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Friday, April 30, 2021

Westerfield Fellowship - Loyola New Orleans College of Law - 2021

From Loyola University New Orleans:

Loyola University New Orleans is looking to hire one Westerfield Fellow. Start date: August 2021. Classes will be held on campus in New Orleans.

This position is designed for individuals pursuing a career in law teaching and seeking to gain law teaching experience, while being afforded time to devote to scholarship.  Applicants should have strong academic credentials and excellent written and oral communication skills.  The Fellow will be responsible for teaching two sections of legal research & writing to first-year law students in a three-credit-hour course each semester.  The Fellow will have a faculty mentor in addition to the other professors teaching in the program.  One-year contracts may be renewed.  The typical fellowship tenure is two years. Salary is competitive with fellowships of a similar nature.  Westerfield Fellows have successfully obtained tenure-track positions at ABA accredited law schools.

If you are interested in applying, please send your curriculum vitae and cover letter to [email protected]. Inquiries may be sent to the Chair of the Appointments Committee, Professor Bobby Harges at [email protected].  Review of applications will continue until the position is filled. We especially welcome applications from candidates who will add to the diversity of our educational community and who have demonstrated expertise in working with a diverse population.

Link to full ad:

Faculty Employment Opportunities | Finance + Administration | Loyola University New Orleans (loyno.edu)

Posted by Sarah Lawsky on April 30, 2021 at 11:17 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Wednesday, April 28, 2021

Can kids be assholes? And other thoughts on Mahanoy arguments

Having listened and taken one pass through the argument in Mahanoy Area Sch. Dist. v. B.L., taking as a starting point that I am terrible at predictions from arguments.

• Can kids be assholes to one another? Everyone was worried that without Tinker, a school could not regulate bullying when it occurs outside of school. B.L.'s attorney tried to leave the school some power so long as it comports with non-Tinker First Amendment standards (bullying, defined similar to harassment, as a new category of unprotected speech). But Justice Sotomayor pointed out that a lot of problematic out-of-school behavior would be cruel but not bullying under any definition that would comport with the First Amendment. The presumption is that there cannot be a realm in which students might emotionally hurt each other with impunity other than from their parents, so the school must have the power to fill that vacuum. But impulse to kindness aside, must this be so and why? Maybe the answer is that emotional hurt, regardless of when or where it happens, is so traumatic for kids that someone has to do something. And the school should do it because, regardless of where it occurs, the bullying is part of school because school is life for kids.

• But that is what makes the school's and government's positions problematic. Giving the school the power to regulate anything that "targets" the school and a school topic is all-consuming, because school is life for kids. There is little a student says or does--or has said or done about her--that is not about school in some way and that will not find its way back to school and to her life as a student.

• Lots of questions about whether students in extra-curricular activities can be regulated more closely, even out of school, than ordinary students. The Third Circuit said no and the school did not appeal, so the issue was not before the Court. I do not see why it should matter, as suspension from an activity because of protected speech is as much an infringement as suspension from school, just as a $ 5 ticket for protected speech is as much an infringement as an arrest. (The difference in severity would go to the damages available in a subsequent § 1983 action, not to whether a violation occurred).  Everyone focused on sports (and cheer) at issue in this case, presuming they (supposedly) uniquely need unity, discipline, respect, cohesion, and camaraderie. And there is this idea of being a "school ambassador." Do student counsel, physics club, and band require those things? Does the band director or the play director warrant the same respect as the cheer coach? "Athlete exceptionalism" was the camel's nose for random drug-testing, which then expanded to all "competitive" extracurricular activities.

B.L.'s lawyer also argued that the school could set conditions on athlete (and other extracurricular participants'?) speech with clear policies in advance. But he did not specify whether the First Amendment imposes any limits on those policies--whether the school can compel students to agree to surrender all off-campus speech rights as a condition of participation. That would be unfortunate.

• Lisa Blatt, the school's counsel, worked hard to argue that Tinker does not create a heckler's veto and that religious and political speech cannot be proscribed under Tinker. Offense (by the school or by some subset of students) is not sufficient to create a disruption, absent a broader factual context such as student walkouts, an impending battle between the Jets and the Sharks, or an effort to use fighting words to "terrorize" a new Black student. This is important, because "disruption" could (and I think has in many cases) been based on listener anger.

• Off the free-speech topic: Justice Alito asked Blatt whether a student could be punished for misgendering a non-conforming student. She said the school could insist on "accommodations," such as requiring students to use the person's name but not a pronoun. I think we know where that is going.

Posted by Howard Wasserman on April 28, 2021 at 04:39 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The Anxiety of Influence in Rabbinic Jurisprudence

I've uploaded my review essay for Constitutional Commentary about David Flatto's THE CROWN AND THE COURTS: SEPARATION OF POWERS IN THE EARLY JEWISH IMAGINATION. Here is the abstract for The Anxiety of Influence and Judicial Self-Aggrandizement in Rabbinic Jurisprudence:


The separation of powers is often at the center of modern constitutional governance. But David Flatto’s recent book, The Crown and the Courts, invites us to think about how (very) early Jewish meditations on the relationship among the monarch, the priests, the rabbis, and the law gave political theory resources for justifying judicial independence and sovereign immunity—perhaps earlier than we realized. Yet is hard to grant Flatto such a thoroughly non-political political theory of judicial independence and sovereign immunity, such as he advances in his Flattonic idealism. Once we appreciate, instead, that the propensity for judicial self-aggrandizement and the institutional strategies for accomplishing that objective have existed since time immemorial, a slightly more realistic accounting of these developments in constitutional theory is made possible. That has lessons not only for our understanding of the rabbis but also for the separation of powers today.

Comments welcome!

Posted by Ethan Leib on April 28, 2021 at 04:02 PM | Permalink | Comments (0)

Tuesday, April 27, 2021

SEALS Prospective Law Teachers Workshop

Each year, SEALS hosts a Prospective Law Teachers Workshop (PLTW), which provides intensive opportunities for VAPs, fellows, and practitioners to network and participate in mock interviews and mock job talks—prior to the actual teaching market. The Workshop also includes a luncheon (separate ticket purchase is required) and 1-on-1 sessions for candidates to receive faculty feedback on their CVs and FAR forms. This year’s Prospective Law Teachers Workshop will be held at The Omni in Amelia Island, Florida on Monday, July 26 through Wednesday, July 28, 2021. If you are interested in participating specifically in the Prospective Law Teachers Workshop, please send your CV, and a brief statement explaining your interest, to Professor Leah Chan Grinvald [email protected]. Please also confirm that you are planning on entering the teaching market in August 2021. Applications are due by May 31, 2021, with decisions made no later than June 11. Past PLTW participants have secured tenure-track appointments at an impressive array of law schools.

Independently from the PLTW, SEALS also offers a workshop that is broader programming for anyone considering academia—even if one is earlier in the process. Anyone may simply attend the Aspiring Law Teachers Workshop. The programming includes a demonstration of faculty-candidate interviews and sessions on designing your teaching package, navigating the market as a nontraditional candidate, mapping academic opportunities, what’s in a job talk, crafting scholarship goals, the art of self-promotion, as well as a luncheon (separate ticket purchase required when registering for SEALS). The Aspiring Workshop occurs between Monday, July 26–Thursday, July 29. Search “aspiring” at the following link: http://sealslawschools.org/submissions/program/programwp.asp.

