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Tuesday, August 31, 2021

Still more on SB8

Here are two stories on the state-court TRO. It protects three named plaintiffs--Dallas attorney Michelle Simpson Tuegel, Allison Van Stean, and abortion fund The Bridge Collective--from having SB8 actions filed against them by Texas Right to Life, its legislative director, and other individuals affiliated with RTF. The judge emphasized the irreparable harm without the TRO. But I have no idea what cause of action the plaintiffs used to get into court. Both stories emphasized how narrow the order is and that it does not stop SB8 from going into effect. But, an attorney for Planned Parenthood complained, "it does not provide the full relief needed to ensure all Texans can access their constitutional right to an abortion."

The media coverage and the comments of lawyers and courts shows just how badly we talk about the process underlying constitutional litigation. So once more with feeling:

1) No court at any level can stop SB8 from taking effect tomorrow--not a state court, not the Fifth Circuit, and not SCOTUS. 2) The only thing any court can ever do in an order in any case is stop some individuals or entities from enforcing the law (here, by filing a lawsuit) against other individuals or entities. 3) No court order provides"full relief" to "all Texans" unless the suit was brought as a class action of all Texans (who are not subject to suit anyway). 4) Rather than decrying the limited scope of the victory, the plaintiffs should celebrate it as a step that gives them the relief they need as part of a larger process of litigation over the law's enforcement and constitutional validity.

The exception to this is if the Fifth Circuit or SCOTUS, however erroneously, enjoins the judges and clerks. But that works by virtue of procedure and the nature of judicial relief as to specific parties, not because federal courts have greater remedial power. Their order would not bind the individual would-be SB8 plaintiffs or prohibit them from filing suits. But no clerks could accept the complaints and no judge could adjudicate them. You end in the same place, but the process matters.

Finally, I have not heard anyone explain how SB8 differs from possibly invalid tort law or my hypothetical cause of action against racist speech. I expect we would not have this hand-wringing, even though the enforcement mechanisms are the same and the difference is only the substantive rights at issue.

Posted by Howard Wasserman on August 31, 2021 at 04:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Mike Richards, Jeopardy, and humor

Because I am a mere fan while Paul is a multi-time champion, I have not commented on the Defenestration of Mike Richards as new host and (as of today) as executive producer.

This has all the hallmarks of a modern story--smarmy white guy; past offensive comments and behavior buried, ignored, and unearthed; the joust between "cancel culture" and "our First Amendment right to disassociate with you because of what you said;" and the never-ending quest to show that past statements and actions do not reflect "who I am" as a person. It is not certain what ultimately led to Richard's demise--the hostile atmosphere he allowed (and may have participated in) on past shows he ran; the blatant self-dealing to get the host gig and his dishonesty about that self-dealing; the problems he created within the Jeopardy workplace; or the seven-year-old podcast stupidity. The response to Claire McNear's reporting, and the speedy changes since that reporting, has focused on the fourth more than the first three. That affects how we think about this in the "cancel-culture" narrative. The first three were disqualifying; the problem emerges when we focus too much on the fourth.

This piece by Ken Levine (a TV writer  on shows such as Cheers, Frasier, and M*A*S*H* and a baseball announcer for the Orioles and Mariners) raises a great point that captures what got Richards in trouble:

People say stupid things when they try to be funny and they’re inherently not funny.  And that includes racist remarks and sexist remarks.  
They hear Howard Stern pull it off, or Don Rickles, or Richard Pryor and they think they can too.   But they can’t.  
And let’s be honest, sexist, racist jokes are easy.  Instead of displaying real wit they go after easy targets.  


Especially now, that we’re all so hyper sensitive, we all have to be careful and exhibit good judgement, and that could be a problem for unfunny people who think they’re funny because their judgement is already cloudy.   Leave the comedy to the pros. 

We can debate the hyper-sensitivity point. There is no debate that there are funny people and unfunny people. The few weeks I watched Mike Richards as guest host did not radiate "funny."

Posted by Howard Wasserman on August 31, 2021 at 03:26 PM in Culture, Howard Wasserman | Permalink | Comments (0)

Now for something completely different

What is the "story" being told in this ad? (This is in heavy rotation in Miami)


Posted by Howard Wasserman on August 31, 2021 at 01:01 PM in Culture | Permalink | Comments (8)

First Amendment concerns on the other side of SB8

It appears that a Texas state court has issued a TRO prohibiting a named individual (not Mark Dickson) and Texas Right to Life from bringing SB8 actions. I do not know what their cause of action was, nor do I know the breadth of what the judge ruled. Obviously the order cannot stop anyone other than the named defendants from bringing suit. And I do not know that Texas Right to Life was contemplating a lawsuit as much as gathering and providing information to individuals who might bring suits. A court enjoining those informational activities, distinct from filing the lawsuit itself, raises serious First Amendment problems--the same First Amendment problems created by possible SB8 lawsuits against rights advocates who provide information about where and how to procure services.

This is getting messy, in part because the reproductive-rights community is scrambling and no one wants to grasp the procedural issues hanging over this.

Posted by Howard Wasserman on August 31, 2021 at 12:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Understanding cheering speech

From Will Leitch at New York Magazine, on Mets players "booing" fans (through a thumbs-down) following a good play in reaction to fans booing players for, well, being the Mets. Leitch makes an interesting point about the psychology of the three actors involved--fans, players, and management. Fans boo the team as opposed to individual players (sometimes, at least--I think a lot of booing is more directed than Will does). "The team" is players and the management that built the team (recall the old Seinfeld joke that sports fandom means rooting for the shirt a player wears). But management sides with the fans against the players, leaving the players to personally bear the brunt of negative fan expression. When fans  turn their speech to ownership and management, they often are removed or have signs confiscated (to stay in New York, numerous Knicks fans were removed or had signs confiscated for criticizing fail-son owner James Dolan).

Update: A different take from Michael Baumann at The Ringer. Baumann makes a point that ties back to politics. He writes: "[P]art and parcel of loving something is—or at least should be—criticizing it when it goes off the rails. Unceasing positivity in defiance of fact isn’t love or support, it’s Stockholm syndrome." While that is true in sports, it has ceased to be true in politics, as Tom Nichols argues to the point of exhaustion. Neither side will tolerate criticism or acknowledge mistakes by their "side" or their "guys." In part, this is because the other side can and does weaponize internal criticism. My thinking or saying that the Cubs suck does not affect how the Cubs perform. My thinking or saying that Biden screwed up the Afghanistan withdrawal or the eviction moratorium affects media coverage and the political narrative, which then affects whether my guy or my side wins the next election. It is not healthy, but it is explicable.

Posted by Howard Wasserman on August 31, 2021 at 11:29 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Buying time in constitutional litigation

The media coverage around the efforts by abortion-rights activists and providers to enjoin enforcement of SB8 pending litigation has reached panic mode, with stories about this case representing a test of whether the Fifth Circuit or SCOTUS continue to regard Roe and Casey as law and setting up the "Roe has been overruled" narrative if neither court stops enforcement.

That misconstrues what is going on here. This is a lousy suit for trying to stop enforcement. One group of defendants (the judges) are not proper targets of constitutional litigation, as federal courts typically do not stop judges from the opportunity to adjudicate cases before they have been filed. One defendant (Mark Dickson) is not a proper defendant now but could become one. And one group of defendants (agency and executive officials) are proper defendants for the limited purpose of preventing them from stripping occupational and medical licenses, not for the broader purpose of stopping primary enforcement of the substantive law. Meanwhile, the lawsuit and any temporary order cannot reach, and therefore enjoin, the many "any person[s]" authorized to file suit because they are not parties to the case--although if judges and clerks are enjoined from accepting or adjudicating those suits, remaining outside the injunction does not help these would-be state plaintiffs.

Texas lawmakers intended to create this situation. But it is important to highlight these procedural issues in describing the denial of any stay or injunction. It may have nothing to do with the substantive merits of SB8 and the continued vitality of Roe.  And these procedures--forcing providers to defend their rights in state court or to wait before filing in federal court--while burdensome, are  common in other contexts. The Constitution does not compel any particular framework for adjudicating constitutional rights.  Any stay or temporary injunction will be short-lived because this case is doomed to fail--not on the merits of SB8 but because this is the wrong litigation vehicle.

So why bother? At some level, the plaintiffs are buying time, putting off the procedurally inevitable and hoping to prepare and strategize for the next steps. And maybe there is nothing wrong with that, as I said in defending President Biden in issuing the new eviction moratorium despite likely judicial defeat. Litigation takes awhile, so there is merit to maintaining what you want (no risk of enforcement, no evictions) in the meantime.

At the same time, as I argued yesterday, providers and advocates have a viable prospect for offensive litigation that is not this case--sue "any person" once a state-court action is filed and get a TRO and PI stopping that person from pursuing the state litigation. And add a new "any person" to the case, and to the PI, whenever a new action is filed. It is neither easy nor efficient (and, again, that was the legislative goal). But it can work procedurally and providers/advocates would be well-served to be ready to implement that strategy. Maybe that is what they are buying time to do.

Posted by Howard Wasserman on August 31, 2021 at 09:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Why playing baseball on Yom Kippur matters

My new essay in The Forward explores why we care about playing baseball on Yom Kippur more than we care about playing on other, arguably more important, days on the Hebrew Calendar. This began life as part of my empirical study of Jews playing on Yom Kippur; it was removed for length and I decided to break it out as stand-alone piece for a non-academic audience.

Posted by Howard Wasserman on August 31, 2021 at 09:31 AM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Monday, August 30, 2021

SB8 Update

SB8, Texas' ban on abortions following detection of a fetal heartbeat, goes into effect on Wednesday. Following the district court's (partially erroneous) denial of motions to dismiss and the defendants' immediate appeal of that seemingly non-appealable order, the Fifth Circuit issued an administrative stay of proceedings in the district court, which canceled a preliminary-injunction hearing. Absent SCOTUS intervention, the law will be enforceable and "any person" can begin filing lawsuits. Briefing on an injunction pending appeal is due later this week. The plaintiffs in the WWH case have asked SCOTUS to enjoin enforcement pending appeal.*

[*] Please do not say, as so many media outlets continue to say, that this is about stopping the law from "taking effect." The law takes effect--becomes an enforceable part of Texas law--on September 1 because that is the effective date of the legislation, per Texas lawmakers. No court can stop that. A court can stop enforcement of the law.

Three things are true. SB8's substantive provision is constitutionally invalid and judicially unenforceable under current SCOTUS precedent. The threat of enforcement will cause serious harm to abortion-rights advocates, abortion providers, and the women of Texas. But  there is no basis for a federal court to enjoin the statutorily authorized lawsuits at this stage, given how the law is to be enforced. The substantive awfulness and bad effects of the law do not change that third point and the focus on the first two does not change the third.

The next big move for providers and advocates is two-pronged, triggered on "any person" bringing (or actually threatening to bring) an SB8 action. First, defend that suit in state court (including by challenging the constitutional validity of the heartbeat ban and the constitutional validity of the SB8 provisions purporting to limit those defenses.  Second, sue "any person" on a § 1983 action in federal court to enjoin him from pursuing the state-court action. The argument that the SB8 plaintiff acts under color, given the structure of SB8, is strong; the standing problem resolves once an actual plaintiff reveals himself and acts; and the scholars with whom we have discussed our paper agree that Younger does not apply here.

That is the litigation move now, rather than wrestling with the Fifth Circuit and SCOTUS over administrative stays over offensive litigation that cannot work.

Update: A reader points out that the district court declined to dismiss the claims against the judges on sovereign immunity grounds as well as standing grounds (another example of the identity of standing and sovereign immunity where the plaintiff sues the wrong defendant). Denial of 11th Amendment dismissal is subject to COD review, although that would not pull Mark Dickson or the executive officials with them. The executive officials may have asserted sovereign immunity, as well, although it is not clear if the court reached it.

Posted by Howard Wasserman on August 30, 2021 at 01:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

A Court with No Names: Anonymity and Celebrity on the "Kardashian Court"

My essay, A Court with No Names: Anonymity and Celebrity on the "Kardashian Court", has been published in Iowa Law Review Online. This is a response to Suzanna Sherry's Our Kardashian Court (And How to Fix It), which argues that the solution to judicial celebrity is to require the Court to issue one per curiam opinion with no separate opinions or vote counts. I consider some things lost or gained under Sherry's plan, why it may be too late for it, and how to expand the plan or combine it with other court-reform proposals.

Posted by Howard Wasserman on August 30, 2021 at 09:31 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, August 29, 2021

Two Common Misconceptions about Bushrod Washington

With my biography of Washington coming out next year sometime, I wanted to mention that I've identified two common errors about his basic life story. (My next visit will be to his Wikipedia entry to offer corrections.)

First, people often say that Bushrod attended William and Mary as an undergraduate and received a degree.  This is incorrect. There is no such record at William & Mary. But there is an autobiographical letter from the Justice held by Tulane University in which he explained that he was privately tutored until he was 16. The first time he mentioned William and Mary was for his attendance there in 1780 at George Wythe's law lectures (along with John Marshall) and some other classes in French and philosophy. That part of education was interrupted by the invasion of Virginia, and Washington never finished his studies there.

Second, people often say that Bushrod fought at Yorktown. This is also wrong. He did serve in a cavalry regiment during the Virginia campaign of 1781. And that regiment later fought at Yorktown. But he left the regiment before that point, as he makes clear in his autobiographical letter. During his lifetime, he never said that he was at Yorktown and neither did anyone else. 

Posted by Gerard Magliocca on August 29, 2021 at 07:41 AM | Permalink | Comments (2)

Saturday, August 28, 2021

Law School Hiring Spreadsheet and Clearinghouse for Questions, 2021-2022

I. The Spreadsheet

In the spreadsheet, you can enter information regarding whether you have received

(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);

(b)  a callback from a law school and/or accepted it; or

(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level market.  

