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Wednesday, March 31, 2021

Justice Jackson on Category Two

I want to continue with a line of research that bore fruit in my draft paper on the non-delegation doctrine: Reading the footnotes in Justice Jackson's Youngstown concurrence carefully.

In describing Category Two (the zone of twilight), Jackson said the following: "In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." This sentence was qualified by a note that says, in full:

Since the Constitution implies that the writ of habeas corpus may be suspended in certain circumstances but does not say by whom, President Lincoln asserted and maintained it as an executive function in the face of judicial challenge and doubt. Ex parte Merryman, 17 Fed.Cas. 144, No. 9,487; Ex parte Milligan, 4 Wall. 2, 125, 18 L.Ed. 281; see Ex parte Bollman, 4 Cranch, 75, 101, 2 L.Ed. 554. Congress eventually ratified his action. Habeas Corpus Act of March 3, 1863, 12 Stat. 755. See Hall, Free Speech in War Time, 21 Col.L.Rev. 526. Compare Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, with Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, with the case at bar. Also compare Ex parte Vallandigham, 1 Wall. 243, 17 L.Ed. 589, with Ex parte Milligan, supra.

The first part of the note (on habeas corpus suspension) makes sense. There was no Act of Congress authorizing or forbidding the President from suspending the writ in 1861. President's Lincoln's act was therefore in Category Two and the elected branches hashed that dispute out in the midst of "the imperatives of events and contemporary imponderables."

The second part, though, is harder to understand. In Myers and Humphrey's Executor, for instance, Congress did clearly legislate about the positions at issue. The same was true in Hirabayashi. (Indeed, Jackson also cited Hirabayashi as an example of a Category One case in the footnote that accompanied the Category One passage in the text.) Why, then, are they included in the note? And why is Hirabayashi compared with Youngstown itself? More confusing still, Jackson cited Myers and Humphrey's Executor again in the note for his analysis of Category Three.

One thought is that he was saying that the pairs of cases that he cited could not be logically reconciled. Thus, they must rest on extra-judicial or pragmatic considerations. (For example, the Vallandigham decision rejecting an appeal by a civilian from a military tribunal in Ohio was decided during the Civil War, while Ex Parte Milligan went the opposite way in a case involving a military tribunal from Indiana once was the war was over.) Myers and Humphrey's Executor can also be described as inconsistent (to say the least). I'm not sure what to think about this for Hirabayashi, though, which does seem clearly distinguishable from Youngstown



Posted by Gerard Magliocca on March 31, 2021 at 02:18 PM | Permalink | Comments (3)

Not Nike’s “Satan Shoes:" Is it Trademark Infringement & Dilution? (Updated)

The following guest post is by my FIU colleague Julia Jan Osei-Tutu, who teaches and writes on IP and fashion.

Update, April 2: The district court issued a TRO.

Satan Shoes” are Nike shoes that have been modified by MSCHF. Should one applaud the creativity or is this simply causing mischief and harming the brand?

MSCHF, a New York based company, is marketing and selling a modified Nike AirMax 97 as its “Satan Shoes.” This shoe is a collaboration between MSCHF and Little Nas X, who became well known for his hit song, “Old Town Road” with Billy Ray Cyrus. Lil Nas X is currently promoting his new song “Montero (Call Me By Your Name).” The video for the new song has scenes where Lil Nas X descends to hell and dances with the devil, hence the connection to the satanic theme for the shoe collaboration.

The Satan Shoe has Luke 10:18 written on the front part of the sole, referring to the Bible verse, and 666 near the rear. According to reporting by the New York Times and based on the product description on the website, a drop of human blood from the MSCHF staff members is mixed with ink that fills an air bubble in the Nike Air Max 97. The six hundred and sixty pairs of the shoe that were offered for sale by MSCHF for over $1000.00 per shoe were sold in less than one minute, with one pair remaining for a contest winner.  

Shoe reselling is a lucrative industry, and it is normally not a violation of trademark law to resell those expensive sneakers that you legally purchased. But what happens when the shoe is modified by a third-party and the brand receives a lot of negative public reaction to the customized shoe? Nike filed a complaint, alleging trademark infringement and dilution.

In its complaint, Nike quotes social media posts as evidence of the significant public criticism it received on social media when people assumed that Satan Shoes was a Nike product. Nike asserts that its brand suffered as a result, referencing a call to boycott Nike due to the MSCHF Satan Shoes, which Nike describes as unauthorized and materially altered. Nike seeks an injunction to prevent MSCHF from fulfilling its order for the modified shoe.

 Nike presents a compelling case that the affiliation with demonic imagery is hurting its brand, but is the law really behind Nike? Describing the MSCHF customization, Nike asserts that a “genuine Nike Air Max 97 shoe does not contain any of these customized features.” The customization makes the shoe a new, unauthorized product, according to the Nike complaint. It is worth nothing that the Satan Shoe is not the first modified Nike shoe that MSCHF has sold. MSCHF also sold a customized Nike shoe called “Jesus Shoes” that had “holy water” injected into the soles. Nike did not file suit in relation to the Jesus Shoes, which also sold out.

To establish trademark infringement, Nike needs to demonstrate that there is a likelihood of confusion between its valid trademark and the MSCHF Satan shoe, which also uses the Nike mark since it is a Nike shoe. In evaluating trademark infringement, courts will consider a non-exhaustive list of factors, such as the strength of the brand, the similarity of the marks and products, the intent of the defendant, and evidence of actual confusion, among other factors.  The goal is to ascertain whether consumers are likely to be confused, not whether they are actually confused. However, evidence of actual confusion, which appears to be present here, is helpful to the plaintiff’s case.

There is no question that Nike is a very well-known brand that would be entitled to broad protection. However, the argument for likelihood of confusion at the point of sale is weak because the purchaser knows whether they are buying from Nike or MSCHF. There is possibly some initial interest confusion or post-sale confusion, which Nike also alleges in its complaint, because potential purchasers may think the MSCHF shoe is made by Nike when they see it online or on someone’s feet. Remember that MSCHF is not applying the Nike marks to its own shoe. It is purchasing, customizing and reselling a Nike shoe, which bears the Nike logo.

The public backlash, including the call to boycott Nike for its apparent association with Satan Shoes is relevant to the question of dilution. Dilution is available to famous marks, such as Nike. Dilution by blurring impairs the distinctiveness of a mark and dilution by tarnishment refers to an association arising from the similarity between the marks that harms the reputation of the famous mark. The dilution provision in the federal Trademark statute, the Lanham Act, makes it clear that a successful dilution claim under federal law does not require actual or likely confusion, competition, or economic injury.

Though there is no statutory definition of harm in the statute, courts have tended to find tarnishment in cases where there is some sexual connotation. It is not clear whether simply having the word “Satan” in the title of the shoe, the Biblical references on the shoe, and the human blood injected into the sole of the shoe would be sufficient to amount to tarnishment. While some segment of the population was upset and offended, the shoes seem to have been quite popular, selling out very quickly, and at a price several times higher than the price for the original Nike shoe.

Since it is a resale of a Nike shoe, there may be an argument for trademark exhaustion or first sale doctrine, which provides that the resale of the original article by the first purchaser is neither trademark infringement nor unfair competition. Once a product has been sold by the trademark owner, the purchaser is generally free to resell the product, subject to some limited exceptions. Courts have held that where repackaged products are marked accurately so that the purchaser is put on notice about the source of the product, then there is no infringement or dilution. This is not a case involving repackaging of goods, but if, for instance, it is clear that the modified shoe comes from MSCHF and not directly from Nike, this could be sufficient because the potential confusion would be minimized or eliminated. If it is not clear, this strengthens the argument for infringement and dilution. 

