Friday, March 20, 2020

UPDATED: Call for Papers - Northwestern University Law Review Empirical Legal Scholarship Issue

Given the COVID-19 pandemic, the Northwestern University Law Review has extended the exclusive submissions deadline for the Empirical Issue. The deadline for all empirical submissions is now May 1, 2020.

The submission process and guidelines described in the original Call for Papers remain the same. The Northwestern University Law Review considers empirical submissions on an exclusive basis only. To be considered for the Empirical Issue, pull your piece from the Scholastica pool and from consideration at all other schools, and submit the manuscript, your CV, and data/data paths via email at [email protected]. In the past it has taken approximately 3–4 weeks to render a publication decision. Additionally, authors who submit to Northwestern University Law Review’s empirical submissions track agree to accept a binding publication offer, should one be extended. Contact the Law Review via email ([email protected]) with any questions.

Posted by Sarah Lawsky on March 20, 2020 at 09:15 AM in Law Review Review | Permalink | Comments (0)

Thursday, March 19, 2020

Yay on Missing Out (YOMO)

For the type As reading this blog, which as law professors, I am assuming a majority, the current crisis is a real lesson about:

a) how little we can plan and control the universe.

b) how our routines and goals must be constantly reconfigured

c) how so many things we regularly value - time, travel, face-to-face learning, teaching, conferencing - might not be available for some time now.

d) how we might have been doing too much and too little at the same time.

Those who know me know that I love to travel, I over commit regularly to give talks all around, I love everything about campus life -- the rhythms, the vibrant students, the quirky colleagues, the visitors, the small and large events, the free food...and in my social life, I am a bit wacky about entertaining: our Hanukah party this year at our house included 200 hundred people, filling every meter in every space of our house. So naturally I am prone to FOMO - the Fear of Missing Out. But what if we adopted a YOMO mentality; less is more mindset; a say no stance, that so many of us academics [and even more so women academics] have trouble doing. For weeks on weeks I couldn't  make the decision to cancel my March talks (that were supposed to be happening as I write this)  in Singapore and Japan. Once I made the decision, I felt such a huge relief. Then I couldn't decide about cancelling my Chicago, Ohio, and Bay Area talks in April. I wanted to cancel but felt bad about the faculties that had relied on me in their schedules. The decision was made for me before I decided myself - the faculties cancelled all their in person events. I do know that I would have cancelled anyway with the new developments and escalation of the crisis in the past few weeks, but I question why I didn't cancel sooner rather than walk around with the burden and anxiety about not wanting to cancel something I had committed to. 

Can this crisis teach us to embrace YOMO ? Can we post-pandemic continue the lessons of doing less and focusing on what is most important to us. Travelling less is definitely more environmentally responsible. Entertaining less, well that one I will have to wrap my mind around because I do love hosting a fun potluck party! 



Posted by Orly Lobel on March 19, 2020 at 05:38 PM | Permalink | Comments (2)

Disaster Humor (a new item on my research agenda for all the time I spend reading/sharing Coronavirus jokes)

As noted in my previous post on quarantine hacks, I am finding comic relief with the many great videos, memes, jokes, rants, and drawings related to the outbreak. I've long appreciated my friend Pete McGraw's research on comedy and the role of humor in marketing,  coping, social coordination, and well-being. This article with his collaborators discusses the way humor helped victims of Hurricane Sandy, here's a glimpse:

  We examine how humorous responses to a tragedy change over time by measuring reactions to jokes about Hurricane Sandy. Inconsistent with the belief that the passage of time monotonically increases humor, but consistent with the benign violation theory of humor, a longitudinal study reveals that humorous responses to Sandy’s destruction rose, peaked, and eventually fell over the course of one hundred days. Time creates a comedic sweet spot that occurs when the psychological distance from a tragedy is large enough to buffer people from threat (creating a benign violation), but not so large that the event becomes a purely benign, non-threatening situation. The finding can help psychologists understand how people cope and provide clues to what makes things funny and when they will be funny.

With Covid-19, the disaster's timeline is much less defined than events like a hurricane. So the lifespan of the jokes will certainly be different. Also the global nature of the crisis and its multifaceted effects: health, economics, social, labor, education, political, international relations etc means the jokes and memes are highly varied. 

In a next post (seriously, this is becoming a research project I think) I will be cataloging and identifying types of humor emerging in these past days. Would love your help in collecting humor - anything you think is kinda funny - send my way to the special email account I collected for the project [email protected]

here is one for you - in the historical perspective / learning from our past category:

Image result for dinosaur washing hands meme





Posted by Orly Lobel on March 19, 2020 at 04:59 PM | Permalink | Comments (4)

Coronavirus, Intellectual Property & Patent for a Cure or Vaccine

Israel just announced that for the first time since it passed its Patent Act, the attorney general will use its emergency powers to allow unlicensed use of a potential drug that helps coronavirus patients recover. There is a long standing debate in the scholarship and in policy about how patents incentivize and/or hinder innovation, especially in the context of new drugs that are globally crucial. Some great insights by Amy Kapczynski on the open science of influenza vaccine - a network of global scientists operating with very little intellectual property - and Peter Yu on virology and drug patenting, tracing various outbreaks, HIV SARS etc are good reads. Madhavi Sunder's book about IP and the common good is a wonderful and thoughtful analysis of the drug industry and other creative and inventive fields and global justice - I teach her chapter on the HIV question and India/Brazil regularly in my corporate innovation course.

We need to race to develop these medical lifesaving drugs and I believe that grant money ex ante is the better path than ex post IP. 

Would love to hear thoughts about how to best incentivize collaboration and knowledge sharing, and eventually, open use of a cure and a vaccine.


Posted by Orly Lobel on March 19, 2020 at 04:33 PM | Permalink | Comments (5)

Tuesday, March 17, 2020

Quarantine Hacks

Working at home, two academics plus kids who are remote learning/teaching, can be challenging. So far I've been loving it. My breaks from writing are filled with family cooking and eating, the house is vibrating with music, piano, violin, the buzz of group chats and zoom conferencing from every room. But it's only been a few days...and really only the first day of remote school for the kids here. So how do we sustain this for a indeterminate time? I've been enjoying reading other people's quarantine diaries and thought I'd share a few, semi-random hacks of my own: 

  1. Organizing the Work Spaces. In regular times we each work in multiple corners of the house -- moving from bedrooms to kitchen to living room with our five laptops. In times of Corona, I find it better to have each person stick with their designated desk for work and the rest of the house can be turned into all sorts of stations. For example, in the living room, we set up a folding table to be entirely devoted to art. The dining table has become the game and puzzle station. 
  2. Food and Meals. This strange time a great reminder of how much we've been relying on eating outside and this is a great time to test out new recipes and go into the very back of the pantry where the D-listers reside (talking to you canned beans). What I have found nice is to vary the set up of the dining tables - if possible, eating outside, picnic-ing, but also indoor, and even at the same table, bringing out the fancier plates and glasses for example to give the feeling that we've gone out to a different restaurant chez-nous.
  3. Sticking to a Schedule. I posted about the NaCoWriMo group -- yesterday was our first day and at the beginning of the day we had to each announce what project we were working on, and end of the day, report back on progress. I suggest that for our own purposes, we break it down much further. For me, even small 20 minute breakdowns of what I will be doing in the next hour gives me more structure and motivation.
  4. Exercise. Today our YMCA officially closed and before that all my yoga studios did so one by one over the weekend. It has also be uncharacteristically rainy in Southern California so indoor workouts are the name of the game. I've downloaded an app OpenFit that offers a two week free trial and give you access to a ton of workout styles. For me, the winner has been a 30-day challenge of a Tough Mudder program. Every day a different workout but they build on the previous day and its fun and tough! Runs and walks outdoor, with or without a dog, are so refreshing. Yesterday, I was stung by a hornet while running with my crazy Labrador and it was perhaps the most action I had all day! 
  5. Help Others who are Alone: find out about how to help people, especially elders, who are living on their own and need your help for groceries and other supplies. Buy gift cards of the businesses you love and support. As much as possible stay home.
  6. Mary Kondo it: great time to be getting rid of all the stuff we don't need and donating clothes and household items to a local organization. 
  7. Corona Humor: for some reason, apocalypse jokes, memes, videos and rants are funny and relaxing. 
  8. Send thanks to the medical professionals working extra hard and under extra stress these days.
  9. Unplug: this one is tough, since we are connected mostly online these days. but reminder that there are sites and apps like Freedom that block social media and other distracting sites for set periods when you want to unplug. 
  10. So many resources, so little time: surprisingly, we've been watching less, rather than more, tv during these days. Our days have been filled with new ideas of activities and the truth is, those are endless. Here are 150+ ideas (h/t Dalie Jimenez). Personally, I'm into rock painting. I have a booming side business of it already -- if you've ever wondered who the anonymous artist behind La Jolla Rocks is...we take custom orders too! But learn to bake, build, polish, design, code, speak another language, podcast, jump rope - all free of charge at the comfort of your own home.

