Thursday, April 08, 2021

JOTWELL: Thomas on Coleman on the Rules Committees

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Brooke D. Coleman, #SoWhiteMale: Federal Procedural Rulemaking Commitees, 68 UCLA L. Rev. Disc. 270 (2020), which explores the race and gender composition of the rules committees and the problems lack of diversity creates.

Posted by Howard Wasserman on April 8, 2021 at 01:38 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Justice Jackson's Opinion Is An Outlier

One reason that I want to write a book about Justice Jackson's concurring opinion in Youngstown is that the near-universal praise given to his analysis is at odds with trends in modern jurisprudence.

For example, Jackson's opinion is personal. He refers to his work as Attorney General as a major influence on his views in a way that I think would be viewed critically today. (Isn't law supposed to be impersonal?) Likewise, Jackson dismissed originalism as a method of interpretation. The opinion does use history, but in a thematic way that I don't think that originalists find terribly persuasive.

Jackson's functional reasoning is also increasingly out of favor. He admits that there are some areas where the right answer is unclear or must be determined by policy considerations. He cites a lot of political science, ranging from a book by Woodrow Wilson to a quote by Napoleon. He also relies on a comparative assessment of European emergency law (from France, Germany, and Britain). And he talks about the modern presidency by referring to developments outside of the text such as the rise of the party system or the growth of mass communications. 

All of this makes me wonder if reverence for Jackson's opinion might decline in the coming years. Michael McConnell's recent book on the president offers the most sustained criticism of the opinion that I can find, which makes sense especially given his originalist approach in that book.


Posted by Gerard Magliocca on April 8, 2021 at 12:25 PM | Permalink | Comments (4)

Tuesday, April 06, 2021


A lot of great commentary on the long awaited SCOTUS decision. It is a win for more competition and innovation. Mark Lemley's discussion of the case and its broader implications is a good place to start if you haven't been following. Here is the Marketplace conversation with Lemley.

Posted by Orly Lobel on April 6, 2021 at 01:09 PM | Permalink | Comments (10)

Boilerplate Collusion: Clause Aggregation, Antitrust Law & Contract Governance

My article on boilerplate bundles of clauses and individual contract/antitrust nexus is forthcoming in the Minnesota Law Review, and is now up on ssrn here. I'd love thoughts and comments. Here is the abstract: 

Contract clauses should be assessed in relation to each other when examining their meaning, validity, and enforcement. In contemporary markets, drafters create impenetrable bundles of clauses and sets of interrelated contracts operating together. This article exposes the ways that a contract is larger than the sum of its separate clauses and a set of interrelated contracts is more harmful than the aggregation of each contract on its own. The article further shows that contract adjudication embeds these insights intuitively, but both contract law and antitrust law are yet to develop a principled and consistent analysis of how contract clauses collude in action. These understandings have implications for nearly every contract doctrine and in every policy field. Recognizing how contractual clauses produce a different effect than a simple summation of each clause enriches regulatory fields ranging from employment to consumer law, insurance law to intellectual property law, speech law and arbitration law. This article analyzes several key contexts to demonstrate the significance of aggregation: contract clauses that substantively restrict rights such as speech and mobility and clauses that procedurally restrict rights and access to litigation, including pre-dispute arbitration clauses and class action waivers. I argue that courts have instinctively employed notions of aggregation in their decisions, albeit without consistent analysis and without the wealth of contemporary behavioral research on the psychological effects of aggregation. The article is the first to analyze how behavioral studies on the human tendency to judge probabilities and risks differently when events are compiled versus unpacked are critical to understanding the effects generated by boilerplate collusion. The article concludes with policy implications for both contract interpretation and regulation. I argue that recognizing aggregation supports reforms in adjudicative defaults, including the rejection of reformation and blue- penciling and the treatment of redundancy as a feature, not a bug, in contract adjudication. Second, a better understanding of the phenomenon of boilerplate collusion points to the need for a more proactive approach to contract policy. As contract thickets abound, antitrust must reject its sharp divides between vertical and horizontal constraints and agencies, including the FTC, the EEOC and the Labor Department should use their regulatory powers to address the harms of boilerplate collusion.

Posted by Orly Lobel on April 6, 2021 at 12:40 PM | Permalink | Comments (4)

Speech is not money (Update)

People are having fun ridiculing ridiculous Republicans. After years of insisting that the First Amendment guarantees corporations the right to spend money supporting (mostly Republican) candidates and causes have now decided that corporations and corporate executives must "stay out of politics" when their speech consists not of writing checks to GOP candidates but of boycotting certain locations and business partners or otherwise speaking as an entity on matters of public concern. In fairness, maybe Republicans such as Mitch McConnell never believed that corporations should be able to "speak," only that they should be able to spend money (by giving it to Republicans)--and speech is not money.

Of course, the left is not doing much better. Many are urging, supporting, and celebrating large institutions (Coca-Cola, Delta, MLB) wielding their economic power to protest, and try to influence, government decisions and public policy. But if this is legitimate and laudable behavior from these companies, most of the left criticisms of Citizens United and cases--"corporations are not people," "corporations don't have First Amendment rights"--evaporate. Believing that MLB can and should move the All-Star Game from Atlanta in response to voter-restriction laws depends on believing that MLB has the right, as an entity, to take a position on matters of public concern.

Neither side can have it both ways. Either corporations enjoy First Amendment rights to engage, through expenditure (or non-expenditure) of funds, in public debate or they do not. It does not vary by context. It does not vary by the political position they take. And it does not vary by the type of corporation. If Delta can (and should) take corporate action that furthers principles you like, then Delta may take corporate action that furthers principles you do not like.  If Coca Cola can spend money to support the election of candidates you support, then Coca Cola can spend money, time, effort on positions you do not support. You can make your expressive decisions accordingly.But your response cannot be that it does not have the right to do it or that it should "stay out of" the arena.

There is a liberal argument that would oppose expansive campaign spending  but support current corporate efforts in Georgia and elsewhere. But it is not the Citizens United bumper sticker that most liberals favor. It argues that big-money contributions and expenditures should not be allowed to influence public officials and elections, that elections are "bounded institutions" in which unique limitations should apply in ways they do not in the larger public debate. This is an argument about wealth and controlling its influence in the electoral system, not corporate status. That is, the problem is not corporate spending but all spending, by people and corporations alike. But that is not the argument that most liberals make about campaign finance.

Update: Wow. I was being sarcastic about Republicans being ok with corporations spending money but not speaking. But that appears to be Mitch McConnell's position: "Stay out of politics because it's not what you're designed for," but "I'm not talking about political contributions," only "taking a position on a highly incendiary issue." Don't speak, just spend money. Don't take express positions, just give money to me and people I like (presumably to gain influence). I can only assume that issues and candidates with which McConnell agrees are never "highly incendiary." This would be laughable if not so par for the course.

I do not expect intellectual honesty or consistency from McConnell. But I would like to hear a theory of why contributions are ok but express positions are not. To blanket contributions (and expenditures) in the First Amendment, there must be an expressive quality to those expenditures. And there is no logical way to say a corporation has First Amendment right and can speak, but that it must limit its expression to the form of campaign contributions but no other expression in other forms (especially because giving money so someone can spend it is less expressive than other forms of corporate communication involving true speech).

Further Update: An alternative title to this post (seen on Twitter and elsewhere) might be "Money is speech, but speech is not speech."

Posted by Howard Wasserman on April 6, 2021 at 11:32 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, April 05, 2021

Entry Level Hiring: The 2021 Report - Second Call for Information

This a reminder of the Entry Level Hiring Report.

If you have information about entry-level hires for this year, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

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

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

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

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

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

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

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on April 5, 2021 at 07:16 PM | Permalink | Comments (0)

SCOTUS vacates Knight Foundation, Thomas has things to say

SCOTUS GVRed Biden v. Knight Foundation (begins on p.9) with instructions to dismiss as moot under Munsingwear. No surprise, as mootness was always inevitable because Trump would someday leave office, known to happen once he lost the election, and factual once Twitter banned him. Whether plaintiffs can recover attorney's fees remains. As do questions of the effect on qualified immunity.

We also have some explanation for why this took so long--Justice Thomas wrote a lengthy (solo) concurrence, emphasizing that the real power over internet spaces is private rather than governmental and offering arguments for why internet platforms might be regulable as common carriers or places of public accommodation. He also suggests that lower courts have misconstrued § 230 to give immunity to "bad-faith removal of third-party content," whatever that means. And he carries water for the grievance of Trump being banned from Twitter (and his 89 million followers), demonstrating the "stark" disparity between Twitter's control and Trump's control.

Thomas recognizes that the First Amendment limits government power to control speech in a private space that it rents or uses.

