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Tuesday, May 18, 2021

Lawsky Entry Level Hiring Report 2021

Following is a data summary of the Spring Reported Entry Level Hiring Report for 2021. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes several hires who requested not to be included in the spreadsheet at the date of this posting.)

This report and the spreadsheet are freely available under the Creative Commons Attribution-Share Alike 4.0 license, cited as Sarah Lawsky, Lawsky Entry Level Hiring Report 2021, PrawfsBlawg, https://prawfsblawg.blogs.com/prawfsblawg/2021/05/lawsky-entry-level-hiring-report-2021.html.

Here is the full spreadsheet:

There were 68 tenure-track hires at U.S. law schools reported, at 47 different law schools.

Q: How does 68 reported hires compare to past years?

This is a drop from the last few years. The average number of hires per year since 2014 is 75. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year.)

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It would useful to know the percentage of those who registered with the AALS who got jobs. While the AALS does not provide that information, the number of forms in the first distribution of FAR AALS forms is not a terrible proxy. This graph and chart compares the hiring in Year X to the number of forms in the first distribution in Year (X - 1) (because those are the people who were hired in Year X).

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FAR Chart

Q: You say the hires were at 48 different schools. How does that compare to previous years?

On the low side.

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Q: How many reported hires got their JD from School X?

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Yale 13; Columbia 5; Chicago 5; Stanford 4; NYU 3; Harvard 3.

Schools in the “fewer than three hires” category with two JD/LLBs who reported hires: CUNY, Duke, Georgetown; Michigan, Vanderbilt, Virginia.

Schools in the “fewer than three hires” category with one JD/LLB who reported hires: American; Aristotle U; Augsburg; Berkeley; Bonn; Boston University; BYU; Cardozo; Democritus University of Thrace; Fordham; Fundacao Getulio Vargas; George Washington; Georgia; Illinois; Loyola-New Orleans; Nat'l Law School of India; Northeastern; Southern; Tehran; Temple; Tulsa; UCLA; Vermont.

This information comes with two related caveats.

First, the spreadsheet reports the number of hires who received a JD from a particular school who accepted a tenure-track job, but not the number of JDs on the market who received a tenure-track job offer.

Second, the spreadsheet reports the count of JDs from a particular school, but not the rate at which JDs received (or accepted) offers. A smaller school with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller schools may be undervalued if one relies only on this data, while larger schools might be overvalued. 

Q: How many reported hires had a fellowship, degree, or clerkship?

58 (about 85%) had a fellowship; 40 (about 59%) had a clerkship; 46 (about 68%) had a higher degree. All hires had at least one of these credentials. This is consistent with prior years.

Venn diagram:

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Comparing two categories of the Venn diagram related to fellowships, degrees, and clerkships--hires that have all three credentials, and hires that have none of the credentials--a shift starting in 2017 is apparent:

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Q: Still a lot of fellowships.

A: Yes, the percentage of fellowships is as high as it's ever been.

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Q: From what law schools did people get these fellowships?

I count here any law school at which a person reports having a fellowship. So one person could account for two schools’ being listed here. For example, if a single individual had a fellowship at Columbia followed by a fellowship at NYU, that would be reflected below as +1 to Columbia and +1 to NYU.

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NYU 13; Harvard 12; Columbia 6; Chicago 4; Berkeley 3; Georgetown 3; Stanford 3; Tulane 3; Yale 3; Fewer than Three 25.

This information comes with the same two caveats as the JD numbers.

First, the spreadsheet reports the number of hires who received a fellowship from a particular school who accepted a tenure-track job, but not the number of fellows who received a tenure-track job offer. This caveat likely applies to all or nearly all fellowship programs. Presumably, someone choosing between fellowships cares more about how many people received tenure-track job offers than about how many people accepted those offers.

Second, the spreadsheet reports the count of fellows, but not the rate at which fellows received (or accepted) offers. A smaller program with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller programs may be undervalued if one relies only on this data, while larger programs might be overvalued.

Q: Tell me more about these advanced degrees. 

Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column.)

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 46 “highest” advanced degrees broke down like this:

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Topics ranged all over the map. For the 31 Doctorates, 11 had degrees in Law (including Law & Economics and Law & Religion); 7 in Political Science (including Politics and Political Theory); 4 in Philosophy; 3 in Economics; 3 in History; 2 in Business (including Business Administration); 2 in Psychology (including Psychology and Business); and the other doctorate topics, each of which had only one hire, were Energy and Resource; English; and Health Policy and Management.

Q: What is the percentage of doctorates over time?

This year continued the now five-year trend of a 40% or higher percentage of reported hires with doctorates.

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Q: That's a lot of doctorates, and that goes along with a lot of fellowships! How many people had a doctorate, or a fellowship, or both?

96% of the hires had either a doctorate (Ph.D., SJD, JSD, D.Phil.), a fellowship, or both. This is the highest the number has ever been.

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Q: How long ago did these reported hires get their initial law degrees?

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Zero to Four Years (Graduated 2017-2021) 9; Five to Nine Years (Graduated 2012-2016) 29; Ten to 19 Years (Graduated 2002-2011) 29; Twenty or More Years (Graduated before 2002) 1.

Q: How do the "time since initial degree" numbers compare to previous years?

Comparable, with a somewhat higher percentage of people who graduated 10-19 years ago.