Anyone can edit the spreadsheet; I will not be editing it or otherwise monitoring it. It is available here:

II. The Comment Thread

In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.

Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.

You may want to take a look at the many questions and answers in the threads from 2014-20152015-20162016-2017, 2017-2018, 2018-2019, 2019-2020, 2020-2021. In general, there's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

Posted by Sarah Lawsky on August 28, 2021 at 03:15 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (427)

Friday, August 27, 2021

Silence is Golden, Justice Breyer

There are some things I admire about the fact that Justice Breyer has not retired. It's not a a long list, since I think he should have retired already. I can find little good reason for a Supreme Court justice to serve more than 20 or 25 years on the Court, and if that justice is already past the age of 70 or so by that time, I can find almost none at all and find it presumptively irresponsible. (To be fair, I find it even more irresponsible that someone would serve in elected office at that age or run for a demanding office like the presidency past the age of 60 or 65. That most certainly includes the current and prior occupants of the office and any number of members of Congress. It should be an embarrassment to both men that Trump and Biden asked for the burden of serving as president at the ages of 74 and 77.) But I did admire the fact that Breyer at least affected to be uninterested in the political groups and social-media shouters who were telling him to retire (and, inevitably, in many cases turning making a buck by doing so). And I appreciated that, with the exception of a platitudinous speech last year, he generally didn't comment on it. One may contrast this with Justice Ginsburg, who seemed all too ready to embrace her celebrity and talk about her retirement or non-retirement, among other issues, and whose celebrity was a financial boon for some of her extended family members.

That's why I was particularly disappointed that Justice Breyer chose to speak with Adam Liptak on the subject. Kudos to Liptak for the "get," certainly. I have no idea how soon in the interview Breyer's retirement came up, but it's no surprise that it did or that Liptak leads with it, and would or should have been no surprise to Breyer. Although he "visited the Washington bureau of The New York Times to discuss his new book, 'The Authority of the Court and the Peril of Politics,'” surely the justice knew that the book itself would be near the bottom of the list why a Times reporter, or anyone else, would want to talk to him. He could have tested this, of course, by saying words that seem all too uncommon these days and then sticking to them: "No comment." They're the only two words a justice generally needs or should use in talking about the Court, let alone his or her own role and tenure on it.  

The best way to engage with tedious spectacles is not to engage with them; and a genuine attitude or put-on image of rising above it all is not terribly effective when one chooses to...respond to it all. By choosing this path instead, Justice Breyer effectively puts himself on a level with, and earns, every standard-issue Chemerinsky op-ed, billboard, tweet, and fundraiser-cum-message-campaign urging him to retire. It is particularly horrifying that he is quoted as saying, "I don't think I'm going to stay there until I die--I hope not." Short of tragedy or a Looney Tunesian falling-anvil incident, there is no reason any Supreme Court justice should die at the job. And it is a dilemma he could solve with a one-sentence letter any time he wishes. I say again: the most, and maybe the only, admirable model I can think of in recent decades for Supreme Court justices showing both proper care for the institution and a proper perspective about his or her job is Justice David Souter, who served for under two decades and walked out of the building under his own steam. 

Perhaps we should think of this interview as in part an example of the pernicious effects of Supreme Court justices publishing books. Although the size of the contracts for these books hss skyrocketed--not much of an issue in this case, I should think, since Breyer's book is being published by a university press--we should not think of this as a modern phenomenon. The last century was full of unimportant books written by Supreme Court justices. Even the rise in memoirs by justices is not unique. William Douglas cluttered a good-sized shelf with both categories of book. But that doesn't mean they were a good idea then. (Surely money was a relevant motivating factor in those days too.) And they're even more unfortunate today. We would lose a couple of interesting books if Supreme Court justices declined to publish books while sitting on the court; Rehnquist's history of impeachment comes to mind. But not many, probably not this one, and we would gain much more than we lose. Among other things, we would lose the temptation to sell and to speak that resulted in Breyer's interview with Liptak. As a general, almost unbreakable rule, Supreme Court justices, like mimes and celebrities, should perform their roles and otherwise remain silent.    

Posted by Paul Horwitz on August 27, 2021 at 10:23 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, August 26, 2021

District court finds standing in SB8 litigation

Opinion here finding standing as to all defendants, contrary to much (but not all) of what Rocky and I argue. There is a joke in here somewhere about either judges or law professors not knowing the law, although obviously I think we are right and the court is wrong. The defendants filed a Notice of Appeal, which I presume they will argue, and the court will treat, as a petition for writ of mandamus since there is no basis for appeal (no finality, no collateral order, no certification of interlocutory review and no possibility of certification). This is a good case for mandamus because parts of this decision are clearly erroneous.

I will post some analysis of the opinion this weekend, as we begin editing the article to discuss and critique the opinion.

Posted by Howard Wasserman on August 26, 2021 at 04:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

State Law and Section Three of the Fourteenth Amendment

One possible scenario in 2023 goes something like this: Donald Trump declares that he is a candidate for President. Some state election officials rule that he is ineligible to run under Section 3. He sues and the constitutional issue is litigated.

But there's a problem with this scenario. As far as I can tell, no state ballot law mentions Section Three as an eligibility requirement to run for President. I've happy to be corrected if I'm wrong, but even if I am surely few states mention Section Three in their ballot access laws. Thus, Donald Trump can argue that the state officials lack the authority under state law to exclude him from the ballot.

The state officials could say that they don't need express authority under state law because they are enforcing the Federal Constitution itself. But this argument runs into problems. For example, is Section 3 self-enforcing, or must there be a statute somewhere that confers enforcement authority? There is authority both ways. 

Of course, some states might decide to amend their election law to include Section 3 and thus eliminate the problem I've just described prior to 2023. But none have yet done so.

Posted by Gerard Magliocca on August 26, 2021 at 02:00 PM | Permalink | Comments (2)

Wednesday, August 25, 2021

The Myth of the "Switch In Time"

A common explanation for why the Supreme Court made reversed itself in 1937 on several constitutional subjects is that they were fearful of President Roosevelt's Court-packing plan. Subsequent scholarship has raised serious doubts about this explanation, pointing out that Justice Roberts appears to have decided on that course after Roosevelt's landslide reelection in 1936, which was well before the plan was announced.

As far as I can tell, the first time that FDR personally advanced the "switch-in-time" explanation was in his Constitution Day Address in September 1937. There he said the following:

For twenty years the Odd Man on the Supreme Court refused to admit that State minimum wage laws for women were constitutional. A few months ago, after my message to the Congress on the rejuvenation of the Judiciary, the Odd Man admitted that the Court had been wrong—for all those twenty years—and overruled himself.  

FDR later amplified this explanation, which of course was a way of of claiming that the failure of the Court-packing plan was really a success. That too is highly questionable, as many scholars have pointed out that FDR's legislative clout on Capitol Hill was greatly diminished by the Court-packing fight.

Interestingly enough, the first description in The New York Times about what the Court did as a "switch in time" was a quote from Abe Fortas, then a professor at Yale Law School.

UPDATE: John Barrett has a great recent article that establishes who coined "the switch in time."

Posted by Gerard Magliocca on August 25, 2021 at 02:28 PM | Permalink | Comments (2)

Tuesday, August 24, 2021

Intellectual Property in Class Notes

To piggyback on the prior post about "The Chair," there is a scene in which a suspended professor is asked to give his class notes to the person who will take over his class. He refuses (then they drop this plot line).

Here's my question: Are class notes a work-for-hire such that the university employer shares a copyright in them with the instructor? I can see the argument that they are. But suppose I taught at University A for ten years and developed my class notes there. I then move to University B and continue using the notes. Would that still be a work-for-hire for University B? Or would that be true only for University A? Or is the point that if I make any modifications to my notes after I move to University B, then the notes are a work-for-hire for University B?

Posted by Gerard Magliocca on August 24, 2021 at 09:07 AM | Permalink | Comments (7)

Monday, August 23, 2021

The Chair

My wife and I work in academia, so we are the target audience for Netflix's The Chair. We plowed through the six half-hour episodes and found it an enjoyable story and funny--worth watching and worth a second season. But neither of us shared the conclusion that it was Neflix's best drama in years or that it gets academia right. Take what follows as one point of view. Neither of us works in English or the Humanities and neither is a person of color, although my wife is a woman and holds a non-tenure-earning position, a different prevalent inequity in the academy.

I think my not loving the show more than I did comes to this: The show skewers multiple foibles of academia, but those foibles are inconsistent, the narrative has continuity errors among those foibles, and the hero's solution misunderstands or conflates them. Spoilers after the jump.

Here are the problems thrown in the lap of Ji-Yoon Kim (Sandra Oh) in her first days as chair:

    • A very senior career-Associate Professor (the first tenured woman in the department) has her office moved to a box without wi-fi in the basement of the gym. She also began her career paid $ 12k less than the men hired at the same level and has lived a career of having extra service thrown on her. She goes to the Title IX office several times, but finds the office ineffectual. Here is one continuity problem--the office move gets blamed on Ji-Yoon, although the move occurred before she took over  and seems to have come from the dean's office.

    • The dean orders Ji-Yoon to convince the three most-senior faculty (the woman above and two men, all white) to retire. New lines and other funds come only if she succeeds. The targeted faculty teach to empty classrooms, get bad evaluations, and seem to have stopped caring about teaching well or about engaging with their students. The woman spends time having someone hack into a database to identify the source of a negative review, then confronts the student in public (with a passionate defense of Chaucer that, if she made it in the classroom, might make her a more-engaging teacher). Two have stopped writing.

    • The mid-career superstar (and Ji-Yoon's sort-of love interest) Bill Dobson (Jay Duplass) has been drinking and taking pills and phoning-in his teaching and everything else in since his wife died a year ago. Late for class and hung-over while lecturing on fascism and absurdism, he drops a passing "Heil Hitler" with a Nazi salute (I have not decided how inexcusable that was in context as a light aside). Students surreptitiously record it and the video becomes a meme with a Nazi hat and uniform superimposed on him. That triggers a campus uproar, with students calling for his head while chanting about "getting Nazis off campus." A "town hall" on the campus quad goes off the rails. Some have criticized this story line as a caricature of student protests cum cancel culture, but the scene does not look so different from the Nicholas Cristakis or Bret Weinstein encounters. This  threatens to pull Ji-Yoon under when the student paper reports (disingenuously) that she imposed a "gag order" on the department to cover for Dobson.

    • The department's lone African-American woman is up for tenure and the senior prof (one of the three on the chopping block) chairing her committee is out to get her, seemingly because he resents her "modern" teaching methods that attract students to packed classrooms. Ji-Yoon exerts what I think would be inappropriate influence on that professor and that process, although in what we are supposed to see as a just cause.

    • Led by the three aging faculty Ji-Yoon is supposed to push into retirement, the department holds a no-confidence vote with Ji-Yoon sitting in the room, in consultation with the dean; the vote succeeds, 6-5. When she ceases to be chair, Ji-Yoon pulls a parliamentary move in naming the new chair that perhaps sets-up a second season. This is the show's other continuity problem. At times, characters speak about Ji-Yoon being chair by virtue of a departmental selection, while other times she is described as being appointed by and serving at the pleasure of the dean (the latter being how life works). And, of course, no-confidence votes are advisory to the dean. It would not take effect immediately after the votes are counted. Nor would we expect the dean to take seriously a no-confidence effort led by the three faculty members he had ordered the challenged chair to get rid of.

    • The student outrage against Dobson leads to a kangaroo proceeding that could not work against anyone, least of all a professor with tenure, putting aside that nothing he did would be grounds for losing tenure.

And here is the big spoiler and what rang false for me: In the finale, Ji-Yoon defends Dobson at the proceeding by going off on the dean's and the university's obsession with money and the way they ignore what the students want and need. But what the students want and need is what the dean (and central administration figures) are pushing for and Kim opposes or refuses to do: Fire the "Nazi" prof. Get rid of  the deadwood profs who do not care about teaching or their students, which offers the additional benefit of clearing a departmental obstacle to the tenure grant of the popular teacher. Spend money on areas of study that students are interested in--not the undersubscribed humanities but those that lead them to lucrative careers. The show is trying to tell a story of Kim standing up to power--but the power structure is actually on the side she purports to stand for. I do not believe this is the message the show intended to send. But by conflating inconsistent stories, that is the resulting story logic.

Again, we enjoyed the show. But I think we were expecting/hoping for more.

Finally, a pitch for an often-forgotten show about academia: The Education of Max Bickford (2001-02), about the reluctant (old, white, male) chair of the History/American Studies department at a women's college. It aired during my first year in teaching and while my wife, who attended a women's college, was in grad school. It is a network show, so it is generally unambitious and has similar plot holes to The Chair. But it is worth a rewatch, if you can find it streaming.

Posted by Howard Wasserman on August 23, 2021 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink | Comments (0)

Saturday, August 21, 2021

Bray on universal injunctions

Sam Bray comments on the universal injunction against repeal of the remain-in-Mexico policy. Bray calls out the "baffling" nonsense of the judge enjoining paragraphs of an agency memorandum, because "[p]eople get enjoined. Injunctions protect people from people. Or require people to do things." He offers the following:

  1. injunctions should be used for protection: they should protect plaintiffs (or plaintiff classes) from the enforcement actions of government officers;
  2. when the problem is not with end-of-the-line enforcement, but rather is upstream, such as a failure in the process of creating a rule or policy, the proper remedy is not an injunction but mandamus, which has a different logic and is focused not on the protection of the plaintiff but on the officer's performance of a legal duty;
  3. the fact that mandamus has its own limiting principles, such as the need to show a clear violation of a legal duty, means that some close to the line violations will not be remedied;
  4. point three is a feature of this proposal.

Well said.