Whether governmental use of private space implicates the First Amendment often depends on the government’s control over that space. For example, a government agency that leases a conference room in a hotel to hold a public hearing about a proposed regulation cannot kick participants out of the hotel simply because they express concerns about the new regulation. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 547, 555 (1975). But government officials who informally gather with constituents in a hotel bar can ask the hotel to remove a pesky patron who elbows into the gathering to loudly voice his views. The difference is that the government controls the space in the first scenario, the hotel, in the latter.

I think this misses the mark in two respects. First, Trump could have asked the "pesky patrons"--assuming they were violating Twitter's terms of service--be removed by Twitter. Second, a government official's Twitter feed is more than an informal gathering with constituents and Thomas' framing minimizes the communicative power of Twitter. It seems more akin to a Town Hall meeting or a speech--the official speaks to the public and the public can hear and respond. If that is not a full-on public hearing on a proposed regulation (which limits the effect to legislative bodies), it is more than people who happen to be public officials hanging out in a bar.

Posted by Howard Wasserman on April 5, 2021 at 11:46 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

The Canonization of Jackson's Youngstown Opinion

Why is Justice Jackson's concurring opinion famous? Much of the credit goes to Richard Nixon. The Nixon Administration's broad claims of executive power, combined with the abuses of Watergate, drew substantial attention to what Jackson said in Youngstown. For the first twenty years after Youngstown, Jackson's opinion did not receive special consideration (though you can find cites here and there.)

The tipping point was 1973. First, Judge Sirica's opinion on the Watergate tapes case quoted from the concurrence (though, oddly, the cite did not explain that that the quote was from the concurrence.) Second, Arthur Schlesinger's influential book on The Imperial Presidency discussed Jackson's opinion at length. Third, the DC Circuit's opinion largely affirming Judge Sirica also quoted from the concurrence.

After that, a fairly rapid consensus emerged that Jackson's opinion was the gold standard. The Supreme Court quoted from the opinion in the Nixon case. Congress expressly relied on the opinion in drafting both FISA and the National Emergencies Act. And you start seeing more cites to the concurrence in cases and law review articles. Most of these cites are not about the tripartite framework. Instead, they focus on Jackson's functional view of separation of powers more generally.

Dames & Moore, of course, adopted the tripartite framework as controlling authority. Here the coincidence of Justice Rehnquist being on the Court and his role as Jackson's law clerk during Youngstown probably mattered. Finally, the concurring opinion was discussed at the confirmation hearings for Chief Justice Roberts and for Justice Alito, in part because Congress and the President were then at odds about various issues related to torture, warrantless wiretapping, etc.

Posted by Gerard Magliocca on April 5, 2021 at 11:45 AM | Permalink | Comments (1)

Friday, April 02, 2021

More Easter Eggs in the Youngstown Concurrence

With Easter upcoming, I thought I would share some interesting tidbits that I've discovered so far in my research on Justice Jackson's concurring opinion.

1. This appears to be the first Supreme Court opinion to use the term "relativity." Jackson uses it to talk about his famed three categories of analysis. I've also been fascinated by the use of scientific metaphors in judicial opinions, as this was the first that could be ascribed to Einstein's theory.

2. A few paragraphs of the opinion were lifted from a speech that Jackson gave in 1951 at Buffalo Law School. There are three paragraphs there describing emergency powers in Weimer Germany, the Third French Republic, and Britain during World War II that were essentially just copied into his opinion.

3. He quoted Rudyard Kipling's line: "Leave to live by no man's leave, underneath the Law." This is from "The Old Issue," an 1899 poem in which Kipling celebrates English history in restraining royal power. (Kipling talks about Magna Carta twice, for example.) This quote was an especially apt one for Youngstown because that was a case about executive power.

4. Jackson cited and relied in part on an analysis of executive power by Judge Augustus Hand in the 1920s. Six months before Youngstown, Jackson delivered a tribute to Learned and Augustus Hand at a bar function in New York. This may explain why Hand's opinion occurred to him in Youngstown.

Next week I'll post on what I've learned about the canonization of the opinion in the 1970s.   

Posted by Gerard Magliocca on April 2, 2021 at 08:53 PM | Permalink | Comments (0)

Thursday, April 01, 2021

FDR and the Legislative Veto

I've come across an interesting piece of esoterica. In the Lend-Lease Act of 1941, Congress inserted a legislative veto provision stating that the President's emergency authority could be terminated by a concurrent resolution after two years. The President objected to this clause on constitutional grounds and asked Attorney General Jackson to prepare an opinion saying as much. Jackson declined on the ground that he thought a legislative veto could be understood as a valid reservation of delegated power.

FDR signed the bill, but then wrote his own memo explaining why he thought that the legislative veto was unconstitutional. He gave the memo to Jackson for safe-keeping. Jackson finally disclosed the memo in a 1953 Harvard Law Review article, which you can find here. FDR's memo essentially offered up the reasoning that the Supreme Court gave in INS v. Chahda; namely, that legislative vetos violate the Presentment Clause. Jackson pointed out, though, that FDR signed many other bills with legislative vetoes and never publicly questioned their validity.

Another tidbit. Jackson's drafts of his Youngstown concurrence included some references to this FDR memo, though he later decided not to disclose that then. I want to think more about this point, as I think it may tell us something more about Jackson's view of the non-delegation doctrine.



Posted by Gerard Magliocca on April 1, 2021 at 01:37 PM | Permalink | Comments (4)

Wednesday, March 31, 2021

Justice Jackson on Category Two

I want to continue with a line of research that bore fruit in my draft paper on the non-delegation doctrine: Reading the footnotes in Justice Jackson's Youngstown concurrence carefully.

In describing Category Two (the zone of twilight), Jackson said the following: "In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." This sentence was qualified by a note that says, in full:

Since the Constitution implies that the writ of habeas corpus may be suspended in certain circumstances but does not say by whom, President Lincoln asserted and maintained it as an executive function in the face of judicial challenge and doubt. Ex parte Merryman, 17 Fed.Cas. 144, No. 9,487; Ex parte Milligan, 4 Wall. 2, 125, 18 L.Ed. 281; see Ex parte Bollman, 4 Cranch, 75, 101, 2 L.Ed. 554. Congress eventually ratified his action. Habeas Corpus Act of March 3, 1863, 12 Stat. 755. See Hall, Free Speech in War Time, 21 Col.L.Rev. 526. Compare Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, with Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, with the case at bar. Also compare Ex parte Vallandigham, 1 Wall. 243, 17 L.Ed. 589, with Ex parte Milligan, supra.

The first part of the note (on habeas corpus suspension) makes sense. There was no Act of Congress authorizing or forbidding the President from suspending the writ in 1861. President's Lincoln's act was therefore in Category Two and the elected branches hashed that dispute out in the midst of "the imperatives of events and contemporary imponderables."

The second part, though, is harder to understand. In Myers and Humphrey's Executor, for instance, Congress did clearly legislate about the positions at issue. The same was true in Hirabayashi. (Indeed, Jackson also cited Hirabayashi as an example of a Category One case in the footnote that accompanied the Category One passage in the text.) Why, then, are they included in the note? And why is Hirabayashi compared with Youngstown itself? More confusing still, Jackson cited Myers and Humphrey's Executor again in the note for his analysis of Category Three.

One thought is that he was saying that the pairs of cases that he cited could not be logically reconciled. Thus, they must rest on extra-judicial or pragmatic considerations. (For example, the Vallandigham decision rejecting an appeal by a civilian from a military tribunal in Ohio was decided during the Civil War, while Ex Parte Milligan went the opposite way in a case involving a military tribunal from Indiana once was the war was over.) Myers and Humphrey's Executor can also be described as inconsistent (to say the least). I'm not sure what to think about this for Hirabayashi, though, which does seem clearly distinguishable from Youngstown



Posted by Gerard Magliocca on March 31, 2021 at 02:18 PM | Permalink | Comments (3)

Not Nike’s “Satan Shoes:" Is it Trademark Infringement & Dilution? (Updated)

The following guest post is by my FIU colleague Julia Jan Osei-Tutu, who teaches and writes on IP and fashion.

Update, April 2: The district court issued a TRO.

Satan Shoes” are Nike shoes that have been modified by MSCHF. Should one applaud the creativity or is this simply causing mischief and harming the brand?

MSCHF, a New York based company, is marketing and selling a modified Nike AirMax 97 as its “Satan Shoes.” This shoe is a collaboration between MSCHF and Little Nas X, who became well known for his hit song, “Old Town Road” with Billy Ray Cyrus. Lil Nas X is currently promoting his new song “Montero (Call Me By Your Name).” The video for the new song has scenes where Lil Nas X descends to hell and dances with the devil, hence the connection to the satanic theme for the shoe collaboration.

