Tuesday, September 20, 2022
A state could stop this in the Fifth Circuit
I have not had much to say about the Fifth Circuit's abomination in NetChoice. (Mike Masnick at TechDirt offers a good summary). The First Amendment analysis is absurd; it should be stayed soon; SCOTUS must grant cert (given the nature of the internet, the Court cannot allow this circuit split to survive); and I hope reversed later this Term by (at worst) 6-3 (Gorsuch is the only person about whose vote I am unsure). Someone said it reads like a Twitter rant and I think that is fair.
But the timing of this story is fortuitous. The Society for the Advancement of Judaism, an NYC Reconstructionist synagogue that has rented space to a local Republican organization refused to do so for an event with election-denier Dick Morris. The organization is protesting, insisting that this is not about Morris and election denialism but about a new general refusal to rent to Republicans--while the Temple could legitimately decide it does not want its forum used for election denialism, denying the forum to all Republican speech is different. NetChoice rested on a similar distinction--while sites perhaps can take steps against Nazi speech (which the Court dismissed as hypothetical), taking steps against "mainstream" conservative or Republican views is "censorship" that the state can stop.
Privately owned speech spaces (this Temple or the comedy club in Halleck) provide the best analogy to social-media sites--a privately owned space in which speech can occur, opened to speakers. Under the Fifth Circuit's logic, a state or city could pass a law preventing such spaces from "censoring," at least as to the "ordinary Republican speech" this organization says it intends to present.
Posted by Howard Wasserman on September 20, 2022 at 08:47 AM in First Amendment, Howard Wasserman | Permalink | Comments (1)
Monday, September 19, 2022
Content Moderation in Jeopardy (or: that time the Fifth Circuit cited my platform law scholarship in a really bad decision)
The Fifth Circuit handed down a highly problematic decision end of last week - putting in question all platform content moderation. The court upheld the Texas law that allows the state of Texas and individual Texans to sue companies if they “censor” an individual based on viewpoints or geography by banning them or blocking, removing or otherwise discriminating against their posts.
This law, and a similar Florida law, goes against what content moderation is. The 11th circuit held the similar Florida law unconstitutional and now the path is ripe for a SCOTUS decision. The 5th circuit at some point in its very long decision nods to academics who have been writing about Platform Market Power (citing my work with Ken Bamberger) to conclude that platforms are nothing like newspapers and because of their market dominance do not have the right to decide what content to allow or remove.
Eric Goldman at Santa Clara who is a leading section 230 scholar is planning a thorough post about the decision so be on the lookout for that. Meanwhile, last week too, the Biden administration announced a vague call to reform Section 230 as part of its vague open-ended principles for platforms, rehashing the same old - more privacy, less AI bias. In my forthcoming book, The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future, I highlight the fallacies of privileging privacy over much needed data collection, and creating a double standard for automated decision-making when so much of human decision-making is biased and flawed. Privacy and anti-bias measures are of course important principles but we need a much richer, comparative advantage analysis to get the policy right.
Posted by Orly Lobel on September 19, 2022 at 05:07 PM | Permalink | Comments (3)
Federer and McEnroe (Updated)
Roger Federer announced his retirement last week. He will play the Laver Cup (a Europe v. U.S. exhibition tournament) next week, then hang it up. Federe has not played in more than a year and has missed big chunks of the past several seasons with various injuries. He lost his last match at 2021 Wimbledon quarter in straight sets, with a third-set bagel, at one point slipping and falling on an easy volley; you could tell his body was no longer right.
I am an inveterate Federer-stan. I stayed in his camp in the G.O.A.T. debate--until it became impossible to deny reality that Nadal or Djokovic was better. This is true on any measurement: 1) Grand Slams championships (Nadal 22, Djokovic 21, Federer 20*); 2) Weeks at # 1 (Djokovic); 3) Head-to-head (16-24 v. Nadal, 23-27 v. Djokovic). What is left for Federer-stans is the inarticulable grace and artistry--Federer and his game looked different than everyone else, beautiful beyond ordinary tennis. It is telling that in the coronation of U.S. Open champion Carlos Alcarez as the next great player, he is described as combining the best of Djokovic and Nadal; no one mentions or compares him to Federer, because no one replicates Federer's game.
[*] Sports what-ifs are easy, but Federer should have 22. He inexplicably gave away a 2-set lead to Juan Del Potro at the 2009 U.S Open Final and blew two match points against Djokovic in the 2019 Wimbledon Final.
I circled around to John McEnroe. Like Federer, McEnroe's game looked different than everyone else, having some balletic beauty that no other players (even players with a similar serve-and-volley style) shared or replicated. And that grace and beauty elevates the player in the history, even if the numbers do not match the memory. That is partly why we remember McEnroe's relatively brief run at the top. And it is why we will remember Federer in a place even when the record book places others ahead of him.
Update: A fellow Federer-stan suggests additional metrics under which Federer retains G.O.A.T.-ness. Federer's peak 4 1/2-year run (2003-2008) is unrivaled. He spent 237 consecutive weeks as world # 1 (almost double Djokovic) and remained # 1 from the beginning of 2005 to the end of 2007. Aside from two losses to Nadal in Paris, he was so far above the rest of the world. He made the semis in 46 tournaments, including 23 in a row; even if he did not win, he was always in the hunt. (Similar to Jack Nicklaus who has the most major titles and the most second-place finishes). Points well-taken.
Posted by Howard Wasserman on September 19, 2022 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)
Sunday, September 18, 2022
Teaching, Learning, and Coding
One of my reasons for blogging this month was to articulate (more for myself than anything) the parallels between lawyer-like thinking and code-like thinking that I always understood in a macro-sense, but which became even clearer in the micro-sense when I decided to learn some actual code. Jeremy Telman's response to my response to his post on scholarship in the Other Legal Academy seemed to bear on that (or maybe I'm stretching to see the connection, but whatever....).
In his view, "the differences in teaching in the OLA and the LA drive everything else." Jeremy thinks he teaches his students contracts differently than he would if he were in what he calls the Legal Academy: focus on bar preparation; intense and frequent written homework assignments; in-class midterm; paternalistic measures such as taking attendance and banning laptops.
I don't teach that way. My approach is, I suspect (and to use some modern jargon), metacognitive along the lines of the the lawyering-coding parallels. Would that work at Jeremy's school? Once again, I suspect there is an "other other legal academy" that is neither Harvard or Stanford (where the 25th percentile LSAT score is 170) nor OCU (where the 75th percentile is 152 and the 25th is 146); our school reported 75/50/25th percentile entering LSAT scores of 158/154/150. We have students who struggle with the curriculum. But, as Jeremy (and my colleague David Yamada) point out, we have the advantage of being in Boston. We get students who've chosen Suffolk over Northeastern or Boston College (or even BU), often because of generous financial aid, as well as evening students that usually include a raft of patent agents whose academic credentials include Ph.Ds from places like MIT, Harvard, Princeton, Johns Hopkins, and Michigan (Go Blue!).
I do believe, with Jeremy, that it's a lot different teaching at a school like Suffolk than at an "elite" school. Until the phase-out, I taught four classes a year (usually 12 credit hours) without relief for scholarly productivity, despite my logical but completely futile argument to the deans that if I got no relief then colleagues who didn't write really ought to be teaching 24 credit hours. Oh well. I don't believe, however, that I teach my subjects any differently than I would at an "elite" school. Indeed, were an "elite" school to ask me to teach, as a podium visitor, contracts or intro to business associations (feel free to ask, by the way), I would use the same materials and the same approach I use at Suffolk.
It's that approach, and the "aha" moments about it from my summer project of learning computer coding that I'll reflect on below the break.
Continue reading "Teaching, Learning, and Coding"
Posted by Jeff Lipshaw on September 18, 2022 at 12:23 PM | Permalink | Comments (2)
M*A*S*H*
Saturday marked the 50th anniversary of the 1972 series premier of M*A*S*H*, a show I watched religiously on first-run and re-runs beginning around 1978-or-so through the 1983 finale (still the highest-rated non-sports television show) and beyond. I am sure I have seen every episode at least 5-10 times. I pop-in on it on MeTV every so often; I can identify most episodes within about 5 seconds. It has not aged well in many respects, although as a former show writer pointed out, it takes place in an Army camp in the middle of a war in the early 1950s; of course the behavior taking place there is unacceptable in 2022.
Many of written about the show's change in tone over 11 seasons; the process began with the cast changes in the fourth season (replacing the commanding officer and second-banana doctor with more serious and fully formed characters) and accelerated over time the final eight seasons. Much of this focuses on the show's anti-war attitude becoming more text in many of the stories, the show becoming what we now would call a "war dramedy."