Posted by Howard Wasserman on August 21, 2021 at 08:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The Constitution in a Global Perspective

I'm going to try out some offbeat posts to test some new ideas.

I've long been fascinated by Franklin D. Roosevelt's Constitution Day Address of 1937. The most famous part of the speech is where FDR said that the Constitution is a "layman's charter" and not a "lawyer's contract." Over the years, I've often thought that I should write an article about the speech and its themes, but I've never quite figured out how to do so effectively. I'm getting close though.

One theme of the Constitution Day Address is that developments in constitutionalism abroad have an impact on our Constitution, just as what we do effects the rest of the world. FDR made this point against the backdrop of the rise of Nazi Germany and the Soviet Union. He argued that the extension of dictatorships tends to hurt the morale of democracies and that this challenge must be met with reform, by which he meant the New Deal.

This lesson is too often overlooked. American constitutional law tends to be very inward looking, even though outside events are always filtering through and shaping our judgments. I've written about this phenomenon in some of my work, but only in a scattered fashion. The essay I'm thinking about on the Constitution Day Address would do so more systematically.

Let's consider one overarching point along these lines. Since the Constitution was first ratified, the greatest power in the world was almost always Great Britain or the United States. (During the Napoleonic Wars, you could quibble with this point, but what I said is certainly true after 1815.) Both of these powers, of course, are constitutional democracies. The association between global power and a constitutional democracy must have been good for the morale of those systems and their appeal to other nations once they could choose. There were,  other great powers with other governmental systems (Germany and Russia, most notably), but they could never sustain their positions against the Anglo-American alliance.

Later in this century, though, the greatest power in the world may be a one-party dictatorship--China. How will that (or how is that) shaping our constitutional attitudes? Will that start to make people think that we need reform? Or think that our system is too inefficient to meet the challenges of modern society? I don't know, but it strikes me that an unstated assumption about our Constitution is that there is a connection between national greatness and constitutional democracy. This premise is starting to break down. What are the implications? 


Posted by Gerard Magliocca on August 21, 2021 at 08:04 AM | Permalink | Comments (6)

Friday, August 20, 2021

It's good, even if not ideal, to be back

FIU began classes on Monday, so I taught my first in-person classes since March 2020. As a Florida institution, we cannot require vaccinations, masking, or contact tracing, although we can encourage it. I am masked and there is a big plastic shield in front of the podium (although old habits dying hard, I am still walking the front of the room). All but one or two students are masked, at least in the classroom, so most people are doing what is necessary to keep this going. One colleague put it to students in self-interested terms: The best approach for personal and public health is to continue remote learning, but in-person provides a better education. The implication is that masks are a low cost for a high educational benefit.

I  am not saying anything earth-shattering, but I had forgotten how much fun in-person teaching is. There is an energy level that comes with real human interaction of a classroom. The exchanges with and among students are sharper because in realer time; the conversation moves because people need not pause to unmute; and student reactions, such as laughter, are more immediate. Online provides a rough simulacrum, but does not come close to duplicating the experience. I did not appreciate how wide the gap is until I was able to experience a live class again.

Hopefully it will last.

Posted by Howard Wasserman on August 20, 2021 at 10:59 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, August 19, 2021

Possession as Estoppel—Last of a Lakefront Series on Property Law

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the final in their series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press). We thank them for sharing this series.

Our previous four posts in this five-part guest series, generously welcomed and introduced by Howard Wasserman, have shown that possession seems often to influence the outcome of fights over the use of resources along the Chicago lakefront. We have drawn on the cases and chronicles set forth in our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). In this wrap-up post, we will offer a more precise definition of what possession means in this context, and will try to pinpoint, in legal terms, what role possession seems to play.

According to a recent draft of the Restatement (Fourth) of Property approved by the American Law Institute, to be in possession is defined as having “established effective control over [a] thing” while manifesting “an intent to maintain such control to the exclusion of others.” (Tentative Draft No. 2, Vol. 1, Div. II, Ch. 1, § 1.1 (Apr. 7, 2021).) What does this mean in the context of the various disputes over the use of resources on the Chicago lakefront?

With respect to land under the lake, being in possession presumably means filling the submerged land and building a structure on it or otherwise excluding others from access to it without permission. Thus, the Illinois Central Railroad never secured possession of the submerged land granted to it in 1869 for construction of an outer harbor, because it never managed to fill the submerged land, let alone build the harbor (post one). Similarly, the park districts did not immediately take possession of the submerged land granted to them to construct north and south Lake Shore Drive, because they delayed filling the land for years (post four). In contrast, in those same Lake Shore Drive stories (so also post four), the riparian owners did secure possession of the submerged land inside the boundary-line agreements (made between them and the park districts), because they promptly filled the land and developed it for their own purposes, thereby excluding others.

With respect to bare land, like that of Grant Park, being in possession means constructing a building subject to limited access or policing the land to the exclusion of others (post two): Thus, the Art Institute obtained possession of a portion of the land once it built its museum on it, which was allowed to stand despite the public dedication doctrine. But the Field Museum never obtained possession in Grant Park, since it never got beyond driving a symbolic stake into the ground before the project was tied up in litigation and eventually enjoined.

The case of Cap’n Streeter and his gang of squatters, along the lakefront north of the Chicago River, is more complex (post three). Streeter probably succeeded in establishing possession of the boat, makeshift fortress, or broken-down motor truck that he variously occupied on the newly formed land. But he never established effective control over the full area he claimed—eventually determined to be 160 acres—because he did not command a large enough force to do so. Nor did he have the support of the police to back up his claim of possession to this larger area.

To pinpoint more precisely in legal terms what role possession seems to play in various lakefront controversies, we think that the best analogy may be estoppel.

Estoppel, an equitable doctrine, is most commonly invoked to bar individuals from asserting a legal claim contrary to what they have previously affirmed, by word or deed. In the context of the various disputes that we have cataloged, it seems that acquiescing in possession of something by others is seen as an implicit affirmation of their rights. Hence, the assertion of a contrary legal claim is more likely to be denied (by estoppel) than it would be otherwise.

The equation of possession with estoppel was made explicit in a momentous decision of the Illinois Supreme Court in 1966: Hickey v. Illinois Central Railroad Co., 35 Ill. 2d 427, 220 N.E.2d 415. The case involved the landfill created by the Illinois Central Railroad between Randolph Street and the Chicago River, east of Michigan Avenue, where it had constructed its primary terminal, among other facilities. The question became whether the Illinois Central only had an easement for railroad purposes or instead held full fee-simple title to the area. If only an easement, then the air rights above the area belonged to the state. If a fee simple, then the railroad could sell off the air rights for development of high-rise commercial buildings or condominiums.

Legally speaking, the state and the other plaintiffs had strong arguments that the railroad had only an easement. The problem with this assertion was that the railroad had been in possession of the land for as long as anyone could remember. Some of it had been used as a terminal going back to the 1850s. Some of it had been used for huge grain elevators, which were not essential elements of a railroad terminal. And more recently (in the mid-twentieth century), a state agency had signed off on projects to sell the air rights, in this area, for construction of the Prudential Building, then the tallest building in Chicago, and a large apartment house.

The Illinois Supreme Court in Hickey did not rule that the Illinois Central owned the air rights—it ruled, rather, that the state was estopped from denying that the Illinois Central owned the air rights. It cited a series of statements and actions by the government seeming to assume or understand that the railroad had full title to the contested land. These were said to reflect the “prevailing governmental attitude, both State and city, since near the beginning of this century,” which “has regarded the Illinois Central Railroad as the owner, in fee, of the now disputed lands.” Hence, “basic concepts of right and justice preclude the State from now asserting any claim to the lands involved in these proceedings.”

The Hickey court’s invocation of estoppel to rebuff the State’s claim to the air rights could have been written as a judgment conferring title by adverse possession. The general rule, however, is that one cannot claim title by adverse possession against the government. It is also unusual for a court to invoke estoppel against the government. But estoppel, as an equitable doctrine, is more susceptible to case-specific application. For this reason, estoppel may be a better description of the role of possession in resolving contests on the lakefront than the hard-and-fast rule of adverse possession, grounded in the passing of a statutory period.

In addition to the public trust controversies considered in the first post, consider the public trust cases decided since the Illinois Supreme Court announced an uncertain but more intrusive standard of review of such claims in 1970. In two cases involving a legislatively authorized proposal to fill submerged land, the courts held that this was prohibited by the public trust. One case involved a grant of submerged land to expand a steel plant on the South Side; the other a grant of land to expand a private university on the North Side (Loyola). In both cases (considered here as well as in Lakefront itself), the beneficiary of the legislative grant could not maintain that it had possession over the contested area.

In contrast, in two other cases, which involved, rather than filling, changes in the use of land previously dedicated to a different type of use, the court denied the public trust claim. One case entailed a proposal to use a portion of a public park to construct a new public school; the other involved a proposal to rebuild Soldier Field to accommodate the wishes of the primary tenant, the Chicago Bears. In both cases (considered in the same posts linked in the previous paragraph and in Lakefront), the party that successfully sought to change the existing use of existing land could fairly claim that it was already in possession.

In none of these four cases was estoppel cited, nor was existing possession. But the pattern continues to reflect the one that we have discerned in a variety of other contests. Courts are reluctant to interfere with possession. This is so, whatever may be the strength of the legal claim, or the public rights doctrine, pointing to a contrary conclusion. If there is no relevant claim of possession, public rights are more likely to be vindicated.

Posted by Howard Wasserman on August 19, 2021 at 09:31 AM in Books, Property | Permalink | Comments (0)

Wednesday, August 18, 2021

Solving the Procedural Puzzles of Texas' Fetal-Heartbeat Law

Posted to SSRN (corrected version) and appearing in a law review submissions box near you. Charles (Rocky) Rhodes (South Texas Houston) joined me with his expertise on Texas law and procedure. The paper expands on my posts on the subject to game out what providers and advocates can (and cannot) do offensively in federal court and defensively in state court. Here is the abstract:

The Texas Fetal-Heartbeat Law enacted in 2021 as Senate Bill 8 prohibits abortions after detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person.” Texas employed this enforcement mechanism to impose potentially crippling financial liability on abortion providers and advocates and to stymie their ability to challenge the law’s constitutional validity through offensive litigation in federal court to enjoin enforcement of the law. Texas lawmakers sought to confine abortion providers and advocates to a defensive litigation posture in state court.

This article works through the procedural and jurisdictional obstacles that SB8 creates for abortion providers and abortion-rights advocates seeking to challenge the constitutional validity of the fetal-heartbeat ban. While Texas has created a jurisdictional and procedural morass, the law does not achieve the ultimate objectives. Providers and advocates can litigate in federal court, although it requires creativity as to timing and proper litigation targets. They also should find greater success defending in state court than legislators expected or hoped. Other avenues remain to vindicate the rights of abortion providers and advocates—and the pregnant patients they serve--that accord with the traditional operation of and limitations upon the federal and state judiciaries in adjudicating constitutional rights.

Posted by Howard Wasserman on August 18, 2021 at 04:15 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Number of FAR Forms in First Distribution Over Time - 2021

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

FAR Forms Over Time.20210819

Far Forms Chart.20210818

2009: 637; 2010: 662; 2011: 592; 2012: 588; 2013: 592; 2014: 492; 2015: 410; 2016: 382; 2017: 403; 2018: 344; 2019: 334; 2020: 297; 2021: 328

(All information obtained from various blog posts, blog comments, Tweets, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

First posted August 18, 2021.

Posted by Sarah Lawsky on August 18, 2021 at 10:15 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (9)

Tuesday, August 17, 2021

The Shadow Docket of the Past

Will Baude's description of the "shadow docket" is one of the most important contributions to Supreme Court scholarship in the past decade. While the importance of these non-merits dispositions is growing, there have always been such cases. I was thinking about writing some posts about notable historical shadow docket cases and what lessons we might draw from them.

Here's a famous one. In 1948, Lyndon Johnson stole the Texas Senate primary election, as fans of Robert Caro's books know. LBJ's opponent in the primary, Coke Stevenson, obtained a temporary injunction from a federal district court that prevented state officials from listing Johnson as the Democratic nominee pending a hearing into the fraud allegations. The injunction was quickly appealed to Justice Hugo Black in his capacity as the Circuit Justice. Justice Black granted a stay of the injunction, which the full Court affirmed a week later.

What did Justice Black say in his opinion in this important case? The answer is that there was no written opinion. Nor was there an opinion by the full Court. The stay determination, which proved vital to LBJ's rise to the presidency, was a shadow docket case.

That said, Justice Black did allow journalists to observe the arguments, which were held in his chambers. And Black did give an oral ruling, which was quoted in part by The New York Times. (Basically, Black's rationale was that there was no statutory authority for a federal court to intervene in a state election.) 

Perhaps one lesson here is that sometimes an individual Circuit Justice should hear arguments that are open to journalists before referring the matter to the full Court or deciding the issue. (Justice Barrett's recent decision to affirm Indiana University's vaccination policy is an example.) There need not be a written opinion, but in the absence of such an opinion some transparency is required.

Posted by Gerard Magliocca on August 17, 2021 at 09:47 PM | Permalink | Comments (3)

Misha and the Wolves

I watched Misha and the Wolves on Netflix over the weekend. I had not known this story. From the mid-'90s to 2008, Misha Defonseca told the world that she was  a Belgian-born Jew hidden with a Catholic family (and given a name change) when her parents were deported and that beginning in 1941 (at the age of 7) she walked across Germany and into Poland looking for her parents, killed a German soldier, escaped from the Warsaw Ghetto, and hid in the woods, taken care of by a pack of wolves. The story unraveled in 2008 when multiple investigations revealed that the story, including Defonseca's identity, were fabricated.

