« July 2022 | Main

Thursday, August 18, 2022

Number of FAR Forms in First Distribution Over Time - 2022

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.

FARFormsOverTime.20220818

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; 2022: 272.

(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.)

Posted by Sarah Lawsky on August 18, 2022 at 10:12 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Bad lawsuits from the left

Florida Governor Ron DeSantis suspended Hillsborough County (Fla--includes Tampa) state's attorney Andrew Warren from office, pursuant to his constitutional power to suspend any state officer not subject to impeachment. The basis for the removal is Warren's intention not to prosecute for receiving or providing abortions and gender-affirming healthcare, which DeSantis described as a refusal to enforce state law.  Warren filed suit in federal court; he alleges the suspension violates the First Amendment (because Warren has merely spoken about exercising his discretion not to prosecute, but has not been presented with or done anything with any live cases) and the Florida Constitution (because DeSantis did not establish proper grounds for suspension).

This is a bad lawsuit. Like many lawsuits from the right, it is partly for show, to look strong in standing up to the other side. Warren gave a press conference talking about how DeSantis abused his power and acted undemocratically in removing a twice-elected official who received more votes in Hillsborough County than DeSantis had. That rhetoric does not differ from Republican cries during Trump's impeachments. It seems to me there are two problems with the suit, at least in federal court.

The First Amendment claim fails under Garcetti and the patronage cases. Accepting that DeSantis retaliated for Warren's expression and nothing he did in office, Warren is a policymaking official and he spoke as part of his formal job duties; the First Amendment does not protect such speech from employment consequences. DeSantis is not Warren's "boss" and that Warren owes his job to the county voters and not to DeSantis or anyone under DeSantis' control. But DeSantis enjoys a (limited) supervisory role over Warren. Job-related speech--a promise as to how he intends to perform his official functions--is not protected as a basis for suspension if it constitutes misfeasance, neglect of duty, or incompetence. If a policy-level employee can be fired for cause for job-related speech without First Amendment recourse, a person can be suspended for job-related speech that provides a legal basis for removal without First Amendment recourse.

Warren's real argument is that his speech cannot constitute misfeasance, neglect, or incompetence. That is a question of state law that a federal court will not (and arguably should not) touch. This is a paradigmatic Pullman abstention case--if there were a good First Amendment claim, it can be mooted by an open-and-unresolved state law issue of whether Warren's conduct met the state-constitutional standard* for removal, which a state court should resolve in the first instance. At worst, I would expect the district court to certify the state issue to the Florida Supreme Court. Pullman abstention and certification are disfavored in First Amendment cases because of the chilling effect in the litigation delay, but Warren's First Amendment claim is  weak and the state issues are uniquely central and dispositive. Of course, Warren does not want to be in state court, especially not the Florida Supreme Court. But that is why we have these doctrines.

[*] Federal courts do not abstain from federal constitutional issues in deference to a parallel state constitutional issue. They do abstain in deference to a unique state constitutional issue.

I do not know much about Warren, but he appears to have political aspirations and is willing to take on the current state power. Which is great. But political fights are no more proper in federal court when undertaken by a politician I agree with for a cause I support.

Update: A reader offers another reason the Court cannot hear this case--a plaintiff cannot bring a § 1983 or Ex parte Young claim for a violation of state law and a federal court cannot order state officials to follow state law.

Posted by Howard Wasserman on August 18, 2022 at 09:10 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, August 17, 2022

We’re All Textualists Now… When It Suits Us

Justice Kagan is responsible for two contradictory and fascinating maxims. In 2015, she famously said that “We’re all textualists now.” And then, this summer, she pointedly complained that “The current Court is textualist only when being so suits it.” To my mind, Kagan’s newer statement is descriptively accurate but normatively misdirected. Rather than lamenting the Supreme Court’s suppressed interpretive discretion, she and the other justices should embrace it.

As a newcomer to a conservative Court, Kagan proved that she fit in by honoring textualism. But after the Court shifted further rightward, Kagan fell more often into dissent. And so, having accrued valuable textualist credibility, Kagan is now trying to cash it in. In recent cases on the major question doctrine, for instance, Kagan has started pointing out that the majority is deviating from strict textualism—which, she assumes, is the correct way to do legal interpretation.

There are at least two problems with Kagan’s new approach. First, it isn’t working. The majority is evidently comfortable enough with its own view of the law, including the newfound exception to strict textualism recognized by the major question doctrine. Second, it rests on the controversial notion that textualism is legally correct. Kagan’s natural ideological allies are especially unlikely to agree that textualism is interpretation’s lodestar.

The obvious alternative to what Kagan is doing would be a return to type. Much as Kagan’s predecessor, Justice Stevens, warred against Justice Scalia's textualism, Kagan (or her liberal colleagues) could try to champion non-textualist methods. But that approach is awkward when textualism has garnered so much support. It seems to concede that, under existing interpretive practice, the Court is getting it right. And, of course, textualism has considerable appeal and so is hard to vanquish.

I would like to suggest a third option. The basic idea is to acknowledge that the law of interpretation, while real, is substantially permissive. As a result, the justices have an awful lot of lawful discretion, and the most contested cases do not normally turn on formal law. Rather, many outcomes are determined by informal law, such as a judge’s personal precedents, or non-legal considerations, such as a particular judge’s views on morality or policy.

Acknowledging legal interpretation’s substantial permissiveness would come with a number of benefits. For one thing, permissive interpretation is both descriptively and normatively superior to either embracing or rejecting strict textualism. As Kagan’s recent comments ruefully acknowledge, actual interpretive practice isn’t all that textualist, even when it comes to the current Court. Moreover, textualism’s critics are right that rigid adherence to text would be bad.

Permissive interpretation would also come with several strategic benefits for frequent left dissenters like Kagan. First, it would undermine the majority’s efforts to deflect responsibility by claiming to be bound by law. Second, it would allow the dissenters to show contradictions or hypocrisy among the majority justices and their personal precedents. And, finally, it would establish that what the Court decides today need not be decided the same way tomorrow. 