Stay healthy and safe - big virtual hug to all, since physical ones have been cancelled for an indeterminate time.


Posted by Orly Lobel on March 17, 2020 at 04:57 PM | Permalink | Comments (8)

Pass/Fail This Semester

Cornell Law School has just adopted a proposal to make all grades pass/fail this semester. Under the circumstances, I think this is probably the right thing for most law schools to adopt. Granted, some law schools may not be able to do this without the approval of their university, and there may be other considerations there. But I think all of us should give this idea careful consideration in the coming weeks.

Posted by Gerard Magliocca on March 17, 2020 at 07:23 AM | Permalink | Comments (9)

Monday, March 16, 2020

The Gig Economy and Economic Downturn

The Wired has a good article on how the Corona virus exposed workers to the risks of the gig economy.

The magazine asked me to comment and here's a taste: "Companies may be reluctant to go too far in offering workers protections, given ongoing legal battles in which they insist the workers are not employees, and the risk that additional benefits become entrenched after the crisis passes. There are no legal limitations to what the companies might offer independent contractors, says Orly Lobel, a professor who studies employment law and intellectual property at the University of San Diego. Last fall, some gig economy companies offered to give a health care stipend to workers who were agitating for more benefits in California. Still, “it might be, despite the fact that there is no rational legal limit to this, that companies are attempting to look as disconnected [as possible] from their independent contractors by not offering any benefits that are associated with the employment relationship,” she says."


Posted by Orly Lobel on March 16, 2020 at 05:09 PM | Permalink | Comments (3)

A Useful Post on Nothing-to-do-with-Coronavirus

I commend this very short post by Will Baude at the excellent, wish-they-posted-more-often, please-get-rid-of-the-comma blog Summary, Judgment. It's really more of an announcement, and this is the meat of it:

In the next few weeks I’ll likely be posting about some academic projects and other things that have nothing to do with the pandemic. (Unless dealing with the disruptions becomes so overwhelming that I stop posting at all.) That doesn’t mean I’m not thinking about it all the time, just that I have to make up for not being able to see Adam or the rest of you in real life.

Will being Will, it's a smart and short post. Me being me, I'll add some over-long reflections:

There is indeed value right now in posts, articles, newspaper pieces, and so on having nothing at all to do with the virus, the politics of the virus, the lifestyle changes engendered by the virus, online teaching, and so on. There is value in posts that do have to do with the virus. But it's worth remembering that part of "the new normal" is the word "normal." Whatever the right balance is, it needs to include the parts of our life that seem to go on no matter what. It needs to include the normal and the trivial, trivial of course being a part of what normal life entails. And by this I don't mean lifestyle pieces about what it's like to be a professional living in relative comfort under conditions of social distancing. Leaving aside the First-World-Problem-ness of it, there will be no shortage of such pieces out there in the New York Times and Chronicle of Higher Ed and other lifestyle publications. I mean the straight-up normal and trivial.

Of course these things are not the most urgent or important things in the world right now. That is why they are trivial, "normal"--and reassuring. Of course one can explicitly and impliedly note in such posts that other, more important things are happening. Of course I, like everyone else, am thinking right now of my family, my community, my students, the global community, my health and that of others; changing my habits; working on learning Zoom; etc.; etc. But insofar as this blog has always had a substantial component of "just some friends" hanging out, to quote the "About" page, and writing about some of the trivia of normal life as a lawprof, I should also acknowledge that I watched Jojo Rabbit with my family the other night, that I am enjoying the opportunity to yell at my kids more often to clean up their rooms, and so on. Terrible person that I am, I am looking forward to watching the first episode of the new season of Westworld. And I will use at least some of my extra time to do things like read my stack of to-be-read pieces from SSRN, even if they are about Alex Bickel and Legal Process theory (to take an interesting recent paper) and not about Life in an Age of Something-or-Other. People should not hesitate to spend at least some time writing about these things as well, not just "even-if" but "precisely-because" they're not the most important thing in the world. 

I don't think this is at all the same thing as putting one's head in the sand. I do think there is an element of whistling past the graveyard in it. Let us remember, though, that the first definition of that phrase means "to attempt to stay cheerful in a dire situation." There are good reasons to attempt to stay cheerful in a dire situation, and whistling is a healthy thing. Let us take some instruction from one of the best movies of all time, Sullivan's Travels--written and released in the wake of the Great Depression and on the eve of the American entry into World War II--and remember that precisely at times like this, there is a role for the "motley mountebanks, the clowns, the buffoons" [practically my job title], and that sometimes "Hey Hey in the Hayloft" is just as much needed as "O Brother, Where Art Thou?" A popular meme making the rounds these days says, "just remember that your grandparents were called to war; you are being called to sit on the couch and watch Netflix." True. But the troops themselves read a lot of books when they were at war, and many treasured Robert Benchley, Zane Grey, and Detective Story Magazine along with (or more than) more serious or relevant or propagandistic fare. And at home and abroad, people valued Glenn Miller and Vera Lynn. One needs some jazz trombone from time to time amidst the more martial trumpet blasts; it's no accident and surely no disgrace that even in hard-struck Italy, people sang into the street (from their windows and balconies, to be sure) in Siena.     

I should add that I sincerely appreciate the posts my Prawfs colleagues have offered and the links and pages that others have provided elsewhere. Aside from keeping up with the news, I am certainly learning from all the helpful guides that have been offered on how to transition to online teaching and make the experience most effective. (I do want to note that, as is often the case with explanatory material, installation manuals, etc., I often find that these guides sometimes start from too high a level of knowledge and/or manage to almost-but-not-quite answer the actual questions I have. I wouldn't mind some links to guides along the order of "Step One: Turn on your computer."!) I am grateful for those posts and links! If I have a friendly cavil, and I usually do, it's that I hope we can provide information and updates while going a little gentle on titles like "In a Time of Plague" or "Age of Coronavirus." I can already picture authors of already-written pieces adding a couple of paragraphs to the introduction and changing the title to add "in the Age of..." I hope law review editors will announce a rule limiting such titles to one per issue, and that conference organizers will institute reasonable but strictly observed limits on hot topic presentations, symposia, and so on with these names. A little good information goes a long way and is tremendously appreciated, but there are collective action problems that easily lead to a glut on the market. Things are serious and will undoubtedly get more serious for quite some time, but they will do so with or without the ominous titles.   

A final point. I very much enjoyed Will's title reference to "social media distancing." As we learn how to practice social distancing, I expect we will find or have already that there is such a thing as too much information, too many updates checked too often, too much time on Facebook or that Other Social Media Site. As with anything else, the trick is to find a balance, a new normal and not a new abnormal, to be vigilant and prudent and informed without becoming unhealthily obsessive. Expect an outpouring of articles and op-eds on the subject from the usual lifestyle publications.

Best wishes to all. And now, back to telling my kids for the third time this morning to make their beds, and trying to learn how turn on my computer so I can teach online and stream Westworld.  