According to the movie, Defonseca's story fell apart following a falling out with the small publisher, Mt. Ivy Press, owned by Jill Daniel, that published the book (which did not sell in the U.S.) and sold overseas rights (where it was a huge bestseller in Europe, spawning a French-language film adaptation). Defonseca won a $ 22.5 million judgment against Daniel. Trying to figure out how to challenge that judgment, Daniel stumbled across a document that caused her to question Defonseca's story; she brought in outside experts to investigate and eventually get to the truth. In 2008, Defonseca acknowledged that she fabricated the story. Daniel successfully sued for vacatur of the Defonseca judgment.

The movie does a poor job covering the litigation. This is unsurprising. The movie is about Defonseca's story, not the litigation, so the details of what happened in court are unimportant, other than the outcome and how Daniel responded to the outcome. The film's theme is "Defonseca conned Daniel, then Daniel exposed the lies because she was looking to get out from under an unjust judgment." Defonseca's lawyer hints at serious wrongdoing. Daniel's description of the trial suggests the jury was swayed by the heartbreaking (and false) testimony of a purported Holocaust victim and Daniel was perceived as the monster who ripped her off despite having extensive records of making payments.

Three cases with several written opinions arose from this mess: 1) Trial and appellate opinions in the underlying royalties dispute; 2) two appellate opinions from Daniel's lawsuit to vacate the prior judgment; and 3) Daniel's bankruptcy proceeding. Reading through the published opinions offers a different story that is relevant to how we view Daniel and the entire thing. A more accurate and detailed discussion of the litigation might have produced a movie with a different tone.

First, the original dispute was not between Defonseca and Daniel/Mt. Ivy. Daniel brought in her then-friend Vera Lee to work with Defonseca (who is neither a writer nor a native English speaker), then pushed Lee off the book. Lee initiated the original litigation naming Mt. Ivy, Daniel, and Defonseca as defendants, as well as the company Daniel hired to sell the book in Europe. Lee won an $ 11 million+ judgment that stands--the court in the second action declined to vacate that judgment and the bankruptcy court in 2017 denied discharge. Lee receives little or no mention in the film, even though Daniel's fallout with Lee, not Defonseca, precipitated the proceedings that precipitated the unraveling of Defonseca's lies. Also, Defonseca's $ 22 million+ judgment  against Daniel and Mt. Ivy came on a cross claim, not an original dispute between Defonseca against Daniel. Civ Pro remains your friend.

Second, the state trial court described "the totality of the defendants' conduct as having been infused with a high enough level of rascality to have raised an eyebrow, even to those inured to the 'rough and tumble' of the marketplace." The findings of wrongdoing in the trial court opinion and the first court of appeals opinion are detailed. They include undisclosed side contracts, unmet promises about capacity, self-dealing, an offshore foreign subsidiary to which rights were assigned, agents exceeding the scope of their authority, and ceasing domestic marketing efforts within a few months of publication. The film makes a lot of Daniel's efforts to get the book into Oprah's book club; in the film, Daniel says Defonseca refused to go on Oprah when invited, while the court of appeals says Daniel canceled. Anyway, this sounds like more than  "Defonseca played to the jury's sympathies and the jury ignored all the evidence because I looked like a monster."

On a side note, the Oprah-appearnace-that-never-was gets a lot of play in the film. The show recorded a segment (which never aired, of course) of Defonseca at a nearby wolf preserve, and the movie spends a lot of time with the wolf-expert/owner of the preserve. The owner makes much of Defonseca's rapport with the wolves during that segment, I guess to suggest they had found one of their own, thereby verifying her story. Daniel expresses disbelief that Defonseca refsued to go on Oprah when it could have meant millions in sales. The suggestion is that this refusal undercut Daniel's marketing efforts and was a first red flag--Defonseca canceled because she knew the story could not stand up to scrutiny and did not want to expose herself to Oprah's withering interrogation. The latter point is belied by Defonseca making TV appearances in Europe, including to promote the film adaptation.

Third, in the opinion affirming vacatur of Defonseca's judgment, the court of appeals concluded:

This case has had a legal life of over fifteen years; All involved have been bloodied. Defonseca's story has been shown to be false. As for Daniel, she also has been shown to have acted highly inappropriately, as evidenced by the still valid multimillion dollar judgment against her in favor of Vera Lee, the one least blameworthy person in the entire affair. Hopefully the saga has now come to an end.

Again, this is a different message than what the film presents.

Finally, one film review questioned the motives of various actors in this drama. It argues that Defonseca's motives remain unknown but that Daniel was motivated by greed and a desire for publicity. From the movie alone, this criticism makes no sense. Daniel is a book publisher--her job is to find good stories, help tell them to the world, publicize them, and make money. Daniel did just that, or at least tried. The film mentions but downplays two things that give the greed point more resonance: the underlying business relationship before the fraud was exposed as found by the courts and Daniel's failure to investigate pre-publication suggestions that Defonseca's story did not seem credible. The film mentions the latter a few times in passing, but does not emphasize it in the way it comes out in the opinions.

Posted by Howard Wasserman on August 17, 2021 at 09:31 AM in Culture, Film, Howard Wasserman | Permalink | Comments (0)

Monday, August 16, 2021

Hiring; University of Tennessee College of Law

THE UNIVERSITY OF TENNESSEE COLLEGE OF LAW invites applications from both entry-level and lateral candidates for two full-time, tenure-track or tenured faculty positions to commence in the Fall Semester 2022.  The College is looking for candidates who will fill a range of curricular needs.  We are particularly interested in the subject area of business law, including business associations and contracts.  Other areas of interest include corporate and regulatory compliance, education law, environmental law, estate planning, health law, immigration law, legal writing, and property.  We also seek candidates who integrate cutting-edge legal issues into their courses or are interested in helping us expand our offerings in areas like technology, cybersecurity, e-discovery, and data privacy.  We welcome applications from candidates who incorporate practical lawyering skills into their courses.

A J.D. or equivalent law degree is required.  Successful applicants must have a strong academic background.  Significant professional experience is desirable.  Candidates also must have a strong commitment to excellence in teaching, scholarship, and service.

In furtherance of the University’s and the College’s fundamental commitment to diversity among our faculty, student body, and staff, we strongly encourage applications from those who would bring increased diversity to our faculty, curriculum, and programs.

The committee will review applications submitted through the AALS Faculty Appointments Register (FAR) and will also consider applications submitted outside of the FAR process.  Candidates who are not applying through the FAR may submit their application materials directly to Michelle Kwon, Chair of the Faculty Appointments Committee, by emailing them to [email protected].  Please include a letter of interest, including the subjects the candidate is interested in teaching, and a CV with the names and contact information of three references. Applications from candidates not participating in the FAR will have the best chance of full consideration if they are received by September 1, 2021.

The University of Tennessee is an EEO/AA/Title VI/Title IX/Section 504/ADA/ADEA institution in the provision of its education and employment programs and services. All qualified applicants will receive equal consideration for employment and admission without regard to race, color, national origin, religion, sex, pregnancy, marital status, sexual orientation, gender identity, age, physical or mental disability, genetic information, veteran status, and parental status.

Posted by Howard Wasserman on August 16, 2021 at 03:57 PM in Teaching Law | Permalink | Comments (0)

Boundary-Line Agreements and Possession: The Extraordinary and Ordinary Story Behind Chicago’s Lake Shore Drive

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the latest in a series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).

This is the fourth of five posts in a guest series exploring the power of possession in property law. Our basis is empirical: the history of the Chicago lakefront, which we chronicle more comprehensively in our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). This post examines an extraordinary legal device that emerged during the construction of Lake Shore Drive and associated parks up and down the better part of the city’s lakefront (north and south in Chicago along Lake Michigan, that is). The device—called a boundary-line agreement—was used repeatedly to extinguish the riparian rights of persons who owned lakefront property. The story of the development, flourishing, and, finally, desuetude of the boundary-line agreement is a fascinating one. We will relate enough of the story here to advance the purpose of this series: using Lakefront to draw out some illustrative and instructive points respecting the perhaps-ordinary power of possession in property.

Let us begin by framing the problem that confronted government entities in Chicago in the late nineteenth and early twentieth centuries, as they wished to build lakefront parks and an associated drive. It was not a lack of a legal right to fill submerged land in Lake Michigan for these purposes: Various cases in the 1890s had established that the State of Illinois owned the land under Lake Michigan and could grant it to local government entities (such as the Lincoln Park District) for this purpose; these cases included the landmark Lake Front Case—the U.S. Supreme Court’s 1892 decision, Illinois Central Railroad Co. v. Illinois, which announced the American public trust doctrine.

The problem, rather, involved the legal rights of those who owned the property along the shore. These riparian rights, such as the rights to access and view the water, long have been regarded as especially valuable property rights, and courts often say that the government can extinguish them only by paying just compensation.

To be clear on the point and the problem: In order for the park districts to fill the submerged land granted them by the state, and thereby extend existing parks and build Lake Shore Drive, they had to acquire the riparian rights of the landowners on the shore (the riparian owners, as they may be called). But both the Lincoln Park District on the North Side and the South Park Commission on the South Side were short on money.

The ingenious primary device for solving this problem involved boundary-line agreements. In form, these were contracts specifying the boundary between the land of the riparian owner and the submerged land owned by the government (first the state and then the park district) and slated to be filled for the new parks. In substance, the boundary-line agreements were a quid pro quo in which riparians traded their rights for additional land.

How could that be? It all depended on where the parties agreed to draw the line. Here is how it worked: The park district would agree to set the boundary line in the lake—typically about 100 feet east of the original shoreline. (This was facilitated by the fact that erosion and, in particular on the North Side, accretion had obscured the original shoreline in parts.) For its side of the deal, the riparian would convey its riparian rights to the park district.

The agreement then would be presented to a court, typically quietly and with little public awareness (there being no adversity in this litigation, with an exception immaterial here). Upon being approved by the court, the agreement—now a judgment—would establish a new and permanent boundary between the previously riparian land and the new parkland to the east (abutting the lake). Indeed, the state statutes providing for this process decreed that the new boundary line could never be challenged based on where the shoreline had been at any time in the past or according to whether the former riparian owner had, at the time of the agreement, proper title to accretions.

Once the boundary was set, both the riparian and the park district were free to start filling the lake: the former to solidify their new holdings next to (east of) their original land, the latter to build the expanded park and the drive between the new boundary line and Lake Michigan to the farther east. In fact, we might now call the former “the former riparians,” as there now (or soon) were supposed to be a park and a roadway between their property and the lake.

This brings us to the power of possession: As experience with these boundary-line agreements grew, it became clear that establishing possession was important on both sides of the deal. For the former riparians, there was every incentive to begin filling the new land almost immediately. Indeed, our research unearthed that many, perhaps most, commenced filling the lake up to the boundary line well before the park district was able to start filling, east of the boundary line, for the parks and the drive.

The incentive of the former riparians to fill quickly was both economic and legal. The reason for giving up their riparian rights had been the promise of more land, even if it was in the interests of both sides not to publicize this. The sooner the former riparians secured or established that land, the more value they could extract from the deal. Legally, the former riparians may have worried that the agreements would be publicized and that public condemnation would lead to a demand to reverse the deals.

Even to leave aside the earlier reaction to the Lake Front Act of 1869 (decrying it as the Lake Front Steal and leading to its repeal in 1873), there was a basis for this worry in very recent history. When an explicit conveyance of submerged land was used to fund an earlier extension of Lake Shore Drive, just north of the Chicago River, in Streeterville, in the 1890s, a major public controversy erupted that led to litigation and calls for legislative reform.

The legal instincts of the former riparians would be vindicated many decades later, when the Illinois courts reformulated the public trust doctrine as a prohibition against any conveyance of public rights—quintessentially, submerged land under Lake Michigan—for private gain or private use. (These have gone beyond dicta: One such legislative grant, involving the South Works plant in the 1960s and 1970s, was judicially invalidated on this basis, after the grantee waited a decade to try to take active possession of submerged land once the state gave it the title.) Yet no one has ever suggested that the conveyances of submerged land to private riparian owners in the early decades of the twentieth century—whose land is now well west of the lake, given the park and the drive in between—should be reversed under this revised public trust doctrine. Possession, as we saw in the first post in this series, operates as a kind of unspoken statute of limitations on public trust claims.

What about the other side to the deals—the park districts? Their contrasting fate is similarly instructive. Recognizing that all of the primary conduct is recounted in detail in Lakefront (though not with an unwavering eye on possession), let us look at enough of it here to make the point.

Unlike the riparian owners, the park districts failed to take rapid possession of the submerged land outside the newly agreed boundary lines. The dilatoriness of the Lincoln Park District, on the North Side, has a simple explanation: it did not have the money. The park district had been able to overcome the financial cost of acquiring riparian rights, it is true, by using boundary-line agreements. But it still had to pay for landfilling, roadbuilding, landscaping, and a seawall. Consequently, years and often decades would pass before the park district commenced construction.

The delay in taking possession of the submerged land designated for the drive and new parks would prove to have fatal consequences.

As the years rolled by (this was all largely during the first quarter of the twentieth century), without action by the park district near their particular property, many riparians grew angry. One irritation was storm damage to their land. They had been led to believe that their land, old or new, would be protected against storm damage from the lake by a new park and seawall constructed by the park district. Instead, they often had to pay for protection and, in some cases, land restoration, themselves. In a practical sense, if you will, they were unhappy that they were not yet former riparians.

Another and more consequential irritation was a major change in the plans of the Lincoln Park District. Whether to build support for higher tax assessments or simply on the merits, the district announced plans for a greatly expanded park and drive. The original 1895 plan for expanding Lincoln Park northward called for a strip of park roughly 1,000 feet wide (west to east) along the shore of the lake. The new plans, as they began to emerge in the mid-1920s, projected filling approximately four times as much land, in order to accommodate a variety of recreational opportunities, such as a golf course, picnic areas, lagoons, and harbors. And instead of a narrow pleasure drive running along the water, at the eastern edge of the park, the new plans depicted Lake Shore Drive as a multilane limited-access highway running along the park’s west edge—adjacent to the boundary line with the former riparians.

