Wednesday, February 06, 2019

Oral Argument in Pyler v. Doe

One on-again, off-again project of mine is to listen to old Supreme Court arguments. The other day I listened to Plyler v. Doe. Quite fascinating for a couple of reasons.

First, the Justices were unaware of the fact that many people were here illegally for a long period of time. Several asked why the parents of the schoolchildren in Texas had not been deported promptly. They simply did not know that INS was underfunded or that there might be a de facto amnesty policy. Indeed, a couple were quite surprised to learn that INS did not act sometimes when told that a family was here illegally. Ignorance can sometimes be charming.

Second, the case was argued in the midst of Justice William Rehnquist's addiction to painkillers. (About a month after Plyler was argued, he sought treatment.) When you listen to his questions, his speech does sound odd. Sometimes a word is slurred and sometimes he struggles to find the word that he wants to use. Without knowing that he was addicted at the time, I don't think, though, that I would have reached that conclusion based solely on what can be heard.

Third, much of the advocacy was bad. The average quality of Supreme Court argument was lower back then, probably because the Court just heard more cases. One guy from Texas was clearly out of his depth, and one guy for the children was so far off point most that one of the Justices more or less made his argument for him. You still get clunkers like that today, but less often.

Posted by Gerard Magliocca on February 6, 2019 at 01:39 PM | Permalink | Comments (7)

Tuesday, February 05, 2019

Amos Oz

Last week was the Shloshim - the thirty day remembrance day - of Amos Oz who died in December at the age of 79. He was a novelist, journalist, peace advocate, literature professor and intellectual. Four years ago I posted here a review of one of his last novels, Between Friends. If you have never read Oz you might want to start (though it's long and heavy) with his brilliant autobiographical novel, A Tale of Love and Darkness. My Michael, To Know A Woman and Black Box are among his most known books, but you can't go wrong with any book you pick. A few years ago he co-authored a non-fiction book with his law professor daughter, Fania Oz-Salzberger (who is married to law professor Eli Salzberger - because Israelis, including Israeli law professors, are each a Kevin Bacon of connectivity) called Jews and Words (Yale Press). Oz's writing will forever remain in the canon of great literature with a deep moral compass. 

Posted by Orly Lobel on February 5, 2019 at 08:45 PM | Permalink | Comments (2)

Blogging's Future

Rick Garnett writes at Mirror of Justice that this week marks 15 years of his blogging there (and slightly less time blogging here). He closes the post as follows:

The flow (as well as the speed and, perhaps, the snarkiness) of the public conversation has changed over the last 15 years.  Twitter wasn't around.  Facebook, believe it or not, was launched on the same day as Mirror of Justice.  (Arguably, we've done better at our mission than they have at theirs!)  Legal practice, legal scholarship, and legal education have changed significantly, reflecting the ongoing Digitization of Everything.  A lot that used to be said, in paragraphs, on blogs is now said, with a few words (or emojis or gifs) on Twitter.

It's not clear to me what the future holds for this blog-venture, or for blogging generally.  I'd welcome others' thoughts! 

Paul has thought and written about this question in the past, so he is the best and most thoughtful person to answer. We had a brief exchange here about the migration of some blog writing to Facebook and, as Rick notes, to  Twitter in fewer words and emojis; there is some debate about how heavy that migration has been. As someone who is not on Facebook or Twitter and believes both have made discourse worse, I hope blogs do not go the way of the 8-track.

It may be that fewer blogs remain, but those that do will keep going strong, whether as a replacement for or complement to Facebook and Twitter. The Volokh Conspiracy announced that Irina Manta, Stephen Sachs, and Keith Whittington have joined as permanent authors. I am thrilled that Gerard has joined us, a move I expect will add new life to this site. And MoJ serves a particular and special message that is not easily replaced and so should continue.

In any event, congrats to Rick on 15 years.

Posted by Howard Wasserman on February 5, 2019 at 11:34 AM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (5)

Criddle et al., Fiduciary Government (and one other general recommendation)

A friend just wrote noting that he has been blogging for 15 years now. We ran a series of posts around our tenth anniversary asking about the future of blogging and of Prawfsblawg itself, and doubtless one could write more today, probably gloomily, on the same subject. For those of us who are not enamored of hot takes or siloed "conversations," along with others who have been enthusiasts about the robust democratic world of social media but are starting to suspect that a platform like Twitter is not completely healthy, there is still (I hope) a role for blogs, although no doubt a smaller and chastened one. Certainly specialized blogs that are less about disguised op-eds or short draft versions of articles, but instead focus on the sifting and dissemination of useful information in a world of overwhelming content, like Larry Solum's blog or Jotwell, are still go-to sources for many of us. Similarly, one thing that some blogs I still frequent do well is to announce new or forthcoming books. People are still writing them and, I hope, reading them: there is more in heaven and earth than can be accessed through the Westlaw database. 

With that in mind, let me note the announcement by Cambridge University Press of a new book, edited by Evan J. Criddle and four other co-editors, simply titled Fiduciary GovernmentCriddle and other co-editors like Evan Fox-Decent have been writing on fiduciary theories of law--especially public law--for some time. But the subject, in my view, has flourished and taken on new interest in recent years. A larger number of authors--many of them seemingly influenced by what they may consider the rise of less faithful office-holders--are speaking in terms of fiduciary obligations, official norms and roles, and so on. As one who is specifically interested in the relationship between oaths, offices, and honor and the United States Constitution, I'm glad the subject is taking on more fans. I hope that new readers in this area will not be fair-weather friends, that they'll think and write about this subject (positively or negatively, but in a critical and engaged fashion either way) over the long term and extend their interest to related subjects (like, say, oaths, honor, and virtue ethics), apply it with equal vigor to other officers besides the ones they're not fond of, and won't necessarily feel the urge to turn the topic into one that is judicially enforceable or applicable through some doctrinal mechanism.

In any event, the book looks very interesting and wide-ranging. Contributors include the other co-editors, Andrew S. Gold, Sung Hui Kim, and Paul B. Miller; Laura Underkuffler; Nicholas Parrillo; and Prawfs' own Ethan Leib, who has a number of valuable articles published or forthcoming on this subject. It's priced to move--to libraries and other institutional buyers. But if you have a relationship with such a library, I hope you'll encourage it to obtain the book.

A quick note for those who like to keep track of new books: Another useful source for me is the St. John's Law and Religion Forum, which is an excellent source for news of new, mostly but not exclusively academic books, not only in the core of law and religion but across a broader range of interests and subjects. It's well worth reading it regularly.      

Posted by Paul Horwitz on February 5, 2019 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

Submission Angsting Spring 2019

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.)

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron and Levit's extremely helpful guide to submitting to law reviews is available here (this is the January 2019 version). The article now also includes hyperlinks to law review websites.

Comments now appear from newest to oldest.

Posted by Sarah Lawsky on February 5, 2019 at 09:00 AM | Permalink | Comments (143)

Monday, February 04, 2019

The Upside of YA Literature's Internecine Warfare

This post is neither about law nor about the substance, such as it is, of controversies such as that surrounding Amelie Wen Zhao and her once-forthcoming debut novel "Blood Heir," which she has now apparently requested her publisher to pull from its scheduled release. This episode was part of a larger phenomenon of internal debate and internecine warfare in the Young Adult literature community, and particularly the version of that community that appears on That Dreadful, Socially Destructive Social Media site. A substantial, and certainly partial, take can be found on the Zhao episode and its larger context in this article by Jesse Singal, although I gather vaguely that there are some for whom citing Singal is like citing the Devil and who argue that the whole thing is substantially his fault for having the temerity to write about it. Doubtless the same is true, for some readers, about Kat Rosenfeld, who has also written about what she, and apparently other people, call the "toxicity" of "YA Twitter." (I want to be fair here and suggest that while that sector may be particularly egregious, it's hardly unique. Is there a non-toxic sector of Twitter?) But although I have views on these matters, these links are purely for context (and, for fairness's sake, here is a contrary take), and my views on the controversy are irrelevant here. I want to talk instead about the distinct upside of the possible implosion of the young adult literature industry. 

If I may indulge in a "When I was young" moment: In my youth, there was much less literature that could be characterized as "Young Adult" literature, and plenty of it was, as I recall, unsatisfying for any reader of even faint ambition. For an active and eager reader, the paucity of fiction (and non-fiction) aimed at intermediate readers led to an obvious response: To walk across the room, in a library or bookstore, and start reading adult literature. Some of it was a stretch, no doubt, but stretching is good. Some of it was beyond me, I'm sure, but that's not a terrible thing either and actually has interesting and valuable effects. One could sense the larger themes and ideas even if one was not yet fully conscious of or able to see all of them; that sense created a feeling of resonance and of looming deeper mysteries and experiences in life that enriched both one's reading and one's sense of the world; and rereading those books over time, as one got older and saw more of those ideas more clearly, created a layered sense of richness in one's reading life. This was an important part of how one actually became a young adult, and eventually an actual adult.  

I can't say whether the same ratio of good to mediocre or bad still applies to YA writing today, although I have no particular reason to doubt it. But the sheer quantity has certainly changed, and as such the number of what I will stipulate as "good" or involving books for young readers, especially novels and series of novels, has grown hugely. My kids are both skilled and eager readers, and I have seen in them (and in other kids) one result of the availability of all that YA writing: It's harder to get them to make that move across the library or bookstore, to make the transition from "young adult" to "adult" literature, even though they are more than capable of reading the more adult work. They read and reread their favorite books and series--and the profit motive ensures there's often a fifth or ninth book in that series. And they resist the suggestion that if they like a particular YA book, they might well enjoy a vast range of more challenging books, written for adults, that involve some of the same themes or genres but are much better written and much more challenging and involving. With so much available to them between the shallows and the depths, and with all of their friends reading the same things, they can simply stay in place and tread water--if not indefinitely, then for much longer than one could when there was a lower volume of such literature.

Let me suggest, or speculate, that if the entire YA industry (and an industry it surely is) were to implode tomorrow, torn apart in mutual recrimination and political warfare, or if that warfare were to result in the available work becoming ever more homogeneous, schematic, and unsatisfying, the result could be good for young readers. Leave aside the fact that much of this enormous inventory is mediocre: that's true of any large inventory of writing. But they would be more likely to do sooner what they should do in the first place, and preferably as soon as (or before) they are able: to move on, to move up, to read more challenging writing pitched above their reading level, and so to actually advance as readers, thinkers, and individuals. They would read LeGuin or Orwell or Huxley or Cormac McCarthy's The Road instead of the endless pile of so-so dystopian novels and series that they can gorge on indefinitely but without much nutrition. They would grow as readers and grow up as people. Every cloud has its silver lining, and it seems to me that the diminution or death of YA literature would have a pretty big upside. And that's just for young readers. It seems to me that a pretty substantial number of actual adults, both relatively young and older, are more than happy to remain in a semi-infantilized state, wallowing in the same literature as 11-year-olds, treading water below their "reading level," and treating fiction as comfort food. Perhaps some of them came up in the Harry Potter era and suffered the lasting effects of not having to stretch as much and as soon. (This is one reason that, although I know that in theory my kids should grow out of the YA field as they get older, I'm not positive it will perforce happen in practice.) They might have to grow, or grow up, as readers too.