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Year Grad Chart

Q: Could you break the reported hires out by men/women?

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Men 31 (47%); women 36 (53%). (Let’s say this is right within +/-2 people.)

Based on a quick count of a number of years of spreadsheets that I happen to have, gender hiring over time follows. (I’ve left out the data labels because I am even less sure than usual of the exactness of the numbers, but they’re roughly right as reflections of self-reported hiring each spring—first Solum’s reports, then mine. And as always, 2010 is left out due to missing data for that year.)

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Q: More slicing! More dicing! Different slicing! Different dicing!

Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group.

Q: This is all wrong! I know for a fact that more people from School Y were hired!

Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete. 

If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about self-reported entry level hires as of the spring before the school year starts. 

Originally posted 5/17/2021; updated 5/17/2021 and 5/18/2021 to include additional hires.

 

Posted by Sarah Lawsky on May 18, 2021 at 12:14 PM in Entry Level Hiring Report | Permalink | Comments (3)

Monday, May 17, 2021

Blogging from Mount Vernon

I'm staying on the Mount Vernon estate as part of my fellowship at the library here. I'll post some photos of the estate later in the week, but I cannot pass up the opportunity to blog from America's most famous home.

Two new letters that I'm looking were sent by Bushrod to Martha right after George's death. He explained various aspects of George's will and their effect on her. On a couple of points, though, he said that the legal issues were complex and thus he would "consult with General Marshall" on his next trip to Philadelphia and that they would advise her of their joint opinion. (People called Marshall "General" because of his rank in the Virginia militia.) At that time, Marshall was a member of Congress serving in Philadelphia.

The upshot is that Bushrod and Marshall already had a close professional relationship before they served on the Court. (I have some other examples of this in my draft of the book, but I had not read this particular letter until now.)

I also want to give a shout-out to an excellent book I've picked up here by Matthew Costello called The Property of the Nation, George Washington's Tomb, Mount Vernon, and the Memory of the First President, which was published by the University Press of Kansas in 2019. It's a great read and very insightful. 

Posted by Gerard Magliocca on May 17, 2021 at 09:08 PM | Permalink | Comments (0)

Fed Courts Day at SCOTUS

Monday was the seemingly annual day in which the Court drops multiple Fed Courts decisions.

CIC Servs. v. IRS held unanimously that an action challenging the validity of a reporting requirement, even one backed by a tax penalty for noncompliance, is not barred by the Anti Injunction Act. The Court identified three features that define whether the purpose of an action is to restrain assessment or collection of a tax: Whether the challenged rule imposes costs separate from any tax, how attenuated the tax payment is from the challenged rule, and whether noncompliance is enforced through non-tax mechanisms, such as criminal penalties. Justice Sotomayor concurred to suggest the answer might be different in a challenge brought by a taxpayer as opposed to a tax adviser (the plaintiff in this case), because those three features, especially costs, play differently for the taxpayer. Justice Kavanaugh concurred to seemingly broaden the Court's opinion as allowing all challenges to regulations backed by tax penalties ("Do X or pay a tax penalty) even if the result of a successful suit would preclude assessment or collection of a tax. Would his reading mean that the ACA individual mandate was not barred by the AIA not because it was not a tax, but because it was a regulation backed by a tax penalty?

B.P. v. Mayor of Baltimore held 8-1 that when a case is removed in part under § 1442 (federal-officer removal) and the district court remands, all bases for removal may be raised on appeal, even those bases for removal that could not have been appealed independently. Section 1447(d) says "order remaning," which includes all possible bases and grounds for the order remanding. Justice Sotomayor dissented and I think has the better of the argument; the text is not as clear as the majority suggests and the potential mischief--borderline frivolous federal-officer or civil rights removal followed by appeal of other grounds not otherwise appealable--would undermine the purposes of § 1447(d) in limiting appeals of remand orders.

Edwards v. Vannoy held 6-3 that Ramos v. Louisiana (holding last term that the Sixth Amendment required unanimous juries) did not apply retroactively to habeas actions. The Court held that new procedural rules cannot apply on habeas, eliminating Teague's exception for "watershed" rules of criminal procedure because no rule had ever been held to be such a watershed. Justice Thomas (joined by Justice Gorsuch) concurred to argue that the case should have been resolved under AEDPA--the state court's decision upholding Edwards' conviction could not have been unreasonable prior to the Court changing the law in Ramos. Gorsuch (joined by Thomas) concurred to provide a disquisition on the history and evolution of habeas to argue that modern habeas review of state court judgments does not reflect the original purposes of habeas corpus and does not authorize federal courts to reopen final state court judgments. Justice Kagan (joined by Justices Breyer and Sotomayor) dissented.

Apart from the details, the case included one interest exchange. Justice Kavanaugh wrote the majority here and supported the judgment in Ramos (he joined Gorsuch's plurality in part and concurring in part), while Kagan dissented in Ramos and here. Kavanaugh objected to Kagan criticizing the Court was failing to live up to the promise of Ramos and "impugn[ing]" the Court for shortchanging defendants. Kavanaugh argued that defendants are better off under his (and the Court's) view--some defendants (those whose cases are pending and whose convictions have not completed direct review) benefit, even if not all do. That is better off than if Kagan's view in Ramos had prevailed. Kagan responded that the force of stare decisis shifted--it supported her position in Ramos, but Ramos having been decided as it was, stare decis "was on its side" and the Court must "take the decision on its own terms, and give it all the consequence it deserves." Given recent stories about Kagan's efforts to reach out to Kavanaugh, Kavanaugh seemed put off by Kagan "rhetoric" and what he perceived as an implication of bad faith.