Here is a different way in which the tone change presents. I can think of three story lines the show repeated, in whole or part. The first time, within the first three seasons, it was played mostly for laughs, without getting into depth or nuance or considering the bigger picture or issues; the second time, sometime later in the run and with new characters, the show took the issues seriously and considered broader ramifications.
Consider:
• Conducting fake surgery. White Gold (Season 3) Hawkeye and Trapper slip something into the drink of Col. Flagg (a recurring military-intelligence officer played for dry laughs) to mimic symptoms of appendicitis and remove his appendix; they want to stop him from taking medical supplies to trade for information. Preventative Medicine (Season 7) Hawkeye does the same to a reckless commander who is causing casualties in absurd numbers, but B.J. objects and refuses to participate in a violation of his oath. The button on the episode is more wounded coming in and that removing one cause of death and destruction in war does not stop the larger toll of war.
• Summary Executions. Officer of the Day (Season 3) Col Flagg (he's back) wants the camp to release a wounded North Korean guerilla so he can execute him in Seoul; Hawkeye and Trapper sign-off at gunpoint, then sneak Klinger (whom Hawkeye had promised a trip to Seoul) into the ambulance. Guerilla My Dreams (Season 8) A South Korean officer wants the camp to release a wounded woman, whom he says is an enemy guerilla; the officer has a reputation for torturing suspects. Hawkeye et al resist and try to sneak her out of camp, only to have the Korean soldiers stop them at gunpoint and take the woman away. The woman speaks of how she hates the American soldiess and would gladly kill all of them.
• Adopting war orphans. Kim (Season 2). A wounded, seemingly orphaned little boy, is brought to camp. Rather than send him to an orphanage, the camp keeps and cares for him for a time, prompting Trapper to decide to adopt the boy; the process of doing so is presented as relatively simple. (The mother is found at the end). Yessir, That's Our Baby (Season 8). A baby (the child of a Korean woman and American G.I.) is left at the camp; they try to get her sent to the U.S., but no one (Red Cross, Army, South Korean government, State Department) will cut through red tape and work with them. At one point they raise the issue of adopting her and are told "not a chance." Because the child is half-American, she cannot be placed in a Korean orphanage; they leave her at a monastery.
This is not a comment on which is "better." Only that it illustrates how the show evolved and became more complex over time.
Posted by Howard Wasserman on September 18, 2022 at 10:36 AM in Culture, Howard Wasserman | Permalink | Comments (0)
Saturday, September 17, 2022
Law Review Meta Rankings, 2022
Annual update of law review meta rankings from Bryce Newell. A separate chart compares five years of studies.
Posted by Howard Wasserman on September 17, 2022 at 10:50 AM in Teaching Law | Permalink | Comments (0)
Friday, September 16, 2022
University of Alabama School of Law Symposium on Constitutional Ethnography
I'm happy to pass along my colleague Deepa Das Acevedo's invitation to an upcoming symposium on constitutional ethnography, hosted by the University of Alabama School of Law. It will be held on October 14, and features a keynote address by Princeton's Kim Lane Scheppele. Y'all come!
Posted by Paul Horwitz on September 16, 2022 at 04:12 PM | Permalink | Comments (0)
An Empirical Analysis of the Environmental Law Hiring Market - Erwin Guest Post
The following is a guest post from Alex Erwin:
As readers of this blog are well aware, Sarah Lawsky annually collects data on the legal academic job market. Her entry-level hiring reports offer fantastic insight into trends in the overall job market. I personally found her reports incredibly useful when preparing to go on the market. That said, I have always wondered how general market trends hold up across subject-specific submarkets. I have seen discussion in the comments and elsewhere about different fields of law having different hiring standards, but, when I went searching, I did not find anything specific about my own field, environmental law. When I went on the market last year, I wanted to know more about who was getting hired in environmental law and what kind of credentials they had. Like any good academic, I funneled my job hunt anxiety into data analysis!
Continue reading "An Empirical Analysis of the Environmental Law Hiring Market - Erwin Guest Post"
Posted by Sarah Lawsky on September 16, 2022 at 11:13 AM in Entry Level Hiring Report | Permalink | Comments (0)
Thursday, September 15, 2022
And isn't it ironic? Don't you think?
It's like Nazis who can get a stay.
It's Yeshiva when they can't get a stay.
It's the biggest case that the Court didn't take
And who would've thought? It figures.
Posted by Howard Wasserman on September 15, 2022 at 10:19 AM in Howard Wasserman | Permalink | Comments (1)
Law School Exceptionalism
One more thought on the Yeshiva case. Cardozo Law School has LGBTQ+ student organizations and responded to the university's recent appeals with a public statement reaffirming support for the community and student organizations and stating that the university's efforts "do not pertain to the Cardozo School of Law and will have no impact on law school policy." This is consistent with the position of Albert Einstein Medical School and some graduate programs, whose student populations are less Orthodox and whose curricula are less steeped in Orthodox teachings.
This offers an important example of "law-school exceptionalism"--central universities recognizing that law schools are unique entities and treating them different than other campus units in terms of faculty governance, student life, student control, etc. It was a central feature of the late-2oth/early-21st-century heyday of legal education. It allows a law school to have an LGBTQ+ student organization where the university has decided that such a group--and the rights for which it fights--runs contrary to the institution's core educational values. Whatever its views on the merits of anyone's position, the university will not micro-manage the law school on such matters and will leave it to its choices and preferences. Some is accreditation-driven--law schools can argue that requiring it to eliminate such groups would run afoul of the ABA and AALS. Some is competition of the market--law schools can argue that they cannot attract sufficient top students in New York if they run a school perceived as unwelcoming to LGBTQ+ students.
Law-school exceptionalism also is, in some places, a vanishing virtue. As the nature and perceived value of legal education have changed, so has (some) university willingness to allow law schools to operate with such procedural or substantive independence. This could provide an interesting test of Yeshiva's commitment to this ideal. Cardozo's statement on the litigation suggests the dean feels confident the university will not turn this into a larger issue of central control. But it is a piece worth watching as this case proceeds.
Posted by Howard Wasserman on September 15, 2022 at 10:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Morissette, J., dissenting
A 5-4 Court on Wednesday denied Yeshiva University's request for a stay of a state-court preliminary injunction requiring it to recognize an LGBTQ+ undergrad student group. The majority (the Chief, Sotomayor, Kagan, Kavanaugh, Jackson) pointed out that Yeshiva had not sought a stay or expedited review in the state courts. Unlike the typical shadow docket case, the Court cannot hear this case on the merits for several layers of review. Justice Alito dissented for Thomas, Gorsuch, and Barrett. Typical shadow-docket stuff--it is obvious how we will rule on the merits of this religious-liberty claim so do not waste time with procedural niceties such as multiple layers of review.
Here is the interesting piece. Alito cites National Socialist Party v. Skokie for the proposition that a state-court denial of a stay is a final order--ignoring that the Illinois Supreme Court had denied that stay and expedited review, whereas here the trial court denied the stay and Yeshiva never asked the state appellate court or the state high court for a stay or expedited appeal. He then says "It is ironic that the theory that supported a stay in that case is eschewed here."
In what way is this ironic? Is it because Jews are involved in both cases? Does it matter that Jews were not party to Skokie? Was that case inherently Jewish because it involved Nazis? Is it less ironic if the non-Jews of Skokie, hopefully, also were not thrilled to have Nazis marching there? Does it matter that the Jews were targeted in Skokie as an ethnic group rather than religious (since Nazism does not distinguish religious from non-religious Jews). And what if, like many Jews, one believes the Nazis should have been allowed to march and Yeshiva should be required to recognize the student group--does it cease to be ironic?
Posted by Howard Wasserman on September 15, 2022 at 09:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, September 14, 2022
The Dormant Commerce Clause and Unreasonable Burdens
Next month the Supreme Court will hear a significant Dormant Commerce Clause--National Pork Producers Council v. Ross. The case involves a challenge to a California law that prohibits the sale of pork within the state unless the pigs were treated in a way that meets certain minimal criteria for animal rights. Pork producers (who are mostly outside of California) argue that this law imposes an intolerable burden on interstate pork commerce and should be invalidated.
This is an interesting case for at least two reasons. First, the Court rarely strikes down a state law simply because that law burdens interstate commerce. Typically there must be or is a discriminatory intent. Here, though, there is no such intent and the argument is based entirely on the burden imposed. Second, a burden rationale means that a small state like Rhode Island could pass an identical law but a large state like California cannot. This is an odd conclusion, which suggests to me that the whole notion that laws can violate the Dormant Commerce Clause based solely on their burden is wrong, or at least should not be expanded. Granted, you can evade this problem by saying that either any state can do something or none can, but if that is true that any state law that imposes a burden could be a problem because what if all 50 states do the same.