Another exception to the first sale doctrine is the material differences rule, which tends to arise in cases involving parallel imports of goods that are first sold by the trademark owner in another country. However, the rule is not limited to such cases. Goods that are resold are materially different from the original goods if they would affect the consumer decision to purchase the altered product. These differences could be physical differences, such as those contained in the customized shoe. This is a fact specific case by case assessment, which makes it somewhat difficult to predict.

Since the resale of a shoe by the first purchaser is legally permissible, Nike may need to show that the customization of the Satan Shoe has led to material differences between the original shoe and the MSCHF version, thereby causing confusion in the marketplace and diluting the brand. Since Nike has asserted in its complaint that the shoes have been materially altered, this may be part of the Nike strategy.

Ultimately, Lil Nas X’s popular “Montero” single and MSCHF Satan Shoes have successfully launched with significant public attention.

Posted by Howard Wasserman on March 31, 2021 at 11:15 AM in Culture, Intellectual Property | Permalink | Comments (0)

Tuesday, March 30, 2021

Return of Kitty Genovese?

The video-recorded attack on an (unidentified) elderly Asian-American woman in New York is striking two themes: the increase in bias-motivated violence against Asian-Americans and the apathy of the men inside the building who watched the attack on the sidewalk, then closed the door when the attack was over and the woman was lying on the ground. The staff members have been suspended pending an investigation in cooperation with the SEIU; the union says that their current information is that the workers called for help and urged people not to rush to judgment. Meanwhile, video and stills of the attacker have been released and calls are out for information about the identity of the assailant.

The story brings to mind Kitty Genovese, whose 1964 murder wrapped into an inaccurate narrative of bystander apathy that remains 57 years later, even as recent accounts have shown that narrative to be false. That this new (apparent?) apathy was caught on video makes the narrative more powerful and potentially stickier. It is different in two respects. First, it does not allow a complete-apathy narrative, as witnesses say someone on the street (not captured on video) chased the assailant, who pulled a knife before escaping. Second, the apathy is bound up with the anti-Asian narrative. So this is not public apathy, but racist apathy directed at a vulnerable population.

Posted by Howard Wasserman on March 30, 2021 at 06:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tenth Circuit adds to the pantheon of awful qualified-immunity decisions

From the Tenth Circuit, in a case arising from Denver police seizure of a tablet computer from a bystander who filmed police using force against another person. This involves less egregious facts than six hours in a feces-laden cell or stealing coins while executing a warrant.  But it demonstrates how far afield the analysis has gone.

Denver police department told officers in their training that the First Amendment protected the right to record. The officers disregarded express departmental guidelines--that is, they knew their conduct violated the First Amendment as they had been instructed on it. The court said that was irrelevant because: 1) the officers' subjective knowledge of their wrongdoing is irrelevant under Harlow's objective standard and 2) only judicial opinions can clearly establish rights because the Constitution means what the courts say, regardless of any training by the executive department.

This seems wrong for several reasons.

First, the standard that SCOTUS has floated in recent cases is that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." What does that second point mean if it does not allow immunity to be lost when the officer knows the law and still violates it. Second, SCOTUS has looked at departmental guidance in the qualified immunity analysis. In Wilson v. Layne, the Court pointed to US Marshal regulations allowing media ride-alongs and said they could establish the lawfulness of conduct, so long as they were not obviously unconstitutional; it should follow that guidance can establish what is not lawful. In Hope v. Pelzer, the fact use of the hitching post was prohibited by Alabama Bureau of Prisons guidelines helped clearly establish the right, along with not-quite-on-point precedent. And the Third Circuit in Fields v. City of Philadelphia considered the role of departmental policy in clearly establishing a right, although the court there said the regs did not clearly establish the constitutional right because it was not clear that the regs were grounded in the First Amendment as opposed to good policy. Nevertheless, the parties and the court worked on the understanding that departmental policy is part of the analysis. At the same time, of course, the existence of department policy instructing officers allows the city to avoid municipal liability because they had trained their officers on a highly protective version of the First Amendment.

Second, the sort of naked judicial supremacy is unwarranted and unjustified. Yes, executive interpretation will yield to judicial understanding once matters hit court. But the court leaves no room for departmentalist interpretation and training.

Third, the court pulled an interesting sleight-of-hand in looking at law from other circuits circa 2014 (when these events occurred). Four circuits had recognized some First Amendment protection for recording of police pre-2014. A "robust consensus" of non-SCOTUS authority can clearly establish. But the court said none of those courts had found the right clearly established; the court was more persuaded by the non-finding of the right as clearly established (although some cases were not for damages and thus immunity was not in issue) than by the conclusion that the First Amendment was violated. And one of the cases had a dissent (Judge Posner dissented in the Seventh Circuit case), suggesting a disagreement among judges that precludes a right being clearly established.

Fourth, the court bypassed the merits. Why? Because everyone in the case agrees that the First Amendment right to record exists and was violated here. And the constitutional question is best resolved in an adversarial posture featuring powerful arguments on both sides. So not only are these officers are off the hook, this case does not put the next officer on the hook for the same misconduct. And the court may have offered officials a wonderful new strategy in § 1983 cases: Concede the merits, prompting the court to skip ruling on the merits and allowing the officers to prevail because the right is not clearly established for lack of necessary judicial precedent. Of course, the court will never provide that precedent. And if formal government policy cannot clearly establish a right, litigation concessions certainly cannot do so.

A depressing piece of work. I am curious to see if it survives en banc review. Or if this will be the case that prompts reconsideration of this mess.

Posted by Howard Wasserman on March 30, 2021 at 02:38 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Trying and failing to keep standing and merits distinct

The Eighth Circuit offers the latest example, in a First Amendment challenge by vegan food producers and advocates to a Missouri law prohibiting misrepresentations of products as "meat" when not derived from animals.

The majority held the plaintiff had standing but had not shown a likelihood of success on the merits entitling it to a preliminary injunction, while the dissent argued that the action should have been dismissed for lack of standing. But everything turned on the same issue--whether the plaintiffs' proposed conduct violated the law and whether they were likely to have the law enforced against them, given that they did not "misrepresent" their plant-based products as being "meat." The majority said that standing is analyzed under Susan B. Anthony List, which requires a showing that the statute "arguably" reaches the plaintiff's conduct and there exists a "credible" threat of enforcement. But SBA "does no work" beyond standing; the merits of the claim (and the first prong of your injunction analysis) asks whether the plaintiffs' conduct was "likely to be seen" as violating the statute. On the other hand, the dissent took those same facts as not establishing standing.

The majority cited circuit precedent acknowledging that standing "tracks" merits and is "closely bound up" with whether the plaintiff is entitled to relief. But the court insists they are not "coextensive" and must not be "conflate[d]." But if the concepts turn on the same fact, they are doing more than tracking one another. If two judges look at the same fact and one uses it to find the absence of a cause of action and one uses it to find a lack of standing, they begin to sound coextensive. Which raises the question of why courts bother--why spend so much time on standing only to use the same fact to find a failure on the merits.

Posted by Howard Wasserman on March 30, 2021 at 11:34 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, March 29, 2021

Category Two of Youngstown

I think that my next book will be about Justice Jackson's opinion in Youngstown. The title practically writes itself--"Zone of Twilight." My draft article on non-delegation addresses one discovery that I've made about the opinion. More are coming.

Meanwhile, here's a question. Is there any case where a court concluded that the proper framework of analysis is the "zone of twilight" of Category Two? My sense from initial research is that courts always find a way to say that their case falls with Category One of Category Three. Probably because they do not want to be in the zone of twilight at all. But am I wrong about the lack of Category Two cases?