As a postscript, let me note an idea that I stole quite happily from a friend. As a condition of the use of electronics (one could condition it on other things; for my friend, it's paying their phone bills), my wife and I require my kids to read one adult book of our choice each month. We keep their tastes and preferences in mind, since part of the goal is to help them realize that within their range of current interests there are many better and more challenging choices available to them, both in fiction and in history and other forms of non-fiction, and to get them to start browsing the adult shelves for themselves. But we also sometimes force them to read books we think they ought to read or to have read, regardless of their preferences. Parenthood is not, of course, all about making and keeping your children happy, being their friends, or doing what they want, and children are not their parents' equals in these or many other matters. Some of the books we've assigned haven't hit much of a responsive chord with them--for now, that is; who knows what effect reading that book will have on them some time in the future? Other selections have hit a chord, and have encouraged them to seek out other books and learn about new topics, but at a serious and challenging level instead of remaining perpetual Goldilocks types, content with what's "good enough" or "just right." It's been a very useful house rule. I encourage others to try it out if they too worry about their kids treading water instead of pushing into the depths, and certainly would love to hear about similar or other approaches. 

  

Posted by Paul Horwitz on February 4, 2019 at 09:18 AM in Paul Horwitz | Permalink | Comments (14)

Friday, February 01, 2019

2019 Symposium Submissions: Kentucky Law Journal

Kentucky Law Journal is now accepting symposium topic proposals for the 2019–2020 academic year. Please submit symposium topic suggestions following the instructions below no later than February 8, 2019 at 11:59 pm EST. If you have questions, please email our Special Features Editor, Summer Bablitz, [email protected] or Editor-in-Chief, Kyle Schroader, at [email protected]

Continue reading "2019 Symposium Submissions: Kentucky Law Journal"

Posted by Howard Wasserman on February 1, 2019 at 09:48 AM in Teaching Law | Permalink | Comments (0)

Thursday, January 31, 2019

Misquoting Churchill on Democracy

One of Winston Churchill's famous quotes is that democracy is the worst form of government except for all others. I've used this quote in past blog posts to express a world-weary, second-best opinion of elected officials, political campaigns, or voter ignorance. It's hardly inspirational.

In research an article that I'm writing about Churchill, though, I've come to see that his quote was very different. Here is what he actually said (in a speech to the House of Commons in 1947):

[I]t has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time; but there is the broad feeling in our country that the people should rule, and that public opinion expressed by all constitutional means, should shape, guide, and control the actions of Ministers who are their servants and not their masters.

This conveys a completely different. Churchill was not saying that he thought democracy is the worst form of government except all others. Indeed, he was rejecting that notion in favor of popular rule. And if you look at his speeches over many decades, you find a consistent theme in support of democracy as an ideal that he cherished. 

 

Posted by Gerard Magliocca on January 31, 2019 at 02:00 PM | Permalink | Comments (2)

Wednesday, January 30, 2019

Corpus Linguistics Comes to the Fourth Circuit (and that’s not a good thing!)

An amicus brief was filed yesterday in the Fourth Circuit Emolument Clause case against President Trump.  The brief was filed on behalf of Clark Cunningham, who is a law professor at Georgia State, and Jesse Egbert, who is a linguistics professor at Northern Arizona University.  The brief states that Professors Cunningham and Egbert have undertaken a “scientific investigation” to conclude that the word emolument did not have “a distinct, narrow meaning limited to ‘profit arising from an office or employ.’”  Some people on the platform-that-must-not-be-named are circulating this brief and its conclusion, presumably because it supports the challenge to President Trump’s business practices under the Emoluments Clause.*

So what is this “scientific investigation” that the professors undertook?  Did it involve a microscope?  Or double-blind clinical testing?  Nope.  It involved the use of corpus linguistics --- a new approach to statutory interpretation that I’ve criticized before, both here on this blog, and also in this short essay.

I will not rehash my arguments about why I’m deeply distrustful of corpus linguistics as a tool for statutory interpretation—especially the interpretation of criminal laws.  But I do want to say a few words about characterizing corpus linguistics as “scientific investigation” and why I am concerned that a law professor would allow his corpus linguistics analysis to be characterized that way.  (Note:  The amicus brief was written by an attorney, but Professors Cunningham and Egbert were the clients.  So I am assuming that they had the ability to object to the use of the phrase “scientific investigation.”)

For one thing, using the phrase “scientific investigation” connotes that the professors conducted an experiment, that the results of that experiment were objectively observable (rather than mere subjective impressions), and that the findings can be replicated.  This is reminiscent of claims by others who advocate for the use of corpus linguistics in statutory interpretation because those “findings are replicable and falsifiable.”

But corpus linguistics does not allow you to type a word or a phrase into a computer which spits out an answer to the question of meaning.  At best, corpus linguistics allows other people to replicate your search of a corpus linguistics database,** but it does not allow them to replicate your findings.  That is because the findings of a corpus linguistics analysis require inference and interpretation.  I’ve made this argument before (using a case called Rasabout as my example).  But the subjective judgment required is on stark display in this brief.

Among other inferences, Professors Cunningham and Egbert conclude that, because the word “emolument” was often modified by the word “official,” that means the word “emolument” when it appeared without modification was generally understood to mean something broader than “profit arising from office.”  If everyone would have understood the term “emolument” to be limited to profits from holding office, so their argument goes, then “official emolument” would be an oddly redundant phrase.  It is for similar reasons, Professors Cunningham and Egbert explain, that we don’t often see the word “fork” modified by the word “metal”—we generally assume that if someone is referring to a fork, then he or she is referring to a metal fork.

This analysis by Professors Cunningham and Egbert may seem perfectly logical.  And you may even be convinced by it.  But the fact that something seems logical does not mean it is “scientific.”  To the contrary, many things that appear logically true end up being empirically false.  Once you have to rely on inferences to derive "findings" from your results, you have left the world of objective truth and moved into the realm of theory. 

There is a second reason why I am especially troubled by the use of the term “scientific investigation” to refer to a corpus linguistics analysis:  It allows Professors Cunningham and Egbert to dismiss opposing views as a failure of “scientific method.”  You see Professors Cunningham and Egbert are not the first academics to undertake a corpus linguistics analysis of the word emolument.  There is a 2017 article by Phillips and White in the South Texas Law Review, which uses corpus linguistics to arrive at the exact opposite conclusion.***  The amicus brief cites to the Phillips and White article, but rather than engaging with the article on the merits, it dismisses the article because it relies on an assumption that (according to the amicus brief) “has no scientific basis” and that is “disproved by the linguistic research reported in this brief.”  The amicus brief goes on to state: “Although Phillips & White subtitle their article ‘A Corpus Linguistic Analysis,’ none of their conclusions about the 18th century meaning of emolument are based on the scientific methods used for the research reported in this brief.”

Continue reading "Corpus Linguistics Comes to the Fourth Circuit (and that’s not a good thing!)"

Posted by Carissa Byrne Hessick on January 30, 2019 at 12:26 PM in Carissa Byrne Hessick | Permalink | Comments (14)

4th Annual Administrative Law New Scholarship Roundtable

The University of Wisconsin Law School is pleased to host the 4th Annual Administrative Law New Scholarship Roundtable on June 9-11, 2019. For the past three years, the Roundtable has offered administrative law scholars an excellent opportunity to get feedback on their work from senior scholars in a collaborative setting.

Continue reading "4th Annual Administrative Law New Scholarship Roundtable"

Posted by Howard Wasserman on January 30, 2019 at 12:09 PM in Teaching Law | Permalink | Comments (0)

JOTWELL: Pfander on Sutton on state constitutionalism

The new Courts Law essay comes from James Pfander (Northwestern), reviewing Judge Jeffrey Sutton's new book on state constitutions and their role in constitutionalism.

Posted by Howard Wasserman on January 30, 2019 at 09:52 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Tuesday, January 29, 2019

National Conference of Constitutional Law Scholars

THE REHNQUIST CENTER is pleased to announce the second annual National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 9–10, 2019. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

David Strauss will deliver a keynote address. Distinguished commentators for 2019 include:
• Jessica Bulman-Pozen • Gillian Metzger • Bertrall Ross
• John Harrison • Victoria Nourse • Stephen Sachs
• Aziz Huq

Continue reading "National Conference of Constitutional Law Scholars"

Posted by Howard Wasserman on January 29, 2019 at 01:54 PM in Teaching Law | Permalink | Comments (1)

Monday, January 28, 2019

The District of Columbia and Presidential Elections

Howard Schulz's expression of interest in running for President as an independent prompted the following thought. Suppose that three people run for President and split the electoral vote such that none of them receive a majority of electoral votes. Everyone knows that the process for resolving that deadlock is in the Twelfth Amendment. The House of Representatives would pick the President from among those three and the Senate would pick the Vice-President from the top two running mates. In the House, each state receives one vote and the winner must get a majority of all the states. Over in the Senate, they just vote normally and the person with a majority wins.

What about the District of Columbia? The District of Columbia did not vote for President when the Twelfth Amendment was ratified. The Twenty-Third Amendment says that the District shall appoint presidential electors as if it were a state and that they shall meet in the District and perform such duties as provided by the twelfth article of Amendment. If the elections are thrown into the House and Senate, though, the District would be disenfranchised. Their electors cannot vote in Congress, they have no voting representatives in Congress, and the Twelfth Amendment refers only to states.

I wonder if the drafters of the Twenty-Third Amendment deliberated excluded the District from the tie-breaking procedure or just did not think about that prospect. Here's another question. Could the Congress, under its power to enforce the Twenty-Third Amendment, give the District a vote as a state in such a circumstance? Arguably not, given that the failed constitutional amendment sent to the states in the 1970s on congressional representation specifically said that the District should be treated as a state for purposes of "election of the President and Vice-President" without qualification and would have repealed the Twenty-Third Amendment. This implies that the exclusion of the District from the tie-breaking procedure was recognized then and seen as a constitutional defect.

Posted by Gerard Magliocca on January 28, 2019 at 07:32 PM | Permalink | Comments (2)

Faculty Hiring: Three Faculty Positions at Lewis & Clark

Lewis & Clark Law School is currently accepting applications for an Assistant Clinical Professor in the Low-Income Taxpayer Clinic, an Assistant Clinical Professor in the Animal Law Litigation Clinic, and a Visiting Assistant Professor (two years) in the Lawyering program. Applications for the Low-Income Taxpayer Clinic and VAP positions are due February 8, 2019. Applications for the Animal Law Litigation Clinic position are due February 15.