Posted by Howard Wasserman on May 17, 2021 at 02:01 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, May 14, 2021

You can't handle a real trial

I have read many discussions about Lt. Cmdr Galloway (the Demi Moore character) in A Few Good Men being an awful lawyer. One commentator went so far as to label her the real villain of the film. She is bad, although she did introduce the concept of strenuously objecting, which I use in flagging students' unnecessary use of adverbs.

Like in any legal movie, the courtroom histrionics are nonsense and a lot of what Kaffee did was inappropriate in its place. But it lays out facts and evidence that could have been worked into a realistic trial. So something I have thought about for years: Did Kaffee need Jessup to confess to ordering the Code Red? Or could he have created reasonable doubt in a real case?

Prosecution's evidence:

    • Dawson and Downey attacked Santiago, stuffed a rag in his mouth, and Santiago died.

    • The doctor testified that the rag was poisoned, largely based on the results of the autopsy and the cause of death.

    • Kendrick testified that he ordered the men in the unit not to touch Santiago, however much they might want to.

    • Santiago was scheduled to be transferred the next morning, so Kendrick and Jessup had not reason to "train" him through a Code Red.

    • Dawson had motive--Santiago threatened to report Dawson for a fence-line shooting. It is not clear what Downey's motive was--following Dawson, I guess.

Defense evidence:

    • Dawson had previously ignored orders and helped a Marine who was being denied food as a Code Red; his performance ratings and the speed of his promotions dropped.

    • Code Reds (Codes Red?) were a thing at Gitmo, it was in the air, and everyone knew about them.

    • Dawson protected Santiago. The men in the unit knew that and would not have given him a Code Red because Dawson would not have allowed it.

    • Santiago had not packed and had not told family that he was being transferred (although he was supposedly being transferred not discharged, so I am not sure whom he was supposed to tell).

    • Men follow orders or people die.

    • We did not see it, but there almost certainly would have been other positive character evidence on the defendants, who were, before this, "poster-child marines."

    • The doctor's testimony changed--initially inconclusive, then certain about the presence of poison.

Kaffee's closing: Much of what Kaffee does in examining witnesses, especially Jessup, would properly have occurred during closing and could have been effective then.

    • Inconsistency between the supposed transfer and the supposed order not to perform a Code Red, given that men follow orders. Both were designed for Santiago's protection, but there is no reason to issue both. Combined with Santiago not having packed and being asleep four hours before his flight, it seems unlikely that he was being transferred. So the plan was to tell the men not to touch Santiago.

    • Dawson had gotten in trouble for ignoring orders, so he would not have ignored Kendrick's order not to touch Santiago. Especially given his history of protecting weaker marines, including Santiago. Dawson would not disobey an order anymore and he would not attack a weaker marine. For him to do this, he must have been ordered.

Reasonable doubt?

Posted by Howard Wasserman on May 14, 2021 at 09:31 AM in Film, Howard Wasserman | Permalink | Comments (5)

Thursday, May 13, 2021

Fed Courts Puzzle

After Twitter banned Donald Trump and others, Texas Attorney General Ken Paxton issued a Civil Investigative Demand (CID), a demand from the Consumer Protection Division seeking documents relevant to an investigation into possible violations of state consumer-protection law. Twitter filed suit in the Northern District of California, seeking a declaratory judgment and injunction stopping investigation or action to enforce the demand, alleging that investigation was begun to retaliate against Twitter for content decisions Texas did not like.

The Northern District of California dismissed the action as not ripe. The demand is not self-executing and requires the state to initiate an enforcement action in state court; absent a court order, Twitter can ignore the demand without penalty. The initiation of a retaliatory investigation, without more, is not sufficient adverse action to make a retaliation claim. The court distinguished precedent involving employment investigations, which carry the threat of termination or other adverse employment action, and subpoenas and other investigatory documents that carried sanctions without court involvement. Here, Texas would have to file an action in state court and any consequences on Twitter come from a state court finding that demand is valid. Because "to date,no action has been taken to enforce the CID," Twitter's action is premature.

But the effect will be to lock Twitter out of federal court on its First Amendment claim. Once the AG initiates the enforcement proceeding, Twitter would have an opportunity to raise its First Amendment arguments.  That the means the federal court might have to abstain under Younger--this would be a civil enforcement proceeding akin to a criminal proceeding, in which the state as party seeks enforce its laws, the proceeding would be pending, and Twitter would have an adequate opportunity to raise its federal constitutional arguments. Alternatively, should the state court find the CID valid, Twitter would be complaining about a state court judgment, triggering Rooker-Feldman. At a minimum, issue preclusion would prevent federal relitigation of the First Amendment questions raised and decided in the state enforcement proceeding. Twitter's only option is to appeal the enforcement action through the Texas system and hope SCOTUS would take the case on review. In the meantime, it can do nothing about the threat over its head and the chilling effect it is intended to create.

