Friday, March 20, 2020

Acting President Who?

This post is a lark, inspired by a question from my daughter, a question from a colleague, and general paranoia among liberals that President Trump will cancel or undermine the election so he can remain in office in 2021.

Whether the election can happen and how is a genuine concern given coronavirus. But there is no single "election;" there is a series of 51 simultaneous elections in 50 states and D.C., and it is unlikely Trump at his most nefarious can stop alll. Nevertheless, assume the worst-case scenario of no election in any state this fall. The possible results are infinite.

Let's have some fun.

Trump's term as President (and Pence's as VP) end at noon on January 20, 2021. This is non-negotiable. The failure to hold elections means there is "neither a President nor Vice President" due to "failure to qualify," putting us into the Presidential Succession Act.

Acting President Pelosi. The Speaker of the House is first in the statutory line, unconstitutionally so in the eyes of many and unwisely so as a policy matter in the eyes of most. But there is a problem: If there is no election in November, it will not affect only the President; presumably states would be unable to hold House elections. There thus would be no House come January 3, because no House members would have been elected.  If there is no House, there can be no Speaker. If there is no Speaker, the President pro tempore of the Senate becomes acting president. Meaning:

Acting President Patrick Leahy. The Senate is a continuing body, with roughly 2/3 of the body returning in the new Congress. Thirty-five Senate seats are up in 2020; if there are no elections, those 35 seats will not be filled. Thus, the Senate in the 117th Congress in January 2021 will consist of 65 returning Senators. The breakdown of that rump is 33 Democrats, 2 Independents who caucus with the Democrats, and 30 Republicans. The President pro tem is the senior-most member of the chamber majority--Patrick Leahy of Vermont. But:

Acting President Grassley. In 46 states, the legislature can empower the Governor to make a temporary appointment to a Senate vacancy, pending an election at a future point (timing varies by state). Three of the four (OK, OR, RI) that do not allow temporary appointments have a Senate seat up this year. Thus, of the 35 contested seats, appointments could be made for 32 of them; of those 32, 13 are in states with a Democratic governor and 19 are in states with a Republican governor. Three (Arizona, North Carolina, and Wyoming) require the appointee to be of the same party as the vacating Senator; North Carolina's Democratic governor would have to appoint a Republican to the seat vacated by Republican Thom Tillis. This means 12 Democratic appointees and 20 Republican appointees, creating a 50-47 Republican Senate. The President pro tem (as in the current Senate) would be Chuck Grassley of Iowa. But:

Acting President Mike Pompeo. Five of the states with contested seats that would need an appointment (Montana, New Hampshire, North Carolina, Texas, and West Virginia) have 2020 gubernatorial races. If the election for President, House, and Senate does not happen, neither can the election for governor. Absent a governor and lieutenant governor, succession would depend on the weeds of the organization of state government--is either house of the legislature a continuing body that would have a leader who could serve as governor? If not, no appointment is possible in those five states. This means loss of four Republican appointees (by Republican governors in New Hampshire, Texas, and West Virginia and cross-party appointment by a Democratic governor in North Carolina) and one Democratic appointee (by a Democratic governor in Montana). That leaves us with a 46-46 Senate. Absent some sort of compromise, there would be no President pro tempore of the Senate. The succession law takes us into the cabinet, beginning with the secretary of state. Unless:

Acting President Grassley. Suppose that anticipating these gaps, the Senators in the three states guaranteed a same-party replacement resign in December 2020 so the governor can make the appointment. Those would be Republicans in NC, TX, and WV. They would remain in those seats through January 3, 2021, making it a 49-46 Republican Senate that chooses Grassley as President pro tem, who becomes acting president. Or:

Acting Prsident Grassley. Alternatively, the terms for those five governors end after January 3, when the new Congress begins and the Senate vacancy becomes clear. Each thus could make an appointment then, before his term expires, adding four Republicans and one Democrat to a 50-47 Republican Senate. Unless:

President Trump. The Constitution empowers each state to appoint electors "in such manner as the legislature thereof may direct." Every state has directed electors be chosen by popular election. But facing such an emergency, states could change their laws to provide a different selection mechanism--legislative or executive appointment. A state presumably will enact a law changing its selection method only if both chambers and the governor are from the same party. Twenty-two states, for 219 electoral votes, have unified Republican control and will appoint electors to vote for Trump; 15 states + D.C., for 195 electoral votes, have unified Democratic control and will appoint electors to vote for Biden. Twelves states, for 124 electoral votes, have a Republican-controlled legislature and Democratic governor or vice versa, and one state has a divided legislature. Those states may be unable to agree on a selection method--the legislature will not give the governor of an opposing party the appointment power; the governor will veto any attempt to give the power to the legislature. So the electoral college votes for Trump over Biden, 219-195 (which Trump will call the greatest landslide in U.S. history). The Twelfth Amendment provides that the winner must obtain a majority of the whole number of electors appointed. Because those 13 states did not appoint electors (because there was no election and no alternative appointment mechanism), the whole number is 414; 219 constitutes a majority and Trump is reelected. Alternatively:

President Trump. Those 13 states, not wanting to be left out, could compromise and create a mechanism to split their electoral votes. Trump gets 281 electoral votes (219 + half of 124) while Biden gets 257 (195 + half of 124). Trump is reelected. Unless:

President Trump. The electoral votes must be opened and counted before a joint session of the House and Senate, presided over by the President of the Senate (i.e., the Vice President).  Because there was no election, however, there is no House. Is the Twelfth Amendment satisfied if only the Senate is present for the count? If yes, Trump is president. The answer to that question may depend on the composition of the Senate (see above). If no:

Acting President Grassley or Pompeo. If the votes cannot be properly counted, no one will have qualified as President or Vice President. We are back into the statute. There still is no speaker. Maybe there is President pro tem, depending on the composition of the Senate (see above). Or we are back in the cabinet. Unless:

President Trump or Biden? If coronavirus is the source of election interference, the answer may turn on how many states--and of what partisan composition--will take steps to enable meaningful, simple, and manageable vote-by-mail. The easy partisan answer is that Democratic-controlled states are more inclined to expand the franchise than Republican-controlled states; easy vote-by-mail is an expansion (enabling) of the franchise in this context. So the answer may be depend on who is willing and able to create better vote-by-mail systems.

I will close by saying this is a parlor game because I am bored right now. I do not expect Trump to interfere with the election. I do expect life to be normal enough come November to hold an election or that states will create mechanisms to handle it (one side effect of the current situation is the number of governors flexing their muscles in the absence of federal action). I believe there will be the usual transition of government power come January.

But blogs exist for these kind of parlor games. Feel free to weigh in.

Posted by Howard Wasserman on March 20, 2020 at 01:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Sunday, March 15, 2020

Assessment in a Time of Cholera (Updated)

Larry Cunningham (St. John's) discusses assessments in the current situation--he raises a number of questions, then proposes a framework for answering them. He rejects the suggestion making the Twitter rounds (which some of my colleagues have offered) that we cancel the semester and give everyone a "pass" in the course; we have "solutions—albeit imperfect ones—to the challenges we are facing. Giving up the semester should be a last resort."

I have been thinking about the grading questions this weekend because of the ongoing interim assessments I do throughout Civ Pro.

I distributed the preliminary exam (a one-week take-home of the type of short-answer questions on the final) last week; it is due Thursday. I have been working with our registrar to devise a mechanism for submitting electronically (I have 130 students in two sections, so email is not an option). My plan had been to print them out so I can grade on paper, but FIU moved us off campus effective Monday afternoon. So I will get electronic copies of all the papers and will try to grade on the computer, using the Comments feature to make comments and assign a number. I expect it to take longer than it would on paper, just because I read and can type comments and remarks more slowly than if I am working through it with a pencil and paper.

I expect to assign at least three essays in the three weeks we are guaranteed off campus (an essay is on one topic from the class, assigned to a random group of 6-7 students). The smaller numbers mean they can be emailed to the register, send to me, and graded electronically.

The question is the final exam, which ordinarily a four-hour in-class, open-materials, short-answer test. I guess I will make it take-home. I had been thinking of doing that before this hit, to get less-rushed and (hopefully) better-written answers. The question, as Larry raises, is the "integrity" of the exam. I have heard enough rumors of students cheating to fear take-home exams as a matter of course. But I am not sure there is an alternative.

Submitting grades will not be a problem (something Larry raises) will not be a problem, because we have been doing that through the school's web platform for years.

Read Larry's post; he goes deep into macro issues such as what to do about the curve, scholarship retention, rankings, etc. And looming over it all is who decides--how much is for individual faculty for individual classes, how much for faculty as a governing body, and how much for the administration.

Update: The argument against canceling the semester--in general and for law schools in particular--is content dissemination: Students need to know stuff for other classes in the remainder of the curriculum and for the Bar. And that is a good argument.  Larry's post shows that assessment remains tricky, even if content dissemination can go online. So I wonder if the answer is to keep classes through the end of the semester, but cancel final exams and projects and give everyone a "Pass."

Posted by Howard Wasserman on March 15, 2020 at 08:19 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, March 13, 2020

On two days of online teaching (sorry, remote instruction) (Updated)

Josh Blackman offers good thoughts on teaching via Zoom, which is the tool I have been using. My responses to Josh's bullet points and further thoughts after two days and four online classes (both 70-minute Civ Pro section). My verdict: Not as bad as it could have been; not my preference and I am unlikely to become a convert in support of this as the new normal.

1) Normal Appearance: Nope. I took advantage of this as the chance to wear shorts, a polo shirt, and a pullover. From the waist up, I look business casual. Not sure I am not going to wear a robe, a la Hogwarts, one day.

2) Put on a Show: Rather than sitting or standing in front of my laptop camera, I am conducting the class in a classroom, facing a Zoom camera with a screen showing the students. That is, I am conducting my regular class from my regular position in the room. I am pacing and moving around, as I do in class. The difference is I am talking to a screen of headshots rather than live people.

2 1/2) Dry-Erase Board:  The one limit on the "regular show" concerns the dry-erase board. I learned after the first class that it is useless--the camera cannot pick up what is written on it from a wide-field camera. So my usual interaction with stuff on the board (key language, flowcharts, maps of parties and claims) is out. My solution is to write out whatever I would put on the board and post it in advance of class to the course blog. It should work well enough.

3) Call on Students in Alphabetical Order: I do not cold-call in Civ Pro, relying on incentivized (participation is part of the final grade) volunteers. That cannot work in a large class because the Zoom screen only shows 25 people at a time. I am cold-calling, but I am doing it via the seating chart. I think it works as well as alphabetical, because the students know who they sit next to and so they are on notice when they might be next.