Posted by Howard Wasserman on January 28, 2019 at 03:37 PM in Sponsored Announcements, Teaching Law | Permalink | Comments (0)

"Two Weeks In": thoughts for first-year students

For about 15 (!) years now, I've imposed on the students in my first-year classes (Constitutional Law and Criminal Law) a version of the meandering and sprawling e-mail that's pasted below the jump.  It's meant to be an evolving reflection on legal education and formation, and the legal enterprise more generally, for (again) people who are still pretty near the starting gate.  I'd welcome (off-line or in the comments) any thoughts or suggestions for improvement!

Continue reading ""Two Weeks In": thoughts for first-year students"

Posted by Rick Garnett on January 28, 2019 at 09:29 AM in Criminal Law, Life of Law Schools, Rick Garnett | Permalink | Comments (2)

Sunday, January 27, 2019

Literal Sovereign Immunity

Two weeks ago the Duke of Edinburgh (the Queen's husband) was involved in a car accident and someone in another car was injured. As the Duke is 97 years old, there is some reason to think that he was negligent. Would he be liable, though, if the injured party sued him? Or is he covered by some sort of royal immunity in a "The Queen can do no wrong" sort of way.  I don't know. I take it he has auto insurance. Does he get a better rate than another 97 year old driver would? Probably.

Posted by Gerard Magliocca on January 27, 2019 at 10:47 AM | Permalink | Comments (3)

Friday, January 25, 2019

The Digital Library of The Supreme Court Historical Society

I wanted to let scholars know about a happy development. The Supreme Court Historical Society has started digitizing its library. Members of the Society can now access these works, including the Holmes Devise on the Supreme Court and many other classic books on constitutional law. You have to join the Society to obtain access, but some of you may want to consider doing that now.

Posted by Gerard Magliocca on January 25, 2019 at 11:27 AM | Permalink | Comments (2)

Wednesday, January 23, 2019

Your new civ pro exam question

A lawyer in Kentucky is threatening to sue a whole lot of people for defamation for commenting on the videos of the Covington Catholic students at the Lincoln Memorial. He was excited by the fact that, because the kids were initially not public figures, he only has to prove negligence rather than actual malice. I believe he is going to have a hard time showing falsity or negligence, since much of the commentary was based on the speaker's interpretation of multiple videos from multiple angles that painted an at-least ambiguous picture. There also is a group-libel angle--one group of potential plaintiffs are Covington Catholic alumni, who claim they have been defamed by the negative comments about their school.

For now, I have a different question: Is there personal jurisdiction in Kentucky (where I assume he plans to sue) over reporters and others on Twitter who saw and commented on the video? Under an effects test, the statements must be directed at Kentucky. That the plaintiffs are from Kentucky is not enough, standing alone. The events being commented on occurred in Washington. The statements were sent to the world, not specifically (or primarily) to Kentucky. Many of the potential defendants have never set foot in Kentucky, certainly not as part of these events.

The counter might be that the students' "Kentuckiness" was part of the public commentary about them--everyone quickly knew and talked about where they were from and where they went to school and the connection of their homes to their presence in DC. And criticism of the school and Covington was part of the criticism of the students. Perhaps that is sufficient to establish purposeful direction at Kentucky.

Posted by Howard Wasserman on January 23, 2019 at 01:08 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Nevada v. Hall and Intergenerational Legal Change

Nevada v. Hall is a decades-old sovereign immunity precedent that the Supreme Court nearly overruled several years ago, before Justice Scalia passed away. Now that the Court is back to full size, the question of whether to overrule Hall is again before the Court, and it seems likely that—once again—a conservative majority is inclined to answer yes. From one standpoint, that outcome is unsurprising: Hall has been a target of conservative critics for many years. Yet there seems to be a generational shift afoot: younger conservatives seem much more likely to think that Hall came out the right way. That apparent generational divide could shed light on Hall’s fate, as well as on broader trends in precedential change.

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Posted by Richard M. Re on January 23, 2019 at 09:30 AM | Permalink | Comments (10)

Tuesday, January 22, 2019

Frivolous lawsuits for me but not for thee

What are the odds that the New Orleans Saints season-ticket holders bringing these absurd lawsuits vote Republican and support litigation reform?

Posted by Howard Wasserman on January 22, 2019 at 11:31 PM in Howard Wasserman, Sports | Permalink | Comments (10)

District Attorney Elections in 2019

Most district attorneys are elected in either a presidential election year or a congressional election year.  But some states hold elections for DA in off-cycle years.  By my count, there are 183 local prosecutors up for election in 2019.  

The jurisdictions whose prosecutors who are up for election are included after the break:

Continue reading "District Attorney Elections in 2019"

Posted by Carissa Byrne Hessick on January 22, 2019 at 02:32 PM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (0)

The New York City Gun Regulation Case

Today the Court granted certiorari in New York State Rifle and Pistol Ass'n v. New York, which raises multiple constitutional challenges to a New York City ordinance that restricts the transportation of certain licensed handguns out of the City. My initial impression from reading the Second Circuit's opinion (which upheld the ordinance) and the cert petition is that the decision below will be reversed. I'm having a hard time understanding why the ordinance passes muster under the Dormant Commerce Clause, let alone under the Second Amendment.

On the former point, New York issues a certain kind of handgun permit that says you may use the gun in your home and take it to shooting ranges within the City to practice, but you may not take the gun to a shooting range outside of the city to practice. The public safety rationale for this distinction escapes me (keep your guns here?) but it sure looks good if you're the owner a New York City shooting range.  

Posted by Gerard Magliocca on January 22, 2019 at 11:35 AM | Permalink | Comments (2)

The legal fiction of "clearly established"

Orin Kerr flags this Third Circuit decision holding that a Fourth Amendment right was not clearly established where a binding circuit decision was handed down two days before the events at issue. That was too short a time for the government to read and understand the case, develop new policies to reflect that case, and communicate those policies to the officer. Kerr ponders some interesting questions arising from the case about determining how long it takes for a right to become clearly established and what the government and/or the officer must do to learn the law.

It seems to me this exposes two problems in qualified-immunity law. One is the essentially fictitious nature of tying qualified immunity to factually similar case law--law-enforcement officers do not read or follow case law and they do not perform their daily functions thinking about how the instant situation compares or contrasts with a situation in other cases. Talking about "the law of which the officer would be aware" in terms of case law does not reflect how law enforcement operates.

Second is how the Third Circuit's focus on policymakers establishing policy to reflect the new decision and communicating that policy to the officers. This appears to collapse into municipal-liability analysis (in a case involving a municipality, as opposed to the federal or state governments, such as this one)--government policy and government training of officers is necessary to clearly establish, both hallmarks of municipal liability. So does this suggest that a right is clearly established only if a municipality would be liable for having policies contrary to law or for failing to train on those policies?

Posted by Howard Wasserman on January 22, 2019 at 11:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

"Pre-Tenure"* and "Post-Tenure" and Why They Should Be (Mostly) the Same

I commend to readers Carissa's post below and, by extension, the answers she got to her questions on That Awful Social Media Site. Someone recently reminded me of a post I wrote almost exactly a decade ago on advice for tenure. I wrote there, "Tenure generally isn't the biggest hurdle in the legal academy, for better or worse, so there's no point being unduly paranoid about it; and if that tenure is really going to be worth anything, you ought to be willing to risk it at least a little.  I should hope that we all decided to pursue legal scholarship for a reason, and that the reason wasn't just job security; so pursue it." It was admittedly written shortly after I had received tenure, but these were my views by the time I had reached the application for tenure stage. (Indeed, I passed up the chance for tenure to take a lateral position, which required me to move without the certainly of tenure. I can't say that the decision loomed large for me. And I made a number of decisions during my application period that were expressly about doing what I thought was right rather than professionally prudent, in part to remind myself of and commit myself to those views.)

Some of the same spirit is evident in Orin Kerr's response to Carissa's call for comments. Orin writes that "an ideal answer is not to change much at all, as in the ideal world the professor was already doing what they loved and wasn't doing what they were doing [because] of tenure considerations. This is more likely in law than other fields, I think, given high tenure rates." And he notes that he did a variety of things before tenure that were not on the usual menu of recommended actions.

I generally think that one should behave the same before tenure as one does after tenure. But Larry Solum's list of advice items was useful in clarifying this view slightly. There are some items on his list (specifically, 2, 4-6, and 8) that seem to be relevant to the potential difference between tenure-track professors who are untenured* and those who are tenured. For example, he writes that tenure "imposes a time frame" while tenure "removes it," and that this can affect the kinds of projects one undertakes. And he talks about using the time after tenure to "retool." Similarly, he talks about using the advantages and longer time-frame of tenure to consider new areas of teaching. As a final example, he writes in the same item that untenured professors are often more narrow, focusing on a particular subject or issue, and that one should consider expanding (including into new areas) after tenure.

Most of his other items seem equally applicable to both those without and with tenure. "Read inside and outside your field" is something that anyone pursuing this calling ought to be doing as a matter of course, in part because reading "outside your field" often adds new insights to the state of things "inside your field" and in the world, and in part because it is what civilized people, in or out of the academy--even those who generally focus on a particular subject matter--ought to do. "Self assessment," again, is something that should always be on anyone's mind, in or out of the academy, at least if they are interested in self-knowledge, humility, and the remote hope of wisdom. And remembering and focusing on "the intrinsic rewards" of one's calling, or being "present for your family or friends," are goals we should keep in mind at every stage of our adult and working lives.

There are, I think, two features common to all of the bits of advice Larry offers that seem most pertinent to untenured professors on the tenure track: 1) Those who are seeking tenure have a deadline in mind, albeit a generous one, and one that is even more generous now that many people start teaching in medias res, after already having done a fellowship and some writing and teaching. 2) Those who are in an early stage of their academic career are newer and younger and perforce have less knowledge--of their field, of the world, of their own strengths, weaknesses, and limits, of their colleagues and of the folkways of their own institution and of the legal academy. The first calls for some degree of care in choosing at least a few projects that can be completed in time, and for similar reasons in focusing to some degree on a particular area rather than having to learn new things for each project. The second calls for humility. Not necessarily prudence, of the political or strategic kind, and indeed too much cultivation of that kind of "prudence" may make one into a life-long calculator, flatterer, and self-censor. But it is fair to recognize that one doesn't know everything--about one's field, about teaching, about one's colleagues, and so on. The person who remains silent at a faculty meeting before tenure for purely calculating reasons arguably is failing in her duty of faculty governance; the person who hesitates before speaking because she is aware that she may not be aware of everything, that she may not have the right answers, that things might be more complicated than she thinks, and that the issue may have its own institutional history, and who thus wants to learn a little first, is acting wisely and humbly--prudently, even, but this kind of prudence is about one's best self rather than one's self-advancement. There are good reasons for these two factors to influence one's choices prior to tenure. The rest of his advice, it seems to me, is good no matter the stage of one's career.