Update: An emailer shares my skepticism, wondering why this case should not be Steffel v. Thompson--a declaratory judgment on the First Amendment defense to any enforcement action. He suggests this was an error in framing. The court described Twitter's sought remedies, quoting the complaint, as an injunction prohibiting "any action to enforce the CID or to further the unlawful investigation" and a declaratory judgment that the "First Amendment bars . .. Paxton's January 13, 2021 CID and the investigation." By framing the DJ around the investigation rather than enforcement--whether on her own or based on the complaint--the court pulled the case out of Steffel. The result is to keep Twitter out of federal court, except through SCOTUS review.

Posted by Howard Wasserman on May 13, 2021 at 02:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, May 12, 2021

Anti-Vaxxers on Facebook and Nazis in Skokie

Yale law professor (and Tiger Dad) Jed Rubenfeld has signed on as counsel for Children's Health Defense, a non-profit anti-vaxx organization founded by Robert Kennedy, Jr., in a lawsuit alleging Facebook and Politifact violated the First Amendment in labeling certain content as false and in preventing people from donating to CHD through the site. CHD argues that Facebook acted under color because the CDC gave Facebook the standards and guidelines it used in its labeling, creating a close nexus through government coercion or encouragement of private constitutionally violative conduct. The more obnoxious coverage emphasizes that Rubenfeld undertook this representation during a two-year suspension at Yale, creating complementary memes of "disgraced law prof further disgraces himself" and "this is what happens when law professors try to practice law."

But I cannot see a meaningful difference between Rubenfeld pursuing free-speech claims for anti-vaxxers on Facebook and the ACLU pursuing free-speech claims for Nazis in Skokie. I (and most of the people using the case as a chance to zing Rubenfeld) agree with the legal arguments in the latter and disagree with the legal arguments in the former. But that cannot be the difference in evaluating the professional, ethical, or moral propriety of the decision to serve as counsel and to pursue this litigation.

Nor is the answer that the ACLU raised obviously and indisputably valid arguments about core free speech principles while "everything about [CHD's] case is dumb, and the fact that the disgraced and suspended Rubenfeld is using it to further his nutty legal theories is just the icing on the nonsense cake." Skokie was not the simple case in 1977 that it appears in 2021. Under the law at the time, fighting words had not been narrowed to face-to-face encounters, a state could punish group libel, and police could arrest outrageous speakers to prevent a hostile audience from engaging in violence. Newer case law (e.g., Brandenburg and Sullivan) called those cases into question, but the landscape was more open than it is today. Someone certainly labeled the ACLU's case on behalf of the Nazis "dumb." Similarly, arguments can be made that "Facebook is a private actor and so can control what gets said and how" is not the sole plausible conclusion. No precedent controls the situation in any direction. And while I believe best application of existing state-action doctrine leads to the conclusion that Facebook is not a state actor and I expect courts to agree, it is not so obvious.

This story implicates a broader controversy over how vigorous attorneys should be in pursuing civil litigation on behalf of plaintiffs. At what point can/should/must an attorney decline to take on a case or to make arguments in support of the client's position and how does the attorney identify that line? The general view is that a criminal defense lawyer is sui generis; the imperative to do whatever it takes is greater when defending an individual against the overweaning power of the carceral state, even when a "bad person" benefits. Even if not the same, however, Skokie has been celebrated as the principled lawyer using civil litigation to pursue general ideals for all, albeit for the immediate benefit of the ultimate bad or unappealing person. This was obviously and especially true of the First Amendment, but it was not so limited; RBG established principles of gender equality by vindicating the rights of men. Moreover, the analogy between civil and criminal works when both are about protecting rights against the power of the state. The state seeking to incarcerate is different in degree but not kind of the state prohibiting rights-holders from exercising their rights.

What has changed, such that Rubenfeld is the target of criticism and mockery? Or put differently, would we see the same criticism and mockery if Rubenfeld had joined the Skokie case. One possibility is that some might be be less accepting of the Skokie narrative, less accepting of lawyers using general principles used on behalf of bad people. Otherwise, are anti-vaxxers "worse" than Nazis? Some segment believes the ACLU was wrong to represent the Nazis in Skokie, so Rubenfeld is equally wrong to represent anti-vaxxers. A version of this positionarose during the post-election litigation, where firms and lawyers (including some large firms with reputations at stake) were criticized for pushing legally and factually absurd cases on behalf of plaintiffs wronged by state governments (and Dominion, of course), distinguishing those doing whatever is necessary on behalf of criminal defendants.

Posted by Howard Wasserman on May 12, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

Tuesday, May 11, 2021

Hiring: Lewis & Clark Law School

LEWIS & CLARK LAW SCHOOL in Portland, Oregon invites applications from entry level candidates for three positions to begin in the 2022-23 academic year. These positions will remain open until filled.

We seek candidates to teach (1) criminal law, criminal procedure, evidence, and related courses, (2) property, wills & trusts, and related courses, and (3) lawyering, legal writing, and related courses.

We will employ an accelerated timeline this year. We hope to identify an initial group of prospective candidates no later than August and to begin screening interviews shortly thereafter. Campus callbacks will begin in September. Applicants who receive an offer likely will have two weeks to consider the offer. In some cases, an applicant may need to make a decision before other law schools have begun screening interviews or callbacks. Therefore, applicants should have serious interest in Lewis & Clark Law School and living in the Pacific Northwest. 

Interested persons should send a resume or c.v., references, a writing sample, and an indication of specific teaching interests to Kerry Rowand, Executive Assistant, at [email protected].