Of course, permissive interpretation would also come with certain drawbacks. If interpretation is avowedly permissive, then some or all recent majority opinions are probably consistent with the law. Dissenters would therefore have to clarify that their accusations of personal inconsistency do not generally amount to allegations of unlawfulness. The dissenters would also have to own up to the critical role of their own discretion and personal precedents.

Yet even those drawbacks would actually be net beneficial. It is convenient, or easy, for justices to insist both that the law controls all outcomes and that the law is always on their side. But those claims work only when preaching to the choir. And because exaggerated legalism helps the Court deflect even well-taken criticism, it hampers political efforts to check judicial decisionmaking. In truth, the law is both a limit and a license. Dissenters can admit as much.

Take the decision to overrule Roe v. Wade in Dobbs v. Jackson Women’s Health. The left and right are locked in disagreement over whether the outcome in Dobbs was simply prohibited or mandatory. But each position shows why the other is wrong. And, for the left, establishing that Dobbs was discretionary is worth conceding its formal permissibility. Only by revealing the scope of existing interpretive discretion can critics effectively assess both the role of the justices and the appeal of court reform.

If you have followed me this far, the question becomes: How should the justices acknowledge and manage the law’s permissiveness? The answer, I think, is to set rules of legal permissibility—that is, conditions sufficient to show that an interpretation is lawful. In a new draft paper, I’ve argued for just such an approach, which is modeled on the British “basic rules” of interpretation. These rules would mark zones of interpretive discretion where that discretion is most desirable.

I support permissive interpretation because it is correct, or more so than the alternatives. And, in the long run, it’s also in everyone’s best interests. But I’ve framed this post from the perspective of left justices because, as Kagan’s recent comment shows, there is currently an unusual incentive for at least the left wing of the Court to recognize permissive law. By belatedly admitting interpretation’s permissiveness, Kagan has taken an important step toward embracing it.

Cross-posted on Re's Judicata.

Posted by Richard M. Re on August 17, 2022 at 01:13 PM | Permalink | Comments (11)

Tuesday, August 16, 2022

Law School Entry-Level Hiring Posting Schedule 2022-2023

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, 2022-2023 (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 16, 2022 at 03:55 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (2)

Justice Robert Jackson on Political Parties

I came across this gem in his concurrence in American Comm. Ass'n v. Douds

Parties, whether in office or out are often irresponsible in their use and abuse of freedoms of speech and press. They all make scapegoats of unpopular persons or classes and make promises of dubious sincerity or feasibility in order to win votes. All parties, when in opposition, strive to discredit and embarrass the Government of the day by spreading exaggerations and untruths and by inciting prejudiced or unreasoning discontent, not even hesitating to injure the Nation's prestige among the family of nations.

Posted by Gerard Magliocca on August 16, 2022 at 09:05 AM | Permalink | Comments (0)

Monday, August 15, 2022

Presidents and Prosecutorial Discretion

News that the Justice Department had obtained a search warrant and seized several boxes of materials from Mar-a-Lago, the residence of former President Donald Trump, shocked the nation last week.  Details about the reason for the search and what was found have slowly trickled out, thanks in part to DOJ’s motion to unseal the warrant, various reports from news outlets, and several public statements from Trump himself.  Although the factual basis for the search is not entirely known, commentary about the search and its implications have dominated the media landscape.

Much of the commentary surrounding the search has focused on whether the search was justified.  The justification commentary hasn’t been confined to whether the search was legally justified—that is, whether there was probable cause to support the search warrant—but rather whether the search can meet some heightened standard given that the target of the search was a former president

At it’s core, those arguing for heightened scrutiny (rather than the ordinary legal standard for when a search warrant is justified) seem to be making a political argument—namely, that because the current resident of the White House ran against Trump in 2020 and because Trump might run for president again in 2024, any search warrant needed to be based on more than just probable cause to believe that evidence of a crime would be found in Mar-a-Lago.  Implicit in this argument is the idea the ordinary legal standards do not provide enough protection against politically motivated prosecutions, and so the legitimacy of any criminal investigation or prosecution of President Trump must be judged by a different standard.

As someone who studies criminal justice and politics, I think that there are analytical shortcomings and unappreciated implications that flow from this heightened scrutiny argument, and I want to lay them out here in the hope that they can help shape the discussion about the Mar-a-Lago search within the legal community.

First, it is important to note that the “heightened scrutiny” argument is often made without much information about what such a standard would look like.  Qualitative standards, including probable cause, are notoriously difficult to articulate with any specificity.  But in order for the argument about heightened scrutiny to make any sense, it needs to provide some sort of guidance; otherwise it is useless as an actual yardstick against which to assess DOJ’s actions.  A call for a heightened standard without actually articulating such a standard operates only as a way to criticize DOJ (“this wasn’t enough”) rather than as a standard that DOJ officials could attempt to meet.

How could we go about articulating a “heightened scrutiny” standard?  For one thing, we should be clear about whether this is a question about the amount of evidence that DOJ had to support the warrant application, whether this is a question about the type of crime that Trump is suspected of committing, whether it is some combination of the two, or whether the standard is about some extra-legal consideration.

The idea that DOJ should have a larger amount of evidence than what would amount to probable cause before seeking a search warrant of a former president doesn’t seem like a particularly radical argument to me.  Probable cause is not a difficult threshold to meet.  There is reason to believe that prosecutors and law enforcement already tend to require more than just probable cause in order to search or arrest a high-profile subject; instead, they want overwhelming evidence that a crime was committed or that evidence of that crime is likely to be found.  To be clear, law enforcement likely use this heightened evidentiary standard in cases involving high-profile subjects because they know such cases will garner more public attention, and they don’t want a case to fall apart when the public is paying attention. 

