Monday, October 12, 2020

Standard Arguments Against Confirmation (Alas)

At least for the past 33 years, two arguments seem to lead the pack as standard justifications for voting against a judicial nominee, especially a Supreme Court nominee, who is otherwise "well qualified" for  the office:

1) "Extreme": The most popular, because most generally and easily applicable, begins with the acknowledgment that the nominee may be otherwise well qualified for the office, and that the person opposing the nomination does not object to the fact that the nominee is conservative, or liberal, or what have you, as such. But this nominee is not just conservative/liberal/what have you: He or she is "extreme" in his or her views, and those extreme views are "disqualifying." (Here is a recent example.) 

2) Scandal: The other standard argument is that regardless of the nominee's other qualifications or of whether the nominee is or isn't "extreme," he or she has done something that is scandalous, improper, illegal, or what have you, but in any event so bad that the nomination should not go forward.

Stipulate that either of these may, in fact, be good reasons for voting against a nominee and that there are nominees for whom, on almost any reasonable reading, one or the other reason may apply. It remains the case, it seems to me, that both of these arguments are bad standard arguments. That is, whether or not they are sufficient reasons to vote against a nominee, they should not be held up as the standard primary arguments or, which ends up coming to much the same thing, treated as necessary arguments.  

That's not because they're wrong in themselves, but because the incentives involved are damaging and arguably not wholly within the conscious control of any senator, let alone the Senate as a collective body. If the supposition is that a "well-qualified" nominee is entitled to confirmation unless he or she is extreme, and a senator wants to vote against that person for the obvious reason that he or she is likely to cast votes that the senator doesn't want, of course one will describe the nominee as extreme. There's not much of a penalty for getting it wrong predictively, and since "extreme" is a standardless word, it's not clear what getting it wrong means as a descriptive matter. Indeed, given its malleability, the influence of epistemic bubbles, and the number of people who have decided that their mission in life is to move the Overton window, the senator may even come to believe that the nominee is "extreme" even if he or she didn't start with that belief.

As for scandal, there are reasons to take it seriously. But absent a clear standard and burden of proof, reasonable but strictly observed time limits, and other controls, relying on this as the other major justification for a negative vote will at a minimum lead to protracted confirmation processes in the hope that something will eventually emerge that "raises serious questions." On the margins, there will of course also be questions about what is or isn't scandalous, questions that are subject to the same cognitive effects. (I think this line of attack will have a number of other negative effects. I think the character of office-holders matters, But I doubt that a trend in which anyone entertaining the idea of public service is encouraged to order his or her life to conform to the Boy Scout oath is a positive one even for those who care sincerely about the character of office-holders. It does not follow that if having office-holders of good character is good, demanding office-holders of superficially unblemished character must be even better. But I'll rely here strictly on the basic point.)

People often bemoan party-line votes. But it's not clear to me that they are as damaging to the process, or to the federal courts, as a system in which people profess loyalty to the proposition that a well-qualified nominee should be confirmed but then must perforce frame a "no" vote in terms of the "extreme" or scandalous nature of a particular nominee. On the whole, I like the proposition that a well-qualified nominee should be confirmed. At least I would like it, if I felt I could trust senators to abide by it and not rely on escape hatches, or if I felt that the media environment was such that disingenuous statements would be treated as such rather than amplified.

Without that kind of environment, it seems to me that I would vastly prefer a senator to call a nominee well qualified and vote against him or her explicitly on the basis that the nominee might rule in a way the senator doesn't want. Perhaps the counter-argument is that there is a constitutional "norm" or "settlement" or "convention" favoring the confirmation of well-qualified nominees. And I believe in the value of constitutional norms, and am delighted that the renewed interest in them reveals a deep and abiding love of tradition. Who knew? But if that's the norm (and one should generally be suspicious of any specific invocation of constitutional norms), it's a bad one, at least unless it is observed by people of character. Under the circumstances it would be preferable for senators, who are politicians, to cast political votes. It would save a lot of fuss and bother. But they should be openly political votes.         

Posted by Paul Horwitz on October 12, 2020 at 06:02 PM in Paul Horwitz | Permalink | Comments (0)

Friday, October 09, 2020

Ford arguments

Here is the transcript from Wednesday's argument in Ford and here is my SCOTUSBlog story. A few additional thoughts:

The Justices do not seem to understand or recognize that the prevailing analytical approach has 3 parts (at least as it has developed): 1) Purposeful availment; 2) Relatedness; 3) Unreasonableness. A lot of the hypos conflated the three. The Chief's hypo about the small manufacturer in Maine could be resolved on the third prong (much like Justice Breyer's hypos about Egyptian shirts and Brazilian coffee in his Nicastro concurrence). Other hypos were about purposeful availment rather than relatedness. Justice Kavanaugh tried to disaggregate them in his colloquy with plaintiff counsel, giving him a chance to describe the differences between the first two steps and why they do not run together. But I do not know whether it will take. (There is an argument that the three-step approach is wrong and inconsistent with Shoe, but this is where we are until the Court changes it. So it would be helpful if they recognized their analysis).

Justice Kavanaugh explored the World Wide connections with both sides, including quoting specific language from the case. Counsel for Ford argued that the issue is open because Audi and VWA did not challenge jurisdiction. Counsel for plaintiffs argued that there is a reason for that--jurisdiction over a nationwide manufacturer for defects in its products forms the "core" of specific jurisdiction.

I am bad at predictions, so I will not make one. But the Justices were less hostile to the plaintiffs' position than I anticipated. I do not know what that means for the outcome.

On a different note, it was easier writing the argument recap (what I have found the hardest of the three SCOTUSBlog pieces for each case) under the new argument format because it was easier to take notes and to organize the piece--Intro and nine mini colloquies per side, with less need to scour many pages for common themes. Although I was raised in the Scalia-led free-for-all that also is reflected in law-school moot court, this format is growing on me and I am curious if they will maintain some version of this when the Court returns to face-to-face. And if Court membership expands.

Posted by Howard Wasserman on October 9, 2020 at 01:11 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

JOTWELL: Effron on Rose on online class action notice

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Amanda M. Rose, (U. Chi. L. Rev., forthcoming), on a government website to handle class-action administration.

Posted by Howard Wasserman on October 9, 2020 at 10:47 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, October 08, 2020

"Religious Questions: Relevant, Legitimate, and Impossible" at Canopy Forum Blog

Here is a post I did for Canopy Forum, the blog of Emory's Center for the Study of Law and Religion, which (present company excepted, of course) has been running some excellent material. Here's a key paragraph:

It is in the seeming tension between these two assertions — that the Religious Test Clause as a constitutional provision is more residual than important these days, and that religious questions about putative office-holders are at least as urgent as they have been in some time, if not more — that we might approach the latest such controversy, over the nomination of Amy Coney Barrett to the United States Supreme Court. 

I would like to make two suggestions here. First, despite the rhetoric of some of her supporters, those who suggest that the Religious Test Clause bars any religious questions about Judge Barrett and her views are wrong. That is not a bad thing; religious questions can, in theory at least, be sensible things. Second, precisely because of the rhetoric of those who actually raise or insinuate religious questions, whether in opposition to her or in her support, we should avoid them like (pardon the expression) the plague. That is, in a sense, a bad thing. It means that the level of public discourse around religion — and not just religion — and the religious literacy of our representatives and of the public itself is so impoverished that we are virtually incapable of asking such questions. 

Posted by Paul Horwitz on October 8, 2020 at 03:11 PM | Permalink | Comments (0)

Wednesday, October 07, 2020

Impementing SCOTUS term limits

I missed the introduction of this bill last week, which Eric Segall discusses. It provides for appointments in the first and third year of a presidential term. It also provides that the Senate shall be deemed to have waived its advice-and-consent authority if it does not act on a nomination within 120 days of the appointment and the nominee shall be confirmed. This is cute, designed to prevent the McConnell move of sitting on a nomination, although it does not stop a determined Senate majority of one party from blocking everyone a President of the other party nominates. I have seen other proposals for a statute or Senate rule that failure to confirm within a certain time shall be deemed confirmation.

The bill does not make the Balkin move of giving senior justices specific SCOTUS-related responsibilities. But current Justices are not required to retire from "regular active service," so there are no problems of changing the tenure of sitting Justices. But appointments will begin upon passage, with new appointees serving as active Justices for 18 years. Presumably, the Court will expand until current Justices retire.

But this creates some strange Court dynamics as the new system takes effect. Justice Srinivasan appointed under this law in 2021 would be active until 2039, then forced into senior service. Meanwhile, in 2039, six current Justices (seven if you include Barrett) would be in their early 80s or younger and likely still wanting to remain active. A big chunk of the current Court would form a "core" that might continue for another 30 years, while an "outer" Court changes around them. The demand for incrementalism due to non-retroactivity creates some difficulties.