Posted by Gerard Magliocca on March 29, 2021 at 10:53 AM | Permalink | Comments (2)

Saturday, March 27, 2021

Court finds personal jurisdiction in Ford

SCOTUS decided Ford on Thursday, with all Justices agreeing that jurisdiction was proper. Kagan wrote for five (Chief, Breyer, Sotomayor, Kavanaugh); Alito concurred in the judgment; Gorsuch, joined by Thomas, concurred in the judgment. My SCOTUSBlog analysis is here.Kagan's opinion makes for a good teaching case, with a nice overview and summary of the doctrine (I am going back and forth about whether to use this instead of WW--I have a week to decide). On the relatedness question, Kagan concludes that a claim can "arise out of" the defendant's minimum contacts or it can "relate to" the defendant's minimum contacts; the former suggests causation, while the latter can looks for "an affiliation between the forum and the underlying controversy, principally, [an] activity or occurrence that takes place in the forum State and is therefore subject to the State’s regulation." Relate to contemplates relationships lacking that causal showing. This is where Alito jumped off. Arise out of and relate to mean the same thing and both require some causation, which was present here. Gorusch and Thomas question the entire International Shoe framework, without identifying what might replace it.
The case leaves many unanswered questions.

What is the status of the reasonableness factors that are supposed to be the third step in the analysis? The Court has not mentioned or relied on them in any recent case. But they should control the result in the local-company hypos in FN 4 of Kagan's opinion (about a retiree wood-carver in Maine) and in Breyer's Nicastro concurrence (about Kenyan coffee producers); the defendant had contacts and the contacts gav rise, but it would be unreasonable to drag these small defendants to distant forums. Kagan alludes to considerations such as fairness  to the defendant and notice to the defendant and the competing interests of the forum state and other states in adjudicating, but appears to bury them in the first two prongs, rather than leaving them as a third step.

What else would satisfy relate to but not arise under? Some courts or judges have argued that relate to allows a longer causal chain, while arise under looks for  a transactional connection. For example, in Clemens v. McNamee (Roger Clemens' defamation suit against the former trainer who narced him out to the Mitchell Commission), the dissent argued that McNamee had contacts with Texas through his training activities in Texas (he traveled there 30+ times) and that those contacts "related to" Clemens' defamation claim because the Texas-based training put McNamee in a position to know about Clemens' PED use. Brennan made a similar move in his Helicol dissent--all the contracts and preliminaries for the relationship with Helicol were negotiated and entered into Texas, contacts that made the deal, and thus the accident, possible. Would the same majority endorse those views?

There has been some interesting discussion on the Civ Pro Profs List of what must be "related" for the second prong. Is it a relationship between the defendant's contacts and the claim and the forum? Or between the plaintiff's claim and the forum? Or some combination of the two.

Posted by Howard Wasserman on March 27, 2021 at 03:42 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, March 26, 2021

Playing baseball on Shabbat

In an early draft of my article on Jewish players and Yom Kippur, I included a discussion of "why Yom Kippur," among all other parts of the Hebrew calendar. In particular Shabbat, which, Armin Rosen argued in the essay that started me down this path, is more sacred than either of the High Holy Days. I considered what might happen if a player would not play on Shabbat--at a minimum, it raises practical difficulties for a non-pitcher to have to know he must miss 36 games (22 % of the games) before the season even begins. At the same time, I think a team could and would accommodate that player--especially a star--to its financial benefit. (I pulled this section for length, although I may try to do something with it as a stand-alone piece).

A number of publications and people are telling the story of Elie Kligman. Kligman is a high-school senior from Las Vegas, pitcher and power-hitting infielder who is transitioning to catching; he is ranked as the 14th-best high school player in the state. He also is Shomer and has never played on Friday nights or Saturdays; most leagues and tournaments have accommodated him, at the urging of his lawyer/agent father. Kligman is talking about playing big-time college baseball and hopes to make the Majors. And he is already talking about not playing on Shabbat if he gets there. Part of the reason he is switching positions is that catchers often get at least one day off each week because of the physical toll; his day off could be Shabbat.

Before getting too excited about the next "Mickey Mantle bred on blintzes and gefilte fish" (as was written about 1970s slugger Mike "Super Jew" Epstein), I want to know more about just how good he is. Who is recruiting him and how good a prospect is he? The story says there are a "handful" of college coaches interested in him, but will not say who or what level. A scout says he could make an "impact" for a Power-5 conference team in a year or two. And a statement such as this--"Based on talent and desire, Kligman is good enough to realistically entertain his dream of playing Major League Baseball, or at least top level college ball"--means nothing. Top-level college baseball is roughly equivalent to high-A minors, a long way from The Show.

Like every other Jewish baseball fan, I want this story to be true and I hope Kligman makes it and 5-10 years from now I can write about his team switching their Friday home games to 2:15 starts. But at the moment, the story about his MLB prospects is, at best, incomplete.

Story published just in time for Shabbat.

Posted by Howard Wasserman on March 26, 2021 at 05:33 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Wednesday, March 24, 2021

JOTWELL: Kalajdzic on Salib on AI class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor) reviewing Peter Salib, Artificially Intelligent Class Actions, ___ Tex. L. Rev. ___ (forthcoming), which explores how AI might be used in class-action certification.

Posted by Howard Wasserman on March 24, 2021 at 08:48 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Congressman Brooks and Section Three of the 14th Amendment

Representative Mo Brooks of Alabama recently announced that he will run for the Senate in 2022. His campaign could create the first test of how the courts will address ineligibility claims under Section Three of the Fourteenth Amendment. Congressman Brooks spoke at the rally preceding the January 6th riot and said some incendiary things. I'm not convinced that Representative Brooks was "engaged in insurrection," but more facts could come out that would change my mind.

Consider, though, the very formidable problems involved in getting a court to consider this question at all. Will the Alabama election authorities decide on their own that Brooks is ineligible for the primary ballot? Very unlikely. Will any of his primary opponents make a Section Three challenge? Not if they want to win, as it's hard to see how challenging Brooks is a vote-winner. Maybe a fringe candidate with no chance of winning the primary would be willing to sue, but would there be standing for such a candidate? Hard to say.

If Brooks wins the primary next year, then his Democratic opponent would probably challenge his eligibility and might well have standing. But then that means the courts would need to resolve the issue between the GOP primary and November 2022. That's a short timeframe, which is not ideal. Now let's say Brooks wins. What if the Senate is controlled by Democrats in 2023 and they decide not to seat him?

All of this just repeats a point I've made  before, which is that Congress should take up H.R. 1405 (the Section Three enforcement bill) to create a clear framework for these sorts of challenges before the next election cycle begins.

Posted by Gerard Magliocca on March 24, 2021 at 01:40 PM | Permalink | Comments (13)

Tuesday, March 23, 2021

Apocryphal Stories About the Constitution

For a project that I'm considering, I'm trying to think of the most famous apocryphal stories in constitutional law. Here are examples.

  1. "John Marshall has made his decision. Now let him enforce it." Andrew Jackson never said this. The story was first told after the Civil War (apparently by Horace Greeley, though I'm not certain whether it was him.)
  2. George Washington telling Madison that the Senate was like a saucer that cooled decisions from the House. He never said that either. The story was first told after the Civil War.
  3. There was no official Supreme Court portrait one year because Justice McReynolds refused to stand or sit next to Justice Brandeis. False--a recent article in the Supreme Court Historical Society thoroughly debunked this. The story was apparently invented by a scholar in the 1940s.

I would be grateful for other examples.


Here is one more--Benjamin Franklin telling Eliza Powel: "A Republic Madam, if you can keep it" after the Constitutional Convention. 

Posted by Gerard Magliocca on March 23, 2021 at 11:27 AM | Permalink | Comments (14)

Sponsored Post: Critical Race Theory Across the Curriculium

The follow post is by Dorothy A. Brown (Emory) and is sponsored by West Academic.

West Academic Publishing and I have embarked on a new initiative for the upcoming 2021-2022 academic year. For the first time, we are making individual chapters of my Critical Race Theory: Cases, Materials, and Problems (3rd edition) available for adoption.