4) Switch the Camera Up: I see Josh's point about staring at one thing for too long. I think/hope that I overcome this because they do not see a close-up of my face, but what they would see if they were in the room. I am standing about 15 feet away from the unit, so I have no opportunity to play around.

5) Check the Chat Feature Often: My big lesson from day one to day two, along with stopping every 15-20 minutes for questions, either shouted out or on the chat feature. The students are using the chat feature to help one another out with answers. When a question was giving one student trouble, I cold-called the student who had answered it in the chat.

6) Virtual Office Hours: I love this idea and may try to implement it.

Other Thoughts:

• The interaction is slower and it takes longer to get through material--at least it feels that way. There is a time delay in the student response to me and likely in my response to the student. I think I am repeating rephrasing because I do not have a group of faces that I can read to determine if it is sinking in. Cold-calling contributes to that. With volunteers, the person answering is ready to go--if she is off the mark, I move on; if she is close or in the general vicinity, we can try to work through the question. With cold-calling, I feel obligated to try to work through it with someone who is at a complete loss.

• This probably relates to how I am using Zoom and that I do not have the computer right at my fingertips. I do bring up the speaker and I not necessarily see the person answering (if she is not one of the 25 on the first screen), so the back-and-forth is not visual. That makes it harder.

• That said, I my rethink cold-calling in Civ Pro when things return to normal. The students have been pretty good when called on, including some who had never or rarely raised their hands through the semester. I always have feared cold-calling a student who is lost and brings the conversation to a needle-screeching halt. But maybe my assumption has been wrong.

• I have had technological problems every class. This does not happen when the only "tech" problem I usually have is that the marker is out of ink.

• A question on economies of scale. I teach two sections of Civ Pro of ~65 each (the entire full-time class), opposite my colleague who teaches Crim to that group--I teach Section A and he teachers B in one time slot; then we flip in a second time slot. So would it work for each to combine section so we each teach once per day--I teach all ~130 Civ Pro in one time slot, my colleague teaches all in Crim in the other slot?

    I would never attempt to teach that many at once in an in-person class. But if I am cold-calling and the interaction is less engaged and more stilted, is there any drawback to adding more students to the mix? Everyone would have fewer opportunities to participate and I would have to jump between classes. But am I wrong that it would be less overwhelming and more efficient when it is remote?

Update: Diane Klein, an experienced online teacher, raises two points with which I agree:

    1) It was "ridiculous and impossible" to believe everyone--including professors (like me) who had never taught remotely and rejected the very idea--would be able to transition to teaching online in one day or one week and be able to do so effectively. She likens it an order that everyone begin teaching using American Sign Language, effective tomorrow.

    2) "[C]lose observers of higher ed in America cannot help but wonder how many of the courses that "migrate" to these online platforms during this crisis may never come back. " I said the same earlier in the week: There will be pressure to make this the new normal.

Second Update: As to # 1, consider these points that have been passed around; they seem to have started on Facebook. No one is expecting anyone to speak ASL; the goal is to muddle through so there is some level of understanding.

  1. Let’s acknowledge that the quality of education will not be as good in alternative formats as it is in the pedagogical model we’ve actually planned for. That’s OK as well—we’re just trying to survive.
  1. Do not read on best practices for distance learning. That’s not the situation we’re in. We’re in triage. Distance learning, when planned, can be really excellent. That’s not what this is. Do what you absolutely have to and ditch what you can. Thinking you can manage best practices in a day or a week will lead to feeling like you’ve failed.
  1. You will not recreate your classroom, and you cannot hold yourself to that standard. Moving a class to a distance learning model in a day’s time excludes the possibility of excellence. Give yourself a break.
  1. Prioritize: what do students really need to know for the next few weeks? This is really difficult, and, once again, it means that the quality of teaching and learning will suffer. But these are not normal circumstances.

Posted by Howard Wasserman on March 13, 2020 at 06:22 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Continuity of Government in a time of Cholera

Norm Ornstein writes in The Atlantic about the need for Congress to create some contingency plans in case the bodies are unable to meet or, worse, if substantial numbers of members become sick or die in the current pandemic. I had the privilege of doing some work with Norm on continuity issues following 9/11, with the Continuity of Government Commission that he chaired and several congressional hearings, as well as writing about this in several of my early articles. Then, it was a single catastrophic bomb (such as Flight 93) destroying Congress as a body of people; now it is the slow burn of Covid-19. But the failure to act 20 years ago--to allow for remote sessions, action by emergency rump bodies, and temporary House appointments--looms large.

In addition, a maudlin conversation with a colleague suggests that congressional continuity may not be the only concern. The President (who, despite the Surgeon General's sycophancy, is old, overweight, and not in great health) and Vice President were exposed to the virus by one individual. Nancy Pelosi is third in line. And no way would the House confirm a new VP nominated by Pence or Trump "in an election year," citing the McConnell Rule. (House Democrats dragged their feet on Nelson Rockefeller, and those were relatively normal times).

I have said  that the West Wing is the Trump presidency--I guess this is the next season of the show.

Posted by Howard Wasserman on March 13, 2020 at 02:14 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, March 11, 2020

Online teaching

FIU (and the rest of Florida's State University System) joined the parade of colleges and universities by moving to "remote instruction" (ah, euphemisms) effective tomorrow. It starts with my 9:30 a.m. Civ Pro course, for which Zoom has not been set-up. It should not be surprising that I am not happy about this development. Not only do I find online law teaching a horrible idea. Not only are we, by necessity, rushing into it without preparation or organization. But I fear that this is the camel's nose for people who want online education (legal and otherwise) to become the new normal--"see how well it worked, let's put everything online so we are ready for the next emergency and never again have to worry about rushed transitions."

This defense of online education (sorry, remote instruction takes the cake, especially the start of the fourth paragraph:

But teaching online wasn’t that different from the classroom experience I was accustomed to. It was often more fun than standing at a lectern working through a well-worn set of PowerPoint slides. The trick was making it as personal as possible and accepting that sometimes, the technology fails and you figure it out. 

Anything is more fun than standing at a lectern working through a well-work set of PowerPoint slides. But if all you were doing is standing at lectern working through well-worn slides, then you were not doing a good job of teaching in the first place. So a poor facsimile of the educational experience will not seem much worse.

Posted by Howard Wasserman on March 11, 2020 at 09:22 PM in Howard Wasserman, Teaching Law | Permalink | Comments (9)

Monday, March 09, 2020

JOTWELL: Effron on Zambrano on discovery as regulation

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Diego Zambrano, Discovery as Regulation (Mich. L. Rev., forthcoming 2020), which reframes discovery in private enforcement litigation not as a tool of litigation but as a form of public regulation.

Posted by Howard Wasserman on March 9, 2020 at 01:28 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 03, 2020

The procedure of frivolous political defamation actions

The Donald Trump Campaign today sued the Washington Post in the District of D.C. over a June 2019 column by Greg Sargent. This follows the campaign's suit in New York state court against The New York Times. Meanwhile, Devin Nunes is up to seven lawsuits against various persons, bovines, and business entities.

This rash of lawsuits has many First Amendment advocates calling for more states and the United States to enact anti-SLAPP statutes. These suits represent the modern analogue to Southern officials' defamation campaign against northern media outlets in the 1950s and '60s. But I have been slow coming to the "anti-SLAPP is necessary" position; if the protections of New York Times were sufficient to stop the barrage 60 years ago, they should be sufficient now.

The answer comes from the latest episode of the All the Presidents Lawyers podcast. First Amendment advocate Ken (Popehat) White explains that the purpose of these lawsuits is not to win, because most of the suits are garbage under NYT and the plaintiffs and their lawyers know that. Rather, the purpose is to drag people into court and impose the time, burden, distraction, and cost of having to defend themselves, with the added benefit that it may make people and the press less willing to criticize these people. In theory, only an anti-SLAPP law--with its attorney's fees provision and expedited dismissal--addresses that problem. The alternative (in federal court) is sanctions under FRCP 11 and attorney's fees against counsel under § 1927. But courts may be reluctant to impose sanctions against a congressman, president, presidential campaign, or other powerful and famous plaintiff--especially to award attorney's fees as a sanction, which is the way to address the financial cost to the plaintiff that the lawsuit is intended to impose. Perhaps Nunes' seven nonsense lawsuits would indicate a sufficient pattern that a judge might find attorney's fees necessary for deterrence of client and attorney. But not in the mine run of cases.

Some commentators have suggested that the availability of an anti-SLAPP statute affects litigation choices. Nunes sued Twitter (a California company) and McClatchy Newspapers (publisher of the Fresno Bee) in Virginia, which lacks a strong anti-SLAPP law, rather than California, which has one. Both courts have declined to dismiss for lack of personal jurisdiction, with analysis revealing confusion over the newly narrowed scope of general jurisdiction. Some commentators have suggested that the choice of forum (federal over state court) or the choice of parties depends on whether the federal court would apply the state's anti-SLAPP law.

But we should be more nuanced on the question of anti-SLAPP laws in federal court. I have argued that the special SLAPP motion should not apply in federal court (the position of the D.C. Circuit, in which the new Trump Campaign action was field), because FRCP 12 and 56 cover the issue. (And a 12(b)(6) dismissal, in which the court considers whether the statements as pleaded are opinion, can get the defendant out of the case quickly enough). By contrast, the SLAPP attorney's fees provision should apply in federal court. Under the "relatively unguided Erie analysis," not applying the fee provision would cause a plaintiff to choose federal over state court and the attorney's fee provision is bound up with substantive state policy concerns for protecting the free speech rights of its citizens. If the real concern is the cost of having to defend even a nonsense suit, an attorney's fee provision addresses that.

Finally, it is notable that the Trump Campaign, rather than Trump, brought these two suits. I am not sure how the campaign can claim injury from statements about Trump. One commentator suggested the Campaign sued to get the WaPo case in federal court. The Campaign is a Virginia corporation with its principal place of business in New York; Trump, the commentator implies, is a D.C. domiciliary and thus not diverse from the Post.

This returns us to Where In the World Is Donald Trump? Trump was a New York domiciliary prior to January 20, 2017. In October, he (and Melania) renounced his New York citizenship and filed a Declaration of Domicile in Palm Beach County, Fla., establishing Mar-a-Lago as their permanent residence. Trump thus appears to be a Florida citizen--he has a residence there and expressed his intent to remain. Although Trump resides in D.C., he has not manifested an intent to remain there (unless he manages to get Republicans to repeal the 22d Amendment). So it is wrong to say the case could not be in federal court were Trump the named plaintiff--it would be an action between a citizen of Florida (alone or with a citizen of New York/Virginia) and wherever the Post is.