For what it is worth, I don't think that those calling for a heightened standard are saying that a higher evidentiary threshold is needed because the news accounts suggest that the FBI had ample evidence that they would find the documents they sought in the search warrant, and the inventory from the search indicates that they did find such documents.

So that means the call for heightened scrutiny is likely an argument that not all crimes should give rise to an investigation or a search of a former president.  The idea that someone should essentially be immune when it comes to some crimes may seem controversial—at least until people are made aware of how much relatively innocuous behavior is actually criminal.  Congress and state legislatures pass dozens of new criminal laws every year, some of which contain sweeping language.  (If you are curious about how silly some of those laws are, you should check out Crime a Day.)  To the extent that the “heightened scrutiny” argument is merely an objection to overcriminalization in specific circumstances, then it seems unremarkable.  But again, the argument needs to be spelled out in more detail because specifying which crimes should remain unenforced is necessary to assess the argument. Should former presidents be exempt from prosecutions for mishandling classified information?  Tax fraud?  Burglary?  Shooting someone on Fifth Avenue?

The biggest flaw with both the type of crime argument and the amount of evidence argument is that they don't just apply to former presidents:  Why should these heightened standards apply only to Donald Trump and not the rest of us?  Probable cause is an incredibly low standard to meet. So why is that a good enough standard for searching or arresting ordinary citizens?  And why isn’t the overcriminalization critique an argument for stopping all prosecutions of such crimes, not just prosecutions of those who were elected to national office?

Some of the commentators arguing for heightened scrutiny have suggested that their argument is based on a perceived danger that former presidents will be targeted for illegitimate reasons—specifically, they will be targeted in order to help the political fortunes of those who are currently in office.  But personal and political grievances are not limited to former presidents; they exist in communities across the country.  For example, when I was doing research for my book on plea bargaining, I reached out to the lawyers of a man who had been pressured into pleading guilty for a crime he hadn’t committed.  The lawyers told me that their client was scared to talk to me:  Even though he had been exonerated and his conviction reversed, local police had made it known that they still thought him guilty, and so the man was worried about doing anything that would draw their attention and encourage them to use their power to harass him.

You would think that judges could stop police and prosecutors who use silly laws or low evidentiary threshholds to harass people.  But when faced with evidence that law enforcement used their powers to arrest and search as a pretext, or have used the powers to punish individuals for extralegal reasons (like exercising their right to free speech), courts have refused to intervene.  But those pushing for heightened scrutiny either don’t know or don’t care that overcriminalization and weak evidentiary thresholds allow abuse of ordinary citizens.  They only seem concerned that people who have held positions of immense power are shielded from possible abuse of the criminal justice system.

Of course, the people who are arguing for heightened scrutiny don’t frame their argument in those normative terms.  Indeed, some don’t even say that former presidents should have additional protection.  Instead, they suggest that such protections are necessary for political reasons—e.g., that without heightened standards the political allies of former president Trump will see DOJ's actions as illegitimate political persecution, and they may even resort to violence.

I’m not sure that it is wrong to say that public officials must think about politics when it comes to criminal investigations and prosecutions.  After all, our criminal justice system gives enormous amounts of discretion to law enforcement and to prosecutors, and it largely regulates that discretion through direct elections or political appointments and removals.  In other words, despite repeated claims to the contrary, investigations and prosecutions are—on some fundamental level—political.

But I don’t think that the people who are making the heightened scrutiny argument fully appreciate the implications of adopting an explicitly political approach to investigations and prosecutions.  Specifically, I don’t think they appreciate that this principle—that political considerations should drive the exercise of criminal justice powers—also legitimates efforts by progressive prosecutors to stop enforcing low-level crimes, to stop cycling people of color and people from low-income communities through jails and prisons, and to refuse to enforce highly-politicized offenses such as abortion-related laws.  The prosecutors who have pursued such policies have done so with significant political support from within their communities, but with great pushback from outside of those communities.  For example, earlier this month, Ron DeSantis removed a local prosecutor from office on the basis of statements that the prosecutor wouldn’t prosecute people for abortion-related crimes.  DeSantis claims that these statements are evidence of neglect of duty and malfeasance.  Would an explicit policy of eschewing criminal investigations and prosecutions of former presidents also be neglect of duty or malfeasance?  And if not, why not?

I also don’t think it is a good idea for those arguing in favor of heightened scrutiny to focus on the violence that President Trump’s followers might wreak on this country.  For one thing, I think that some Trump supporters will resort to violence no matter what happens (e.g., if their candidate loses a fair election).  In addition, I think that argument tells people that being seen as unpredictably violent is the way to get preferential treatment from law enforcement. Think, for example, about the violence and property damage that occurred during the racial justice protests of 2020.  The logical conclusion of the heightened scrutiny argument is that, if there is enough violence of that sort, then police and prosecutors will have to change their practices and stop relying on low evidentiary thresholds and bloated criminal codes when policing poor communities of color.  Maybe the people who are arguing for a heightened standard for former presidents would also endorse a public and explicit change to what crimes are enforced and the evidentiary thresholds being used in poor communities out of fear that more violence or property damage could occur—but I’d like to see them say so if it is true.

The truth is, the search at Mar-a-Lago has forced people who usually think about politics and presidential power to grapple with the fact that we don’t require much from law enforcement before they can search and arrest members of the public.  The former is the stuff of nationally syndicated pundits and constitutional law professors; the latter is the territory of criminal justice practitioners, advocates, and crim law professors.  Now that the country is paying attention to how much power and discretion is given to officials in the criminal justice system, perhaps it is time to address that enormous and largely unchecked power on its own terms rather than just worrying about whether that power will be directed at a former president.

Posted by Carissa Byrne Hessick on August 15, 2022 at 10:19 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink | Comments (3)

Section Three of the Fourteenth Amendment On Trial

A bench trial begins today in New Mexico in the Section 3 case against Couy Griffin, a County Commissioner in Otero County. This is a quo warranto action that seeks Griffin's removal from office for his participation in Jan. 6th. Griffin was convicted earlier this year of a criminal misdemeanor for his actions at the Capitol.