So, both as practical advice and as a matter of academic and professional values, I would argue in response to Carissa's call for opinions and advice that for the most part, barring questions of timing and humility, one should be and act the same both pre- and post-tenure. As Orin notes, tenure rates at law schools are, as best as I can see from the data I have, much higher than they are for many sectors of the academy. It's true that one may also be thinking of "lateral" advancement, of fame and reputation, and so on. But even if one never moves from one's first job, for those of us who are called to this line of work even the "worst" job is the best job we have ever had. Given that, and however nervous one naturally gets about it, the reality is that tenure is not the highest of hurdles. One can, and should, think about the long term even as one keeps in mind basic shorter-term needs. Given the relatively small number of pieces required for tenure, there is room to write that book, or at least start writing it, especially if one has already done a good deal of writing and publication on the subject. There's room to think about one's teaching and service, even if humility and timing counsel not reinventing the wheel every semester. One should not see oneself as two radically different individuals--one calculating and cautious, one "liberated"--before and after tenure. 

I suggested that this advice is both practical and value-based. On the latter front, I have deliberately used the word "calling" throughout this post. That is what the life and job of a scholar and teacher is supposed to be, and one should treat it as one, and ponder and cultivate from the beginning the values and conduct of one who is called to this work. One's duties as an associate and as a partner may be different at the kinds of firms many of us worked at; but one doesn't save ethical conduct until one is a partner, and many an associate who is "called" to partnership will be thinking about clients, client development, and business questions early on, while many of us who are definitely only short-term associate material only sit in our offices and work. In any profession and/or calling, the younger professional may still have much to learn, but certain values and behaviors are supposed to be ingrained in one from the moment one begins and, in many cases, literally takes one's oath as a member of that profession. Someone who treats academia as a calling will, at least ideally, act with that calling in mind from the start and put the values, traditions, and ideals of the calling first, including putting them ahead of questionable calls that might aid one's own career. 

That said, the practical and the prescriptive are by no means wholly separate. The ideal conduct and values I'm urging here are not radically inconsistent with the hope of promotion and tenure, especially given our generally high tenure rates; even leaving aside how one should act, one generally need not be radically calculating before tenure. But there's another reason they're not separate. From the start of one's career, one is engaged in professional and personal formation. One's choices and actions inculcate values and habits that are likely to last a long time--perhaps for the whole of one's career. Without wanting to overstate the point, I worry that those who think they can act in a more "prudent" fashion pre-tenure--"prudent" in this case meaning cautious, careerist, deliberately silent, calculating, and so on--and will then act as they think they should act once they are tenured are underestimating the effects of their early choices on their longer professional formation and their identities. The person who learns early on to hide her thoughts, flatter the great, and judge every decision by how it will affect their advancement may internalize those habits and make a career of them. Tenure won't necessarily lead them to shed these habits. Moreover, they may end up applying those habits in turn to junior colleagues. The person who tells herself she should act "prudently" before tenure lest she harm her own professional chances may tell herself at the time that these are bad but necessary habits, that in an ideal world she would not have to act this way, and that she certainly won't treat new colleagues the same way. (On the other hand, cultivating humility and an awareness of what one doesn't know at an early stage of one's career is something one should do regardless of professional advancement.) But upon reaching tenure, she may find that she is repeating the same advice she got when she started--and she may even end up judging negatively those who don't play this kind of game as juniors, thinking of them as presumptuous, incautious, unwise, naively unaware of "the game," stubbornly or rudely unwilling to take her advice, and so on. What everyone is supposed to be thinking of as a temporary and unfortunate expedient may simply become the culture of the institution, both one's own local institution and the broader (legal) academy. We will reproduce careerism just as we reproduce hierarchy. 

Combining the two strands of this post, I would offer the following advice. 1) By all means remember that if you want tenure, you have a deadline and a set of requirements to meet by that deadline. Don't let it creep up on you and surprise you, and don't get so distracted by other things that you fail to do what is needed. 2) By all means remember that you are just starting out and don't know everything: not only about your field, but about your colleagues, your institution, and what it means to be a good or great academic. By all means don't hold your tongue at every faculty meeting, including on issues that matter a great deal to you, simply for reasons of self-preservation. Once you are a faculty member you are a part of the governance of your institution and have a right and sometimes obligation to speak. But remember that there are sometimes good reasons to be cautious in speaking: namely, that you may not know as much as you think you do about the issue, its history, or what your colleagues have already done. 3) Those two considerations aside, think of your work as a calling, think about what kind of academic you want to be, what academic values entail, and what kind of world you would want both untenured and post-tenure faculty to occupy--and act accordingly. Deadline and humility issues aside, do nothing before tenure that you believe you would find objectionable after tenure. Your views may change over time. But you will be getting an early start at cultivating the kinds of habits and values that will serve you, your home institution, and the legal academy as a broader institution well. 4) When the time comes to give advice and support to untenured colleagues, by all means offer prudential advice. But make sure the junior colleague knows that it is only prudential advice, that it's only instrumental, and that there are other kinds of advice they need as well. Offer and model deeper values and the concept of a calling, and encourage your junior colleagues to be their best and not just their most calculating selves as academics--and be sure to support them if and when they do so, rather than punishing them for not following regnant careerist conventions.

If you find that you are not doing so--that you are acting differently before tenure than you would want to after tenure, that you are acting as a careerist now while promising yourself that you will be "liberated" to pursue legal academia as a "calling" later, or what have you--then there are several possible conclusions you might consider. I say this with all due consciousness that we are all human and imperfect, that this includes tenured and senior colleagues as well as untenured colleagues, that it's understandable to want to keep one's job and achieve goals like tenure and advancement, and so on. One possibility is that your colleagues are failing in their duty: they are failing to treat the academic life as a calling and act according to its values. If it is really the case that they expect you to behave differently before tenure, and not for reasons of timing or humility, then your institution has a problem and its members need to think seriously about their values and conduct and about whether they are in the right place. Another is that you are making undue assumptions about your colleagues. You may assume that they all expect you to act in a particular way, and in doing so be giving them too little credit. Don't assume the worst of them right off the bat--even if it is true for some of them, and even if a senior colleague, perhaps one of those who imbibed certain "prudent" habits early on and forgot to let go of them after tenure, and who assumes the same is true of everyone else, tells you, with what might be undue confidence and certitude, that everyone and everything is political and you should act accordingly. 3) Although this seems harsh, it's not meant to be. It may be that it's you, not your colleagues, who needs to rethink things--including whether you really have a calling as an academic. It's surely better to think about that relatively early (although one hopes that one would think about it long and hard before ever taking the job or going down that road, and then commit to the right values once one has committed to that path) than too late--not just for yourself and your own happiness, but for the sake of the effect you will have on your own institution and on legal academia more generally as you become a senior colleague. 

* I have used the term "untenured" rather than "pre-tenured" throughout. I don't know when "pre-tenured" became the norm. Certainly there are times when one might need to distinguish descriptively between different professional lines or offices within the academy, the most prominent being tenure-track versus non-tenure-track. But when one is clearly talking about people on the tenure track, "untenured" seems a better word than "pre-tenured." There is no normative implication to "untenured," no insult or lack of dignity; it's a pretty simple descriptive term and, on the whole, a neutral one. "Pre-tenured," on the other hand, is technically accurate but seems to be designed with some vaguely therapeutic or validating purpose in mind, and to carry the loaded assumption that everyone who is untenured ought to be tenured. Except in cases where it serves some precise delineating or defining purpose, I'm not sure what justifiable linguistic purpose is served by the widespread adoption of the term "pre-tenured."     

 

Posted by Paul Horwitz on January 22, 2019 at 10:22 AM in Paul Horwitz | Permalink | Comments (2)

Monday, January 21, 2019

SCOTUS does Civ Pro, confusedly

I just listened to last week's argument in Home Depot v. Jackson, which showed how confused the Justices get about Civ Pro. The issue is whether a third-party claim brought under CAFA can be removed by the third-party defendant. In the case, Citibank brought a debt-collection against against Jackson in state court; Jackson filed a counterclaim and impleaded Home Depot on an unfair trade practices class action. Home Depot wanted to remove the third-party claim under CAFA, which allows for removal of class actions with an amount-in-controversy over $ 5m on minimal diversity. The Court has held that a counterclaim defendant (otherwise known as the original plaintiff) cannot remove; the question is whether that is true of a third-party defendant.

Some thoughts:

• There was a lot of confusion about the distinction among counterclaims, cross claims, and third-party claims, even among the advocates. That confusion affected the question of whether Home Depot is a "defendant" or a "third-party defendant" and whether there is a difference between those two things. Does "any defendant" in § 1453(b) include third-party defendants as well as original defendants? Or, to put it in dueling metaphors, is a third-party defendant a black rabbit compared with all other defendant/rabbits? Or is a defendant a rabbit and a third-party defendant a weasel.

Continue reading "SCOTUS does Civ Pro, confusedly"

Posted by Howard Wasserman on January 21, 2019 at 01:26 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Life After Tenure

Several years ago, I attended a panel at SEALS about life after tenure.  I went to the panel because I was almost tenured myself, and I realized that I hadn’t given much thought to how I would conduct my professional life once I’d cleared the hurdle of tenure.  I forget the precise name of the panel and the people who were speaking.  But the panel nonetheless stands out in my memory for two reasons:  First, there was a very big audience for this panel.  And second, I walked out of that room thinking that no one had a particularly good answer to the question “what should you do once you get tenure.”

To be clear, people on the panel and in the audience all had different answers for the question—both about what professors should do, and what they personally had done.  Some people at the panel talked about taking on more administrative responsibility, like serving as associate dean and trying to become a dean somewhere.  One person recommended learning a new language.  Some others recommended that professors “slow down.”

In recent weeks, I’ve found myself thinking about that panel again.  One reason I’ve been thinking about this topic is that I’ve been invited to speak at a conference on March 30th called “Tenure! Now What?” (There are a lot of fancy people speaking at the conference, and so I feel pressure to say something thoughtful.) 

Another reason that I’ve been thinking about this is more personal:  Someone recently asked me where I wanted my career to be in 5 years.  I didn’t have a response other than to say I haven’t thought about my life in those terms since I got tenure.  The question made me think about the fact that I probably only 20 or 25 years left in the academy.  And so I’ve started to take stock and think about what I want to accomplish in those years.

In any event, I am still looking for answers about what people ought to do once they get tenure.  After all, I need to sound smart at the conference.  That led me to pose the question on Twitter.  Some of the answers were very good --- I recommend that you read the replies to the tweet here. In particular, I recommend Barry Friedman’s standalone thread on the topic, and Orin Kerr's tweets about how asking the question about what to do after tenure raises serious questions about what we are doing before tenure.  Please feel free to add your own thoughts in the comments to this post.  And if you are interested in attending the conference, registration is still open.

Posted by Carissa Byrne Hessick on January 21, 2019 at 10:02 AM in Carissa Byrne Hessick, Life of Law Schools | Permalink | Comments (2)

Friday, January 18, 2019

Why Is the First Set of Amendments Unequal?