Posted by Howard Wasserman on October 7, 2020 at 07:05 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Drake Law School - Visiting Position Spring 2021

From Drake University Law School:

Drake University Law School invites applications for a temporary appointment as Visiting Assistant/Associate/Professor of Law, to teach a small section of Civil Procedure (II) in a remote format during Spring Semester 2021. Civil Procedure (II) is a three-credit class for incoming first-year students, and should cover the phases of a civil lawsuit, including pleading by the parties, joinder of parties and claims, discovery and preparation for trial, devices for resolving disputes without trial, burdens of proof, instructions, verdicts, and post-trial motions. Visitors should also be available for office hours on a weekly basis. 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], prior to October 23 for the initial review of candidates.

Posted by Sarah Lawsky on October 7, 2020 at 04:47 PM | Permalink | Comments (0)

Law Professor Wins MacArthur Grant

Congratulations to Thomas Wilson Mitchell, a professor at Texas A&M University School of Law and co-director of its program in real estate and community development law, who this week was named a 2020 fellow of the MacArthur Foundation. The foundation describes his work as "reforming laws and developing policy solutions addressing mechanisms by which Black and other disadvantaged American families have been deprived of their land, homes, and real estate wealth."

I am not acquainted with his work, no doubt to my loss, as it's outside my usual field. And I must confess that I'm not a huge fan of the MacArthur Foundation and its annual grants. But I am a fan of fair play and reasonable distribution of plaudits within our economy of prestige, and specifically within law, our ostensibly, generally absurdly credentialist sector of  the already absurdly credentialist academy. Not having learned the news until this moment, and having heard much more, and much more quickly, about previous grants to law professors, I wondered whether it was a function of my own increasing effort both to stay away from most social media and to approach more warily and less frequently the usual mainstream media outlets, which are suffering from an evident drop in quality, reliability, and professionalism--or whether there was a genuine relative lack of coverage. A quick and dirty search suggests to me that it's not just my reading habits; it looks as if Professor Mitchell has not (at least not yet) received the same amount of coverage and law-blog love as at least some other previous lawprof recipients of the fellowship. I'm sure all private law scholars and at least a few public law scholars join me in thinking there is no reason in the world for property, and private law generally, to get less than its due share of attention in an often overly public-law-oriented legal academy. (And I say that as a public law scholar.) So I am happy to note the news and to congratulate Professor Mitchell--and Texas A & M Law, which I'm sure is justly thrilled and proud.  

Posted by Paul Horwitz on October 7, 2020 at 03:56 PM | Permalink | Comments (0)

Joseph Rainey and the Amnesty Act of 1872

I've come across a fascinating speech. In 1872, Congress was debating amnesty from Section Three of the Fourteenth Amendment for many former Confederates. A proposal was made to amend the amnesty bill and add a strong civil rights measure. Democrats opposed the civil rights amendment, but without the amendment amnesty might not have passed the House of Representatives due to opposition from Republican members who were African-American.

On May 13, 1872, Congressman Joseph Rainey of South Carolina, a former slave, rose to speak on the amnesty bill. You can find the speech at pp. 3382-3383 of the Congressional Globe for the 2nd Session of the Forty-Second Congress. Here is part of what Rainey said in support of amnesty without conditions:

"We are desirous, sir, of being magnanimous; it may be that we are so to a fault; nevertheless, we have open and frank hearts toward those who were our former oppressors and taskmasters. We foster no enmity now, and we desire to foster none for their acts in the past to us, nor to the Government we love so well . . . We now invoke you, gentlemen, to show the same magnanimity and kindly feeling toward us--a race long oppressed; and in demonstration of this humane and just feeling give, I implore you, give support to the civil rights bill, which we have been asking at your hands, lo these many days. . . . I need not say to you that we fought for the maintenance of the Government while those who are about to be amnestied fought to destroy it."

Rainey served in Congress for four terms and led a rather remarkable life (including an escape from the Confederate Army during the Civil War.) He's worth further study.


Posted by Gerard Magliocca on October 7, 2020 at 09:38 AM | Permalink | Comments (0)

Tuesday, October 06, 2020

Balkin solves the 18-year conundrum

Proponents of 18-year terms with regularized appointments biennial conflict over a procedural problem: Whether it can be done by statute without changing the nature of the position for current justices. Requiring a Justice to assume "senior" status and changing the nature of the job--no longer hearing SCOTUS cases--is arguably inconsistent with the life tenure that came with the original appointment.

Jack Balkin has solved the problem with an expansion of past proposals and his argument in his new book. Under Balkin's proposal, all Justices remain active until they leave the Court. Instead, Congress changes how the Court hears cases. Original-jurisdiction cases are heard en banc and all Justices decide cert. petitions.  But appellate-jurisdiction cases (i.e., all but one or two cases each year) are heard by a panel consisting of the nine junior-most Justices. More-senior Justices fill-in (in reverse seniority) if there is a recusal or vacancy among the 9-Justice panel and can sit on courts of appeals.

There should be no question that this can be done through ordinary legislation, because it does not change the job description. Rather, it changes the responsibilities of each Justice, akin to requiring circuit-riding that dates to the founding, and how the Court hears cases, unquestionably within Congress' power to structure and organize the Court.

Posted by Howard Wasserman on October 6, 2020 at 12:31 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

"Relatedness" in personal jurisdiction--Ford and World Wide Volkswagen

SCOTUS on Wednesday hears arguments in Ford v. Montana Eighth Judicial District and Ford v. Bandemer, considering whether there can be specific jurisdiction over a defendant who sells and ships products into the forum state but not the specific unit involved in the events at issue. The Court must decide whether "give rise or relate to" reflects one concept or whether "relate to" is a distinct and broader concept and how much broader. I am covering the case for SCOTUSBlog. Larry Solum offers some thoughts.

This case is the spiritual successor to World Wide Volkswagen, answering questions that were unnecessary 40 years ago and reflecting recent doctrinal shifts. Audi and Volkswagen of America did not challenge personal jurisdiction, recognizing that they were subject to jurisdiction based on the large number of cars that they sold, marketed, serviced, and shipped to the state, although they did not sell or ship the Robinson's car to Oklahoma (they shipped that to NY). Whether this was general "doing business" jurisdiction or some broader conception of specific jurisdiction was unresolved, although it was the topic of academic debate between Mary Twitchell and Lea Brilmayer.

The Court's recent decisions (several authored by Justice Ginsburg) narrowing general jurisdiction to "home" (meaning principal place of business and state of incorporation for corporations) changes the calculus for Ford, which stands in the same position as Audi and VWA. There is no general jurisdiction, because Ford is not incorporated or headquartered in Montana or Minnesota, just as Audi and VWA were not incorporated or headquartered in Oklahoma. So this squarely presents how far (or not far) relatedness extends, including whether it reaches cases in which the defendant has contacts with the forum that are "identical" or "similar to" the out-of-state contacts that caused the accident.

This could be the most significant of the recent wave of P/J cases. If the Court narrows the relatedness standard and finds no specific jurisdiction, it could make it difficult for plaintiffs to sue manufacturers in the locus of the accident, which usually is the plaintiff's home. Instead, often-less-resourced plaintiffs will have to travel to the better-resourced defendant's home (having to sue Ford in Michigan) or to some third state where the defendant did have contacts (such as where Ford manufactured or made first sale of the car at issue). Either is less convenient and more burdensome for the plaintiff. Waiting to hear arguments, but I expect the Court to be more divided on this case than in most of the other recent PJ cases.

Finally, on a teaching point. I use World Wide to show the intersection between subject matter and personal jurisdiction and the strategic choices that parties must make. Depending on the outcome in Ford, everything about WW would be different if the case arose now.

The Robinsons sued Audi, VWA, World Wide (the regional distributor), and Seaway (the dealer) in Oklahoma state court in 1975. Audi and VWA recognized they were stuck in Oklahoma, but wanted to be in federal court. WW and Seaway, both from New York, destroyed complete diversity because the Robinsons were from New York (the accident in Oklahoma prevented them from reaching Arizona and establishing the new residence so as to change their domiciles). So Audi and VWA financed WW and Seaway to challenge personal jurisdiction through the OK courts and to SCOTUS. Following the SCOTUS decision and the dismissal of WW and Seaway in 1980, Audi and VWA removed. But that strategy is unavailable under current law. In 1988, Congress amended what is now § 1446(c)(1) to prohibit renoving later-becomes-removeablae diversity cases more than one year after filling. So Audi and VWA now gain nothing from financing WW and Seaway to get out of the case. Given the cost of litigation, would WW and Seaway thus decline to challenge personal jurisdiction, litigate in Oklahoma, and hope to shift the blame onto the manufacturers?

On the other hand, if the Court rejects jurisdiction in Ford, Audi and VWA would have a different strategy--join WW and Seaway in getting the case dismissed from Oklahoma.