The goal of these two workshops is, in tandem, to provide robust opportunities for those who hope to one day enter legal academia.

Frequently Asked Questions:

They both sound great. What exactly is the difference?

The Prospective Workshop is designed for those who are going on the market this fall (and will be submitting their FAR form), in 2021, and desiring a chance to moot job talks and interviews in advance of that time. The Aspiring Workshop is designed for anyone considering academia, including those who may not yet be ready to moot a job talk in the summer. Participation in the Prospective Workshop is by acceptance-only while the Aspiring Workshop is open to everyone.

Can I attend both workshops?

Possibly. Some of the times conflict, but the Aspiring Law Teachers Workshop will be generally open to anyone wishing to attend. Attendance in the Prospective Workshop is in contrast only by acceptance through our competitive selection process.

Is this the new faculty recruitment initiative that I heard SEALS has put together?

No, this is not the new hiring initiative that SEALS is conducting. That process is entirely separate. Information about SEALS’ new faculty recruitment initiative can be found at the following link: https://www.sealslawschools.org/recruitment/applicants/

Posted by Howard Wasserman on April 27, 2021 at 12:05 PM in Teaching Law | Permalink | Comments (0)

Monday, April 26, 2021

CFP: Civ Pro Workshop Summer Works-in-Progress Series

The following is posted at request of Brooke Coleman (Seattle) and David Marcus (UCLA).

The organizers of the Civil Procedure Workshop (“CPW”), an annual gathering of civil procedure scholars, look forward to an in-person gathering at Northwestern University in May 2022.  In the meanwhile, we invite all interested in civil procedure scholarship to participate in an online works-in-progress series the CPW has scheduled for July 15, 2021, and August 12, 2021.  Both sessions will proceed from 1:00-3:00 pm east coast.  Anyone who wishes to present a paper on a topic related to civil procedure is welcome and encouraged to do so.  We will organize participants into small discussion groups, to enable all authors to present their work and receive feedback from colleagues.

Authors are encouraged to present their work in whatever form it takes.  Full drafts are welcome, but so too are shorter summaries or partially completed papers. 

Those who do not wish to present their work are also encouraged to attend.  We hope that these sessions will give colleagues a chance to a gather, if only online, and continue to support our national community of procedure scholars that many of us enjoy so much.  

Please register for the works-in-progress series here.

You are encouraged to attend both sessions and are welcome to present at one, both, or neither.  If you plan to present your work, we ask that you submit your paper to the organizers by July 1, 2021, for the July 15 session, and by July 29, 2021, for the August 12 session, to give organizers a chance to assemble groups and distribute papers to participants.  If you are presenting a full draft, we ask that you also submit a ten-page excerpt that readers can particularly focus on in advance of the discussions.

Posted by Howard Wasserman on April 26, 2021 at 04:02 PM in Civil Procedure, Teaching Law | Permalink | Comments (0)

AALS Art Law Section Program on Painting Constitutional Law

The AALS Art Law Section will host Painting Constitutional Law—An Author Discussion, 2-3:30 p.m. EDT, Tuesday, April 27.

The panel will discuss Painting Constitutional Law: Xavier Cortada’s Images of Constitutional Rights, the book co-edited by my FIU colleague M.C. Mirow and me. Speakers will include Cortada, whose painting series inspired the book; Corinna Lain (Richmond); Linda McClain (B.U.); and Laura Underkuffler (Cornell).

Register here.

Posted by Howard Wasserman on April 26, 2021 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)

Saturday, April 24, 2021

JOTWELL: Coleman on Gadson on stolen plausibility

The new Courts Law essay comes from Brooke Coleman (Seattle) reviewing Marcus Alexander Gadson, Stolen Plausibility, __ Geo. L.J. ___ (forthcoming 2021), on courts preventing plaintiffs from relying on facts from other cases and other investigations as a way to satisfy Twiqbal.

Posted by Howard Wasserman on April 24, 2021 at 10:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, April 23, 2021


Seth Oranburg asked that we share with our readers:

Fastcase Press is publishing Blockchain Law, a practice-oriented book for lawyers who need to understand how the law actually applies to the use of blockchain technology. Professor Seth Oranburg and co-editor technologist and Attorney Rob Kost are seeking authors for chapters in practice areas including blockchain and: intellectual property, real property, contracts, securities, trusts and estates, the much-publicized non-fungible tokens, and other doctrinal areas that are impacted by blockchain technology. Each chapter will analyze a different domain of law. If you are interested in becoming a contributing author to Blockchain Law, please email [email protected]. Applications should include citations or a link to a law review article or similar publication you have already written on the subject, a CV, and a brief description of the topic your chapter would address. Chapters should be submitted by August 2021.

Posted by Orly Lobel on April 23, 2021 at 05:20 PM | Permalink | Comments (1)

Thursday, April 22, 2021

Protest and the 202_ Tokyo Olympics

The International Olympic Committee on Wednesday reaffirmed its stance against protests by athletes at the Tokyo Olympics, whenever they happen (they are scheduled to begin July 23, but I have my doubts). On Thursday, international advocacy groups pledged to provide legal support for any athletes who are sanctioned for protest activity. The USOPC had announced in December that it would not sanction any athletes who broke the IOC regulations. I wrote about the rule change, which was announced before the world shut down last year. I had not known that USOPC inducted Tommie Smith and John Carlos into its Hall of Fame in 2019.

Posted by Howard Wasserman on April 22, 2021 at 01:20 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, April 21, 2021

Taking Constitutional Conventions Seriously: Biden's SCOTUS Commission and the Futility of Comprehensive SCOTUS Reform

Tomorrow evening at 8 PM Eastern Time, I am joining four other profs (Neysun Mahboubi, Eric Segall, Marin Levy, and Tom Ginsburg) and two journalists (Dahlia Lithwick and Emily Bazelon) to discuss Biden’s SCOTUS Commission on Clubhouse. (If you have an iOS device, sign up for the app and drop in).

It is a little difficult, however, to get very excited about a Commission that most likely will have few consequences for SCOTUS’s future. Section 3(a)(i) of Biden’s Executive Order creating the Commission calls for “an appraisal of the merits and legality of particular reform proposals.” Partisan realities, however, make it unlikely that Biden will have any appetite to act on that “appraisal.” Democratic Party rank-and-file have little interest in comprehensive and non-partisan reforms to weaken the SCOTUS, and purely partisan proposals to “pack” the SCOTUS with Biden appointees are toxic for Senators elected from reddish states like Manchin and Sinema. For Biden, therefore, the Commission’s main value would be to provide political cover for him to do nothing.

The Commission’s probable futility, however, points to a constitutionally interesting fact: The very fact of partisan polarization among SCOTUS’s justices that makes comprehensive reform of SCOTUS desirable also make it impossible. As Ganesh Sitaraman and Dan Epps noted two years ago, the degree to which justices now divide along partisan lines is not only unprecedented but also threatening to the Court’s legitimacy. Those partisan divisions, however, are reinforced by analogous divisions in Congress that will stymie reform legislation. Proposals that overlook this partisan obstacle assume the ladder needed to get out of the hole. Put more technically, such reform proposals suffer from what Eric Posner and Adrian Vermeule have called the “inside/outside fallacy.” Such proposals diagnose a problem from the “outside” the causes of which are ignored by the proposals’ recommended “inside” solutions.