On that point, this case offers a different procedural lesson, because plaintiff counsel screwed up the jurisdictional statement with respect to the Post. Paragraph 10 reads:

On information and belief, defendant WP Company LLC d/b/a The Washington Post is a District of Columbia limited liability company with its principal place of business in Washington, D.C.

An LLC is a citizen of every state in which one its members is a citizen. So identifying an LLC as a party cannot establish jurisdiction because the LLC has no independent citizenship; you have to dig into the LLC's structure to identify individuals or corporations whose citizenship does not depend on someone else. Plaintiff did not bother doing that. I assume that some digging will lead to Jeff Bezos, who is a citizen of Washington state and/or some D.C. corporation. But the complaint, on its face, does not establish federal jurisdiction. And reflects the sort of bad (or disinterested) procedural lawyering I warn my students about. Curious if the Post will raise that or move on, knowing what jurisdictional discovery would reveal about its structure.

Posted by Howard Wasserman on March 3, 2020 at 04:35 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Saturday, February 29, 2020

Judge Sutton hates Rooker and Feldman--So now what?

The Sixth Circuit reversed a Rooker-Feldman dismissal of a Fair Debt Collection Practices Act action, challenging the interest rate included in state writs of garnishment. (H/T: Volokh's Short Circuit round-up). Judge Sutton writes a concurrence begging district courts to stop applying RF except to cases in which the district court is asked to rule that a final state supreme court judgment violates the Constitution.

Sutton insists that RF cannot be used to stop federal actions seeking to second-guess all state court rulings, such as an unappealed state trial-court ruling (whether interlocutory or final-and-appealable). Some courts had justified RF not only on § 1257, but also on § 1331's grant of original (rather than appellate) jurisdiction to district courts. If that also explains RF, then limiting it to final state supreme court decisions is too narrow, at least where the federal plaintiff truly claims constitutional injury arising from a state judgment.*

[*] The majority supported its no-RF conclusion in part because a writ of garnishment is not a judgment.

Sutton argues that such a case be handled by issue and claim preclusion. So does that work? Take the paradigm case of a state trial-court judgment stripping a father of visitation rights. If the father does not appeal to the state intermediate appellate court but instead runs to federal court, Sutton would say RF does not apply. But would preclusion bar that claim, as it must if district courts are not to become reviewing courts for state trial-court judgments.

I also would be concerned that the doctrine that will rise up to replace RF is not preclusion but Younger. A number of lower courts have used that doctrine halt these sorts of challenges where the state proceeding is pending. Except Younger should be limited to challenges to the underlying state law being challenged rather than to complaints about the state court decision itself.

Posted by Howard Wasserman on February 29, 2020 at 10:38 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Friday, February 28, 2020

What if Keyser Soze were a Nazi?

We finished watching The Hunters, the Amazon Prime series about a rag-tag group of Nazi hunters in 1977 New York. They hunt and exact poetic justice (e.g., a propagandist, clearly meant to be Leni Riefenstahl, was made to eat manure) on Nazi war criminals allowed into the U.S. following World War II, as well as trying to stop them from establishing a Fourth Reich in the U.S. The show tries to be both a Tarrantino revenge fantasy a la Inglorious Bastards and a meditation on the ethics of vengeance--and misses the mark on both.

I wanted to like the show and I think I am part of its target audience. But I could not, especially following its big twist. Major spoilers ahead, so I placed the entire post after the jump.

The show mixes 1977 events with flashbacks to Auschwitz depicting fictional atrocities. One involved a guard who has a group of prisoners sing, then shoots one after another for getting a word wrong or for being off-key, until one "winner" remains. Another involved a camp doctor giving a prisoner a choice--shoot the female prisoner the man loves or shoot a series of random prisoners; he shoots 11 random prisoners. Another involved a game of human chess, in which taking a piece meant one prisoner killing another. The last drew outrage from the Auschwitz Memorial, which complained that inventing a piece of Nazi cruelty creates caricature (as if the real atrocities were not bad enough) and provides deniers with a weapon (if this chess game did not happen, maybe the whole thing is false). Showrunner David Weil, whose grandparents were survivors, defended the chess scene as "representationally truthful"--a fictionalized event that reflects similarly sadistic real events.

I had trouble staying in the story because of a number of nonsensical narrative moves. One involves the timeline. The year 1977 was 32 years after the end of WWII. The characters of Meyer Offerman (played by Al Pacino) and Ruth Heidelbaum (the grandmother of Jonah, the other main character) were shown in their early-to-mid-20s when they were sent to Auschwitz, so would have been in their mid-to-late-50s when the story takes place, a good decade or two younger than the actors portraying them (Pacino is 79, the actress playing Ruth is 71). They probably would seem older than their years given what they endured, but the image of people doing this late in life, as they are frail and about to take their memories with them, does not add up. And most of the Nazis they are hunting are cast and portrayed in the appropriate age range.

The timeline gets worse when we consider Ruth's daughter and grandson. Meyer (not the U.S. soldier Ruth married after liberation) fathered the child when he and Ruth were reunited at the displaced person's camp following liberation--so she would have been born in late 1945 or early 1946. Jonah, Ruth's grandson, is 18 when the story takes place, meaning he was born in 1959-when his mother (who died in childbirth) was 13 or 14. Oops or yuck. Perhaps this was intentional--the daughter's pregnancy was the result of an assault and her young age contributed to her death (and no one mentioned Jonah's father); that could be revealed in a (unlikely?) Season 2. On the other hand , a scene from the first  20 minutes of the series suggests this was not intentional: At Ruth's shiva, a woman tells Jonah he is not a mourner and Jonah responds with a litany of the tragedies of Ruth's life (parents shot in the ghetto, sister killed in the camp, husband killed in Korea, and only child bleeding out giving birth); had the daughter also been the victim of an assault, he might have mentioned it.

The  second of the major spoilers makes even less timeline sense. At the end of the finale, we learn that Hitler is alive  in Argentina; his hair and mustache are gray and he moves slowly with a cane, but otherwise seems healthy. In fact, he seems more youthful than Meyer and Ruth. No. Hitler was 56 years old and in terrible health by the end of the War. Put aside that we know he killed himself in the bunker. The idea that had he escaped he would have survived three decades and remained alive at 89 is absurd.

There is a lot of anachronism in the show, an attempt to link this story to current Neo-Nazis. But having a Nazi chant "Jews will not replace us" in 1977 is cheesy. So, too, is having the good guys repeat phrases like "fascist fucks," the kind of modern Twitter-speak that did not fit the times. Someone speaks of Congress as an institution built for "white skin and blue blood"--no one spoke like that in 1977.

I may be wrong about this, but it seems as if the show conflated two things in explaining why all these Nazis were in the U.S.  One is "Operation Paperclip," the real secret plan that brought high-level Nazi scientists such as Wehrner Von Braun to the U.S. The other is some number of Nazis who escaped Europe and snuck into the U.S. (think John Demjanjuk). The story ties everything to the former--all the Nazis they are chasing were brought here as part of an official secret government program; Operation Paperclip (and thus the U.S. government) is the great evil in which the government intentionally brought into the fold thousands of people now trying to create a new Nazi regime and kill Blacks and Jews in America. But the two are distinct. There were numbers of war criminals who came to the U.S. but not as part of that government program--these are the people that the Office of Special Investigations, established in 1978, targeted for prosecution and deportation.*

[*] On the show, the hero FBI agent (who is African-American and lesbian) receives a visit from Rep. Elizabeth Handelman, a Jewish congresswoman from New York wearing oversized glasses. She is a not-remotely veiled Elizabeth Holtzman, who sponsored the legislation creating the OSI. Handelman celebrates a Black FBI agent and "Jewish broad" working together to create Nazi nightmares--we get it, diversity defeats the master race.

That brings me to the main twist, revealed midway through the final episode: "Meyer" is actually the Nazi doctor "The Wolf"--a camp doctor so sadistic, we are told, he made Mengele uncomfortable. The Wolf tortured Meyer and Ruth at Auschwitz (because he wanted Ruth for himself) and he is the main Nazi they have been hunting. Via Pacino exposition, we (along with Jonah) learn that The Wolf escaped Soviet custody, killed Meyer, assumed his identity, had plastic surgery, and sneaked into the United States; he had been living and working for 30+ years as a Jewish businessman, learning Hebrew, reading Torah, and working with Jewish organizations, as well as hunting and killing Nazis. By living as a Jew, he realized the evil of his actions (and the wonders of being Jewish?);** the "hunt" was his penance. Imagine if Keyser Soze were a Nazi rather than a Turkish criminal mastermind and you have a sense of how the scene played.

[**] It helped that his sadism at Auschwitz was not ideological. He did not abuse Jews because he believed them inferior; he abused Jews because absolute power corrupts absolutely. So he could turn around and live a Jewish life because he did not regard Jews as bad.

This changes the show's underlying theme; it is no longer about vengeance v. procedural justice, but something different. Could someone who perpetrated horrors against the Jewish people turn around and live a Jewish life to thereby discover and atone for his past evils? Can someone truly atone for those acts, in the overall balance? Can such a person by these acts add goodness to the world (which is the purpose behind living a Jewish life). Is there something offensive about such a person--without conversion or publicly acknowledging his true identity--living this life, reading Torah, etc.? This is an interesting philosophical germ. But the twist was so unearned and so incoherent given the narrative that led to it that these questions were lost (especially when we piled onto the Hitler twist at the end).

Posted by Howard Wasserman on February 28, 2020 at 11:31 AM in Culture, Howard Wasserman | Permalink | Comments (0)

Thursday, February 27, 2020

Greenberg, Koufax, and Carew

1101770718_400Rod Carew occupies a strange place in the discussion of Jewish athletes. He was famously named as a Jew in Adam Sandler's Chanukkah Song I, based on stories from the late -'70s and early-'80s reporting that he converted or intended to convert. And there was this 1977 Time Magazine cover, in which he wears a chai around his neck (he wore it during games. But although he was married to a Jewish woman during his playing career and raised three Jewish daughters, Carew never converted. And he is divorced from the woman to whom he was married during his career; his current wife is Christian.

Nevertheless, based on early research I have been conducting into old box scores, it appears Carew avoided playing on Yom Kippur. He did not play on Yom Kippur 1971 (5732), Kol Nidre 1977 (5738), Kol Nidre 1980 (5741) (and he did not enter the following evening game until the 9th inning), Kol Nidre 1983 (5744), or Kol Nidre 1985 (5746).

