PrawfsBlawg

Monday, February 10, 2020

A Model of Constitutional Litigation

My new piece on universal injunctions has been published in Lewis & Clark Law Review. Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A Model of Constitutional Litigation joins three threads that I have been writing and blogging about here--the requirement of particularized injunctions, the distinction between precedent and judgment, and a model of departmentalism in which all branches are bound by judgments but only courts are bound by judicial precedent. The result is a model of how constitutional litigation functions in fact and should function in our understanding.

Abstract after the jump.

Continue reading "A Model of Constitutional Litigation"

Posted by Howard Wasserman on February 10, 2020 at 07:15 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, February 09, 2020

Storytime

I would like to tell a story that I've not shared in public before. In the Spring of 1994, I met Chief Justice William Rehnquist. I was an undergraduate at Stanford and was enrolled for a quarter in Stanford's Washington DC Program. The Chief Justice was a Stanford alumnus and came to meet the students. (There were about 20 of us and it was a private event.)

The Chief Justice was introduced by a man (whose name I do not recall) who was one of the Rehnquist's roommates when he lived in DC and was clerking for Justice Robert H. Jackson. In the introduction, the man talked about how he and Rehnquist used to argue about everything in the news back then, with a specific mention of  "racial segregation," and that "Bill always won."

I vividly remember that upon hearing this line the Chief grimaced and looked sort of distracted. It then occurred to me why. Either his roommate had said "I was for racial segregation and Bill convinced me otherwise" or the opposite. And the look on the Chief's face indicated it was the opposite.

Thus, when I read discussions about the meaning of Rehnquist's memo to Justice Jackson on Brown v. Board of Education, I feel sure that I know the correct answer, though of course my recollection of the Stanford event is not irrefutable proof. 

Posted by Gerard Magliocca on February 9, 2020 at 02:10 PM | Permalink | Comments (3)

Saturday, February 08, 2020

JOTWELL: Steinman on Engstrom on Lone Pine Orders

The latest Courts Law essay comes from Adam Steinman (Alabama), reviewing Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2 (2019), on the history and development of Lone Pine orders in mass-tort class actions.

Posted by Howard Wasserman on February 8, 2020 at 03:31 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Ending The Age of Impeachment

One thing I'm curious about is how the arguments in the High Court of Impeachment will resonate in the Supreme Court. In part, this is because the Chief Justice connects the two bodies. He heard a lot and probably learned a lot in the Senate, but who knows what he took away from that.

Let me give an example. The President's lawyers, especially Ken Starr, talked a lot about ending the age of impeachment. But in the litigation challenging congressional subpoenas for the President's tax returns, Judge Rao's dissenting opinion in the DC Circuit argued that the only way the House could obtain those records was through an impeachment investigation. If the President makes Judge Rao's argument in the Supreme Court, that would be inconsistent with Ken Starr's plea to the Senate. Accepting Judge Rao's view would mean more impeachment inquiries, as there would be no other way for the House to investigate individual official wrongdoing. There is nothing inherently wrong with more impeachment investigations. My only point is that then the President could be exposed to the argument that he can't have it both ways.

Posted by Gerard Magliocca on February 8, 2020 at 08:08 AM | Permalink | Comments (3)

"Thereof," legalese, and the readability of the U.S. Constitution

Should reasonable (non-lawyer) voters be able to read the U.S. Constitution and understand its meaning?

In United States v. Sprague (1931), the Court offered its approach to interpreting the Constitution: "The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction and no excuse for interpolation or addition" (my emphasis).

The Court's notice-to-voters proposition seems reasonable in light of theories of consent, even if sometimes aspirational and sometimes fictional, for example, language drafted ambiguously to achieve political compromise. Yet, notice is undermined when a document bristles with legalese and language that could fairly be read as embodying technical legal terms of art rather than ordinary natural language (e.g. "other high crimes and misdemeanors"). That drafting diminishes the ability of voters to access the text. If it is intended that voters, generation over generation, are still meant to understand the document, that difficulty is compounded.