Why should you talk about systemic racism and the law in your classes? Because you have students who have experienced societal racism and others who are now aware of it and they approach class discussions differently. When race is a factor and the professor doesn’t bring it up, instead of engaging doctrine they are engaging their rage. Learning has stopped. Engaging racism and the law is what is required in a truly inclusive classroom.

The chapters available for the 2021-2022 academic year include: Torts; Contracts; Criminal Procedure; Criminal Law and Sentencing; Property; and Civil Procedure. In subsequent academic years, (perhaps as early as the Spring of 2022) we hope to bring forward additional chapters on popular upper-level courses and for those, I am seeking co-authors. If that’s you, please reach out to me at Emory Law.

Each chapter will have a brief introduction to Critical Race Theory and will come with a separate Teacher’s Manual which will include my tips on teaching systemic racism in law school classrooms. Some key points: prepare the students to have a conversation about race – don’t just hit them with it because you thought it was a good idea that day! Prepare them with your syllabus, your casebook selection, and your first class. I also discuss my 2-10-20 method which suggests, especially for those of you with less experience about this endeavor, to spend no more than 2 minutes the first time you talk about race. Everybody can talk about it for 2 minutes! Then when you have successfully done that, you can do it again, but longer the next time, until you wind up having productive conversations with your students.

Contact your West Academic Account Manager to learn more.

Posted by Howard Wasserman on March 23, 2021 at 10:17 AM in Sponsored Announcements | Permalink | Comments (0)

Monday, March 22, 2021

Levin Center at Wayne Law - Congressional Oversight Fellowship - 2021-2022

Scholars interested in congressional oversight research may apply for a new fellowship program established by the Levin Center at Wayne Law.  Applications will be accepted until the position is filled.
In its inaugural year, the Levin Center Fellowship offers $22,000 as supplemental support to allow a twelve-month, non-resident scholar – including a post-doctoral student or early career professor – to research and produce a scholarly paper related to conducting an overview of congressional oversight databases, defining and measuring effective oversight by Congress, and exploring how to score effective oversight efforts by individual members of Congress, congressional committees, or Congress as a whole.  There are no teaching obligations.
The Fellowship provides an outstanding opportunity for collaboration with the Levin Center team, a group of professionals based in Detroit, Michigan and Washington, D.C. with significant oversight expertise and experience conducting oversight-related activities.
Fellowship funding is provided by the Sunwater Institute, a nonprofit think tank dedicated to exploring fundamental ideas that advance liberty, knowledge, opportunity, and power for individuals and society. Any scoring system designed by a Levin Center Fellow could become a feature of the Sunwater platform under development to evaluate congressional performance.
A selection committee established by the Levin Center will review applications beginning immediately, with a goal of finalizing the selection decision by April 30, 2021.  The Fellow’s final paper must be submitted within twelve months of appointment.
Those interested can apply at this link.

Posted by Sarah Lawsky on March 22, 2021 at 04:46 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Sunday, March 21, 2021

Qualified immunity, inconsistency, and level of generality

A practical problem with qualified immunity is its inconsistency. This is especially true with respect to the level of generality at which a right is defined, which often determines whether a right is clearly established--the broader the level of generality, the more likely that precedent, created on different facts, can clearly establish. Case in point: The District of New Mexico holding that it was clearly established in 2019 or 2020 that a local elected official violates the First Amendment by blocking people from their private Facebook page.

At first glance, this seems impossible. SCOTUS has never addressed this, nor has the Tenth Circuit (which includes New Mexico). The two appellate decisions holding that the First Amendment prevents government officials from blocking people on social media--the Second Circuit in Knight Foundation and the Fourth Circuit  in Davison--came in 2019. That is not a "robust consensus" of lower-court of precedent. But the court did not look for such factual specificity. Rather, the rights at issue were to be free from viewpoint discrimination in online spaces used as "metaphysical" public fora and from viewpoint-based retaliation in those public forums.

This stands in sharp contrast to the typical approach. Even outside the absurd cases ("precedent saying it is unlawful to steal drugs during a search does not clearly establish that it is unlawful to steal coins during a search"), courts look for at least some factual similarity beyond general free-speech principles. An official blocking a user from her private page, while leaving that person otherwise free to say whatever he wants wherever he wants, is a far cry from a state banning individuals from all social media.

Perhaps this is how things should be. If qualified immunity must remain, perhaps courts should think about rights more broadly and in a less fact-bound way. But it is out of step with current immunity doctrine, including from the Tenth Circuit, that "viewpoint discrimination" is not a sufficiently specific right.

Posted by Howard Wasserman on March 21, 2021 at 03:11 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, March 19, 2021

Draft Paper on Robert Jackson's Non-Delegation Doctrine

My newest paper can be found here

Posted by Gerard Magliocca on March 19, 2021 at 10:07 AM | Permalink | Comments (0)

Thursday, March 18, 2021

SCOTUS March Madness

SCOTUSBlog is running a 16-person bracket for greatest Supreme Court Justice. Marshall, Holmes, Warren, and Scalia are the top seeds. Frankfurter is 15th seed, which seem bizarre. Here is the methodology. Based on results so far, it looks like recency bias and liberal bias may prevail, with a touch of groundbreaking bias thrown in. As of this moment, the only close match-ups are the 5-12 between Brennan and Ginsburg and the 6-11 between Black and Rehnquist.

Vote early, vote often (Round 1 closes this Sunday).

Posted by Howard Wasserman on March 18, 2021 at 05:55 PM in Howard Wasserman | Permalink | Comments (2)

Civ Pro: No Coke, Pepsi

Two fun things in recent Civ Pro classes.

First, I taught Scott v. Harris today. For the first time, not one student took the position that the video might support the plaintiff and show that the use of force was unreasonable. Maybe everyone who took that position had her camera and did not feel like doing hand-raise. But I was surprised.

Second,we Discovery last week, with a group argument over Coca-Bottling v. Coca-Cola, a dispute over discoverability of the formula for Coca Cola (what is now Classic) and the discovery and sanctions order coming from that dispute. But then, because I could not resist and believe I should impose my pop-culture preferences on them as much as the other way around:

Posted by Howard Wasserman on March 18, 2021 at 01:48 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, March 17, 2021

Death of Garamond

Saddened by this news of the DC Circuit encouraging certain typefaces in briefs, thus discouraging those not mentioned, including Garamond. I began using Garamond for everything about 7-8 years ago, after reading about a study showing how much paper the government would save if all government documents were in Garamond 12-point.

Posted by Howard Wasserman on March 17, 2021 at 01:52 PM | Permalink | Comments (0)

Tuesday, March 16, 2021

Drake Law School - Visiting Position Fall 2021/2021-2022

Drake University Law School invites applications for a temporary appointment as Fall semester or full year Visiting Assistant/Associate/Professor of Law for academic year 2012-22.  Course assignments will include Criminal Law and Criminal Procedure - Investigation in Fall Semester 2021; Evidence/Crim Pro in Spring for full academic year visit. Currently, the Law School plans for these classes to be offered in an in-person format rather than remotely, subject to health and safety considerations, and candidates should be willing and available to teach in either format. Drake is an equal opportunity employer dedicated to workforce diversity. We strongly encourage women, people of color, and others who would enrich the diversity of our academic community to apply. For more information on the law school and its programs, see www.drake.edu/law. Interested candidates should submit a letter of interest, CV, and a list of at least three references via email to Associate Dean Andrew W. Jurs, [email protected]. Applications will be reviewed on a rolling basis, with a priority deadline of March 31, 2021. 