Posted by Howard Wasserman on October 6, 2020 at 09:55 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Monday, October 05, 2020

Thomas and Alito defend Kim Davis

SCOTUS denied cert in Davis v. Ermold, which held that Kim Davis did not enjoy qualified immunity in refusing to issue marriage licenses to same-sex couples because it offends her religious beliefs. Justice Thomas, joined by Justice Alito, issued a cri du ceour respecting the denial of cert., lambasting Obergfell as creating a "novel constitutional right" having "ruinous consequences for religious liberty."

Three things.

First, Thomas proceeds as if Smith no longer is good law and that the First Amendment demands an opt-out from a generally applicable law or satisfaction of strict scrutiny. He cites Smith in a footnote, but to argue that Obergefell is more illegitimate because not done through the legislative process. This seems disingenuous. I doubt that if Kentucky had legalized SSM by statute with no religious accommodation, Thomas would be more willing to accept those ruinous consequences for religious liberty.

Second, I am waiting for a good argument for why having issue licenses to same-sex couples is more a violation of religious liberty than having to issue licenses to inter-racial couples or inter-faith couples. All can be, and have been, subject to religiously based objections by some people. Would Thomas be staking out this position if someone denied a marriage license to Noah Cohen and Mary-Margaret O'Reilly?

Third, whatever one believes about a private baker or photographer, it should not extend to a government official performing her official functions. Her job as a public employee is to carry out the law. If that law offends her religious or other sensibilities, then she should quit. We would not allow someone to enlist in the Army and then refuse to fight in a war; we would not allow an atheist police officer to refuse to conduct traffic at a church. There is no reason to allow a clerk to refuse to issue a marriage license.

Posted by Howard Wasserman on October 5, 2020 at 02:45 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Changing Supreme Court Terms

Some brief questions. Suppose one of the statutory proposals to impose term limits on the Supreme Court Justices is enacted. Someone then wants to challenge the new statute on constitutional grounds. How would that challenge work exactly?

First, who would have standing? The answer may be nobody for a long time. If you say that the term limits do not apply to the current Justices, then no litigant would be adversely affected until the next appointment. Even then, you could still say that nobody is adversely affected until that Justice's term expires and he or she is forced off the Court for that reason. Would the first Justice appointed to the term-limited version have standing? I suppose, but I can envision many difficulties there. (The history of Supreme Court Justices as litigants would be a fascinating topic, BTW.)

Second, if someone does have standing, then who would decide the suit? Wouldn't the Supreme Court itself be forced to recuse in such a case? Would Congress have to create some special circuit court for the matter? And how would that work?


Posted by Gerard Magliocca on October 5, 2020 at 12:56 PM | Permalink | Comments (1)

Sunday, October 04, 2020

VAPs and Fellowships: Open Thread, 2020-2021

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

You may also add information to the spreadsheet.

Posted by Sarah Lawsky on October 4, 2020 at 02:29 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (4)

Tucker Carlson: Not to be Treated as Making Factual Statements (in Former Model's Defamation Case)

In McDougal v. Fox News Network, 2020 WL 5731954 (Sept. 24, 2020), Fox News essentially argued that Tucker Carlson was not to be taken seriously, and a federal judge agreed. Here's the background to the court's dismissal in the defamation case brought by former actor-model Karen McDougal.

National Enquirer CEO David Pecker, on behalf of parent company American Media, Inc., purchased the rights to a story about an alleged 2006-2007 affair between former model and actress Karen McDougal and Donald Trump. Trump’s attorney Michael Cohen then purchased the rights from American Media, Inc. This purchase was allegedly a “catch and kill” operation—that is, the Enquirer’s parent company American Media, Inc. bought the rights to McDougal’s story to prevent her from revealing damaging information about Donald Trump. News of this catch and kill operation (and another similar one) came out in the 2018 investigation of Michael Cohen on charges of violation of campaign finance law. Cohen ultimately pleaded guilty.

In the meantime, Fox News host Tucker Carlson aired a segment on December 10, 2018, shortly before Michael Cohen’s sentencing, in which he described the conduct of Karen McDougal and the other woman who had accused Trump of infidelity as follows:  “Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn't give them money. Now, that sounds like a classic case of extortion.”

The district court held that Carlson’s statements were non-actionable hyperbole that no reasonable viewer would treat as factual. The court reached this conclusion by analogizing the case to a series of prior decisions in which courts had treated similar statements as exaggerations for effect rather than accusations of crime, especially when the statements involved contested political disputes. The court also interpreted the “extortion” statement in the context of Carlson’s show, “Tucker Carlson Tonight.” The court noted that the stated purpose of the show is to “challenge[ ] political correctness and media bias,” and its “general tenor” tips viewers off that Carlson “is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.”  The court even suggested that the commentary could be viewed as “bloviating” and further noted Carlson’s disclaimer that he was assuming what Michael Cohen said was true “for the sake of argument,” which would put his listeners on notice that they were not dealing with “a sober factual report.” Finally, the court posits “this overheated rhetoric is precisely the kind of pitched commentary that one expects when tuning in to talk shows like Tucker Carlson Tonight, with pundits debating the latest political controversies.” The court therefore held that the statements were “not factual representations and, therefore, cannot give rise to a claim for defamation.”

As an alternate basis for dismissal, the court also held that McDougal, a public figure, had failed to plead Carlson made his statements with reckless disregard for their falsity (that is, with actual malice). Allegations that Carlson was personally and politically biased in favor of Trump—as allegedly evidenced by Trump’s “47 Tweets” in support of Carlson--were insufficient grounds from which to infer actual malice.

[For a somewhat similar case suggesting Rachel Maddow’s “colorful commentary” on a news story was not actionable as defamation based in part on the fact that reasonable viewers wouldexpect her to use subjective language that comports with her political opinions” Herring Networks, Inc. v. Maddow, 445 F. Supp.3d 1042 (S.D. Cal. 2020)]. [This last part was added after my original post: I found the Maddow case a few hours later while doing further research on recent defamation cases.--LL]

Posted by Lyrissa Lidsky on October 4, 2020 at 01:32 PM in First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (1)

Saturday, October 03, 2020

MLB MVP cancels Landis

The Baseball Writers Association of America (BBWAA), which awards the MLB leage MVP awards, has removed the name of former commissioner Kennesaw Mountain Landis from the award, citing his history of racism and his actions in keeping baseball segregated.

As I wrote in my prior post, the narrative of Landis as affirmatively racist active opponent of integration has carried the day. A scholarly counter-narrative sprouted in the '00s that he was a man of his time who did not push the owners to sign African American players, but has been largely forgotten in this discussion--whether because it has been historically discredited or because it has lost the day.

Posted by Howard Wasserman on October 3, 2020 at 08:30 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, October 02, 2020

DC Statehood

There are several interesting constitutional puzzles involved in making the District of Columbia a state. The first is whether a state admission decision by Congress is justiciable. No court has ever questioned a decision to admit a state, and the dubious admission of West Virginia (formerly part of Virginia) in 1863 seems to suggest that statehood decisions are political questions.

The second problem flows from the 23rd Amendment. The amendment states plainly that the seat of government shall have three electoral votes (the same number as the smallest state). This implies first that that there must be some federal District of Columbia inside the new state of Washington DC. The other implication is that this "rotten borough" would still have three electoral votes. How would they be allocated?

The DC statehood bill passed earlier this year by the House of Representatives tries to answer the second question, though not very well. The bill defines the federal district (called the "Capital") as basically encompassing the major federal buildings around Pennsylvania Avenue. They then have a section creating an expedited procedure for Congress to consider a constitutional amendment that would repeal the 23rd Amendment. That's nice, but there's no way for a statute to assure than an Article Five amendment will be ratified.

Suppose DC becomes a state and the 23rd Amendment remains. One solution is that Congress could say that the "Capital" electors must always vote for the person who won a majority of all of the other electoral votes. Or the winner of the national popular vote. Either of these is a decent workaround, though there remains the possibility that a given Congress and President could change that law and just award the Capital electors to the President and (in an extremely close election) tip the outcome. 

UPDATE: Another question is what should you do with the DC Circuit if DC becomes a state.

Posted by Gerard Magliocca on October 2, 2020 at 09:27 AM | Permalink | Comments (18)

Thursday, October 01, 2020

Call For Papers


The Rehnquist Center is pleased to announce the third annual National Conference of Constitutional Law Scholars. This year’s event will be held entirely via Zoom due to the pandemic but will otherwise follow a similar format to previous years, with a series of panels organized by subject matter moderated by Distinguished Commentators. To avoid Zoom fatigue, the program will be limited to a single, short day on Saturday, March 6. The goal of the conference is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year. To that end, the program will include opportunities for informal, small-group discussion between panels.