Continue reading "Not Nike’s “Satan Shoes:" Is it Trademark Infringement & Dilution? (Updated)"

Posted by Howard Wasserman on March 31, 2021 at 11:15 AM in Culture, Intellectual Property | Permalink | Comments (0)

Tuesday, March 30, 2021

Return of Kitty Genovese?

The video-recorded attack on an (unidentified) elderly Asian-American woman in New York is striking two themes: the increase in bias-motivated violence against Asian-Americans and the apathy of the men inside the building who watched the attack on the sidewalk, then closed the door when the attack was over and the woman was lying on the ground. The staff members have been suspended pending an investigation in cooperation with the SEIU; the union says that their current information is that the workers called for help and urged people not to rush to judgment. Meanwhile, video and stills of the attacker have been released and calls are out for information about the identity of the assailant.

The story brings to mind Kitty Genovese, whose 1964 murder wrapped into an inaccurate narrative of bystander apathy that remains 57 years later, even as recent accounts have shown that narrative to be false. That this new (apparent?) apathy was caught on video makes the narrative more powerful and potentially stickier. It is different in two respects. First, it does not allow a complete-apathy narrative, as witnesses say someone on the street (not captured on video) chased the assailant, who pulled a knife before escaping. Second, the apathy is bound up with the anti-Asian narrative. So this is not public apathy, but racist apathy directed at a vulnerable population.

Posted by Howard Wasserman on March 30, 2021 at 06:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tenth Circuit adds to the pantheon of awful qualified-immunity decisions

From the Tenth Circuit, in a case arising from Denver police seizure of a tablet computer from a bystander who filmed police using force against another person. This involves less egregious facts than six hours in a feces-laden cell or stealing coins while executing a warrant.  But it demonstrates how far afield the analysis has gone.

Denver police department told officers in their training that the First Amendment protected the right to record. The officers disregarded express departmental guidelines--that is, they knew their conduct violated the First Amendment as they had been instructed on it. The court said that was irrelevant because: 1) the officers' subjective knowledge of their wrongdoing is irrelevant under Harlow's objective standard and 2) only judicial opinions can clearly establish rights because the Constitution means what the courts say, regardless of any training by the executive department.

This seems wrong for several reasons.

Continue reading "Tenth Circuit adds to the pantheon of awful qualified-immunity decisions"

Posted by Howard Wasserman on March 30, 2021 at 02:38 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Trying and failing to keep standing and merits distinct

The Eighth Circuit offers the latest example, in a First Amendment challenge by vegan food producers and advocates to a Missouri law prohibiting misrepresentations of products as "meat" when not derived from animals.

The majority held the plaintiff had standing but had not shown a likelihood of success on the merits entitling it to a preliminary injunction, while the dissent argued that the action should have been dismissed for lack of standing. But everything turned on the same issue--whether the plaintiffs' proposed conduct violated the law and whether they were likely to have the law enforced against them, given that they did not "misrepresent" their plant-based products as being "meat." The majority said that standing is analyzed under Susan B. Anthony List, which requires a showing that the statute "arguably" reaches the plaintiff's conduct and there exists a "credible" threat of enforcement. But SBA "does no work" beyond standing; the merits of the claim (and the first prong of your injunction analysis) asks whether the plaintiffs' conduct was "likely to be seen" as violating the statute. On the other hand, the dissent took those same facts as not establishing standing.

The majority cited circuit precedent acknowledging that standing "tracks" merits and is "closely bound up" with whether the plaintiff is entitled to relief. But the court insists they are not "coextensive" and must not be "conflate[d]." But if the concepts turn on the same fact, they are doing more than tracking one another. If two judges look at the same fact and one uses it to find the absence of a cause of action and one uses it to find a lack of standing, they begin to sound coextensive. Which raises the question of why courts bother--why spend so much time on standing only to use the same fact to find a failure on the merits.

Posted by Howard Wasserman on March 30, 2021 at 11:34 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, March 29, 2021

Category Two of Youngstown

I think that my next book will be about Justice Jackson's opinion in Youngstown. The title practically writes itself--"Zone of Twilight." My draft article on non-delegation addresses one discovery that I've made about the opinion. More are coming.

Meanwhile, here's a question. Is there any case where a court concluded that the proper framework of analysis is the "zone of twilight" of Category Two? My sense from initial research is that courts always find a way to say that their case falls with Category One of Category Three. Probably because they do not want to be in the zone of twilight at all. But am I wrong about the lack of Category Two cases?

Posted by Gerard Magliocca on March 29, 2021 at 10:53 AM | Permalink | Comments (2)

Saturday, March 27, 2021

Court finds personal jurisdiction in Ford

SCOTUS decided Ford on Thursday, with all Justices agreeing that jurisdiction was proper. Kagan wrote for five (Chief, Breyer, Sotomayor, Kavanaugh); Alito concurred in the judgment; Gorsuch, joined by Thomas, concurred in the judgment. My SCOTUSBlog analysis is here.Kagan's opinion makes for a good teaching case, with a nice overview and summary of the doctrine (I am going back and forth about whether to use this instead of WW--I have a week to decide). On the relatedness question, Kagan concludes that a claim can "arise out of" the defendant's minimum contacts or it can "relate to" the defendant's minimum contacts; the former suggests causation, while the latter can looks for "an affiliation between the forum and the underlying controversy, principally, [an] activity or occurrence that takes place in the forum State and is therefore subject to the State’s regulation." Relate to contemplates relationships lacking that causal showing. This is where Alito jumped off. Arise out of and relate to mean the same thing and both require some causation, which was present here. Gorusch and Thomas question the entire International Shoe framework, without identifying what might replace it.
The case leaves many unanswered questions.

Continue reading "Court finds personal jurisdiction in Ford"

Posted by Howard Wasserman on March 27, 2021 at 03:42 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, March 26, 2021

Playing baseball on Shabbat

In an early draft of my article on Jewish players and Yom Kippur, I included a discussion of "why Yom Kippur," among all other parts of the Hebrew calendar. In particular Shabbat, which, Armin Rosen argued in the essay that started me down this path, is more sacred than either of the High Holy Days. I considered what might happen if a player would not play on Shabbat--at a minimum, it raises practical difficulties for a non-pitcher to have to know he must miss 36 games (22 % of the games) before the season even begins. At the same time, I think a team could and would accommodate that player--especially a star--to its financial benefit. (I pulled this section for length, although I may try to do something with it as a stand-alone piece).

A number of publications and people are telling the story of Elie Kligman. Kligman is a high-school senior from Las Vegas, pitcher and power-hitting infielder who is transitioning to catching; he is ranked as the 14th-best high school player in the state. He also is Shomer and has never played on Friday nights or Saturdays; most leagues and tournaments have accommodated him, at the urging of his lawyer/agent father. Kligman is talking about playing big-time college baseball and hopes to make the Majors. And he is already talking about not playing on Shabbat if he gets there. Part of the reason he is switching positions is that catchers often get at least one day off each week because of the physical toll; his day off could be Shabbat.

Before getting too excited about the next "Mickey Mantle bred on blintzes and gefilte fish" (as was written about 1970s slugger Mike "Super Jew" Epstein), I want to know more about just how good he is. Who is recruiting him and how good a prospect is he? The story says there are a "handful" of college coaches interested in him, but will not say who or what level. A scout says he could make an "impact" for a Power-5 conference team in a year or two. And a statement such as this--"Based on talent and desire, Kligman is good enough to realistically entertain his dream of playing Major League Baseball, or at least top level college ball"--means nothing. Top-level college baseball is roughly equivalent to high-A minors, a long way from The Show.

Like every other Jewish baseball fan, I want this story to be true and I hope Kligman makes it and 5-10 years from now I can write about his team switching their Friday home games to 2:15 starts. But at the moment, the story about his MLB prospects is, at best, incomplete.

Story published just in time for Shabbat.

Posted by Howard Wasserman on March 26, 2021 at 05:33 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Wednesday, March 24, 2021

JOTWELL: Kalajdzic on Salib on AI class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor) reviewing Peter Salib, Artificially Intelligent Class Actions, ___ Tex. L. Rev. ___ (forthcoming), which explores how AI might be used in class-action certification.

Posted by Howard Wasserman on March 24, 2021 at 08:48 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Congressman Brooks and Section Three of the 14th Amendment

Representative Mo Brooks of Alabama recently announced that he will run for the Senate in 2022. His campaign could create the first test of how the courts will address ineligibility claims under Section Three of the Fourteenth Amendment. Congressman Brooks spoke at the rally preceding the January 6th riot and said some incendiary things. I'm not convinced that Representative Brooks was "engaged in insurrection," but more facts could come out that would change my mind.