Posted by Sarah Lawsky on March 16, 2021 at 03:21 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Testing the Ainge Curse

BYU has a school policy against playing games on Sunday, grounded in LDS religious obligations. In 2003, the NCAA Basketball Tournament Selection Committee put BYU in a bracket space that required it to play a potential second-weekend game on a Sunday. The NCAA pledged not to let that happen again. But it did it again this year. BYU is the 6th seed in the East Region, which is scheduled to play on Sunday/Tuesday; the Midwest Region is scheduled to play on Saturday/Monday. If BYU reaches the Sweet Sixteen, the East and Midwest will switch schedules. Because fans will not be present and teams are bubbled and not traveling, the switch is administratively easy and can remain contingent until we see the results of the first weekend. (H/T: Josh Blackman)

Last year, Yeshiva University's men's team made the D-III tournament. It played at 2 p.m. Friday, with the host school knowing the team had to leave the gym by 5 for a 5:46 Shabbat, then at 8:45 p.m. Saturday.

Posted by Howard Wasserman on March 16, 2021 at 02:42 PM in Howard Wasserman, Sports | Permalink | Comments (0)

One Irony and One Tension on "wrong for faculty to be thinking"

I do not have the full correspondence that Eugene Volokh had with a Georgetown Law faculty member concerning the dismissal of one adjunct faculty member there and the placement of another on administrative leave. I do not know the identity of Eugene's correspondent (understandably enough), nor all the nuances of the full correspondence. That has made me reluctant to comment on the startling quote from the correspondence that appears in Eugene's post: that it is "wrong for faculty to be thinking—not just speaking—along those lines, because it will tend to create the very facts that it purports to describe." (Emphasis added.) The background topic does not necessarily encourage candid or public discussion, notwithstanding the fact that tenure and responsibility for one's academic discipline make candid and public discussion a duty and a well-protected one. Nor am I sure that the word "Thoughtcrime" in the title of Eugene's post helps to encourage that discussion, whether it is accurate or not; arresting language is powerful but can be, well, arresting.

All that said, I cannot help but add two observations. First, we recently had a couple of posts here about a lovely exchange between Mark Tushnet and Michael Seidman discussing their experience in law teaching. In that exchange, as Rick noted in his post, Seidman expressed discomfort over the sectarian nature of Georgetown as an institution, saying that "Georgetown Law Center is a nominally Catholic institution and one aspect of the residual Catholicism there is the notion that we're educating the whole person. Frankly, that gives me the creeps." He continues by asserting that universities have a "very limited function" or jurisdiction, and that "an educational institution that is concerned about the whole person risks totalitarianism."

Like Tushnet, I think there is room for more institutional pluralism than that--that there is room for universities that "care about the whole person." But I should like to note an irony here. Seidman is likely right that Georgetown is more "nominally" than deeply Catholic in its approach, and I'm sure many people there do not think of it as an especially sectarian institution. And yet, if the "wrong to be thinking" quote that Eugene offers is accurate, if it is shared by other faculty or students, and if it is reflected in the administration's actions (and they are not simply a university exhibiting the modern consumerist tendency to do what it has to do to fend off bad publicity and placate fee-paying stakeholders), it would be hard to imagine a more sectarian position. It is true that the quote offers a lightly consequentialist justification for objecting to faculty "thinking--not just speaking--along those lines." But at that level of abstraction and of intrusion, the idea that the wrong thought leads to the wrong world is surely deeply sectarian in nature, in effect if not in intent and perhaps both. It might not be the sect Georgetown started out with--it is actually closer to Puritanism--but it is sectarian just the same. The argument that some modern movements and sentiments are effectively religious or serve as a substitute for religion has at this point moved from insight to bumper sticker slogan. But this would be one case in which the bumper sticker seems to stick pretty well.

The second point is that I detect in some of the academic commentary (or lack of it) a sense that things are different in this case because the affected teachers are "merely" adjuncts. It is true that adjunct professors do not enjoy the protections of tenure. It is also true that many have argued that the "deprofessionalization" or "adjunctification" of the university poses dangers to academic freedom as a general institutional duty. But one can at least observe that the movement in law schools for some time with respect to another, previously contract-based sector of the law school faculty--clinical and legal writing professors--has been that they should be put on the tenure track and given equal status with doctrinal, tenure-track faculty. There is, I think, some tension between that and a view that what would be a controversy in the case of a tenure-track faculty member is much less consequential if it involves adjunct faculty. Whatever else one thinks of their status, one would think that one who has made arguments for expanding the professional status of teaching members of a law school should believe either that the "thinking" of adjunct faculty should be as protected as that of any other teacher (or student) at a university--or that wrong "thinking" ought to be unprotected for everyone, tenured professors included. I hope many more members of the broader university community share the first view than the second. But I'm not sure that's so.      

Posted by Paul Horwitz on March 16, 2021 at 11:29 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, March 11, 2021

Zombie revivals

Michael Dorf writes about a new Arkansas law that bans all abortions except to save the life of the woman in the case of a medical emergency. Dorf wonders why Arkansas (or any other state) does this rather than attempting to enforce an existing law. He argues it is partly political--current legislators and the current governor want the political trophy of such a law, as opposed to give the attorney general the glory of new enforcement. There also is the problem that Arkansas or another state may be under an injunction not to enforce the existing laws, so the new law is necessary to create a new enforcement opportunity. Alternatively, the AG would have to ask the district court to lift the injunction, which may be difficult when done in anticipation of SCOTUS overruling precedent.

Some good thoughts here that I want to incorporate into my Zombie Laws paper.

Posted by Howard Wasserman on March 11, 2021 at 04:11 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Twiqbal and voting

I  doubt I am in the first person to draw this connection, but here goes:

The political group(s) pushing to restrict voting rights are the same group(s) who seek to restrict access to courts and to civil justice. The real reasons for restricting access are the same--the people they want to win will not win if there is broad access (Republican candidates v. governments/businesses/persons who engage in certain types of wrongdoing). But they cannot acknowledge those real reasons. So they create evidence-free arguments equating expanded access with abuse of the system (massive voter fraud  producing an incorrect, inaccurate winner v. frivolous litigation with burdensome and disproportionate discovery hurting innocent companies and producing coerced or inaccurate judgments).

Posted by Howard Wasserman on March 11, 2021 at 08:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, March 10, 2021

Writing, Thinking, "Debating," and That Other Medium

At his Leiter Reports blog, Brian Leiter links to this short post by philosopher Charlie Huenemann on the "twilight of the idols of good writing." He laments the decline of "nuanced and disciplined" writing and the resultant increase in "shorter attention spans and shallower content." Naturally, he finds Twitter to be "the emblem of both results." Although I am biased because I am temperamentally ill-suited to Twitter and have ambivalent or negative views on late-capitalist culture, ceaseless self-promotion, and political polarization as a kind of hobby--the implicit ultimate object of most of the twits I read when I visited that site, including (especially including?) those by writers and academics--I find little reason to disagree with his general point, albeit it's one you've read before. (I grant that one-liners and "what a cute cat!" might be perfectly suited for the medium.)

I thought two things were worth emphasizing about the post. Huenemann does a nice job of discussing the connection between good writing and good thinking:

All in all, writing matters less. To my old school way of thinking, this means thinking and reading also matter less. I once heard Jonathan Bennett opine that there are no purely stylistic difficulties; every problem in expression betokens a failure to have thought all the way through what one wants to say. If we are more lax in our expectations for our writing and the writing of others, this means expecting less in thinking and reading. Good writing is mental discipline, and that discipline carries over, or fails to carry over, into all attempts to process content.

Perhaps this is truer for some forms of writing than others, but I think it is generally true. One reason I stole (from Professor Vincent Blasi) the "close reading" or "response paper" assignment I offer in many of my classes, in addition to my objection to hundred percent finals, and made sure that it was not of indefinite length, is that editing and deleting are essential exercises in writing and thinking. (I know, I know. Do as I say, not as I do.) Getting rid of what you don't really need is a fundamental part of figuring out exactly what you mean to say and what isn't necessary. Forcing students to concentrate their argument also forces them to think about that argument. Finally, it forces them to think about what kind of argument they can make well in a given amount of space and what would require more. (Thus, the end-point is not "If it's good to say something in as little space as possible, it must be even better to do it in 280 characters." A worthwhile idea should be communicated in as much length as it needs--no more, but no less. An idea that can be communicated in 280 characters or, not infrequently, an op-ed is often an idea not worth having, let alone sharing.)