After the jump, I will use the half-century of Republican ascendancy over SCOTUS from 1885 to 1932 to illustrate how partisan distrust blocks comprehensive overhauls of SCOTUS’s powers. The almost half century of GOP ascendancy over SCOTUS suggests that the large-scale changes pressed by Sitaraman & Epps as well by Eric Segall (my co-participant in the Clubhouse event) are practically impossible. Even assuming that the Democrats take over the commanding heights of the Presidency and Congress, rank-and-file Democrat are more likely to train SCOTUS’s cannons on their enemies than spike them. The best one might hope for from Congress, therefore, would be narrowly partisan limits on SCOTUS’s jurisdiction like the Norris-LaGuardia Act.

This does not mean that comprehensive reform is impossible — just that it probably has to come from within SCOTUS itself. Using James Bradley Thayer as an example, I will suggest that the more formalistically inclined profs on the Commission (Caleb Nelson, Will Baude, Tara Leigh Grove, and Michael Ramsey) might play a useful role in nudging Justice Gorsuch to adopt a more Thayerian version of the textual formalism to which he is already prone.

1. How partisan distrust creates constitutional conventions that block comprehensive congressional reform of the SCOTUS.

Democrats are naturally disheartened by the 6-3 margin of GOP control over the Roberts Court. They will not be cheered by the precedent of Republican control between the Fuller and Taft courts. There were, to be sure, four justices appointed by Democratic President Grover Cleveland during this period, including two chief justices (Fuller and White). Grover Cleveland, however, came from the pro-business wing of the Democracy and accordingly chose “Bourbon” Southerners like Lucius Lamar or pro-business New Yorkers like Peckham. The result was that, starting with the Wabash decision in 1886, the SCOTUS aggressively deployed the dormant commerce clause to suppress labor strikes and state regulations supported by farmers and workers.

My colleague, Barry Friedman, has argued that the SCOTUS is ultimately answerable to the people. Maybe so, but the mills of popular sovereignty grind slowly. SCOTUS’s radically new suspicion of state law transformed the nation, over the objections of Congress. The Fuller Court’s revival of the “original package” doctrine, for instance, suppressed effective state regulation of liquor, thereby nationalizing the debate over alcoholic beverages. Congress tried to send the question back to state legislatures with the 1890 Wilson Act, but the Fuller and White Courts construed this statute so narrowly as to nullify it. Advocates of prohibition were forced to seek congressional legislation and, eventually, a federal constitutional amendment to control a culturally super-charged issue matter obviously best left with the states. Likewise, the GOP-dominated SCOTUS not only used the Sherman Act to enjoin strikes and boycotts but also sidestepped congressional efforts to curb this judicial crusade against labor in Duplex Printing Press Company v. Deering (1921) by exempting secondary boycotts from section 20 of the Clayton Act.

In theory, Congress could have brought SCOTUS to heel. In practice, partisan divisions prevented Congress from acting. The Democrats controlled all three legislative actors (House, Senate, and President) for only twelve years between the 49th and 73rd Congresses. Mustering a majority to overrule the court or curb its jurisdiction was, therefore, usually impossible. The SCOTUS became, in effect, a fourth legislative actor — but one that, unlike the other three, could act all by itself. Ironically, bicameralism and presentment did not slow the law-making process down but rather sped it up, as checks on the court’s law-making power were stymied by Congress’ and Presidents’ checks upon themselves and each other. SCOTUS’s sweeping preemption of state law may have often been a good thing as a matter of policy: Richard Bensel argues that the Court’s commerce-clause doctrine created a continental-scale free-trade zone ultimately beneficial to national industrialization. But this juristocracy certainly was not a democratically accountable government.

Like the current resurgence of federal judicial power, the almost half-century of judicial rule inspired a wave of research on the motivation and control of federal judges. (Landis and Frankfurter’s Business of the Supreme Court (1928) is the surviving classic from this genre). But gridlock and partisan division frustrated any ambitious program of what Andrea Katz calls “progressive formalism” to curb the SCOTUS. When the 72nd Congress’ combination of -pro-Labor Democrats and progressive Republicans finally overruled Duplex Printing with the Norris-LaGuardia Act in 1932, they made only the most surgical strike on federal judicial supremacy. FDR’s effort five years later to “pack the Court” ended not only in defeat of the effort to add seats to SCOTUS but also, as Jeff Shesol has described, FDR’s ambitious legislative program, as Southern Democrats bolted from his coalition.

Our current batch of proposals comprehensively to re-constitute SCOTUS will likely fare no better. It is hard enough to hold together a coalition in our tripartite legislative process to enact any comprehensive legislation on any topic. Enacting legislation to control SCOTUS is like trying to get a half-nelson on a slippery eel, because SCOTUS ultimately determines what Congress’ handiwork means. Where parties have razor-thin majorities in Congress and justices feel that they have allies in the electorate, there is even the possibility that any radical overhaul will be trimmed back by the Court that is that overhaul’s target.

To justify such a judicially administered haircut, the justices could cite the “small-c” constitution rooted in longstanding conventions that “liquidate” open constitutional questions. They would be correct in rejecting the idea that the written big-C Constitution leaves matters settled by longstanding convention up for congressional grabs. Satamaran and Epps’ idea, for instance, that Congress could replace SCOTUS with bi-weekly rotating panels of circuit judges seems like a professors’ fantasy to me. This is not because the formal written Constitution forecloses such an arrangement. The obstacle is rather that holding together a coalition to reform any institution is a difficult business, and legislators naturally want to take as much of the status quo as a given, to escape the danger that comprehensive reform will spin out of control in unpredictable directions. A relatively small collegial bench with a stable membership is the tradition around which members of both the public and Congress will inevitably rally just to escape the headache of building a new institution from scratch. The avoidance of that headache is the legislative incentive for what Alexander and Schauer call the “settlement function” of Constitutions. Members of Congress, Democrats and Republicans alike stick by most of what is done most of the time not because such conventions are correct but because it is hard to knot together a comprehensive bargain when such conventions are unraveled.

2. Will SCOTUS curb itself? How the Commission might promote the Thayerian uses of constitutional formalism

Any congressional curb on SCOTUS will, therefore, likely be modest and marginal, regardless of the theoretical powers that Article I confers on Congress to reinvent judicial institutions. But that fact of practical settlement through constitutional convention does not mean that Biden’s Supreme Court Commission cannot offer some useful and potentially court-curbing analysis.

The Commission enjoys one advantage that could give it practical influence: It contains fpur law professors — Professors Will Baude, Caleb Nelson, Michael Ramsey, and Tara Leigh Grove — who enjoy extraordinarily high reputations for their meticulous scholarship in what might be loosely called the formalist key. Baude and Nelson, in particular, have built reputations on the care with which they have investigated constitutional text and history (in that order) to derive apolitical conclusions about, in particular, limits on federal judicial power. Their views might conceivably carry weight with any justice — say, Justice Gorsuch — who prides themselves on apolitical fidelity to written text.

Might they nudge Justice Gorsuch into incorporating into his textualism and originalism a bit more humility and uncertainty? If they did, then their influence would bear an analogy to James Bradley Thayer’s 1893 essay “The Origin and Scope of the American Doctrine of Constitutional Law” in making respectable to the legal establishment the idea of judicial deference to legislation.