In response to my post earlier this week about the Second Amendment, Orin Kerr asked why I think that there is no compelling reason for treating the provisions within the Bill of Rights as equals. Here are a few thoughts:

  1. The first ten amendments were not understood originally as a set. In other words, there was no thought that they would be treated alike except that they limited only the federal government.
  2. When people did start thinking of the Bill of Rights as a set (most notably John Bingham), that was only to say that they should all apply to the states as well. 
  3. There are significant differences among the parts of the Bill of Rights. The Fourth Amendment refers to reasonableness as a standard and the Eighth Amendment invokes proportionality for fines and bail. Other provisions do not contemplate balancing in this way. Likewise, the right to counsel in the Sixth Amendment is treated as a positive right (for the indigent) in a way that the others are not. The Tenth Amendment is structural in a way that other provisions are not. 

This does not mean that the Second Amendment must be assessed under a lower standard of review than the First Amendment. All I am saying is that you cannot persuasively argue that they must be treated alike because they are both in the Bill of Rights, which is one claim in Judge Bibas's dissent. 

Posted by Gerard Magliocca on January 18, 2019 at 03:36 PM | Permalink | Comments (17)

Thursday, January 17, 2019

Impeachment as process

Yoni Applebaum's piece in The Atlantic arguing for impeachment is getting much attention. At its core is the argument that impeachment is an investigatory and inquisitorial process and the only means for the legislature to keep the executive in check between quadrennial elections. It is not about whether the Senate convicts or even whether articles of impeachment pass the House; it is about the inquiry process. And, he argues, atomized committee investigations do not get the whole picture the way a full impeachment inquiry would.

Posted by Howard Wasserman on January 17, 2019 at 10:28 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Wednesday, January 16, 2019

How Do We Read and What Do We Understand of Digital Consumer Contracts?

Click-wrap contracts permit companies to contract with millions of customers, consumers, online users, and gig workers without negotiating with each party and without even verifying the contract was read. Uri Benoliel and Samuel Becher (who is also my recent coauthor on a different consumer law piece Poor Consumer(s) Law: The Case of High-Cost Credit and Payday Loans) have a new article on consumer contracts called The Duty to Read the Unreadable, in which they do very interesting empirical work to test whether consumer contracts are written in a way that dissuades consumers from actually reading them. They apply linguistic readability tests to the 500 most popular American websites that use online click-wrap agreements. The findings are striking, albeit perhaps not so surprising given everything we know about market power, consumer agreements, and contracts of adhesion: according to the article, effectively reading the contracts requires over 14.5 years of education.  They conclude that "lacking a clear and strong incentive to draft readable agreements, firms utilize unreadable texts as their contracts. By insisting on applying the duty to read in these cases, courts undermine notions of both fairness and efficiency." Really interesting for any scholar of contract law, consumer policy and digital deals.

Posted by Orly Lobel on January 16, 2019 at 06:34 PM | Permalink | Comments (3)

A Good Start?

Quite some time ago I wrote in a blog post that not only was I unsure why members of the Supreme Court attend the State of the Union address, I wasn't greatly sure why anyone else bothered to attend either. Any substance that might accidentally make it into a SOTU address can just as easily be delivered on paper. The spectacle part of the SOTU address might be considered worthwhile if it served as a some powerful device of national unity, like the national anthem or the final episode of M*A*S*H. Given that the actual spectacle has for some time consisted of half the room rising automatically to applaud almost anything and the other half just as automatically remaining stonily silent and seated, it is hard to say it serves that purpose anymore, if it ever did. (I'm sure it can and has on some occasions, but the occasions where it does are more likely to involve special congressional addresses than annual propitiatory rites.)

So I find it hard to consider the possibility that the State of the Union address might be canceled and/or rescheduled this year bad news. This, at least, is one one occasion on which a crisis presents a valuable opportunity, no matter whether the reasons for it are genuine, contrived, or somewhere in between. As Gerard notes below, there is no constitutional need for the full-Kabuki version of the SOTU to take place, and the nation survived just fine in the brief periods--between 1801 and 1913 and during the period between 1913 and 1934, when the SOTU was sometimes delivered in person and sometimes not--when the constitutional requirement was met through a written instrument. It seems to me that rather than reschedule the live address, we should just do without it this year, while insisting on a written report "from time to time," and then see whether the Republic is still standing. (Or, if it is not, whether a written rather than live-and-choreographed SOTU had anything at all to do with the downfall.) Then perhaps we can get to work on extending the idea to Supreme Court confirmation hearings, and rolling back the unfortunate precedents set by Justices Stone, Frankfurter, and the second Harlan.     

Posted by Paul Horwitz on January 16, 2019 at 03:37 PM in Paul Horwitz | Permalink | Comments (4)

The Bill of Rights Has First-Class and Coach Tickets

Several judges are complaining that the Second Amendment right recognized in Heller is being given inadequate respect. A notable opinion on this point that is getting a lot of attention is a dissent by Judge Bibas in the Third Circuit. Before proceeding, I should say that I know the judge. We practiced at the same law firm, he was a great scholar before joining the bench, and I supported his confirmation. Moreover, I have no particular opinion about the merits of his dissent or of the panel decision. Instead, I want to focus on one aspect of his analysis that I think is misguided.

In dissenting from the panel's decision to reject a Heller challenge to a New Jersey gun regulation, Judge Bibas twice says "The Second Amendment is an equal part of the Bill of Rights." From this premise, he reasons that "[w]e must treat the right to keep and bear arms like other enumerated rights." He then says that the majority treats the Second Amendment differently.

My problem with this line of thought is that the individual parts of the Bill of Rights are not equal to each other. Some are incorporated and some are not. Some receive robust judicial protection and others do not. The 10th Amendment is not equal to the First Amendment, for example. Perhaps they should all be equal, but I am skeptical of that claim given my research on the Bill of Rights.

Criticisms about the application of Heller rest on an assumption that the Second Amendment should be treated like the First Amendment. (Indeed, most of the cases cited by Judge Bibas's dissent are First Amendment cases, though he also cites some equal protection cases). Again, maybe this should be the law, but there is no particular reason to think that this must be true. I think it is fair to say that Heller should not be compared to the few remaining unincorporated rights, but I'm not sure which, if any, part of the Bill of Rights provides the best analogy for gun possession. 

Posted by Gerard Magliocca on January 16, 2019 at 03:17 PM | Permalink | Comments (23)

What is a "State of the Union Address"?

Nancy Pelosi has disinvited President Trump from coming the House of Representatives to deliver the State of the Union Address, given the "security concerns" created by the government shutdown. She proposes that they find another suitable date once the government has reopened or that he deliver the address in writing (as Pelosi notes was done prior to Woodrow Wilson) on the planned date of January 29.

But what is required for the President to "give to the Congress Information of the State of the Union"? Must the address be presented to Congress through the President's personal appearance in Congress or delivery of a written message to Congress? If the President gives a televised address from the Oval Office (or Mar-a-Lago or anywhere else) about the state of the union that everyone in Congress sees, has he given Congress that information?

And what is the inevitable next step in this escalation? Does Speaker McCarthy choose not to invite President Warren to the House at all, forcing her to deliver the address in writing only?

Posted by Howard Wasserman on January 16, 2019 at 12:43 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

JOTWELL: Bookman on Sinnar on procedural experimentation and national security

The new Courts Law essay comes from Pamela Bookman (Temple), reviewing Shirin Sinnar, Procedural Experimentation and National Security in Courts, 106 Cal. L. Rev. 991 (2018), which explores ways to handle national-security concerns while allowing for transparency and litigation on the merits.

Posted by Howard Wasserman on January 16, 2019 at 12:33 PM in Article Spotlight, Civil Procedure | Permalink | Comments (1)

Tuesday, January 15, 2019

Indivisibility, incidentality, and universality

A judge in the Southern District of New York universally enjoined Commerce Secretary Wilbur Ross from adding to the census a question about citizenship. The court addressed the government's attempts to squeeze the case into the debate over universal injunctions and to limit the injunction only to the plaintiffs, but found it an "odd fit." The court explained that "these cases do not involve the case-by-case enforcement of a particular policy or statute. Instead, it concerns a single decision about a single questionnaire, to be used on a single census throughout the nation." The alternative for Ross would be to use two census forms (one as to the people covered by the injunction, one as to everyone else), but that might violate both federal statutes and the Constitution and cause the harms (in terms of funding and representation) that the state plaintiffs complain about.

Without saying so, the court is describing a situation of an indivisible right and indivisible remedy. The only remedy protecting the named plaintiffs necessarily protects non-plaintiffs, because the proper census form is issued to everyone, plaintiff and non-plaintiff. This case is analogous to a gerrymander challenge to a congressional district--the remedy of redrawing the district cannot be limited to the plaintiff, but must protect everyone within the district. Or a challenge to a religious display--the remedy of removing the display cannot be limited to the plaintiff, but must protected everyone who also would come in contact with the display.

But such injunctions should not be understood as universal, in the sense of protecting non-parties. They are better understood as protecting the plaintiffs while incidentally benefiting non-parties. The difference may seem semantic, but it is procedurally significant. A person protected by an injunction can seek to enforce the injunction through a motion to enforce and a motion to hold the government in contempt. But that power should be limited to the parties who control the litigation. My framing does not change much about the injunction in this case--Ross is prohibited from issuing a census form containing a citizenship question. What changes is if Ross tried to make the two-form move: Only the parties could move to stop that as violating the injunction, not the non-parties incidentally protected.

Posted by Howard Wasserman on January 15, 2019 at 12:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Universal in name only

Sam Bray analyzes the recent split decisions over universal preliminary injunctions in challenges to the new ACA contraception rules--the Northern District of California limited the injunction to the plaintiff states, while the Eastern District of Pennsylvania made the injunction universal (labeling it nationwide, over course). Sam argues that the latter court offers the best justification for universality, with a particular focus on how the states cannot obtain complete relief from a limited injunction. For example, the court offered the problem of a NJ resident who works (and gets her insurance) from an entity in another state where the new regs apply and where the resident cannot get contraceptive coverage, causing her to turn to New Jersey to pay for it. Like Sam, I am not convinced by the analysis, although I agree it is one of the first courts to defend universality without defaulting to vague principles that make universality the norm.

I was struck by one thing at the end of the opinion. The court identifies the criticism that universal injunctions foreclose adjudication by a number of courts, but insists that is not a problem here, as shown by the contemporaneous N.D. California decision. And that has been true of much of the major constitutional litigation of recent years--multiple courts are adjudicating multiple challenges brought by multiple parties. We are getting percolation.

But that suggests that no court is serious in labeling its injunction universal. No court intends to enforce it as universal by holding the government in contempt, no court recognizes the purported universality of another court's injunction as a basis to stay its hand because its decision is unnecessary, and the government does not appear to treat any one injunction as the universal bar to enforcement. In other words, the government will not enforce the contraception regs in California because of the N.D. Cal particularized injunction, not the E.D. Pa. universal injunction. The latter is universal in name, but not in effect.

If I am right about that, the question becomes why bother. Why are courts going out on a controversial legal ledge to assert a controversial power with no intent to actually exercise it?