The trial is scheduled to last two days. When there is a decision, I will pass the news along.

Posted by Gerard Magliocca on August 15, 2022 at 07:55 AM | Permalink | Comments (0)

Sunday, August 14, 2022

CFP: Financial Restructuring Roundtable

The Financial Restructuring Roundtable (formerly the West Coast Bankruptcy Roundtable) will be held in person on April 6, 2023 in New York City. Spearheaded by Tony Casey, Samir Parikh, Robert Rasmussen, and Michael Simkovic, this invitation-only event brings together practitioners, jurists, scholars, and finance industry professionals to discuss important financial restructuring and business law issues.

The Roundtable invites the submission of papers. Selected participants will receive a $2,000stipend and have the opportunity to workshop their papers in an intimate, collegial setting. Last year’s attendees included Ken Ayotte, Douglas Baird, Bruce Bennett, Jared Ellias, Anna Gelpern, Marshall Huebner, Ed Morrison, Mark Roe, David Skeel, and Jamie Sprayregen. 

We seek papers exploring diverse topics and will be interested in interdisciplinary perspectives. 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 October 1, 2022. Invitations will be issued via email by November 1.  Working drafts of papers must be available for circulation to participants by February 10, 2023.  

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

Posted by Howard Wasserman on August 14, 2022 at 10:00 AM in Teaching Law | Permalink | Comments (0)

Friday, August 12, 2022

Breaking The Law to Save the Law

I came across this passage from Dicey that explains this issue quite well:

There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken. The course which the government must then take is clear. The ministry must break the law and trust for protection to an act of indemnity. A statute of this kind is .  . . the last and supreme exercise of parliamentary sovereignty. It legalizes illegality; it affords the practical solution of the problem which perplexed the statesmanship of the sixteenth and seventeenth centuries how to combine the maintenance of law and the authority of the houses of Parliament with the free exercise of that kind of discretionary power or prerogative which, under some shape or other, must at critical junctures be wielded by the executive government of every civilized country. 

 

Posted by Gerard Magliocca on August 12, 2022 at 07:46 PM | Permalink | Comments (0)

Hiring at My Law School

I am on the Recruitment Committee at the Indiana University Robert H. McKinney School of Law. This year we are looking to hire two entry-level or junior laterals on the tenure-track and one legal writing/analysis faculty member. Please contact me if you might be interested.

Posted by Gerard Magliocca on August 12, 2022 at 02:19 PM | Permalink | Comments (0)

Thursday, August 11, 2022

Section Three Update

Today the 11th Circuit heard argument in Representative Taylor-Greene's federal suit to enjoin the state eligibility proceeding against her candidacy. The majority of the panel seemed disinclined to reach the merits unless the Georgia Supreme Court rules that Greene is, in fact, ineligible. (The state ALJ's determination that Greene is not disqualified by Section Three was upheld last month by a state Superior Court, and an appeal is now pending in the GA Supreme Court.) On the merits, the panel focused entirely on whether the Qualifications Clause (Article One, Section Five) bars a state eligibility inquiry into a congressional candidate. There was an entertaining hypothetical about what would happen if Vladimir Putin decided to run for Congress in Georgia, but aside from that I'm not sure the discussion of the merits added much to what's been said on that before.

I'll have more to say about Section Three next week. Things are ramping up again.

NOTE: I was a witness for the plaintiffs in the Taylor-Greene state hearing.

Posted by Gerard Magliocca on August 11, 2022 at 08:38 PM | Permalink | Comments (0)

Wednesday, August 10, 2022

Return of the Junior Faculty Federal Courts Workshop

The University of Florida Levin College of Law will host the Twelfth Annual Junior Faculty Federal Courts Workshop on December 1-2, 2022. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. After a long COVID-related hiatus, we’re excited to bring together the Federal Courts scholarly community in person in Gainesville, Florida.

The workshop is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.

The conference will begin on the morning of Thursday, December 1, and conclude by early afternoon on Friday, December 2. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.

The workshop will take place at the University of Florida Levin College of Law, which is within 15 minutes of the Gainesville Regional Airport and less than two hours from the Jacksonville International Airport and the Orlando International Airport. The College of Law will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. A discounted block of rooms will be made available at the Hotel Eleo at the University of Florida. Those wishing to present a paper must submit an abstract of no more than two pages to [email protected] by Monday, September 12, 2022. Papers will be selected by a committee of past participants, and presenters will be notified by no later than October 3, 2022.

Questions about the conference may be directed to Professor Merritt McAlister at [email protected] or the Strategic Academic Programs Manager Ruth McIlhenny at [email protected].

Posted by Howard Wasserman on August 10, 2022 at 06:57 PM in Teaching Law | Permalink | Comments (1)

What is so bad about Saul Goodman and other questions

Two questions about the penultimate Better Call Saul, with spoilers, after the jump.

What is bad about Saul?

As I wrote several episodes ago, the theme of BCS that decent Jimmy McGill becomes irredeemable Saul Goodman and we have moved deep into that. Last night included a flashback to a Rosencrantz-and-Guildenstern-type meeting, early in the BB timeline, between Kim and Saul and between Kim and Jesse, both of which are designed to show how far Saul has gone.

Here is Rolling Stone' Alan Sepinwall, a critic I love reading and listening to and seems a generally liberal person, as far as he shows in his writing, on the Kim-Jesse interaction:

Jesse is only there because his buddy Emilio — a.k.a. Walter White’s first murder victim — has come to Saul seeking legal representation. (In the “Better Call Saul” episode of Breaking Bad, Jesse tells Walt that Saul got Emilio out of trouble on two different occasions, despite the cops having him dead to rights.) Like Kim’s various interactions with Saul and/or Gene in this episode, she says very little, just waiting for the nicotine to kick in and hoping that the rain will stop before she has to listen to too much of this overgrown kid(*) bragging about ways for criminals to evade the justice system. She believed passionately in her work as a public defender, but guys like Jesse, Emilio, and Combo are the dark side of that work — the ones who present an ongoing danger to others each time a lawyer like Kim or Saul gets them off. And she really can’t stand listening to the future Mr. Driscoll praise the legal chicanery of the man she hopes to never see again.