Posted by Paul Horwitz on March 16, 2020 at 01:20 PM | Permalink | Comments (1)

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.

Continue reading "Assessment in a Time of Cholera (Updated)"

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

Confined to Write & Law Prof NaCoWriMo

Ok - we are self-quarantining. Cancelled all my April-May international and domestic trips, including my annual women law professors writing retreat, in which we rent a house on the beach and spend three days writing side by side. My Tel-Aviv and Hebrew U talks are still on at the moment - in June...but who knows. And like most of my friends and colleagues, I've decided what our leaders have not been strong enough to decide for us: Stay the F Home. We need to race to flatten the curve and for the life of me, I can't understand how the United States has been doing so few testing. I have friends all over the country with symptoms who are told there are no tests available for them. Scary stuff. BUT as we adjust to life at home some things to be grateful for: we are digitally connected, more than ever before; as academics, we can do so much of our work remotely and have more job flexibility and security than is common these days. So silver lining is that we should use the cancelled meetings, events and travel time to catch up on writing. 

A new group has formed on facebook: look for it - Law Prof NaCoWriMo (National Corona Writing Month) has formed and you are invited to join. The idea is that we have a virtual writing retreat and commit to ourselves and one another to write every day, and to seek and give writing and research advice.

Some of my ideas for sticking with it - and would love to hear your ideas:

  1. Define the project early on.
    2. Have an alternate project in parallel for when you are stuck or sick of the primary one.
    3. Designate a space that is the writing space
    4. Unplug from social media, corona virus news updates, email and all that while writing - this is the hardest one for me - but there are apps and sites such as freedom that help do that by blocking some of your websites for a defined time
    5. Designate specific times of day to writing despite the long stretches of home dwelling.

Continue reading "Confined to Write & Law Prof NaCoWriMo"

Posted by Orly Lobel on March 15, 2020 at 04:15 PM | Permalink | Comments (1)

The Problem of Rare Catastophes

The current pandemic exemplifies a problem that is widely discussed in literature on regulation. The hardest events for policymakers to address are ones that are very rare but do enormous harm when they occur. The 2004 Indian Ocean Tsunami was an example. Why is this such a problem?

One reason is that people are unfamiliar with the problem because it has not occurred during their lifetimes. It's easy for someone like me to say, "Oh, this shares some traits with the Spanish influenza of 1918." (My grandmother, who lived to be 101, had that when she was a toddler.) The trouble is that few people today know what the 1918 Spanish flu was.

Another reason is that people overrate the ability of technology to handle these exceptional problems. In watching the coverage so far, I'm struck by the fact that the modern mind (at least here) seems unable to grasp the idea that you can be ill, have health insurance, and still be unable to get care because the hospitals are overrun. People a hundred years ago would have understood this perfectly well due to wartime situations or other epidemics.

Finally, the adage that an ounce of prevention is worth a pound of cure misfires when the disease seems so improbable in any given year. Why spend money on tests that you may not need when there are other, more immediate, problems? The trouble is that you can keep saying this until it's too late.

From now on, people will be on top of possible pandemics. And tsunamis. The next Black Swan of this sort, though, is something that happened long ago for which no action is being taken. Until it happens again.


Posted by Gerard Magliocca on March 15, 2020 at 03:55 PM | Permalink | Comments (4)

Saturday, March 14, 2020

More on Online Teaching

From Seth C. Oranburg comes more advice and strategies for law professors moving to online teaching. Here is what he writes, as a short version of his longer ssrn article which is linked below:

Law school is going online, suddenly and quickly. Are you ready? Most of us are not – but here are some suggestions that will make teaching online simpler.

First you need to understand your options. There are two main ways to go online: synchronously and asynchronously. What’s the difference and which should you pick?

Continue reading "More on Online Teaching"

Posted by Orly Lobel on March 14, 2020 at 08:20 PM | Permalink | Comments (2)

Friday, March 13, 2020

Hyperlinks as Pseudo-Authority: A Fine New Example

I wrote in my post yesterday, "The way that footnotes and hyperlinks have become a sort of non-scholarly argumentative rhetoric of their own deserves more examination." Appropriately enough for an age in which people simultaneously worry about misleading uses of news or newslike substance, seek more and better authority when they can get it, and yet are aware of the ways in which the appearance of authority can be misleading or misused, the footnote and hyperlink, I think, often serve less as support than as a form of strategic use of the trappings of authority. The colored link, like the robe and wig on a barrister, offers a kind of appearance of a guarantee of seriousness, no matter the reality underneath. No doubt students of rhetoric, and specifically of online rhetoric, have done this work. I would love to see some of it as applied specifically to writing about law or by lawyers (especially legal academics, the more their work bleeds between "platforms"). 

In any event, a wonderful example of the gap between the appearance and reality of that "authority" comes along today. Slate has a piece about a former state court judge who has retired from the Supreme Court bar, and done so in a letter criticizing the Supreme Court and a number of its justices. I should say I have no problem at all with his doing so. It is his right, a noisy resignation is a respectable and longstanding practice, and he is in an entirely different position than Judge Adelman, about whom I wrote yesterday. 

Here's the part that interests me. The lead-in part of the article states--in hyperlinked text--that members of the Supreme Court bar "are deemed members of the legal elite." Presumably, one who didn't click through and didn't know otherwise would believe that 1) members of the Supreme Court bar are, or are (presumably rightly) deemed, members of the legal elite, and 2) that the article linked to provides authority for that statement. But if one clicks through, one finds an article headlined, "For lawyers, the Supreme Court bar is vanity trip." The article adds, "Joining the group may sound exclusive, but it requires less paperwork than visiting a new doctor's office and costs less than an annual gym membership." It notes that "[t]he Supreme Court estimates its bar has 230,000 members, a number that may be inflated because no one checks to ensure members are still alive and practicing." Other descriptions and concepts from the article include "seemed like fun," "I know it's very superficial," "[others interviewed] sheepishly [call the membership] cool," and, in essence, "hey, neat-looking certificate." One lawyer calls it an "honor," but that is far from the gist of the piece. So a more accurate text for that hyperlink would have read, "members of the Supreme Court bar are thought by no sensible person, including themselves, to be members of the legal elite; indeed, no one is even sure how many of them are still alive."

The journalist who wrote this is skilled and experienced, so I assume it was an error. Perhaps the link was added later by some editor or assistant, although I note that elsewhere in the article's text, the author writes directly and without further support that the Supreme Court bar is "the most prestigious association of attorneys in the country," a claim I find either highly ambiguous or entirely dubious. It is a more tantalizing speculation that perhaps the link is itself a kind of elaborate and knowing parody of hyperlinking itself. But it was lovely to find it so soon after what I wrote about hyperlinks yesterday, and further evidence that not every appearance of authority, in the news or elsewhere, is actually authoritative. One more reminder, if any were needed: Always read the cited text! 


Posted by Paul Horwitz on March 13, 2020 at 06:25 PM in Paul Horwitz | Permalink | Comments (0)

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.

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

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)

Thursday, March 12, 2020

Adelman and Posner

Josh Blackman has already written twice about federal district court judge Lynn Adelman's article (now up to around 5.800 downloads) criticizing the Roberts Court--or, as Slate puts it in its inimitable way, "go[ing] for broke in criticizing conservative bias in the judiciary." Having now read most of the article, I agree with him in general terms, although I would temper my criticism of Adelman and his article more than Blackman does. (Adelman's defense of the article is another matter. In his own words, it is so terribly weak as to seem like "a masterpiece of disingenuousness.") But what interested me is why my reaction to it was so different from my generally approving reaction to the long and remarkable record of extrajudicial writing by former judge Richard Posner. The Slate piece--which is awful and whose main argument is that anything goes in love and war--also notes Posner's writings in defending Adelman. Why do I think Adelman's article is worthy of condemnation, while wishing that Posner had written even more (if that were possible) in his extrajudicial prime?