I have only one quarrel with Huenemann, which is that he feels the need to add that the style of writing he teaches has "bankable career benefits." The thing is a good in itself and that is sufficient ground to argue for it and insist on it. If it becomes the case that writing short-form foolishness takes on more cash value than writing well, Huenemann will still be right and the fault will be that of society and the market. (More likely, I think, is that some people will master both, switch as necessary, and do very well by it financially, even as they champion the foolish style and call the thoughtful one outmoded, and that those who have failed to master or not even been taught Huenemann's style of writing and thinking will find themselves at a further disadvantage in a society stratified by education and elitism.)

I would suggest a second point as a variation on the theme of Huenemann's post, one not raised by him. He is right that thinking and writing are closely, inextricably connected. What about debating? Twitter is well-suited to a particular set of forensic debating toolswhich can be used in that short space. Yet it is still a moronic place, and even (especially?) skillfully wielded debating points by ostensibly intelligent people are as likely to lower as to raise the discourse and to obscure rather than clarify any real understanding of the issue. It may be that law professors, who (in my view) overvalue debating skills and their own debating experience earlier in life, like Twitter in part for that reason. (Although I suspect that capitalism, self-promotion, and politics-as-hobby still have more to do with it.) To my mind, Twitter also reminds us that while writing and thinking may be the same, thinking and and arguing are not the same as debating, that forensic skill is not serious thought, that it is dangerous to mistake one for the other, and that our culture has indeed developed the perilous habit of making just that mistake.      



Posted by Paul Horwitz on March 10, 2021 at 01:18 PM in Paul Horwitz | Permalink | Comments (0)

Stupidity, racism, and apologies (Updated)

Meyers Leonard, a back-up big man for the Miami Heat who has missed most of this season with a shoulder injury, was playing Call of Duty on a live Twitch and trash-talked a fellow player as a "fucking kike bitch." He has lost a bunch of gaming sponsors and will be "away from" the team "indefinitely." Leonard apologized, in a pretty unqualified manner, albeit with a touch of "[t]his is not a proper representation of who I am." But I want to unpack some pieces of his statement.

• "I didn't know what the word meant at the time" and he was "ignoran[t] about its history and how offensive it is to the Jewish community." He is "more aware of its meaning."

    What does this mean? If he is saying he did not know it was an anti-Jewish slur, I find that hard to believe. While not as common as other slurs and epithets, I would think people would know of the central anti-Jewish slur (I have never been called a kike to my face, but I know about the word). Has he never seen Porky's (dating myself, I know)?

    What did he think the word meant? He understood it as an insult, a pejorative adjective that he could squeeze between a pejorative adverb and an insulting noun. He used it with the intent to form an insult, albeit a playful one in the course of gaming trash-talk. Did he think he was using a made-up word or a random word he had just heard somewhere? Then how did he know it was insulting? Did he know the word was insulting, but not know towards whom the word was insulting? Did he think it was some cool-sounding word to use for trash talk? (Update: I will repeat a point I have seen elsewhere from several people that I think makes a similar point: The word was in his vocabulary. It kind of beggars belief to say that he did not know the meaning of a word he had at his disposal as an insult)

    Or is he saying that he knew the word was insulting, but did not know its history or origins? In which case, I do not care. No one is actually sure of the word's history or origins. The leading theory (attributed to Leo Rosten) is it came from the Yiddish word for "circle" (kikel) or "little circle" (kikeleh) and the practice of Jewish immigrants signing papers with a circle (rather than an X). Another is that it was a derogatory reference (begun by established German-Jewish immigrants) to newer Eastern-European-Jewish immigrants whose names often ended in -ki or -ky (e.g., Meier Suchowlański or Meyer Lansky, as he was sometimes called). Either way, knowledge (or lack of knowledge) of a slur's etymology is cute misdirection that should not distract. Using a slur is using  a slur, whether you know where it came from; you are not immunized in using the slur if you are unclear of its origins, because it remains a slur. The question is whether he knew it was anti-Jewish, regardless of where it comes from. Which returns to the prior paragraph and what he thought the term means--that is, what kind of fucking bitch was he talking about there?

• "I am committed to seeking out people who can help educate me about this type of hate and how we can fight it."

    Here is all the education he needs: Don't use anti-Jewish epithets. It is unnecessary for Meyers Leonard to learn about the thousands-of-years-long history of anti-Jewish hatred or to advocate against anti-Jewish bigotry. I do not really care if he is Judenhaas or what he thinks and says in his heart or what causes he supports or opposes. If he does not want to be a pariah and wants to continue earning almost $ 1 million per point (Meyers makes $ 9.4 million and had scored 10 points in 3 games prior to his injury), he should try to refrain from using slurs in a public forum that he set up. The rest is up to him.

•  Leonard did not kneel during the national anthem in the NBA Bubble last season. He tried to thread the needle with the usual tropes about supporting the cause but not disrespecting the flag and the military (his brother is in the military). But some of this conversation is recalling that, running along the lines of "see, he showed you who he was and what he believed last season when he refused to join his teammates in kneeling during the anthem, this is more of the same."

    I am troubled by that progression. It is a leap from not engaging in a particular protest against racist policing to the conclusion that he opposes or is antagonistic to that cause to the conclusion that he is a racist who supports racist policing. Maybe he is, maybe he isn't. But refusing to participate in one expressive activity is not revealing of broader views, certainly not in the same way as using an epithet. It smacks too much of "if you do not support my cause in my chosen way, you are opposed to my cause."

I hope this will be the last time I write about Meyers Leonard.

Update: Julian Edelman, who has become the most outspoken Jewish athlete, penned an open letter to Leonard inviting Leonard to a Shabbat dinner and warning of the dangers of casual ignorance about hate and epithets.

Posted by Howard Wasserman on March 10, 2021 at 11:49 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

10+1 Questions: A New Talk Show about Academic Life

Law professors Sofia Ranchordás (Groningen University) and Volker Stockerhttps (German Internet Institute, Berlin) have a new talk show about life in academia. They ask their guests questions about their career paths, their research choices, work-family balance, and what you would do if you weren't an academic.

I had the pleasure of being their second guest and here is the trailer - full episode coming out this friday.


Posted by Orly Lobel on March 10, 2021 at 10:57 AM | Permalink | Comments (0)

Tuesday, March 09, 2021

The Proper Characterization of Jackson's Youngstown Concurrence

I took a blogging breather after the frenzy of January and February. Now I'm busy finishing up my draft on Robert Jackson's understanding of the non-delegation doctrine. If all goes well, I'll have the draft ready at the end of March. Let me make one observation now though.

Jackson's Youngstown concurrence is often cited as the ur-text for a functional or flexible view of separation of powers. To take a recent example, Justice Kagan's dissent in Selia Law quoted Jackson's line that "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government" and the said: "The Framers took pains to craft a document that allow the structures of governance to change, as times and needs change."

But this understanding of Youngstown is oversimplified. The fact that Jackson believed in the non-delegation doctrine when power was delegated to the President himself means that he was not just saying that any established power-sharing arrangement between Congress and the President was fine. This misunderstanding is, though, understandable given the lack of attention paid until now about his views on non-delegation.

Posted by Gerard Magliocca on March 9, 2021 at 01:21 PM | Permalink | Comments (7)

Parler v. Amazon Web Services: Defamation & the Promotion of Violence in Social Media

Parler v. Amazon Web Services presents some intriguing issues concerning the role of social media in fomenting violence, the market power of Amazon and its web services to suppress speech businesses, and the continued controversy over who is and who is not a public figure. See Parler v. Amazon, Complaint, CASE #: 21-2-02856-6 SEA (Sup. Ct. Wash., Mar. 2, 2021); Parler v. Amazon Web Services, CASE NO. 2:21-cv-0031-BJR, Order Denying Motion for Preliminary Injunction (W.D. Wash. Jan 21, 2021).