Take the adverbial legalese "thereof." It is used over a dozen times in the Constitution and its amendments, but it can really muddle the meaning of a text. The First Amendment's religion clauses say that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." "Thereof" means "of the thing just mentioned; of that." But what is the "thing just mentioned" or the "that"? Like the word "herein," "thereof" can be treacherously ambiguous. Consider two possible readings:

Continue reading ""Thereof," legalese, and the readability of the U.S. Constitution"

Posted by T. Samahon on February 8, 2020 at 08:00 AM in Constitutional thoughts | Permalink | Comments (15)

Friday, February 07, 2020

The Censure of Joseph McCarthy

I was thinking about this famous episode in light of President's Trump's acquittal. Senator McCarthy was a horrible person who used horrible tactics (aided by Roy Cohn) to destroy innocent people for political gain. When public opinion turned against McCarthy in 1954, more than two-thirds of the Senate voted to censure McCarthy for his misconduct related to a Senate investigation of his behavior. While McCarthy remained in the Senate, he was from then on shunned by his colleagues and died (probably of alcoholism) in 1957.

Why wasn't McCarthy expelled? Evidently, the Senate concluded that his actions did not call for expulsion. There is a similarity between expulsion from the Senate and a Senate impeachment conviction. Both require a two-thirds vote. But the Constitution provides no standard for expulsion from Congress. Still, you could say that Senator McCarthy abused his power (he wasn't accused of a crime) but in a way that did not warrant expulsion (or, put more crudely, two-thirds of the Senate would not have so voted.)

Imagine if Presidents could be formally censured by the Senate. (Yes, the Senate did do this to Andrew Jackson, but the validity of that act was highly questionable.) Maybe the same conclusion reached for McCarthy would have been reached for President Trump. An abuse of power yes: loss of office no.

Posted by Gerard Magliocca on February 7, 2020 at 03:32 PM | Permalink | Comments (6)

"Friendship in a Time of Cyberattack"

Apologies if this is a bit off-Prawfs-topic, but I enjoyed this piece, "Friendship in a Time of Cyberattack," by my theorist-and-theologian friend (and fellow Duke Blue Devils fan!), Mike Baxter.  Pope Francis, Guardini, Pieper, Berry, Simon, and MacIntyre all make appearances in Mike's discussion of friendship, time, technology, the university, and the polis. Here's just a little bit:

What the cyberattack did for us at Regis is open up the possibility of recognizing how our life and work together is so deeply dependent on digital technology and to consider the ways it could be enhanced by making ourselves less dependent on it. . . .

The cyberattack also created commonality between faculty and students, for we were in the same boat, with emails failing, assignments not posting, tests and exams running late. More importantly, there was a more personal touch to the interactions between students and faculty. Papers were graded by hand, in the penmanship of the grader. With no email, more students came by during office hours to ask about something. And there was a deeper sense that class was going to occur in the classroom, with everyone together, rather than dispersed through list-servers, online bulletin boards, and such. Finally, most importantly, it created common ground among faculty, for the simple fact that there was more time, what with fewer meetings, no department and college wide assessments to do, and so on; and with more time comes more conversations about what we are teaching and working on. An added factor here was that with on-line resources down, intellectual conversation is more likely to occur locally, which can be surprisingly fruitful. In other words, with our on-line capacities down, we were less able to have conversations with colleagues across the country and found ourselves drawn more into talking with colleagues down the hall or in the building across the quad.

In these (and other) ways we found ourselves gifted with the time and space for cultivating or renewing friendships in all the varieties and permutations discussed by Aristotle: utility, pleasure, among equals, among those older and younger, and, most importantly, true friendship, based on a common pursuit of the good. . . .

Posted by Rick Garnett on February 7, 2020 at 10:27 AM in Rick Garnett | Permalink | Comments (1)

Thursday, February 06, 2020

Will the Selia Case Provoke Bold Moves from the Roberts Court?

Originalist arguments may provoke bold moves from the Roberts Court this Term. In Seila Law LLC v. Consumer Financial Protection Bureau, the Court will decide whether an independent Consumer Financial Protection Bureau violates the Constitution. Leading originalist scholars have challenged the independent structures incorporated by the Bureau and a slew of other agencies as unconstitutional novelties. These agencies are independent, and arguably trammel on the President’s exercise of “the executive power” under Article II of the Constitution, because the President cannot remove their heads at will.

The originalist critique of independent agencies is no longer purely academic, thanks to a 2008 dissent that Justice Kavanaugh wrote as a judge on the D.C. Circuit. As he noted, the leading Supreme Court precedent supporting independent agencies, Humphrey’s Executor, has “long been criticized . . . as inconsistent with the text of the Constitution and the understanding of the text that largely prevailed from 1789 through 1935.” Free Enterprise Fund v. PCAOB, 537 U.S. 667, 694 (D.C. Cir. 2008). Then-Judge Kavanaugh conceded that he was unable to set aside Humphrey’s Executor, as it was “binding precedent.” Now that Kavanaugh is an Associate Justice of the Supreme Court, this constraint no longer applies.