Consider, though, the very formidable problems involved in getting a court to consider this question at all. Will the Alabama election authorities decide on their own that Brooks is ineligible for the primary ballot? Very unlikely. Will any of his primary opponents make a Section Three challenge? Not if they want to win, as it's hard to see how challenging Brooks is a vote-winner. Maybe a fringe candidate with no chance of winning the primary would be willing to sue, but would there be standing for such a candidate? Hard to say.

If Brooks wins the primary next year, then his Democratic opponent would probably challenge his eligibility and might well have standing. But then that means the courts would need to resolve the issue between the GOP primary and November 2022. That's a short timeframe, which is not ideal. Now let's say Brooks wins. What if the Senate is controlled by Democrats in 2023 and they decide not to seat him?

All of this just repeats a point I've made  before, which is that Congress should take up H.R. 1405 (the Section Three enforcement bill) to create a clear framework for these sorts of challenges before the next election cycle begins.

Posted by Gerard Magliocca on March 24, 2021 at 01:40 PM | Permalink | Comments (6)

Tuesday, March 23, 2021

Apocryphal Stories About the Constitution

For a project that I'm considering, I'm trying to think of the most famous apocryphal stories in constitutional law. Here are examples.

  1. "John Marshall has made his decision. Now let him enforce it." Andrew Jackson never said this. The story was first told after the Civil War (apparently by Horace Greeley, though I'm not certain whether it was him.)
  2. George Washington telling Madison that the Senate was like a saucer that cooled decisions from the House. He never said that either. The story was first told after the Civil War.
  3. There was no official Supreme Court portrait one year because Justice McReynolds refused to stand or sit next to Justice Brandeis. False--a recent article in the Supreme Court Historical Society thoroughly debunked this. The story was apparently invented by a scholar in the 1940s.

I would be grateful for other examples.


Here is one more--Benjamin Franklin telling Eliza Powel: "A Republic Madam, if you can keep it" after the Constitutional Convention. 

Posted by Gerard Magliocca on March 23, 2021 at 11:27 AM | Permalink | Comments (12)

Sponsored Post: Critical Race Theory Across the Curriculium

The follow post is by Dorothy A. Brown (Emory) and is sponsored by West Academic.

West Academic Publishing and I have embarked on a new initiative for the upcoming 2021-2022 academic year. For the first time, we are making individual chapters of my Critical Race Theory: Cases, Materials, and Problems (3rd edition) available for adoption.

Continue reading "Sponsored Post: Critical Race Theory Across the Curriculium"

Posted by Howard Wasserman on March 23, 2021 at 10:17 AM in Sponsored Announcements | Permalink | Comments (0)

Monday, March 22, 2021

Levin Center at Wayne Law - Congressional Oversight Fellowship - 2021-2022

Scholars interested in congressional oversight research may apply for a new fellowship program established by the Levin Center at Wayne Law.  Applications will be accepted until the position is filled.
In its inaugural year, the Levin Center Fellowship offers $22,000 as supplemental support to allow a twelve-month, non-resident scholar – including a post-doctoral student or early career professor – to research and produce a scholarly paper related to conducting an overview of congressional oversight databases, defining and measuring effective oversight by Congress, and exploring how to score effective oversight efforts by individual members of Congress, congressional committees, or Congress as a whole.  There are no teaching obligations.
The Fellowship provides an outstanding opportunity for collaboration with the Levin Center team, a group of professionals based in Detroit, Michigan and Washington, D.C. with significant oversight expertise and experience conducting oversight-related activities.
Fellowship funding is provided by the Sunwater Institute, a nonprofit think tank dedicated to exploring fundamental ideas that advance liberty, knowledge, opportunity, and power for individuals and society. Any scoring system designed by a Levin Center Fellow could become a feature of the Sunwater platform under development to evaluate congressional performance.
A selection committee established by the Levin Center will review applications beginning immediately, with a goal of finalizing the selection decision by April 30, 2021.  The Fellow’s final paper must be submitted within twelve months of appointment.
Those interested can apply at this link.

Posted by Sarah Lawsky on March 22, 2021 at 04:46 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Sunday, March 21, 2021

Qualified immunity, inconsistency, and level of generality

A practical problem with qualified immunity is its inconsistency. This is especially true with respect to the level of generality at which a right is defined, which often determines whether a right is clearly established--the broader the level of generality, the more likely that precedent, created on different facts, can clearly establish. Case in point: The District of New Mexico holding that it was clearly established in 2019 or 2020 that a local elected official violates the First Amendment by blocking people from their private Facebook page.

At first glance, this seems impossible. SCOTUS has never addressed this, nor has the Tenth Circuit (which includes New Mexico). The two appellate decisions holding that the First Amendment prevents government officials from blocking people on social media--the Second Circuit in Knight Foundation and the Fourth Circuit  in Davison--came in 2019. That is not a "robust consensus" of lower-court of precedent. But the court did not look for such factual specificity. Rather, the rights at issue were to be free from viewpoint discrimination in online spaces used as "metaphysical" public fora and from viewpoint-based retaliation in those public forums.

This stands in sharp contrast to the typical approach. Even outside the absurd cases ("precedent saying it is unlawful to steal drugs during a search does not clearly establish that it is unlawful to steal coins during a search"), courts look for at least some factual similarity beyond general free-speech principles. An official blocking a user from her private page, while leaving that person otherwise free to say whatever he wants wherever he wants, is a far cry from a state banning individuals from all social media.

Perhaps this is how things should be. If qualified immunity must remain, perhaps courts should think about rights more broadly and in a less fact-bound way. But it is out of step with current immunity doctrine, including from the Tenth Circuit, that "viewpoint discrimination" is not a sufficiently specific right.

Posted by Howard Wasserman on March 21, 2021 at 03:11 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, March 19, 2021

Draft Paper on Robert Jackson's Non-Delegation Doctrine

My newest paper can be found here

Posted by Gerard Magliocca on March 19, 2021 at 10:07 AM | Permalink | Comments (0)

Thursday, March 18, 2021

SCOTUS March Madness

SCOTUSBlog is running a 16-person bracket for greatest Supreme Court Justice. Marshall, Holmes, Warren, and Scalia are the top seeds. Frankfurter is 15th seed, which seem bizarre. Here is the methodology. Based on results so far, it looks like recency bias and liberal bias may prevail, with a touch of groundbreaking bias thrown in. As of this moment, the only close match-ups are the 5-12 between Brennan and Ginsburg and the 6-11 between Black and Rehnquist.

Vote early, vote often (Round 1 closes this Sunday).

Posted by Howard Wasserman on March 18, 2021 at 05:55 PM in Howard Wasserman | Permalink | Comments (2)

Civ Pro: No Coke, Pepsi

Two fun things in recent Civ Pro classes.

First, I taught Scott v. Harris today. For the first time, not one student took the position that the video might support the plaintiff and show that the use of force was unreasonable. Maybe everyone who took that position had her camera and did not feel like doing hand-raise. But I was surprised.

Second,we Discovery last week, with a group argument over Coca-Bottling v. Coca-Cola, a dispute over discoverability of the formula for Coca Cola (what is now Classic) and the discovery and sanctions order coming from that dispute. But then, because I could not resist and believe I should impose my pop-culture preferences on them as much as the other way around:

Continue reading "Civ Pro: No Coke, Pepsi"

Posted by Howard Wasserman on March 18, 2021 at 01:48 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, March 17, 2021

Death of Garamond

Saddened by this news of the DC Circuit encouraging certain typefaces in briefs, thus discouraging those not mentioned, including Garamond. I began using Garamond for everything about 7-8 years ago, after reading about a study showing how much paper the government would save if all government documents were in Garamond 12-point.

Posted by Howard Wasserman on March 17, 2021 at 01:52 PM | Permalink | Comments (0)

Tuesday, March 16, 2021

Drake Law School - Visiting Position Fall 2021/2021-2022

Drake University Law School invites applications for a temporary appointment as Fall semester or full year Visiting Assistant/Associate/Professor of Law for academic year 2012-22.  Course assignments will include Criminal Law and Criminal Procedure - Investigation in Fall Semester 2021; Evidence/Crim Pro in Spring for full academic year visit. Currently, the Law School plans for these classes to be offered in an in-person format rather than remotely, subject to health and safety considerations, and candidates should be willing and available to teach in either format. Drake is an equal opportunity employer dedicated to workforce diversity. We strongly encourage women, people of color, and others who would enrich the diversity of our academic community to apply. For more information on the law school and its programs, see Interested candidates should submit a letter of interest, CV, and a list of at least three references via email to Associate Dean Andrew W. Jurs, [email protected]. Applications will be reviewed on a rolling basis, with a priority deadline of March 31, 2021. 