Posted by Gerard Magliocca on September 14, 2022 at 04:58 PM | Permalink | Comments (0)
Tuesday, September 13, 2022
The politics of abortion (Update)
Lindsay Graham introduced the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act. The bill bans abortions after 15 weeks, with rape, life, and health exceptions. It provides for prosecution of the provider but not the pregnant person and for civil actions by the pregnant person or minor parents but not the pregnant person.* It also provides that it does not preempt or limit any law imposing greater limits on abortion--in other words, it does not yield to a Red-State complete ban but does override Blue-State laws allowing Roe-level abortions until viability. The bill identifies the Commerce Clause and § 5 as the power sources, although the substantive sections do not contain an "affecting commerce" element and I am not sure a bill recognizing fetal rights (how this is framed) is congruent-and-proportional to current 14th Amendment doctrine.
[*] Federal standing law prevents a full-on HB7 private right of action, although I am surprised they did not try and force providers to defend.
I wonder about the partisan politics of this. Two months prior to an election in which polls show Democratic voters mobilized around opposition to Dobbs and the loss of reproductive freedom, extreme state laws, and the consequences of banning medical procedures, the bill places the issue in the public eye and forces a public vote on that issue. Why, the argument goes, would Senate Republicans want to increase that energy and engagement?
So what do Graham and Senate Republicans hope to get out of this?
1) Energize the base by showing a willingness to fight to stop abortion when it makes a difference (unlike performative pre-Dobbs legislation). The bill gives a restrictive baseline--like Mississippi and more limited than under Roe--and leaves states free to legislate greater restrictions, all the way to a complete ban. It gives the anti-choice voters something to get excited about at the federal level. The questions, I guess, are whether the GOP was in danger of not having those voters and whether they will be outnumbered by enraged pro-choice voters.
2) It provides a grand bargain on abortion, finding the middle ground that some (David French comes to mind) believe is inevitable. But the preemption clause undermines that conclusion--the bill expressly allows Idaho to ban all abortions but stops California from providing greater access. That is not a grand bargain under which the entire country falls--this is setting a federal ceiling while letting states go as low as they want.
3) Polls shows that a good percentage of the public would set the line at 15 weeks. Graham et al believe they have a political winner in forcing Democrats to vote against a bill that resolves the abortion debate where many people would like it drawn. They also can emphasize that 15 weeks is a larger window than Europe** and count on the press to misreport it (always a good bet). Again, I think the preemption clause undermines this, for those who read the bill. But it may help create a narrative of "Democrats want extreme ranges for abortions, beyond even what those European Socialists allow."
[**] True but misleading. Some European countries stop abortions sooner than this. But it is much easier to get the procedure within 10-12 weeks than in most U.S. states--more places to go, less costly, public support for the poor, no waiting periods and other hurdles delaying and forcing multiple trips to the doctor.
4) Check the bill title--"Late-Term Abortions Act." They are counting on the press reporting this as a ban on "late-term abortions"--which most people support but which most people think of as something like post-32 weeks (or certainly post-viability), not two months pre-viability. Mississippi did not defend its 15-week ban in Dobbs as "late-term." But the narrative "Democrats voted against stopping late-term abortions"--rather than 15 weeks--may work for the Republicans. Again, it depends on media malpractice, but that is a good bet.
5) Distract from Donald Trump, Mar-a-Lago, etc. Graham carries Trump's water, but that is a bit too conspiratorial.
Update: Looks like # 3, with perhaps a bit of # 4). Graham wrote this thread in response to Nancy Pelosi's response to the bill. He hits the expected points: This bill is to the "left" of those in Europe; opposition means Democrats want abortion on demand; and hoping "voters are paying attention to the radical nature of the Democrat party when it comes to abortion."
Posted by Howard Wasserman on September 13, 2022 at 04:18 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)
14th Annual Lesley K. McAllister Symposium on Climate and Energy Law
named after our beloved colleague -
14th Annual Lesley K. McAllister Symposium on Climate and Energy Law
Please Join Us!
This year the University of San Diego School of Law will host its Fourteenth Annual Lesley K. McAllister Symposium on Climate and Energy Law. The Symposium will be an in-person event with an added virtual option for attendees. This event is co-hosted by the Energy Policy Initiatives Center (EPIC) and the San Diego Journal of Climate & Energy Law.
ACCELERATING PATHWAYS TO NET ZERO
November 4, 2022
San Diego, CA
This year, legal and policy experts will explore the role of law and policy to accelerate pathways to net zero emissions, including efforts to reduce GHG emissions, preserve existing carbon stocks, and remove from the atmosphere and store permanently any remaining emissions.
Posted by Orly Lobel on September 13, 2022 at 02:11 PM | Permalink | Comments (0)
Monday, September 12, 2022
AALS New Voices in Administrative Law 2023
Call for Submissions: AALS New Voices in Administrative Law 2023
The Association of American Law Schools (AALS) Section on Administrative Law is pleased to announce the “New Voices in Administrative Law” program for the 2023 AALS Annual Meeting, which will be held in person in San Diego. The New Voices program gives junior administrative law scholars an opportunity to receive useful feedback on their work from more senior reviewers before submitting the work for publication. We welcome submission of early-stage drafts and encourage eligible scholars to participate. As noted below, there will be time to revise submissions before they are circulated to commentators and posted as part of the panel.
Each participating junior scholar will be assigned two designated reviewers. The reviewers are senior administrative law scholars who will read the junior scholar’s paper in advance and offer constructive comments during the program. Anyone else who is interested in participating in one of the discussions is welcome to join. The New Voices program is scheduled from 3:00 to 4:40 p.m. Pacific time on Saturday, January 7, 2023.
For Interested Junior Scholars
To participate, junior scholars must be full-time faculty members, including full-time visiting assistant professors or fellows, at AALS member schools. Papers that have been posted on scholarship networks such as SSRN, but not yet published, are eligible for consideration.
Please email Professor Glen Staszewski at [email protected] by Friday, October 28, 2022, to be considered for participation in the program. In your email, please include the title of your paper and attach an abstract or working draft. Please also include in the email your school, tenure status, years in the position, any prior legal academic positions, and whether you have previously participated in the New Voices program.
If your paper is selected for participation in the program, you must submit a draft via email to the above address no later than Friday, December 9, 2022. This deadline is important to provide the designated reviewers ample time to read their assigned drafts before the program. The draft submitted does not need to be completely polished and ready for law-review submission; reviewers welcome papers in earlier stages when the author can most benefit from feedback about the project.
For Senior Scholars Interested in Serving as Reviewers
If you are interested in serving as a reviewer this year, please email Professor Jamelle Sharpe at [email protected] as soon as possible.
For All Participants
Please be aware that selected participants and commentators must register for the AALS Annual Meeting. Please submit any questions about the New Voices Program to Professor Glen Staszewski at [email protected].
Reminder: Nominations Due for the Emerging Scholar Award by Sept. 30, 2022
In January, the AALS Administrative Law Section recognized Benjamin Eidelson and Blake Emerson as co-recipients of its second annual Emerging Scholar Award. Nominations for this year’s award are due on September 30th. Self-nominations are welcome! Full-time faculty members without tenure at the time of the work’s publication, including those with fellowships, visiting assistant professorships, or similar positions, are eligible. To nominate someone, please send an anonymized version of their work to Professor Mila Sohoni at [email protected] by September 30, 2022. (Any reasonable effort to strip identifying information is fine.) Any substantial scholarly work—whether a law review article, monograph, or chapter—published in final form between September 1, 2021, and August 31, 2022, is eligible. The work may be on any topic related to administrative law, although the award selection committee may favor work with greater general applicability. We will present the award at the AALS Annual Meeting in January. Please direct any questions to Professor Mila Sohoni.
Posted by Orly Lobel on September 12, 2022 at 04:03 PM | Permalink | Comments (0)
JOTWELL: Carroll on Greene & Renberg on judges without J.D.s
The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Sara Sternberg Greene & Kristen M. Renberg, Judging Without a J.D., 122 Colum. L. Rev. 1287 (2022), examining the phenomenon of low-level state judges who do not have law degrees.
Posted by Howard Wasserman on September 12, 2022 at 02:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)
Saturday, September 10, 2022
The Other "Other Legal Academy" - Scholarship
My friend Jeremy Telman (Oklahoma City University, left) has a series of three posts at ContractsProf Blog on his experience as a teacher and scholar in what he refers to as the "Other Legal Academy" or OLA. His thesis is that there are at least two legal academies, one elite ("The Legal Academy") and one consisting of unranked law schools (the OLA) and they "meet fleetingly." (Full disclosure: Jeremy's post on scholarship has a picture without link to his edited volume Hans Kelsen in America - Selective Affinities and the Mysteries of Academic Influence (Springer, 2016). I contributed a chapter.)