Originalist arguments raise serious questions about the constitutionality of the Consumer Financial Protection Bureau and a multitude of other independent agencies. I will be part of the discussion of Selia and agency independence in the ABA’s upcoming issue of Administrative and Regulatory Law News. My contribution, Alexander Hamilton’s Independent Agency, will highlight the independent structure of an obscure, founding-era agency known as the Sinking Fund Commission. (For more background on the Commission, please see my working paper and earlier post.) In the article for the ABA, I conclude that the independent structures of the Consumer Financial Protection Bureau and the Federal Trade Commission are much closer to founding-era practice than previously thought.

It will be interesting to see how these issues play out at oral argument on March 3 and in the Court’s ultimate resolution of the Selia case. Given the complexity of the issues and the magnitude of the case, I suspect that Selia will be one of the Court’s end-of-term blockbusters this June. 

Posted by Christine Chabot on February 6, 2020 at 09:25 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (8)

Bad News: The New York Times is Doing Great

I have had a post simmering on the back burner for a while on what's wrong with the NYT's 1619 Project. (Short answer: 1) Journalism is the "first rough draft of history," it's not history, and spending time on things outside the expertise of the profession, especially when so many areas--investigative reporting, foreign bureaus, serious local coverage--need more resources and are within its expertise is a poor choice. That's true regardless of one's views of the substantive claims of the Project. 2) It's the capitalism, stupid. Whatever the intentions of individual actors, institutionally the Project represents another effort, especially through its school-curriculum salesmanship, to find new markets in an environment that is not kind to the old journalism business model. Again regardless of the substance, or of one's sympathy for the plight of newspapers, this is letting the tail wag the god.) It's taken time because I'd like to do it right. In the meantime, motivated by my same love of journalism as the first "institution" I was a part of, here's another Times-related story. It's painted as mostly good if not great news, but it ain't necessarily so.

The Times reports today that it has "reached one major business goal and got more than halfway toward another....in 2019 it passed $800 million in annual digital revenue for the first time, an objective it had pledged to meet by the end of 2020. Most of that $800.8 million — more than $420 million of it — came from news subscribers. In the fourth-quarter earnings report that came out on Thursday, the company said its total subscription figure was over five million, a high. The company’s stated goal is to reach 10 million by 2025." It continues: "The company added more than one million net digital subscriptions last year — the most new subscriptions annually in the newspaper’s history. In a statement, Mark Thompson, the Times Company president and chief executive, called 2019 'a record-setting year for The New York Times’s digital subscription business, the best since the company launched digital subscriptions almost nine years ago.'" The story then notes that "Advertising was a weak spot, with print and digital ad revenue each declining slightly more than 10 percent in the final quarter of 2019, compared with the year before....The company said it expected to continue generating revenue more from readers than from the advertisers that were once integral to the newspaper business."

Sounds good! But it should be cause for worry as much as anything else. Leaving aside straight partisan denunciations of the Times (but not more measured arguments that the Times's style has become more partisan and less connected to its traditional model of mid-century professionalism), relying on subscribers rather than advertising may be a necessity, but it's not necessarily a virtue. A newspaper that relies entirely on its subscribers will rely on keeping them happy, including parroting their views and hiring staff who are likely to do the same thing. That is surely one reason for the change in tone in the paper and the style of its reporting. It also means spending time and editorial resources on the things those subscribers want rather than the things they need, something that newspapers could do more easily when there was an independent stream of advertising, including classified advertising. When one is inclined to praise the seriousness of the Times and the intelligence of its readers, it's always a good idea to take a look at its "Most Popular" list and "Editors' Picks." Today, they include such instructive and indicative pieces as "Coming Home to a New Upper West Side. Which Apartment Did She Pick?" and "7 Podcasts for a Healthier Mind and Body." The online page of the Times manages to include news stories, but also pushes forward a host of luxury and comfort pieces (although many of the news stories and virtually all the opinion pieces are, in essence, comfort pieces for its readers): "'Dad Naps' for Everyone," "Dunkaroos Are Back," and a personal favorite from just the other day: a lavish, impassioned, absurd defense of Goop. As it is written in Scripture, "Jesus wept."