I found several newspaper stories discussing this. In 1982, he played in a late-afternoon game before Kol Nidre, reportedly with plans to leave early if the game ran past 8 p.m. In 1977 (when Carew hit .388 and flirted with .400), newspaper stories conflicted about whether he missed a Kol Nidre road game to return home for treatment on his arm, whether it was planned for the Holy Day, or whether he planned it but used the arm as an excuse; either way, he did not play.

While not playing because of the Holy Day was discussed in wire-service stories in several seasons, this did not make national news. What could or did make national news 40 years ago was different. These seem to have been low-leverage games--never in the World Series or playoffs, never games in the heat of a close pennant race.

We may need to begin speaking of Carew in the same breath as Greenberg, Koufax, and (more recently) Shawn Green.

Posted by Howard Wasserman on February 27, 2020 at 06:29 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Criticizing basketball ref is protected speech

The Sixth Circuit on Thursday issued the opinion (by Judge Sutton) in Higgins v. Kentucky Sports Radio, holding that talking about sports, including criticizing officials, constitutes speech on a matter of public concern and thus could not be the basis for liability in the absence of the intent necessary to constitute incitement. (I wrote about an exchange during oral argument).

It is a great opinion by Sutton. It includes quotation from Gen MacArthur about protecting American freedoms such as "the freedom to boo the umpire." Saying that talking about sports represents speech on a matter of public concern is important to my ongoing project about fan expression. If talking about the game, including the refs, is protected on radio and the internet, it should be protected in the bleachers.

Posted by Howard Wasserman on February 27, 2020 at 04:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 26, 2020

YouTube not a state actor (Updated)

When SCOTUS decided Halleck last term and held that a private company managing public-access cable channels is not a state actor, it was obvious that this meant online platforms such as YouTube or Twitter were not state actors. And so the Ninth Circuit held on Wednesday in PragerU v. Google, a challenge to YouTube policies restricting or demonetizing certain videos. The court rejected the argument that YouTube performed a traditional-and-exclusive public function in managing a speech forum (the argument rejected in Halleck) or that YouTube's public declaration that it is committed to free expression changes its private nature.

This was easier than Halleck. There was something to the position that Justice Sotomayor took in her Halleck dissent that it was a delegation case rather than a public-function case--the government took on a responsibility then delegated it to a private entity. YouTube is an electronic version of the private comedy club discussed in Halleck.

This part of the opinion ended on an interesting point, telling everyone, in essence, to calm the f*&^ down:

Both sides say that the sky will fall if we do not adopt their position. PragerU prophesizes living under the tyranny of big-tech, possessing the power to censor any speech it does not like. YouTube and several amicus curiae, on the other hand, foretell the undoing of the Internet if online speech is regulated. While these arguments have interesting and important roles to play in policy discussions concerning the future of the Internet, they do not figure into our straightforward application of the First Amendment.

Posted by Howard Wasserman on February 26, 2020 at 06:00 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Tuesday, February 25, 2020

Bivens closer to death (and Thomas would kill it)

In one of the (unfortunately) least surprising decisions of the Term, SCOTUS held Tuesday in Hernandez v. Mesa that a Bivens claim was not available against a border-patrol agent who shot a Mexican national standing on the Mexico side of the border.

Justice Alito's opinion for five adopts the most restrictive view of Bivens, defining a new context to include virtually any identifiable factual distinction (here, the fact that the plaintiff was injured outside the U.S.), despite the right (Fourth and Fifth Amendment) and basic facts (excessive force by law enforcement standing on U.S. soil) being the same. Justice Thomas, joined by Justice Gorsuch, goes bigger--having cabined Bivens scope and limited its precedential value, the Court should "abandon the doctrine altogether." Justice Ginsburg wrote the dissent for Breyer, Sotomayor, and Kagan.

One notable point of departure between majority and dissent is how each reads Abbasi. The majority reads it as the latest in a 40-year line of cases rejecting Bivens claims, reaffirming the narrowness of past factual contexts and the newness (and thus inappropriateness of a Bivens suit) in other contexts.. The dissent emphasizes that Abbasi, while rejecting a Bivens action against high-level policymaking officials for national-security policy choices, "cautioned" against reading it to eliminate or limit core Bivens claims against rank-and-file law enforcement officers for unreasonable seizures.

If any case not on all factual fours with Bivens repesents a new context, the majority gets where Justice Thomas wants to go, without the political cost of overrulings. The "special factors" analysis will come around to congressional failure to authorize such a cause of action by pointing to § 1983 and the fact that it is limited to state (not federal) officials and plaintiffs within in the United States; that congressional failure will require judicial hesitation. The dissent's response--Congress enacted § 1983 in the middle of Reconstruction with a specific concern in mind and was not thinking about federal officials shooting people across borders--does not sway the rest of the Court. This factor always comes to conflicting views of what to do with congressional silence: The majority reads inaction as congressional intent not to reach the situation, while the dissent reads it as leaving the situation to Bivens (lest it create a situation in which it is "damages or nothing").

This decision is unsurprising, as conservatives have long hated Bivens. On the other hand, conservatives increasingly resort to the courts and constitutional litigation. What happens when conservative groups want to challenge ATF agents raiding their compounds?

Posted by Howard Wasserman on February 25, 2020 at 01:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, February 24, 2020

JOTWELL: Kalajdzic on Fitzpatrick on the conservative argument for class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Brian Fitzpatrick, The Conservative Case for Class Actions (2019). Brian gave a Fed Soc on the book at FIU last month.

Posted by Howard Wasserman on February 24, 2020 at 10:25 AM in Article Spotlight, Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, February 22, 2020

Scope of the felon-enfranchisement injunction

The Eleventh Circuit last week affirmed a district court judgment declaring invalid a Florida law that required released felons to pay restitution and other "legal financial obligations" before their voting rights can be reinstated.

For my purposes, the injunction is limited to the 17 named plaintiffs in several consolidated cases. The Eleventh Circuit describes the district court preliminary injunction as "requiring the State to allow the named plaintiffs to register and vote if they are able to show that they are genuinely unable to pay their LFOs and would otherwise be eligible to vote." And it ends the opinion as affirming "the district court’s preliminary injunction enjoining the defendants . . . from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations." No matter how some sources have read the order, the court of appeals is clear that this is a non-universal/particularized injunction, entitling the seventeen plaintiffs, but no one else, to vote.

The question is what happens next. The state remains free to decline to enforce the payment law against anyone while it continues to fight this litigation, even if not enjoined from doing so. That avoids either new litigation and a new injunction involving new plaintiffs or the court certifying a 23(b)(2) class of all felons unable to pay LFOs and extending the existing injunction to the class.

Posted by Howard Wasserman on February 22, 2020 at 02:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, February 19, 2020

More on Dane on law clerks

Inspired by Paul's post, I read Perry Dane's piece on law clerks and their role in drafting opinions. And it seems to me that Dane's discussion meshes with Suzanna Sherry's argument for eliminating signed opinions (all majority opinions must be per curiam, no concurrences or dissents).

Both worry about the judge's-name-as-icon; the no-signed-opinions solution addresses their common worries. For Dane, the attachment between opinion and name is "why the contributions of law clerks to that work product raises such deep and uncomfortable questions."  For Sherry, the attachment between opinion and name creates the judge-as-celebrity culture that, she argues, has broken the Court. Eliminating signed opinions (which are neither required, inevitable, nor essential outside the U.S.) reduces the opportunities for judges to trade on their celebrity and play to their base. And it renders clerk ghost-writing less problematic because readers no longer read and interpret the opinion--the law--as the work of a named judge with an iconic identity.

Posted by Howard Wasserman on February 19, 2020 at 09:31 AM in Howard Wasserman, Judicial Process | Permalink | Comments (3)

Tuesday, February 18, 2020

Elam Ending and the NBA

The Elam Ending is an alternative format for the end of basketball games, designed to eliminate late-game fouling by the trailing team. The basic idea is that the game clock stops in the final 3 minutes, then the teams play to a target score (+ some number from the leading team's score at the 3:00 mark).

Sunday's NBA All-Star Game used a modified version--playing the Fourth Quarter without a game clock with a target score of +24 from the leading team (the 24 in honor of Kobe Bryant). The format was a huge hit, drawing raves from players, NBA officials, and the media. ESPN's Zach Lowe interviews Elam (now a professor of educational leadership at Ball State) about the game, the system, and what happens next.

I have never minded intentional fouling and I do not believe it makes the game unwatchable. But Elam's argument focuses not on aesthetics but on strategic success-fouling generally does not work, both because leading teams make enough free throws and the lapsing game clock forces trailing teams to rush shots. This format, in theory, allows both teams to run their regular offenses without the game-clock pressure. Elam said his format enables more comebacks (as seen in its use in The Basketball Tournament in 2017, '18, and '19).

Posted by Howard Wasserman on February 18, 2020 at 07:25 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Wednesday, February 12, 2020

Caminker & Chemerinsky on Pete Rose, MLB, and the Hall of Fame

Evan Caminker and Erwin Chemerinsky argue in The Times that Major League Baseball should reinstate Pete Rose, making him eligible for election and induction into the Hall of Fame.

Steve Lubet (Faculty Lounge) hits the glaring defect in their argument--they minimize the severity of Rose's misdeeds and their effects on the game by emphasizing that Rose never bet against the Reds, without acknowledging the downstream effects of his gambling choices. I do not have much to add to his argument.

Caminker and Chemerinsky also minimize Rose's misdeeds by comparing them with revelations about sign-stealing and PED use, maximizing the evils of those practice. But reasonable minds differ about sign-stealing and PED use. Many (including many who played the game) believe sign-stealing to be a well-worn part of the game and the ongoing search for a competitive advance and PED use to be the same as other scientific advances that improve performance. No one (I do not think) argues that gambling on baseball is OK.

The timing is interesting because President Trump last week called for TrumpRose* to be in the Hall, for many of the reasons Caminker & Chemerinsky present. Although they do not mention Trump, they agree on something.

[*] Freudian slip. Trump probably does believe he should be in the Hall of Fame.

It might be tempting to view this question through the controversy over Trump's many actual and threatened pardons, which C&C (especially Chemerinsky) have criticized. But that is not the right way to look at this. Rose was punished with a lifetime ban that included the opportunity to petition for reinstatement, with a presumption that any petition would be considered in good faith, if not with a presumption in favor reinstatement (and likely the opposite). Rose accepted the same punishment imposed on Shoeless Joe Jackson, Buck Weaver, and the rest of the Black Sox, several of whom petitioned (unsuccessfully) over the years. Caminker and Chemerinksy thus do not call for a pardon, but for the exercise of the discretion built into the sanction. They make arguments similar to those of  several Hall of Famers (including, I believe, Ted Williams) in the late-'80s/early '90s in favor of Jackson's reinstatement, following release of Field of Dreams.