I think the answer comes down to the difference between genius and banality, between true independence of mind and something less than that. In criticizing another judge for extrajudicial statements a few years ago, I wrote, "If she had had something novel to say, I would be more charitable[,] but she doesn't." In our imperfect world, genius is rare. Even short of genius, there is always a deficit of genuinely interesting and independent thought. It is still rarer in the political world, but it is still in short supply even in the academic world, let alone the legal academic world. It's hard to achieve and there's not much of a market for it. For more or less intellectual reasons, along with an admiration for those who can skillfully and successfully administer therapeutic shocks and offer useful provocations, I am willing to forgive much for the sake of genius and for one who follows an intellectual and humanistic muse wherever it leads.

Take him for all in all, I would say Posner qualified for that kind of leeway. I am well aware of the decades of excellent and often on-target criticism of Posner's work. I sometimes disagreed publicly with him myself, and more so in his later years, when I think there was a falling-off in intellectual return on value. I nevertheless happily stand by my general description of his writing: "confident, candid, acidic, impatient with the pieties that abound in American law."

He had no truck what he called "Law Day talk." But he found it everywhere, and said so. He agreed with Adelman that Chief Justice Roberts's "balls and strikes" language at his confirmation hearing was silly and probably disingenuous. (He would not have called it "a masterpiece of disingenuousness." He would have asked the obvious question: What makes it a "masterpiece," and not commonplace? He would have rejected the cliche.) But he would not have stopped with--he did not stop with--directing that point at Roberts alone or reducing it to a personal accusation. He related it to a "legalist theory of adjudication" that judges "believe (or pretend to believe)" in. He wrote that Roberts's statement was "so ridiculous, and Chief Justice Roberts is so sophisticated, that it cannot be what he actually thought." But he saw it as a general problem, a symptom of a general jurisprudential perspective that has deep roots in American law. He criticized it wherever he saw it, and didn't stop at some party line. He also understood, as we all do, that this kind of statement is par for the course in our demand for a particular kind of edifying theater in the legal and political world. He knew that "judicial confirmation hearings have become a farce in which a display of candor would be suicide" and would, perhaps worse still, be a kind of "category mistake," a departure from the expected script. Posner--unlike Adelman--noted that Roberts's statement "was echoed four years later by Sonia Sotomayor at her confirmation hearing."

This is a trivial example and not his best. An Affair of State, Problematics, Overcoming Law, The Problems of Jurisprudence: these are masterpieces. They may be wrong; they are surely subject to criticism; but they're interesting, provocative, witty, and humane. Like what Posner said about Roberts (and Sotomayor, and "legalism," and confirmation hearing rituals), they give off a sense of independence, engagement, candor, and personal and intellectual liveliness; a willingness to criticize friends and foes alike if the criticism is warranted; and a sense that if the criticism were only personal or political, and not connected to an interest in our legal, political, jurisprudential, and intellectual world as a whole, it would hardly be worth making.

I have no interest in writing an encomium to Posner. What's the point in praising an intellectual, rather than engaging with, reacting to, and often criticizing him or her? I don't think he always avoided the merely personal in his criticisms, although I do think that when he offered an evisceration, it was because he thought something someone had written or said merited it, and not simply because he didn't like the person or didn't get a result he wanted. (His highly critical and wonderful evaluation of Aharon Barak is a terrific example. He was equally publicly critical of Robert Bork.) The flavor of his eviscerations was thus entirely different from the tenor of the introduction and conclusion to Adelman's article. In general, I might have walked away from Posner's writing more cynical, but also enriched, and almost never (until the last few years of his active writing) with a sense that he was conducting an uninteresting form of uninteresting politics by other means.

Posner crossed the line--wherever it is--between appropriate and inappropriate remarkably rarely. Surely he did cross it from time to time, even in his prime. But I was inclined to take that as a reasonable cost for getting so much of value; and because I got so much of value from his writing, I was willing to allow a substantial margin of appreciation. Genius makes and gets its own allowances. But genius is rare, and not every judge can walk the high-wire line between saying something interesting and provocative, and saying something that is merely inappropriate, as successfully and without toppling. In a review of one of his later books, I wrote, "I wish more judges, lawyers, and law professors were like Posner. But all of them?...Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous." Whatever I am willing to forgive a few judges who manage to write and say interesting things extrajudicially, most of them, however bright or brilliant, are but workaday performers. There are good reasons for them to stay in their lane.  

Adelman's article is not even second-rate Posner. I am inclined to be more moderate in my criticism of the article than some of the criticism out there. It is neither as outrageous as its strongest critics suggest nor as fierce and coruscating as its defenders suggest. The least appropriate material comes in the wrapping: its opening sections and conclusion. The rest is a commonplace, fairly cut-and-paste criticism of decisions he dislikes and that many others do too. But it suffers from one major problem and one minor (in a sense) problem.

Its worst crime is its banality. He has nothing new or interesting to say: nothing one hasn't already read in stump speeches, op-eds, and safe and usually mediocre publications like Slate or The Atlantic. Its footnotes are not so much an illustration of learning as a rounding up, for the sake of form and safety, of the usual suspects. (This is a common feature in footnotes and hyperlinks in pieces of  this sort. The way that footnotes and hyperlinks have become a sort of non-scholarly argumentative rhetoric of their own deserves more examination.) His canned history is of the William Manchester variety. All the usual signposts are there, down to the conspiracist focus on the Powell memo. His sin has nothing to do with being right or wrong; there's some of both, and the latter arguably happens more often by omission rather than commission. The article's sin is being boring.  

Because Adelman fairly literally walks a safe party line in his article, a secondary but not unimportant consequence of the article is that it is political in its omissions. It was typical that Posner noted that both Roberts and Sotomayor--and, he might have added, just about everyone else who has faced a confirmation hearing for the past 35 or more years--offered the standard legalist line on judging. I don't think he did it for the sake of even-handedness, but because he thought it was a ritual that infected judicial politics generally and that offered a window into standard views (or tropes) on law and judging; it was the phenomenon that interested him, not the individuals. That Adelman treats the "balls and strikes" statement as seemingly unique to Roberts shows either a remarkable incuriosity, or the kind of blindered perpective and motivated reasoning that must be a terrible and comforting form of self-imprisonment. (It could merely be hypocrisy. But I find hypocrisy uninteresting. Far more interesting is the way in which we convince ourselves with near-total sincerity to see some things and not others.) That Adelman somewhat arbitrarily (by his own admission) begins his narrative in 1971, with a brief prologue of praise for the Warren Court, enables him to omit the fact that it was the Warren Court that resisted positive welfare rights and largely strangled that movement in the cradle. His Bush v. Gore, serving as an exemplar of "relatively direct assaults on democracy," is a 5-4 decision; that seven justices found equal protection problems goes unmentioned. The "unpersuasive" and "catastrophic" Medicaid expansion ruling in the ACA case is laid at the feet of the "Roberts Court" and "Chief Justice Roberts"; any role Justices Kagan and Breyer might have played in "[striking] a mighty blow against a government effort to provide greater equality" is left unexamined.

It is perhaps unsurprising for that reason--indeed, for many reasons, all of which would have led to a much more instructive article, not just about the Roberts Court but about American law and democracy--that although one finds a couple of uses of the word "liberal" in the article, along with a few descriptive references to "Democrat" or "Democratic" and copious references to "conservative" (matches on thirteen pages) and "Republican" (matches on nine pages), one finds only a passing historical reference to "elite," and zero uses of the much-used (and much-misused) word "neoliberal." The possibility that the problem he takes as the larger subject of his article--inequality and disenfranchisement--is a product of a much more systemic environment, one to which conventional liberals and conservatives alike have each contributed in different and similar ways, and in which each have constructed safe harbors for the professional-managerial class and cultivated a community of ultra-wealthy supporters, either does not cross his mind or passes swiftly through it without encountering any obstruction. Adelman was appointed to the bench by President Clinton; Clinton's contributions to "welfare reform," "personal responsibility," "criminal law reform," "unfettering" the banking industry, "Third Way" positions on trade and privatization, and other signal accomplishments again go unmentioned. Adelman illustrates that it is possible to be a "progressive" (as Slate labels him) on some issues and remain firmly neoliberal on others, or perhaps just to be a progressive with a very bad memory. There are far more interesting discussions about inequality and disenfranchisement, formal and substantive, to be found by many writers on both the left and right, and occasionally even by mainstream liberals and conservatives. Adelman's piece, I have said, is uninteresting from any perspective. Perhaps I should have said that the ways in which it is uninteresting are of some interest in themselves.