This is disturbing. On Sepinwall's framing, Saul is bad because he does what a defense lawyer is supposed to do--he defends clients and forces the state to prove its case beyond a reasonable doubt before putting them in prison.  Sepinwall talks of "evad[ing] the criminal justice system" and "legal chicanery." Maybe Saul did something illegal or unethical in helping Emilio, Combo, and these other clients. But (again in the spirit of "show, don't tell") we have not seen it, nor have we seen it as different in kind from what "Jimmy" did. Jimmy/Saul did a lot of illegal stuff--lied to the court about Lalo's identity, helped deal meth, provided information on a murder, and laundered money. And maybe that illegal stuff is part of the representation he is does here. But, again, we have not seen it. Successfully representing even obviously "dead to rights" people in court should not be mentioned in the same breath.

Worse, Sepinwall distinguishes the criminal defense Jimmy does from the criminal defense Kim wanted to do (before she threw it away on the scheme that resulted in Howard Hamlin's murder), framing the latter as noble and the former as the corrupt work of the evil Saul Goodman, the "dark side" of criminal defense. In fact, it is the core of the work of a defense lawyer. A lawyer who only wants to defend innocent people needs to find another line of work. Kim wanted to limit her defense to indigent people who committed small-bore crimes and were caught in the system. Which, fine. But her work is not nobler or more moral than what Saul does (again, assuming he stays within legal lines as to in-court representation).

Could Saul and Kim be charged with a crime?

I pose this to crim law people out there. In last night's episode, Kim goes to the DA and signs an affidavit detailing their scheme (which she also show to Howard's widow): They falsely made it seem that Howard was abusing cocaine, caused his work on a case to implode, and destroyed his personal and professional reputation; when he confronted them about the scheme at their apartment, Lalo (who was there on a separate matter and not connected to the scheme) murdered him. There is some talk about whether she will be charged with anything; she says she does not know* and that hers is the only evidence of what happened.

[*] Howard's widow is angry about this, pointing out that she is supposed to be a great lawyer. Yes, because great lawyers know everything about all law. That is why Law Twitter is the way it is.

The question appears to be whether they could be charged in Howard's death. Could she (or they) and for what? Can felony murder extend that far--to murder by an unconnected person after the underlying felony was complete?  Is there some other theory of criminal liability for Howard's death? What about for the underlying scheme to destroy his reputation, separate from his death.

There is a separate prospect of a civil suit (which the widow mentions, although Kim does not have much money). Maybe defamation or IIED? Something else? There is a statute of limitations problem--six years elapsed in the BCS/BB universe--although I imagine a good argument for tolling based on fraud.

Leaving comments open because I would like to hear from some crim folks.

Posted by Howard Wasserman on August 10, 2022 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Audiobook of "Washington's Heir"

I'm pleased to announce that my Bushrod Washington biography will be available as an audiobook starting next week. I'n not the narrator, but that may be a plus for any buyers who are on the fence.

Posted by Gerard Magliocca on August 10, 2022 at 08:07 AM | Permalink | Comments (0)

Tuesday, August 09, 2022

Assiging pre-1L summer reading

Have law schools begun assigning law-related books to incoming 1Ls--for example, books on how law shapes society,  lawyer mindfulness, and other topics that frame law, legal practice, and law school in some broader framework. Is your school assigning something? If so, what book(s) and what are you doing with them (discussion during orientation, integrating into 1L courses, etc.)?

Leave answers in comments or email me. (Irrelevant comments will be deleted--please don't fuck up a genuine question about legal education).

Posted by Howard Wasserman on August 9, 2022 at 03:20 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Intoxicating Liquors

I'm teaching a new seminar this Fall centered on Robert Jackson. This is an experiment, as I've never taught a class on one personsingle person. But what an extraordinary career to cover.

As part of my preparation, I was reading Jackson's testimony to the Senate in support of FDR's Court-packing plan. At one point, he argued that the courts should defer to Congress's definition of "general welfare," "due process of law," and "commerce among the several states" as they did to the definition of "intoxicating liquors" under the Eighteenth Amendment. This leads to a wonderful thought experiment about how people could have instead tried to determine the original public meaning of intoxicating liquors in 1919. Now there's a project!

Posted by Gerard Magliocca on August 9, 2022 at 12:56 PM | Permalink | Comments (0)

Monday, August 08, 2022

Playing on Tisha B'Av

While Jewish baseball fans focus on who plays or does not play on Yom Kippur and the Koufax Curse,Tisha B'Av (commemorating the destruction of both Temples and all other pre-Holocaust tragedies to befall the Jewish People*) presents the pardigm Jewish holy day for which most Jewish-American baseball fans do not care whether anyone sits out.

[*] The Holocaust is marked by Yom Ha'Shoah, which is set near Israel Independence Day and Israel Memorial Day. Many Orthodox Jews, particularly Chasidim, fold Holocaust commemoration into Tisha B'Av. Jewish scholars debate whether the Holocaust is an extraordinary event or one of many great historic tragedies.

Until now. Tisha 'Av ran from sundown Saturday to sundown Sunday. Here are the results.

Saturday Evening:

• Alex Bregman (3B, Astros). 1-for-4 with a double and run scored (albeit meaningless in the ninth inning of a 4-0) game. Astros lose 4-1.

• Max Fried (P, Braves). 6 innings, 6 hits, 4 runs (2 earned), 5 strikeouts. Part of the error that allowed two runs to score. Smacked his head on the field trying to make a play. Braves lose 6-2, swept in double-header, fall 5.5 games behind Mets in NL East.