Lewis & Clark is an equal opportunity employer, and we encourage applications from candidates who would enhance the diversity of our community. For questions about these positions, contact John Parry, Associate Dean of Faculty, at [email protected]. Information about Lewis & Clark Law School is available at https://law.lclark.edu/.

Posted by Howard Wasserman on May 11, 2021 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Entry Level Hiring: The 2021 Report - Final (?) Call for Information

This is, I think, the final call for information for the Entry Level Hiring Report. I currently plan to close reporting on Monday, May 17. If, however, you know that there is ongoing hiring, please let me know, and I will extend that date. Absent any such information, though, I will close the report on Monday, May 17.

If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 17, 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.

Also, if you have accepted a job but are not ready to make it public yet, please consider contacting me anyway. Every year, the aggregate report includes information from hires that are not reported on the spreadsheet. That is, I keep the individual's information private and just increase the relevant numbers. (74 people hired rather than 73, etc.) The more information I can include in the aggregate data, the more accurate the report will be.

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 May 11, 2021 at 07:46 AM in Entry Level Hiring Report | Permalink | Comments (0)

Monday, May 10, 2021

Bushrod Washington on Slavery

The pandemic is delaying the editing process for my Bushrod Washington biography, but I'm still hopeful that the book will come out next year. I recently transcribed most of a draft letter from the Justice that contains some notable observations on slavery that I want to share.  

The letter is undated, but must have been written after 1816 because the American Colonization Society is mentioned. The intended recipient is also unknown, but the person was someone who sent Washington an essay proposing that Congress exercise the power of eminent domain to free the nation's slaves and compensate the slaveowners. (This is, in fact, what was done in the District of Columbia during the Civil War.) I cannot say if Justice Washington's response was sent or merely drafted.

After the praising the essay, Washington said:

"I have no hesitation in declaring that I concur in all the sentiments you express as to the policy of giving freedom to our slaves under such modifications as may insure their happiness and promote the well being of our country. The difficulty comes in arranging such a scheming for the accomplishment of these great objects as is susceptible of execution. This unfortunate class of society constitutes the great mass of labor employed in the agriculture of the southern states. To withdraw it prematurely before it is ready to be supported by an equally efficient white population would be attended by the most disastrous consequences."

Justice Washington then said that the problem was that white foreign immigrants did not want to come to the South and work on plantations when they could farm their own land on the western frontier. Solving this problem was a task for "wiser heads than mine." Nevertheless, Washington said that slavery's demise "may be gradually brought about by voluntary emancipation and the advance of natural sentiment and feeling upon the subject as rapidly as the present circumstances in the Southern states will bear." 

He then turned to the essay's emancipation proposal. "With respect to the great outlines of your scheme: 1st, forced emancipation by the national government; and 2nd, compensation to the slaveowners from the National Treasury--they are exposed to difficulties which I have not been able to surmount. It is possible, however, that there is no great weight in them: they have no doubt occurred to you." Here you get a glimpse of how Washington might have operated with the Supreme Court's conference to make his points in a genial fashion.

Washington then explained his concerns: "[H]as the national government the power under the Constitution to adopt the proposed measure? It is certainly not to be found amongst the defined powers and I do not perceive that it can fairly be implied from any part of that instrument." (It's not clear whether Washington was referring here to the general power of eminent domain or just as applied to enslaved people.) His second point was practical: he doubted that Congress would approve such a large transfer payment from North to South. In other words, the proposal was just too expensive to pass.

I will be at Mount Vernon next week for a long delayed research trip. Perhaps I will make one more big discovery.

Posted by Gerard Magliocca on May 10, 2021 at 08:23 PM | Permalink | Comments (1)

Twiqbal and accrual

The Eighth Circuit held last week that a claim for retaliation accrues at the time of the retaliatory actions and comments suggesting retaliatory motive. (H/T: Volokh Conspiracy's Short Circuit). The case arises from the 1989 kidnapping and murder of an 11-year-old in central Minnesota, a national-obsession case I had never heard of; I plowed through the In the Dark podcast on the case over two bike rides this weekend.

Daniel Rassier and his mother, Rita, owned the farm at the end of the driveway near which the abduction occurred; the killer turned around and parked in that driveway for a time on the night of the attack. Beginning around 2004, Daniel publicly criticized the new county sheriff, who had begun focusing on Daniel as a possible suspect. In 2009, the sheriff sent the victim's mother into a conversation with Daniel wearing a wire, hoping to catch him saying something incriminating; Daniel instead criticized the sheriff and the investigation. Upon hearing those critical comments on the wire, the sheriff obtained a search warrant for the Rassier home and publicly named Daniel a "person of interest" (a meaningless term that should be retired). During the search, the sheriff allegedly twice told Daniel, "this is what happens when you talk." The sheriff repeated these statements to the podcast reporter, suggesting there are ways a person should not speak about an investigation. Daniel obviously became a social pariah after these accusations, including losing his business giving private music lessons.

The killer, Danny Heinrich, was identified in 2016 and confessed, pleading guilty to one count of possession of child pornography (the podcast discusses the reasons for that). The sheriff never apologized or acknowledged the mistake in suspecting Daniel. This plays into the podcast's theme that the police screwed the case up (they identified the perpetrator within a few days, then failed to put together the necessary information) and that this county sheriff's office has a notorious track record for failing to solve major violent crimes.