I began by saying that when it comes to extrajudicial statements, I am willing to forgive much for the sake of genius and for those who make actual intellectual contributions. When a judge's extrajudicial statements arguably cross the line, but only for the sake of what turns out to be a banal position, I am less inclined to be charitable. Perhaps a judge who has something genuinely interesting to say should say it despite his or her office; I don't think that's necessarily the case, but I tend to value it when it happens, even if the statement is arguably inappropriate, and am willing to treat it as worth the cost. A statement that is arguably inappropriate and uninteresting contributes nothing to the discourse. It sacrifices confidence (deserved or otherwise) in the judiciary without offering any intellectual compensation for the sacrifice. I doubt that serious readers would disagree that there is nothing of value or originality here. I suspect that many defenses of the piece would reveal that deep down, most of us have some secret sympathy for Roman Hruska's famous plea on behalf of the "plenty of mediocre judges and people and lawyers" who deserve a little representation. I am only calling Adelman's article mediocre; I have no views about his skills as a lawyer and judge. But it is possible to be a fully competent and even excellent judge without having much of value to say beyond that, at least without entering electoral politics. (Adelman was a state legislator before becoming a judge and thrice ran for Congress. He could, of course, always step down and run again. There's hardly any indignity in that.) I'm delighted to have them doing their jobs. I think it's generally best if they don't do anything else.    


Posted by Paul Horwitz on March 12, 2020 at 10:03 AM in Paul Horwitz | 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)

Thursday, March 05, 2020

Coronavirus & Academia

The Coronavirus is everywhere, offline and online. I have been following the developments closely since the beginning, especially because I had talks scheduled this month in Singapore and Japan, and since January have been deciding whether to cancel them. I did cancel and my hosts have been generous in reimbursing my cancellation costs. I also recently received emails from American and Israeli universities where I am set to give talks in the upcoming months asking if I'd like to reschedule for a later date. So far, I have decided to proceed with domestic travel and to travel to Tel-Aviv in June. 

As academics we travel quite a bit, probably too much for what is responsible energy wise. So cutting back air travel seems like a wise idea even under normal circumstances. But I am wondering how others are deciding about their upcoming professional travels. 

There are also so many questions that can and should be asked about the viral spread that law professors can put on their agenda. Here are some:

  1. decisions about closing borders to certain nationalities because the virus has spread earlier and more quickly in those countries. 
  2. decisions to quarantine citizens.
  3. decisions to cease exports of vital health supplies.
  4. cancellation policies of the travel industries.
  5. the role of whistle blowers in disease control enforcement, including both blowing the whistle on government action or inaction and on other citizens that are not complying with self-quarantine orders.
  6. prosecution of super-spreaders 
  7. WHO and global health collaborations
  8. surge pricing of various products and hoarding; platform intervention (like Amazon's) in the case of false advertising and surging.
  9. the huge range of decision-making processes on whether to cancel or not public gatherings, conferences and events.
  10. testing priorities and CDC thresholds; local/national cooperation and disputes over testing.

Thoughts? Stay healthy and safe this spring!

Posted by Orly Lobel on March 5, 2020 at 12:04 PM | Permalink | Comments (6)

Wednesday, March 04, 2020

Fulbright Scholars program now open for applications

This year's Fulbright Scholars program is now open for applications.

For those who do not know, Fulbright, named after late Senator J. William Fulbright, is a grant program of the U.S. Department of State with funding provided by the U.S. Government. The Council for International Exchange of Scholars (CIES), the scholar division of the Institute of International Education (IIE), administers the program for State. Selected Fulbright Scholars spend time abroad at a foreign host institution. Awards are for teaching, research, or some combination of teaching and research. There are awards both for U.S. scholars interested in traveling abroad as well as non-U.S. scholars interested in visiting an institution in the United States.

Law faculty should note there are always multiple award announcements seeking faculty with legal expertise, and this year is no different. There are 62 awards for which law is a designated discipline. Destinations range from Australia to Zimbabwe, including multi-country regional grants. Can't spare a full semester? There are now flex awards that permit multiple, short-term stays in the host country over a period of 1-2 years. You can search the awards here.

In 2017, I completed a Fulbright to Croatia (Hrvatska) where I taught at the University of Zagreb for 5 months. I made many professional contacts and dear friends. As a parent, one of the most rewarding aspects of the Fulbright was the chance to live abroad with children, which while occasionally soul stretching, was very good for them developmentally. And I enjoyed myself too as I explored a corner of the world that was previously unfamiliar to me.

Posted by T. Samahon on March 4, 2020 at 01:35 PM in Teaching Law, Travel, VAPS & Fellowships | Permalink | Comments (2)

Reconsidering the Greatest Judges

Everyone has a short list for the greatest judges of all time. I want to complicate that analysis if I may.

Who are the greatest trial judges of all time? This is not something people think about when they consider the GOAT. Part of the reason is that it's hard to know a lot about trials from the remote past. There is also room for doubt about what makes someone a great trial judge. Controlling the courtroom? Instructing juries? The accuracy of evidentiary rulings? Another issue, though, is that people usually associate greatness in a judge with appellate opinions, probably because that's the way law is typically taught.

Which judges who were great at trials and appeals? Suppose we said that the GOAT could only be someone who did both. That would rule out a lot of quite famous judges. The early Supreme Court Justices, of course, were required to do trials and appeals because of the "riding-circuit" system. Thus, John Marshall did trials (not as many as his colleagues, but still.)

If I use the limitation just stated, I think that Marshall still stands near the top. Learned Hand might be there also, because he was a Federal District Court judge for many years. Maybe Story and Washington too. Beyond that, I'm not sure. Most of the usual suspects were never trial judges (or did not distinguish themselves as trial judges.) 


Posted by Gerard Magliocca on March 4, 2020 at 09:54 AM | Permalink | Comments (5)

Tuesday, March 03, 2020

Why the Federal Reserve Saves the Consumer Financial Protection Bureau

Today the Supreme Court held oral argument in Seila Law LLC v. Consumer Financial Protection Bureau. In Seila, the Court has been asked to decide whether the independent structure of the Bureau violates constitutional separation of powers requirements. In his defense of the Bureau’s independent structure, Paul Clement repeatedly returned to a key example: the Federal Reserve. Douglas Letter, who argued on behalf of the U.S. House of Representatives and filed an amicus brief in defense of the Bureau’s structure, did the same. These references to the Fed should come as no surprise. The Fed’s longstanding tradition of independent monetary policy provides helpful precedent for the Bureau’s independence in financial regulation. The Fed also boasts an impeccable originalist provenance.

What may be less clear is why a multi-member agency like the Fed provides helpful precedent for a single-director Bureau. Justice Kavanaugh, for example, asked whether the President’s inability to appoint the chair of a single-director agency renders the Bureau’s structure unconstitutional. Justice Kavanaugh suggested that the single-director structure affords a newly elected President less influence over the Bureau than the President possesses over other multi-member agencies.

The Fed’s current and historical structures do not support the distinction drawn by Justice Kavanaugh. The President does not have the power to name the chair of the Federal Reserve’s Federal Open Market Committee. Section 3 of the FOMC’s Rules of Organization instead allows the “Committee [to] elect[] a Chairman and a Vice Chairman from among its membership” at “its first regularly scheduled meeting on or after January 1 of each year.” When the First Congress created the historical antecedent to the Fed’s Open Market Committee — an obscure agency known as the Sinking Fund Commission — it staffed the Sinking Fund Commission with ex officio members. The First Congress did not allow the President to name a chair or any of the Commission’s officers. The structure of the Sinking Fund Commission shows that the power to appoint the chair of an agency has never been a constitutional requirement.