Jamal Greene will give a keynote lecture. Distinguished commentators for 2021 include:

Guy Uriel Charles
Maggie Lemos
Melissa Murray
Caleb Nelson
Jane Schacter
Lawrence Solum

Registration is free and all constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by November 1, 2020. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by December 1, 2020. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan: [email protected]
For logistical questions please contact Bernadette Wilkinson: [email protected]

Andrew Coan, Arizona
David Schwartz, Wisconsin
Shalev Roisman, Arizona


The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

University of Arizona James E Rogers College of Law | 1201 E. Speedway | Tucson | AZ | 85721-0176

Posted by Gerard Magliocca on October 1, 2020 at 07:58 AM | Permalink | Comments (1)

Wednesday, September 30, 2020

The ERA and Justice Barrett

Many people are speculating about what might happen next year if Democrats win and want to respond to Justice Barrett's impending confirmation. Court-packing? Jurisdiction-stripping? More lower court judges?

Here's a more modest thought. The chances that Congress will declare the Equal Rights Amendment part of the Constitution next year are probably higher. Under a common reading of the Constitution, Congress has the sole power to determine if a proposed amendment is ratified. Maybe there are sixty votes for that in the Senate. If not, the Senate filibuster may soon be a thing of the past anyway. But declaring the ERA ratified is a war for the Democrats to satisfy anger about Justice Barrett's confirmation without taking up the more radical remedies.

Would ratifying the ERA be just symbolic? Probably. But symbols matter, especially in politics.

Posted by Gerard Magliocca on September 30, 2020 at 09:19 AM | Permalink | Comments (5)

Humans v. Machine in Creative Design - experimental research

My favorite behavioral economist On Amir and his collaborators compare artificial intelligence logos against those produced by human designers & find that on average humans are rated higher:

Technological advances have enabled machines to displace humans both in physical tasks and in higher-skilled fields that require extensive knowledge or training. Recently, there has been an outpour contending that advances in artificial intelligence mean technology can outperform human creative experts. We explore whether artificial intelligence outperforms humans in domains that depend upon the spark of creativity. Two logo design studies and seven evaluation studies explore the performance of human designers as compared to artificial intelligence logo makers. Relative to logos produced through artificial intelligence, those created by expert humans are judged to be of higher quality. This advantage to expert humans is tied to their logos being more expressive and differentiated than the artificial intelligence logos. Finally, we discuss boundary conditions of these results.


Posted by Orly Lobel on September 30, 2020 at 12:55 AM | Permalink | Comments (3)


This Thursday and Friday at NYU a terrific program  (alas I am zooming in rather than having the pleasure to visit one of my favorite cities and be wined and dined...) -- speakers include Secretary of Labor Eugene Scalia, NLRB Chairman John Ring, EEOC Commissioner Charlotte Burrows,  and scholars from a variety of fields including Matt Bodie, Kate Andrias, economist Richard Freeman (who I had the pleasure to work with during my doctoral studies), Catherine Fisk, Sam Estreicher, and myself. Read the entire agenda after the page break. 

Continue reading "73rd Annual NYU Conference on Labor - ADDRESSING PAY EQUITY & ISSUES OF INEQUALITY AT WORK"

Posted by Orly Lobel on September 30, 2020 at 12:44 AM | Permalink | Comments (0)

Tuesday, September 29, 2020

A Jewish MLB post-season

No baseball on Yom Kippur 5781. But this is shaping up as one of the great Jewish MLB post-seasons. Ten of the 13 Jewish MLB players are in the post-season spread across eight teams (five NL, three AL). This includes four starting position players (Alex Bregman of Houston, Ryan Braun of Milwaukee, Joc Pederson of the Dodgers, and Rowdy Tellez of Toronto, who will miss the opening round with an injury); one starting pitcher (Max Fried of Atlanta); and three workhorse relief pitchers who can be expected to log some big innings in a format with no travel and thus no off-days.

Posted by Howard Wasserman on September 29, 2020 at 11:35 AM in Howard Wasserman, Sports | Permalink | Comments (2)

Bad legal reporting yields bad legal takes

Over the weekend, media outlets reported that a federal judge had removed or ousted William Pendley Perry as acting director or as person functioning as director of BLM. This prompted ALittleRebellion to make Bad Legal Takes for insisting that "no judge has the power to remove any executive appointee." In fairness, he may have made it more for further insisting that Perry "must ignore any such diktats," a screed about constitutional determinations under Article V, and a later insistence that "advice and consent" does not mean approval, just informal consultation.

But this tweeter's basic point--judges cannot remove executive appointees--is correct. Fortunately, the judge did not remove an executive appointee. The court declared that Perry was serving in the role in violation of federal law, enjoined him from continuing to act in that capacity because any conduct in the office is unlawful, and asked the parties to identify actions that may be invalid because enacted by someone unlawfully serving a role. All of which is what judges have the power to do and are expected to do in resoling cases and controversies. The problem--that long predates the rise of Twitter Law--is that much of the mainstream media does an awful job of covering courts and judicial processes, resulting in in fundamentally inaccurate reporting and information such as this. Which the uninformed of Twitter Law can run with as proof of an out-of-control judiciary with power-abusing judges who must be stopped.

Posted by Howard Wasserman on September 29, 2020 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Sunday, September 27, 2020

The Barrett Nomination

At Judge Barrett's confirmation hearing, I would be interested to know if she gave any consideration to declining the nomination. Someone should ask her. Maybe the answer is no. Maybe the answer is yes, but she concluded that she should accept. Either way, I'd be interested to hear her reasoning. This question strikes me as entirely appropriate and might be more illuminating than the standard game that Supreme Court nominees play with the Senate. 

In the interests of full disclosure, Judge Barrett and I were in the same summer associate class in 1997. I don't have any particular recollections of her though.

Posted by Gerard Magliocca on September 27, 2020 at 09:00 PM | Permalink | Comments (22)

Proving anti-Jewish discrimination

Eugene Volokh unearths a 10-year-old S.D.N.Y. decision in an action alleging co-workers in a government job referred to him as a "dumb Jew" or "fucking Jew."

Eugene focuses on one defense--that the plaintiff was not Jewish because his mother was not Jewish, he had not converted, and he was not practicing. The court rejected the argument, deeming it not the court's place to define who is Jewish and finding it sufficient that the plaintiff defined himself as being of Jewish "heritage," even if not practicing. One of Eugene's commentators nominates this as the new definition of chutzpah--calling someone a "fucking Jew," then arguing that he is not Jewish.

The rest of the decision is interesting apart from the chutzpah. The court denied summary judgment on a Title VII claim against the city. But the court dismissed a § 1981 claim, because the plaintiff alleged religious rather than racial discrimination. This seems like a pleading error. Courts will treat Judaism as more than a religion for § 1981 purposes. And that would have been an appropriate approach in this case, where the plaintiff did not practice Judaism and focused more on his "heritage" than his religion.

The court  granted summary judgment on claims against several harassing co-workers. Although there was evidence the co-workers had created a hostile religious environment, they were not state actors because they were not his supervisors. This is incoherent. The under-color question should be whether the defendant used his official position to engage in unconstitutional conduct and whether that position made the unconstitutional conduct possible. That should be satisfied here--the unconstitutional conduct is the religiously motivated harassment and they could engage in that harassment only because of their official positions in government. Harassment does not require a supervisory relationship, so it should be irrelevant to the under-color/state-action analysis.

Posted by Howard Wasserman on September 27, 2020 at 01:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 25, 2020

JOTWELL: Campos on Civ Pro Unavailability Workshop

The new Courts Law essay comes from Sergio Campos (Miami), discussing the Civil Procedure Unavailability Workshop, a remote civ pro workshop that Suzanna Sherry (Vanderbilt) and Adam Steinman (Alabama) established late last spring. (I did one of the talks, on Erie and SLAPP laws). Edward Cheng (Vanderbilt) originated the program with an evidence workshop.

Posted by Howard Wasserman on September 25, 2020 at 11:16 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 22, 2020

Jamelle Bouie misunderstands judicial supremacy and other comments

Jamelle Bouie calls on Democrats to reject judicial supremacy. Unfortunately, he does not seem to understand what judicial supremacy is or what it means to fight it. Instead, he conflates challenges to judicial supremacy with court reform. He offers the historical example* of Jeffersonians undoing the Midnight Judges Act--eliminating judgeships, restoring a SCOTUS seat, and restoring circuit riding. But none of that had anything to do with judicial supremacy. That was a dispute between competing parties in the political process about the structure of the federal courts, which everyone agrees was and remains within congressional control. It has nothing to do with who, if anyone, gets the final word on constitutional meaning. And the Court had no say in either the original act or the Jeffersonian response. One can support court packing or other  proposals for reforming the structure of the courts while believing in judicial supremacy.

[*] Bouie's other example is Lincoln's First Inaugural, where he suggests ignoring Dred Scot as precedent as to the validity of the Missouri Compromise, while recognizing that he is stuck with the judgment in that case. This envisions judicial departmentalism--bound by the judgment, free to ignore precedent.