Some riparians sued, alleging that the failure to protect their land from storm damage and the radically changed conception of the project constituted a breach of the original boundary-line agreements. The Illinois Supreme Court agreed, enabling various disgruntled landowners to rescind the agreements.

So the Lincoln Park District (and its successor, the unified Chicago Park District) had to find some other way to acquire riparian rights. It tried condemnation, but this proved to be too expensive and time-consuming. It tried negotiating new, much-sweetened boundary-line agreements. But this too ran into resistance, as riparian owners along the lakeshore, north of Hollywood Avenue (5700 North in Chicago), began constructing high-rise apartment buildings, whose market value was closely tied to direct views of the lake.

In short, the failure of the park district to take possession of the submerged land designated for park purposes soon after it was authorized to do so—1895 on the North Side—is directly responsible for the fact that Lake Shore Drive ends at Hollywood, well short of Devon Avenue (6400 North), the latter having been the original and longtime projected terminus of the extension of the drive and Lincoln Park. In areas where the park district could show only an abstract right to fill the lake and various planning documents about future intentions, former riparians successfully sued for rescission. In areas where the park district had succeeded in filling the lake and constructing some kind of park and drive—that is, where it had taken possession—there was no suit for rescission that we have discovered.

The boundary-line device also played a major—indeed, monumental—role on Chicago’s South Side, in the work of the South Park Commission. We use the emphasized word because it is the device of the boundary-line agreement that made possible the construction of the Field Museum, which opened in 1921, and the subsequent development of the Museum Campus. All of that, too, is an extraordinary story, but a separate one for our purposes here.

Lakefront tells that chapter as well, including how the stories meet in the middle—with the construction in the 1930s of the bridge over the Chicago River, connecting the north and south portions of Lake Shore Drive, as the roadway would soon be uniformly denominated. Its formal name was expanded by Chicago just this summer, to be Jean Baptiste DuSable Lake Shore Drive, “in honor of the Black trader cited as the first non-Indigenous settler of the Midwestern city.”

Our next (fifth) and final post will consider how possession functions as a kind of statute of limitations—a de facto type of adverse possession—in defeating claims of public rights. It will complement not only this fourth post in this series but also the first post, which showed that defendants who had established possession of submerged land prevailed in early public trust controversies, while those who had not established possession lost; the second post, which explained that the same appears to be true of public dedication controversies involving the construction of the buildings in Grant Park; and the third post, which highlighted the perceived advantages that possession plays in motivating persons to be the first to possess some valuable resource.

Posted by Howard Wasserman on August 16, 2021 at 09:31 AM in Books, Property | Permalink | Comments (0)

Hiring Announcement: Columbus School of Law at The Catholic University of America

The Columbus School of Law at The Catholic University of America (“Catholic Law”) seeks to fill three tenure-track faculty positions and one tenured (lateral) position to begin in Spring 2022 or Fall 2022.

One of the positions is for an entry-level candidate to serve as a member of the law school’s faculty while also contributing to the University’s Institute for Latin American and Iberian Studies (the “Institute”), described at https://ilais.catholic.edu/en/ilais-mission

We seek candidates who can teach, in addition to any natural areas of fit with the Institute (such as International Law or Immigration Law), the following subjects: Property, Family Law, and Trusts and Estates; Criminal Law, Criminal Procedure, and Evidence; Corporate and Securities Law; and Contracts and Commercial Law.

Two of the tenure-track faculty positions and the tenured (lateral) position are for qualified candidates interested in participating in the school’s new Project on Constitutional Originalism and the Catholic Intellectual Tradition, more fully described at https://communications.catholic.edu/news/2021/04/law-originalism-gift.html

We seek candidates who can teach, in addition to the natural areas of fit with the Project (such as Constitutional and Administrative Law), the following subjects:  Property, Family Law, and Trusts and Estates; Criminal Law, Criminal Procedure, and Evidence; Corporate and Securities Law; and Contracts and Commercial Law.

For more information and details on how to apply, please review the full opportunity description at https://provost.catholic.edu/_media/faculty-position-ads/law-tt-pco-and-cit,-2021,-rev.pdf.

Posted by Howard Wasserman on August 16, 2021 at 08:03 AM in Teaching Law | Permalink | Comments (0)

Sunday, August 15, 2021

ABA Administrative Law Fellowship for Prospective Law Teachers

The American Bar Association’s Section of Administrative Law and Regulatory Practice (the Section) is pleased to announce the establishment of the ABA Administrative Law Fellowship. The fellowship aims to diversify the cohort of legal academics in administrative law and regulatory practice by positioning lawyers currently in practice to be successful job candidates in the academic market. The fellowship is a two-year program that pairs fellows with mentors in the legal academy and provides other support for entry into legal teaching.

Fellowship Details. The core of the two-year fellowship program is matching each fellow with one primary mentor and two secondary mentors in the legal academy. The goal of the mentoring match is to assist fellows with developing a research agenda, job-talk paper, and other application materials for the legal academic job market (doctrinal and clinical). The program will also provide some general training on research methods and strategy. The program seeks to affiliate fellows with a law school to provide access to online research and publication resources. Fellows will have the opportunity to present their work in connection with the Section’s annual Fall Conference. The fellowship will provide up to $1,500 a year to defer the costs of travel and accommodations for participation in the Section’s Fall Conference and hiring conferences, as well as membership in the ABA and the Section.

Application Information. The Selection Committee is charged with identifying “lawyers with scholarly promise and a strong interest in teaching who would contribute to the diversity of the legal academy in the fields of administrative law and/or regulatory practice.” Fellows are expected to be employed full-time in legal practice. Application materials should include:

  1. a cover letter that explains the candidate’s interest in the fellowship and how the candidate fits the fellowship criteria, including a diversity statement, and addresses why the candidate believes this fellowship opportunity is better suited to their circumstances than a full-time law school-run fellowship or Visiting Assistant Professor position, and identifies at least two references;
  2. a resume; and
  3. a writing sample, which may be material produced for legal practice, a blog, an article, a report, or other written work.

Applications are due on or before September 15, 2021, and should be sent via e-mail with attachments in pdf format to [email protected] The Selection Committee aims to select four fellows for the inaugural class of the fellowship.

Questions. If you have questions about the fellowship or the application, please direct them to Professor Kevin Stack, Chair of the ABA’s Program for Prospective Administrative Law Scholars, at [email protected]

Posted by Howard Wasserman on August 15, 2021 at 08:58 AM in Teaching Law | Permalink | Comments (0)

Saturday, August 14, 2021

Call For Papers


The Rehnquist Center is pleased to announce the fourth annual National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on Feb. 18–19, 2022. Its goal is to create a vibrant and useful forum for constitutional law scholars to gather and exchange ideas each year. We hope to hold the conference in person but are mindful of the evolving public health situation and will be prepared to pivot to an online format if necessary.

Lee Epstein (Washington University St. Louis) will deliver a keynote address. Distinguished commentators for 2022 include:

• Maggie Blackhawk (NYU)
• Cary Franklin (UCLA)
• Richard Re (Virginia)
• Josh Chafetz (Georgetown)
• Jennifer Nou (Chicago)
• Fred Smith (Emory)

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by Oct. 1, 2021. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by Nov. 1, 2021. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

The Rehnquist Center will provide breakfast and lunch for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches. There is a conference registration fee of $200. Registration fees will be waived for conference presenters and for students and faculty at University of Arizona Law. In addition, a limited number of scholarships are available to those unable to attend the event otherwise.

Proposal submissions should be sent to [email protected] by Oct. 1, 2021.

For logistical questions please contact Bernadette Wilkinson ([email protected]).

Register at bit.ly/conlaw22.

• Andrew Coan (Arizona)
• Rebecca Aviel (Denver)
• Eunice Lee (Arizona)
• Shalev Roisman (Arizona)
• David Schwartz (Wisconsin)

THE REHNQUIST CENTER (https://law.arizona.edu/rehnquistcenter)
The William H. Rehnquist Center on the Constitutional Structures of GoVernment was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

Posted by Gerard Magliocca on August 14, 2021 at 08:46 AM | Permalink | Comments (0)

The distraction of standing

One problem with standing is that it is constitutionalized merits. A second problem, that derives from the first, is that it provides courts and defendants an easy way to dismiss cases at the threshold, to the exclusion of other issues.

Case in point is this Eighth Circuit challenge to Arkansas' ag-gag law, which creates a private right of action for unauthorized access to commercial property. Plaintiffs are animal-rights organizations that planned to send undercover testers onto two agriculture businesses and claimed they were chilled by the threat of suit. They sought a declaratory judgment that the ag-gag law violates the First Amendment and that the farms cannot sue them. The district court dismissed for lack of standing, then declined to address other issues. A divided Eighth Circuit reversed, concluding that the plaintiffs were chilled in their desire to send investigators by the threat of being sued. The dissent argued that any injury was speculative and dependent on a chain of uncertain events.

The standing analysis seems right to me. But there is much more wrong here. I cannot identify the plaintiffs' cause of action. Defendants raised this in the court of appeals, but the court said this is a merits issue for remand. It cannot be § 1983, because the defendants do not act under color in bringing or threatening to bring authorized private civil actions. It might be § 2201 itself, although this is supposed to be a remedy for an independent cause of action than a distinct cause of action. But  if § 2201 provides a cause of action, there is no subject matter jurisdiction. This is a Skelly Oil case--jurisdiction over the federal DJ action is determined by jurisdiction over the hypothetical enforcement action the DJ plaintiff wants to stop and whether it could have been brought in federal court. If the enforcement action would not arise under federal law, then the pre-enforcement DJ action does not arise under federal law; the hypothetical federal defense cannot be converted into a federal claim in the DJ action. Here, the enforcement action would be a claim by the business for violating the state statute, with the animal-rights organizations defending on First Amendment grounds. That enforcement action would not arise under, thus neither does the DJ action. There might be diversity jurisdiction, which would give federal jurisdiction, although the absence of a cause of action remains a problem); neither the district court nor court of appeals discussed any party's citizenship.

Allowing the case to make an up-and-down trip to the court of appeals focused on nothing but standing, when obvious defects in the case remain, seems like a waste of time.

This case is comparable to the potential cases under Texas' fetal-heartbeat law. State law gave private individuals a cause of action that might be constitutionally invalid, but rights-holders are unable to get into federal court in an offensive pre-enforcement posture. Instead, they must assert those rights in a defensive posture once the businesses have filed suit. They may not like it, but there is not a way around it.

Posted by Howard Wasserman on August 14, 2021 at 08:17 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, August 13, 2021

The Power of First Possession in Property

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the latest in a series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).

Our first two posts in this series presented evidence from our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press, 2021), that those who have established possession of resources are more likely to prevail in litigation than are parties who have only a paper title to such resources. Whether an owner or not, the history of the internationally famous Chicago lakefront suggests, the party in active possession is more likely to prevail. This is demonstrated in the context of claims involving the lakefront land that prompted the development of the American public trust doctrine (our first post) and the lakefront land that occasioned litigation based on the public dedication doctrine (our second post). We may leave aside here that some of this was the same land.

This post looks at possession from a different angle—namely, the strong intuition that the first person to establish possession of some resource has a powerful claim to retain that resource as against those who come later. The law reflects this intuition in a number of areas explored in first-year property courses but rarely encountered by practicing lawyers. Thus, the first person who captures a wild animal has a superior claim to retain the animal relative to later interlopers. The first person who finds a lost object has the right to retain the object against everyone save the true owner. It even appears that someone who steals an object has a superior right relative to another thief who subsequently steals it from him or her. All of these quirky situations reflect the principle of first in time, first in right.

Lakefront recounts two dramatic illustrations of how the first-in-time principle can powerfully motivate actors, whether or not they are familiar with the nuances of the law. The first involves the struggle for Streeterville, of local fame, and the other the reversal of the Chicago River, of international fame (and, for some, infamy).  

  1. The Story of Streeterville. The area of the lakefront north of the Chicago River and east of St. Clair Street (itself one block east of Michigan Avenue) was originally under Lake Michigan. When army engineers built piers into Lake Michigan from the north and south banks of the Chicago River in the 1830s, this combined with the counterclockwise current of the lake to cause new land to form by accretion on the north side of the north pier. The area was initially called “the Sands.” Later, in 1857, a company controlled by the Ogden family obtained a state charter to construct piers and a slip north of the river (the latter still exists today, called the “Ogden Slip”). This had the effect of magnifying the amount of accretion caused by the current of the lake.

In the summer of 1886, a scalawag named George Wellington Streeter grounded a boat on a sandbar outside the recently formed area of accretion. He announced to anyone who would listen that he had discovered new land, which he named “the Deestric of Lake Michigan.” He proclaimed the new land to be a territory independent of Illinois or at least of local governments (the claim varied). Along with a scruffy band of followers, he encouraged the dumping of refuse to augment the “Deestrict” (the spelling varied as well) and eventually made a living by such means as selling phony deeds to unsophisticated investors eager to cash in on a potentially prime area of real estate and by peddling soda pop, liquor, and copies of his “autobiography.”

Streeter’s basis for claiming entitlement to the new land varied also, but it was essentially one of original discovery. To bolster his claim, he intuitively appreciated, it was necessary to remain in possession of the land in some fashion. Thus, for nearly 30 years, Streeter and his gang maintained, on the land, a physical presence of some sort, whether by occupying the grounded boat, building a kind of fort on an old scow, living in a shack, or sleeping in a broken-down motor truck.