• Rowdy Tellez (1B, Brewer): 1-for-2 after entering game in 6th inning. Brewers lose 7-5.

Sunday Afternoon:

• Bregman: 0-for-3. Astros lose 1-0

• Scott Effross (P, Yankees: 1 inning, 3 hits, 3 earned runs (that put game out of reach). Yankees lose 12-9.

• Joc Pederson (OF, Giants): 1-for-2. Giants win 6-4

• Garrett Stubbs (C, Phillis): (Rare start): 1-for-5 with a run scored. Phillies win 13-1.

• Tellez: 0-for-3 with a walk. Brewers lose 2-1

 

So Tisha B'Av looks a lot like Yom Kippur: Teams lose (2-6), Jewish players, especially pitchers, do anywhere from badly to not-so-great. I sense a pattern.

Posted by Howard Wasserman on August 8, 2022 at 07:16 AM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Sunday, August 07, 2022

Abortion and state-created danger

Imagine a pregnant person in a state (Missouri and Ohio seem the current leading examples) in which doctors and hospitals have interpreted  state law to require an emergency to escalate before an abortion can be performed under a life or extreme-disability exception. The doctor believes that an abortion is necessary but the situation is not emergent and as she understands the law, abortion is permitted to handle imminent death or disability, not likely; the doctor waits until the woman suffers further complications, then performs the procedure. Could the woman make a claim against state officials for any harm in waiting for her condition to worsen?

State-created danger establishes substantive due process liability for third-party harms where government takes affirmative action that subjects an individual to new or greater danger at the hands of third persons or circumstances, in a way that shocks the conscience (either because done with intent to injury or deliberately indifferent to an injured person's rights). Here we have government action in the enactment and potential enforcement of state laws against doctors who perform abortions. That state action increases the danger to patients at the hands of circumstances (their medical condition) by affecting treatment--doctors do not act on their medical judgment out of fear of prosecution, causing  the patient's condition to worsen. Causing doctors to allow patients' condition to worsen before treatment shocks the conscience. Threatening enforcement shows deliberate indifference knowing that enforcement affects doctors' actions in a way that endangers patients. Going one step further, could a doctor (using third-party standing) sue for injunctive relief, showing that these laws affect their medical judgment, causing harm to many women, and therefore the state law is constitutionally invalid?

My (imperfect) analogy is lawsuits challenging municipal ordinances that impose consequences on landlords (fines, loss of license) whose tenants have too many disturbing-the-peace 911 calls (including calls from domestic-violence victims). Plaintiffs have argued that the laws make them more vulnerable to abuse by domestic partners because less willing to call 911 out of fear that their landlord will evict them to avoid the consequences for multiple calls. The suits that have been brought have settled, so no court has passed on the theory.

I admit this would be a tough sell, especially in a pre-enforcement action. It might be tough to limit to abortion/health care. Would it open the door to a claim against the state for raising the speed limit to 70, on the theory of "you knew people would drive faster and less safely, making me more vulnerable to a reckless driver." State officials could argue that they are not deliberately indifferent to the pregnant women but trying to protect fetal life.

Still, as abortion-rights activists look for legal theories to avoid the worst effects of Dobbs, it might be a theory worth pursuing.

Posted by Howard Wasserman on August 7, 2022 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, August 06, 2022

Wrongful Birth Actions

Dobbs will have many ripple effects in law and jurisprudence, and I thought I'd talk about one that comes up when I teach Torts. Many states recognize wrongful birth actions. How will these change in light of Dobbs?

There are two types of wrongful birth actions. One involves negligence or a product defect in birth control. There can then be a tort action against the provider or manufacturer. Determining the appropriate amount of damages in these cases is tricky. (Pregnancy costs only, child-rearing costs included, etc.) In class, I ask students whether failing to get an abortion in these circumstances constitutes a failure to mitigate, which provokes a good deal of discussion. These birth control actions will survive Dobbs because the contraception right remains. The failure to mitigate argument, assuming it was valid before Dobbs, probably will not survive in states that ban abortion. This means that, on average, the damage awards in these cases will probably increase. 

The second type of wrongful birth action involves negligent pre-natal care. The argument is that a doctor was negligent and did not realize that a fetus was suffering from some abnormality that might well lead the parents to seek an abortion. This sort of claim will almost never survive in a state that restricts abortion. The fact that people could obtain an abortion in another state would probably not be understood as consistent with the public policy of the home state in defining the scope of its tort actions.

Anyway, this is just a rough take on this topic. But there are many more unexpected or unknown implications of Dobbs that will play out in the coming years. 

 

Posted by Gerard Magliocca on August 6, 2022 at 09:55 AM | Permalink | Comments (0)

Thursday, August 04, 2022

Britney Griner and WNBA pay

I am sure someone has written this, but I will throw it out again. Britney Griner was in Russia playing basketball because the WNBA does not pay its star athletes enough money to build the type of financial nest that will carry her when her career ends at age 35-40. WNBA stars have been doing this for years because the overseas money--especially in Russia, where oligarchs own several teams and use sports to amass and show wealth and influence--dwarfs WNBA money. Russian teams and leagues also treat players better in terms of travel, accommodations, schedule, etc.

Nor is this the first time WNBA players have gotten caught up in Russian political intrigue. Sue Bird and Diana Taurasi played for Spartak Moscow Region; the mobbed-up team owner, Shabtai Kalmanovich, was murdered.