The posts deal, respectively, with hiring, scholarship, and teaching. They are provocative, overly modest about Jeremy's own accomplishments, and fodder for my own promised reflections toward the end of a career in what Jeremy might think of as part of the OLA.
This sentence triggered my initial and visceral response to his distinction between The Legal Academy and the OLA:
But unless you are one of the few who can make the leap from the Other Legal Academy to The Legal Academy, do not expect that your scholarship will have an impact or even be read beyond a small circle.
I asked Jeremy how many OCU faculty had moved laterally since 2007 (when I started teaching), because my experience at Suffolk was that a substantial number of my colleagues who got tenure at Suffolk moved on to schools up the food chain - for example, Jessica Silbey to Northeastern and then to Boston University, Hilary Allen to American, Frank Rudy Cooper and Leah Chan Grinvald to UNLV (the latter as dean). His answer was very few. I have had colleagues whose scholarly work I know is widely read and influential, including David Yamada on workplace issues (such as bullying), Michael Rustad on tort law, John Infranca on housing communities, Marc Rodwin on health care, and most recently, Sarah Burstein on design patent law. (There are others as well.)
Yet for reasons best explained by the US News ranking algorithm, Suffolk currently sits in the #122 bracket along with Albany, Mercer, Baltimore, and Dayton, just behind the #118 group (Chapman, Hofstra, Tulsa, West Virginia) and just ahead of the #127 group (Cleveland State and St. Thomas (MN)). Indeed, the impact of that algorithm (LSAT scores and bar passage rates) combined with past decisions on class size have caused Suffolk to flirt with over the last ten years, but never succumb to, the unranked list at the bottom where you find OCU and others.
There's no question that it's different being at Suffolk is different than being at Harvard, Yale, Stanford, or even BU. Nevertheless, and despite my unusual path to a faculty and perhaps even to tenure, I never felt like I was on the outside of The Legal Academy looking in as a scholar. Below the break, I'll reflect on that. (And perhaps touch on Jeremy's reactions to hiring and teaching in later posts.)
Continue reading "The Other "Other Legal Academy" - Scholarship"
Posted by Jeff Lipshaw on September 10, 2022 at 08:19 AM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (7)
Friday, September 09, 2022
The queen is dead, long live the king (Updated)
Three thoughts, as someone who, when my wife and kid woke up early to watch William and Kate's wedding, joked "didn't we fight a war so we didn't have to do this?"
• TIL they change the words to the British national anthem. It makes sense, but I had never gotten confirmation (since hardly anyone is alive who remembers anyone other than a queen).
• The combination of the events in the U.K. and ongoing political events here highlights something Gerard has written about--the possible gains from separating the roles of head of state and head of government. The U.S. is unusual in being a stable liberal democracy that combines those roles. Perhaps a central executive of some stature, disengaged from partisan competition and policymaking, can help lower the political temperature and avoid things such as one side's refusal to accept electoral defeat. On the other hand, Elizabeth's statute came from serving for 70 years and becoming indistinguishable from the nation. A figurehead HoS also presumes unified legislative/executive control. So maybe our system is too far gone.
Update: David Frum frames it around two interesting points. One is separating the trappings of wealth and power and actual power--the person with the trappings has no power, the person with power has no trappings, lives in a small house, and regularly encounters rudeness (think of Question Time). The other is how accidental both systems are. The Constitution modeled presidential power after monarchical power as it existed in in 1787, only for the British to organically limit that power in the following years. The British couch an evolving system in long tradition, while the U.S. tries to pull an ancient system into the modern world.
• Chief Justice Rehnquist wrote in Hustler that "our political discourse would have been considerably poorer without" political cartoons--not only for the caustic (and sometimes tasteless) satire and criticism that brings down the powerless (as Rehnquist emphasized), but for their ability to wordlessly capture a moment and an emotion. Behold:
Posted by Howard Wasserman on September 9, 2022 at 02:45 PM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (0)
Thursday, September 08, 2022
Dall-E Made an Uncanny Picture of My Kids - Part I
Seriously. There have been such headlines, but I tested it myself. I signed up on Open AI for an account and got approved quite fast. I spent the day coming up with prompts that would result in images that look like my kids. At first, it was really off. Then I got better (the AI was always quite good, you just need to learn to speak its language). Then I actually gave a really thin prompt: Three Daughters at the Beach Chagall-Style and the result was something so uncanny and similar ("it's literally us" one of my kids said) that my family couldn't believe my story about how it was just based on a thin prompt. I too have doubts on whether the AI somehow learned something about me from previous prompts? Or is it just that we are all quite similar in the end, and we read confirmation and see similarities and uniqueness (especially when backs are turned like in this picture) when its really quite generic (and definitely not a Chagall).
Post number II will be about some of the policy implications of Dall-E art.
Posted by Orly Lobel on September 8, 2022 at 09:24 PM | Permalink | Comments (0)
The Civil Rights Act of 1866 and Reconstruction
People commonly say that the Fourteenth Amendment was ratified, in part, to constitutionalize the Civil Rights Act of 1866. Indeed, there is an ongoing debate among scholars about how the 14th Amendment did that.
But why is the premise correct? Congress enacted the Civil Rights Act of 1866 on the authority of the 13th Amendment. And in the Civil Rights Cases, the Supreme Court passed on the question of whether the Act was a valid exercise of congressional power under the 13th Amendment.
It is true that John Bingham did not think that the 13th Amendment authorized the Civil Rights Act of 1866. But he was alone among Republicans in Congress in believing this when the Act was passed. Why then do people keep saying that one part of the original public meaning of the Fourteenth Amendment was constitutionalizing the Civil Rights Act? Even if other members of Congress besides Bingham said this when the 14th Amendment was under discussion, I'm not sure that's enough evidence. Or at least I'd want to see how many people said that and who they were before I made up my mind.
Posted by Gerard Magliocca on September 8, 2022 at 09:20 AM | Permalink | Comments (0)
Wednesday, September 07, 2022
Conflict experts fight about Star Wars
Now for something completely different, after the jump. (H/T: Former Prawfs guest Scott Maravilla). And watch for Star Wars, Negotiation, and Conflict Resolution, edited by Noam Ebner (Creighton) and Jennifer Reynolds (Oregon), coming soon.
Continue reading "Conflict experts fight about Star Wars"
Posted by Howard Wasserman on September 7, 2022 at 03:13 PM in Culture | Permalink | Comments (0)
Tuesday, September 06, 2022
And Then There Was One
Today Couy Griffin was ousted from office by a New Mexico court for violating Section Three of the Fourteenth Amendment on Jan. 6th, 2021. I'll have more to say about that later, but for now I just wanted to note that this is the only pending case on Section Three. The Georgia Supreme Court last week affirmed that Representative Taylor-Greene is eligible to run. (Her 11th Circuit appeal is still pending, but one would think that would now be dismissed as moot, though perhaps not unanimously.)
By the way, the last person ousted from office by a court was a state judge in Louisiana. This decision in 1869 rested on the federal statute that readmitted Louisiana to the Union after the Civil War. But since the statute said that Section 3 must be enforced by the newly readmitted states, you could argue that this was, in fact, a Section 3 case.
Posted by Gerard Magliocca on September 6, 2022 at 03:01 PM | Permalink | Comments (0)
Monday, September 05, 2022
Iowa Law VAP and Fellowship - 2023-2024
From the University of Iowa College of Law:
The University of Iowa College of Law seeks applicants for the Hubbell Visiting Assistant Professor and the Iowa Law Faculty Fellowship.
The Iowa Faculty Fellowship aims to further the College of Law’s and the University of Iowa’s longstanding goals of increasing diversity in the legal profession and recruiting and retaining a more diverse campus community of faculty, staff, and students. The Hubbell VAP will teach in the environmental law curriculum and will be encouraged to pursue independent research. Both programs provide research and teaching opportunities, faculty mentoring, and career development for promising legal scholars and teachers aiming to launch new careers in legal academia.
Review of applications will begin immediately and will continue until the positions are filled. For more information, please contact Chris Odinet, chair of the Faculty Appointments Committee, at [email protected]. Applications for the Iowa Faculty Fellowship can be submitted here and the Hubbell VAP here.
Posted by Sarah Lawsky on September 5, 2022 at 04:32 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Does lawyering matter?
Perdue v. Kenny A. limited when judges could increase an award of attorney's fees beyond the lodestar for "superior performance and results." Chief Justice Roberts doubted the claim during argument; he posited that there was a knowable right answer in the case and that good attorney performance cannot change what that answer is. That "answer" likely is whatever the judge believes to be the right answer.