As Professor G. Edward White has noted, Thayer sat at the center of the legal and cultural establishment of New England: An antebellum Whig and Unitarian with close ties to the Metaphysical Club, he was the very model of the respectable Boston Brahmin. He was, in particular, offended by the common accusation that federal judges wielded legislative power against workers out of class bias: In response to Left economist Richard Ely’s accusation to this effect, Thayer wrote in 1891 that “[i]t is a pity to publish in a foreign review such crude observations as these.” Thayer’s 1891 essay against Ely was a defense of the power of judges against the accusation that judges acted legislatively, by emphasizing that “the true question for the judges is not what their own opinion of the true interpretation of the Constitution is, but what view of it is reasonably permissible.” Observing in 1891 that “judges often recognize this, but also they often fail to recognize it,” Thayer wrote his 1893 essay as a sequel, cashing out in greater detail why judicial power was legitimately judicial.

Thayer, in other words, was a voice of respectability to whom respectably conservative Republican or Bourbon Democratic judges might listen. In a politically polarized era when justices feared that property was under attack from mobs of socialists and anarchists, judicial deference needed such respectable and indeed conservative credentials. Thayer’s essay was written, after all, in the same year that Justice David Brewer gave a speech denouncing “the movement of coercion” that threatened to deprive the wealthy of their property. Attacking trade unions for interfering with contractual freedom, Brewer proclaimed that it was “the unvarying law, that the wealth of a community will be in the hands of a few.” Only an unelected court could safeguard those besieged plutocrats from the mob! Holding such views, Brewer was not likely to be impressed with wholesale attacks on judicial power. But an essay by a Boston Brahmin who was offended by the crudity of socialist Richard Ely? That was the perfect vehicle by which to convey Thayer’s message of judicial caution.

Would Baude, Nelson, Ramsey, and Grove convey a similar message to Justice Gorsuch? Thayerism is hardly hard-wired into textualism and originalism: In theory, formalism lets the textual and historical chips fall where they may: Maybe judicial deference just is not where the chips fall. The case for formalism, however, may rests in part on the idea that courts’ legitimacy depends on an especially clear connection between positive, written law and judicial decrees. Where that clarity is missing because the originalist sources are in conflict, then this premise suggests that judicial deference is the formalists’ virtue. Any rule of recognition that cannot be easily recognized is a pretty weak basis for positivism, and formalism (i.e., originalism with the Constitution, textualism with statutes) is just positivism laced with a lot of grammar and history. Where that grammar and history are hard to decipher, why not then defer to the most easily recognized rule of law -- legislation enacted by Congress or the states?

I will not guess at the odds that the Commission will unanimously warn SCOTUS about the threat posed to its legitimacy by its obviously partisan divisions. Nor will I guess at whether the Commission will urge neo-Thayerism as a way to achieve greater unity and legitimacy. I am, however, reasonably confident that the chances of Gorsuch’s (and Robert’s) heeding a such a message and curbing the Court from within seem higher than the odds of Congress’ doing so from without.

Posted by Rick Hills on April 21, 2021 at 07:47 AM | Permalink | Comments (1)

Monday, April 19, 2021

Drake Law School - Visiting Position Spring 2022

Drake University Law School invites applications for a temporary appointment as Visiting Assistant/Associate/Professor of Law, to teach Legal Writing II in Spring Semester 2022. Currently, the Law School plans for these classes to be offered in-person rather than remotely, subject to health and safety considerations, and candidates should be willing to teach in-person and qualified 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 May 7, 2021.

Posted by Sarah Lawsky on April 19, 2021 at 08:27 PM | Permalink | Comments (0)

Bad state action arguments (Updated)

MyPillow, facing a billion-dollar defamation lawsuit by Dominion Voting Systems over Mike Lindell's post-election nuttery, has sued Dominion (note: It is a new action, not a counterclaim--not sure why). It asserts claims for violations of the First Amendment and due process.

How? Here is ¶ 89: "Defendants, at all times relevant hereto, were performing and fulfilling a traditional and exclusive state and governmental function of administering public elections, pursuant to state statutes, ordinances, regulations, customs, rules and policies established thereunder, and as such, were acting under color of state law."

Administering elections qualifies as a traditional-and-exclusive public function, when the government delegates or turns control over the election machinery to a private entity, such as the Democratic Party in Jim Crow Texas. It does not apply to government contractors who support the government in performing those traditional-and-exclusive government functions. So this argument is silly and doomed to fail. Although I suppose it at least has a better doctrinal base compared with those arguing that Twitter, YouTube, et al. act under color because managing a "speech forum" is a public function or because § 230 immunity makes them the government or because saying they are committed to free expression makes it the government.

Update: Fleshing this out a bit following an email exchange with a reader.

    First, none of this matters to the present action. Even if Dominion acted under color in performing election-related functions, it does not act under color for all purposes. The allegation in this action is that Dominion violated the First Amendment by publicly criticizing and suing MyPillow for defamation. Dominion is not under color in doing that, because it is not wielding any authority derived from government. The claim is not saved by the argument that Dominion was responding to MyPillow criticisms of Dominion's allegedly under-color election conduct. The chain of causation does not extend so far. Devin Nunes--an actual government official--does not act under color when he sues cows for criticizing how he performs his (under color of law) government functions.

    Second, Dominion's supposed malfeasance was all over the place in the post-election litigation and various Kraken and Kraken-adjacent complaints were loaded with allegations of how Dominion voting machines helped throw the election to Biden. No one thought to include Dominion in any of those suits on this theory?

    My presumption in these arguments is that Dominion's role is limited to selling/renting the machines to the government, installing them, training government officials on them, and providing technical support where necessary; Dominion is not more actively involved in running the collection and counting of votes. This makes Dominion like the company that provides tasers or handcuffs for police--even if those devices somehow contribute to the constitutional injury, providing them does not alone create state action. A greater level of joint cooperation with government officials might change the conclusion, creating joint participation and a nexus because government enables the private misconduct. (The example from a reader is police hiring private security to provide additional crowd control at a public event). The complaint does not provide any facts showing a greater level of engagement by Dominion.

Posted by Howard Wasserman on April 19, 2021 at 04:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Academic Feeder Judges

Academic Feeder Judges, my study of where legal academics clerked, has been published at Judicature.

Posted by Howard Wasserman on April 19, 2021 at 03:57 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, April 15, 2021

Sponsored Post: An Active Learning Approach to Teaching Civil Procedure

The following post is by Rory Bahadur (Washburn) and is sponsored by West Academic.

It is easy to get overwhelmed when reading the copious literature on good teaching.  The literature is replete with pedagogy recommendations that can appear hyper technical and unattainable.  For example, active learning, flipped classrooms, facilitating cognitive schema formation, pretesting, providing more formative and summative assessment and engaging students in large classrooms.  In addition to unattainability and hyper technicality, implementing these pedagogic techniques appears to require a massive and labor-intensive revamping of what we already do and are comfortable doing in the legal classroom.  That is until I began experimenting with a directed reading approach to teaching law.

I began teaching civil procedure in 2007 and up until 2014 I struggled on two specific fronts.  Initially I struggled to get students confident and engaged when teaching the classes that required painful and careful rule reading, like the class where we cover Rule 12 and its subtly worded dual waiver provisions in 12(h)(1).  Additionally, I struggled to get students engaged in the more nuanced aspects of civil procedure.  For example, students never seemed to get rabidly enthusiastic about understanding that Justice O’Connor’s stream of commerce test is similar to Justice White’s opinion in World-Wide Volkswagen and that much of specific personal jurisdiction is a tension between federalism and fairness.