Kevin Drum comments on Bouie's column and understands the issues better, arguing for jurisdiction stripping as the answer. This hits on something I did not consider or address in my work on judicial departmentalism. Departmentalism collapses into judicial supremacy because many (most?) constitutional questions devolve into judicial ones, producing a court judgment that the executive must enforce and obey, on pain of contempt. The solution--for those who want one--is stripping the courts of jurisdiction to decide some constitutional issues. But not because it eliminates courts' power to make new precedent--since the the other branches can ignore that. But because it eliminates courts' power to produce new judgments, which the other branches cannot ignore.

Posted by Howard Wasserman on September 22, 2020 at 10:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The Segall Court and a stopping point to Court-packing

As I was completing my prior post on the time passing for Eric Segall's eight-person partisan-divide Court, I thought of a way to save that plan and to put a check on infinite tit-for-tat Court expansion through mutual disarmament: Expand the Court to twelve with three Democratic appointees, then run the Segall plan with a 6-6 partisan divide.

Posted by Howard Wasserman on September 22, 2020 at 11:28 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Implementing the Carrington Plan (Updated)

With the prospect of attempted court-packing looming in the event of a President Biden and Democratic Senate, thoughts turn to alternatives involving 18-year terms and regularized appointments. The Carrington Plan, introduced in 2009, would achieve this by statute through the creation of the position of "senior justice," a Court of more than nine, but cases heard by a panel of the nine junior-most members.

The benefit of the Carrington Plan is that it could be done by statute. The 2009 version contained a sunrise provision, taking effect only with the first vacancy after passage and allowing current members to serve until death or retirement. This was to avoid constitutional objections to Congress violating Article III by changing the nature of the Justice's position--after 18 years, although still an Associate Justice, the person does not adjudicate cases. I was not, and am not, convinced by the constitutional arguments. If Congress can strip the Court of some (if not all) of its appellate jurisdiction, it can strip individual Justices of their role in exercising that jurisdiction. It is complicated and uncertain, but the constitutional problem is not obvious.

But the sunrise may be necessary to make it work across a full Court, because a President cannot make a regular biennial appointment if the junior-most Justice has not reached 18 years.

This was not the case in 2009, when Carrington and others presented the plan to Congress. Five Justices already had served 18 years and two more were close.Had it been implemented then, the Court could have turned over under the plan within 16 years: 2009 (Stevens), 2011 (Scalia), 2013 (Kennedy), 2015 (Souter*), 2017 (Thomas), 2019 (Ginsburg), 2021 (Breyer), 2023 (Roberts--who would have reached 18 years), 2025 (Alito, who gets a couple extra years on the Court). By 2025, we have an entirely new primary Court.

[*] Or Souter retires, as he did, in 2009 and everyone gets pushed back two years.

But the current Court structure prevents that clean implementation. In 2021, two Justices are beyond 18 years and four are close; those six would be replaced by 2031. But then it runs out. In 2033, the time for the next appointment, Gorsuch will have been on the Court for 16 years, two years short of the end of his term as active justice.

It would be unfortunate if the time for the best plan has passed, much as the time for Eric Segall's eight-person partisan-split Court passed in 2017.

Updated: Steven Calabresi (Northwestern) argues in The Times for a constitutional amendment and offers a solution to this problem: The eight current Justices would draw lots for the order in which their terms would end beginning in 2023, meaning some Justices may serve fewer than 18 years (e.g., if Kavanaugh drew short straw in 2023, he would serve five years). We could modify Calabresi's proposal and retain basic equity by going in reverse order through Alito Kagan, then drawing lots among Gorsuch, Kavanaugh, and Barrett in 2033. This ensures everyone serves at least 15 years, which Calabresi argues is longer than the term on other constitutional courts.

Also, note this feature of Calabresi's proposal--he is not messing around:

Failure to confirm a justice by July 1 of a president’s first or third year should lead to a salary and benefits freeze for the president and all 100 senators, and they should be confined together until a nominee has been approved. The vice president would act as president during this time and the Senate would be forbidden from taking action whatsoever on any of its calendars.

By the way, with all of this in the news, I must rethink the order of my Fed Courts class for next semester. I save jurisdiction-stripping and the issues of congressional control over the Court, including proposals for term limits and other restructuring, for last--they are highly theoretical topics that my students are better able to handle at the end of the course. The problem is that I have not gotten to this the last couple of years. But the life tenure and term limits stuff now is too central to the political discussion. I may put SCOTUS structure, including term limits, up front (the class begins with SCOTUS jurisdiction), even if jurisdiction stripping and similar issues remain at the end.

Posted by Howard Wasserman on September 22, 2020 at 11:22 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, September 21, 2020

Secrecy in Higher Ed Hiring

Here's what's been happening at GW - and here's a taste of my interview in the Hatchet today:

"Orly Lobel, a distinguished professor of law at the University of San Diego, said while the president doesn’t have a legal obligation to speak about the hiring process, he isn’t legally barred from it either.
Lobel said a president’s only limitation to revealing information would be signing a non-disclosure agreement. She said depending on how the NDA was drafted and the scopes of the contract, LeBlanc may have limits in speaking out.
“It is good practice for a university to have relative transparency in hiring processes,” she said in an email. “Though the reality is that these organizations, especially private universities, have been increasingly conducting hiring processes with opacity and secrecy.
She said the president could supply some information about the hire rather than information that was disclosed during the vetting process, like reassuring the community that the people involved in the process were independently investigated.
Lobel added that universities have a high interest in doing “due diligence” with respect to candidates, like contacting previous employers and vetting the candidate so that there “aren’t any skeletons left uncovered.”
“This is especially true at universities where faculty governance is a fundamental principle,” she said. “Especially true these days when we know that systematic patterns of wrongdoing and hushing of unlawful and unethical activities have been exposed in a range of institutions.”"

Posted by Orly Lobel on September 21, 2020 at 11:55 PM | Permalink | Comments (0)

Remembering Justices

Jack Balkin describes what Sandy Levinson and he call the "biography rule," dividing Justices between those whose primary achievement and notoriety derives from their service on the Court and those who would have had biographies written about them had they never served on the Court. Balkin places Ruth Bader Ginsburg in the second category, based on her advocacy for women's rights.

I wonder if we can sub-divide that second category: Whether their greater legacy is from their service on the Court or from their great pre-Court achievements. I think Taft is in the latter box, at least for non-lawyers; more lay people know he was President of the United States than know he was Chief Justice, even if he was better in the latter than the former role. I think Black and Warren go in the former box; Warren had a greater effect as Chief Justice than as Governor of California or unsuccessful VP candidate, Black a greater effect as a Justice than as a Senator.

What of Ginsburg? Balkin highlighted her opinion for the Court in U.S. v. Virginia and her dissent in Shelby County. She earned a reputation as a "great dissenter" (following in the footsteps of Holmes and Brennan), especially after Stevens left the Court in 2010 and she became the senior-most Justice in dissent. I would add her jurisdictionality opinions (she wrote numerous opinions narrowing the class of rules regarded as jurisdictional) and her opinions on personal jurisdiction (she wrote the opinions adopting and reifying the "essentially at home" standard for general jurisdiction).

The obvious comparator for Ginsburg is Thurgood Marshall. Both established significant equal protection law as litigators and their careers on the Court were similar (RBG served three years longer). But the prevailing view (rightly or wrongly) is that Marshall affected the law more as a litigator than as a member of the Court (putting aside the significance of being the first African American Justice) and authored relatively few canonical opinions that are remembered as "Marshall opinions." I expect that Ginsburg will be remembered more for her work as a Justice, if for no other reason than because a segment of pop culture adopted her in that role in a different cultural environment than Marshall worked. But time will tell.

Posted by Howard Wasserman on September 21, 2020 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

YLJ Submissions Deadline


Posted by Howard Wasserman on September 21, 2020 at 08:31 AM | Permalink | Comments (0)

Reynolds on cameras in the classroom

An article of note by Glenn Reynolds (Tennessee) on using (inexpensive) real cameras to create a better-looking remote classroom.

Posted by Howard Wasserman on September 21, 2020 at 08:30 AM in Article Spotlight | Permalink | Comments (0)

Sunday, September 20, 2020

New Courts (Updated)

It is said that the change of one Justice changes "the Court." Not at the the obvious macro level of partisan/ideological divides and case outcomes, but in small and incalculable ways involving positions and interactions among Justices. The Court in October 2017 was going to be different that the Court in January 2016, whether Merrick Garland or Neil Gorsuch was junior-most Justice, even if case outcomes look more similar with Gorsuch than they would have with Garland.

On that metric, we are about to get our fifth and sixth different Courts since October Term 2015: A nine-Justice Court with Scalia until February 2016; an eight-Justice Court until April 2017; a nine-Justice Court with Gorsuch until October 2018; a nine-Justice Court with Kavanaugh until two days ago; an eight-Justice Court until someone (I continue to believe Amy Coney Barrett) is confirmed (I presume this will not happen by October 5, but I put nothing past Mitch McConnell); and a nine-Justice Court with Barrett (or whomever). And I am will make a weak prediction that Breyer retires by summer 2022 if Biden wins and the Democrats retake the Senate--making it seven Courts over about eight terms.