But that raises the question of whether lawyering matters at all. If the judge will do what she is inclined to do, does the quality of the lawyering matter? Case in point--Judge Cannon granted Donald Trump's motion (while acknowledging how "convoluted" this collateral-ish proceeding is) to appoint a special master and enjoined DOJ from continuing to review the seized documents for prosecution (although not for national-security) purposes. No one can objectively compare the papers by each side in this case and conclude that Trump's lawyers did a better job lawyering the case--making and supporting legal arguments with precedent, adhering to rules and procedures, not sounding like a Twitter fight, not throwing around random concepts ("fruit of the poisonous tree"), and focusing on the actual relief at hand. None of it mattered--the judge (for whatever reason) was inclined to rule a particular way and did so. Of course, she did so without any legal analysis--no explanation of how executive privilege applies against the executive branch; how equitable jurisdiction is not barred by laches; how 41(g) is the correct vehicle when executive-privilege documents still do not belong to Trump and thus are not returnable personal property; and why former presidents suffer greater "stigma" constituting irreparable injury than any other target of a search warrant. She also called her order a "temporary injunction," which is not a thing under FRCP 65--there are (non-appealable) temporary restraining orders and (appealable) preliminary injunctions; so getting the law right does not seem to be her strong suit. Of course, Cannon did a better job than Trump's lawyers--making something coherent (if wrong) of the nonsense they submitted.
The injunction is immediately appealable, without needing mandamus. Some knowledgeable folks are wondering whether DOJ will bother appealing or whether it will ride out the special-master process and deal with the few-week delay or appealing later problematic rulings from the special master.
Posted by Howard Wasserman on September 5, 2022 at 01:07 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Sunday, September 04, 2022
An Old Law Prof Learns to Code - Part 1 - Introduction
I'm stretching for the segue, but references to Markie seem to be popular. (I took the video at the left to prove to my skeptical wife that he did in fact come when I called.)
The horse segue is this: I had never gotten on a horse, except for maybe a pony ride when I five, until 2009, when I was 55. A friend here in Michigan had a horse, there was a gorgeous riding facility nearby, and it looked cool. I knew vaguely that there was a difference between English and Western riding but that was it. I knew nothing about dressage versus hunter-jumper versus eventing versus equitation versus Western Pleasure versus barrel racing. So I asked somebody "what discipline I should learn?" The response was to learn English because it was easier to go to Western if one didn't like it than the other way round.
If you know anything about computer coding, I apologize for the ensuing naïveté. You are entitled to react "duh, of course that is how it works." But, as with riding, I knew there was C++ and Python and Java (which I didn't know had no relation to JavaScript) but I had no idea what that meant. As I mentioned before, my ventures in the guts of coding (since a couple days of BASIC in high school) were pretty much limited to inserting a hyperlink into a blog comment for the purpose of shameless self-promotion of articles I had posted on SSRN. I certainly had no experience with anything that looked like this (see below the break for some more on this):
//Fahrenheit Celsius Conversion//
#include <stdio.h>
int main(void)
{
int Fahrenheit, Celsius;
printf("Enter a Fahrenheit temperature as an integer:");
scanf("%d", &Fahrenheit); Celsius = (Fahrenheit - 32)/1.8;
printf("\n %d Fahrenheit equals %d Celsius. \n\n", Fahrenheit, Celsius);
return 0;
}
When I started the exercise in June, I just wanted to see what coding involved, but I also wanted a goal. I came up with the idea of encoding the exercise I use in Business Entity Fundamentals to teach income statements and balance sheets to law students and then somehow to deliver it to them. It's not pretty, but I created something you can see here.
More importantly, I had a number of "aha" moments about similarities both in (1) the logic of coding and lawyering, something I've written about extensively, and (2) the practice of each skill. But I don't want to bury that lede, so wait for "Part 2 - Aha Moments."
Continue reading "An Old Law Prof Learns to Code - Part 1 - Introduction"
Posted by Jeff Lipshaw on September 4, 2022 at 08:57 AM in Lipshaw, Teaching Law, Web/Tech | Permalink | Comments (1)
Friday, September 02, 2022
CFP: Memphis Law Review: (How Much) Should We Pay Them?
The University of Memphis Law Review writes to share our call for papers for our upcoming Spring 2023 Symposium with you, your faculty, and your colleagues. This year’s Symposium is titled “(How Much) Should We Pay Them? The Shifting Legal Landscape of Collegiate Competition” and will take place on February 24, 2023. We hope that you will share this call for papers, which can be found here, with your law school’s faculty.
Continue reading "CFP: Memphis Law Review: (How Much) Should We Pay Them?"
Posted by Howard Wasserman on September 2, 2022 at 05:17 PM in Teaching Law | Permalink | Comments (0)
Legal Podcasts
As you get ready for the long weekend, here are some podcast recommendations if you're interested.
My favorite legal or constitutional podcast (which I often have on in the car when I commute) is Amarica's Constitution. It's useful to listen to Akhil Amar's views (either on current events or issues raised in his books and articles), but another terrific feature is the dialogue that he has with his co-host (or host) Andy Lipka. A podcast needs more than one voice to work well, and in this case the two voices complement each other really well. And they do one every week! How they manage to find the time is beyond me.
Another podcast that I like is Divided Argument with Will Baude and Dan Epps. There is more of a Supreme Court focus to this one, but again you have two voices rather than one, and the two voices offer a healthy mix of agreement and disagreement banter. They are not doing a new one every week to be sure, but when they record the quality of the discussion is always really high.
Finally, the podcasts produced by the National Constitution Center are also excellent. (Disclaimer--I've been on a couple of them).
I wish I had the time to listen to more podcasts, as I know there are many others that are great. But my commute is only 75 minutes long.
Posted by Gerard Magliocca on September 2, 2022 at 02:32 PM | Permalink | Comments (0)
Markie
One of the things I committed to early on in my blogging career was never to engage in online dialogue with someone whose identity I didn't know. Hence, I never get involved in debates in the comments with anonymous posters. Sorry. Nevertheless, a commenter to the last post wanted to know more about Markie, and I'm a complete sucker for that. It's like asking me to show you pictures of my grandkids.
Markie, officially registered as Mark of Mine, is a 22 year old half-Arabian, half-Hackney gelding who stands roughly 15.3 hands. He resides at Torch Valley Farm in Ellsworth, Antrim County, Michigan, where he is one of the very few Democrats but is on good terms with everyone, including the poor county clerk whose election night coding error on a Dominion voting machine has been fodder for the conspiracy theorists. I don't have the heart to ship him back to Boston with me in the winters because he has a ten acre pasture that he shares with his good friends Drifter, Sully, and Tango. I have owned him for four years but leased him for two summers before that, when his prior owner gave him to me because she was moving away and she knew I would spoil him rotten.
He and I have ridden together in a couple dressage schooling shows over the years. This video is from Cedar Creek Crossings in Kingsley, Michigan last July. Ignore the rider who should have known better than to get in Markie's way and admire the horse instead.
Posted by Jeff Lipshaw on September 2, 2022 at 12:31 PM | Permalink | Comments (0)
Passages
Earlier this year, I signed a phase-out agreement with Suffolk University, probably two years earlier than I had originally planned. You give up your tenure and agree to teach half-time for up to three years (at your option) and there's a small (nay, insignificant) financial incentive. You have to take the deal before the end of the year in which you turn 70, which for me is still two years away. But I think COVID and Markie (see left) pushed me to pull the cord sooner. On July 1, 2022, I ended fifteen years of tenure-track and tenure (begun when I was 53), the longest I ever kept one job.
My relationship with PrawfsBlawg spans more than my academic career. I started as a frequent commenter back in 2005 or so, while I was still the GC of a chemical company. Dan Markel invited me to guest blog in the summer of 2006, just before I started a visiting gig at post-Katrina Tulane. The "raw" in Prawfs still lingers in the annual hiring and law review submission posts, but the raw profs I met in 2006 (particularly at the Law & Society meeting in Baltimore) are mostly now well-established mid-career or senior scholars and teachers. Some are even deans. Since I was already medium well done when I started this, I'm now well overcooked. But I've succumbed to the self-indulgence of semi-biographical work along the way, like how to get hired on tenure track when you've been out of law school for twenty-six years or reflecting on law scholarship and teaching having gotten tenure at age 59. Why stop now?