Amazon Web Services indefinitely suspended the social media company Parler from its site a few days after the riots at the U.S. Capitol on January 6, contending that “Parler was used to incite, organize, and coordinate the Janary 6 attack on the U.S. Capitol.”

Shortly after being suspended, Parler sought an injunction against AWS in federal district court in the state of Washington. Parler, which describes itself as a “conservative microblogging alternative and competitor to Twitter” and Facebook, asserted that AWS was using its market power to disable a potential competitor and claimed that AWS had engaged in conspiracy in restraint of trade, breach of contract, and tortious interference with business expectancy. AWS countered that Parler’s inadequate moderation of its site violated AWS’s Acceptable Use Policy, which prohibits “illegal, harmful, or offensive” use or content. AWS also contended that Parler was in breach of its Customer Service Agreement, which justified AWS in suspending Parler. The federal district court denied Parler’s motion, finding that Parler had failed to show a likelihood of success on the merits of its claim. The judge concluded that Parler supplied no evidence of any conspiracy in restraint of trade, and Parler’s breach of its agreement with AWS and the Acceptable Use Policy made Parler’s breach of contract suit unlikely to succeed. Similarly, Parler’s breach also made its tortious interference claim weak. Evaluating the balance of hardships in the case, the court stated: “AWS has convincingly argued that forcing it to host Parler’s users’ violent content would interfere with AWS’s ability to prevent its services from being used to promote—and, as the events of January 6, 2021 have demonstrated, even cause—violence.” The court further held that the public interest did not support granting an injunction forcing AWS to host the incendiary speech that some of Parler’s users engaged in, opining that the riots at the Capitol “was a tragic reminder that inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a lawful protest into a violent insurrection.”

Parler was off the internet for more than a month while it tried to find replacement web services. On March 2nd, 2021 Parler filed suit against Amazon Web Services and Amazon.com in state court in Washington. In its complaint, Parler insisted that AWS’s suspension was motivated by a desire to eliminate the threat Parler poses to “surveillance capitalism” because it does not sell user data. The complaint recounts instances of violence-promoting content appearing on Amazon, Twitter and other social media sites, suggesting that AWS’s suspension of Parler with less than 30 hours’ notice was based on concerns other than its content moderation. Further, Parler alleges, implausibly and without support, that AWS directed hackers to Parler’s backup datacenters and began secretly selling Parler’s user data.

Parler brought various claims against AWS, including deceptive trade practices, defamation, breach of contract, breach of fiduciary duty, tortious interference with contract or business expectancy, unfair competition, negligence, and other claims (for a total of fourteen claims). The suit seeks trebled and exemplary damages and attorneys’ fees.
The basis for the defamation claim was an email AWS allegedly leaked to BuzzFeed that stated that AWS was indefinitely suspending Parler because it was unable or unwilling “to remove content that encourages or incites violence against others.” Parler asserts that AWS made this claim, despite being aware that Parler had a history of removing problematic content and was testing a new artificial intelligence system to moderate problematic content. Parler asserts that it is not public figure and its content moderation policies were not a matter of public concern, but even if it were, AWS acted with knowledge or reckless disregard of the falsity of its allegations that Parler had been lax in moderating troubling content. AWS complained that this defamation cost it millions in lost business.

Is Parler a public figure? While it is true that a defendant cannot bootstrap a plaintiff into becoming a public figure by virtue of the defendant’s defamatory allegation, Parler was in the public eye based on its business practices before AWS leaked the email. Indeed, a Washington Post article published the day before the Capitol riots on January 6 stated that “[t]alk of guns and potential violence is rife on . . . the conservative social media site Parler.” Parler suggests that it is no more responsible than other social media for allowing violent content on its site linked to the events of January 6th. If this allegation its true, it would lend credence to Parler’s claim that the blame for the riots has been falsely pinned on its site; however, Parler did not sue the media linking its site to the riots but instead sued AWS. AWS may assert that the leaked email about Parler is technically true: Parler was unable to keep up with moderating violence-promoting content. Moreover, if AWS relied on credible news sources to conclude that Parler was being used to foment violence, it would be hard for Parler to prove that AWS knew or recklessly disregarded the falsity of AWS’s attribution of inadequate moderation to Parler. On a side note, it seems at least as likely that AWS booted Parler for damaging AWS’s own reputation as it does that AWS booted Parler for anti-competitive reasons. Regardless, if this defamation action helps uncover whether Parler’s lax content moderation was more responsible than that of other social media for the riots of January 6, it will be doing a public service.

Posted by Lyrissa Lidsky on March 9, 2021 at 11:50 AM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (5)

Cascading Fed Courts issues

I have not given enough thought to how one SCOTUS decision on one issue produces a cascade of other issues. Janus provides a nice case in point.

SCOTUS held that mandatory non-member agency fees violate the First Amendment. That triggered a wave of actions against unions by non-members to recoup fees paid prior to Janus, which courts of appeals have uniformly and all-but-unanimously rejected via a defense of good-faith immunity (the Fourth Circuit joined the chorus yesterday).

The Seventh Circuit on Monday considered a different downstream effect: A union sued the state attorney general challenging state law requiring unions to represent free-riders, claiming that mandatory representation violates the union's First Amendment rights against compelled expression and association. The court of appeals held that the union lacked standing.* No freeriding nonmember had grieved the union for failing to represent it. The attorney general (the defendant in the action) had not initiated or threatened an action against the union for unfair (or non-) representation. And the union had not alleged an intent to not represent freeriders to set-up a pre-enforcement challenge. So while the court acknowledged the issue was unavoidable post-Janus and would eventually require resolution, there was no live case or controversy teed up.

[*] While acknowledging that it also could have been unripe. But wouldn't it all be so much easier to say that nothing had (yet) caused a violation of the union's constitutional rights?

That leads to a further downstream effect: If a freerider files a grievance or the state brings a failure-to-represent action, would a federal court abstain under Younger from the union's action? It may depend on the state laws and procedures governing state labor proceedings. I think abstention would be required in the AG action, because the action sounds comparable to an attorney-grievance proceeding. The freerider grievance may be a bit more open after Sprint, since the state would not be a party.

This is far from played out, as the Seventh Circuit recognized. I wonder if the Janus majority anticipated this three years ago.

Posted by Howard Wasserman on March 9, 2021 at 10:57 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, March 08, 2021

Nominal damages, past injury, and a morass to come

SCOTUS decided Uzuegbunam v. Preczewski Monday, holding 8-1 (Thomas for the Court, Roberts dissenting) that nominal damages are a retrospective remedy and plaintiffs can pursue them as the sole remedy for a past constitutional violation. The decision allows plaintiffs to vindicate rights (e.g., the right to protest in a time, place, and manner to which the plaintiff was entitled) that are easily violated but rarely, if ever, worth a lot of money. It also strips government of the power to moot cases after they have begun by repealing the challenged policies, at least where the plaintiff can show an injury from when the policy was in effect.

But the decision leaves many issues open and to be resolved by lower courts going forward.

One is how prevalent this practice will become. Will every plaintiff challenging the validity of a policy include a nominal-damages claim to guard against the government mooting the case? And how will this affect the willingness of courts to say the prospective claim is moot if there is a retroactive claim keeping the case alive? Courts are all over the map on when the repeal of an executive or department policy moots a case and when it is the sort of voluntary cessation that does not moot the case. On one hand, a court may hold the prospective claim not moot, since the nominal-damages claim will keep the case in court. On the other, it may be happy to dump the prospective claim and focus on a small-money claim for a likely de minimis past injury.