Of course the Times has always embodied and represented bourgeois sentiment and suited those needs and interests (mine included, to be sure). But it is a lot harder to do anything other than that when you have no cushion from reader satisfaction. If the Times today is not anywhere close to the paper it ought to be--and that is my view, but only because it's true--it is not because it is less popular, but because it has no choice other than to run after popularity, with a particular readership, like a dog chasing a car. (Its other option--diversifying into things in which it has no expertise and which I think tend to harm rather than help its core mission, like TV shows, podcasts, and school curriculum tie-ins--is, as I suggested above, a prominent reason for the 1619 Project, and an unfortunate one.)

In the course of drafting my 1619 post, I came across a recent story boasting that the newsroom staff is larger than it has ever been in the paper's history, at some 1,600 staffers. That seems at first blush to counter my suggestion that the paper is pouring its resources into side projects and intellectual throw-pillows instead of areas of reporting we need much more. I would feel better about that statistic if so large a proportion of its staff did not seem devoted to offering recaps of late-night TV and other television shows and features on "What to Do About an Overtalker," and if it had not already gotten bought out so many of its more experienced editors and writers. The dubious level of experience and quality of its online editors, headline writers, and stories is evident to any reader.

I'm glad the Times is not dying. There are few big newspapers in the United States and few good ones, and such institutions do something different from the alternatives that have arisen and which do not serve the same important functions. But the incentives and necessities that have been a part of its growth, and which inevitably become the subject of sincere but reverse-engineered justifications on the part of its staff and leaders, are going to change it, and are more likely to make it big than good.        

   

Posted by Paul Horwitz on February 6, 2020 at 01:48 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, February 05, 2020

Delayed executive transparency and political accountability

John Bolton may not be testifying during the Trump Senate trial, but eventually his manuscript, partial leaks of which have already been shared with the Press, will see the light of day, even if after a potentially prolonged (post November 3, 2020?) prior restraint of pre-publication review. As the Just Security blog noted, Republican senators voting to acquit on the basis of factual, rather than legal, deficiency will have to eventually contend with the Bolton’s manuscript disclosure and other subsequent factual developments.

The leaks of the general content of Bolton's book were timely and placed senators on notice that important additional evidence concerning the conduct of our foreign policy was missing that could have been sought. Too often, however, delayed disclosure is the rule, thwarting political accountability for bad actors, leaving only hortatory cautionary tales to be learned from past governance missteps.

Consider a few spectacular delayed disclosures in the use of force context (which I've written about elsewhere) that, had they occurred earlier, could have changed public discourse and perhaps the direction of policy by calling into question the amount of deference paid to the executive branch.

Continue reading "Delayed executive transparency and political accountability"

Posted by T. Samahon on February 5, 2020 at 10:47 AM in Constitutional thoughts | Permalink | Comments (8)

Monday, February 03, 2020

Uh, oh

Following the 2016 election, I identified breaking championship droughts as a random sports predictor that foretold Republican electoral success. If so, Democrats (including me) should be nervous this morning, as the Kansas City (Missouri) Chiefs won their first Super Bowl in 50 years--which I think qualifies as a long, if not quite as legendary, sports drought. This follows a number of other droughts that ended in 2019--St. Louis Blues win first Stanley Cup in 52-year history; Washington Mystics win first WNBA title; Washington Nationals win first World Series for D.C. since 1924 and first World Series in the 50-year history of the Expos/Nationals franchise.

Of course, we do have one counter-example in which end-of-drought coincided with Democratic success--the 2018 mid-terms followed the Washington Capitols' first Stanley Cup in a then-44-year history.

Posted by Howard Wasserman on February 3, 2020 at 03:42 PM in Howard Wasserman, Sports | Permalink | Comments (2)

Saturday, February 01, 2020

The Administrative Law Dispute at the Heart of the Census and DACA Cases

It is an exciting time to study administrative law. The pillars of this field — cases such as Chevron, Humphrey’s Executor, and Whitman v. American Trucking — seem likely to be up for grabs at the Supreme Court. And the Court’s resolution of the controversial census and DACA cases has turned (or will likely turn) on applications of the Administrative Procedure Act’s “arbitrary and capricious” standard of review. Both cases involve decisions of enormous importance to the Trump Administration. What you may not know is that the arbitrary and capricious standard of review is also up for grabs. As explained in my recent paper (written with Barry Sullivan and forthcoming in the Connecticut Law Review), the Supreme Court has never formed a stable majority on the question of how much deference courts owe the executive branch under this standard of review. Should courts find a decision arbitrary and capricious where an officer implements the president’s preferred policies but omits expert analysis of relevant data? Or should courts ease up on analytical requirements and provide greater latitude for policies implemented at the behest of an elected president?