This is the first summer since 2008 (I think) that I've not committed myself to publishing a piece by getting a summer research stipend. Over the last several years, I have written a lot about computation and lawyering. That included positing a robot lawyer that I named after Judge Amalya Kearse, predicting the persistence of "dumb" contracts, and comparing human and computer decision-making. It involved digging deep into the differences between, on one hand, the discrete and binary and, on the other, the continuous and analog. But my actual coding experience was limited to the Basic we spent learning in my high school pre-calculus class in 1971, some Boolean stuff on an Excel spreadsheet,
and knowing how to click "HTML" in the upper right corner of TypePad to code a block quote that looks like this.
Hence, my summer project was to learn enough computer coding to make something of practical use. I started with "Hello, World" exercises in C, then Python, then Javascript and HTML (all in my Visual Studio Code text editor). By the end of August, I'd created two online interactive exercises to teach accounting to my business law students and a self-executing practice exam review for first-year contracts.
So stay tuned if you like. I am going to post a little bit this September about being in the September of one's career and about computer coding and lawyering.
Posted by Jeff Lipshaw on September 2, 2022 at 08:01 AM in Blogging, Lipshaw, Odd World, Teaching Law | Permalink | Comments (7)
Thursday, September 01, 2022
Religiously Affiliated Law Schools conference . . . coming up!
After a little bit of a hiatus, the conference of the Religiously Affiliated Law Schools is coming up, and is this year being hosted by Prof. Sam Levine and his team at Touro. I hope to see MOJ bloggers and readers there! Here's the conference info. The theme is, well, broad: "The Past, Present, and Future of Religiously Affiliated Law Schools". Come join us!
Here is the program:
Conference Program
Thursday, September 15
- 9:00 - 9:30 am - Breakfast and Welcome
Elena B. Langan, Dean and Professor of Law, Touro Law Center
Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer - 9:30 - 10:30 am - Religion in the Intellectual Life of the Law School
Jeffrey A. Brauch, Professor, Executive Director, Center for Global Justice, Regent University School of Law --- Moderator
Rodger Citron, Associate Dean for Research and Scholarship and Professor of Law, Touro Law Center
Brad J. Lingo, Dean, Regent University School of Law
Judith A. McMorrow, Professor of Law, Boston College Law School - 10:30 - 10:40 am - Break
- 10:40 - 11:40 am -- Religion and Faculty Hiring
Deseriee Kennedy, Professor of Law, Touro Law Center -- Moderator
John M. Breen, Georgia Reithal Professor of Law, Loyola University Chicago
Michael A. Helfand, Brenden Mann Foundation Chair in Law and Religion and Co-Director, Nootbaar Institute for Law, Religion and Ethics, Pepperdine Caruso School of Law
Lucia A. Silecchia, Professor of Law and Associate Dean for Faculty Research,
Catholic University of America, Columbus School of Law - 11:40 - 11:50 am - Break
- 11:50 am - 12:50 pm - Religious Thought in Criminal Law Scholarship and Advocacy
Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
Melina A. Healey, Director of Clinical Programs and Assistant Clinical Professor, Touro Law Center
Marah Stith McLeod, Associate Professor of Law, Notre Dame Law School
Honorable Richard J. Sullivan, United States Circuit Court Judge for the Second Circuit - 12:50 - 2:30 pm - Lunch/Tour of Central Islip State Hospital Cemetery
- 2:30 - 3:40 pm - Past, Present, and Future of Religiously Affiliated Law Schools (I)
Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
Marvin Krislov, President, Pace University
Tim Perrin, Senior Vice President for Strategic Implementation, Pepperdine University
D. Gordon Smith, Dean, Ira A. Fulton Chair and Professor of Law, BYU Law School - 3:40 - 3:50 pm - Break
- 3:50 - 5:00 pm - Past, Present, and Future of Religiously Affiliated Law Schools (II)
Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
Fayneese S. Miller, President, Hamline University
Rod Smolla, President, Vermont Law and Graduate School
Michael Waterstone, Fritz B. Burns Dean, Loyola Law School, Senior Vice President, Loyola Marymount University, Professor of Law - 5:00 pm - Tour and Reception, Judaica Room, Gould Law Library
- 6:00 pm - Dinner
Friday, September 16
- 9:00 - 9:30 am - Breakfast
- 9:30 - 10:30 am Religion and the Practice of Law (I)
Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
Jeanne Bishop, Assistant Public Defender at Cook County Public Defender's Office
Allen Fagin, Former Chairman, Proskauer Rose, LLP; Board Member & Senior Advisor, Validity Finance
Joel A. Nichols, Interim Dean and Mengler Chair in Law, Univ. of St. Thomas (MN) - 10:30 - 10:45 am - Break
- 10:45 - 11:45 am - Religion and the Practice of Law (II)
Tiffany C. Graham, Associate Dean for Diversity and Inclusion and Associate Professor of Law, Touro Law Center -- Moderator
Honorable Joseph F. Bianco, United States Circuit Court Judge for the Second Circuit
Jordi Goodman, Visiting Clinical Assistant Professor, BU/MIT Technology Law Clinic,
Boston University School of Law
Randy Lee, Professor of Law, Widener Law Commonwealth - 12:00 - 1:00 pm - Lunch and Keynote Address
Russell G. Pearce, Edward & Marilyn Bellet Chair in Legal Ethics, Morality, and Religion
Fordham University School of Law - 1:00 - 2:15 pm - Religious Liberty Advocacy
John Linarelli, Associate Dean for Academic Affairs and Professor of Law, Touro Law Center -- Moderator
Nathan J. Diament, Executive Director, Orthodox Union Advocacy Center
Josh McDaniel, Visiting Assistant Clinical Professor of Law, Director, Religious Freedom Clinic, Harvard Law School
John Meiser, Supervising Attorney, Religious Liberty Clinic, Notre Dame Law School
Lori Windham, Senior Counsel, Becket - 2:15 - 2:30 pm - Closing Remarks
Elena B. Langan, Dean and Professor of Law, Touro Law Center
Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer
Posted by Rick Garnett on September 1, 2022 at 01:48 PM in Rick Garnett | Permalink | Comments (2)
Thoughts on the Trump special master suit (Updated)
A couple quick thoughts on Donald Trump's attempt to appoint a special master to do something (I do not believe Trump's attorneys understand what a special master can do). A hearing on the motion is scheduled for later today.
• DOJ wanted to argue that Trump cannot make an FRCrP 41(g) motion for return of property because the government documents taken under the warrant do not belong to him (even if the search was unlawful). Trump replied that he has standing to contest the search (which he obviously does) but said nothing about a 41(g) motion. The problem is DOJ using "standing"--with its constitutional implications--to describe it. This is another example of the term confusing things. Everyone uses it as a synonym for "he cannot prevail on this issue under this law because he has no affected legal rights," but in a way that unnecessarily draws Article III into what should be a discussion of substantive merits or procedural rules.
• This thing is a procedural mess. Trump filed a new civil action that was neither a pleading nor motion, arguably in the wrong division of the SDFla, and without affecting service. Judge Aileen Cannon issued a minute order asking Trump to clarify what the hell this thing is (I warned my students to never do anything to be on the receiving end of such an order, although I doubt Trump's lawyers) care; he supplemented the papers, although barely and not in a way that offered a meritorious substantive argument or complied with procedural rules. Judge Cannon then indicated a preliminary inclination to grant the request and ordered expedited briefing. That brings us to today. By the FRCP, none of this should have happened. Trump initiated a new civil proceeding without filing a complaint, moved the court for relief without establishing jurisdiction (essentially asking the court to superintend the magistrate in a separate existing proceeding), and never served or obtained a waiver. But the judge did not care and is plowing ahead. In this Serious Trouble episode (around 20:4o), Ken White says "Sometimes, federal judges just get kind of fed-up with procedural niceties and just want to cut to the chase." Descriptively true, but it kind of undermines everything some of us do for a living. (I suppose the response to a student who tried to raise this point would be that judges are more likely to do this in a case involving the former President of the United States facing a federal indictment, but you are not likely to represent the former President of the United States, so you need to follow the rules).
• We begin discussing the jurisdiction of the Courts of Appeals in Fed Courts next Tuesday, which means we should begin discussing mandamus the following week. Which is good, because if Cannot gives Trump anything, the government is going to mandamus her, probably successfully. And the fact that the judge flouted procedure as she did should factor into the court of appeals reasoning on whether to grant the writ.
Updates: Reports on the hearing suggest she is inclined to appoint a special master to review all documents, along with Trump's team but not the government, including for executive privilege (which should not be in play here). She also seems inclined to enjoin DOJ from continuing to review the documents for purposes of a criminal investigation (while allowing ODNI review to continue). In other words, she is going to enjoin DOJ from investigating a crime in a case in which no complaint has been filed. If these reports prove true, it may suggest this is not a federal judge who wants to cut to the chase at the expense of procedural niceties but a judge who does not know what she is doing.