Posted by Howard Wasserman on August 4, 2022 at 06:10 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Missing: A Legal Scholarship of Gerontocracy Outside the Judicial Branch

It took some time before the New York Times, a bellwether of conventional professional-managerial class sentiment, devoted much space to the simple fact that the President is pretty darn old for someone who occupies what is often treated as a highly demanding and stressful job. But eventually, a few weeks ago, it put the point squarely, in an article discussing his age, its possible effects on him, and the political issues it has raised. Since then, it has raised the issue several times, including a story addressing the point in the context of his recent first case of Covid. The politics of President Biden's age have become increasingly prominent; in a primary debate earlier this week, for example, two incumbent Democratic House members thrown into running for the same seat both demurred when asked to support Biden for reelection, with Rep. Carolyn Maloney adding, "I don't believe he's running for re-election." No doubt both of them were aware of polls suggesting an increasing public view that Biden is too old to run for re-election.     

Of course President Biden is not alone in facing these issues and concerns. Writers and readers at the Times and elsewhere delighted in drive-by diagnoses of then-President Trump's mental and physical state in relation to his age, as in "Glass of Water-gate." Trump, too, was too old to run for President the first time, in my view, and certainly will draw endless stories about his age and condition if he runs again. Elizabeth Warren was over 70 as a major primary candidate in 2020 and Bernie Sanders was older still, older than any of his primary competitors. After a long period of omertá and professional self-preservation within Congress, the San Francisco Chronicle finally went public in April with a well-reported story about Senator Dianne Feinstein's (D-88) possible mental decline, freeing up other papers to follow suit. Senate Majority Leader Mitch McConnell is 80. Senate Majority Leader Chuck Schumer is a spry 71 and his Whip, Dick Durbin, is 77. The three top leaders of the House are 82, 83, and 82 respectively. We know all this. But the numbers are striking when put in one place.

I raise all this because I find it surprising (and unsurprising) that we do not appear to have seen the emergence of any real, cumulative American legal scholarship centering on our gerontocracy, and specifically on presidential old age and decline. At least I don't think we have. If there were a body of recent work on the subject, on SSRN or in law reviews, I think I would have noticed. A few crude Westlaw searches don't appear to indicate much at all. A search for references to Richard Posner's book Aging and Old Age since January 2015 came up with only 12 hits; one was in an article focusing on the judiciary and the remainder were not relevant. (I use Posner's book not as an endorsement, although I enjoyed it, but because it would be a pretty conventional reference in a law review article on the subject.) A search in the same time-frame for variations on the word "gerontocracy," unconnected to any other term, came up with 21 hits. Five of those articles connected the term to the federal judiciary specifically; one referred in passing to Congress alone; the rest are irrelevant. No references in the same period to "presidential age" or "president's age" were relevant. The many references to "presidential incapacity" focused almost entirely on impeachment and the 25th Amendment. If, as I think is true, presidential age and its effects is an issue with many policy implications, it is certainly not one the legal academy has addressed much.

One reason that might be offered for this failure is that we don't know it's a problem. But that is one of the very policy issues in question. As the case of Senator Feinstein shows, it can take ages, so to speak, for anyone to be willing to discuss the issue of age-related decline in an elected official with the press, even on an anonymous basis. As against the minor concern that an elected official with great power might be unfit to serve, there are the major concerns of career suicide for staff and of fellow elected officials being ostracized and having donations and favors from leadership and party PACs dry up like the Sahara.

And that's just Congress, a multimember body of, shall we say, imperfect collegiality. Although every executive branch leaks like a sieve, there are leaks and there are leaks. The branch serves one person, and even then that person may be in actual contact with very few subordinate members of that branch. Most people who serve a president will have no idea what condition he or she is in, and those who do are more likely to conceal than to reveal what they know. Insofar as close executive staff are as likely to manage as to serve a president, they may see their primary job as preventing any possible revelations about decline or incapacity rather than airing those concerns, even internally. Unsurprisingly, the main New York Times story on President Biden's age provided strong evidence of this. Most quotes were not for attribution. Many of those consisted of "uniform[ ]" and no-doubt coordinated blandishments about how tremendously vital President Biden is. This presidency's primary press strategy has been one of keeping the President away from the press, and its primary structure has been less one of cabinet politics than of rule by chief of staff, a structure that constricts presidential access and exposure and facilitates presidential management by staff. One simply does not expect senior presidential staff to be honest or candid about such matters. If there have been any high-level meetings about presidential health, decline, or incapacity--and I am not suggesting there have been, or that there have been specific reasons to hold them other than the general fact of the president's age--we will read about them in books published only after the presidency ends. Then they will be much happier to talk and to burnish their records retrospectively. And presidents about whom concerns, sincere or political or both, have been raised about their age may, in a way that is hard to chivvy out, push themselves even if or when it is unwise to do so, precisely in order to allay those concerns. During his recent bouts with Covid, President Biden and his staff have been at pains to emphasize that he continues to work hard through the illness. He may well be in every condition to do so, but could he do otherwise without the inevitable recurrence of stories about his age? Might that be a consideration in his decisions about whether or how much to rest? In the Times story on President Biden's age, the deputy chief of staff, "who oversees his calendar," said that Biden resists having his schedule managed and is "driving additions to his schedule all the time." Is that in fact ideal? Could it be harmful? No doubt it is a function of his own personality, but is it also influenced by a politically driven desire to be seen as vigorous and in command? How much and when should this or any other president be managed, structurally or informally, to prevent such actions? (Consider President Kennedy, his health, and his many willing staff and medical enablers.) 

Another possible reason for the gap is that this is not "law," or law law, beyond the 25th Amendment and related legislation (which has been discussed in legal scholarship, although rarely in the context of age and decline and not, so far as I know, in reference to this particular president). That's not a convincing justification, for at least three reasons. The first and most obvious is that "it's not 'law'" hardly serves to deter legal scholars from writing reams and reams about a great many subjects. The second is that questions of presidential age and decline, of how to monitor it and deal with it, and so on are all obvious policy questions that might be addressed in any number of ways, structural and legal, and thus fertile ground for legal scholarship of a kind that is conducted regularly. 