Streeter’s primary opponents in all this were wealthy Chicagoans who owned property on St. Clair Street. They were able to establish that they had legal title to the land formed by natural accretion. But they were understandably wary of making any claim to the land formed by illegal dumping. Part of their strategy was to try to oust Streeter from possession, either by hiring private detectives to do the job or by inducing the Chicago police to take action against Streeter’s alleged trespassing.

Streeter always fought back, usually with the formidable help of one of his three or four wives (in succession). On one occasion, a gun battle resulted in the death of a young guard, and Streeter was charged with murder. On another, Streeter was badly bloodied by the police but was charged with assault. Whatever the legal claim against Streeter, he was remarkably effective with juries, representing himself and beating the rap (although he did spend one year in the state penitentiary on a manslaughter conviction after securing a hung jury on the murder charge). We suspect that one reason Streeter evoked the sympathy of juries is that they secretly agreed with his central proposition, which he never tired of repeating: I was on the land first, and the rich folks with their detectives have no right to throw me off.

On his death in 1921, Chicago’s mayor, William Hale (“Big Bill”) Thompson, who had previously authorized the police to beat him up, led a forty-car motorcade to bury Streeter in Graceland Cemetery, the final resting place of the Chicago elite. The lakefront area occupied by Streeter up to 1915 is today known as “Streeterville,” and a statue honoring him has been erected in the center of the area, on McClurg Court. The wealthy St. Clair Street owners eventually succeeded in securing possession, to go along with their legal titles to the land, in a fascinating set of ways detailed in Lakefront, but it was not easy, and Streeter’s activity on the land was an important part of the reason.

  1. The Reversal of the Chicago River. Our second illustration of the first-in-time principle occurred at the opposite end of the social spectrum from “Cap’n Streeter.” By 1889, the Chicago establishment had concluded that the only way to protect the city from waterborne diseases was to reverse the flow of the Chicago River. In its natural state, the river flowed from west to east, with the result that human sewage and waste from packing plants flowed into the river, which emptied into the lake, potentially (and at times in fact) contaminating the city’s water supply. The solution was thought to be construction of a huge ditch or canal, which would cause the river to flow from east to west, taking the sewage and waste into the Des Plaines River and thence to the Illinois River and, thereafter, the Mississippi River.

The canal project, authorized by the Illinois legislature, got started in 1892, at great expense. At first, St. Louis, located on the Mississippi downstream from the junction with the Illinois River, took little notice. As the project drew closer to completion, the Missouri city became increasingly agitated. Chicago was effectively working to solve its disease problem by sending its waste in a way that, it seemed, would contaminate the St. Louis water supply.

When it became clear that St. Louis was plotting to take legal action to stop the Chicago project, the two cities embarked on a race to see who would be the first in one sense or another: Chicago, in getting the river reversed, or St. Louis, in getting to the Supreme Court of the United States to block the project. The one hastened to prepare its legal papers; the other scrambled in the dead of winter to finish the project and open the canal, so that the river’s flowing away from the lake would be an accomplished fact. This was not a battle over possession, strictly speaking, but it is unquestionable that both sides intuited that whoever acted first to lay claim to its preferred use of the waters would have the upper hand in whatever legal proceeding followed.

As it happened, the result was effectively a tie. Missouri, on behalf of St. Louis, filed an original action in the U.S. Supreme Court on January 17, 1900. The same day, perhaps an hour or two earlier, the Sanitary District of Chicago opened the Bear Trap Dam at Lockport, Illinois, allowing the water from the new Chicago Sanitary and Ship Canal to rush toward St. Louis.

The Supreme Court did not resolve the dispute by calculating who had obtained or claimed possession of the contested waters first. But the Court refused to issue a temporary injunction, and it took six years, until 1906, before evidence could be gathered and the Court made a final determination on the merits.

By then, the river-reversal project had long been the reality on the ground. Justice Oliver Wendell Holmes Jr. noted that because of pollutants entering the Mississippi River from the Missouri River, also north of St. Louis, the complaining city would have to build a water filtration plant no matter how the case came out. So Chicago prevailed, and the river flows from east to west to this day. (Some modern interest in a re-reversal especially involves concerns about ongoing ecological consequences of the reversed flow, not any continuing effects on St. Louis.)

In short, with respect to the Supreme Court decision in 1906: One cannot be sure, but at some level of intuition, the fact that Chicago had seized possession of the waters and had maintained that possession for six years may have influenced even the justices in determining the final resolution of the controversy.

* * * *

Our next post, the fourth in this five-part series, will consider the crucial role that possession played in the extraordinary way that Chicago’s famous Lake Shore Drive came to be built north of its original location in Lincoln Park—and why it does not extend as far north as was the plan.

Posted by Howard Wasserman on August 13, 2021 at 09:31 AM | Permalink | Comments (0)

It's not the law, it's the enforcement

From the Eleventh Circuit in Support Working Animals v. Governor. Florida voters amended the Constitution to outlaw gambling on greyhound racing. At the time of the lawsuit by a racing business against the Attorney General, that was all there was. The court held that there was no standing, because the AG's lack of enforcement authority means the plaintiff's injury is not traceable to the AG and an injunction against the AG would not remedy the injury. (By resolving on standing, the court does not reach the "wrong-defendant" argument that Ex Parte Young does not overcome sovereign immunity). The court summarizes well the problem:

[T]heir  “immediate gripe” isn’t with the Florida Attorney General, who neither has the authority to enforce § 32 nor has done anything else to cause the plaintiffs’ harm. The plaintiffs’ real problem, as we understand their complaint, is with § 32 itself—its existence—and the economic consequences that its passage has visited or will  visit on their businesses. None of that, though, appears to be due to any past, present, or likely future conduct of the Attorney General.

Subsequent to the filing of the lawsuit, the Florida legislature created a gaming commission charged with regulating gambling beginning in 2022; gave the Department of Business and Professional Regulation civil-enforcement authority over the ban; and made it a crime to partake in gambling on greyhound racing effective in October. The court noted that the claims were dismissed without prejudice, so the plaintiff could refile "against the proper parties at the appropriate time." That last piece suggests the court will not allow a case to go forward pre-effective date because effectiveness is inevitable--the plaintiff must wait until October, when criminal penalties take effect, to proceed against the AG and until next year to proceed against the regulatory department.

That seems excessive, making the plaintiff wait longer than necessary when the shape of the controversy is now clear. But it well illustrates the point that the existence of a law, no matter its chilling effect, is not sufficient for pre-enforcement litigation. Enforcement of the law must be legally possible. Smart plaintiffs and attorneys must avoid wasting time.

Posted by Howard Wasserman on August 13, 2021 at 07:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, August 12, 2021

New Chair in Environmental Law

My school (the Robert H. McKinney School of Law) is conducting a national search this Fall for our new chair in Environmental Law. If anyone is interested, then please contact either me or our Appointments Chair, Professor Andy Klein.

Posted by Gerard Magliocca on August 12, 2021 at 02:13 PM | Permalink | Comments (0)

Justice Washington on the Constitutionality of Circuit Riding

The repeal of the Judiciary Act of 1801 was a major constitutional controversy at the dawn of the Republic. One of the issues that flowed from that dispute was whether the Justices could be compelled to hold circuit courts as was done from 1789-1801 and again starting in 1802. The Justices acquiesced in the restoration of circuit riding reluctantly, as many of them had constitutional doubts but felt they had choice but to comply.

I've come across a letter from Justice Washington (written years later) indicating that he shared the view that circuit riding was unconstitutional.  Writing in 1818 about a bill that would reform the federal court system, he stated: "Our present system is worse than being imperfect, as it is very obvious that the Judges of the Supreme Court have & can have no constitutional authority to hold the Circuit Courts." His decision to acquiesce in 1802, therefore, was probably political or pragmatic.

Posted by Gerard Magliocca on August 12, 2021 at 11:56 AM | Permalink | Comments (2)

Wednesday, August 11, 2021

Justice Jackson's Voting Sheets in Youngstown

There are three sheets in Justice Jackson's papers that describe his impression of the views expressed in conference by the other Justices in Youngstown. Here is one of them:


Posted by Gerard Magliocca on August 11, 2021 at 09:40 AM | Permalink | Comments (0)

Tuesday, August 10, 2021

Frank H. Marks Intellectual Property Fellowship at GW Law

The Marks Fellowship is designed to assist attorneys who are interested in pursuing a full-time legal academic career in some area of intellectual property law. In the past, Marks Fellows have joined GW Law from judicial clerkships as well as from private practice and other legal positions.

The successful candidate will also serve as a Visiting Assistant Professor of Law at GW Law from September 2021 through September 2023. During that time, the Marks Fellow will teach one course per academic year, will assist with the administration of the GW Law's renowned Intellectual Property Program, and will have the opportunity to pursue scholarly projects, typically resulting in articles for publication in law reviews. Marks Fellows normally apply for full-time legal academic positions during the fall semester of the second year of the Fellowship. Most previous Marks Fellows have gone on to hold tenure-track or tenured positions at law schools--for more information, see https://www.law.gwu.edu/frank-h-marks-intellectual-property-fellowship.

Electronic applications can be sent to [email protected], and should include:

  • a resume;
  • a list of references, including academic references;
  • a law school transcript;
  • a copy of (or link to) a sample of a published work or other writing in law or a related field; and
  • a proposal describing the candidate's scholarly interests, including the specific project or projects he or she aims to complete while in residence at the law school.

Posted by Howard Wasserman on August 10, 2021 at 10:01 PM in Teaching Law | Permalink | Comments (0)

Law School Entry-Level Hiring Posting Schedule 2021-2022

The usual posts will occur this year regarding entry-level law school hiring.

On August 18, the first distribution of FAR forms will be released to schools. If/when anyone publicly posts the number of FAR forms, I will post Number of FAR Forms in First Distribution Over Time (last year's FAR Forms Over Time post).

Around August 25, I will post Law School Hiring Spreadsheet and Clearinghouse for Questions, 2021-2022 (last year's Hiring Spreadsheet and Clearinghouse Post).

Around October 24, I will post the VAPs and Fellowship Open Thread (last year's VAPs and Fellowship Open Thread).

Posted by Sarah Lawsky on August 10, 2021 at 04:29 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

The Archives of Youngstown

I was at the Library of Congress last week to review Justice Jackson's papers on Youngstown. I thought that I would post a few items of interest over the next few days.

Here is a page of the Justice's rough notes, which show for the first time the basics of his three-part framework for evaluating claims of executive power.


Posted by Gerard Magliocca on August 10, 2021 at 07:26 AM | Permalink | Comments (23)

CFP: Inaugural West Coast Bankruptcy Roundtable

USC Gould School of Law and Lewis & Clark Law School present the inaugural West Coast Bankruptcy Roundtable to be held February 3-4, 2022 in Los Angeles.  Spearheaded by Robert Rasmussen, Michael Simkovic, and Samir Parikh, the Roundtable seeks to bring together experienced and junior scholars to discuss particularly noteworthy scholarship involving financial restructuring and business law.  We seek scholars exploring diverse topics and will be interested in interdisciplinary perspectives.

The Roundtable invites the submission of papers.  Selected participants will receive a $1,000 stipend and have the opportunity to workshop their papers in an intimate, collegial setting.  Current attendees include Barry Adler (NYU), Ken Ayotte (Berkeley), Douglas Baird (Chicago), Bruce Bennett (Jones Day), Mitu Gulati (UVA), Yair Listokin (Yale), Bruce Markell (Northwestern), Ed Morrison (Columbia), Alan Schwartz (Yale), Jamie Sprayregen (Kirkland & Ellis), David Skeel (Penn), and Fred Tung (BU).  

Papers will be selected through a blind review process.  Scholars are invited to submit a 3 – 5 page overview of a proposed paper.  Submissions may be an introduction, excerpt from a longer paper, or extended abstract.  The submission should be anonymized, and – aside from general citations to the author’s previous articles – all references to the author should be removed. 

Please submit proposals by September 7, 2021.  Invitations will be issued via email by October 8th.  Working drafts of papers must be available for circulation to participants by January 11, 2022.   

Proposals – as well as questions and concerns – should be directed to Samir Parikh at [email protected]

Posted by Howard Wasserman on August 10, 2021 at 12:01 AM in Teaching Law | Permalink | Comments (0)

Monday, August 09, 2021

Hiring: Texas A&M University School of Law

TEXAS A&M UNIVERSITY SCHOOL OF LAW seeks to advance its academic programs and commitment to scholarly inquiry by recruiting multiple faculty candidates for full time, tenured, tenure track, and non-tenure track positions for August 2022.   Since integrating with Texas A&M in 2013, the law school (located in Dallas/Fort Worth) has sustained a remarkable institutional trajectory, as evidenced by significant growth in the size, diversity, and scholarly impact of our faculty; dramatic gains in the academic profile of our incoming students; and resulting advances in the school’s rank and reputation.   We are particularly interested in recruiting outstanding scholars—of any research methodology and in any subject area—who are excited by the opportunity to engage in scholarship, teaching, and policy work at the highest level, at one of the nation’s largest public universities.

Qualifications: Candidates must have a J.D. or equivalent.

Application Instructions: Applicants may submit a résumé and cover letter at https://apply.interfolio.com/91052 (for tenure and tenure-track positions) or https://apply.interfolio.com/91057 (for other positions).

Questions: Questions should be sent to Professor Brendan Maher, Appointments Committee Chair, at [email protected].

Equal Employment Opportunity Statement: Texas A&M University is committed to enriching the learning and working environment for all visitors, students, faculty, and staff by promoting a culture that embraces inclusion, diversity, equity, and accountability. Diverse perspectives, talents, and identities are vital to accomplishing our mission and living our core values.  Equal Opportunity/Affirmative Action/Veterans/Disability Employer committed to diversity.