As to # 3, perhaps knowing how this is going, the government asked the judge to issue a formal injunction, which is immediately reviewable as of right. This avoids government having to satisfy the heightened requirements for mandamus (although I imagine they are satisfied here).
Posted by Howard Wasserman on September 1, 2022 at 08:59 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, August 25, 2022
James Phillips on McCulloch and Gettysburg
Prof. James Phillips (Chapman) passed this on (below), and I'm happy to share it, with his permission:
I'm teaching constitutional law this year for the first time. I was wondering if PrawfsBlawg readers know whether anyone has ever pointed out the similarity between Chief Justice Marshall's description of our constitutional system of government in McCulloch v. Maryland and Lincoln's Gettysburg Address?
McCulloch v. Maryland: “The government of the Union, then ..., is emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”
Gettysburg Address: "...and that government of the people, by the people, for the people, shall not perish from the earth."
The ordering—of, by, for—is even the same. No doubt Lincoln would have been very familiar with McCulloch as a lawyer. In fact, perhaps there are bigger implications than just rhetoric. Maybe Lincoln drew heavily upon Marshall's ideas about the nature of the relationship between the government and the people as well as state sovereignty, in McCulloch and perhaps other cases or writings of Marshall.Just curious if others have noticed this or know of any other connection between McCulloch (or more broadly Marshall) and Lincoln?
UPDATE: Akhil Amar has kindly brought to our attention that he notes this connection between Marshall’s language in McCulloch and Lincoln on pages 533-534 of his most recent book: The Words That Made Us: America's Constitutional Conversation, 1760-1840 (2021). Amar quotes the same passage noted in the post from Marshall, and then writes:
“Of the people, from the people, by the people, for the people. These were words and ideas that would resonate in American history, as young Americans like Daniel Webster (one of several oral advocates who argued the bank’s case in McCulloch) and even younger Americans like Abraham Lincoln (still a boy in 1819) would later carry the Washington-Hamilton-Marshall flag deeper into the century.”
Posted by Rick Garnett on August 25, 2022 at 01:23 PM in Rick Garnett | Permalink | Comments (8)
Law School Hiring Spreadsheet and Clearinghouse for Questions, 2022-2023
I. The Spreadsheet
In the spreadsheet, you can enter information regarding whether you have received
(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);
(b) a callback from a law school and/or accepted it; or
(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Law professors may also choose to provide information that is relevant to the entry-level market.
Anyone can edit the spreadsheet; I will not be editing it or otherwise monitoring it. It is available here:
II. The Comment Thread
In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.
Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.
You may want to take a look at the many questions and answers in the threads from 2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-2019, 2019-2020, 2020-2021, 2021-2022. In general, there's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.
Posted by Sarah Lawsky on August 25, 2022 at 08:36 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (172)
Wednesday, August 24, 2022
Call for Nominations: AALS Administrative Law Section Emerging Scholar Award
via my wonderful colleague Mila Sohoni:
In January, the AALS Administrative Law Section recognized Benjamin Eidelson and Blake Emerson as co-recipients of its second annual Emerging Scholar Award. Nominations for this year’s award are due on September 30th. Self-nominations are welcome! Full-time faculty members without tenure at the time of the work’s publication, including those with fellowships, visiting assistant professorships, or similar positions, are eligible. To nominate someone, please send an anonymized version of their work to me, Mila Sohoni, at [email protected] by September 30, 2022. (Any reasonable effort to strip identifying information is fine.) Any substantial scholarly work — whether a law review article, monograph, or chapter — published in final form between September 1, 2021, and August 31, 2022, is eligible. The work may be on any topic related to administrative law, although the award selection committee may favor works with greater general applicability. We will present the award at the AALS Annual Meeting in January.
Posted by Orly Lobel on August 24, 2022 at 04:59 PM | Permalink | Comments (0)
Saturday, August 20, 2022
Judicial departmentalism in action
Idaho wants to prevent trans people from changing their gender markers on state documents. Here is how it has gone:
• Pre-2018: State regulations prevent trans people from changing markers.
• 2018: Federal court declares reg violates equal protection
• 2020: State enacts legislation codifying regulation
• 2021: Federal court declares legislation violates equal protection
• 2022: Court orders state to pay $300,000 in attorney's fees.
Folks are giving Idaho a hard time, but this is how it should work. The state pursued its constitutional vision, even contrary to judicial precedent. The court's competing view prevailed in litigation and the state adheres to the adverse judgment. And the court awarded the state to pay attorney's fees to the prevailing plaintiffs. That the court's view will prevail in litigation and that the court can award fees can/should place a drag on states pursuing their departmentalist preferences--states know they will lose and lose money.
It is unwieldy. But it is how the system should work.
Posted by Howard Wasserman on August 20, 2022 at 05:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, August 18, 2022
Number of FAR Forms in First Distribution Over Time - 2022
The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.
2009: 637; 2010: 662; 2011: 592; 2012: 588; 2013: 592; 2014: 492; 2015: 410; 2016: 382; 2017: 403; 2018: 344; 2019: 334; 2020: 297; 2021: 328; 2022: 272.
(All information obtained from various blog posts, blog comments, Tweets, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)
Posted by Sarah Lawsky on August 18, 2022 at 10:12 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (10)
Bad lawsuits from the left
Florida Governor Ron DeSantis suspended Hillsborough County (Fla--includes Tampa) state's attorney Andrew Warren from office, pursuant to his constitutional power to suspend any state officer not subject to impeachment. The basis for the removal is Warren's intention not to prosecute for receiving or providing abortions and gender-affirming healthcare, which DeSantis described as a refusal to enforce state law. Warren filed suit in federal court; he alleges the suspension violates the First Amendment (because Warren has merely spoken about exercising his discretion not to prosecute, but has not been presented with or done anything with any live cases) and the Florida Constitution (because DeSantis did not establish proper grounds for suspension).
This is a bad lawsuit. Like many lawsuits from the right, it is partly for show, to look strong in standing up to the other side. Warren gave a press conference talking about how DeSantis abused his power and acted undemocratically in removing a twice-elected official who received more votes in Hillsborough County than DeSantis had. That rhetoric does not differ from Republican cries during Trump's impeachments. It seems to me there are two problems with the suit, at least in federal court.
The First Amendment claim fails under Garcetti and the patronage cases. Accepting that DeSantis retaliated for Warren's expression and nothing he did in office, Warren is a policymaking official and he spoke as part of his formal job duties; the First Amendment does not protect such speech from employment consequences. DeSantis is not Warren's "boss" and that Warren owes his job to the county voters and not to DeSantis or anyone under DeSantis' control. But DeSantis enjoys a (limited) supervisory role over Warren. Job-related speech--a promise as to how he intends to perform his official functions--is not protected as a basis for suspension if it constitutes misfeasance, neglect of duty, or incompetence. If a policy-level employee can be fired for cause for job-related speech without First Amendment recourse, a person can be suspended for job-related speech that provides a legal basis for removal without First Amendment recourse.
Warren's real argument is that his speech cannot constitute misfeasance, neglect, or incompetence. That is a question of state law that a federal court will not (and arguably should not) touch. This is a paradigmatic Pullman abstention case--if there were a good First Amendment claim, it can be mooted by an open-and-unresolved state law issue of whether Warren's conduct met the state-constitutional standard* for removal, which a state court should resolve in the first instance. At worst, I would expect the district court to certify the state issue to the Florida Supreme Court. Pullman abstention and certification are disfavored in First Amendment cases because of the chilling effect in the litigation delay, but Warren's First Amendment claim is weak and the state issues are uniquely central and dispositive. Of course, Warren does not want to be in state court, especially not the Florida Supreme Court. But that is why we have these doctrines.
[*] Federal courts do not abstain from federal constitutional issues in deference to a parallel state constitutional issue. They do abstain in deference to a unique state constitutional issue.
I do not know much about Warren, but he appears to have political aspirations and is willing to take on the current state power. Which is great. But political fights are no more proper in federal court when undertaken by a politician I agree with for a cause I support.
Update: A reader offers another reason the Court cannot hear this case--a plaintiff cannot bring a § 1983 or Ex parte Young claim for a violation of state law and a federal court cannot order state officials to follow state law.
Posted by Howard Wasserman on August 18, 2022 at 09:10 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Wednesday, August 17, 2022
We’re All Textualists Now… When It Suits Us
Justice Kagan is responsible for two contradictory and fascinating maxims. In 2015, she famously said that “We’re all textualists now.” And then, this summer, she pointedly complained that “The current Court is textualist only when being so suits it.” To my mind, Kagan’s newer statement is descriptively accurate but normatively misdirected. Rather than lamenting the Supreme Court’s suppressed interpretive discretion, she and the other justices should embrace it.