Unsurprisingly, C&C do get the procedure right. They do not argue for Rose to be placed in the Hall. They urge MLB Commissioner Rob Manfred to reinstate Rose on the grounds that Rose has served the time for his crime against the game. Reinstatement would allow Hall voters to elect him, without requiring it; voters could decline to elect him as they have with Barry Bonds, Roger Clemens, and Mark McGwire, believing that the shadow of misconduct precludes election. Ironically, the rule that formally prevents Rose's (but not the others') election was codified in 1990, in response to the tide of pro-Jackson sentiment.  On the other hand, as a commenter on Steve's post points out, the Hall could repeal its rule and elect Rose even if he remains banned by MLB. 

Posted by Howard Wasserman on February 12, 2020 at 05:13 PM in Howard Wasserman, Sports | Permalink | Comments (2)

Monday, February 10, 2020

A Model of Constitutional Litigation

My new piece on universal injunctions has been published in Lewis & Clark Law Review. Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A Model of Constitutional Litigation joins three threads that I have been writing and blogging about here--the requirement of particularized injunctions, the distinction between precedent and judgment, and a model of departmentalism in which all branches are bound by judgments but only courts are bound by judicial precedent. The result is a model of how constitutional litigation functions in fact and should function in our understanding.

Abstract after the jump.

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” injunctions;

4) a judgment controls the parties to the case, while the court’s opinion creates precedent to resolve future cases; and

5) rather than judicial supremacy, federal courts operate on a model of “judicial departmentalism,” in which executive and legislative officials must abide by judgments in particular cases, but exercise independent interpretive authority as to constitutional meaning, even where those interpretations conflict with judicial understanding.

The synthesis of these five principles produces a constitutional system defined by the following features:

1) the judgment in one case declaring a law invalid prohibits enforcement of the law as to the parties to the case;

2) the challenged law remains on the books; and

3) the challenged law may be enforced against non-parties to the original case, but systemic and institutional incentives weigh against such enforcement efforts and push towards compliance with judicial understandings.

Posted by Howard Wasserman on February 10, 2020 at 07:15 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, February 08, 2020

JOTWELL: Steinman on Engstrom on Lone Pine Orders

The latest Courts Law essay comes from Adam Steinman (Alabama), reviewing Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2 (2019), on the history and development of Lone Pine orders in mass-tort class actions.

Posted by Howard Wasserman on February 8, 2020 at 03:31 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, February 03, 2020

Uh, oh

Following the 2016 election, I identified breaking championship droughts as a random sports predictor that foretold Republican electoral success. If so, Democrats (including me) should be nervous this morning, as the Kansas City (Missouri) Chiefs won their first Super Bowl in 50 years--which I think qualifies as a long, if not quite as legendary, sports drought. This follows a number of other droughts that ended in 2019--St. Louis Blues win first Stanley Cup in 52-year history; Washington Mystics win first WNBA title; Washington Nationals win first World Series for D.C. since 1924 and first World Series in the 50-year history of the Expos/Nationals franchise.

Of course, we do have one counter-example in which end-of-drought coincided with Democratic success--the 2018 mid-terms followed the Washington Capitols' first Stanley Cup in a then-44-year history.

Posted by Howard Wasserman on February 3, 2020 at 03:42 PM in Howard Wasserman, Sports | Permalink | Comments (2)

Friday, January 31, 2020

Appellate argument (and law school), encapsulated (Updated)

From the Sixth Circuit argument in Higgins v. Kentucky Sports Radio, a lawsuit brought by a college referee who was attacked online by Kentucky basketball fans (particularly through harassing phone calls and negative reviews of his roofing business) following some controversial calls in a game UK lost. The defendants are the radio station and announcer who reported on and promoted the efforts, in a way the plaintiff alleges constitutes incitement and conspiracy to defame. (H/T: Regular reader and commenter Asher Steinberg).

In an argument that otherwise went well for the radio station, I loved this exchange (around 19:00) between the station's attorney and one judge (not sure who turns out to have been Judge Sutton), when the judge asked whether a more direct instance of incitement would have survived 12(b)(6):

Attorney: Your Honor, I'm hesitant to comment on hypotheticals. The point is that is not this case.

Judge Sutton: OK, wait. I hate to break it to you, particularly with some law students here. That is all we do. *** You want to win for your client today. And we do not want to issue a ruling that we will have to denounce tomorrow for the next case.

Posted by Howard Wasserman on January 31, 2020 at 08:33 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, January 30, 2020

Academic Feeder Judges

I have posted to SSRN the pre-submission draft of Academic Feeder Judges--a study of the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and who “produce” law professors from the ranks of their former clerks. Coming soon to a law-review mailbox near you.

Update: Karen Sloan at National Law Journal gave the piece a nice little write-up, as did Above the Law.

The abstract is after the jump. Spoiler alert above the jump: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), Dorothy Nelson (Ninth Circuit), Richard Posner (Seventh Circuit, resigned in 2018), and Harry Edwards (D.C. Circuit).

PermaPrawfs' former judges are well-represented in the top-101 (arbitrarily set at 8+ academic former clerks)--John Walker of the Second Circuit (Ethan), Patrick Higginbotham of the Fifth Circuit (Rick H.), Joseph Sneed of the Ninth Circuit, died in 2008 (Lyrissa), Alex Kozinski of the Ninth Circuit (Dan), Raymond Randolph of the D.C. Circuit (Carissa), Calabresi (Gerard), and Jane Roth of the Third Circuit (me, as well as current guest Christine Chabot). Marsha Berzon of the Ninth Circuit (Steve), Richard Arnold of the Eighth CIrcuit (Rick G.), and Ed Carnes of the Eleventh Circuit (Paul) just missed the 8-prof line.

I wrote previously about the origins of the paper: Seven or eight years ago while helping with a reunion/portrait unveiling for Judge Roth, I noticed what seemed a lot of .edu addresses on the list of former clerks. I wondered how many of her former clerks went into teaching (13, it turned out, plus several in other disciplines), whether that was a lot or a little, and who among lower-court judges "produced" academics from among their former clerks. I finally got around to doing the study and writing the paper.

Comments welcome.

This paper identifies “academic feeder judges”—the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and the judges who “produce” law professors from the ranks of their former clerks. The study is based on a summer 2019 review of publicly available biographies and c.v.’s of full-time faculty at ABA-accredited law schools, identifying more than 3000 “academic former clerks” and the judges for whom each clerked. From this, the paper identifies 1) 101 lower federal judges with the most academic former clerks, 2) 52 federal trial judges, 3) 53 federal judges appointed since 1995, 4) top state-court judges, and 5) SCOTUS justices, current and past. For each judge within each grouping, the study examines appointing presidents, biographical information such as former career, numbers of academic former clerks, rankings of the schools at which former clerks teach, and a projection of how many academics newer judges might produce over a 35-year judicial career. The study closes with some comments and conclusions from the data. (Spoiler alert: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed closely by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), and Dorothy Nelson (Ninth Circuit)).

Posted by Howard Wasserman on January 30, 2020 at 03:17 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Monday, January 27, 2020

Thomas and Gorsuch on universal injunctions (Updated)

SCOTUS stayed pending appeal the injunction prohibiting enforcement of the Trump Administration's public-charge regulation, another example of the government seeking and the Court granting extraordinary relief to allow the administration to continue enforcing policies pending litigation where the lower court found the policies defective. Justice Gorsuch, joined by Justice Thomas, concurred in the stay, to take aim at universal injunctions (with citation to the work of Sam Bray and Michael Morley), properly defining them as injunctions protecting beyond parties rather than in geographic terms.

Unsurprisingly, I agree with Gorsuch's basic point against universal injunctions. I am not sure what it has to do with this case. Gorsuch would have granted this stay regardless of the injunction's scope. And I am sure he is waiting for the government to challenge a particularized Illinois injunction that (he acknowledges) remains in effect so he can stay that, as well.

Update: I wanted to come back to the question of whether the stay was proper. Given the make-up of the Court, it seems clear that, when the case comes to the Court on the merits, the majority will declare the policy valid. That aside, what about the stay? Where the district court granted an injunction, the question should be what will create more permanent and long-lasting chaos--staying the injunction (thus allowing enforcement of the underlying policy) or allowing the injunction to remain in effect (thus stopping enforcement of the underlying policy, allowing continuation of the primary conduct the regulation is designed to stop.

Today's order means the U.S. can deny status to certain people for the moment, although should the reg be declared invalid at the end of the day, those people could then reapply and be considered without the now-unlawful policy. Had the Court not stayed the injunction, people otherwise subject to the order could enter and/or gain status; if the order ultimately is declared valid, the government would have people in the U.S. or with status who otherwise should not have been permitted. It does not seem that the government could retroactively apply the regulation to remove presence or status already granted under the old rules. So as abhorrent as I find the policy, it seems a stay was appropriate. Where am I going wrong?

Posted by Howard Wasserman on January 27, 2020 at 01:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Saturday, January 25, 2020

Judge Easterbrook does judicial departmentalism

People are talking about Judge Easterbrook's opinion for the Seventh Circuit in Baez-Sanchez v. Barr, taking the BIA to task for not following the court's instructions on remand. Easterbrook is outraged about executive conduct that "beggars belief.' The court has "never before encountered defiance of a remand order,and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails."

Easterbrook then says the following:

A judicial decision does not require the Executive Branch to abandon its views about what the law provides, for the doctrine of offensive non-mutual issue preclusion does not apply to the United States. United States v. Mendoza, 464 U.S. 154 (1984). The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistakenthough it has been followed elsewhere, see Meridor v. Attorney General, 891 F.3d 1302, 1307 & n.8 (11th Cir. 2018). But they are not free to disregard our mandate in the very case making the decision. That much, at least, is well established, not only in Plaut but also in many other cases. See, e.g., United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

Although he does not use the term, this is a nice and succinct encapsulation of judicial departmentalism: The executive can disagree with and disregard a judicial decision it regards as mistaken in some other case. But the executive cannot disregard the court's mandate in the current case when that mandate has become final and unreviewable.

Posted by Howard Wasserman on January 25, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Immigration, Judicial Process | Permalink | Comments (6)

Friday, January 24, 2020

Musical grammar scolds

I recently found myself having to explain the difference between "was" and "were" as the verb in a conditional sentence ("If X were true" rather than "If X was true"). I offered the example of the song What if God Was One of Us, which, of course, should have been "What if God were one of us."