Posted by Sarah Lawsky on March 16, 2021 at 03:21 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Testing the Ainge Curse

BYU has a school policy against playing games on Sunday, grounded in LDS religious obligations. In 2003, the NCAA Basketball Tournament Selection Committee put BYU in a bracket space that required it to play a potential second-weekend game on a Sunday. The NCAA pledged not to let that happen again. But it did it again this year. BYU is the 6th seed in the East Region, which is scheduled to play on Sunday/Tuesday; the Midwest Region is scheduled to play on Saturday/Monday. If BYU reaches the Sweet Sixteen, the East and Midwest will switch schedules. Because fans will not be present and teams are bubbled and not traveling, the switch is administratively easy and can remain contingent until we see the results of the first weekend. (H/T: Josh Blackman)

Last year, Yeshiva University's men's team made the D-III tournament. It played at 2 p.m. Friday, with the host school knowing the team had to leave the gym by 5 for a 5:46 Shabbat, then at 8:45 p.m. Saturday.

Posted by Howard Wasserman on March 16, 2021 at 02:42 PM in Howard Wasserman, Sports | Permalink | Comments (0)

One Irony and One Tension on "wrong for faculty to be thinking"

I do not have the full correspondence that Eugene Volokh had with a Georgetown Law faculty member concerning the dismissal of one adjunct faculty member there and the placement of another on administrative leave. I do not know the identity of Eugene's correspondent (understandably enough), nor all the nuances of the full correspondence. That has made me reluctant to comment on the startling quote from the correspondence that appears in Eugene's post: that it is "wrong for faculty to be thinking—not just speaking—along those lines, because it will tend to create the very facts that it purports to describe." (Emphasis added.) The background topic does not necessarily encourage candid or public discussion, notwithstanding the fact that tenure and responsibility for one's academic discipline make candid and public discussion a duty and a well-protected one. Nor am I sure that the word "Thoughtcrime" in the title of Eugene's post helps to encourage that discussion, whether it is accurate or not; arresting language is powerful but can be, well, arresting.

All that said, I cannot help but add two observations. First, we recently had a couple of posts here about a lovely exchange between Mark Tushnet and Michael Seidman discussing their experience in law teaching. In that exchange, as Rick noted in his post, Seidman expressed discomfort over the sectarian nature of Georgetown as an institution, saying that "Georgetown Law Center is a nominally Catholic institution and one aspect of the residual Catholicism there is the notion that we're educating the whole person. Frankly, that gives me the creeps." He continues by asserting that universities have a "very limited function" or jurisdiction, and that "an educational institution that is concerned about the whole person risks totalitarianism."

Like Tushnet, I think there is room for more institutional pluralism than that--that there is room for universities that "care about the whole person." But I should like to note an irony here. Seidman is likely right that Georgetown is more "nominally" than deeply Catholic in its approach, and I'm sure many people there do not think of it as an especially sectarian institution. And yet, if the "wrong to be thinking" quote that Eugene offers is accurate, if it is shared by other faculty or students, and if it is reflected in the administration's actions (and they are not simply a university exhibiting the modern consumerist tendency to do what it has to do to fend off bad publicity and placate fee-paying stakeholders), it would be hard to imagine a more sectarian position. It is true that the quote offers a lightly consequentialist justification for objecting to faculty "thinking--not just speaking--along those lines." But at that level of abstraction and of intrusion, the idea that the wrong thought leads to the wrong world is surely deeply sectarian in nature, in effect if not in intent and perhaps both. It might not be the sect Georgetown started out with--it is actually closer to Puritanism--but it is sectarian just the same. The argument that some modern movements and sentiments are effectively religious or serve as a substitute for religion has at this point moved from insight to bumper sticker slogan. But this would be one case in which the bumper sticker seems to stick pretty well.

The second point is that I detect in some of the academic commentary (or lack of it) a sense that things are different in this case because the affected teachers are "merely" adjuncts. It is true that adjunct professors do not enjoy the protections of tenure. It is also true that many have argued that the "deprofessionalization" or "adjunctification" of the university poses dangers to academic freedom as a general institutional duty. But one can at least observe that the movement in law schools for some time with respect to another, previously contract-based sector of the law school faculty--clinical and legal writing professors--has been that they should be put on the tenure track and given equal status with doctrinal, tenure-track faculty. There is, I think, some tension between that and a view that what would be a controversy in the case of a tenure-track faculty member is much less consequential if it involves adjunct faculty. Whatever else one thinks of their status, one would think that one who has made arguments for expanding the professional status of teaching members of a law school should believe either that the "thinking" of adjunct faculty should be as protected as that of any other teacher (or student) at a university--or that wrong "thinking" ought to be unprotected for everyone, tenured professors included. I hope many more members of the broader university community share the first view than the second. But I'm not sure that's so.      

Posted by Paul Horwitz on March 16, 2021 at 11:29 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, March 11, 2021

Zombie revivals

Michael Dorf writes about a new Arkansas law that bans all abortions except to save the life of the woman in the case of a medical emergency. Dorf wonders why Arkansas (or any other state) does this rather than attempting to enforce an existing law. He argues it is partly political--current legislators and the current governor want the political trophy of such a law, as opposed to give the attorney general the glory of new enforcement. There also is the problem that Arkansas or another state may be under an injunction not to enforce the existing laws, so the new law is necessary to create a new enforcement opportunity. Alternatively, the AG would have to ask the district court to lift the injunction, which may be difficult when done in anticipation of SCOTUS overruling precedent.

Some good thoughts here that I want to incorporate into my Zombie Laws paper.

Posted by Howard Wasserman on March 11, 2021 at 04:11 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Twiqbal and voting

I  doubt I am in the first person to draw this connection, but here goes:

The political group(s) pushing to restrict voting rights are the same group(s) who seek to restrict access to courts and to civil justice. The real reasons for restricting access are the same--the people they want to win will not win if there is broad access (Republican candidates v. governments/businesses/persons who engage in certain types of wrongdoing). But they cannot acknowledge those real reasons. So they create evidence-free arguments equating expanded access with abuse of the system (massive voter fraud  producing an incorrect, inaccurate winner v. frivolous litigation with burdensome and disproportionate discovery hurting innocent companies and producing coerced or inaccurate judgments).

Posted by Howard Wasserman on March 11, 2021 at 08:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, March 10, 2021

Writing, Thinking, "Debating," and That Other Medium

At his Leiter Reports blog, Brian Leiter links to this short post by philosopher Charlie Huenemann on the "twilight of the idols of good writing." He laments the decline of "nuanced and disciplined" writing and the resultant increase in "shorter attention spans and shallower content." Naturally, he finds Twitter to be "the emblem of both results." Although I am biased because I am temperamentally ill-suited to Twitter and have ambivalent or negative views on late-capitalist culture, ceaseless self-promotion, and political polarization as a kind of hobby--the implicit ultimate object of most of the twits I read when I visited that site, including (especially including?) those by writers and academics--I find little reason to disagree with his general point, albeit it's one you've read before. (I grant that one-liners and "what a cute cat!" might be perfectly suited for the medium.)

I thought two things were worth emphasizing about the post. Huenemann does a nice job of discussing the connection between good writing and good thinking:

All in all, writing matters less. To my old school way of thinking, this means thinking and reading also matter less. I once heard Jonathan Bennett opine that there are no purely stylistic difficulties; every problem in expression betokens a failure to have thought all the way through what one wants to say. If we are more lax in our expectations for our writing and the writing of others, this means expecting less in thinking and reading. Good writing is mental discipline, and that discipline carries over, or fails to carry over, into all attempts to process content.

Perhaps this is truer for some forms of writing than others, but I think it is generally true. One reason I stole (from Professor Vincent Blasi) the "close reading" or "response paper" assignment I offer in many of my classes, in addition to my objection to hundred percent finals, and made sure that it was not of indefinite length, is that editing and deleting are essential exercises in writing and thinking. (I know, I know. Do as I say, not as I do.) Getting rid of what you don't really need is a fundamental part of figuring out exactly what you mean to say and what isn't necessary. Forcing students to concentrate their argument also forces them to think about that argument. Finally, it forces them to think about what kind of argument they can make well in a given amount of space and what would require more. (Thus, the end-point is not "If it's good to say something in as little space as possible, it must be even better to do it in 280 characters." A worthwhile idea should be communicated in as much length as it needs--no more, but no less. An idea that can be communicated in 280 characters or, not infrequently, an op-ed is often an idea not worth having, let alone sharing.)

I have only one quarrel with Huenemann, which is that he feels the need to add that the style of writing he teaches has "bankable career benefits." The thing is a good in itself and that is sufficient ground to argue for it and insist on it. If it becomes the case that writing short-form foolishness takes on more cash value than writing well, Huenemann will still be right and the fault will be that of society and the market. (More likely, I think, is that some people will master both, switch as necessary, and do very well by it financially, even as they champion the foolish style and call the thoughtful one outmoded, and that those who have failed to master or not even been taught Huenemann's style of writing and thinking will find themselves at a further disadvantage in a society stratified by education and elitism.)