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Posted by Richard M. Re on August 17, 2022 at 01:13 PM | Permalink | Comments (15)
Tuesday, August 16, 2022
Law School Entry-Level Hiring Posting Schedule 2022-2023
The usual posts will occur this year regarding entry-level law school hiring.
On August 18, the first distribution of FAR forms will be released to schools. If/when anyone publicly posts the number of FAR forms, I will post Number of FAR Forms in First Distribution Over Time (last year's FAR Forms Over Time post).
Around August 25, I will post Law School Hiring Spreadsheet and Clearinghouse for Questions, 2022-2023 (last year's Hiring Spreadsheet and Clearinghouse Post).
Around October 24, I will post the VAPs and Fellowship Open Thread (last year's VAPs and Fellowship Open Thread).
Posted by Sarah Lawsky on August 16, 2022 at 03:55 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (2)
Justice Robert Jackson on Political Parties
I came across this gem in his concurrence in American Comm. Ass'n v. Douds
Parties, whether in office or out are often irresponsible in their use and abuse of freedoms of speech and press. They all make scapegoats of unpopular persons or classes and make promises of dubious sincerity or feasibility in order to win votes. All parties, when in opposition, strive to discredit and embarrass the Government of the day by spreading exaggerations and untruths and by inciting prejudiced or unreasoning discontent, not even hesitating to injure the Nation's prestige among the family of nations.
Posted by Gerard Magliocca on August 16, 2022 at 09:05 AM | Permalink | Comments (0)
Monday, August 15, 2022
Presidents and Prosecutorial Discretion
News that the Justice Department had obtained a search warrant and seized several boxes of materials from Mar-a-Lago, the residence of former President Donald Trump, shocked the nation last week. Details about the reason for the search and what was found have slowly trickled out, thanks in part to DOJ’s motion to unseal the warrant, various reports from news outlets, and several public statements from Trump himself. Although the factual basis for the search is not entirely known, commentary about the search and its implications have dominated the media landscape.
Much of the commentary surrounding the search has focused on whether the search was justified. The justification commentary hasn’t been confined to whether the search was legally justified—that is, whether there was probable cause to support the search warrant—but rather whether the search can meet some heightened standard given that the target of the search was a former president.
At it’s core, those arguing for heightened scrutiny (rather than the ordinary legal standard for when a search warrant is justified) seem to be making a political argument—namely, that because the current resident of the White House ran against Trump in 2020 and because Trump might run for president again in 2024, any search warrant needed to be based on more than just probable cause to believe that evidence of a crime would be found in Mar-a-Lago. Implicit in this argument is the idea the ordinary legal standards do not provide enough protection against politically motivated prosecutions, and so the legitimacy of any criminal investigation or prosecution of President Trump must be judged by a different standard.
As someone who studies criminal justice and politics, I think that there are analytical shortcomings and unappreciated implications that flow from this heightened scrutiny argument, and I want to lay them out here in the hope that they can help shape the discussion about the Mar-a-Lago search within the legal community.
First, it is important to note that the “heightened scrutiny” argument is often made without much information about what such a standard would look like. Qualitative standards, including probable cause, are notoriously difficult to articulate with any specificity. But in order for the argument about heightened scrutiny to make any sense, it needs to provide some sort of guidance; otherwise it is useless as an actual yardstick against which to assess DOJ’s actions. A call for a heightened standard without actually articulating such a standard operates only as a way to criticize DOJ (“this wasn’t enough”) rather than as a standard that DOJ officials could attempt to meet.
How could we go about articulating a “heightened scrutiny” standard? For one thing, we should be clear about whether this is a question about the amount of evidence that DOJ had to support the warrant application, whether this is a question about the type of crime that Trump is suspected of committing, whether it is some combination of the two, or whether the standard is about some extra-legal consideration.
Continue reading "Presidents and Prosecutorial Discretion"
Posted by Carissa Byrne Hessick on August 15, 2022 at 10:19 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink | Comments (5)
Section Three of the Fourteenth Amendment On Trial
A bench trial begins today in New Mexico in the Section 3 case against Couy Griffin, a County Commissioner in Otero County. This is a quo warranto action that seeks Griffin's removal from office for his participation in Jan. 6th. Griffin was convicted earlier this year of a criminal misdemeanor for his actions at the Capitol.
The trial is scheduled to last two days. When there is a decision, I will pass the news along.
Posted by Gerard Magliocca on August 15, 2022 at 07:55 AM | Permalink | Comments (0)
Sunday, August 14, 2022
CFP: Financial Restructuring Roundtable
The Financial Restructuring Roundtable (formerly the West Coast Bankruptcy Roundtable) will be held in person on April 6, 2023 in New York City. Spearheaded by Tony Casey, Samir Parikh, Robert Rasmussen, and Michael Simkovic, this invitation-only event brings together practitioners, jurists, scholars, and finance industry professionals to discuss important financial restructuring and business law issues.
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Posted by Howard Wasserman on August 14, 2022 at 10:00 AM in Teaching Law | Permalink | Comments (0)
Friday, August 12, 2022
Breaking The Law to Save the Law
I came across this passage from Dicey that explains this issue quite well:
There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken. The course which the government must then take is clear. The ministry must break the law and trust for protection to an act of indemnity. A statute of this kind is . . . the last and supreme exercise of parliamentary sovereignty. It legalizes illegality; it affords the practical solution of the problem which perplexed the statesmanship of the sixteenth and seventeenth centuries how to combine the maintenance of law and the authority of the houses of Parliament with the free exercise of that kind of discretionary power or prerogative which, under some shape or other, must at critical junctures be wielded by the executive government of every civilized country.
Posted by Gerard Magliocca on August 12, 2022 at 07:46 PM | Permalink | Comments (0)
Hiring at My Law School
I am on the Recruitment Committee at the Indiana University Robert H. McKinney School of Law. This year we are looking to hire two entry-level or junior laterals on the tenure-track and one legal writing/analysis faculty member. Please contact me if you might be interested.
Posted by Gerard Magliocca on August 12, 2022 at 02:19 PM | Permalink | Comments (0)
Thursday, August 11, 2022
Section Three Update
Today the 11th Circuit heard argument in Representative Taylor-Greene's federal suit to enjoin the state eligibility proceeding against her candidacy. The majority of the panel seemed disinclined to reach the merits unless the Georgia Supreme Court rules that Greene is, in fact, ineligible. (The state ALJ's determination that Greene is not disqualified by Section Three was upheld last month by a state Superior Court, and an appeal is now pending in the GA Supreme Court.) On the merits, the panel focused entirely on whether the Qualifications Clause (Article One, Section Five) bars a state eligibility inquiry into a congressional candidate. There was an entertaining hypothetical about what would happen if Vladimir Putin decided to run for Congress in Georgia, but aside from that I'm not sure the discussion of the merits added much to what's been said on that before.
I'll have more to say about Section Three next week. Things are ramping up again.
NOTE: I was a witness for the plaintiffs in the Taylor-Greene state hearing.
Posted by Gerard Magliocca on August 11, 2022 at 08:38 PM | Permalink | Comments (0)
Wednesday, August 10, 2022
Return of the Junior Faculty Federal Courts Workshop
The University of Florida Levin College of Law will host the Twelfth Annual Junior Faculty Federal Courts Workshop on December 1-2, 2022. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. After a long COVID-related hiatus, we’re excited to bring together the Federal Courts scholarly community in person in Gainesville, Florida.
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Posted by Howard Wasserman on August 10, 2022 at 06:57 PM in Teaching Law | Permalink | Comments (1)
What is so bad about Saul Goodman and other questions
Two questions about the penultimate Better Call Saul, with spoilers, after the jump.
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Posted by Howard Wasserman on August 10, 2022 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (2)
Audiobook of "Washington's Heir"
I'm pleased to announce that my Bushrod Washington biography will be available as an audiobook starting next week. I'n not the narrator, but that may be a plus for any buyers who are on the fence.
Posted by Gerard Magliocca on August 10, 2022 at 08:07 AM | Permalink | Comments (0)
Tuesday, August 09, 2022
Assiging pre-1L summer reading
Have law schools begun assigning law-related books to incoming 1Ls--for example, books on how law shapes society, lawyer mindfulness, and other topics that frame law, legal practice, and law school in some broader framework. Is your school assigning something? If so, what book(s) and what are you doing with them (discussion during orientation, integrating into 1L courses, etc.)?
Leave answers in comments or email me. (Irrelevant comments will be deleted--please don't fuck up a genuine question about legal education).
Posted by Howard Wasserman on August 9, 2022 at 03:20 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)