Posted by Christine Chabot on March 3, 2020 at 10:14 PM | Permalink | Comments (9)

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.

Continue reading "The procedure of frivolous political defamation actions"

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)

Monday, March 02, 2020

28th Annual Rothgerber Conference: Women's Enfranchisement

The Byron R. White Center for the Study of American Constitutional Law will sponsor the 28th Annual Ira C. Rohgerber Conference, Women’s Enfranchisement: Beyond the 19th Amendment, on Friday, April 3, 2020.

Continue reading "28th Annual Rothgerber Conference: Women's Enfranchisement"

Posted by Howard Wasserman on March 2, 2020 at 10:27 PM in Constitutional thoughts | Permalink | Comments (0)

Entry Level Hiring: The 2020 Report - Call for Information

Time once again for the entry level hiring report.

I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information that will be aggregated.

Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.


The list does not include people who were full-time non-tenure track clinicians who are now moving to a tenure track job at a different school, as these don't seem like true entry-level hires to me. This is the situation where a person is at a school that does not provide tenure to clinicians, and then moves to a school that does provide tenure to clinicians.

The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)

Other links:

This report follows in the tradition of Larry Solum's excellent work over many years.

2019 initial post, 2019 spreadsheet, 2019 report (with graphs).

2018 initial post, 2018 spreadsheet, 2018 report (with graphs).

2017 initial post, 2017 spreadsheet, 2017 report (with graphs).

2016 initial post, 2016 spreadsheet, 2016 report (with graphs). 

2015 initial post, 2015 spreadsheet, 2015 report (with graphs).

2014 initial post, 2014 spreadsheet, 2014 report (with graphs).

2013 initial post, 2013 spreadsheet, 2013 report (with graphs).

2012 initial post, 2012 spreadsheet, 2012 report (with graphs).

2011 initial post, 2011 spreadsheet, 2011 report (with graphs).

All PrawfsBlawg entry level hiring report tagged posts.

Posted by Sarah Lawsky on March 2, 2020 at 01:30 PM in Entry Level Hiring Report | Permalink | Comments (0)

Saturday, February 29, 2020

The Lost Opinion on Federal Criminal Common Law

I have another discovery to announce as part of my Bushrod Washington research. Only specialists will probably enjoy this, but I still think it's a neat find.

One important but less-well-known Marshall Court opinion was United States v. Hudson & Goodwin. In that decision, the Court held that there is no federal criminal common law. Every federal crime must come from an Act of Congress. This was a divisive question in the first two decades of the Republic, with Federalists arguing that there was federal criminal common law and Jeffersonians arguing that the whole concept was unconstitutional. 

Hudson & Goodwin was unusual in that neither Chief Justice Marshall nor his usual allies wrote the opinion. Instead, the decision came from Justice William Johnson, Jefferson's first appointment to the Court. There is every reason to think that some Justices disagreed with Johnson's opinion, but the Court in this era typically gave its unanimous support to the majority's view. Not long after Hudson and Goodwin was decided, Justice Story wrote a circuit opinion arguing that the Supreme Court made a mistake and that Hudson & Goodwin should be reconsidered. There were some noises about doing that until about 1816, but nothing came of that effort.

Justice Washington did not participate in Hudson & Goodwin--he was ill. But in an 1804 circuit case that he handled--United States v. Passmore--the issue of whether federal criminal common law existed was raised. The report in that case is brief and says nothing about his view of that issue, which was decided on other grounds.

In the Pennsylvania Historical Society, I found correspondence between Justice Washington and Richard Peters Jr. Peters (who later became the Supreme Court's reporter) was asked by Washington in the 1820s to assist with the publication of his circuit court opinions. He gave Peters his notes, but then made comments about how the reports should be edited. Here is what he said about Passmore:

Omit the argument to show that the common law supports a rule of decision in criminal cases in the federal courts . . . at that time I hoped that by not abandoning the doctrine, it might again become popular and maintain its just ground. In this I have been disappointed and of course have no wish to disturb the subsequent decision of the Supreme Court [in Hudson and Goodwin].

Two preliminary observations here. First, it's refreshing to see a Supreme Court Justice admit that whether a doctrine is popular plays a role in what a judge should do, though Washington did not concede that his opinion in favor of federal criminal common law was wrong. Second, I suppose the best evidence for something being deemed settled law is to erase one's own contrary prior opinion from history.

Posted by Gerard Magliocca on February 29, 2020 at 10:10 PM | Permalink | Comments (9)

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)

Budget Spat: OMB v. Article III

The federal courts have submitted their FY 2021 budget proposal to Congress. Interesting for court watchers, there was sharp political play around this year’s budget request.

By law, unlike executive agencies, the Office of Management and Budget (OMB) is not permitted to change that budget request. 31 U.S.C. 1105(b). Undeterred, OMB did the next best thing - it gave its unsolicited recommendation that the budget proposal should be cut, i.e. “negative allowances,” to the tune of $327 million.

That suggestion precipitated a notable bench slap from Senior Judge John Lungstrum as Chair of the Judicial Conference Committee on the Budget who addressed the U.S. House Appropriations Committee. Lungstrum noted that OMB’s duty is “a simple ministerial one,” and called out OMB for the use of negative allowances, which dated back to OMB recommendations in 2017 for the FY 2018 proposed budget. “Because OMB plays no role in formulating or reviewing our requests, these ‘negative allowances’ are based on no substantive analysis and fail to engage at all with the catastrophic impacts such drastic cuts would have on the administration of justice.”

What was driving the increased expenses? According to the Judicial Conference, it was more judicial mouths to feed and the related expenses — 81 new judges appointed in FY 2019 and another 85 more projected in FY 2020. Lungstrum noted another cost driver was increased criminal workload from executive branch prosecutorial policies. This year’s proposed budget seeks an approximate 4.4% increase.

In the last decade of political polarization, I’ve noticed that the Judicial Conference’s budget request has often been presented by members of the SCOTUS on a basis that is bipartisan by appointing President. In FY 2020, it was Alito and Kagan. In FY 2011, 2012, 2014, 2016, it was Breyer and Kennedy. Likely, this isn't coincidence. If not, it might reflect a concern that Congress might wield the budget check to cut "discretionary" portions of the federal judiciary's budget if the courts are viewed as partisan, perhaps a little modern circuit riding to punish adversaries.

Posted by T. Samahon on February 29, 2020 at 08:00 AM | Permalink | Comments (3)

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.

Continue reading "What if Keyser Soze were a Nazi?"

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

CFP: Junior Faculty Fed Courts Workshop

Washington University School of Law in St. Louis will host the Twelfth Annual Junior Faculty Federal Courts Workshop on September 11–12, 2020. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.

Continue reading "CFP: Junior Faculty Fed Courts Workshop"

Posted by Howard Wasserman on February 28, 2020 at 09:31 AM in Civil Procedure, Teaching Law | Permalink | Comments (0)

Thursday, February 27, 2020

Bushrod Washington on Jury Trials

The theory of jury trials must necessarily imply a principle of compromises and concession, amongst the members of that body. In cases of conflicting evidence, where the credit of the witnesses must be weighed and decided upon or where damages are to be assessed for the measure of which no legal rule is prescribed; it is inconceivable that twelve men should arrive precisely to the same result, unless upon the principle just stated.

Harrison v. Rowan, 11 F. Cas. 663, 665 (C.C.D. NJ 1820)

Posted by Gerard Magliocca on February 27, 2020 at 08:35 PM | Permalink | Comments (1)

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)

Hiring Announcement: City Law School (London, UK)

The City Law School (London, UK) is seeking to hire twelve new faculty members (including entry level and lateral candidates). Situated in the heart of London, The City Law School is a prominent law school with alumni that includes three former British Prime Ministers and many of London’s most illustrious barristers, solicitors, and judges. (The term ‘lecturer’ is an entry-level position broadly equivalent to Assistant Professor in North America. Lateral candidates may be more interested in the ‘senior lecturer’ and ‘professor’ positions.)