I would suggest a second point as a variation on the theme of Huenemann's post, one not raised by him. He is right that thinking and writing are closely, inextricably connected. What about debating? Twitter is well-suited to a particular set of forensic debating toolswhich can be used in that short space. Yet it is still a moronic place, and even (especially?) skillfully wielded debating points by ostensibly intelligent people are as likely to lower as to raise the discourse and to obscure rather than clarify any real understanding of the issue. It may be that law professors, who (in my view) overvalue debating skills and their own debating experience earlier in life, like Twitter in part for that reason. (Although I suspect that capitalism, self-promotion, and politics-as-hobby still have more to do with it.) To my mind, Twitter also reminds us that while writing and thinking may be the same, thinking and and arguing are not the same as debating, that forensic skill is not serious thought, that it is dangerous to mistake one for the other, and that our culture has indeed developed the perilous habit of making just that mistake.      



Posted by Paul Horwitz on March 10, 2021 at 01:18 PM in Paul Horwitz | Permalink | Comments (0)

Stupidity, racism, and apologies (Updated)

Meyers Leonard, a back-up big man for the Miami Heat who has missed most of this season with a shoulder injury, was playing Call of Duty on a live Twitch and trash-talked a fellow player as a "fucking kike bitch." He has lost a bunch of gaming sponsors and will be "away from" the team "indefinitely." Leonard apologized, in a pretty unqualified manner, albeit with a touch of "[t]his is not a proper representation of who I am." But I want to unpack some pieces of his statement.

• "I didn't know what the word meant at the time" and he was "ignoran[t] about its history and how offensive it is to the Jewish community." He is "more aware of its meaning."

    What does this mean? If he is saying he did not know it was an anti-Jewish slur, I find that hard to believe. While not as common as other slurs and epithets, I would think people would know of the central anti-Jewish slur (I have never been called a kike to my face, but I know about the word). Has he never seen Porky's (dating myself, I know)?

    What did he think the word meant? He understood it as an insult, a pejorative adjective that he could squeeze between a pejorative adverb and an insulting noun. He used it with the intent to form an insult, albeit a playful one in the course of gaming trash-talk. Did he think he was using a made-up word or a random word he had just heard somewhere? Then how did he know it was insulting? Did he know the word was insulting, but not know towards whom the word was insulting? Did he think it was some cool-sounding word to use for trash talk? (Update: I will repeat a point I have seen elsewhere from several people that I think makes a similar point: The word was in his vocabulary. It kind of beggars belief to say that he did not know the meaning of a word he had at his disposal as an insult)

    Or is he saying that he knew the word was insulting, but did not know its history or origins? In which case, I do not care. No one is actually sure of the word's history or origins. The leading theory (attributed to Leo Rosten) is it came from the Yiddish word for "circle" (kikel) or "little circle" (kikeleh) and the practice of Jewish immigrants signing papers with a circle (rather than an X). Another is that it was a derogatory reference (begun by established German-Jewish immigrants) to newer Eastern-European-Jewish immigrants whose names often ended in -ki or -ky (e.g., Meier Suchowlański or Meyer Lansky, as he was sometimes called). Either way, knowledge (or lack of knowledge) of a slur's etymology is cute misdirection that should not distract. Using a slur is using  a slur, whether you know where it came from; you are not immunized in using the slur if you are unclear of its origins, because it remains a slur. The question is whether he knew it was anti-Jewish, regardless of where it comes from. Which returns to the prior paragraph and what he thought the term means--that is, what kind of fucking bitch was he talking about there?

• "I am committed to seeking out people who can help educate me about this type of hate and how we can fight it."

    Here is all the education he needs: Don't use anti-Jewish epithets. It is unnecessary for Meyers Leonard to learn about the thousands-of-years-long history of anti-Jewish hatred or to advocate against anti-Jewish bigotry. I do not really care if he is Judenhaas or what he thinks and says in his heart or what causes he supports or opposes. If he does not want to be a pariah and wants to continue earning almost $ 1 million per point (Meyers makes $ 9.4 million and had scored 10 points in 3 games prior to his injury), he should try to refrain from using slurs in a public forum that he set up. The rest is up to him.

•  Leonard did not kneel during the national anthem in the NBA Bubble last season. He tried to thread the needle with the usual tropes about supporting the cause but not disrespecting the flag and the military (his brother is in the military). But some of this conversation is recalling that, running along the lines of "see, he showed you who he was and what he believed last season when he refused to join his teammates in kneeling during the anthem, this is more of the same."

    I am troubled by that progression. It is a leap from not engaging in a particular protest against racist policing to the conclusion that he opposes or is antagonistic to that cause to the conclusion that he is a racist who supports racist policing. Maybe he is, maybe he isn't. But refusing to participate in one expressive activity is not revealing of broader views, certainly not in the same way as using an epithet. It smacks too much of "if you do not support my cause in my chosen way, you are opposed to my cause."

I hope this will be the last time I write about Meyers Leonard.

Update: Julian Edelman, who has become the most outspoken Jewish athlete, penned an open letter to Leonard inviting Leonard to a Shabbat dinner and warning of the dangers of casual ignorance about hate and epithets.

Posted by Howard Wasserman on March 10, 2021 at 11:49 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

10+1 Questions: A New Talk Show about Academic Life

Law professors Sofia Ranchordás (Groningen University) and Volker Stockerhttps (German Internet Institute, Berlin) have a new talk show about life in academia. They ask their guests questions about their career paths, their research choices, work-family balance, and what you would do if you weren't an academic.

I had the pleasure of being their second guest and here is the trailer - full episode coming out this friday.


Posted by Orly Lobel on March 10, 2021 at 10:57 AM | Permalink | Comments (0)

Tuesday, March 09, 2021

The Proper Characterization of Jackson's Youngstown Concurrence

I took a blogging breather after the frenzy of January and February. Now I'm busy finishing up my draft on Robert Jackson's understanding of the non-delegation doctrine. If all goes well, I'll have the draft ready at the end of March. Let me make one observation now though.

Jackson's Youngstown concurrence is often cited as the ur-text for a functional or flexible view of separation of powers. To take a recent example, Justice Kagan's dissent in Selia Law quoted Jackson's line that "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government" and the said: "The Framers took pains to craft a document that allow the structures of governance to change, as times and needs change."

But this understanding of Youngstown is oversimplified. The fact that Jackson believed in the non-delegation doctrine when power was delegated to the President himself means that he was not just saying that any established power-sharing arrangement between Congress and the President was fine. This misunderstanding is, though, understandable given the lack of attention paid until now about his views on non-delegation.

Posted by Gerard Magliocca on March 9, 2021 at 01:21 PM | Permalink | Comments (7)

Parler v. Amazon Web Services: Defamation & the Promotion of Violence in Social Media

Parler v. Amazon Web Services presents some intriguing issues concerning the role of social media in fomenting violence, the market power of Amazon and its web services to suppress speech businesses, and the continued controversy over who is and who is not a public figure. See Parler v. Amazon, Complaint, CASE #: 21-2-02856-6 SEA (Sup. Ct. Wash., Mar. 2, 2021); Parler v. Amazon Web Services, CASE NO. 2:21-cv-0031-BJR, Order Denying Motion for Preliminary Injunction (W.D. Wash. Jan 21, 2021).

Amazon Web Services indefinitely suspended the social media company Parler from its site a few days after the riots at the U.S. Capitol on January 6, contending that “Parler was used to incite, organize, and coordinate the Janary 6 attack on the U.S. Capitol.”

Shortly after being suspended, Parler sought an injunction against AWS in federal district court in the state of Washington. Parler, which describes itself as a “conservative microblogging alternative and competitor to Twitter” and Facebook, asserted that AWS was using its market power to disable a potential competitor and claimed that AWS had engaged in conspiracy in restraint of trade, breach of contract, and tortious interference with business expectancy. AWS countered that Parler’s inadequate moderation of its site violated AWS’s Acceptable Use Policy, which prohibits “illegal, harmful, or offensive” use or content. AWS also contended that Parler was in breach of its Customer Service Agreement, which justified AWS in suspending Parler. The federal district court denied Parler’s motion, finding that Parler had failed to show a likelihood of success on the merits of its claim. The judge concluded that Parler supplied no evidence of any conspiracy in restraint of trade, and Parler’s breach of its agreement with AWS and the Acceptable Use Policy made Parler’s breach of contract suit unlikely to succeed. Similarly, Parler’s breach also made its tortious interference claim weak. Evaluating the balance of hardships in the case, the court stated: “AWS has convincingly argued that forcing it to host Parler’s users’ violent content would interfere with AWS’s ability to prevent its services from being used to promote—and, as the events of January 6, 2021 have demonstrated, even cause—violence.” The court further held that the public interest did not support granting an injunction forcing AWS to host the incendiary speech that some of Parler’s users engaged in, opining that the riots at the Capitol “was a tragic reminder that inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a lawful protest into a violent insurrection.”