Daniel and Rita sued in 2017, less than a year after Heinrich's confession but seven years after the search (the limitations period is six years). Daniel argued that the claim did not accrue until 2016, when two things happened: 1) Heinrich confessed, thus establishing Daniel's innocence of the crime; and 2) Daniel read an unsealed copy of the sheriff's warrant affidavit, which he said was the first time he had written proof of retaliatory motive. (The podcast reports on a the transcript of the warrant hearing, which shows law enforcement making stuff up). The court rejected the argument, holding that 1) there is no requirement of certain innocence before the claim can accrue and 2) the sheriff's oral statements gave Daniel notice and a basis to believe there was a retaliatory motive, starting the clock on the claim.

Had Daniel sued prior to 2016, he would have alleged the sheriff's statements, along with facts describing the search, his criticism of the investigation, the various investigative failures, and his innocence of the crime. The court states that those facts gave Daniel notice of a viable claim. The court implies that this would have been sufficient to state a claim and that he could have found the affidavit in discovery and used it to prove his case.

But would those facts, without the allegations based on the affidavit or the sheriff's later stattements, have survived a 12(b)(6) under Twiqbal? The court might have held that the sheriff's isolated statements are ambiguous or capable of alternative understandings, rendering retaliation a possible-but-not-plausible conclusion from the facts. Other allegations of retaliatory motive, without the evidence of the affidavit or other specific facts showing intent, might have been rejected as conclusory. So might the allegations that Daniel was innocent of the kidnapping/murder. Thinking of what Daniel could have known between 2010 and 2016, it is unlikely he had enough to survive dismissal.

This case places the problem in some relief. A claim is said to accrue when the injured person "can file suit and obtain relief." For a retaliation claim, that is the time of the retaliatory act combined with some basis to believe there was a retaliatory motive. But Twiqbal disconnects filing suit and obtaining relief. The information sufficient for the claim to accrue and to compel suit might not, when reduced to writing, be sufficient to survive a motion to dismiss. That seems problematic.

Posted by Howard Wasserman on May 10, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 09, 2021

Tawny Kitaen, sports, and speech

Actress Tawny Kitaen, who came to fame as Tom Hanks' love interest in Bachelor Party and in the video for Whitesnake's Here I Go Again, died on Friday. Kitaen was married to former MLB pitcher Chuck Finley, with whom she had two daughters. The marriage ended in 2002, following an April domestic-vi0lence incident.

So a quick note on Kitaen's connection to sport and speech. In April 2002, Finley, pitching for Cleveland, was warming up prior to a game against the White Sox in Chicago. Fans gathered near the bullpen to taunt him. The White Sox DJ then played Here I Go as Finley went to the mound. Following the game (in which Finley got rocked), the Sox fired the DJ. Unsurprisingly, I agree with this take: The Sox over-reacted, because "taking musical digs at an opponent is a well-established part of sports tradition." And while targeting someone's personal life is questionable, the personal has long combined with the athletic in the realm of cheering speech. The difference is it coming from the host team as opposed to fans.

Posted by Howard Wasserman on May 9, 2021 at 02:24 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Friday, May 07, 2021

Covid-19 Vaccines, IP Waivers, TRIPS, the WTO & Compulsory Licensing

On Wednesday U.S. Trade Rep Katherine Tai announced support of a waiver of IP protections. This is significant in many ways, not the least of which is the end of a hard American line against any softening of IP policy. Many of our colleagues are helping us understand the implications and meaning of this announcement, and I'm talking about it with a reporter this afternoon. The gist of it is that a waiver needs to be negotiated, can mean different things, and is very likely to be limited to the countries who cannot afford to pay. South Africa and India were the countries who proposed such a waiver from the World Trade Organization, and now there seems to be more willingness from the West to move toward such an agreement.

A waiver basically means that a country won't be in violation of TRIPS if it issues a compulsory IP license to manufacture vaccines (and also COVID-19 drugs). TRIPS already provides that during a crisis country can issue a compulsory patent license, but the proposed waiver would be broader as it will include also copyright and trade secrets and for any use, not just domestic. Still, many worry that the bottleneck at the moment is not IP but manufacturing capacities and the willingness of companies to share their know-how. Even with a waiver, it would be very difficult to force companies to share their secrets without their willing cooperation. 

For a good review of the issues, read Jorge Contreras here who as I blogged about in April 2020 has been a leader of the Open Covid Pledge. 

Posted by Orly Lobel on May 7, 2021 at 01:53 PM | Permalink | Comments (0)

Thursday, May 06, 2021

Judge Newsom goes Full Fletcher

The Eleventh Circuit held Thursday that a hearing-impaired individual has standing to bring ADA and Rehabilitation Act claims for damages against a municipality for failing to make videos on its web site accessible to the hearing impaired. (H/T: Longtime reader Asher Steinberg).

The notable part is the 50+-page concurrence from Judge Newsom, who goes Full William Fletcher to argue that there is no distinct Article III standing inquiry distinct from the merits, using examples from Fletcher's foundational article. What gets called standing is about the existence of a cause of action and the violation of a legal right and remedy, going to the merits of the claim and not to the court's jurisdiction. Congress' power to create causes of action is not unlimited. But the limitation comes not from Article III, but Article II and the power of the President to execute the laws. The requirement of a particularized injury is a way to distinguish public from private rights or actions to vindicate the rights of the individual--which Congress can enable--from actions, such as criminal prosecutions, to vindicate the rights of the general public--which reside with the executive and cannot be delegated to private individuals. Newsom acknowledges that his approach does not eliminate difficult line-drawing and hard questions to divide public from private rights. But there is value in focusing on Article II rather than Article and thus "seeking answers in the right place." And, I would add, value to analyzing it as a matter of merits rather than jurisdiction.