The closing date for applications is Sunday, April 5, 2020.

For more information, including the application procedure, visit:

Posted by Sarah Lawsky on February 26, 2020 at 04:10 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Circuit Correspondence in the Marshall Court

Part of my biography on Bushrod Washington will focus on his work as a circuit judge. During the Marshall Court, each Justice was required to ride circuit in a designated portion of the country, conducting trials and hearing appeals. The Justices wrote to each other about their cases. Sometimes this involved asking another Justice for advice (in other words, "Has this question ever come up in your circuit?" Or "What is your opinion about this issue?"). Sometimes the letters just provided a rundown on the holdings in the decided cases. And sometimes they would share draft opinions with their colleagues. 

One letter at Mount Vernon, though, shows that this practice went a step further. Justice Washington wrote to his newish colleague, Smith Thompson, in 1825 about a set of circuit opinions Thompson had written and sent to him. Bushrod's two-page letter said that he concurred with Thompson's conclusion in each case, but then pointed out various problems that he had with the reasoning of some of them. (This sounds like giving someone comments on a paper where you start by saying that you love the project and then point out twenty specific things you don't like.)

I'm thinking about the import of this letter. (Thompson's initial letter is lost.) Did Thompson ask for Bushrod's view? If so, why? Because he was a newish judge? Because Bushrod was highly-respected within the Court? Because he was trying to curry favor? Or was Bushrod trying to mould his junior colleague without a prompt. Was this an example of how the senior Justices (at that point Marshall, Bushrod, and Story) attempted to tame/socialize the new appointees. I'm not sure yet.

Posted by Gerard Magliocca on February 26, 2020 at 01:28 PM | Permalink | Comments (0)

Tuesday, February 25, 2020

Time for Congress to Codify Bivens?

Bivens and its implication of a remedy to sue officers directly under provisions of the U.S. Constitution are on life support (see Howard's post). After Hernandez, is Congress ready yet to codify Bivens?

It’s a gross understatement to say that I’m no legislative lawyer. Nonetheless, here’s a quick draft based on the language of 42 U.S.C. § 1983:

Unless otherwise expressly provided by statute, every person who, under color of any statute, regulation, order, custom, or usage, of the United States government, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction of the United States, or at its territorial borders, to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. The availability of alternative remedies shall not preclude relief under this provision.

In any action to enforce the provisions of this section, the court may allow the prevailing party, other than the United States, a reasonable attorney’s fees as part of the costs.

For purposes of this section, “person” includes any natural person.

* * *

Continue reading "Time for Congress to Codify Bivens?"

Posted by T. Samahon on February 25, 2020 at 02:21 PM in Judicial Process, Law and Politics | Permalink | Comments (4)

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.

Continue reading "Bivens closer to death (and Thomas would kill it)"

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)

Teaching Federal Income Tax to the Current Generation of Law Students

The following post is by Jeffrey l. Kwall, Kathleen and Bernard Beazley Professor of Law (Loyola-Chicago) and is sponsored by West Academic.

The basic Individual Income Tax course opens a new world to most law students. Our challenge as professors is to find ways to make this unfamiliar area of law accessible to students with a wide variety of backgrounds and learning styles.

Continue reading "Teaching Federal Income Tax to the Current Generation of Law Students"

Posted by Howard Wasserman on February 25, 2020 at 09:31 AM in Books, Sponsored Announcements | Permalink | Comments (0)

Vice Presidential Trivia

Suppose Bernie Sanders is the Democratic nominee for President. He decides to go with a young, exciting running mate and picks Alexandria Ocasio-Cortez. An objection is raised that goes something like this: She turns 31 in October. A President must be at least 35. She is therefore not eligible to be Vice-President.

Is this correct? Arguably yes. One thought is that the Vice-President must fulfill all of the eligibility requirements of President from day one. But arguably no. A Vice-President who is ineligible to be President may simply not become President if the President dies--the Speaker of the House does instead. Or maybe she can be VP because she would turn 35 during a Sanders presidency (i.e. the term for which she would elected). 

Posted by Gerard Magliocca on February 25, 2020 at 09:04 AM | Permalink | Comments (9)

Monday, February 24, 2020

Sneak in Contracts

My co-author Shmuel I. Becher (our forthcoming article on consumer protection is here) has a new article with Uri Benoliel in which they report an empirical study they conducted. The article Sneak in Contracts: An Empirical Perspective, available here. They examine 500 contracts of the most popular American website and show that the vast majority of those contracts allow firms a unilateral discretion to change the rights and obligations after acceptance. They warn: "The findings of this study raise concerns as to whether sneak in contracts are aligned with some of the prominent core values and principles of contract law, such as consent, promise, reliance, consideration, freedom, choice, empowerment and community. The study thus calls for the introduction of an underdeveloped principle in the law that governs the modification of consumer contracts: the principle of transparency. It then offers a set of concrete recommendations, which will allow policymakers and courts to exhibit a more developed, sound and effective approach to the problem of sneak in contracts."

Posted by Orly Lobel on February 24, 2020 at 06:00 PM | Permalink | Comments (0)

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)

Friday, February 21, 2020

Access to the Court

For the last ten years, I’ve taken groups of Villanova Law students to the Supreme Court of the United States almost annually to watch oral argument in cases, some relatively low profile, some blockbusters. We leave VERY early in the morning from Villanova Law (located in the greater Philadelphia area) to drive to 1 First Street NE in order to arrive by no later than 4:30 am. That timing is important because you need to secure a decent place in the public line to get in. The first 50 get in, 51 and later get rotated through for a few minutes of arguments.

Nowadays getting into the Court through the public line can be a bit like trying to get into a rock concert, especially with all the paid line standers — the going rate is about $50/hour, except when demand really surges  — camped out early on lawn chairs with blankets to cut the early morning chill. The line standers are often for interested lawyers who are not Supreme Court bar members. The Court polices the much shorter Supreme Court bar line, but only spontaneous order governs the public line -- a social norm of first in time with reasonable allowance for a tardy friend. Test that norm by bringing 10 friends, however, and you’re likely to risk triggering a Hobbesian state of nature. (During the U.S. v. Texas DAPA case, I witnessed a large group of uniformed private school students cut in line to join an adult claiming to "hold" a place for them. Those behind them were exceedingly unhappy; it almost escalated to violence.)

Once upon a time you could call the Marshal’s Office to ask for advance tickets, but in recent years I’ve had no success. Authoring an amicus brief or serving as counsel below doesn’t cut it for reserved seats - you get either the SCOTUS bar line or the public line. Still, when my bedraggled students and I finally get access to the courtroom (I typically remain with them in the public line in solidarity), we are always stunned at the (relatively) large number of people who arrive inside the Court at 9 am with ticketed seating and who are then seated preferentially. I’ve asked on occasion who these late ticketed arrivals are. Some have identified themselves as guests of the Justices and friends of friends of people connected to the Justices, such as students of prominent lawprofs who have clerked at the Court. Clerking on the Court confers big advantages that last a long time. It’s a nice privilege for those in the Club. For the have nots, though, access is stingy and ultimately discretionary. Perhaps, then, physical access to the Court isn't that different from legal access to it. It too is very limited, mostly discretionary, but greatly eased by knowing someone on "the inside."

UPDATE (March 2, 2020): The House has introduced legislation to make virtual Court access easier. Read the story at SCOTUS Blog.

Posted by T. Samahon on February 21, 2020 at 10:00 AM in Judicial Process | Permalink | Comments (6)

The Death of a Presidential Nominee

I don't know the answer to the following question. Suppose someone is formally nominated as the presidential candidate of one of the two parties. On Labor Day, that nominee dies. Who then becomes the new nominee? The running-mate? The person who came in second? Does a party committee decide? 

The Republican Party has a procedure in place if something like this occurs. The RNC can select a new candidate or they can call for another party convention to make that choice. I can find, though, no equivalent rule in the Democratic Party rules. Does anyone know the answer there? 