Posted by Howard Wasserman on August 9, 2021 at 06:34 PM in Teaching Law | Permalink | Comments (0)

Hiring Announcement: FIU College of Law (multiple positions)

South Florida’s public law school in Miami, Florida International University College of Law, invites applicants for multiple tenure, tenure track, and contract positions to begin no later than the 2022-2023 academic year.  In particular, we seek candidates to teach environmental law and courses in other priority areas, such as cyberlaw, torts, wills & trusts, health law, family law, and administrative law. A typical package might include two environmental law courses and at least one (preferably two) in our identified priorities. International experience, academic entrepeneurship, and acumen in grants and external funding are welcome but not required.  Given our growing focus on interdisciplinary collaboration, some of these positions may involve joint appointments with other academic units at FIU.

In partnership with the administration, the FIU faculty have created a welcoming and intellectually vibrant community that celebrates lifelong scholarly engagement, nurturing students, public service, academic freedom, and transformational teaching.  Faculty relationships are based on mutual regard, respect and appreciation for differences, academic rigor, and a shared commitment to our rising national profile.  Our faculty are professional leaders in their fields locally, nationally, and internationally.  The faculty’s substantial scholarly output includes law review articles, academic monographs, collaborative work with colleagues from other disciplines, edited anthologies, peer-reviewed work, and op-eds.  The College supports the faculty with research assistance, summer stipends, travel funds, and performance awards.

The Florida Legislature established FIU Law in 2001 to deliver an affordable and excellent legal education that provides inspired teaching, training for a globalized marketplace, support for community service, and the highest standards of professionalism.  FIU Law ranks as the third most diverse law school nationally, and the first in the country among public law schools for Hispanic enrollment.  A majority of our students are the first in their family to attend college. To us, student success means demonstrable professional outcomes.  FIU Law graduates have ranked first among the 11 law schools in the state on the last 6 mid-year administrations of the Florida bar exam.  In 2020, 92% of our graduates secured full time, long term bar passage required, J.D. advantage, or professional positions.  Our state-of-the-art building was designed by Robert Stern.  For more information about FIU Law, visit https://law.fiu.edu.

FIU is Miami’s public urban research university, offering more than 180 bachelor’s, master’s and doctoral programs in fields such as engineering, international relations, architecture, and medicine.  It is a top 100 public university ranked in U.S. News and World Report’s Best Colleges. With nearly $200 million in annual research expenditures, the University has a Carnegie R1 rating (“highest research activity”).  A leader in securing performance-based funding for its operational achievements, the University was recently designated by the Florida Board of Governors as an emerging preeminent university.  For more information about FIU, visit http://www.fiu.edu/.

Candidates must have a J.D. degree (or its equivalent), a strong academic record, a track record (or the promise) of scholarly achievement, and zest for effective teaching.  Rank will be determined based on qualifications and experience.  Competitive benefits include excellent insurance options, a defined-benefit plan, defined-contribution plans, and a deferred compensation plan.

Applicants should send a CV, a cover letter outlining curricular strengths and scholarly interests, and a list of references to the chair of the Appointments Committee, Professor José Gabilondo ([email protected]), to whom questions about these positions can be directed.  Applicants can also apply through facultycareers.fiu.edu referencing job opening ID 524569 or by using the following link FIU Assistant, Associate, or Full Professor of Law. Review will begin August 23, 2021 and continue until these positions are filled.

FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, political affiliation, national origin, disability or protected veteran status.

Posted by Howard Wasserman on August 9, 2021 at 09:31 AM in Teaching Law | Permalink | Comments (0)

What Does the Public Dedication Doctrine Show Us About the Importance of Possession in Property?

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is part of a series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).

This five-part guest series, introduced here, poses an overarching question: Is ownership or possession the better predictor of who ultimately gets to control valuable property resources? We draw on our recently published book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021), which considers a number of episodes from the history of the Chicago lakefront, in our attempt to answer that question. These are original reflections, not mere excerpts.

Our previous post, focusing on the public trust doctrine, showed that a bare legal title to fill submerged land under Lake Michigan was vulnerable to repeal if the right had not been reduced to possession. Conversely, in a number of instances, extensive landfilling of the lake, accompanied by possession, was allowed to stand, even after the legal authority that arguably supported the right to engage in such filling disappeared.

In this post, we consider a different type of data. These, coming from the same general area of the Chicago lakefront, involve not the water but, rather, the history of Grant Park (here is a general map from Lakefront, prepared by Dennis McClendon of Chicago CartoGraphics, which may help orient the reader unfamiliar with Chicago). To be sure, some of this parkland was initially submerged, but we may leave that aside here (in light of this post’s not focusing on the public trust doctrine).

Here are the key facts: Early maps and plats of Chicago (such as Map A in the Supreme Court’s report of the Lake Front Case) showed the area as being open land and marked it “for ever to remain vacant of buildings” (the most official of the various phrases). Purchasers of land on Michigan Avenue, which forms the western boundary of the park (as shown also in Map B, depicting the area immediately to the south of Map A), relied on these representations. They paid a premium for the land on the expectation that it would perpetually enjoy an unobstructed view across the park looking toward the lake.

And here is the key law: An established precept in American law, called the public dedication doctrine, allowed such purchasers to sue in equity to enforce such “dedications.” For decades, into the twentieth century, the Michigan Avenue owners, most prominently Aaron Montgomery Ward, the catalog merchant, enjoyed great success in using the public dedication doctrine to block the erection of buildings in Grant Park (which was known as Lake Park until ca. 1900).

The relevant question for us, in this PrawfsBlawg series, is whether there was any difference in the judicial reaction when the owners sued to block a building before it went up, as opposed to when they sued to ask that a building be torn down. In the former situation, the defendant could hardly claim any interference with possession, there not yet being any building in existence. In the latter case, the defendant’s current possession would include a building, and any order to tear the building down would, to understate the point, interfere with that possession.

Both in Lakefront and in a Northwestern University Law Review article a decade before the book, we document a large number of cases in which the public dedication claim was adjudicated by the courts. By far the largest number of these suits were filed before the erection of any building. Indeed, in some cases a Michigan Avenue plaintiff urged that a symbolic stake be driven into the ground to establish that a concrete dispute was involved, allowing the issue to be resolved before the defendant could claim any interference with possession (and also enabling the defendant to escape the cost of constructing a building that it might be then ordered to tear down).

Overall, the suits that were filed before the erection of any building were remarkably successful. These successes were often achieved in the face of great opposition from the Chicago establishment. For example, Ward secured orders from the Illinois Supreme Court whose result was that the Field Museum of Natural History had to be located south of Twelfth Street, beyond the southern boundary of Grant Park, rather than in the center of the park, as city leaders wanted.

The primary exception to the string of victories obtained by Ward and others against proposed buildings in the lakefront park was when a plausible argument could be made that abutting landowners such as the plaintiff had consented to the building’s construction. It was on this basis, in the 1890s, that construction of the Art Institute was allowed to go forward and, as well, a temporary post office was permitted and, more than a century later, that various structures proposed for Millennium Park, in the northwest corner of Grant Park, were given the green light. Other suits against proposed structures failed because the construction, such as an air vent, was not a building.

In contrast, when suits were filed against buildings already in existence, the plaintiffs tended to lose. The cited reasons varied, as did of course the precise circumstances. Thus, in 1882, a small depot for the Baltimore and Ohio Railroad in Lake (subsequently known as Grant) Park was allowed to proceed, on the ground that the plaintiffs and other abutting landowners had passively acquiesced in the erection of a number of structures since the Chicago Fire of 1871—and, for an important point here, the depot was a successor to or replacement for the railroad’s existing use of a portion of the Interstate Exposition Building in the park. A number of suits against yacht clubs would also be rejected down the years, on the ground that the club buildings were located on pilings or in the lake and were therefore technically outside the boundaries of the park. Similarly, Ward’s suit against poles and wires for a trolley car system on Michigan Avenue was dismissed, on the ground that Michigan Avenue was likewise outside the protected area.

The only exception in which the public dedication doctrine was used to remove an existing structure was an action brought by the U.S. Attorney seeking to have a ballpark erected by Albert G. Spalding’s White Stockings baseball club torn down. The court allowed the club to finish playing in 1884, but ordered that it had to move elsewhere for the next season. Based on surviving depictions of the lakefront ballpark (such as that shown in Lakefront), it appears that it was composed of a wooden fence and grandstand. So, conceivably, the team may have been able to reuse much of the building material when it moved to a new location—the West Side Park—for the next season. In any event, the court may have concluded that the interference with possession in this instance was not that great.

One episode in particular illustrates, strikingly, how the equities of enforcing the public dedication doctrine may have been perceived differently—by plaintiffs and defendants alike—before and after a building went up.

For many years—call it three decades—the Chicago Park District wanted to construct a new band shell in Grant Park. A number of trial balloons were floated, but just about each time, one or more Michigan Avenue owners threatened to sue, and the park district backed off. In late 1977, Chicago Park District Superintendent Edmund L. Kelly announced that a “demountable” band shell would be erected for the coming summer. No one sued, evidently regarding a temporary band shell as not worth the effort.

After the concert season was over, the next fall, Kelly refused to “demount” the bandshell, claiming that this would be a waste of taxpayers’ money. Again, no one sued. Kelly had gambled that once a band shell was seen as being a permanent fixture in the park, it would not be challenged, or that, in the event of a challenge, the plaintiffs would lose. He was right. The Petrillo Music Shell remains in Grant Park to this day.

Overall, the pattern of outcomes in the Lakefront public dedication suits strongly confirms that possessory rights are more secure than purely legal or equitable rights. When plaintiffs sued before a building went up and thus before it became part of a defendant’s possessory interests, they were highly successful. When plaintiffs sued after a building was constructed, they generally lost. The correlation is not perfect. Sometimes pre-construction suits failed on other grounds. And the Chicago White Stockings club, alone among the defendants, had to tear down its “ballpark.”

But if the correlation is not perfect, the public dedication issue produced many more data points than the other examples that we will consider. So the support provided by these cases for the proposition that possession matters more than “paper rights” is quite powerful.

Posted by Howard Wasserman on August 9, 2021 at 09:31 AM | Permalink | Comments (0)

Saturday, August 07, 2021

Dean Search: University of Tennessee

Information here.

Posted by Howard Wasserman on August 7, 2021 at 05:12 PM in Teaching Law | Permalink | Comments (1)

A parade of stupid over "Fuck Biden"

Not content to let Roselle Park, NJ be the epicenter of First Amendment stupidity, Blue Rapids, KS, a town of about 1000 people, has taken aim at a yard sign reading "Fuck Biden and Fuck You For Voting for Him" (a cute addendum that makes the political the personal). As in Roselle Park, the town has cited him for a violation of its obscenity ordinance, following a citizen petition objecting to the sign. This story mentions that Evansdale, IA managed to resist the urge to be equally stupid with the same sign.

This is becoming a recurring theme, so a primer for small-town mayors and their lawyers who should know better:

• Bad words such as "fuck" are not obscene as that word is understood in the First Amendment, therefore a municipal obscenity ordinance cannot be the basis for regulating such a sign. There is nothing about the message "fuck ____" that is erotic (to say nothing of prurient) or that depicts or describes sexual activity. And if the thing the sign wants to "fuck" is the President of the United States or his voters (or the draft or cheerleading or anything else), that sign has serious political value. It does not matter that people "think" the sign is obscene and a lot of people signing a petition expressing their view that it is obscene does not establish "community standard" (both of which feature in the Blue Rapids debate).

• "Fuck ____" as a non-sexual political message is constitutionally protected speech under Cohen, reiterated in Mahanoy. There is no community-standards piece to this. Community offense at a political message does not strip that message of protection. Quite the opposite--the message needs protection because of the community opposition.

"Think of the children" is of limited value where speech reaches a mixed audience of adults and children, especially for a person speaking to the world from the unique forum of her home. Government cannot limit adults to seeing what is fit for children. It follows that government cannot limit a speaker to uttering what is appropriate for children on the chance that some children might happen upon her message.

• Blue Rapids Mayor Jerry Zayas says "the matter belongs in the hands of the court" and "'Whatever the court decides, that is our justice system.'" This is an absurd statement from an elected official. The court decides only because Zayas lacks a rudimentary understanding of free speech and gets the courts involved by attempting to enforce this ordinance in a way at odds with the First Amendment. He could have followed the lead of the town in Evansdale, which, politics aside, recognized what the First Amendment commands. Of course, Zayas can be a good departmentalist and follow his (erroneous) constitutional understanding to enforce the law and force the court to rule.. But it would be nice if the public was aware that the mayor was costing it money it probably does not have on a cause that he (or the town lawyer) should will lose badly once the court does decide.

• The ACLU is involved, so, as in Roselle Park, this will be over quickly.

• How many cases like this will we see?

Posted by Howard Wasserman on August 7, 2021 at 10:47 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, August 06, 2021

A day in the year

One Year is a Slate podcast hosted by Josh Levin telling various stories from 1977. (I find it interesting because I turned 9 and it was in many ways the first year I was really aware of the world). This week's episode, Elvis, the Pledge, and Extraterrestrials, tells three stories tied to August 16, 1977. Two touch on interesting speech stuff.

The first is about the National Enquirer's coverage following Elvis Presley's death on August 16. The big focus is its practice of paying sources (such as Elvis' girlfriend and the paramedics who responded to the scene) for exclusive stories and to obtain photos of Elvis' body in the casket. Ian Calder, later of Calder v. Jones fame, features prominently. I remember that around this time People Magazine went on a TV advertising kick with the tagline "If it's in People, you know it's true," an effort to separate itself from the Enquirer.