This got me thinking of other songs with glaring grammatical errors. I thought of Live and Let Die's "if this ever-changing world in which we live in."

Other thoughts? A non-law diversion for a Friday.

Posted by Howard Wasserman on January 24, 2020 at 08:53 AM in Culture, Howard Wasserman | Permalink | Comments (10)

Tuesday, January 21, 2020

Defining a show trial

Some people are decrying-in-advance the upcoming Senate impeachment as a "show trial." At some level the term is apt. The factfinder seems to have its mind made up; the procedures in place do not seem calculated to discover the truth; and the proceeding will bear the cover of a judicial proceeding but serve as little more than a cover for the political decision of those in power.

But  think of "show trials" in the context of the Soviet Union or other totalitarian regimes, where the government uses the sheen of judicial process to purge and execute an enemy of the state, where a conviction is the pre-ordained result. This is going the opposite way--an acquittal is the pre-ordained result. The comparator is not Soviet or authoritarian show trials of ordained enemies. The comparator is state criminal proceedings against Klan members and other Southern whites charged with crimes against African-Americans (e.g., Byron De La Beckwith).

Does the term "show trial" still apply?

Posted by Howard Wasserman on January 21, 2020 at 03:10 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

JOTWELL: Michalski on Copus on judicial attention

The new Courts Law essay comes from Roger Michalski (Oklahoma), reviewing Ryan Copus, Statistical Precedent: Allocating Judicial Attention (Vand. L. Rev., forthcoming), which considers ways to determine the types of cases that warrant judicial attention.

Posted by Howard Wasserman on January 21, 2020 at 08:15 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, January 17, 2020

Two from the Fifth Circuit

From John Ross' invaluable weekly round-up of federal court of appeals decisions at Volokh Conspiracy come two from the Fifth Circuit.

• In U.S. v. Varner, a trans female prisoner moved the court to amend the judgment of confinement to reflect her new name, while asking the court to use her new name and preferred pronoun. My interest in the case is that the majority held that the motion to amend should have been denied for lack of jurisdiction, because no statutory or rule basis for amending a judgment applied. The dissent properly accuses the majority of issuing a "drive-by jurisdictional ruling;" what the majority labels a lack of jurisdiction is better understood as a failure of the petition on the merits, because Federal Rule of Criminal Procedure 36 allows for correction of clerical errors; the problem is that a clerical error is not at issue here. That is, the failure of the petition to satisfy the rule defeats the petition, but not for lack of jurisdiction.

I will not say much about the dispute between majority and dissent about the pronoun request, except that the dissent has the better reading of the request and I cannot imagine a court being more dismissive of the preferred-pronoun issue.

• In Horvath v. City of Leander, the court affirmed a grant of summary judgment against a firefighter on a claim that the city violated the First Amendment by insisting that he take a different job or wear a respirator because he claimed a religious objection to the TDAP vaccine. The majority found that the city offered a reasonable accommodation, which the plaintiff refused.

Judge Ho concurred in the judgment in part and dissented in part. Ho would affirm the judgment on the clearly established prong of qualified immunity, but then proceeds to rail against qualified immunity as unjustified by common law, the Constitution, or § 1983. He argues that the concerns justifying qualified immunity can be addressed if courts do a better job with the merits prong; the current problem "stems from misuse of the first prong of the doctrine. Simply put, courts find constitutional violations where they do not exist." If courts did a better job with the constitutional analysis, police would not be chilled or over-deterred.

But then he gives the game away about where this would take us. After all, "the Fourth Amendment does not prohibit reasonable efforts to protect law-abiding citizens from violent criminals--it forbids only unreasonable searches and seizures." Unspoken is the view that police can do whatever they believe necessary in the moment against someone they believe poses a threat to law-abiding citizens--it would be open season on anyone perceived as a threat. Unless, of course, those police officers speak rudely to a white woman who wants to pray while the officers are searching her house.

Look, I agree with Judge Ho that we should get rid of qualified immunity and let the Constitution do the work. But his opinion shows that the cross-ideological opposition to qualified immunity will give way to ideological splits on substantive rights--lots of Free Exercise violations when officers are mean t0 Christians, few Fourth Amendment violations when officers shoot African-Americans.

Posted by Howard Wasserman on January 17, 2020 at 07:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, January 16, 2020

Universal consent decrees

Two U Conn students who were prosecuted and sanctioned by the university for violating the school policy against "disruptive behavior" for uttering a racial slur have filed suit in the District of Connecticut, claiming the school sanctions violate the First Amendment. (H/T: Eugene Volokh). The case should be easy as a First Amendment matter--the students seem to have shouted the slur into the ether, not directed at anyone and not accompanied by any threatening conduct.

But it is procedurally interesting, potentially complicated, and seemingly wrong. After the jump.

In 1990, U. Conn. entered a consent decree in a lawsuit brought by a then-student named Nina Wu, who was sanctioned for saying "no homos" on a board on her dorm-room door. The consent decree permanently enjoined U. Conn. from enforcing a provision of its student code "against this plaintiff or any other student." This is a universal injunction, protecting the universe of U. Conn. students (or it is at least non-particularized). I would argue the court cannot and should not issue such an injunction. The completeness of Nina Wu's remedy is unaffected what might happen to do students 30 years later--that is, students who were not born at the time of the injunction. On the other hand, U. Conn. could have entered the consent decree with Wu, then voluntarily altered its conduct and declined to enforce the provision against any other student (which is what usually happens). But this case offers a third option--U. Conn. voluntarily bound itself to non-enforcement as to non-parties as a matter of an enforceable judicial order. Can a defendant do this? Can the court do it if the defendant agrees? Can a court enforce it as it would a properly scoped injunction?

The plaintiffs frame their case, at least in part, as an attempt to enforce the consent decree. They allege in ¶ 8 that they have standing to enforce the decree because of its stated scope. But then the procedural posture makes no sense--why (and how) can a plaintiff file a new lawsuit to enforce a judgment in a different action, even if in the same district and assigned (under a local related-case rule) to the same judge. It seems to me that the proper course have been to move to intervene or join as plaintiff in Wu and to move the court with jurisdiction over the injunction to enforce or modify. Filing a new lawsuit before a new judge is proper if asking for a new injunction protecting these plaintiffs as to these defendants.

Posted by Howard Wasserman on January 16, 2020 at 04:47 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, January 15, 2020

Upcoming guests

I am thrilled that we are going to have some guest-prawfs joining us in the coming weeks.

Beginning later this month and into February, we will be joined by Tuan Samahon (Villanova) and Christine Chabot (Loyola and a fellow former Jane Roth clerk). Welcome to both and I hope you enjoy their contributions.

In late February and March, we will have an on-line symposium on Ben Barton's new book, Fixing Law Schools: From Collapse to the Trump Bump and Beyond (NYU). More details to come.

Posted by Howard Wasserman on January 15, 2020 at 08:32 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, January 13, 2020

Why not just have oral argument?

Bloomberg has a story (behind paywall) Judge Alan Albright of the Western District of Texas and some of his standing orders and practices. Among them: The use of "audio briefs," recordings of briefs longer than 10 pages, which the judge listens to while driving and biking.

I am in favor of greater orality in litigation. But part of the benefit of more orality is more bench presence and more contact between the court and the advocates. This seems to provide the worst of both worlds--the looser argumentation of oral compared with written advocacy, but without the presence and contact.

Posted by Howard Wasserman on January 13, 2020 at 11:02 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, January 12, 2020

What we mean by one-sided

Reviews for the documentary "No Safe Spaces"--an exploration featuring Adam Corolla and Dennis Prager of anti-conservative speech restrictions on college campuses--have divided along expected partisan lines. Conservative publications praise it for exposing anti-conservative-speech biases on campus, liberal publications decry its one-sidedness in criticizing campus liberals as censorious, without considering the problems that racist, sexist, etc., speech causes on campus.

This column is the first I have seen calling the film out for a different one-sidedness: Not engaging with equal-and-opposite efforts by conservative groups and leaders--including the President--against liberal speech. The author labels this "free-speech tourism," waving the banner of free speech when their political compatriots are attacked, while seeking to impose similar restrictions on speakers they find political objectionable. Thus, the film celebrates supposed free-speech champions who have called for de-platforming of liberal speakers and have sued critics on specious defamation claims. In an interview described in the piece, Corolla pleaded ignorance to censorship efforts from the other side, which should show a lack of seriousness or understanding of the project.

The combination of this column and left-leaning criticism of the film reveals where we are: Much of the right is not serious about its First Amendment advocacy, while much of the left does not want to talk about, or use, the First Amendment.

The piece closes on a nice point about free speech:

The doc's inability to grapple with growing animosity toward free speech on both sides of the political aisle shows just how hollow these concerns among conservative "free-speech tourists" are. * If you don't call out your own side or loudly defend the First Amendment rights of your political enemies, you're not a free-speech warrior. You're a free-speech tourist.

Posted by Howard Wasserman on January 12, 2020 at 04:09 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Friday, January 10, 2020

Baude and Chilton offer advice to scholars (junior and otherwise)

Great posts by Will Baude and Adam Chilton advising junior scholar--and, really, all scholars. A good way of thinking and talking about the scholarly game and what we do.

Posted by Howard Wasserman on January 10, 2020 at 12:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, January 09, 2020

JOTWELL: Malveaux on Burbank & Farhang on rights retrenchment

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Stephen B. Burbank & Sean Farhang, Rights and Retrenchment in the Trump Era, 87 Ford. L. Rev. 37 (2019), a follow-up to their 2017 book on the counter-revolution against federal litigation.

Posted by Howard Wasserman on January 9, 2020 at 11:15 AM in Article Spotlight, Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 08, 2020

C.J. Roberts and the Year-End Report

At SEALS next summer, there will be a discussion group to mark fifteen years of the Roberts Court and the Court's renewed engagement in civ pro (something I wrote about at the six-year mark). For a topic, I was considering the way that Roberts has used his Year-End Reports to talk about civil procedure and the FRCP, in ways both good and bad, proper and less so.

Adam Feldman on Empirical SCOTUS looks at the particular words Roberts uses in these Reports to talk about the power and role of judges and the judiciary. Although about the judiciary broadly and not only civ pro, it offers a good starting point.

Posted by Howard Wasserman on January 8, 2020 at 11:50 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 06, 2020

A teaching experiment

Our new scheduling guru is trying something new this semester--teaching on consecutive days rather than alternate days. So rather than Civ Pro meeting Monday/Wednesday/Friday, it will meet Wednesday/Thursday/Friday.