Parler was off the internet for more than a month while it tried to find replacement web services. On March 2nd, 2021 Parler filed suit against Amazon Web Services and in state court in Washington. In its complaint, Parler insisted that AWS’s suspension was motivated by a desire to eliminate the threat Parler poses to “surveillance capitalism” because it does not sell user data. The complaint recounts instances of violence-promoting content appearing on Amazon, Twitter and other social media sites, suggesting that AWS’s suspension of Parler with less than 30 hours’ notice was based on concerns other than its content moderation. Further, Parler alleges, implausibly and without support, that AWS directed hackers to Parler’s backup datacenters and began secretly selling Parler’s user data.

Parler brought various claims against AWS, including deceptive trade practices, defamation, breach of contract, breach of fiduciary duty, tortious interference with contract or business expectancy, unfair competition, negligence, and other claims (for a total of fourteen claims). The suit seeks trebled and exemplary damages and attorneys’ fees.
The basis for the defamation claim was an email AWS allegedly leaked to BuzzFeed that stated that AWS was indefinitely suspending Parler because it was unable or unwilling “to remove content that encourages or incites violence against others.” Parler asserts that AWS made this claim, despite being aware that Parler had a history of removing problematic content and was testing a new artificial intelligence system to moderate problematic content. Parler asserts that it is not public figure and its content moderation policies were not a matter of public concern, but even if it were, AWS acted with knowledge or reckless disregard of the falsity of its allegations that Parler had been lax in moderating troubling content. AWS complained that this defamation cost it millions in lost business.

Is Parler a public figure? While it is true that a defendant cannot bootstrap a plaintiff into becoming a public figure by virtue of the defendant’s defamatory allegation, Parler was in the public eye based on its business practices before AWS leaked the email. Indeed, a Washington Post article published the day before the Capitol riots on January 6 stated that “[t]alk of guns and potential violence is rife on . . . the conservative social media site Parler.” Parler suggests that it is no more responsible than other social media for allowing violent content on its site linked to the events of January 6th. If this allegation its true, it would lend credence to Parler’s claim that the blame for the riots has been falsely pinned on its site; however, Parler did not sue the media linking its site to the riots but instead sued AWS. AWS may assert that the leaked email about Parler is technically true: Parler was unable to keep up with moderating violence-promoting content. Moreover, if AWS relied on credible news sources to conclude that Parler was being used to foment violence, it would be hard for Parler to prove that AWS knew or recklessly disregarded the falsity of AWS’s attribution of inadequate moderation to Parler. On a side note, it seems at least as likely that AWS booted Parler for damaging AWS’s own reputation as it does that AWS booted Parler for anti-competitive reasons. Regardless, if this defamation action helps uncover whether Parler’s lax content moderation was more responsible than that of other social media for the riots of January 6, it will be doing a public service.

Posted by Lyrissa Lidsky on March 9, 2021 at 11:50 AM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (3)

Cascading Fed Courts issues

I have not given enough thought to how one SCOTUS decision on one issue produces a cascade of other issues. Janus provides a nice case in point.

SCOTUS held that mandatory non-member agency fees violate the First Amendment. That triggered a wave of actions against unions by non-members to recoup fees paid prior to Janus, which courts of appeals have uniformly and all-but-unanimously rejected via a defense of good-faith immunity (the Fourth Circuit joined the chorus yesterday).

The Seventh Circuit on Monday considered a different downstream effect: A union sued the state attorney general challenging state law requiring unions to represent free-riders, claiming that mandatory representation violates the union's First Amendment rights against compelled expression and association. The court of appeals held that the union lacked standing.* No freeriding nonmember had grieved the union for failing to represent it. The attorney general (the defendant in the action) had not initiated or threatened an action against the union for unfair (or non-) representation. And the union had not alleged an intent to not represent freeriders to set-up a pre-enforcement challenge. So while the court acknowledged the issue was unavoidable post-Janus and would eventually require resolution, there was no live case or controversy teed up.

[*] While acknowledging that it also could have been unripe. But wouldn't it all be so much easier to say that nothing had (yet) caused a violation of the union's constitutional rights?

That leads to a further downstream effect: If a freerider files a grievance or the state brings a failure-to-represent action, would a federal court abstain under Younger from the union's action? It may depend on the state laws and procedures governing state labor proceedings. I think abstention would be required in the AG action, because the action sounds comparable to an attorney-grievance proceeding. The freerider grievance may be a bit more open after Sprint, since the state would not be a party.

This is far from played out, as the Seventh Circuit recognized. I wonder if the Janus majority anticipated this three years ago.

Posted by Howard Wasserman on March 9, 2021 at 10:57 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, March 08, 2021

Nominal damages, past injury, and a morass to come

SCOTUS decided Uzuegbunam v. Preczewski Monday, holding 8-1 (Thomas for the Court, Roberts dissenting) that nominal damages are a retrospective remedy and plaintiffs can pursue them as the sole remedy for a past constitutional violation. The decision allows plaintiffs to vindicate rights (e.g., the right to protest in a time, place, and manner to which the plaintiff was entitled) that are easily violated but rarely, if ever, worth a lot of money. It also strips government of the power to moot cases after they have begun by repealing the challenged policies, at least where the plaintiff can show an injury from when the policy was in effect.

But the decision leaves many issues open and to be resolved by lower courts going forward.

Continue reading "Nominal damages, past injury, and a morass to come"

Posted by Howard Wasserman on March 8, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Cloture Reform in the Senate

For what it's worth, I wrote an article in 2011 outlining a proposal for reforming the filibuster. I still think that what I outlined there is the best compromise, though I also think that the idea of making a "talking filibuster" a requirement would also be a significant improvement.

Posted by Gerard Magliocca on March 8, 2021 at 01:41 PM | Permalink | Comments (3)

Thursday, March 04, 2021

Whither Ford?

Alabama Law Review will host a virtual symposium, Ten Years of the Supreme Court's Personal Jurisdiction Revival, 9 a.m.-3:30 p.m. CST tomorrow. Registration here.

The timing of the symposium makes it worth noting that the Supreme Court has not decided the Ford personal jurisdiction cases, which were briefed last spring and argued on October 7. The Court has not announced its next opinion day and the new sitting does not begin until March 22. So it will be 5 1/2 months, at least, from argument to opinion. It must mean the Court is going to do some very unfortunate things to personal-jurisdiction doctrine or some minority of the Court is drafting dissents to complain that the Court did not do something unfortunate to personal-jurisdiction doctrine. Either way, I am surprised it has taken so long.

Posted by Howard Wasserman on March 4, 2021 at 04:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Twiqbal meets the Kraken and Gondor

The Kraken and other pro-Trump/pro-Republican lawsuits about massive election fraud are fictitious nonsense brought by terrible lawyers. The litigation efforts, and the lawyers who brought them, have been justly ridiculed, But I am curious about one point of criticism--that the plaintiffs failed to offer proof of this massive fraud and the pleadings have been absurd because they included allegations of wrongdoing without proof. The same critics distinguished the leaky press conferences and Holiday Inn legislative "hearings" from courts, where the latter have rules governing proof.

Under notice pleading, however, the plaintiff is not required to plead its evidence or to offer proof of its allegations; the idea is to plead skeletal facts showing wrongdoing and leave it to discovery to find evidence behind allegations. Twiqbal requires more than that, of course. But even Twiqbal does not require a plaintiff to identify the evidence supporting its allegations, only that those allegations be more detailed. In any event, many people criticizing the Kraken pleadings decry Twiqbal for ratcheting up what plaintiffs must do to get into court and proceed to discovery.

Part of the issue is that the plaintiffs not only filed complaints, they sought immediate preliminary injunctive relief, which does require evidence beyond the allegations. something the plaintiffs were unable to provide. That made the motion, which must be supported by proof, more salient than the complaint which does not. Still, responding to a ridiculous complaint by demanding proof seems to ignore how federal litigation begins and the idea that the demand for proof comes later--discovery, summary judgment, and trial. And demanding that Gondor and the Kraken have proof at the outset, when we criticize the courts for demanding the same from a typical civil rights plaintiff, seems disingenuous.

Again, I am not saying these cases should have succeeded. Plaintiffs did need evidence for preliminary relief and did not provide it. But the framing outside the courts seems wrong.

Posted by Howard Wasserman on March 4, 2021 at 08:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Monday, March 01, 2021

Forum-Defendant Rule, Mischief Rule, and Snap Removal

My essay, The Forum-Defendant Rule, the Mischief Rule, and Snap Removal, has been published in Wm. & Mary Law Review Online. It uses Sam Bray's reconfiguration of the mischief rule to provide a textualist solution to snap removal, without having to resort to purposivism or needing new congressional action.