The second (beginning around 16:30) is about Deborah Lipp, a New Jersey high-schooler who sued the school over the right not to stand for the Pledge (New Jersey law required students to stand at attention, even if not reciting the words). The district court ruled from the bench on August 16 that the law requiring students to stand was invalid. Levin notes that SCOTUS has never ruled on whether the First Amendment protects the right to remain seated, presenting that as an ongoing problem for students through clips of recent school efforts in Texas and Florida (of course) to compel student participation. Lipp tells the story of receiving a call from her daughter's teacher asking for her permission for the daughter to sit, telling the teacher that her daughter does not require parental permission, and the teacher taking that as an expression of permission.

The focus on whether SCOTUS has spkoen leaves out some things. First, less than a year later, the Third Circuit affirmed in Lipp in a short per curiam, agreeing that the state cannot "requir[e] a student to engage in what amounts to implicit expression by standing at respectful attention while the flag salute is being administered and being participated in by other students." So there is binding precedent in New Jersey, Delaware, and Pennsylvania (as well as the Virgin Islands) that schools cannot compel any participation, verbal or non-verbal. Second, SCOTUS precedent does not matter much when most of these cases follow a similar pattern. The school tries to push the student around, a district court tells the school to cut the crap, and the school does not appeal or push further. Alternatively, the school backs off in the face of the threat (often in the form of a letter from the ACLU or FIRE) that a court will tell it to cut the crap. This is not to minimize the costs and burdens on students when school districts become over-officious; I wish they would do a better job at this. It is to say that a SCOTUS decision (which the school also can ignore if it wants to deal with the political, legal, and financial fallout) would not make a difference.

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

Thursday, August 05, 2021

Possession vs. Ownership in Property—First of a Lakefront Series

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the first in a series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).

“Possession is nine-tenths of the law,” a common version of an old saying holds. More recently, Carol Rose, one of our most distinguished property scholars, has argued that this understates the point. Possession matters, she has written, largely because when we see someone in possession of something, we assume that person to be its owner. (See her chapter in Law and Economics of Possession, Yun-chien Chang, ed., Cambridge University Press, 2015.)

Among its other virtues (we respectfully suggest), our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), allows us to consider both the dictum and Professor Rose’s critique of it. In particular, the book documents a number of episodes in the history of Chicago (its lakefront, that is) in which someone either was in possession of some resource but had no clear right of ownership or, by contrast, had a fairly clear legal right of ownership but lacked possession. Who was more likely to prevail: the possessor without ownership, or the owner without possession?

With great thanks to Howard Wasserman and his PrawfsBlawg colleagues for the introduction and opportunity, let us proceed.

We can begin with the early part of the story, which involves the Illinois Central Railroad and its quest to secure a grant of submerged land under Lake Michigan to construct an outer harbor, supplementing the existing (inner) harbor of the Chicago River and the railroad’s lake trackage and lakefront facilities. In 1869, the railroad got what it wanted: With some skillful lobbying and at least a little graft (the former is quite clear, the latter clear enough), it persuaded the state legislature to grant it 1,000 acres of submerged land “in fee,” for purposes of building an outer harbor in the lake. In effect, in the Lake Front Act, the state granted the railroad ownership of the submerged land.

Because of dire economic conditions in the early 1870s, the railroad did little to implement the grant, i.e., to take possession of the submerged land and begin constructing a harbor. Chicago politicians, who had wanted the right to construct such an outer harbor themselves, capitalized on the railroad’s inactivity and public unhappiness and secured a repeal of the grant to the railroad in 1873 (the Lake Front Steal was the popular local name for the 1869 act, and the more general Granger Movement against the railroads helped the city).

The 1873 legislators were insufficiently impressed by the arguments of the railroad’s lawyers that the 1869 grant was a “vested right” that could not be repealed consistently with the Constitution’s Contracts Clause. Many of the legislators were lawyers, but it cannot have helped the railroad’s cause that its claim of ownership was not accompanied by possession.

Many years later, in 1892, the U.S. Supreme Court had to decide whether the 1873 repeal of the original grant was constitutional. Although the railroad’s lawyers had weighty precedent on their side in support of the claim of vested rights, a four–to–three majority of the Court held that the grant was, if not void altogether, properly revocable.

The winning point, as articulated for the Court in an opinion by Justice Stephen J. Field, was that the submerged land was impressed with a “trust” in favor of “the people,” so that “they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.” Thus was announced, as it would come to be called, the American “public trust doctrine.”

By itself, this public trust would seem to have doomed much of the Illinois Central’s existing facilities along the lakefront. The railroad had constructed, by the time of the 1892 decision, a massive complex of terminals, engine houses, grain elevators, and piers, much of it on landfill in the lake—both north and south of the area targeted for construction of the outer harbor. (Map C in the Supreme Court’s report of the case, also known as the Morehouse map, gives a sense of this, as of course does Lakefront in any number of ways.) These facilities would seem to constitute an “obstruction or interference” with the public’s access to the lake.

Field nevertheless discussed two arguments that might support allowing the railroad’s various improvements constructed in the lake to stay. One was based on language in the Illinois Central’s 1851 state legislative charter, which allowed the carrier to use “any lands, streams and materials of every kind” owned by the state if needed by the railroad to construct depots, shops, yards, etc. Perhaps this charter language justified the railroad’s construction in the lake.

The other was based on the common-law privilege of a riparian landowner to “wharf out” from the shore if necessary to reach water deep enough to float a boat. If sufficiently modest in size, Field observed, such landings—such wharves, piers, docks, and the like—were consistent with the public trust, since they enhanced the ability of the public to access navigable waters. The case was accordingly remanded to the lower courts for an inquiry whether the railroad had constructed any facilities in the lake that went beyond the point of practical navigability (and thus could not be sustained by the wharfing-out privilege).

On remand, both the district court and the newly created U.S. Court of Appeals for the Seventh Circuit held that the railroad’s massive complex did not violate the public trust identified by the Supreme Court. Focusing in particular on the right to wharf out, the lower courts concluded that the Illinois Central’s various landfilling did not intrude into the lake beyond the point of practical navigability, especially given the emergence of a new class of lake steamers with a much deeper draft than the schooners of bygone days. In short, the construction in the lake was sustained as properly implementing the railroad’s right as riparian owner to access the lake’s navigable waters.

Consider the implications of all this for our question. To recap: On the one hand, the Supreme Court upheld the repeal of the grant “in fee” to the railroad to construct an outer harbor. This was, at most, an abstract right of ownership, for the railroad had never converted it to actual possession. On the other hand, the lower courts sustained the right of the railroad to retain all the terminals, elevators, repair facilities, and track that it actively possessed, even though the better part of these had been constructed on landfill never explicitly authorized by the state.

It gets better. Between the Supreme Court’s 1892 decision and the time the remand worked its way back to the Seventh Circuit in 1899, the Illinois Supreme Court, in other litigation, repudiated both of the arguments that Justice Field had suggested might justify the railroad’s keeping the various facilities it had constructed in the lake. In 1898, the state court repudiated the right to wharf out, at least as applied to Lake Michigan. That same year, it also held that the Illinois Central’s charter did not justify landfilling in the lake, since the lake was neither land nor a stream nor (apparently) “materials of [any] kind” owned by the state.

Naturally, then, the state argued that the railroad had no legal right to remain in the lake. The Seventh Circuit dodged the issue. It ruled that the only question open for consideration on remand was whether the Illinois Central’s various improvements extended into the lake beyond the point of practical navigation. Nothing else could be considered. When the matter returned to the Supreme Court in 1902, the high court adopted the same dodge.

So it was that the Illinois Central, which had no viable argument to support its being in the lake, was allowed to remain there, with respect to the facilities that it had actively possessed at least since the late 1880s. The courts were willing to validate the repeal of the Lake Front Act. But they had no desire to dismantle one of the major rail complexes in the United States.

In both 1873 and 1892, the relevant legal actors (the Illinois legislature and the U.S. Supreme Court) were willing to strip the railroad of its claim to ownership of land that it had never possessed. In 1899 and 1902, the relevant legal actors (the Seventh Circuit and the U.S. Supreme Court) upheld the right of the railroad to retain control of facilities that it did actively possess, even though it no longer had any viable claim of ownership to them.

So far in the story, it would seem that possession is more powerful than ownership in determining the attitude of legal actors regarding the allocation of control over valuable resources. Our second entry (the series will entail five posts) will consider the power of possession in the context of the public dedication doctrine (not to be confused with the public trust doctrine)—that is, in the case of the Chicago lakefront, in determining the fate of various challenges to constructing buildings in Grant Park.

Joseph D. Kearney and Thomas W. Merrill

Posted by Howard Wasserman on August 5, 2021 at 10:21 AM in Books, Property | Permalink | Comments (0)

Jack Phillips goes on defense and no one complains

I stumbled across this while doing research for my SB8 paper. I think it illustrates my point that the partisan valence of the rights and rights-holders at issue influence the complaints and hand-wringingabout SB8's procedural and jurisdictional rules.

In June 2017, the day SCOTUS granted cert in Masterpiece Cakeshop, a trans woman ordered a cake from Phillips to celebrate her birthday and her male-to-female transition--it would be pink on the inside and blue on the outside; Phillips refused and the woman filed a complaint with the Colorado Civil Rights Commission, which found probable cause. In August 2018, a few months after SCOTUS' decision in Masterpiece, Phillips filed a federal action challenging the P/C finding and enforcement of state law as violating the First Amendment. In January 2019, the district court declined to abstain under Younger, applying the bad-faith exception. The Commission dismissed the administrative enforcement action, mooting the federal action. So the woman sued Phillips in state court for violating the state public-accommodations law. In June, following a bench trial, the state trial court rejected Phillips' First Amendment defense and found that he had violated the ordinance, imposing damages of $ 500. Phillips plans to appeal to the state court of appeals (and to the Colorado Supreme Court and then to SCOTUS).

The case illustrates that it is not unheard-of for rights-holders to be forced to assert federal constitutional rights in a defensive posture and in state court. Phillips is similarly situated to abortion providers and advocates who are the likely targets of SB8 suits, forced to defend private statutory actions for damages rather than government-initiated enforcement proceedings. Colorado courts likely are as hostile to the First Amendment rights Phillips asserts in defense as Texas courts are to the reproductive-freedom that providers and advocates will assert in defense in SB8 actions. The difference is that Phillips faces one action by one denied customer, whereas abortion providers face a tidal wave of lawsuits by random Texans across the state. But imagine that dozens or hundreds of LGBTQIA people order cakes, knowing they will be refused, then sue for damages; the similarity sharpens (although the amounts of money are very different). And both cases show why the well-pleaded complaint rule is such a bad idea--Phillips and Whole Women's Health should be able to gain that federal forum for their federal defenses.

Once again, many people complaining about abortion providers having to defend in state court would be happy to see Phillips sued into oblivion. But the procedural and jurisdictional propriety cannot turn on the rights involved.

Posted by Howard Wasserman on August 5, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 04, 2021

When Did People Start Calling Them Justices Instead of Judges?

In my work on Bushrod Washington, one thing I've noticed is that almost everyone referred to him as "Judge Washington" when they were describing his formal title. George Washington used this term. So did John Marshall. My initial thought on this was that Supreme Court Justices in this era were riding circuit most of the time and thus were "judges" in the sense that they held trials and were not sitting as Justices.

To my surprise, though, further research shows that people regularly referred to the Justices as "judges" well into the twentieth century. You see this in many newspaper articles and in law review articles. For example, in 1926 Charles Warren (the author of well known books on the history of the Supreme Court) wrote an article in the Harvard Law Review in which he talked about "Judge Harlan," "Judge Field," and "Judge Brandeis" in describing Supreme Court decisions. This was well after the end of circuit riding. What led to the convention that we always say "Justice so-and-so" is unclear. 

Posted by Gerard Magliocca on August 4, 2021 at 09:24 PM | Permalink | Comments (5)

Embrace the judicial departmentalism (Updated)

I do not know enough to say whether the CDC's new eviction moratorium is constitutionally valid, although if Steve believes it is at least an open question, I am inclined to think it must be.

I would have loved for Biden to own the judicial departmentalism underlying the new policy: "Most constitutional law professors believe the policy is constitutionally invalid, but we have found some who disagree. Lawyers within the executive branch disagree. The courts may rule against us, as is their power. But for the moment we believe the policy is valid and will pursue it. And if it turns out we are wrong, we have bought ourselves some time. And in this case, we are willing to risk the attorney's fees and political fallout." I have no problem with the executive taking that position, regardless of my sympathy for the policy at issue.

Update: Mark Tushnet makes a similar argument, framing it in terms of norms v. law v. constitutionalism. But he gets at the same point: Biden and the CDC are not not enjoined from stopping evictions and can continue to pursue what they view as the best course until such injunction comes. And they can balance the benefits of even temporary relief against the cost of being liked to Orval Faubus.

Another Update: This Washington Post op-ed shows how far into judicial supremacy much of the commentariat fallen. The unexplained votes of four Justices to vacate a stay of an injunction pending appeal plus the view of one Justice--announced without full briefing or argument--that the policy is unlawful means any effort by the administration disregards the courts, the rule of law, and the Constitution. The possibility that the one Justice whose views we know might change his mind is "unlikely," therefore the CDC is acting in a constitutionally violative manner in trying. This eliminates Holmes' bad person (which Tushnet references), who is no longer entitled to try to predict what the courts might do.

The piece ends on this note:

If the Trump administration had ignored a direct warning from the Supreme Court, Democrats would rightfully line up to condemn the president. Mr. Biden does not get a pass on the rule of law because his heart is in the right place.

Nothing like some uninformed both-siderism to complete the puzzle. But note how this moves the line. The problem here is not that the executive ignored an injuncti0on, which the cannot do. The problem here is not that the executive ignored binding precedent created by a Court majority, which he can do. The problem here is that the executive ignored a "direct warning" (is there any other kind?), which the Post regards as an equivalent affront to the courts and the Constitution.

Posted by Howard Wasserman on August 4, 2021 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)