Second is how this affects attorney's fees, which was the hidden import of this case. A plaintiff who recovers nominal damages is a prevailing plaintiff entitled to fees under § 1988. Had this case come out the other way, it would have upped the incentive for government to repeal challenged policies, mooting the case and immunizing itself from fees.

But even if fees are available, the amount of recovery may be limited where the plaintiff only receives nominal damages after seeking more--when a plaintiff recovers nominal damages but nothing else, the reasonable fee may be "nothing." Courts might narrow the degree to which the plaintiff prevails, and the amount of fees she recovers, where the government repeals the challenged policy; the plaintiff prevails "only" on the past violation and can recover only for that legal work. An increase in nominal-damages actions may produce a drawback in the amount of fees courts are willing to award.

Third, Jim Pfander proposes that Congress should amend § 1983 to allow plaintiffs to bring claims seeking nominal damages--foregoing compensatory, punitive, and other substantial damages in exchange for the defendant being unable to assert qualified immunity. On one hand, this case treats nominal damages as a remedy consistent with Article III and thus within Congress' power to enact by statute. But the logic of Pfander's proposal is that nominal damages function like an injunction or declaratory judgment, neither of which is subject to qualified immunity. But today's decision paints nominal damages as s a retrospective remedy. Of course, the policy concern for an officer paying out of his own pocket disappears if he only will pay $ 1. But the validity of the proposal turns on that policy, not on the analogy between injunctions and nominal damages.

Fourth, the case illustrates the Court ongoing use of Article III to constitutionalize all sorts of merits questions. The majority talks about the need to show standing and a cognizable cause of action, assuming they are obviously distinct and never recognizing their unavoidable overlap. The Justices continue to make Article III and justiciability as a vehicle to discuss what injuries plaintiffs can recover for and what remedies they can get for those injuries, which should be core merits issues.

Roberts' dissent is worse. He argues (adopting the position of the United States and echoing his dissent in Campbell-Ewald) that a defendant can moot a nominal-damages case by depositing $ 1, avoiding a resolution on the merits. But an action for past injury (as the majority characterizes a claim for nominal damages) never becomes moot. Unlike an ongoing injury that ends when the policy causing injury is repealed, the past injury occurred and does not disappear with payment of money. The payment remedies the injury, putting the plaintiff where she would have been had the past violation of her rights not occurred. But the injury does not disappear and it does not become moot. Unfortunately, Kavanaugh wrote a one-paragraph concurrence to agree with that point in Roberts' dissent, meaning two members of the Court for that absurd position.

Finally, whether characterized as merits or mootness, the question remains whether government can do what the U.S. and Roberts/Kavanaugh would allow: Render the claims recognized in this case meaningless by depositing that $ 1 and demanding the government enter judgment, even if the plaintiff would rather not accept the settlement.

Posted by Howard Wasserman on March 8, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Cloture Reform in the Senate

For what it's worth, I wrote an article in 2011 outlining a proposal for reforming the filibuster. I still think that what I outlined there is the best compromise, though I also think that the idea of making a "talking filibuster" a requirement would also be a significant improvement.

Posted by Gerard Magliocca on March 8, 2021 at 01:41 PM | Permalink | Comments (3)

Thursday, March 04, 2021

Whither Ford?

Alabama Law Review will host a virtual symposium, Ten Years of the Supreme Court's Personal Jurisdiction Revival, 9 a.m.-3:30 p.m. CST tomorrow. Registration here.

The timing of the symposium makes it worth noting that the Supreme Court has not decided the Ford personal jurisdiction cases, which were briefed last spring and argued on October 7. The Court has not announced its next opinion day and the new sitting does not begin until March 22. So it will be 5 1/2 months, at least, from argument to opinion. It must mean the Court is going to do some very unfortunate things to personal-jurisdiction doctrine or some minority of the Court is drafting dissents to complain that the Court did not do something unfortunate to personal-jurisdiction doctrine. Either way, I am surprised it has taken so long.

Posted by Howard Wasserman on March 4, 2021 at 04:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Twiqbal meets the Kraken and Gondor

The Kraken and other pro-Trump/pro-Republican lawsuits about massive election fraud are fictitious nonsense brought by terrible lawyers. The litigation efforts, and the lawyers who brought them, have been justly ridiculed, But I am curious about one point of criticism--that the plaintiffs failed to offer proof of this massive fraud and the pleadings have been absurd because they included allegations of wrongdoing without proof. The same critics distinguished the leaky press conferences and Holiday Inn legislative "hearings" from courts, where the latter have rules governing proof.

Under notice pleading, however, the plaintiff is not required to plead its evidence or to offer proof of its allegations; the idea is to plead skeletal facts showing wrongdoing and leave it to discovery to find evidence behind allegations. Twiqbal requires more than that, of course. But even Twiqbal does not require a plaintiff to identify the evidence supporting its allegations, only that those allegations be more detailed. In any event, many people criticizing the Kraken pleadings decry Twiqbal for ratcheting up what plaintiffs must do to get into court and proceed to discovery.

Part of the issue is that the plaintiffs not only filed complaints, they sought immediate preliminary injunctive relief, which does require evidence beyond the allegations. something the plaintiffs were unable to provide. That made the motion, which must be supported by proof, more salient than the complaint which does not. Still, responding to a ridiculous complaint by demanding proof seems to ignore how federal litigation begins and the idea that the demand for proof comes later--discovery, summary judgment, and trial. And demanding that Gondor and the Kraken have proof at the outset, when we criticize the courts for demanding the same from a typical civil rights plaintiff, seems disingenuous.

Again, I am not saying these cases should have succeeded. Plaintiffs did need evidence for preliminary relief and did not provide it. But the framing outside the courts seems wrong.

Posted by Howard Wasserman on March 4, 2021 at 08:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Monday, March 01, 2021

Forum-Defendant Rule, Mischief Rule, and Snap Removal

My essay, The Forum-Defendant Rule, the Mischief Rule, and Snap Removal, has been published in Wm. & Mary Law Review Online. It uses Sam Bray's reconfiguration of the mischief rule to provide a textualist solution to snap removal, without having to resort to purposivism or needing new congressional action.

Posted by Howard Wasserman on March 1, 2021 at 10:46 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Entry Level Hiring: The 2021 Report - Call for Information

Time once again for the entry level hiring report.

I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information that will be aggregated.

The spreadsheet includes some information that I pulled from public sources, such as Twitter or law school websites. When that is the case, I've included the relevant link (in a column to the right--just scroll the spreadsheet over). If I have included your information from a public source and you would like me to correct or update it, please just let me know.

You can either leave information in the comments or email it to me. You cannot edit the spreadsheet yourself.

If you leave information in the comments, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.)

If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu.

Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.


The list does not include people who were full-time non-tenure track clinicians who are now moving to a tenure track job at a different school, as these don't seem like true entry-level hires to me. This is the situation where a person is at a school that does not provide tenure to clinicians, and then moves to a school that does provide tenure to clinicians.

The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)

Other links:

This report follows in the tradition of Larry Solum's excellent work over many years.

2020 initial post, 2020 spreadsheet, 2020 report (with graphs)

2019 initial post, 2019 spreadsheet, 2019 report (with graphs).

2018 initial post, 2018 spreadsheet, 2018 report (with graphs).

2017 initial post, 2017 spreadsheet, 2017 report (with graphs).

2016 initial post, 2016 spreadsheet, 2016 report (with graphs). 

2015 initial post, 2015 spreadsheet, 2015 report (with graphs).

2014 initial post, 2014 spreadsheet, 2014 report (with graphs).

2013 initial post, 2013 spreadsheet, 2013 report (with graphs).

2012 initial post, 2012 spreadsheet, 2012 report (with graphs).

2011 initial post, 2011 spreadsheet, 2011 report (with graphs).

All PrawfsBlawg entry level hiring report tagged posts.

Posted by Sarah Lawsky on March 1, 2021 at 10:18 AM in Entry Level Hiring Report | Permalink | Comments (13)