Which makes the period from 1994, when Breyer joined the Court, to 2005, when Roberts became Chief, unique. There was one Court for 11 years and one month, the second-longest-serving Court. The longest is an 11 1/2-year gap between the appointment of Justice Duvall in 1812 and the appointment of Justice Story in 1823--another universe in terms of the Court's prestige and power and the attention paid to it. Otherwise, there have been mulitple five-ish-year Courts throughout history, including one between Kagan's appointment and Scalia's death. I wonder if we will see this kind of stability any time soon.

I also wonder whether the recentness of this anomaly influences some of the new opposition to life tenure. Despite more individual Justices serving ever-longer terms and increasing life expectancies, there still is (sometimes rapid) turnover within the Court. Barrett is 48 and Barbara Lagoa, the other leading candidate, is 52. But even adding either to Kavanaugh and Gorsuch (both 55 or younger) and a hyp0thetical young Biden appointee, it leaves two Justices in their 70s and two over 65. It seems unlikely that we will see another decade-long Court.

The arguments against life tenure shift from longer-lasting Courts to the randomness of timing and who makes appointments. It seems insane that Donald Trump will make more appointments in one term as Obama, Bush II, and Clinton each made in two terms.* The real benefit of the Carrington Plan for 18-year terms is regulating the appointments process--every President gets the same number of appointments in the same time served and on the same regular schedule.* On the other hand, the notion of a "new" Court every two years supports critics of the plan, who worry about the instability the system would create. Of course, we have been getting a version of that system, accidentally and with the attendant political collisions and overreactions, for six years.

[*] Even FDR is prey to this temporal randomness. We accept that it makes sense that FDR appointed 8 Justices, since he was President for 12 years. But note the timing. He made zero appointments in his first term (during a 5+-year Court between the appointments of Cardozo and Black), five appointments in his second, and three in his third. Had FDR been a one-termer, he would have had the same effect on the Court as Jimmy Carter. Had he not violated the two-term norm (or had the 22d Amendment been in place in 1940), he still would have appointed the majority of the Court.

Posted by Howard Wasserman on September 20, 2020 at 01:12 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Structural principles and SCOTUS appointments (Updated Again)

Two preliminary points.

First, for Ruth Bader Ginsburg, may the memory of the righteous  be a blessing (zekher tzadik livrakha). It is said that a tzadik (a righteous person, particularly one who is humble in life and whose righteousness becomes fully known only after her death) dies on Rosh Hashanah. I write this on the yahrzeit (anniversary of death) of my father-in-law, a truly righteous person.

Second, I expect Trump to nominate and the Senate to confirm Amy Coney Barrett (Seventh Circuit),* although it is not clear whether the confirmation will be prior to or following the election. Ilya Somin's proposal (both sides stand down--no confirmation until after January 20 in exchange for a Democratic promise not to expand the Court) is a brilliant compromise that he recognizes is unlikely to happen. And McConnell, Lindsey Graham, et al., do not care about being accused of hypocrisy in any shift in their views of confirming Justices during an election year.

[*] The alternative name appears to be Barbara Lagoa, a former Justice on the Supreme Court of Florida and recent appointee to the 11th Circuit; Lagoa is Cuban-American and the appointment might be an attempt to shore-up support among the Cuban-American community in Florida. Lagoa was in the majority holding that Florida did not violate the 14th or 24th Amendments in requiring ex-felons to repay unknown fees before their voting rights could be restored.

After the jump, I want to think about the "shift" in these positions.

Continue reading "Structural principles and SCOTUS appointments (Updated Again)"

Posted by Howard Wasserman on September 20, 2020 at 12:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Saturday, September 19, 2020

Fourteenth Amendment Esoterica

I'm come across a curious law that I want to write about. In June 1868, Congress enacted a law to admit several of the ex-Confederate states to the Union upon certain conditions. One, of course, was that they ratify the Fourteenth Amendment. The Act then said this:

That the constitutions of neither of said States shall ever be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote in said State, who are entitled to vote by the constitution thereof herein recognized, changed as, &c. except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State.

The states covered by this Act were North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida.

Why do I find this interesting? A few reasons. First, this is at odds with the Supreme Court's statement in Shelby County that the states are on equal footing with respect to voting rights. Some states in the South are treated differently in that they are still subject (at least formally) to the Act's requirement. Now you could say something like the following in response: Congress lacks the power to tell a state what to do in its organic law once the state is readmitted. Thus, the post-admission condition stated here is unconstitutional. Maybe, but that gets you into deep waters that I won't go into here.

Second, the Act gives a contemporaneous interpretation of Section Two of the Fourteenth Amendment. The Act refers to crimes as are now felonies. Suppose we said that states could only disenfranchise people convicted of felonies recognized in 1868. That (as others have observed) would be less sweeping than the way a state such as Florida imposes felon disenfranchisement now.

Anyway, this may just be a sideshow in my Section Three article, but I need to give this further thought.

Posted by Gerard Magliocca on September 19, 2020 at 09:04 PM | Permalink | Comments (2)

Rosh Hashanah more joyous than Yom Kipper

So less expectation that Jewish players will sit out. This begins with Hank Greenberg in 1934, who played (on advice of rabbis) on Rosh Hashanah but sat on Yom Kippur.

On Friday night (Erev Rosh Hashanah), Alex Bregman (Astros)  went 0-for-4 in a loss; Kevin Pillar (Rockies) went 2-for-4 with 2 runs scored in a loss;, and Ryan Braun (Brewers) went 2-for-2 in a win. Pitcher Max Fried (Braves) gave up a run on three hits in 5 innings in a blowout win, running his record to 7-0. And relief pitcher Ryan Sherriff (Rays) pitched a scoreless ninth to earn a save. That is a pretty good day. (H/T: Jewish Baseball News).

The Astros, Rockies, and Brewers play evening games on Saturday, beginning 7 p.m. or later. While Rosh Hashanah is two days outside Israel, fewer Jews observe the second day and so it is rarely part of the conversation about playing "on" the holy days.

This will be it for baseball on the holy days 5781. Yom Kippur begins at sundown next Sunday. That is the final day of the regular season; all MLB games are scheduled for afternoon and should be complete. Monday (Yom Kippur) is an off-day before the beginning of the post-season Tuesday. And MLB will not hold one-game tie-breaker playoffs during that off-day; any ties for division winner or wild-card spots will be determined by a series of tie-breakers.

Posted by Howard Wasserman on September 19, 2020 at 08:31 PM | Permalink | Comments (0)

Friday, September 18, 2020

"Law Like Love": Jeffrie Murphy, RIP

I was very sorry to learn of the passing from this life of Prof. Jeffrie Murphy (RIP).  Here's the Arizona State University announcement.  For me, Murphy's punishment-theory and criminal-law work was influential -- formative, really -- and he was also a kind and generous advisor and mentor.  My Criminal Law students (thanks to Joshua Dressler and Stephen Garvey) have, for years, encountered a bit of his work with Jean Hampton, and I've used his little essay, "Law Like Love", as well as "Christianity and Criminal Punishment", to conclude my class in recent years.  If you're a Crim teacher, and you want a bracing read, check out his "'In the Penal Colony' and Why I Am Reluctant to Teach Criminal Law." May his memory be a blessing.

UPDATE:  I really should have quoted this, from the ASU announcement:

For those who knew Murphy, he was always larger than life: a big man with a booming voice and a strength of conviction in his work and scholarship that was never outmatched. His early experiences as head of the Philosophy Department led to a deep and abiding hatred of administration — which gave him ample time to explore his greatest passions: the teaching of gifted students and exploring the contours of moral philosophy and its connection to the law.

Posted by Rick Garnett on September 18, 2020 at 02:15 PM | Permalink | Comments (1)

Thursday, September 17, 2020

Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform, September 25-26, 2020

The following post is by Michael Serota, who is a Visiting Assistant Professor at the ASU Sandra Day O’Connor College of Law and a Deputy Associate Director of the Academy for Justice.     


Why does the criminal law care about mental states, and do they have a role to play in criminal justice reform?  Come join the Academy for Justice and the Arizona State Law Journal next Friday and Saturday for an extended conversation about mens rea policy and reform. 

The discussions will revolve around a collection of papers that will be published in a special symposium issue of the Arizona State Law Journal.  Topics that will be covered include: strict liability, felony murder, complicity, intoxication, mental illness, willful blindness, ignorance of wrongdoing, malice, hate crimes, statutory interpretation, and the politics of mens rea reform.  For balance and diversity of perspective, every conference panel will include a mix of criminal law scholars and practitioners.  To maximize the opportunities for group discussion, conference panelists have pre-recorded video presentations.  