Unfortunately, the Court’s 2019 decision in Department of Commerce v. New York sends mixed messages on these questions. The Secretary of Commerce (Wilbur Ross)’s controversial decision to add a citizenship question to the 2020 census drew shifting coalitions of five Justices. Chief Justice Roberts provided the deciding vote and wrote the opinion for each coalition, and Justices Alito, Gorsuch, Kavanaugh, and Thomas joined the part of the Chief Justice’s opinion that approved the Secretary’s general analysis. The Chief Justice granted great deference when he determined that the Secretary’s explanation need only lie “within the bounds of reasoned decisionmaking.” It was reasonable for Secretary Ross to conclude “that reinstating a citizenship question was worth the risk of a potentially lower response rate,” even though the Secretary bypassed routine testing designed to provide additional empirical evidence about response rates.

Had the Court resolved the case on this first issue alone, its decision may have signaled a shift to a more deferential version of arbitrary and capricious review. However, procedural irregularities led the Chief Justice to switch sides and invalidate the Secretary’s decision on grounds of pretext. Justices Breyer, Ginsburg, Kagan, and Sotomayor joined the Chief Justice’s opinion on this issue. Roberts’s disapproval focused on the “significant mismatch between the decision the Secretary made and the rationale he provided.” While the finding of pretext turned on “unusual circumstances,” none of the opinions expressly discussed late-breaking evidence of a clandestine study conducted by Dr. Thomas Hofeller, a redistricting specialist. This evidence raises the possibility that Secretary Ross was aware of Hofeller’s findings (that a citizenship question would benefit “Republicans and Non-Hispanic Whites”) and that the Secretary declined routine testing to avoid collecting public evidence on these points. The Chief Justice’s finding of pretext implicitly addressed this concern, but it failed to articulate a manageable standard for future cases.  

The Court missed an important opportunity to mitigate similar concerns in future cases. Rather than a finding of pretext “good for this day” only, the Court might have achieved the same result by finding the Secretary’s analytical shortcuts arbitrary and capricious. The initial and more deferential standard of review applied by Chief Justice Roberts glossed over the fact that the Secretary chose to base his official decision on limited evidence about response rates when he bypassed testing routinely employed for new census questions. A less deferential approach would reflect Justice Scalia’s earlier suggestion, in FCC v. Fox I, that “failure to adduce empirical data that can readily be obtained” might render a policy change arbitrary and capricious. It would also align with Justice Kennedy’s concurrence in the same case. Justice Kennedy emphasized the importance of agency decisions that are “explained in light of available data,” “informed by the agency’s experience and expertise,” and “justified by neutral principles and a reasoned explanation.”

It is unclear whether the Court will have a chance to clarify the arbitrary and capricious standard of review when ruling on the Trump Administration’s decision to rescind the DACA (or Deferred Action for Childhood Arrivals) program. While this case is extremely important, it involves a distinct set of humanitarian policy concerns, including reliance interests. Broader questions about the arbitrary and capricious standard of review seem likely to remain unanswered in 2020.

Posted by Christine Chabot on February 1, 2020 at 09:48 PM in 2018 End of Term, Current Affairs, Law and Politics | Permalink | Comments (2)

Submission Angsting Spring 2020

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

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

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

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

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

Rostron and Levit's extremely helpful guide to submitting to law reviews is available here (this is the January 2020 version). The article now also includes hyperlinks to law review websites.

Posted by Sarah Lawsky on February 1, 2020 at 06:11 PM in Law Review Review | Permalink | Comments (252)

John Bingham on High Crimes and Misdemeanors

"It is too late to construe the Constitution to mean, by the words 'high crimes and misdemeanors,' only offenses indictable at the common law or by statute."

Cong. Globe, 35th Cong., 2d Sees. 90 (1858) (statement of Rep. Bingham).

Posted by Gerard Magliocca on February 1, 2020 at 04:02 PM | Permalink | Comments (0)

Friday, January 31, 2020

The Chief Justice on Tie Votes in an Impeachment Trial

I found the Chief Justice's answer to the parliamentary inquiry interesting. He said that (despite the precedents set by Chief Justice Chase) there was no general authority for him to break tie votes in an impeachment trial. He then said that it would be inappropriate for him to break ties because he is unelected (unlike the Vice President) and not accountable for his vote. Personally, I think he was wrong in disclaiming that authority instead of using the convention followed by the Speaker of the House of Commons. Alas.