That all changed when, for one particularly grueling topic, I decided to give my students the Socratic questions I would be asking in class a few days later.  So, students were assigned the reading and were also given the Socratic questions I would be asking in the class that covered those readings. 

Kismet!!!!  In that class were the most prepared, excited students I have ever had.  I wondered if I was in some alternate universe where venue transfer, forum non conveniens and the Piper v. Reyno case was a really strong stimulant.  I spent some time after class chatting with the students to discover why class had gone the way it had.  The common themes were:

  1. We did not come into class feeling completely lost and unaware waiting for the deer in the headlights feeling for an hour and a half of feeling incompetent as we suddenly realized how little we knew compared to you;
  2. It made us able to think of the new material you were bringing to class, not in a contextual vacuum, but in terms of how it added to our understanding of the assigned reading;
  3. We wanted to engage more because we felt more competent because of the questions;
  4. In class, we were able to immediately realize what we had misinterpreted and how to fix the way we read or to shore up what we thought the doctrine was;
  5. We could go back after class and incorporate the material you brought to class into the basic framework answering the questions allowed us to create before class;
  6. We knew what we needed to do to become better at reading carefully and reading slowly.

From that point on I worked to create pre-class questions to accompany the material in every single civil procedure class I taught.  The process took seven years, and the result is my civil procedure casebook, Civil Procedure: An Active Learning Approach.

The pandemic created a baptism by fire scenario.  In summer of 2020, Drexel University, Kline School of Law asked me on short notice to teach a synchronous 4 credit torts class to incoming students via this thing called zoom.  I created directed reading questions for every class and those questions were provided to the students before class and I asked the students to answer the questions and submit their answers before class began using the LMS platform Drexel used.  This answering of questions was in lieu of traditional briefing.  I gave them a small effort-based grade and feedback where necessary on the submissions which counted to their final grade and we began answering those questions in class.  This allowed us to engage with the doctrine at a much more sophisticated level than when my students came into class after having just read and briefed in the traditional manner.  Also, by skimming the answers before class, I knew what topics the students had the most trouble understanding and could adjust the lecture accordingly. The student evaluations were unprecedentedly positive.

Next, I tried the directed reading approach in a fully asynchronous civil procedure class in summer of 2020.  Students were given access to the lecture discussing the questions only after they submitted their initial answers to the questions based on the reading assigned.  Post-lecture they would resubmit answers to the same questions they answered before the lecture.  By comparing the pre- and post-lecture submissions I could assess whether the learning goals of the lecture were achieved.  Students got feedback on the submissions for formative assessment and the questions were also graded, providing summative assessment.  The student evaluations were again positive to an extent I have never experienced or could expect, and a common thread was that the class required more work than a traditional law school class, but they were so encouraged to do the work because of the amount they felt they were learning compared to traditional classes.

Most recently I tried the method in an in-person/hybrid torts class and in a synchronous admiralty class.  Again, student evaluations were unbelievably positive and consistent with previous student sentiment.  In one of the classes I received the maximum score on every evaluation criterion and was told by the administration that it had never happened in their memory before.

An important takeaway is that the method can be applied seamlessly across the synchronous, asynchronous and in-person teaching modalities and the preparation on the part of the teacher is the same in each modality.

Civil Procedure: An Active Learning Approach represents the refinement of the directed reading approach.  Directed reading creates a flipped classroom for every class session resulting in higher student readiness, engagement, and doctrinal understanding.  Alternative contextualization, which forces students to draw parallels between new material they are learning and material they have previously learned, and to explain the new material in the context of the previously learned material, is used in the question structure such that cognitive schema formation is enhanced for students.  The aim is to deliberately contextualize previously learned principles in the context of new material being learned to make both contexts more understandable.

The book also has active learning exercises which result in students reading the rules more carefully and creating deeper and more meaningful context for the rules they are learning than in the traditional read and brief model.

Assessment is continuous and incorporated into the book’s structure such that students continuously receive extensive feedback about their learning without any extra labor expenditure on the professor’s part.

Finally, the teacher’s manual is unique.  It contains detailed answers to every directed reading question asked in the casebook and explains the pedagogy technique being employed by the question.  It also identifies areas where students traditionally struggle with concepts and provides solutions for these issues.  Adopters will also receive hundreds of PowerPoint slides with diagrams, flowcharts and case excerpts keyed to specific directed questions and the relevant material in the teacher’s manual.

Posted by Howard Wasserman on April 15, 2021 at 05:26 PM in Sponsored Announcements | Permalink | Comments (1)

Wednesday, April 14, 2021

The Suez Canal Blockage

I don't often get to post about Admiralty issues, but the recent traffic jam in the Suez Canal opens the door. Egypt has seized the vessel that got stuck in the canal and is seeking $900 million in damages from the vessel, the vessel owner, and the firm that chartered the ship. They will, though, get nothing close to that.

Admiralty law typically caps liability for wrongdoing to the value of the vessel and its contents. The Egyptian government was within its rights to seize the vessel and can auction off whatever is there. "Piercing the veil" and going after the corporations that owned or used the vessel is very difficult, especially in a case like this where there was no loss of life. Ordinary vicarious liability rules do not apply. Egypt would have to show that the vessel got stuck due to some instruction or policy by the corporate masters, which is rather unlikely. Potentially there could be a claim that the captain and/or crew were hired with knowledge that they were untrustworthy. The Exxon Valdez oil spill is an analogous example, as Exxon knew there that Captain Hazelwood was an alcoholic. But I also doubt that there is sufficient proof on that score in this case.

A limitation of liability action has been filed in the UK. This is a maritime suit that seeks a declaratory judgment stating that liability for an accident is capped at the ship's value. That action will probably succeed.


Posted by Gerard Magliocca on April 14, 2021 at 11:30 AM | Permalink | Comments (1)

Tuesday, April 13, 2021

"Working as Equals" Conference

This, via Larry Solum's blog, sounds like a very interesting conference:

If we’re equals, then how come you’re my boss? This question lies behind a growing wave of ethical criticism that is directed at hierarchical workplace structures and deploys various ideals of relational (or social) equality. Can workplace hierarchy be justified, and how can this justification be squared with the ideal of relating to each other as equals? The Working as Equals workshop seeks to illuminate the moral dimensions of today’s workplace relations. It also aims to bring into focus the promise and limitations of the relational turn in ethical theory, using the workplace as a lens.

The basic assumption I make about academic conferences is that they may have a thesis or orientation--they seem increasingly to do so but perhaps that has always been the case--but, God willing, they will not have not proved or assumed its truth and value in advance, and will make plenty of room for exploring the nuances, critiques, and costs of that thesis. I assume that is the case here, and I should think there would be plenty of room for exploring the costs of some of the theses advanced in the abstracts, which of course have differences but pull roughly in the same direction. (There will be commentators, who no doubt will engage in some of these explorations.)

My own view, for which evidence arises nearly every day, is that the greatest general crisis of our time, which takes in all sorts of territory and all sorts of frequently focused-on terms ("norms," for instance), is institutional, and that institutions, their purposes, trust in them, and commitment to them as projects need to be shored up at least as much as they need to be reformed and far more than they need to be eliminated. No doubt some or all of the papers here will point to useful elements of institutional critique and institutional reform. So they should, and any institutionalist should welcome those elements, while insisting that it is a mistake for institutions to be everything (and thus nothing), or to "reimagine" them into something else entirely.