Posted by Howard Wasserman on January 15, 2019 at 11:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

"Law and Public Policy" (With a Welcoming Nod to Gerard)

We at Prawfs are delighted to welcome Gerard to our family of bloggers. Wherever he has blogged, I have read him loyally and with interest. His energy, curiosity, and humor are a wonderful addition to Prawfsblawg, and I'm sure his productivity will be a good influence on the rest of us. The rest of the nod to Gerard comes at the tail end of this post. I wanted to write here about about a new course I taught this fall that I am perhaps unduly fond and proud of, called "Law and Public Policy."

I have taught Leg-Reg twice, once as a kind of trial run for upper-year students and once after Alabama, like many other schools and doubtless influenced by my superb trial run, made Leg-Reg a part of the 1L curriculum. It can be a great course and, in the long run, a useful one, for reasons explored by our co-blogger Ethan in this piece. I very much enjoyed teaching it and hope to be on the regular roster of Leg-Reg teachers. But...

I won't generalize about other profs' or students' experiences with Leg-Reg. Much depends on the syllabus and the book chosen. Still, I found a couple of aspects of the course surprising and disappointing. Although I tried to compensate for them in my own syllabus, I suspect others will have encountered or exemplified the same problems. The general idea behind adding Leg-Reg to the curriculum is that we live in an age of statutes and regulations, and that students whose curriculum focuses on reading cases and generally inhabiting a judge-centered universe will learn less about reading and interpreting statutes, and about the regulatory state in general, than they ought to. In practice, however, the Leg-Reg course often ends up focusing on...cases and judges. A Leg-Reg course can easily be less about legislation and regulation as such, and more a course that could, roughly speaking, be called "Statutory Interpretation by Judges--With a Little Chevron in it." (h/t: Sullivan's Travels.) That's useful, but still heavily court-centered and oriented around a close reading of judges' close readings of statutes. 

A related potential problem with Leg-Reg courses is that they can be light on both the details of the political process and on what I call the vocabulary of regulatory and public policy. On the first point, casebooks vary. The Eskridge et al. book(s), for instance, use(s) the Civil Rights Act of 1964 as a foundational example (at least up to the most recent edition I looked at), and include(s) a good deal of history about its passage. I'm not sure that's the best example pedagogically, and it's a little long in the tooth. The Bressman et al. casebook uses what I think is a better example--auto safety legislation and regulation--although it too is a little old as an example. Individual teachers may use examples of their own. Even so, that material can pass by swiftly, depending on the individual teacher, and one is soon back at statutory-interpretation-plus-Chevron. The generally wonderful Manning/Stephenson casebook, at least in the second edition, contains very little indeed on the political/legislative process itself.

And all this is still more process than substance. The substance of regulatory and public policy, and the vocabulary with which people discuss and analyze it, can easily get short shrift. I was lucky enough as a 1L to take a course called "Foundations of the Regulatory State" from Richard Pierce, during a brief interval in which it was part of the mandatory first-year curriculum at Columbia. Pierce used a series of case studies, such as the Clean Air Act and rent control, to introduce us to the vocabulary of regulatory policy and politics, including such things as public choice, externalities, and cost-benefit analysis. I have found that vocabulary useful in everything else I have done, in law school, legal practice, and legal scholarship. (Pierce has said somewhere that many students weren't nuts about the course. They were wrong.) Leg-Reg courses, with their focus on statutory interpretation and on judges, can easily omit much or most of this.

That's a loss, in my view. Learning the vocabulary of public policy can enrich students' experience in every course they take, in both public and private law, and make them better lawyers. Of course, some Leg-Reg teachers will include more of this material. And some teachers in any course will bring in law and economics and other useful tools of policy analysis. But not all will. And although, again, casebooks vary, teachers may find that they have to supplement the casebook materials and/or that adding this kind of material forces them to swim upstream, given the general orientation of the course and the other materials the school expects them to cover.

My Law and Public Policy course was designed to respond to all this. I hope it will prove especially useful to students who end up as government lawyers or in government-oriented practice, as legislative staff, or as lawyers who are involved, in practice or in a civic capacity, in politics and public policy in their own communities or in wider political environments. But all law and legal advice ultimately intersects with public policy, so any law student can benefit from such a course. Alabama has an excellent curriculum, clinical environment, and certificates in Governmental Affairs and in Public Interest law, and I hope the Law and Public Policy course will be a useful addition to our offerings in these areas.  

I had three primary goals and two pedagogical aims in mind in designing the course. The main goals were: 1) To give students a basic vocabulary in discussing and analyzing public policy. 2) To help students think about how to function, and what they can add, when they are "in the room" with various players, including both the stakeholders on a particular issue (community groups, interest groups, politicians, and others) and non-lawyer professionals of various sorts, from economists to social workers to urban planners. Law school doesn't focus much in general on how lawyers interact with the various players, including non-lawyers, who are in the room when various decisions get worked out. 3) T0 not focus on judges or courts. They show up in the course from time to time but are decidedly bit players. My pedagogical aims were: 1) To find a balance between technical/academic vocabulary and the academic readings involved in learning it, and the more practical aspects of the course, by picking a case study each week--a policy issue, and practical readings about it, with which to examine and apply the vocabulary we are learning that week, resulting cumulatively in the ability to apply a variety of analytical tools to a variety of public policy issues. 2) To bring in guest speakers who are far more experienced and engaged in the nuts and bolts of law and public policy than I am, at various levels and in different positions. This year, my guest speakers included a representative of our state's legislative policy staff, the chief of staff to one of Alabama's United States senators, and a major player in (among other things) both federal executive-branch work and in private practice involving government, politics, and public policy. Needless to say, the students loved them and were grateful to have the class taught by experts for once--not to mention experts whose boots are actually on the ground. (Lawyers and others working in this field who might be interested in serving as guest speakers, or who have suggestions of other speakers I might invite, are very welcome to get in touch with me.) 

It was the first time through the course, and doubtless I will make changes as I go, particularly in shortening the readings and continually revising the case studies. But the "vocabulary" covered in the course this semester included: the definitions of public policy and of regulation; basics of public policy analysis; economic and non-economic rationales for regulation; private ordering and private law as forms of regulation; externalities; public and private goods; commons issues; various forms of regulatory instrument, including command-and-control regulation, Pigouvian taxes, and many others; implementation and evaluation of public policies; public choice theory, rent-seeking, unintended consequences, government/regulatory failure, and other pathologies of public policy; cost-benefit analysis; risk and uncertainty; behavioral economics; and various new forms of regulation, such as democratic experimentalism or "new governance," meta-regulation, and self-regulation. In each case, I was sure to include not only criticisms of the tools and arguments presented, but specifically non-instrumental criticisms about distributive equity and equality, morality, technocracy, and so on. I would like to think that students picked up an array of tools for their toolkits and language to add to their vocabulary in reading any case and analyzing any legal issues (as well as reading about or dealing with public policy issues in general, of course), and that the use of case studies, guest speakers, and policy-memo assignments (see below) added some practicality to the admittedly academic (but fun!) reading they did. 

I avoided an exam-style evaluation. (I no longer give 100 percent finals in any of my courses, because I find them pedagogically dubious if not absurd.) Instead, I relied on class participation and on two short papers during the semester and one longer one during the exam period, all of them modeled after white papers or policy memos rather than research or academic papers and each of them based on a different public policy issue and relevant material about that issue. I hope those exercises will serve as useful experiences for students who end up writing, or at least reading, policy memos as legislative aides or practicing lawyers, or as they get involved in local civic issues. 

I give some bibliographical suggestions below the fold. Law professors who are interested in seeing the syllabus are welcome to use my Alabama email address to get in touch. I am also happy to hear from those who teach similar courses; I'm sure they are out there, and that various professor teaching in specific policy areas, such as environmental law or health law or others, end up using those courses to cover some of this ground, but a search for "law and public policy" courses as such garnered very few hits at law schools. I would also be interested in hearing from students or lawyers who took Leg-Reg on whether they agree with my description of what these courses often end up omitting, or whether their experience was different and why. Also, if there are any academics, legal or otherwise, who are interested in the possibility of contributing short chapters to a "primer" on law and public policy I am developing, which might be assigned as an inexpensive, modular supplement to a Leg-Reg course or other law school courses or as a primary book for a law and public policy course, I urge them to contact me. (Of course any publishers are equally invited to break down my door about this.)

One last note: Putting together the course and teaching it, however imperfectly, was a lot of work and a lot of fun. But the real stars of the course were my students. It was a fairly small-enrollment course--understandably, given both the person teaching it and the unknown factor in a new course--and I hope more will sign up in the future despite the instructor remaining the same. But the students who did take it were superb: diverse in their experiences but in many cases with fascinating backgrounds in public policy and legislative work, thoughtful and eager in discussion, patient with my many shortcomings, and fantastic writers whose final papers, in particular, were a joy to read and showed tremendous growth over the semester. Sometimes one is blessed by chance at the right moment, and in this case I was blessed that this particular group of students took the course as I was launching it. I thank them all. 

Continue reading ""Law and Public Policy" (With a Welcoming Nod to Gerard)"

Posted by Paul Horwitz on January 15, 2019 at 09:51 AM in Paul Horwitz | Permalink | Comments (6)

Monday, January 14, 2019

What Good's a Constitution?

What is the best constitutional design for a diverse society? Today the standard answer to this question comes from James Madison's essay in Federalist #10. In 1936, Winston Churchill wrote an essay on "What Good's a Constitution?" that offered a somewhat different answer. This essay has received little attention in law review circles, so I thought I would offer some commentary on the piece. (The link is a little quirky in that the article is divided into two parts, but you can navigate that if you try.) 

Churchill asked why judicial review was necessary in the United States but not in Britain. His answer was that the United States was far more diverse than Britain. The Founders, he said, "did not think it possible to entrust legislation for so diverse a community and enormous an area to a simple majority." "In this small island of Britain," he continued, "we make laws for ourselves. But if we had again attempted to apply this flexibility and freedom for the British Empire, . . . it would have been broken to pieces. Although we have a free, flexible Constitution at the center and for the center of the Empire, nothing is more rigid than the established practice --namely, that we claim no powers to interfere with affairs of its self-governing component parts." Thus, "[t]he so-called 'rigidity' of the American Constitution is in fact the guarantee of freedom to its widespread component parts." 

In a 1957 address to the American Bar Association, Churchill expanded on these themes. "An omnipotent Parliament and a small legal profession," he said, "are all very well is an island which has not been invaded for nearly 2,000 years. Forty-nine states [48 plus the federal government] each with fundamental rights and a different situation, is a different proposition." "The Supreme Court survived and flourished in the United States," he concluded. "England was too compact and too uniform a community to have need of it." (I would add that many state supreme courts operate within much more uniform polities, and they probably resort to judicial review less often as a result.)

I wonder if there are lessons here for our polarized age. One way of understanding a fixed constitution is through a strong principle of stare decisis. If constitutional law were more fixed in practice, then that might lower the temperature of national elections and judicial confirmation battles in our ever more diverse nation. But there is no constituency for strong constitutional stare decisis these days. 