Posted by Gerard Magliocca on February 21, 2020 at 09:17 AM | Permalink | Comments (5)

Thursday, February 20, 2020

The Ultimate Research Assistant

I am half-way through my draft of the Bushrod Washington book, and so I'll start sharing more tidbits from my research. Here is one I found charming:

In the 1790, Bushrod published a two-volume set of reports on the decisions of Virginia's highest court. (Bushrod and Marshall were directly involved in some of those cases.) Thirty years later, Bushrod decided to publish a second edition. He was not satisfied with one of the reports and wanted to check the official record of the case kept in Richmond. Whom did he send as his research assistant? The Chief Justice of the United States. Marshall got the record, went through it, and then wrote Bushrod a detailed report on what he found. I think, though, that he was not included in any dagger cite.  

Posted by Gerard Magliocca on February 20, 2020 at 08:16 PM | Permalink | Comments (3)

Thurgood Marshall and James Patterson: A Comment on Tushnet on Dane

Mark Tushnet, the only blogger for whom I would be willing to break my "characteristically thoughtful" rule (especially for his posts on legal scholarship and his occasional comments on specific articles), adds a "supplemental note" on the discussion of Perry Dane's piece on law clerks and jurisprudence, about which Howard and I have written our own posts below. Here I add a supplemental "note" to Tushnet's supplemental note. Let me first repeat: Read Dane's piece. It is provocative and productive of new ideas, as good scholarship should be, and at times (as in its discussion of "open secrets" and American clerk culture) quite timely. Tushnet's intervention is narrow but, I think, gives rise to interesting questions of its own.

Tushnet writes:

A short and therefore distorted version of Dane's argument is that the appearance of the judge's name on an opinion acts as an "icon" or signal about something--on my reading, about the fact that the opinion should be understood to be part of a larger project of developing "the judge's" vision of the law that is consistent across large-ish domains and over large-ish periods of time (the "ish's" inserted to show that a person's views and understanding of the relevant domains can change without casting doubt on the proposition that the person is pursuing a project). But, Dane worries, how much confidence can we have that the words published under the judge's name are part of such a project when they are produced by an ever-changing population of law clerks?

To this he adds two pieces of recollection about serving as Thurgood Marshall's law clerk. First, "because the clerks knew that post-drafting review would be light, we were extremely careful not to send a draft to the judge before it had been carefully vetted by all three of us." Second and more important, 

[W]e operated with a strong norm of what (as I recall) we called "personal stare decisis." That is, we thought that we should draft opinions that were as consistent as we could make them with the judge's prior decisions. (Note that this was Marshall's fifth year on the Court, and he had a small-ish relevant body of decisions from his time on the Second Circuit.) Clerks following the norm of personal stare decisis would make the opinions published under the judge's name part of the Dane-like project.

I think this is a pretty common practice. I read it for present purposes in a descriptive and not normative fashion. Tushnet is right that it fits in with Dane's account. Insofar as it suggests that there are some institutional norms that help tie the corporate practice of opinion-writing to the project pursued by the "judge," it may help address Dane's question about how much confidence we should have in the continuity and reliability of that project. Inasmuch as Dane offers his piece as a "catalyst" for thinking about jurisprudential issues concerning the courts (and the other branches), however, and concludes by noting rather than trying to resolve the "deep and uncomfortable questions" raised by our practices, I think Tushnet's observation itself can be a catalyst for more "uncomfortable questions." 

In reading Tushnet's post, I was reminded of James Patterson--and "James Patterson." Patterson is the "author" of scores of best-selling books. They "all share stylistic similarities." And "[t]o maintain his frenetic pace of production, Patterson now uses co-authors for nearly all of his books. He is part executive producer, part head writer, setting out the vision for each book or series and then ensuring that his writers stay the course." According to one profile, "Patterson will write a detailed outline--sometimes as long as 50 pages, triple-spaced--and one of his co-authors will draft the chapters for him to read, revise and, when necessary, rewrite. When he’s first starting to work with a new collaborator, a book will typically require numerous drafts. Over time, the process invariably becomes more efficient." Patterson-as-author has thus become the "James Patterson" brand, a brand that draws many millions of readers. Unsurprisingly, given the tradition of viewing a book as "the product of one person’s imagination and sensibility, rendered in a singular, unreproducible style and voice," his practice has drawn criticism and derision. But it is eminently successful, and I assume (not being one of his readers) that some care is taken to make sure that each book is sufficiently within the stylistic universe of "James Patterson" to maintain a consistent brand and retain readers' trust. If each book was radically different, "James Patterson" would be less a unique brand than a sort of retailer of varied books. Note that his frequent "co-authors" develop a comfort with his style, so that "the process invariably becomes more efficient." It is not hard to imagine the next step, in which Patterson departs this vale of tears and a committee of those co-authors ensures that "James Patterson" is still putting new books in airport bookstores every month or two. Many popular authors have, in this manner, been remarkably productive after they stopped breathing.

How different is the living "James Patterson, Inc." enterprise from the "Thurgood Marshall" enterprise? Not very much, it seems to me. Indeed, on Tushnet's account and given the description of Patterson's process, there may be greater quality control and more authorial personality in the Patterson model. That model and that approach to books is not to everyone's taste, but as a process it appears to work. Is there anything wrong with it? Is there anything more or less wrong with the Marshall "project" that Tushnet describes than with the Patterson enterprise? Maybe not. (And it is worth asking again, to repeat the aside I offered in my first post: If there's nothing wrong with it in these cases, why exactly would it be wrong if applied in a similar fashion to scholarly writing, especially if, as with Patterson, the academic whose name is his or her brand provides the idea and the outline and reviews the "product" carefully?)

Continue reading "Thurgood Marshall and James Patterson: A Comment on Tushnet on Dane "

Posted by Paul Horwitz on February 20, 2020 at 11:43 AM in Paul Horwitz | Permalink | Comments (5)

Wednesday, February 19, 2020

The Fourth Vesting Clause and Explicitly Authorized Delegation

Beyond the cognate Article I, II, and III vesting clauses that parcel sovereignty into legislative, executive, and judicial powers, there is a fourth “vesting” clause that uses the language of “vest” to allow the grant of power to another branch of government. It is the “Excepting Clause,” or the excepting provision of the Appointments Clause. It is instructive for what it allows and how it allows it.

“But the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” (Art. II, § 2, cl. 2, emphasis added.)

As far as I’m aware, it’s the sole clause in the Constitution to explicitly contemplate horizontal delegation of power, by which I mean legislative reallocation of initially granted authority to another branch. The Take Care Clause contemplates vertical subdelegation within the executive branch.

Continue reading "The Fourth Vesting Clause and Explicitly Authorized Delegation"

Posted by T. Samahon on February 19, 2020 at 02:53 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (3)

A Constitutional Power That Ought Not Be Used

I want to draw an analogy that might be helpful in assessing the current standoff between the President and the Attorney General.

Suppose there is a very close election for a Senate seat in November. A legal fight is then waged in state court as part of a recount. The State Supreme Court says that the Democrat won. But in January 2021, Senate Majority Leader McConnell says "not so fast." The Senate, exercising its Article I power to judge the election of its members, then votes along party lines and says that the Republican won. The Republican is seated, and the Democrat goes home empty-handed.

Can the Senate do this? Of course it can. It just chooses not to. More precisely, since the 1980s each House of Congress has treated a state judgment about who wins a race as binding. But that judgment is not binding. The relevant house of Congress is the ultimate judge. Still, there are good reasons for treating the state judgment as binding. It's more neutral and more legitimate, unless there is some serious crookedness going on in a state's electoral process.

I think that same can be said for the President making individual decisions about prosecutions or sentencing recommendations. He can do this, but he shouldn't. If there are problems in the DOJ, the President should get a new Attorney General or replace some U.S. Attorneys.

Posted by Gerard Magliocca on February 19, 2020 at 12:10 PM | Permalink | Comments (2)

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)