I could not have said this better myself. And I have tried in this space, a lot.

Posted by Howard Wasserman on May 6, 2021 at 07:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

End of (snow) days

I called this one.

Because everyone in my family was teaching and/or learning remotely for much of this academic year, we spent six months (mid-August to mid-February) in the Philly suburbs. We experienced the snowiest Philly winter in about a decade, with three major (6"+) snowstorms and 2-3 snow days. While taking a family walk in the snow, I wondered whether the year of remote learning signaled the end of the snow day--schools would shift to remote learning on those days in which weather prevents students and teachers from getting to the building.

New York City announced the elimination of snow days for the 2021-22 academic year, continuing the practice of the past year for many school districts. It made sense this year, when many schools were doing an in-person/remote hybrid; if half the school would have been remote, it made sense to make everyone remote for the day. But presuming schools are back to normal and everyone is in-person next year, this represents a major change, shifting the entire school from in-person to remote for the day. The arguments for this are clear--eliminating snow days gives the district control over the academic calendar and avoids the risk of the school year running (in the northeast) into late June. The arguments against it sound in nostalgia for the snow days of our youth.

In Miami, we do not have snow days, we have hurricane days. Eliminating these off-days is not an option, because a storm severe enough to close schools likely knocked out power and internet for teachers and students. On the other hand, kids cannot go out and play in the hurricane or its aftermath, so no one misses anything fun.

Posted by Howard Wasserman on May 6, 2021 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)

Oral arguments

With the exams about over, I come to my favorite days of the semester today and tomorrow: Oral Arguments in my Fed Courts and Civil Rights classes. Each student argues one case before SCOTUS and serves as Justice on one case as a final project; the cases are recent decisions from lower courts. Ordinarily, the class spends the day in the courtroom watching one another and we bring in lunch and coffee; this semester will be via Zoom, hopefully for the last time.

This is a fun exercise. It gives students another chance to do oral advocacy, which many do not do after 1L legal writing. It allows me to engage the students to see how well they can talk about material, outside the formalities of a paper. The list of this year's cases is after the jump (case numbers are made up, usually representing key dates in my family).

Federal Courts:

New Hampshire v. Massachusetts, No. 21-0526

      Motion for Leave to File Bill of Complaint on Original Jurisdiction

      Issue Presented: Whether this Court must and should exercise original jurisdiction over an action by one state challenging another state’s collection of income tax from non-residents.

 Shands Teaching Hosp. & Clinic v. Morgan, No. 21-0520

      Issues Presented: Whether a federal district court has subject matter jurisdiction over action for a declaratory judgment that plaintiff has no obligation to comply with state law to disclose medical records because state law is preempted by federal law.

Waterfront Comm’n of New York Harbor v. Murphy, No. 21-1028

      Issue Presented: Whether an interstate compact agency can sue a state official under the doctrine of Ex Parte Young to prevent that official from implementing a state law that would be preempted by the terms of a congressionally approved interstate compact.

Nike, Inc. v. Fleet Feet, Inc., No. 21-1227

      Issues Presented:

      (1) Whether appeal of preliminary injunction becomes moot where the injunction restrains defendant from designating “confusingly similar” marks, where the time period in which the defendant wanted to use the challenged mark has passed.

      (2) Whether, if the appeal is moot, vacatur of a preliminary injunction is proper under United States v. Munsingwear, Inc.

 

Civil Rights:

Campbell v. Reisch, No. 21-0526

      Issue Presented: Whether an elected state representative acts under color of law in blocking an individual from accessing the social-media account she uses to publicize performance and accomplishments as a state representative.

Janus v. American Federation of State, County and Municipal Employees, No. 21-1028 (Diamond v. Pennsylvania State Education Ass’n, No. 21-1227 (Consolidated))

      Issues Presented:

        Whether public-employee labor unions acted under color of state law in collecting fair-share fees from non-union members pursuant to state law mandating such fees, so as to be subject to suit for damages under § 1983 for violating the First Amendment.

        Whether § 1983 recognizes a good-faith immunity allowing public-employee labor unions that act under color of state law in collecting fair-share fees from non-union members pursuant to state laws mandating such fees to avoid liability for damages for violating the First Amendment.

Fowler v. Irish, No. 21-0520 (Robinson v. Webster County, No. 21-0303 (Consolidated))

      Issue Presented: Whether state officials can be liable under substantive due process for injuries caused by non-governmental third persons, contrary to this Court’s decision in DeShaney, under a “state-created danger” theory.

Nance v. Commissioner, No. 21-0423

      Issue Presented: Whether death-row inmate’s claim that state’s lethal-injection protocol would cause undue suffering in violation of the Eighth Amendment and seeking to require the state to employ an alternative method of execution is cognizable under § 1983.

Polk County v. J.K.J. No. 21-0515

      Issue Presented: Whether a municipality can be liable under Monell for sexual assaults of detainees committed by a corrections officer, where county policy prohibited sexual contact between guards and inmates and the county knew of sexual assaults by other officers but not the officer involved.