Posted by Gerard Magliocca on January 14, 2019 at 02:31 PM | Permalink | Comments (3)

A Bit of History on the Presumption of Regularity

Several years ago, when I was writing a paper about prosecutorial discretion, I ended up doing a bunch of research on the presumption of regularity.  As you may know, the presumption of regularity is a presumption that executive officials have properly discharged their official duties.  It has become a hot topic during the Trump administration.  But I was interested in the presumption because it forms the basis of a few cases that I find troubling --- most notably, the Supreme Court’s ruling in United States v. Armstrong, which denied criminal defendants discovery in support of their selective prosecution claim unless they could first “produce some evidence that similarly situated defendants could have been prosecuted, but were not.”  The Armstrong Court justified setting the standard to obtain discovery so high (thus creating a barrier to obtaining discovery), in part, on the presumption of regularity.  It also indicated that the presumption of regularity is a justification for the broad discretion that the Court affords to prosecutors.

The paper ended up going in another direction, and so the research on the presumption of regularity never saw that light of day.  But I thought I’d go ahead and share it now, given how many people I see talking about the presumption.  People might think it is interesting because the research shows that the presumption has expanded well beyond the cases that have been used to justify it.

Continue reading "A Bit of History on the Presumption of Regularity"

Posted by Carissa Byrne Hessick on January 14, 2019 at 07:06 AM in Carissa Byrne Hessick, Criminal Law, Legal History | Permalink | Comments (3)

Sunday, January 13, 2019

Fitzgerald was Wrong

Thanks to the generosity and at the invitation of this lively group of scholars, I now begin my second act as a blogger. To those of you who read my posts at Concurring Opinions, I think that my writing over here will be a little different in style, but I'm not sure. We'll see starting tomorrow. I can't wait.   

Posted by Gerard Magliocca on January 13, 2019 at 08:03 PM in Blogging | Permalink | Comments (8)

Saturday, January 12, 2019

Moyn and His Critics on Law Schools and Democracy

I've meant for a while to write a post on Samuel Moyn's interesting Chronicle piece on whether law schools are "good for democracy." Unfortunately, I have other (and past-due) obligations and this has made it difficult. Moyn's piece, it seems to me, calls for either a long post--my specialty, and perhaps the only kind of post I write anymore, but one I don't have time for--or a mere aggregating post, offering links to the piece and to criticisms of it. I tried to split the difference, but unsuccessfully. So here is a long but still incomplete response. For present purposes, my central goals have less to do with whether or how much I agree with Moyn, but 1) to clear some ground, and 2) to suggest that the criticisms of his piece demonstrate its value, and perhaps say something about law schools and their politics and situation within the social firmament. 

In his op-ed, Moyn argues that insofar as law schools exist not only for the basic task of training lawyers, but also to "advance or even incarnate certain ideals of political and social justice," then "law schools, and especially elite law schools, are failing to advance those ideals. Law schools allow you to do well. But it is harder to establish that they allow for doing good."

Among other things, he takes as an example law school clinics, asking "whether the clinical revolution is actually about changing the world," at least for individual students, as opposed to things like finding a way to "harmonize" "social-justice work...with elite credentialing for power and wealth." He argues that law schools "need to consider how to reset their missions for those students no longer able to suspend disbelief about how their ideals and their training fit together." Crucially, he asks, "What if the truth of law schools is that their main social function, aside from producing the next round of elites, is that they buy off those who initially doubt that perpetuating elites is what law schools ought to be doing?" And he responds to this question by suggesting, among other things, that law schools, or at least elite law schools, should pay more "attention to what it means for legal elites to serve the democratic conversation about how the people rules itself. Rather than burnishing the credentials of law and its royal judicial stewards, we should insist on the centrality of the people in a democratic legal order. If elite students are forced into a dilemma about how to preserve their sense of justice even as they embrace extraordinary privilege, it is, first and foremost, because society allows law schools to endlessly reproduce elite ascendancy. But the institutions themselves can force some change from within, in part by explaining to the people how the law rules them."

Whether I agree with all of it or not, I always enjoy Moyn's writing. Its value, to me, is evident not least in the fact that it draws what I would call the right adversaries. In showing this, we must first dispense with two sets of adversaries or critics Moyn drew for this piece--those who objected that Moyn was talking only about elite law schools, and those who objected to his use of clinics as an example. We are then left with the interesting fact, one not uncommon with respect to Moyn's writing, that his op-ed drew negative responses from what we might, both usefully and uselessly, call both the left and the right. In reality, it is more accurate to say that Moyn's piece was most likely to draw negative responses from establishment liberals or progressives and from establishment conservatives. For people whose orientation is more genuinely "left" or "right" and less establishment oriented, his piece is likely to draw at least chimes of recognition, if not agreement.  

Continue reading "Moyn and His Critics on Law Schools and Democracy"

Posted by Paul Horwitz on January 12, 2019 at 11:39 AM in Paul Horwitz | Permalink | Comments (4)

Thursday, January 10, 2019

"Thank goodness I have a law license" so I should know about jurisdiction

Above the Law reports on a lawsuit filed in Texas state court by a Texas attorney against Ticketmaster, after a technical glitch caused him to purchase Hamilton tickets for the wrong day. The Plaintiff, represented by his law firm, claims fraudulent inducement, breach of contract, and Sherman Act violation (the latter based on the fact that the only recourse was to sell the tickets back through Ticketmaster at inflated prices and for an administrative fee). The plaintiff is quoted as saying "thank goodness I have a law license."

But am I wrong that there is a jurisdictional problem here that he ignores or does not see, despite having a law license? There is exclusive jurisdiction over antitrust claims. I am not sure it is should be exclusive, since § 1337 gives district courts jurisdiction but does not make it exclusive. But a 1922 antitrust decision, accepted in Marrese v. Orthopedic Surgeons in 1985, makes the point clear, as does a 1976 case from the Fifth Circuit.

In any event, there is a separate removability question. Ticketmaster is an LLC and unless one of its members happens to live in Texas (doubtful, as it seems everyone associated with the organization is in California), it is not from Texas, creating diversity jurisdiction over the state claims are removable and the case is headed to federal court. (Update: Oops--forgot about amount in controversy--I doubt this case is worth more than $ 75k on the state claims and the complaint does not expressly ask for punitive damages. So maybe the case will remain in state court, just without the antitrust claim.)

Posted by Howard Wasserman on January 10, 2019 at 05:29 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Marcus Cole to be Dean of Notre Dame Law School

I'm very happy to share the news that my old friend -- who shares with a Very Important Person the honor of having clerked for Judge Morris "Buzz" Arnold -- Marcus Cole is going to be my new boss at Notre Dame Law School. Great things are happening at Notre Dame -- the "Killer B's", for instance!, we have great students, and I am looking forward to what can happen under Marcus's leadership. I'm also happy for him, now that he gets to cheer for Our Lady's Fighting Irish instead of . . . a tree. (I kid, I kid!)

Posted by Rick Garnett on January 10, 2019 at 04:15 PM in Rick Garnett | Permalink | Comments (3)

Wednesday, January 02, 2019

Happy (and Crabby) New Year, Canadian Edition

I left Canada, where I received some of my legal education and practiced and published a little, long enough ago now that I am hopelessly out of date, despite following cases in some areas of law. But when I was there, the norms of the profession or society, the degree of consensus among a fairly small legal elite or Canadian mandarin class, and/or some other set of factors were such that there was little serious criticism of the Supreme Court of Canada and its decisions, and the criticism that did exist was treated more or less as coming from outliers. There were few or no originalist scholars or theorists, despite the recent nature of the founding debates over the Charter of Rights, which rendered some of the concerns with originalism in the United States inapplicable (while, on the other hand, making originalism less necessary as such, since the culture and the leadership class had not changed sufficiently in that short interval to require much conscious retrieval of linguistic meaning). Although there were inevitable disagreements with particular decisions, they were voiced mostly with extreme politeness and mostly with deference to the institution as a whole. Criticism of individual justices or judges was generally viewed as not cricket, despite their increasing role in affecting and effecting major policy changes in the country. (On the other hand, and quite happily, there was less of a cult of personality and celebrity around individual judges and justices, a phenomenon that is not uncommon in this country.) Much has changed since then across most of these categories, despite the continuing presence of a fairly dominant and, from my admittedly distant perspective, in many respects closed elite legal class in Canada.

One place to follow some of these developments, with an emphasis on Canadian public law, is the Canadian legal blog Double Aspect. It is perhaps relevant that although both its main authors, Leonid Sirota and Mark Mancini, are Canadian lawyers and/or legal scholars, they are currently located elsewhere (in New Zealand and the US respectively) and have both done advanced work at law schools in the US. I recommend the blog generally, but I write to recommend especially an ongoing, "12 Days of Christmas"-themed series of guest posts "highlighting Canadian legal scholars’ least favourite Supreme Court decisions." A fine group of scholars and lawyers have been writing very readable posts, each identifying around five "particularly bad public law decisions from the period 1967-2017." Although there may be some overlapping politics among some of the writers and there are certainly some overlapping choices for objectionable judgments, there is diversity along both of those dimensions.

I find the series educational and refreshing, and very different from anything I could have imagined reading in the period in which I studied and practiced in Canada. (Indeed, I remember publishing an article some years ago in a Canadian law journal--faculty-run and peer-reviewed, as most of them are--and being asked by the faculty editor of that journal to add some kinder and more complimentary text to balance my criticisms of a recent Supreme Court of Canada judgment.) That change is for the better. Although it might not be thought of in those terms by some of the existing and remaining legal and socio-cultural mandarinate in my native country, it enhances not only the ideological and philosophical diversity of the country and its legal profession, but also its regional and cultural diversity.

The series is also a valuable reminder, for those in the United States who champion the "proportionality" approach to constitutional judicial review and often point to Canada as an example of a country whose constitutional law does it right, that the system and its decisions are hardly without internal critics, whether or not they have full or sufficient representation on Canadian law faculties. More specifically, it's a useful reminder that a great deal of the work done by proportionality may rest not on its methodology or its alleged empiricism, but on the shared values and premises of the legal elite charged with administering it; that the seeming consensus may mask greater divisions within the country as a whole; and that the more those with dissenting views gain actual representation within the legal system, and/or the more diverse the legal elite becomes, along a range of dimensions but especially including diversity with respect to basic premises, the more difficult it will be for proportionality to function well or with seeming seamlessness.

As a side note, readers might scroll down a bit on the Double Aspect blog to this post about criticizing Canadian Supreme Court justices. The post was occasioned by negative reactions to a couple of earlier blog posts strongly criticizing a recent speech by SCC justice Rosalie Abella on the role of the Supreme Court in Canadian society, in which Abella, in a rather Planned Parenthood v. Casey-like way (see, e.g., "[Americans'] belief in themselves as [a people who aspire to live according to the rule of law] is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals") and then some, described the modern Canadian Supreme Court as the font of "the moral core of Canadian national values" and "the final adjudicator of which contested values in a society should triumph." If strong criticisms of judicial opinions are acceptable, and I think Canadians, however politely, would agree that they are, then surely there must be room to criticize the words of individual justices who make extrajudicial statements about their rather grandiose role as the first and last word on their country's "national values." 