Since there was no tie vote to break, I'm somewhat puzzled about why the question was asked now (rather than, say, earlier in the trial). I certainly hope that there is no need to revisit this question anytime soon, because that would mean another President was being impeached.

 

Posted by Gerard Magliocca on January 31, 2020 at 08:35 PM | Permalink | Comments (4)

A Different Way To Look at the Chief Justice's Vote

Suppose that there is a tie vote on witnesses today. Assuming that the Chief Justice says that he can break a tie but then exercises his discretion somehow, does that not create an argument for his recusal in the cases involving the litigation between the President and the Congress over executive privilege or tax returns? If he votes for witnesses, then the White House can argue that creates an appearance of bias. But if he does not vote for witnesses, then Congress can argue the same.

This is why it would be better if he came up with some neutral explanation or rule for his preferred course of action, if he can. 

Posted by Gerard Magliocca on January 31, 2020 at 10:35 AM | Permalink | Comments (5)

Appellate argument (and law school), encapsulated (Updated)

From the Sixth Circuit argument in Higgins v. Kentucky Sports Radio, a lawsuit brought by a college referee who was attacked online by Kentucky basketball fans (particularly through harassing phone calls and negative reviews of his roofing business) following some controversial calls in a game UK lost. The defendants are the radio station and announcer who reported on and promoted the efforts, in a way the plaintiff alleges constitutes incitement and conspiracy to defame. (H/T: Regular reader and commenter Asher Steinberg).

In an argument that otherwise went well for the radio station, I loved this exchange (around 19:00) between the station's attorney and one judge (not sure who turns out to have been Judge Sutton), when the judge asked whether a more direct instance of incitement would have survived 12(b)(6):

Attorney: Your Honor, I'm hesitant to comment on hypotheticals. The point is that is not this case.

Judge Sutton: OK, wait. I hate to break it to you, particularly with some law students here. That is all we do. *** You want to win for your client today. And we do not want to issue a ruling that we will have to denounce tomorrow for the next case.

Posted by Howard Wasserman on January 31, 2020 at 08:33 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, January 30, 2020

Between Truth and Power: The Legal Constructions of Informational Capitalism Roundtable

I'm in Notre Dame and excited to be part of a roundtable in honor of Julie Cohen's new book, Between Truth and Power. The book is dazzling in its breadth and insights. Between Truth and Power asks us to consider the new ways powerful actors extract valuable resources for gain and dominance. Cohen in particular warns that “the universe of personal data as a commons [is] ripe for exploitation.” Cohen writes that “if protections against discrimination, fraud, manipulation, and election interference are to be preserved in the era of infoglut, regulators will need to engage more directly with practices of data-driven, algorithmic intermediation and their uses and abuses.” In my response essay, Biopolitical Opportunities: Between Datafication & Governance, which I am presenting tomorrow, I read Between Truth and Power as not only a compelling account of the contemporary transformations of law and markets but also a call to action. This essay takes up Cohen’s challenge by considering ways in which governments can engage in new forms of governance to leverage the very same biopolitical data extracted by private actors for profit purposes in service of public goals of fairness, equality, and distributive justice. In particular, the essay describes several current initiatives which demonstrate how datafication can, and indeed should, be employed to aid regulatory research, enforcement, and accountability. The two examples I focus on are first, current developments in labor market information flows, attempting to address salary inequities, labor market concentration, and bias, and second, scraping data off platforms in service of regulatory compliance. I argue that if we are to take Cohen’s framework seriously, then policymakers have no choice but to identify opportunities within disruptive technological changes and frequently mirror, rather than attempt to block, these innovations.

Here at Notre Dame, Mark McKenna per his usual has put together a fantastic group of commentators on  Authority and Legitimacy in the Age of Informational Capitalism - Ari Waldman, Bill McGeveran & Dan Burk; Information Capitalism through Lens of Legal and Professional Culture: Jessica Silbey, Andrew Woods, Neil Richards & Anupam Chander; and Alternative Futures: Orly Lobel, Deirdre Mulligan, Jennifer Daskal & Elliot Visconsi.