The papers will no doubt, as the conference description promises, be as focused on the limits as on the hopes of the general approach. But the papers also, from what I can tell from the abstracts (an imperfect indicator, admittedly), leave plenty of room to worry in advance about projects that treat hierarchy as such as "disconcerting," not just within the stereotypical modular workplace but within such institutions as churches and the military; that seem in turn disconcertingly focused on individuals and autonomy; that are disconcertingly confined to the unpoetic vocabulary and useful-but-limited tools of liberal egalitarian theory; and that seem disconcertingly suspicious of social organizations that "shape[] individuals more than [they are] shaped by them." Isn't that all of them? Or isn't it at least the case that all social organizations shape individuals as much as they are shaped by them? How alienating would it be not to be shaped by one's associations, including one's workplace? One might paraphrase Augustine: "O Lord, let me stand naked and alone before You--but not yet!"

Two more passing thoughts. First, are modern "reforms" of the university egalitarian and conducive of a greater atmosphere of non-hierarchical relational equality, to use the language of the conference? Or are they closer to the opposite? In their twinned and inseparable urge both to advance sincerely held reforms and to cave at the slightest hint of adverse publicity to the most vocal segments of their fee-paying consumer base, are university administrators being egalitarian--or are they asserting a striking, if seemingly obseisant, degree of authority, hierarchy, and power? (One, in fairness, that faculty have yielded up to them by slackening in their governance duties and in their own sense of the institution as an institution.) Second, I am reminded that the worst workplace I ever experienced was one in which my employers said, and at least sometimes meant, that we were a "family." An op-ed writer in the Times--not, admittedly, a place one goes for deep or useful thought--wrote recently, in the words of the sub-headline, that after working at Google she had "learned the hard way that no publicly traded company is a family." True enough, but oddly limited in scope; no company is a family, and I would much rather work at a company, public or private, that is clear about not being one than one that purports to be. There are surely places in this world where it is far more important to know where one stands than to be loved or cherished.

These are all critical questions and reflections, and I think they are fair in light of the conference description and abstracts. But they are not the conference itself, where I am sure all these questions and more will be fully aired by an impressive set of speakers and commentators. It sounds well worth attending, the better to appreciate and, as it were, apprehend it. 

Posted by Paul Horwitz on April 13, 2021 at 11:28 AM in Paul Horwitz | Permalink | Comments (0)

The Reconstruction Amendments: The Essential Documents

Today I received my two-volume set of this treasure edited by Kurt Lash. In the parlance of patent law, a Reconstruction collection was a long-felt but unmet need. And like Max Farrand's work on the Constitutional Convention, Lash's edition will become standard fare for judicial citations, briefs, and scholarship.  I'll have more to say about the collection after I read the documents.

Posted by Gerard Magliocca on April 13, 2021 at 10:48 AM | Permalink | Comments (5)

Monday, April 12, 2021

Panel: The Law and Politics of the 2020 Election and its Aftermath

FIU College of Law will host a panel, The Law and Politics of the 2020 Election and its Aftermath, from 1-2:15 EDT on Tuesday, April 13 (tomorrow). Panelists are Carissa Byrne Hessick (UNC and PrawfsBlawg), Ellen Katz (Michigan), Brian Kalt (Michigan State), Genevieve Lakier (Chicago), and Steve Vladeck (Texas and formerly PrawfsBlawg). It should be a great discussion.

Click here to join us.

Posted by Howard Wasserman on April 12, 2021 at 11:12 AM in Howard Wasserman | Permalink | Comments (2)

Sunday, April 11, 2021

Universality in Tandon v. Newsom

Christopher Sprigman started a Twitter thread contemplating what happens if California disregards or circumvents the order in Tandon v. Newsom. A different thread derides the suggestion as "stupid." I do not believe California will attempt this, so the issue is academic. But we can illustrate how litigation operates by parsing this specific case.

We need to break down what state officials might attempt to do and against whom.

Tandon was a lawsuit by ten plaintiffs, individually. Newsom and other California officials are enjoined from enforcing COVID restrictions against these ten individuals and the religious groups they head. Any attempt to enforce against them would constitute disregard for a court order. It could be punishable by contempt, sanctionable by fines and, in the extreme, jail. And yes, Biden would be obligated to send in US Marshals, if not the 101st Airborne, to enforce the court's order against state officials as to these ten plaintiffs.

No court order prohibits Newsom and other California officials from attempting to enforce the regulations against anyone other than those ten individuals. State officials therefore would not be in contempt of any court order in attempting to do so. Nor would they be "disobeying" the Supreme Court, because the Supreme Court did not order them to refrain from doing anything as to anyone other than those ten plaintiffs. And Biden and the US Marshals would play no role, because there is no court order to enforce.

What would happen if Newsom or other state officials attempted or threatened to attempt this?

    • The new targets would sue in federal court, asking for an injunction to protect them.* They should get it, although a lot depends on how much precedential force these per curiam shadow-docket "decisions" or "orders," even with five justices behind them, carry. They may carry force less as precedent than as a looking threat--lower courts are on notice that failure to enjoin will be summarily reversed by SCOTUS, which now sees it as its job to superintend litigation without awaiting finality or full briefing. Either way, it seems likely that the district court would issue that injunction prohibiting enforcement against these new targets. The new targets also could obtain attorney's fees as prevailing parties, which might be the strongest drag on pursuing this strategy. This new judgment and injunction protects these individuals against enforcement by these state officials. Were officials to continue enforcement efforts as to these plaintiffs, they would be disobeying a court order; subject to contempt, fines, or other sanctions; and subject to action by US Marshals.

[*] Alternatively, they might join as plaintiffs in the current action and ask the court to expand the injunction. There are some close Rule 20 joinder issues there.

    • The new targets also might ask for damages from the attempt or threat to enforce, even if only nominal. The question then is whether the defendants would lose qualified immunity for their actions. Is it now clearly established that COVID regulations treating religious practice less favorably than any other activity (comparable or not) violates the First Amendment? Again, it depends on how courts treat these orders as precedent that clearly establishe a right.

Would Justices Thomas and Gorsuch, both on record as rejecting application of injunctions beyond the names plaintiffs to that case, disagree with any of this?

This is the first time we have seen this idea from the left; previous talk of "resistance" efforts came from the right, in response to Brown and Obergefell. And it does no good to distinguish this case as involving a "rule that religious people get to ignore the law." Any framing--here, in Brown, or in Obergefell--reduces to disagreement with the substance of a decision and an attempt to convert disagreement into a suggestion of illegitimacy.

Posted by Howard Wasserman on April 11, 2021 at 05:12 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thoughts on Caron Nazario lawsuit

Here is the complaint. A few thoughts.

• The complaint is uniquely specific and precise about the facts because the plaintiff obtained the officers' body-camera footage and footage from his cellphone. He could review (and cite to) evidence in the pleading. No need to rely on boilerplate, to plead on "information and belief," or to plead in general terms. No Twiqbal problems here.

• The First Amendment claim is interesting. He alleges that the officers threatened to retaliate against him by pursuing charges if he exercised his First Amendment petition rights and complained, then filed false reports in furtherance of that effort. First Amendment retaliation is tough--the plaintiff must prove the officers did not have probable cause to arrest for anything, which typically  is tough to show. But the camera footage helped in framing that claim.