Posted by Paul Horwitz on January 2, 2019 at 12:55 PM in Paul Horwitz | Permalink | Comments (2)

Tuesday, January 01, 2019

2018 Year-End Report

Chief Justice Roberts issued his 2018 Year-End Report. This year focused on the results of the investigation Federal Judiciary Workplace Conduct Working Group into the working conditions for law clerks and other judiciary employees and what is happening to implement those proposals with the Judicial Conference. As is his wont, the Chief began with a historical anecdote--the influence that law clerk Henry Friendly had on Justice Brandeis' dissent in Olmstead--and a paean to the work of law clerks and the symbiotic relationship between judges and clerks ("relationship is one of close association, candid intellectual exchange, and confidentiality"), on the centennial of Congress allocating funds for "legally trained assistants" for federal judges.

The report also briefly thanked court employees for keeping the courts operating in the face of another years of natural disasters--flooding in Florida and North Carolina, a typhoon in the Northern Marianas Islands, an earthquake in Alaska, and California fires.

The report closes with workload statistics for the year. Filings in the courts of appeals dropped two percent, while civil filings in district courts rose six percent. District courts saw a 17 percent increase in diversity cases with a 23 percent increase in personal-injury cases--the report does not say, but it would be interesting to see how much of the increase is tied to mass-tort cases going to federal court under CAFA's minimal-diversity requirement.

Posted by Howard Wasserman on January 1, 2019 at 12:43 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Teaching Civil Procedure With A Simulated Case File: My 90% Solution

The following post is by David Oppenheimer (Berkeley) and is sponsored by West Academic.

Civil Procedure is reportedly the least popular 1L course. Why? Because it lacks a familiar context. Our students arrive with some understanding, however faulty, of the role of contracts, the existence of property, the problem of crime, and the phenomenon of personal injury. But Civil Procedure is a great mystery to them.
A common response is to provide context by organizing the course around a semester-long simulation. Several case-files are now available from legal publishers, all of them good. Each helps students see how Civil Procedure works in the real world. But most require so much work for the students and faculty that they push aside other important material, and as the number of units we devote to Civil Procedure shrinks, this is increasingly challenging.

My response is the 90% solution – provide the students with pleadings and motion exercises that are 90% complete, so that they can focus on the core problems.

Continue reading "Teaching Civil Procedure With A Simulated Case File: My 90% Solution"

Posted by Howard Wasserman on January 1, 2019 at 09:31 AM in Sponsored Announcements | Permalink | Comments (1)

Monday, December 31, 2018

Judge in ACA case still needs to retake Fed Courts

District Judge O'Connor on Sunday paved the way for an appeal of his decision declaring all of ACA constitutionally invalid, issuing a Final Judgment on Count I in accordance with FRCP 54(b) and a separate Order of a Stay and Partial Final Judgment pending appeal. The latter document gives reasons for certifying partial final judgment and for granting the stay. As to the latter, the court goes to great lengths to explain why the intervenor-defendant states are unlikely to succeed on the merits on appeal, reiterating its standing, merits, and severability analyses from the original order, but concluding that the equities favor a stay.

As has been the case all along, Judge O'Connor continues to make jurisdictional errors.

Continue reading "Judge in ACA case still needs to retake Fed Courts"

Posted by Howard Wasserman on December 31, 2018 at 04:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Sunday, December 30, 2018

Northwestern Law Review Exclusive Submissions

Northwestern University Law Review will accept submissions from January 1 to January 15, 2019. For all articles submitted in accordance with the instructions outlined below, the Law Review guarantees consideration by an Articles Board editor. All final publication decisions will be communicated to authors by February 5, 2019.

Participating authors agree to withhold the article submitted through our exclusive submission track from submission to any other publication until receiving a decision from the Northwestern University Law Review. Participating authors further agree to accept a binding publication offer, should one be extended.

Continue reading "Northwestern Law Review Exclusive Submissions"

Posted by Howard Wasserman on December 30, 2018 at 04:59 PM in Teaching Law | Permalink | Comments (0)

Saturday, December 29, 2018

A tale of two appeals

The Ninth Circuit accepted the district court's § 1292(b) certification in the climate-change litigation, paving the way for review of the denial of motions to dismiss for failure to state a claim, lack of standing, and other bases. This after a series of failed attempts by the government to get the Ninth Circuit or SCOTUS to grant mandamus, stay the case, or provide other relief. Dissenting, Judge Friedland suggested that the district court did not genuinely believe the requirements of § 1292(b) were met and did not "so state," especially as to whether immediate review would "materially advance the ultimate termination of the litigation," and the the district court was strong-armed by the government's repeated attempts to bypass normal litigation procedures.

The thing that has bothered me all along is I do not see how the first prong of § 1292(b) is satisfied--that the interlocutory "order involves a controlling question of law," which should be limited to purely legal questions such as the meaning of a law, not to questions of application of known law to fact. The court found that plaintiffs have standing and that the plaintiffs stated a claim, accepting as sufficiently pleaded a creative application of the state-created danger theory of substantive due process. Standing is not purely legal--the requirements of standing are well-known, the issue here is whether they were satisfied. Perhaps the allowance of  the state-created danger theory would qualify. But then what about the non-legal issues? dDoes everything else (such as standing) go with it on pendent appellate jurisdiction? Is the standing question "inextricably intertwined" with the constitutional question over which the court of appeals has jurisdiction?

Meanwhile, all sides are urging the district court in the ACA litigation to certify its decision under § 1292(b). This reads as a more appropriate case for interloctuory review, as the court decided an obvious question of law as to the constitutional validity of the individual mandate and the severability of the rest of the statute. And then does the standing decision (which should be the appropriate basis for getting rid of this case) similarly go along for the ride on pendent jurisdiction?

Posted by Howard Wasserman on December 29, 2018 at 08:34 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Friday, December 28, 2018

Tenth Circuit offers an interesting mix of Younger, Rooker, and jurisdictionality

An area of seeming confusion for courts is the collision between Younger abstention and lack of jurisdiction under Rooker-Feldman. The doctrines are similar, as they both limit the power of federal courts to interfere with state adjudicative proceedings. In theory, the line is sharp--RF prohibits actions that formally or functionally ask the federal court to review the state decision, while Younger prohibits federal courts from halting ongoing state proceedings. In practice, they seem to run into one another, especially when courts use Younger as the basis for dismissing challenges to non-final state orders.

This Tenth Circuit case offers a different side of the collision.The federal plaintiff, the defending party in a state attorney-disciplinary proceeding, argued in federal court that the state bar lacked jurisdiction to discipline him, since he is not barred in that state (he maintains an office in the state, but practices only in federal court and federal immigration proceedings there). The district court abstained under Younger. But by the time the federal case reached the Tenth Circuit, the Colorado Supreme Court had suspended the plaintiff, ending the disciplinary proceeding. So the Tenth Circuit reversed the Younger dismissal, because the end of the state proceedings means the first prong of the Younger analysis (ongoing proceeding) is not satisfied, so the plaintiff can bring an action for a D/J action that the state tribunal lacked jurisdiction over him (because he is not barred in Colorado). The Tenth Circuit explained:

Consider our options. On the one hand, "if we were to reverse the dismissal," Plaintiff could (obviously enough) renew his already-filed claim before the district court. Id . On the other hand, "if we were to affirm the dismissal," Plaintiff could immediately refile in any event "because the dismissal was without prejudice." Id . "In these circumstances, we vacate dismissal . . . and remand these claims to the district court so that it can reconsider them without the need to abstain now that the state proceedings have ended." Id

This seems wrong on several levels.

First, the point of Younger is to eliminate federal interference with state proceedings; that interference remains after the state proceeding ends, if the federal action seeks to undermine or undo the results of that state proceeding. This is the point of Wooley v. Maynard (the "Live Free or Die" license plate case). Maynard had been convicted of traffic offenses three times for covering the motto on his plate; all three proceedings were over. The Court held the federal suit not Younger-barred only because he did not challenge or affect the results or consequences of those prior convictions and sentences; he sought only to prevent future enforcement of the law against him. The implication is that had Maynard sought to undo the past convictions, Younger would have barred the action. This federal action seeks to do what Maynard did not--invalidate the result of the state proceeding; that seems  inconsistent with "Our Federalism."

Second, even if Younger does not bar the federal action, Rooker-Feldman should. The plaintiff challenges the order of a state court suspending him from the practice of law and a federal judgment in his favor would declare that order as erroneous. In fact, attorney discipline is one of the most common situations for RF. And there is no "state court lacked jurisdiction" exception to RF.* The Tenth Circuit may have wanted to punt that issue to the district court. But this action should not go forward.

[*] In any event, I would argue that the plaintiff's argument as to the state proceeding is not that the state courts lacked jurisdiction, but that state law (attorney regs) does not apply to him because he is not barred in Colorado. That is a merits challenge to the reach of state law, not a jurisdictional challenge to the power of the court.

Posted by Howard Wasserman on December 28, 2018 at 01:30 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Monday, December 24, 2018

Winter Break Reading Recommendation

During the winter break, I always find myself with more time than usual for pleasure reading.  My usual fare is relatively light and escapist.  But, based on a recommendation, I recently picked up The Woman at the Washington ZooThe Woman at the Washington Zoo is a collection of writings by Marjorie Williams.  Williams made a name for herself writing political profiles for the Washington Post and Vanity Fair.  The book contains several of those profiles, as well as more personal essays about parenthood, the death of her mother, and her own battle with cancer.

Even though I finished the book a week ago, it has really stuck with me.  The profiles provide a fascinating glimpse into the political world of the late 1980s, 1990s, and early 2000s.  Although many of the names and events were familiar to me, as someone who graduated from law school in 2002, I found the inside-the-beltway chatter about these people and events to be a great revelation.  I didn’t pay any attention to politics until the 2000 election, and so my understanding of the political landscape from the 1980s and 90s is limited and based mostly on present day sources.  But the current view of that landscape is quite different than the contemporaneous view. 

For example, Williams remarks, essentially in passing, that people in Washington did not think highly of Ronald Reagan’s presidency; they worried that he was beholden to the far-right and that he was a passive player in the White House.  That does not match up at all with the description of Reagan that one encounters in modern public discussions.  Reagan is one of many examples.  The essay on Barbara and George Bush was also surprising, as the picture that it painted of the 41st President was not particularly consistent with the many profiles about him that appeared in the wake of his recent death.

Continue reading "Winter Break Reading Recommendation"

Posted by Carissa Byrne Hessick on December 24, 2018 at 03:39 PM in Books, Carissa Byrne Hessick | Permalink | Comments (0)