without appointing one judge?). I am concerned and (mostly) surprised that so many GOP officials have gotten on board and are amplifying Trump's nonsense. This allows the Senate to bolster its planned obstruction with a "stolen election" narrative--Biden is an illegitimate president not because people voted against Trump rather than for Biden, but because Biden "won" only because of fraud. The Senate thus does its patriotic duty by not cooperating with this illegitimate official until he can be voted out of office.

So let's look at something lighter: How sports predicted the election.

World Series Was Right: The NL's Dodgers won the World Series, which has meant a Democratic President in 18 of the past 29 elections, 13 of the 19 since the end of World War II, and 5 out of 6 since 2000.

Washington NFL Team Was Wrong: The Washington Professional Football team won its final home game before the election, beating the Dallas Cowboys 25-3 on Sunday, which has predicted the incumbent party retaining the White House in 17 of 21 elections (although wrong the last three). Ironically, Washington beat the team owned by Jerry Jones, Trump's closest friend and political ally among NFL owners and, stories suggest, a big reason why the league reacted as it did to Colin Kaepernick.

Harvard-Yale Will Not Play: The other presidential-election year they did not play was 1944, when a Democrat won.

Ending Sports Droughts: I wrote that this tends to favor Republicans. I am not sure how to categorize this year's election. The Dodgers won their first World Series in 32 years, but I am not sure if that qualifies as historically long when we have almost 120 years of World Series and this is an historic franchise winning its six World championship.

One City/Multiple Champions: The Series had one unique piece of intrigue--the winner would give its city a second 2020 championship. The Dodgers gave Los Angeles its second title, following the Lakers winning the NBA championship. Had the Rays won, they would have given Tampa its second title, following the Lightning winning the Stanley Cup. So this got me thinking about correlations between presidential elections and single-city/multiple-champions. Prior to this year, this had happened in seven presidential elections dating to 1927. The Republican prevailed in six (Hoover in 1928, Eisenhower in 1952, Eisenhower in 1956, H.W. Bush in 1988, W. in 2000,* and W. in 2004), the Democrat in one (Truman in 1948). Biden makes it GOP in 6 out of 8.

[*] The  Yankees won the World Series while the Jersey Devils won the Stanley Cup. Whether to count this depends on how we regard New Jersey sports teams. I leave that question for others.

Posted by Howard Wasserman on November 10, 2020 at 08:58 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (4)

Monday, November 09, 2020

The Electoral Count Act

The way things are going there is a good prospect come January that the formal process of the Electoral Count Act will be invoked for the first time. The Act, which was passed in 1887, provides (basically) that electoral votes cast by a state by a relevant deadline are valid unless both houses of Congress object. There are constitutional questions and statutory ambiguities about the Electoral Count Act that have not been tested in court. In 2000, there were a few members of the House of Representatives who raised objections to Florida's votes, but no Senator joined those objections as the Act requires to trigger the formal process.

Invoking the Electoral Count Act in 2021 would be for show, as both Houses of Congress will not set aside any electoral votes. But it could get pretty ugly.

Posted by Gerard Magliocca on November 9, 2020 at 07:34 PM | Permalink | Comments (2)

Saturday, November 07, 2020

Accurately Describing History

One of my students pointed out something fascinating the other day. The official White House website has brief biographies of each President. Here is part of the Andrew Johnson biography:

Although an honest and honorable man, Andrew Johnson was one of the most unfortunate of Presidents. Arrayed against him were the Radical Republicans in Congress, brilliantly led and ruthless in their tactics. Johnson was no match for them.

This characterization is woefully out of date. The source given is a presidential biography series written about fifteen years ago. The incoming Administration will have many pressing tasks, but one might be to modernize the history on the White House website. 

Posted by Gerard Magliocca on November 7, 2020 at 07:25 PM | Permalink | Comments (2)

Tuesday, November 03, 2020

Happy Election Day

“At the bottom of all the tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a piece of paper—no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point.”

Winston Churchill--1944

Posted by Gerard Magliocca on November 3, 2020 at 08:23 AM | Permalink | Comments (5)