I am excited to see how this works. It should be interesting to have students working and focused on just my material (or my material and material in one other class) in a few-day block. And it fits how I structure the class and syllabus by topic rather class session--we work through something in however much time it takes, even if that time cuts across multiple classes. I am anxious to see whether that works better when students return to a case or problem in 24, rather than 48, hours.

Posted by Howard Wasserman on January 6, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (7)

AJC's @JewishandProud Day (Updated)

AJC has designated today--Monday, January 6--as #JewishandProud Day, with a campaign urging people to "wear your Jewishness publicly" and to post pictures with your Jewishness and the slogan below on social media.

Action Alert_#JewishProud_v2

One somewhat related, if delayed point: The story from last week about the dismissal of the entire class of cadets at West Virginia's corrections academy after they were photographed giving a Nazi salute beneath a sign reading "Hail, Byrd," in reference to instructor Karrie Byrd. According to reports, Byrd got into trouble (and is no longer employed by the state) because her statement to investigators that she was "not familiar with the 'historical or racial implications of the gesture' and that it was 'simply a greeting,'" was contradicted by testimony that Byrd encouraged the gesture and told a secretary that she is "a hard-ass like Hitler." Which suggests that had her defense not been contradicted by evidence that reveled in the salute, she might have kept her job--had it been true that she did not know the history or racism at issue, she would not have been fired.

Which brings me to what I have been thinking: Can we please agree that anyone who is not familiar with the historical and racial implications of the Nazi salute and "Heil Hitler" is too fucking stupid to hold any position of public trust?

Update I: A colleague stumbled across this 2004 RBG speech at the U.S. Holocaust Memorial, talking about how the Shoah played in Hungary and about her Jewish experience. Appropriate for the day.

Update II: I have closed comments, having spent the better part of today deleting updwards of 30 anonymous comments saying that the author hated me and thought I was vermin because I am anti-gun. Also comparing Justice Steven's Heller dissent to Holocaust denial. Not sure how this post could become about guns (or what I have ever written indicating I am anti-gun), but it got out of hand in a hurry.

Posted by Howard Wasserman on January 6, 2020 at 09:31 AM in Howard Wasserman | Permalink | Comments (2)

Sunday, January 05, 2020

Limiting rules in football

On Saturday, the Tennessee Titans ran almost two minutes off the clock without a snap in their Wildcard Round win over the New England Patriots, exploiting a glitch in the rules that calls for a limiting rule.

Lining to punt on 4th down with the game clock running, the Titans took a delay-of-game penalty; the clock restarted when the ball was placed after the 5-yard walk-off. The Titans then false-started; the clock restarted when the ball was placed. The Patriots then jumped offside; the clock restarted when the ball was replaced. Finally, the Titans punted.

When a team commits a foul and the penalty yardage is walked off, the clock proceeds as it would have had there been no infraction--if the clock would have stopped, it restarts on the snap; if the clock would have run, it restarts once the ball is replaced. Inside of 5 minutes remaining in the second half, the clock restarts on the snap. As I explain here and here, the second rule is designed to inject excitement by preventing leading teams from wasting time and forcing them to run more plays, from the point in the game in which the incentive to waste time begins.

This game reveals three things:

First, although I did not think of it this way when writing the book (but should have), the second rule qualifies as a limiting rule addressing a cost-benefit imbalance under the default rule, akin to the Infield Fly Rule. The offense is acting contrary to expectation (taking a penalty); the time benefits it gains are much overwhelmingly greater than the yardage costs (and vice versa for the trailing defensive team);  the defense cannot do anything to stop the offense from intentionally committing pre-snap fouls; and a leading team has a perverse incentive to try this.

Second, the rules attempt to address the perverse incentives with two different limiting rules. Two successive delay penalties constitute unsportsmanlike conduct, a 15-yard infraction. This is why the second foul was not another delay, but false start. And a team cannot commit multiple fouls on the same down to "manipulate the game clock;" the penalty is 15 yards, time back on the clock, and the clock restarting on the snap. This rule is why, after the second penalty, the Titans were ready to punt. The third play came because the Patriots committed an infraction that gave the Titans extra time; the Titans cannot be blamed for the opponent's violation. But these two rules should be sufficient, unless officials are reluctant to find clock manipulation off one or even two false starts.

Third, the incentive for a leading team to waste time begins earlier than the 5-minute mark. It is not clear where it begins--that probably depends on score and location on the field. The only solution may be to change the default rule and always have the clock start on the snap following a penalty. That will necessitate other limiting rules involving clock run-offs to eliminate the perverse incentive for trailing teams to commit their own intentional fouls.

Posted by Howard Wasserman on January 5, 2020 at 05:47 PM in Howard Wasserman, Sports | Permalink | Comments (3)

Thursday, January 02, 2020

Political grass is always greener . . .

Thursday morning, I read this Atlantic piece from Lee Drutman (New America Foundation) arguing that a pure ideological two-party system had broken the Constitution. It produced the situation that Washington, Hamilton, Madison, and others feared of the "alternate domination of one faction over another." Drutman urges Congress or states to institutionalize multi-party democracy and proportional representation; he argues that Madison's Federalist No. 10, "with its praise of fluid and flexible coalitions," envisioned some form of multi-party system.

Thursday evening, I read this Tablet piece from Neil Rogachevsky (Israel Studies and Political Thought at (Yeshiva), arguing that multi-party democracy and proportional representation is what has placed Israel in its current political predicament, with no party able to form a government. He hopes that Benjamin Netanyahu might be able to push first-past-the-post as a parting gift to the country.

There are no right answers.

Posted by Howard Wasserman on January 2, 2020 at 09:06 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, January 01, 2020

How does a descendent of Huguenots, son of a fur trader . . .

The 2019 Year-End Report on the Federal Judiciary begins, as always, with an historical ditty. This year, it is the Doctors Riot in New York in 1788 as the reason that, as the lyrics in Hamilton tell us, "In the end, they wrote eighty-five essays, in the span of six months/John Jay got sick after writing five/James Madison wrote twenty-nine/Hamilton wrote the other fifty-one." Kudos to Roberts for the line "perhaps if Jay had been more productive, America might have rewarded him with a Broadway musical."

The theme this year is civic education and the essential role of individual judges, the courts, and the judiciary in providing that civic education. Roberts writes:

It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to under-stand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased that the judges and staff of our federal courts are taking up the challenge.

Three other things are sadly ironic. One is that the Court is poised to resolve cases involving congressional subpoenas that should be easy in a democracy--Congress can investigate a President, including through subpoenas of unconnected third parties, however it sees fit--but that seem to be genuine toss-ups given current political divides. Two is that the current President has done more to use social media to spread rumor and false information on a grand scale and the Court, when pressed, has fallen in line and may do so again.

Three, and away from the politics of the day,  Roberts does not mention the role that video or audio-recording-with-speedier-release of arguments could and should play in this civic education. He mentions courts posting opinions* online, giving the "public instant access to the reasoning behind the judgments that affect their lives." Wouldn't "instant access" to the public arguments leading to the "judgments that affect their lives" provide a similar public civic-education benefit?

[*] He does offer a nice description of the distinction between an opinion and a judgment--"judges render their judgments through written opinions that explain their reasoning." That distinction is key to judicial departmentalism and the non-judicial branches engaging in meaningful constitutional interpretation. More on that later.

Posted by Howard Wasserman on January 1, 2020 at 09:26 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, December 30, 2019

Hate crimes charges in synagogue stabbing (Updated)

The United States has filed federal hate-crimes charges against Grafton Thomas, accused of stabbing five people at a shul during a Chanukah celebration. The charges were brought under § 247, which prohibits obstruction of a person's free exercise of religion through the use of force. According to the complaint allegations by FBI Special Agent Julie Brown, Thomas' handwritten journals and internet searches focused on some anti-Semitic content.

I have never been a fan of hate-crimes laws. I believe SCOTUS gave too-short shrift to the First Amendment concerns in upholding the concept in Wisconsin v. Mitchell. I am not convinced that Thomas' actions are "worse" because he targeted Jews as to require different crimes or punishments. Nor do I (as sort-of part of the "attacked" group*) feel safer or more protected that Thomas will be prosecuted for the specific crime of targeting Jews as opposed to the more general crime of attempted murder or assault-with-a-deadly-weapon or something like that.

[*] To be clear, in response to a reader email, I am not trying to separate myself from the victims of these attacks as "different" types of Jews. By sort-of, I was making the point that the attacks have been localized in insular Jewish communities in New York. So I am part of the group as a Jewish person; I am not part of that insular and localized group. For purposes of this post: If the attacks were taking place against Jews in Coral Gables, Florida (where my temple is located), I would not be in any greater favor of hate-crimes laws as the solution.

I did not know about § 247, distinct from § 249(a), which makes it a crime to willfully cause or attempt to cause bodily injury to a person because of, among other things, the victim's actual or perceived religion, race, or national origin. I am curious why the U.S. Attorney charged under § 247 rather than § 249. Is the difference that this attack occurred during religious exercise--a Chanukah celebration at a place of worship--rather than from encountering a Jewish person on the street? And if the US Attorney pursues others of the dozen-or-so attacks on Jews of the past eight days, which occurred on the street, would it use § 249 instead?

Update: Marty Lederman also wonders why the government used § 247 rather than § 249, because it would be easier to prove both the motive element and the jurisdictional elements under § 249 than § 247 (although Marty believes the government can prove both as to § 247).

Posted by Howard Wasserman on December 30, 2019 at 05:10 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (8)

Tuesday, December 24, 2019

Constitutional small claims court

Clark Neily at the Cato Blog proposes a constitutional small-claims court for low-level constitutional violations. Neily's starting example is a cop citing a woman for disorderly conduct for saying "bitch" in public, an obvious constitutional violation, then ordering away (on the silent threat of arrest) an attorney who attempted to intervene. Neily's proposal would create a small-claims-court/traffic-court hybrid, with small-money damage awards paid from an escrow fund established by each department. Neily acknowledges the major structural departure, but says it is better than the current approach, "which is to collectively shrug our shoulders at the vast majority of relatively low-level civil-rights violations committed by cops hundreds, if not thousands, of times a day across the country."

It is an interesting idea, of a piece with other proposals to enable recovery on small violations. In my Civil Rights class, I discuss Jim Pfander's proposal to allow plaintiffs to seek only nominal damages in exchange for eliminating qualified immunity.

There are a host of details to work out, as Neily acknowledges. They begin with whether this system is in federal or state court and what that choice says about our current assumptions about the federal judiciary and civil rights. If at the state (or municipal) level, recall that municipal traffic courts have become money-making institutions for themselves, their local governments, and their police departments, creating their own constitutional violations. We might worry about recreating that system, even with the different goal of compensating citizens against governmental overreach. Finally, should it be limited to police or should it extend to other executive officials who violate rights in a small, l0w-level way, such as the staffer in the Recorder of Deeds office?