All aspects of this event are open to the public.  The event will be broadcast via Zoom webinar on September 25-26, 2020 from 9am to 3pm PST.  To attend,  please register here.  The conference papers and presentations are available on the conference website, which has additional details—including a list of the more than 30 scholars and practitioners participating in the event.

Additionally, the Academy for Justice is sponsoring two different student competitions in conjunction with the event.  More details about those contests (please share with your students!) can be found here.

Posted by Ethan Leib on September 17, 2020 at 12:32 PM | Permalink | Comments (0)

Monday, September 14, 2020

Dorf on ending the anthem at sporting events

Michael Dorf considers the argument, floated by former NBA coach Stan Van Gundy, for eliminating the national anthem from sporting events. We do not do it at any other public or entertainment gatherings (movies, plays, concerts); it is not the type of event requiring public ritual (compare, e.g., a government proceeding); and it is creating more problems than it solves. It also is an historical accident--a band played it spontaneously during the Seventh Inning Stretch at a game in the 1918 World Series (in the closing month of World War I)--that caught on.

I confess that I enjoy the anthem as part of the game. But I see Dorf's and Van Gundy's point.

Posted by Howard Wasserman on September 14, 2020 at 09:58 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (18)

Two Pieces on Algorithms and Institutions

This is a good time to be writing about institutions, which I have done for some time--and a depressing time for those who think institutions are valuable and are watching them suffer in real time, as much from the inside as the outside. Via the invaluable Arts & Letters Daily, here are two recent pieces on the effects of metrics and algorithms on two "First Amendment institutions." 

The first, from the LA Review of Books, is by Mario Biagioli, a professor of law and communication at UCLA. In it, Biagioli discusses new and old forms of academic misconduct, largely but not exclusively around publication and citation practices, and their relationship to various forms of ranking or influence metrics. (The focus here is on other disciplines, especially the sciences and social sciences, not on law. I would be interested in seeing a similar piece from him about legal academic practices, although I think the difficulty here would be getting people to see some practices as academic misconduct, or at least institution- or discipline-damaging conduct, rather than as baseline or even commendable practices.)

The second is an essay in The Walrus by Russell Smith, a former columnist for The Globe and Mail. It discusses the effects on newspapers of algorithms tracking reader interest in various stories, including the looming presence in newsrooms of large screens monitoring "engagement, in real time, with the stories currently on the paper’s website"--where "engagement" means something other than any meaningful definition of the word--and their effect on editorial judgment and resource allocation in the major press. (Any online reader of the New York Times, whose decline as a quality newspaper is steady, remarkable, and far-reaching in its effects on the business and content decisions of the institution, can see the traces of these practices daily. They are evident not only in the devotion of prime space to things like recaps of late-night monologues, but in the practice of using and testing different and increasingly clickbait-y headlines for same op-ed pieces and other stories. This is the kind of practice that major media organizations used to worry about rather than engage in with seemingly untroubled enthusiasm.)

I recommend both pieces, dispiriting though they may be.  

Posted by Paul Horwitz on September 14, 2020 at 09:36 AM in Paul Horwitz | Permalink | Comments (0)

Call for Papers: Akron Law Review

Akron Law Review seeks articles for a symposium on Criminal Justice Reform. Relevant Relevant topics
include exploring new and existing ways of holding police accountable; collateral consequences of conviction; and recent efforts in and new ideas regarding bail reform.

Submissions should be sent to [email protected] by October 15, 2020.

Posted by Howard Wasserman on September 14, 2020 at 09:31 AM in Law Review Review | Permalink | Comments (0)

Saturday, September 12, 2020

Testing the Koufax Curse

In anticipation of the High Holy Days, the Forward has published a summary version of my longer study of Jewish players' and teams' performance on Yom Kippur.

Posted by Howard Wasserman on September 12, 2020 at 10:58 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, September 11, 2020

Cancel culture as a circle of baseline hell

Thinking out loud.

Skip Bayless' comments on Dallas Cowboys quarterback Dak Prescott ("being quarterback of the Cowboys is too important a position for someone who struggles with mental-health issues, or at least not for someone who wants to talk about those issues") are so stupid that they are unworthy of a response. They are noise--an "inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." They certainly are too stupid to have been spoken in a media outlet that purports to be a forum for serious discussion, even of sports. And they suggest that Bayless is an unserious person.

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Posted by Howard Wasserman on September 11, 2020 at 10:46 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (14)

Thursday, September 10, 2020

Bostock, Cline, and the SCOTUS's Repression of Textualism's Unresolvable Contradictions

This week in “Legislation and the Regulatory State,” I taught General Dynamics Land Systems, Inc. v. Cline and Bostock v. Clayton County. Reading these two opinions together reveals a truly weird omission in Bostock: Neither the majority nor dissenting opinions in Bostock cite or discuss Cline. This is such an extraordinary omission that it cannot be an accident. It is, instead, most likely the jurisprudential version of Freudian repression: Cline is the earlier traumatic precedent that exposes painful contradictions at the heart of textualism, so it is conveniently ignored for the sake of preserving the illusion, believed by some to be necessary for the “rule of law,” that “plain” text somehow can be construed without attributing to it some statutory purpose.

Consider, first, how Justice Souter’s majority opinion in Cline seems to provide near-perfect support for Justice Kavanaugh's argument in his Bostock dissent that the narrow ordinary understanding of "discriminate...because of sex" trumps the phrase's broad literal meaning. Cline held that "discriminat[ion]...because of...age" in ADEA did not include General Dynamics' discriminating against Dennis Cline in favor of older workers, because the ADEA did not cover discrimination that favored older over younger workers. Cline reached this conclusion despite the fact that, "[i]n the abstract, the phrase is open to an argument for a broader construction, since reference to 'age' carries no express modifier and the word could be read to look two ways." The literal meaning of "age," however, did not govern, because that broad reading "does not...square with the natural reading of the whole provision prohibiting discrimination." According to the Cline majority,"Congress used the phrase 'discriminat[ion] … because of [an] individual’s age' the same way that ordinary people in common usage might speak of age discrimination any day of the week," because the "commonplace conception of American society in recent decades is its character as a 'youth culture,' and in a world where younger is better, talk about discrimination because of age is naturally understood to refer to discrimination against the older." Because "we are not asking an abstract question about the meaning of 'age'" but instead "seeking the meaning of the whole phrase 'discriminate … because of such individual’s age,'" Cline looked to the "social history" of that phrase, which "emphatically reveals an understanding of age discrimination as aimed against the old."

Cline’s reasoning is obviously helpful to Justice Kavanaugh’s claim that "discriminat[ion] ... because" does not include discrimination based on sexual orientation, because ordinary people do not understand the latter to be an instance of the former. So why would Justice Kavanaugh ignore Cline? The most obvious hypothesis: Justice Thomas‘ dissent in Cline suggested to Justice Kavanaugh that Cline represents a sort of "Textualism Lite" that good textualists must not endorse. After the jump, an argument that Cline does indeed suggest the incoherence of drawing a sharp line between context-based "social usage" of a whole statutory phrase and a statute's overall purpose. That incoherence suggests that Bostock's majority opinion would have been more persuasive if it had not repressed all memory of Cline but instead pondered more deeply the purpose of Title VII separate from the word games that feature so prominently in Justice Gorsuch’s majority opinion.

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Posted by Rick Hills on September 10, 2020 at 08:15 PM | Permalink | Comments (12)

JOTWELL: Mangat on Weinstein-Tull on local courts

The new Courts Law essay comes from guest Leonard Mangat, reviewing Justin Weinstein-Tull, The Structure of Local Courts (Va. L. Rev., forthcoming), analyzing the hidden-but-consequential practices of local courts.

Posted by Howard Wasserman on September 10, 2020 at 10:26 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Look! A Gift Horse

One unusual fact about where I live (West Lafayette, Indiana) is that C-Span's Archive is about five minutes from my house. (Brian Lamb, the founder of C-Span, is from West Lafayette and went to Purdue.). I drive by the archive a few times a week to pick up my daughter from school.

Yesterday as I was doing so I thought to myself, "I really should try to design a research project that would actually use the archive. I mean, it's right here." But what should I do? A project on Congress is the most obvious thought, but in what sense? Maybe how televising the House (and then later the Senate) changed how Congress operated. Or is there is some particular event that I should look at from the past forty years where watching wall-to-wall coverage would help. I'd be curious to hear from anyone who is doing research that involves looking at old C-Span footage to hear what you are doing.

Posted by Gerard Magliocca on September 10, 2020 at 08:15 AM | Permalink | Comments (6)

Tuesday, September 08, 2020

Amnesty Under the Fourteenth Amendment

I've been reading through the debates in Congress during the early 1870s about whether to remove the disability to hold office imposed on many ex-Confederates by Section Three of the Fourteenth Amendment. These debates culminated in an amnesty that extended to most, though not all, of those covered by Section Three. The arguments made in favor of amnesty are quite revealing.