Mack v. Yost, No. 21-1216

      Issue Presented: Whether federal inmate can seek damages for First Amendment retaliation under Bivens against prison officials who fired him from his paid prison job for complaining about anti-Muslim harassment by correctional officers.

Thomas v. Freed, No. 21-0428

      Issue Presented: Whether § 1983 action challenging state’s failure to return excess proceeds from foreclosure sale of real property is barred by the Tax Injunction Act, § 1341.

Posted by Howard Wasserman on May 6, 2021 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, May 05, 2021

Limiting rules, no-hitters, and perfect games

John Means of the Orioles pitched a historic no-hitter against the Mariners on Wednesday. He faced the minimum 27 batters, did not walk a batter, and not hit a batter. But it was not a perfect game. In the third inning, Means struck out Sam Haggerty swinging at a curve ball that bounced through the catcher's legs and rolled to the backstop, allowing Haggerty to reach first. (It was ruled a wild pitch, although it should have been a passed ball; the pitch was not in the dirt and the catcher should have dropped down to block the ball). Haggerty was caught stealing, then Means retired the final 19 batters.

The uncaught third-strike rule is the cousin to the infield fly rule. As general principle, a person cannot be put out unless the last person to have the ball on the play catches and holds the ball. The catcher must hold onto strike three to record the out (although it counts as a strikeout, he must tag batter or throw him out at first), just as an infielder must catch a fly ball to record the out. The IFR reflects an exception to this general principle, where the defense gains an overwhelming advantage, thus an overwhelming incentive, by intentionally not catching the ball to complete the out. The rules establish a similar exception for third strikes--if a force is in effect on at least one base, such that the defense could get multiple outs if the catcher intentionally does not catch strike three, the batter is out even if the catcher does not catch it.

Retired U.S. District Judge Andrew Guilford, the sharpest critic of the IFR, would dump the third-strike rule along with the IFR. If a pitcher throws a great pitch that fools the batter (check the video in the link above; Means threw a vicious curve), he should be rewarded with an out, regardless of what his catcher does. I do not agree, but it is a consistent position.

Posted by Howard Wasserman on May 5, 2021 at 08:25 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Sunday, May 02, 2021

Rudyard Kipling's "The Old Issue"

In his Youngstown concurrence, Justice Jackson quoted the following verse from Rudyard Kipling: "Leave to live by no man's leave, underneath the Law." (Jackson quoted the same verse in his opening statement at Nuremberg.) The poem is called "The Old Issue," but was called "The King" in some publications. Kipling wrote the poem in 1899 just before the outbreak of the Second Boer War and implied that the Boers supported despotism while Britain supported liberty. I don't think that this was true, and the Boer War was sort of like the Crimean War--pointless. Nevertheless, the poem is interesting because Kipling talked at length about the abuses of executive power, which was, of course, the issue in Youngstown

At the end of the first stanza, Kipling invoked Magna Carta: "It is the King--the King we schooled aforetime!/(Trumpets in the marshes-in the eyot at Runnymede." Then in the second stanza he alluded to the execution of Charles I: "It is the King--inexorable Trumpets--(Trumpets round the scaffold at the dawning by Whitehall.")

Then he comes to his central theme about England's long and painful fight to restrain royal power:

All we have of freedom, all we use or know--
This our fathers bought for us long and long ago.
     
Ancient Right unnoticed as the breath we draw--
Leave to live by no man's leave, underneath the Law.
                       
Lance and torch and tumult, steel and grey-goose wing
Wrenched it, inch and ell and all, slowly from the king.

Till our fathers 'stablished,, after bloody years,          
How our King is one with us, first among his peers. 

So they bought us freedom-not at little cost--         
Wherefore must we watch the King, lest our gain be lost."

. . .

Here is naught unproven--here is naught to learn,
It is written what shall fall if the King return
He shall mark our goings, question whence we came,
Set his guards about us, as in Freedom's name.

He shall take a tribute, toll of all our ware;
He shall change our gold for arms--arms we may not bear.

He shall break his Judges if they cross his word;
He shall rule above the Law calling on the Lord.

He shall peep and mutter; and the night shall bring
Watchers 'neath our window, lest we mock the King --

Hate and all division; hosts of hurrying spies;
Money poured in secret, carrion breeding flies.

Strangers of his counsel, hirelings of his pay,
These shall deal our Justice: sell-deny-delay.

We shall drink dishonour, we shall eat abuse
For the Land we look to--for the Tongue we use.

We shall take our station, dirt beneath his feet,
While his hired captains jeer us in the street.

Cruel in the shadow, crafty in the sun,
Far beyond his borders shall his teachings run.

Sloven, sullen, savage, secret, uncontrolled,
Laying on a new land evil of the old--

Long-forgotten bondage, dwarfing heart and brain--
All our fathers died to loose he shall bind again.

I have a couple of observations thus far. First, there is there reference to "arms we may not bear," which implies a right to bear arms that the King will take away. Second, there is the claim that the King would be above the Law. Third, there is the fear that free speech (the right to mock the King) will disappear. Fourth, there is another reference to Magna Carta in the line about no "sell-deny-delay" of Justice.

Perhaps there is more to uncover here, but this is my first attempt to understand "The Old Issue."




Posted by Gerard Magliocca on May 2, 2021 at 09:15 PM | Permalink | Comments (0)