Posted by Howard Wasserman on December 24, 2019 at 11:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Saturday, December 21, 2019

More on the role of academic experts

Andrew Ferguson in The Atlantic offers a new contribution to the debate over academic experts in public debate and public affairs and he pulls no punches in arguing that academic experts have nothing to add to public-policy debates. He aims his current ire at historians in the current impeachment debate, but spares some for nuclear scientists who argued for disarmament in the '80s and doctors arguing for stem-cell research in the '00s. He also questions the motives of the "obscure signatories from backwater colleges scattered between the coasts" who enjoy the ego boost of seeing their names alongside better-known professors. As I said, he pulls no punches.

I do not reject the participation of experts as completely as Ferguson does, because I believe there is a place for that participation. Ferguson's pithy point is "[i]f I want to understand the Whiskey Rebellion of the 1790s, Sean Wilentz [the Princeton history professor] will be my go-to guy, I promise. But Trump’s impeachment, and contemporary politics in general?" The problem is that the Whiskey Rebellion (or some other historical event) might be essential to understanding contemporary politics, making that expertise essential to understanding contemporary politics. The same for nuclear scientists. Ferguson dismisses their actions as assuming that "knowing how to build a bomb was the same as knowing whether it should be used," ignoring that scientists' knowledge of the bomb's effects is relevant, thus helpful, to the political question of whether the bomb should be used. I agree that some of this is argument from authority. But some of this input from experts is necessary, proper, and essential.

Which brings us to Ferguson's insistence that "[t]he whole democratic enchilada rests on the assumption that when it comes to prudential matters of public importance, the view of the stevedore is as valuable as that of the Princeton professor." But I am not sure that is democracy's assumption (putting aside that we are a republic, not a democracy). Democracy assumes that the stevedore and the Princeton professor's votes count equally in selecting representatives and that the stevedore and the Princeton professor have an equal right to speak on matters of public concern. But democracy does not assume the surrender or rejection of any role for experts and expertise. Nor does democracy assume that, on a matter on which the Princeton professor offers an expertise that the stevedore lacks, the stevedore's views should be as influential on policy decisions. Just as I expect the stevedore's views should be more valuable and influential on the question of working conditions on the docks.

Ferguson is on the same page as Paul, Eric, and others who criticize academics for trading on their prestige in opining on matters beyond their expertise; the trick then becomes figuring out when those academics are truly speaking as useful experts and when they are speaking as credentialed citizens (as Brian Kalt put it, "your average lawyer"). But Ferguson goes one step further in rejecting all expertise.

Posted by Howard Wasserman on December 21, 2019 at 06:12 PM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

Sunday, December 15, 2019

Proposal for Law Journal Publication Reform

Brian Galle (Georgetown; Chair of AALS Section on Scholarship, Advisory Committee on Law Journal Reform) has shared the working draft of the Section's proposal for reworking the publication system. It makes two proposals. It is worth a read.

The moderate change is Limited Submission with Mandatory Acceptance ("LSMA")--authors submit to a limited number of journals and must accept the first offer. A supplement would impose a "quite period" of four weeks--no journal can make an offer on a piece for four weeks from receipt. The sweeping change is a Matching System, a la medical residency--authors identify the journals they would publish in and journals identify the articles they would publish.

The Section meets on from 3:30-5:15 on January 5 at the AALS Annual Meeting.

Two interesting proposals. I am trying to think about which approach is best specifically for professors at schools outside the top-50 or top-75 schools.

Posted by Howard Wasserman on December 15, 2019 at 09:20 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Thursday, December 12, 2019

Evidence that Jews do not run Hollywood

I have written that The Goldbergs (a show we love and watch regularly) struggles with how explicitly Jewish it wants to be. This week's Christmas-themed episode might have been its most Jewish. It showed gifts wrapped with blue-and-white paper with Stars of David; visible Happy Chanukah bunting; and a Menorah with candles. Best of all, it showed Beverly lighting first-night candles.

Then she blew them out.

Posted by Howard Wasserman on December 12, 2019 at 07:29 PM in Culture, Howard Wasserman, Television | Permalink | Comments (1)

Jewish-as-race-or-national-origin

I have not weighed in on the dispute over the administration's new order on anti-Semitism and Title VI. I do not like the new regs in my guise of free-speech advocate, because it appears to have potential to incentivize schools to restrict a lot of protected speech (including naked anti-Semitism) for fear of losing federal dollars.

But I do not understand the supposed apprehension that David Schraub describes: Jews do not want to be described as having a distinct national origin because it highlights "otherness," non-Americanness, and the historic charge of disloyalty. Schraub argues that "[i]f Jews are deemed “just” a religious group, then they are not covered by Title VI. Publicly funded programs, under this view, could discriminate against Jews with impunity." But this is incomplete. Schraub ignores the word "race" in Title VI, which seems to capture Jews without having to get into existential debates about nationality and the disloyalty they imply. SCOTUS has held that Jews are protected under § 1982 and Iraqi-born Muslims under § 1981. Lower courts have relied on that case law to hold that Jews are protected as a racial group (defined by "ethnicity and ancestry") under Title VI and Title VII (although other courts disagree). The point is that reading Title VI to protect Jews is neither unusual nor dangerous.

Posted by Howard Wasserman on December 12, 2019 at 07:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (5)

Wednesday, December 11, 2019

JOTWELL: Pfander on Sohoni on universal injunctions

The new Courts Law essay comes from Jim Pfander (Northwestern-Pritzker), reviewing Mila Sohoni, The Lost History of the "Universal" Injunction, 133 Harv. L. Rev. (forthcoming), which shows the long SCOTUS practice of issuing universal injunctions (without calling them such).

Posted by Howard Wasserman on December 11, 2019 at 12:37 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 10, 2019

Marvin Miller and the Hall of Fame (Updated)

Marvin Miller--the first executive director of the Major League Baseball Players Association and the creative force behind the modern economics of baseball and all professional sports--was elected to the Hall of Fame yesterday. The election comes seven years after Miller's death. And, although I did not know this, against his express wishes.

Miller was passed over several times by various committees between 2003 and 2010, likely because the powers-that-be wanted to deny Miller the honor, at least while he was alive. In 2008, Miller, askedtthe Baseball Writers Association of America, the main selection body, not to nominate him again; he declared himself "unwilling to contemplate one more rigged veterans committee whose members are handpicked to reach a particular outcome while offering the pretense of a democratic vote. It is an insult to baseball fans, historians, sports writers and especially to those baseball players." Miller was no doubt especially angry that in 2007, former commissioner Bowie Kuhn, Miller's chief antagonist, was elected just before his death. Despite the request, Miller was nominated in 2010, then posthumously in 2014, 2018, and this year.

There is an interesting debate about how the Hall should handle those wishes. On one hand, it is a museum designed to tell the history of baseball and to recognize those who made the game--that history cannot be told without Miller. On the other hand, the Hall of plaques does more than tell a story; it singles people for a unique honor, an honor that should be bestowed only if both parties wish. Miller's children have made clear they will not attend and accept induction in their father's place. And it is hard not see the election as one final power play against Miller--selecting him against his wishes, but when he could no longer decline appear and make his own case.

Speaking of Miller and Kuhn, Slate's Hang Up and Listen uses Miller's election as an excuse to parse Flood v. Kuhn, especially the bizarre Part I in which Justice Blackmun rattles off a laundry list of historic players from a bygone era. Several tidbits on this.

That part of the opinion was written for only three of the five Justices who formed the majority (Blackmun, Stewart, and Rehnquist). Chief Justice Burger and Justice White refused to join that part of the opinion, White expressly because an paean to baseball and a recitation of players had nothing to do with the case and no place in a judicial opinion.

The list includes only two African-American players--Jackie Robinson and Roy Campanella. And they are from a different baseball era. The white players all played in the 1900s-1930s. Based on a quick glance, it appears no one on the list began his career beyond the early '30s. The latest player is Hank Greenberg, who retired in 1948, but debuted in 1930. Robinson and Campanella played from the late-'40s to mid-'50s. Blackmun's original draft did not include any African-Americans; he added Robinson, Campanella, and Satchel Paige at the insistence/request of Justice Marshall. But Blackmun could not (or did not bother to) match anyone to the era that is the focus of the rest of the list, although several historically great Negro League players (e.g., Josh Gibson) were contemporaries of Ruth, Gehrig, etc.  Marshall then dissented in the case, so he did not join the list at all.

Finally, there was some horse-trading among the Justices about who to include. That still does not explain how Moe Berg made the list.

Posted by Howard Wasserman on December 10, 2019 at 03:01 PM in Howard Wasserman, Judicial Process, Sports | Permalink | Comments (2)

Monday, December 09, 2019

Segall on the role of law professors

Eric Segall has an excellent post at DorfonLaw about the proper role for law professors in controversial legal and political disputes. The obvious trigger was the four prawfs who testified at the impeachment hearings. But Eric expands it to participation in congressional testimony, confirmation hearings, amicus briefs, letters on public matters, etc. And blogs--he questions whether writing publicly, in our professional (and professorial name) about matters beyond our scholarly expertise either trades on the professorial name or dilutes it.

Two thoughts. First, Eric references the letter that 2000 law professors signed arguing that Brett Kavanaugh's demeanor at his hearing was not judicial and should have been disqualifying. I did not sign for the reason Eric offers for not signing--the question of Kavanaugh's demeanor did not call for any scholarly expertise and was really a cover for political opposition to Kavanugh's appointment.* I had a heated debate with my wife and overly engaged daughter, who did not buy the distinction or the idea of trading on my position to suggest expertise on a contentious political matter on which I could speak not as an expert but as a "concerned citizen."

[*] Which I shared. And which I offered in emails to several Republican Senators (not my own, because I chose not to waste my breath), using my name but not my title or position.

Second, a blog, like other social media, strikes me as a different medium of work. I am trading less on my position and expertise and more taking an opportunity to write for a regular audience about things that interest me and about which I know something (even if I do not know as much about these things as I do about universal injunctions). Regular readers of the blog know and expect that some of what I write about is going to be non-expert interests (baseball, Judaism) or personal matters (family, etc.). And you understand that this is part of the forum and what I like to do here. That is different than using my professorial cache (such as it is) to talk about a non-expert matter to a new, unfamiliar audience in a different forum, such as the op-ed page of the The New York Times or an advocacy letter to a congressional committee.

Posted by Howard Wasserman on December 9, 2019 at 03:11 PM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (4)