1. Some Republicans argued that amnesty would improve their party's prospects. In other words, there was simply a pragmatic judgment that more whites would vote for Republicans if amnesty were given. Or that more whites would support Reconstruction with amnesty.

2. Some contended that the disabilities were ineffective. They said that officials or representatives in the South would inevitably reflect the electorate's wishes. Thus, no useful purpose was was served by barring some people from only holding office---local policies or politics would remain the same. (This was not a Burkean view of what representatives do, to say the least).

3. Some said that amnesty should be linked to a broad civil rights bill. Amnesty was something that could be traded for more civil rights protection. 

4. Amnesty was already being granted to people, but in a haphazard way through private bills. There was no rhyme or reason to these legislative pardons and hence some more logical or systematic approach was required.

5. Here's the most fascinating argument. Some people said that Section Three of the Fourteenth Amendment was in tension with the spirit of Section One. Barring some citizens from holding office worked a denial of their privileges or immunities or denied them equal protection of the laws. Why are we treating some Americans unequally, they asked? 

The last point highlights the conflict between an anti-classification and an anti-subordination view of the Fourteenth Amendment. One answer to "Why are we treating some Americans unequally" is that they were leading white supremacists. That is a reason for applying the law unequally, but only if you concede that the law can be applied unequally. I'll have more to say about that in another post.   


Posted by Gerard Magliocca on September 8, 2020 at 12:32 PM | Permalink | Comments (4)

Guest Post:Could Pipeline and Non-Residential Fellowships Increase the Diversity of the Academy?

The following is by Matthew B. Lawrence (Emory) and Bijal Shah (Arizona State).

As one of us has noted, our shared field of “administrative law, both in academia and practice, suffers from a lack of representative diversity.”  But this problem is bigger than administrative law, and recent tenure-track hiring trends may be complicating things.  In this short post, we seek to spur conversation about how to improve the diversity of the legal academy, and encourage possibilities that offer a chance to gain some traction.

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Posted by Howard Wasserman on September 8, 2020 at 09:31 AM in Teaching Law | Permalink | Comments (9)

Monday, September 07, 2020

Data--Rough Data--on Bar Exams and Covid Cases Among Test-Takers

With due caution and various caveats but a serious underlying point, I commend to you this post by Derek Muller at the Excess of Democracy blog. Derek writes of his efforts to obtain information on "the spread of Covid-19 related to the administration of" the July 2020 bar exam in the jurisdictions that held in-person bar exams this summer.

Derek reports that he heard back from bar officials in seven jurisdictions and, "to their knowledge, no one contracted the coronavirus on account of the administration of the bar exam. . . . Some additionally confirmed that no proctors or staff contracted it, either." He adds that "some jurisdictions did emphasize they asked test-takers to disclose if they contracted the coronavirus within 14 days after the exam, and none did so."

Of course caveats apply. I can come up with many; you can come up with many; Derek did come up with many, and notes them near the top of his post. I am personally less sanguine than him when he writes, "My instinct is that if someone did contract the coronavirus during the administration of the bar exam, we’d probably know by now." I'm not sure I have an instinct about this one way or the other. But my imagined scenarios for under-reporting embrace, at a minimum, secrecy, incompetence, caution about making disclosures, uncertain standards of causation, and a lack of organized data collection. (Asking test-takers to disclose is better than nothing but doesn't seem a terribly powerful effort.)  

I do not, then, take the post as strong proof of anything. And its interest for me is quite disconnected from my policy views on the bar exam, now and generally. It is possible to think the in-person bar exam is dangerous for current public health reasons without opposing the bar exam generally, and equally possible to think that it's relatively safe, or can be made so, and that the bar exam should be replaced by something else for other reasons. Our normative and policy views and our sense of the evidence on a particular point needn't move in parallel, and there may be reasons to be suspicious when they do. 

I appreciate and commend Derek's post because it is an effort at collecting data to evaluate the many warnings and predictions that were made about the bar exam ex ante. Leaving aside the students and recent graduates, many academics made various predictions or voiced various concerns before the bar exam. These concerns included but weren't limited to the question whether in-person bar exams would spread the virus among test-takers. (Another ex ante argument was that there would be a shortage of lawyers and a surfeit of new clients with pandemic-related legal service needs, and that diploma privileges or other measures would assist in improving access to legal services for those individuals by those new lawyers.)

Voicing ex ante concerns about risks is perfectly understandable. One can hardly wait until after the event to express worries about future risks. And the outcome doesn't mean the concerns about risk were unwarranted. But it seems to me that, at least for those whose arguments were based on academic expertise, or invoked that expertise and appealed to past and ongoing empirical study of the issue, or otherwise invoked a kind of academic or data-driven or scientistic authority in making various arguments, there is an arguable duty to follow up and see what the data ultimately revealed about the accuracy of those warnings. In the long run that would include, I should think, studies of the discipline levels of this cohort of new lawyers depending on the approach taken in different states. And it would be useful in the shorter term to work to find out whether any state's approach actually resulted in any difference in the level of legal services provided to clients in need, and whether those services were provided by new lawyers or by already existing practitioners.

I'm not a particular fan of the bar exam, as I've written before, although I also think some claims for the value of the diploma privilege and some claims against the bar exam seem overstated, and that a period of mandatory supervision in lieu of examination ought to be of meaningful length and contain reasonably detailed requirements for both the supervised and the supervising lawyer. But none of these views have anything to do with whether it's a good idea for those who make predictions to follow up on those predictions with data after the fact. Of course it is. The data would be interesting in themselves, and a better measure of the authority of those making predictions than a general appeal to their credentials. (Even experts can fare poorly in making predictions.) 

I am sure that many of the academics who offered warnings before the fact are working to collect such data, that doing so properly takes time, and that they may well end up being getting and reporting more thorough and careful results than this. I acknowledge the possibility that sometimes no data may be better than some data. Better, sometimes, to know you don't know than to be overconfident that you do know, based on anecdata or weak data. It depends, I think, on whether writers are careful, in the absence of any data, about emphasizing the lack of data and how it affects the strength of their arguments--and on whether a person with some data is equally clear in emphasizing those limits. But I'll take this as an interesting step forward, and one that required genuine time and effort on Derek's part. 



Posted by Paul Horwitz on September 7, 2020 at 04:19 PM in Paul Horwitz | Permalink | Comments (0)

Joel Harrison on "Post-Liberal Religious Liberty"

Dr. Joel Harrison, of the University of Sydney, has a new book with Cambridge University Press, called Post-Liberal Religious Liberty: Forming Communities of Charity.  (Get yours here.)  I'm honored that he engages -- critically, but fairly and carefully -- my own church-state writing.  I asked him to supply Prawfs with an "extended blurb", to give readers a sense of the argument.  Here it is:

Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020)

Why should we care about religious liberty? What is religious liberty meant to protect? In Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020), Joel Harrison argues that religious liberty protects the quest for true religion. It facilitates the free creation of communities of solidarity, fraternity, and charity.

This argument challenges the increasingly popular liberal egalitarian account of religious liberty.  According to this account, found in the writing of scholars like Ronald Dworkin and Cécile Laborde, as well as case law, religious liberty is a subset of or signifier for a broader category of liberty, protecting personal autonomy or authenticity.  Harrison traces how this has two consequences: it treats as suspect any claim to consider religion, traditionally understood, as especially important; and it leads to the claim that religious groups and persons should increasingly be subject to state law, where the law reflects the claimed autonomy interests of individuals.

Harrison argues that challenging this account requires challenging how liberalism fundamentally understands religion, the ends of a political community, and the role of civil authority.  Religion on this understanding is cast as private, and increasingly associated with individual self-definition or even consumption. Political order is cast as secular, with civil authority defined by a logic claimed to be autonomous of religion: negotiating and furthering individual rights-claims. However, this differentiation between religion and the secular rests on a narrative of secularisation that, Harrison argues, is in reality a half-concealed theology.

In contrast, Post-Liberal Religious Liberty recovers a different theological and political vision. It draws especially from Augustine of Hippo, a subsequent tradition of associational thinking, and contemporary post-liberal thinkers like John Milbank.  Harrison argues that civil authority should be understood as an arm for pursuing human flourishing, right relationship, or the virtuous life, one complementary with and responsive to the Church. This requires a commitment to religion – the love of God and neighbour – as central to the ends of a political community.  Such claims are challenged, in whole or in part, even within Christian thought. Harrison contrasts this argument with the writing of three prominent modern Christian scholars: John Finnis, Richard Garnett, and Nicholas Wolterstorff. However, he argues that only such a commitment makes sense of the liberty of plural religious groups. It points to a good – our common good – that religious liberty serves.

(Available here, discount code: PLRL2020; or via Cambridge Core online)

Posted by Rick Garnett on September 7, 2020 at 09:37 AM in Religion, Rick Garnett | Permalink | Comments (2)