 

Posted by Orly Lobel on January 30, 2020 at 11:52 PM | Permalink | Comments (0)

Between Truth and Power: The Legal Constructions of Informational Capitalism Roundtable

I'm in Notre Dame and excited to be part of a roundtable in honor of Julie Cohen's new book, Between Truth and Power. The book is dazzling in its breadth and insights. Between Truth and Power asks us to consider the new ways powerful actors extract valuable resources for gain and dominance. Cohen in particular warns that “the universe of personal data as a commons [is] ripe for exploitation.” Cohen writes that “if protections against discrimination, fraud, manipulation, and election interference are to be preserved in the era of infoglut, regulators will need to engage more directly with practices of data-driven, algorithmic intermediation and their uses and abuses.” In my response essay, Biopolitical Opportunities: Between Datafication & Governance, which I am presenting tomorrow, I read Between Truth and Power as not only a compelling account of the contemporary transformations of law and markets but also a call to action. This essay takes up Cohen’s challenge by considering ways in which governments can engage in new forms of governance to leverage the very same biopolitical data extracted by private actors for profit purposes in service of public goals of fairness, equality, and distributive justice. In particular, the essay describes several current initiatives which demonstrate how datafication can, and indeed should, be employed to aid regulatory research, enforcement, and accountability. The two examples I focus on are first, current developments in labor market information flows, attempting to address salary inequities, labor market concentration, and bias, and second, scraping data off platforms in service of regulatory compliance. I argue that if we are to take Cohen’s framework seriously, then policymakers have no choice but to identify opportunities within disruptive technological changes and frequently mirror, rather than attempt to block, these innovations.

Here at Notre Dame, Mark McKenna per his usual has put together a fantastic group of commentators on  Authority and Legitimacy in the Age of Informational Capitalism - Ari Waldman, Bill McGeveran & Dan Burk; Information Capitalism through Lens of Legal and Professional Culture: Jessica Silbey, Andrew Woods, Neil Richards & Anupam Chander; and Alternative Futures: Orly Lobel, Deirdre Mulligan, Jennifer Daskal & Elliot Visconsi.

 

Posted by Orly Lobel on January 30, 2020 at 11:52 PM | Permalink | Comments (0)

Academic Feeder Judges

I have posted to SSRN the pre-submission draft of Academic Feeder Judges--a study of the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and who “produce” law professors from the ranks of their former clerks. Coming soon to a law-review mailbox near you.

Update: Karen Sloan at National Law Journal gave the piece a nice little write-up, as did Above the Law.

The abstract is after the jump. Spoiler alert above the jump: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), Dorothy Nelson (Ninth Circuit), Richard Posner (Seventh Circuit, resigned in 2018), and Harry Edwards (D.C. Circuit).

PermaPrawfs' former judges are well-represented in the top-101 (arbitrarily set at 8+ academic former clerks)--John Walker of the Second Circuit (Ethan), Patrick Higginbotham of the Fifth Circuit (Rick H.), Joseph Sneed of the Ninth Circuit, died in 2008 (Lyrissa), Alex Kozinski of the Ninth Circuit (Dan), Raymond Randolph of the D.C. Circuit (Carissa), Calabresi (Gerard), and Jane Roth of the Third Circuit (me, as well as current guest Christine Chabot). Marsha Berzon of the Ninth Circuit (Steve), Richard Arnold of the Eighth CIrcuit (Rick G.), and Ed Carnes of the Eleventh Circuit (Paul) just missed the 8-prof line.

I wrote previously about the origins of the paper: Seven or eight years ago while helping with a reunion/portrait unveiling for Judge Roth, I noticed what seemed a lot of .edu addresses on the list of former clerks. I wondered how many of her former clerks went into teaching (13, it turned out, plus several in other disciplines), whether that was a lot or a little, and who among lower-court judges "produced" academics from among their former clerks. I finally got around to doing the study and writing the paper.

Comments welcome.

Continue reading "Academic Feeder Judges"

Posted by Howard Wasserman on January 30, 2020 at 03:17 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (3)

On Presidential Accountability and Running Out the Clock

There are really very few opportunities to meaningfully hold a modern American president personally accountable when his party stands behind him.

1. A sitting President can't be criminally prosecuted, at least according to the executive branch and notable executive branch alumni.

2. Civilly, the President is absolutely immune, even after leaving office, for official actions taken while President.

3. Electorally, since the 22nd Amendment, a President stands for reelection only once, but typically has enormous advantages as incumbent and head of a major political party. If the President prioritizes self-preservation over party, the subsequent political fallout for party is a non-check.