The third is that the same "there's no 'law' there, beyond a couple of unhelpful words of constitutional text" justification has been no barrier to discussing judicial age and possible reforms around that issue. As I noted above, when legal scholars discuss things like gerontocracy or aging and decline outside of the subject of elder law, they are most likely discussing the Supreme Court and the rest of the federal judiciary. Those judges' tenure lasts "during good Behavior." They are thus, at least arguably, even less constrained than the post-25th Amendment executive. That does not prevent substantial discussion. A search for the terms "cognitive function" or "cognitive decline" within 200 words of "Supreme Court," "federal judges," or "federal judiciary" since 2015 comes up with a healthy 84 results, with a high relevance percentage. See, for instance, this fine and nuanced article by Francis Shen on "Aging Judges," and the largely approving reply from Judge Morris Hoffman. (Both writers have worked on the MacArthur Foundation Research Network on Law and Neuroscience. Its members' publications and a general law and neuroscience bibliography are available here.) The age of the current Supreme Court lineup is a popular topic for those who would like to reform the institution for outcome-neutral reasons or rejigger it for outcome-driven reasons. And this desire is not wrong! (Although in many cases it may be opportunistic.) Of the current members of the Court, one is 74 and one is 72. Both are approaching what we might take as one comparative benchmark, the mandatory retirement age for Canadian Supreme Court justices. Ruth Bader Ginsburg held on to her office, tenaciously, until she died at 87 and after long discussion about her age; Anthony Kennedy relinquished his seat at the age 0f 82, and Stephen Breyer recently left the Court at 83. In an area without much existing law, scholars have been happy to discuss the possible effects of aging on judges, to propose reform efforts, to argue against a "lifetime tenure" reading of the Good Behavior Clause, to carefully study and cite the ages of our sitting judges and Justices, and so on. Legal academic writing about presidential or congressional age and its effects has been far less active by comparison. Perhaps this is an artifact of the politics, and perhaps it's a consequence of the much-remarked and never-cured legal academic obsession with the Supreme Court and the federal judiciary. The discrepancy is remarkable nonetheless, especially in light of the fact that there is certainly no shortage of scholarship about other aspects of the political branches, including topics about which there is "no 'law'" or not very much.  

Finally, there is the politics of the question, which may have influenced the scanty attention legal scholars have devoted to it in recent years. (I have not gone back to see whether there was a spike in scholarship around questions of presidential age during the Reagan presidency.) One could imagine two different accounts of how politics might affect the amount of discussion. The first would be a knowing unwillingness to call attention to the president's age, either because it makes no current difference in light of the comparative ages of Biden and Trump (if Trump runs again and succeeds in the primaries; some of his competitors, such as Governor Ron DeSantis, are considerably younger) or because one doesn't want to call attention to any potential weak points about President Biden in light of the calamitous (on the putative writer's view) consequences of Biden or his party losing the presidency. It is hard to imagine that this has been a serious factor. I doubt this not so much because it would be an illegitimate and discrediting reason for a scholar--although it would--but because the question has been raised repeatedly, first around the primaries and then more recently after something of a pause, in public and political discussion. No amount of legal scholarship discussing presidential age and decline would alter the polls by a jot. The other possibility is motivated reasoning and an effective stamping down of cognitive dissonance. Legal scholars who are willing and eager to see serious questions about judicial retirement ages, and to think of aging and decline as one of those questions, may be unable to see that the same general questions apply to the executive (and legislative) branches (and may indeed be more relevant and graver in that context), particularly if they are committed to convincing themselves that, in the words of the anonymous and surely scripted sources who spoke to the Times, President Biden is "intellectually engaged" and so on.  

All of this is complicated by the fact that aging and old age raises a variety of complex questions. For starters, different individuals may decline at different rates. Apart from general physical health, there are different sorts of cognitive functions, not all of which decline at the same rate or are equally relevant to particular jobs. The more bureaucratized and staff-driven various institutions (including the judiciary) become, the less we may care about the ability of an executive, legislator, or judge or justice to do much more than have a general point of view and cast a vote. (Although this seems to me to be mistaken, since one of the things that aging may affect is a person's ability to change his or her mind.) A number of these issues are canvassed in the article by Prof. Shen and in Posner's book. And we ought to be highly skeptical about drive-by diagnoses of specific individuals, regardless of whether they are applied to the current president or to former president Trump or to anyone else--and even if some of those assessments come from professionals in the field, who ought to know better and who are subject to the same political motivations as everyone else.

Still, none of this means that the general question of presidential (or congressional) aging and how to address it, whether as a matter of general law, of more narrow or more abstract policy questions (such as how to structure executive-branch staffing to ensure that we do not have a second Wilson regency or a captive presidency driven by a chief of staff or someone else), or even as a matter of informal "norms," is not worthy of study. (Personally, I would prefer a strong presumptive norm that it is unwise or simply wrong--politically and prudentially wrong and perhaps immoral--for any elected official to seek, or seek to retain, a particularly demanding office past the age of around 65, regardless of who else is in the race.) To the contrary. The complexity of the question seems to demand further study. I would love to see more of it, or even some of it--and soon. 

Posted by Paul Horwitz on August 4, 2022 at 01:41 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, August 02, 2022

Standing sucks up more stuff

The district court dismissed the lawsuit by three Republican House members challenging security screening (and the fines imposed for ignoring the screening) in the House building following January 6. The court held, properly, that establishing the screening mechanisms and sanctioning members for violating those mechanisms were protected from judicial review by the Speech or Debate Clause--they involve internal rules governing how the legislative body operates and conducts its business.

But the court based the dismissal on lack of standing--plaintiffs lacked standing because the challenged conduct (and the actors who engage in that conduct) cannot be questioned in any other place. But that is not how the Clause is understood. That the challenged conduct is legislative means it cannot form the basis for constitutional challenge in court; it does not mean the plaintiffs did not suffer an injury fairly traceable to some conduct.

It remains stunning how every constitutional and procedural issue gets sucked into the standing/jurisdictional framing.

Posted by Howard Wasserman on August 2, 2022 at 03:33 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)