Posted by Howard Wasserman on March 1, 2021 at 10:46 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Entry Level Hiring: The 2021 Report - Call for Information

Time once again for the entry level hiring report.

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

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

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

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

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

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

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

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

The spreadsheet includes some information that I pulled from public sources, such as Twitter or law school websites. When that is the case, I've included the relevant link (in a column to the right--just scroll the spreadsheet over). If I have included your information from a public source and you would like me to correct or update it, please just let me know.

You can either leave information in the comments or email it to me. You cannot edit the spreadsheet yourself.

If you leave information in the comments, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.)

If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu.

Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

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

Continue reading "Entry Level Hiring: The 2021 Report - Call for Information"

Posted by Sarah Lawsky on March 1, 2021 at 10:18 AM in Entry Level Hiring Report | Permalink | Comments (8)

Saturday, February 27, 2021

Universality and the CDC eviction moratorium (Updated)

Judge Barker issued a declaratory judgment in Terkel v. CDC, declaring the extension of the CDC's eviction moratorium constitutionally invalid. This creates a split with district courts in Georgia and Louisiana, as Ilya Somin describes. But the Terkel court did not issue an injunction, accepting the government's representations that they would "respect" the DJ; it added that the plaintiffs could "seek an injunction should defendants threaten to depart from the declaratory judgment."

As with all of this, the question becomes scope and what the government can do now. The plaintiffs are one individual and five property-management companies, in an action not certified as a class action. Saying the CDC would “respect” and not "depart" from the DJ should mean respect it as to the parties and that it "departs" it only by attempting to enforce against the plaintiffs, which it is unlikely to do. It should not stop the CDC from enforcing the policy against anyone else, certainly outside of Texas, who lacks the protection of a judgment.

The risk for the CDC in enforcing is that Judge Barker will get mad, issue an injunction, and make it universal. This would be wrong on several levels, beyond the usual normative incorrectness of universality. It would be incoherent for the judge to issue a universal injunction in furtherance of a party-particularized DJ.

Even if universal injunctions are appropriate in some cases, this would not seem to be such a case. This is not the DAPA/DACA cases, in which Texas was worried that non-enforcement outside of Texas causing undocumented persons to migrate into the state looking for driver’s licenses. It is not the sanctuary-city cases, in which allowing enforcement as to non-party jurisdictions injured them by shrinking the pool of available funds. It is not an immigration case, in which there is a perceived command that immigration law be uniform. The only conceivable argument for universality requires every injunction to be universal--the CDC policy is categorical and applies to all landlords who may want to evict people. Unfortunately, that is the argument I would expect Judge Barker to accept.

This case exemplifies when universality is inappropriate. Injunctions must provide the plaintiffs complete relief. These plaintiffs get that if they are protected against enforcement. The enforcement or non-enforcement of the CDC policy against anyone other than these managers does not affect the enforcement or non-enforcement of the policy against these plaintiffs.

Update: DOJ filed a response to a notice of supplemental authority on Terkel in the District of the District of Columbia, arguing, in part, that the Terkel judgment does not extend beyond those plaintiffs and does not prohibit enforcement of the policy against others, including the plaintiffs in the D.C. case (which includes the Alabama Association of Realtors). (H/T: Josh Blackman).

Second Update: DOJ announced an appeal in Terkel with a press release stating: "The decision, however, does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC’s eviction moratorium to other parties. For other landlords who rent to covered persons, the CDC’s eviction moratorium remains in effect."

The Court avoided universality in cases challenging Trump Administration policies, because the majority declared the ban valid in the cases in which universality was most central, notably the travel ban. Justices Thomas and Gorsuch have been unequivocal that the judgment in a case cannot extend beyond the parties. It will be interesting to see what they do with a Biden Administration policy that offends their pre-New Deal constitutional sensibilities.

Posted by Howard Wasserman on February 27, 2021 at 05:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

More on the "codgers" . . . and institutional pluralism.

Paul noted, a few days ago, the very interesting and recently published conversation between Profs. Seidman and Tushnet.  The former had an interesting take on Georgetown University Law Center's Catholic character and mission:

"Georgetown Law Center is a nominally Catholic institution and one aspect of the residual Catholicism there is the notion that we’re educating the whole person. Frankly, that gives me the creeps."

Prof. Mark Tushnet's response should also be noted, though:

I would say we might want to think about whether different institutions could assert different kinds of jurisdiction and in this context it’s not irrelevant that Georgetown is an institution affiliated with the Society of Jesus and Harvard is not. It might well be that having a universe of 170 whatever law schools some of which take the care of the whole person seriously, others of which limit their jurisdiction, that might be a good thing.  Call it institutional pluralism or diversity. . . .

"Institutional pluralism."  I like that!

Posted by Rick Garnett on February 27, 2021 at 11:27 AM in Rick Garnett | Permalink | Comments (3)

Thursday, February 25, 2021

Jurisdiction and Merits in the FTCA

SCOTUS unanimously held Thursday that the Federal Tort Claims Act's Judgment Bar applies where the district court dismisses an FTCA claim for lack of jurisdiction based on a determination that the complaint fails to plausibly allege elements of an FTCA claim. While the Court acknowledges that failure to state a claim ordinarily does not deprive the court of jurisdiction, the FTCA is unique. As a waiver of sovereign immunity, all elements of a meritorious claim are jurisdictional.

Descriptively, I think this is right, given the text of the FTCA, But it is bad news from my everlasting project of sharply separating jurisdiction and merits and not letting Congress make the former relate in any way to the latter. It also is bad news for my position that sovereign immunity should not be deemed jurisdictional--the suability of a defendant goes to the "who can be sued" prong of the merits, not jurisdiction. Another area to cover (along with standing) if I ever write this piece.

Justice Sotomayor concurred to address an issue briefed but not used in the decision--whether the judgment bar should apply in a case (such as this one) in which the plaintiff brings FTCA and individual claims in one action. Sotomayor suggests (rightly, I think) that the bar should not apply in those cases because claim preclusion would not apply there. It would be odd for a decision in one claim within a single action to have a preclusive effect on other claims in the same action.

Posted by Howard Wasserman on February 25, 2021 at 06:19 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Listen to the Codgers: Tushnet and Seidman on 50 Years in the Legal Academy

Better than late than never, let me urge on readers this fine dialogue between Mark Tushnet and Louis Michael Seidman, On Being Old Codgers: A Conversation About a Half Century in Legal Academia. It is dated 2019; I'm not sure why I didn't see it earlier. It is charming, useful, and insightful. Perhaps because I worry over these issues plenty and because I tend to agree with Mark on a number of issues, I don't think the insights are shocking. But they are useful, and I suspect some people who are less historical or institutional in orientation think about them less and might find that they are new to them. There are some statements here--for instance, "Our role is not to change students’ minds, but it is to get them to hold the ideas they have in the most sophisticated form that they can be held."--that many or most of us would take to be self-evident but for which I suspect that there would be some genuine divisions (political, generational, institutional and so on) and that some might even take to be clearly wrong. (It is actually clearly right.) The discussion about the reality or perception of a decline in general agreement about and faith in the seriousness of the enterprise is interesting, and so is Tushnet's suggestion that the brief establishment of a commune in the yard at Yale Law School in the early 70s, and the cultural challenge it represented, was ultimately "more significant than the directly political stuff that I was interested in." So is the discussion of scholarship. The whole thing is well worth your time. 

Posted by Paul Horwitz on February 25, 2021 at 03:02 PM in Paul Horwitz | Permalink | Comments (5)

The Booth Conspiracy and the Transfer of Power

Here's an interesting point that I hadn't thought about until the riot at the Capitol. When the Government tried the conspirators to President Lincoln's assassination before a military commission, here was part of the charge:

"[B]y the killing and murder of the said Abraham Lincoln, Andrew Johnson, Ulyssus S. Grant, and William Seward, as aforesaid, to deprive the Army and Navy of the United States of a constitutional Commander-In-Chief; and to deprive the Armies of the United States of their lawful commander, and to prevent a lawful election of President and Vice-President of the United States aforesaid; and by means aforesaid to aid and comfort the insurgents engaged in armed rebellion against the said United States, as aforesaid, and thereby to aid in the subversion and overthrow of the Constitution . . ."

The charge explained that the Secretary of State alone was given the duty by law "upon the death of said President and Vice President of the United States aforesaid to cause an election to be held for electors of President of the United States." By killing Seward as well, John Wilkes Booth and his accomplices were seeking to prevent such a special election from being called.   

Posted by Gerard Magliocca on February 25, 2021 at 02:23 PM | Permalink | Comments (2)