• The complaint does not try to do too much. Nazario sues only the officers for the immediate violations. He does not try to weave a failure-to-blank theory to establish municipal liability based on patterns of past misconduct by these or other officers. The complaint also does not spend pages weaving this action into the broader national problem of police abuse. It does not employ outraged rhetoric to appeal to the reader's emotion. Such information would not be legally important to this case (except in furtherance of the failure-to-train theory that the plaintiff does not pursue). But it would be politically important in placing this case in a bigger picture and drawing public interest and attention to the case. Beth Thornburg coined the term "pleading as press release" to describe using the complaint to speak to, and litigate one's position in, the public . Whatever the merits of doing that, it is interesting that this plaintiff and his lawyer did not try it. Maybe the video, which is all over the internet, performs the work that the language of the complaint ordinarily would perform--news stories can describe the video rather than quoting outraged rhetoric in the pleading.

Posted by Howard Wasserman on April 11, 2021 at 01:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, April 08, 2021

JOTWELL: Thomas on Coleman on the Rules Committees

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Brooke D. Coleman, #SoWhiteMale: Federal Procedural Rulemaking Commitees, 68 UCLA L. Rev. Disc. 270 (2020), which explores the race and gender composition of the rules committees and the problems lack of diversity creates.

Posted by Howard Wasserman on April 8, 2021 at 01:38 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Justice Jackson's Opinion Is An Outlier

One reason that I want to write a book about Justice Jackson's concurring opinion in Youngstown is that the near-universal praise given to his analysis is at odds with trends in modern jurisprudence.

For example, Jackson's opinion is personal. He refers to his work as Attorney General as a major influence on his views in a way that I think would be viewed critically today. (Isn't law supposed to be impersonal?) Likewise, Jackson dismissed originalism as a method of interpretation. The opinion does use history, but in a thematic way that I don't think that originalists find terribly persuasive.

Jackson's functional reasoning is also increasingly out of favor. He admits that there are some areas where the right answer is unclear or must be determined by policy considerations. He cites a lot of political science, ranging from a book by Woodrow Wilson to a quote by Napoleon. He also relies on a comparative assessment of European emergency law (from France, Germany, and Britain). And he talks about the modern presidency by referring to developments outside of the text such as the rise of the party system or the growth of mass communications. 

All of this makes me wonder if reverence for Jackson's opinion might decline in the coming years. Michael McConnell's recent book on the president offers the most sustained criticism of the opinion that I can find, which makes sense especially given his originalist approach in that book.


Posted by Gerard Magliocca on April 8, 2021 at 12:25 PM | Permalink | Comments (5)

Tuesday, April 06, 2021


A lot of great commentary on the long awaited SCOTUS decision. It is a win for more competition and innovation. Mark Lemley's discussion of the case and its broader implications is a good place to start if you haven't been following. Here is the Marketplace conversation with Lemley.

Posted by Orly Lobel on April 6, 2021 at 01:09 PM | Permalink | Comments (10)

Boilerplate Collusion: Clause Aggregation, Antitrust Law & Contract Governance

My article on boilerplate bundles of clauses and individual contract/antitrust nexus is forthcoming in the Minnesota Law Review, and is now up on ssrn here. I'd love thoughts and comments. Here is the abstract: 

Contract clauses should be assessed in relation to each other when examining their meaning, validity, and enforcement. In contemporary markets, drafters create impenetrable bundles of clauses and sets of interrelated contracts operating together. This article exposes the ways that a contract is larger than the sum of its separate clauses and a set of interrelated contracts is more harmful than the aggregation of each contract on its own. The article further shows that contract adjudication embeds these insights intuitively, but both contract law and antitrust law are yet to develop a principled and consistent analysis of how contract clauses collude in action. These understandings have implications for nearly every contract doctrine and in every policy field. Recognizing how contractual clauses produce a different effect than a simple summation of each clause enriches regulatory fields ranging from employment to consumer law, insurance law to intellectual property law, speech law and arbitration law. This article analyzes several key contexts to demonstrate the significance of aggregation: contract clauses that substantively restrict rights such as speech and mobility and clauses that procedurally restrict rights and access to litigation, including pre-dispute arbitration clauses and class action waivers. I argue that courts have instinctively employed notions of aggregation in their decisions, albeit without consistent analysis and without the wealth of contemporary behavioral research on the psychological effects of aggregation. The article is the first to analyze how behavioral studies on the human tendency to judge probabilities and risks differently when events are compiled versus unpacked are critical to understanding the effects generated by boilerplate collusion. The article concludes with policy implications for both contract interpretation and regulation. I argue that recognizing aggregation supports reforms in adjudicative defaults, including the rejection of reformation and blue- penciling and the treatment of redundancy as a feature, not a bug, in contract adjudication. Second, a better understanding of the phenomenon of boilerplate collusion points to the need for a more proactive approach to contract policy. As contract thickets abound, antitrust must reject its sharp divides between vertical and horizontal constraints and agencies, including the FTC, the EEOC and the Labor Department should use their regulatory powers to address the harms of boilerplate collusion.

Posted by Orly Lobel on April 6, 2021 at 12:40 PM | Permalink | Comments (4)

Speech is not money (Update)

People are having fun ridiculing ridiculous Republicans. After years of insisting that the First Amendment guarantees corporations the right to spend money supporting (mostly Republican) candidates and causes have now decided that corporations and corporate executives must "stay out of politics" when their speech consists not of writing checks to GOP candidates but of boycotting certain locations and business partners or otherwise speaking as an entity on matters of public concern. In fairness, maybe Republicans such as Mitch McConnell never believed that corporations should be able to "speak," only that they should be able to spend money (by giving it to Republicans)--and speech is not money.

Of course, the left is not doing much better. Many are urging, supporting, and celebrating large institutions (Coca-Cola, Delta, MLB) wielding their economic power to protest, and try to influence, government decisions and public policy. But if this is legitimate and laudable behavior from these companies, most of the left criticisms of Citizens United and cases--"corporations are not people," "corporations don't have First Amendment rights"--evaporate. Believing that MLB can and should move the All-Star Game from Atlanta in response to voter-restriction laws depends on believing that MLB has the right, as an entity, to take a position on matters of public concern.

Neither side can have it both ways. Either corporations enjoy First Amendment rights to engage, through expenditure (or non-expenditure) of funds, in public debate or they do not. It does not vary by context. It does not vary by the political position they take. And it does not vary by the type of corporation. If Delta can (and should) take corporate action that furthers principles you like, then Delta may take corporate action that furthers principles you do not like.  If Coca Cola can spend money to support the election of candidates you support, then Coca Cola can spend money, time, effort on positions you do not support. You can make your expressive decisions accordingly.But your response cannot be that it does not have the right to do it or that it should "stay out of" the arena.

There is a liberal argument that would oppose expansive campaign spending  but support current corporate efforts in Georgia and elsewhere. But it is not the Citizens United bumper sticker that most liberals favor. It argues that big-money contributions and expenditures should not be allowed to influence public officials and elections, that elections are "bounded institutions" in which unique limitations should apply in ways they do not in the larger public debate. This is an argument about wealth and controlling its influence in the electoral system, not corporate status. That is, the problem is not corporate spending but all spending, by people and corporations alike. But that is not the argument that most liberals make about campaign finance.

Update: Wow. I was being sarcastic about Republicans being ok with corporations spending money but not speaking. But that appears to be Mitch McConnell's position: "Stay out of politics because it's not what you're designed for," but "I'm not talking about political contributions," only "taking a position on a highly incendiary issue." Don't speak, just spend money. Don't take express positions, just give money to me and people I like (presumably to gain influence). I can only assume that issues and candidates with which McConnell agrees are never "highly incendiary." This would be laughable if not so par for the course.

I do not expect intellectual honesty or consistency from McConnell. But I would like to hear a theory of why contributions are ok but express positions are not. To blanket contributions (and expenditures) in the First Amendment, there must be an expressive quality to those expenditures. And there is no logical way to say a corporation has First Amendment right and can speak, but that it must limit its expression to the form of campaign contributions but no other expression in other forms (especially because giving money so someone can spend it is less expressive than other forms of corporate communication involving true speech).

Further Update: An alternative title to this post (seen on Twitter and elsewhere) might be "Money is speech, but speech is not speech."

Posted by Howard Wasserman on April 6, 2021 at 11:32 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, April 05, 2021

Entry Level Hiring: The 2021 Report - Second Call for Information

This a reminder of the Entry Level Hiring Report.

If you have information about entry-level hires for this year, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect 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)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on April 5, 2021 at 07:16 PM | Permalink | Comments (0)

SCOTUS vacates Knight Foundation, Thomas has things to say

SCOTUS GVRed Biden v. Knight Foundation (begins on p.9) with instructions to dismiss as moot under Munsingwear. No surprise, as mootness was always inevitable because Trump would someday leave office, known to happen once he lost the election, and factual once Twitter banned him. Whether plaintiffs can recover attorney's fees remains. As do questions of the effect on qualified immunity.

We also have some explanation for why this took so long--Justice Thomas wrote a lengthy (solo) concurrence, emphasizing that the real power over internet spaces is private rather than governmental and offering arguments for why internet platforms might be regulable as common carriers or places of public accommodation. He also suggests that lower courts have misconstrued § 230 to give immunity to "bad-faith removal of third-party content," whatever that means. And he carries water for the grievance of Trump being banned from Twitter (and his 89 million followers), demonstrating the "stark" disparity between Twitter's control and Trump's control.

Thomas recognizes that the First Amendment limits government power to control speech in a private space that it rents or uses.

Whether governmental use of private space implicates the First Amendment often depends on the government’s control over that space. For example, a government agency that leases a conference room in a hotel to hold a public hearing about a proposed regulation cannot kick participants out of the hotel simply because they express concerns about the new regulation. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 547, 555 (1975). But government officials who informally gather with constituents in a hotel bar can ask the hotel to remove a pesky patron who elbows into the gathering to loudly voice his views. The difference is that the government controls the space in the first scenario, the hotel, in the latter.

I think this misses the mark in two respects. First, Trump could have asked the "pesky patrons"--assuming they were violating Twitter's terms of service--be removed by Twitter. Second, a government official's Twitter feed is more than an informal gathering with constituents and Thomas' framing minimizes the communicative power of Twitter. It seems more akin to a Town Hall meeting or a speech--the official speaks to the public and the public can hear and respond. If that is not a full-on public hearing on a proposed regulation (which limits the effect to legislative bodies), it is more than people who happen to be public officials hanging out in a bar.

Posted by Howard Wasserman on April 5, 2021 at 11:46 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

The Canonization of Jackson's Youngstown Opinion

Why is Justice Jackson's concurring opinion famous? Much of the credit goes to Richard Nixon. The Nixon Administration's broad claims of executive power, combined with the abuses of Watergate, drew substantial attention to what Jackson said in Youngstown. For the first twenty years after Youngstown, Jackson's opinion did not receive special consideration (though you can find cites here and there.)

The tipping point was 1973. First, Judge Sirica's opinion on the Watergate tapes case quoted from the concurrence (though, oddly, the cite did not explain that that the quote was from the concurrence.) Second, Arthur Schlesinger's influential book on The Imperial Presidency discussed Jackson's opinion at length. Third, the DC Circuit's opinion largely affirming Judge Sirica also quoted from the concurrence.

After that, a fairly rapid consensus emerged that Jackson's opinion was the gold standard. The Supreme Court quoted from the opinion in the Nixon case. Congress expressly relied on the opinion in drafting both FISA and the National Emergencies Act. And you start seeing more cites to the concurrence in cases and law review articles. Most of these cites are not about the tripartite framework. Instead, they focus on Jackson's functional view of separation of powers more generally.

Dames & Moore, of course, adopted the tripartite framework as controlling authority. Here the coincidence of Justice Rehnquist being on the Court and his role as Jackson's law clerk during Youngstown probably mattered. Finally, the concurring opinion was discussed at the confirmation hearings for Chief Justice Roberts and for Justice Alito, in part because Congress and the President were then at odds about various issues related to torture, warrantless wiretapping, etc.

Posted by Gerard Magliocca on April 5, 2021 at 11:45 AM | Permalink | Comments (1)

Friday, April 02, 2021

More Easter Eggs in the Youngstown Concurrence

With Easter upcoming, I thought I would share some interesting tidbits that I've discovered so far in my research on Justice Jackson's concurring opinion.

1. This appears to be the first Supreme Court opinion to use the term "relativity." Jackson uses it to talk about his famed three categories of analysis. I've also been fascinated by the use of scientific metaphors in judicial opinions, as this was the first that could be ascribed to Einstein's theory.

2. A few paragraphs of the opinion were lifted from a speech that Jackson gave in 1951 at Buffalo Law School. There are three paragraphs there describing emergency powers in Weimer Germany, the Third French Republic, and Britain during World War II that were essentially just copied into his opinion.

3. He quoted Rudyard Kipling's line: "Leave to live by no man's leave, underneath the Law." This is from "The Old Issue," an 1899 poem in which Kipling celebrates English history in restraining royal power. (Kipling talks about Magna Carta twice, for example.) This quote was an especially apt one for Youngstown because that was a case about executive power.

4. Jackson cited and relied in part on an analysis of executive power by Judge Augustus Hand in the 1920s. Six months before Youngstown, Jackson delivered a tribute to Learned and Augustus Hand at a bar function in New York. This may explain why Hand's opinion occurred to him in Youngstown.

Next week I'll post on what I've learned about the canonization of the opinion in the 1970s.   

Posted by Gerard Magliocca on April 2, 2021 at 08:53 PM | Permalink | Comments (0)

Thursday, April 01, 2021

FDR and the Legislative Veto

I've come across an interesting piece of esoterica. In the Lend-Lease Act of 1941, Congress inserted a legislative veto provision stating that the President's emergency authority could be terminated by a concurrent resolution after two years. The President objected to this clause on constitutional grounds and asked Attorney General Jackson to prepare an opinion saying as much. Jackson declined on the ground that he thought a legislative veto could be understood as a valid reservation of delegated power.

FDR signed the bill, but then wrote his own memo explaining why he thought that the legislative veto was unconstitutional. He gave the memo to Jackson for safe-keeping. Jackson finally disclosed the memo in a 1953 Harvard Law Review article, which you can find here. FDR's memo essentially offered up the reasoning that the Supreme Court gave in INS v. Chahda; namely, that legislative vetos violate the Presentment Clause. Jackson pointed out, though, that FDR signed many other bills with legislative vetoes and never publicly questioned their validity.

Another tidbit. Jackson's drafts of his Youngstown concurrence included some references to this FDR memo, though he later decided not to disclose that then. I want to think more about this point, as I think it may tell us something more about Jackson's view of the non-delegation doctrine.



Posted by Gerard Magliocca on April 1, 2021 at 01:37 PM | Permalink | Comments (4)