4. Then, there’s removal from office through impeachment and conviction.

Continue reading "On Presidential Accountability and Running Out the Clock"

Posted by T. Samahon on January 30, 2020 at 08:00 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (4)

Tuesday, January 28, 2020

A Necessary Implication

Professor Dershowitz said yesterday that the articles of impeachment are defective because abuse of power and obstruction of Congress without a violation of law is not an impeachable offense. He added, therefore, that the Bolton revelations, even if true, are irrelevant.

If the Senate decides to call Bolton as a witness or subpoena his draft book, though, then that means that the Senate does not see those facts as irrelevant. It follows from that, I think, that the Senate would then be rejecting the President's legal position that an abuse of power can never be an impeachable offense. 

Posted by Gerard Magliocca on January 28, 2020 at 02:23 PM | Permalink | Comments (4)

Monday, January 27, 2020

Thomas and Gorsuch on universal injunctions (Updated)

SCOTUS stayed pending appeal the injunction prohibiting enforcement of the Trump Administration's public-charge regulation, another example of the government seeking and the Court granting extraordinary relief to allow the administration to continue enforcing policies pending litigation where the lower court found the policies defective. Justice Gorsuch, joined by Justice Thomas, concurred in the stay, to take aim at universal injunctions (with citation to the work of Sam Bray and Michael Morley), properly defining them as injunctions protecting beyond parties rather than in geographic terms.

Unsurprisingly, I agree with Gorsuch's basic point against universal injunctions. I am not sure what it has to do with this case. Gorsuch would have granted this stay regardless of the injunction's scope. And I am sure he is waiting for the government to challenge a particularized Illinois injunction that (he acknowledges) remains in effect so he can stay that, as well.

Update: I wanted to come back to the question of whether the stay was proper. Given the make-up of the Court, it seems clear that, when the case comes to the Court on the merits, the majority will declare the policy valid. That aside, what about the stay? Where the district court granted an injunction, the question should be what will create more permanent and long-lasting chaos--staying the injunction (thus allowing enforcement of the underlying policy) or allowing the injunction to remain in effect (thus stopping enforcement of the underlying policy, allowing continuation of the primary conduct the regulation is designed to stop.

Today's order means the U.S. can deny status to certain people for the moment, although should the reg be declared invalid at the end of the day, those people could then reapply and be considered without the now-unlawful policy. Had the Court not stayed the injunction, people otherwise subject to the order could enter and/or gain status; if the order ultimately is declared valid, the government would have people in the U.S. or with status who otherwise should not have been permitted. It does not seem that the government could retroactively apply the regulation to remove presence or status already granted under the old rules. So as abhorrent as I find the policy, it seems a stay was appropriate. Where am I going wrong?

Posted by Howard Wasserman on January 27, 2020 at 01:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Congressional design, Senate partisanship by class, and impeachment trial politics

Post-17th Amendment, both the House and the Senate are directly elected--a change from the earlier dual constituency of state legislative election of senators. Still, important differences remain that result in intra-branch friction such as we're seeing in the impeachment process.

By design, the House would be more democratically responsive than the Senate due to its shorter terms and its method of direct election. One perceived downside was the House would be "liable to err also, from fickleness and passion." This is consistent with the apocryphal explanation that the Senate was designed to "cool" the politically responsive House as a tea saucer cooled hot tea.  The chambers’ different characters were features, not flaws, such as the requirement that the more politically accountable House “hold the purse” by originating all tax revenue measures but requiring Senate concurrence for them. Like hot and cold faucets, the chambers could deliver warm, but non-scalding (and non-freezing) water to the public.

Beyond Senate direct election and the 17th Amendment, consider an important political development on the House side that makes the House's "water" even more scalding. Aggressive gerrymandering in the House effectively allows representatives to choose their voters rather than the other way around. This bipartisan opportunity has changed over time and is far more effective now than it was at the founding. The House has very heavily gerrymandered districts (except for 1 representative states with at large districts, e.g. Wyoming, Montana, etc.) with very low rates of incumbents losing those seats. The increase in polarized House districts maintains that body's penchant for fiery politics, but it also makes the seats securely partisan. The Framers were right the House would prove hot headed, but not because the body was being responsive to what Americans in the aggregate in the several states would want. In a sense, with the new gerrymandering, the House lost some of the feature but kept the flaw - the House now is only modestly politically responsive, but still subject to fits and passions from partisanly gerrymandered, center fleeing districts.

Continue reading "Congressional design, Senate partisanship by class, and impeachment trial politics"

Posted by T. Samahon on January 27, 2020 at 11:45 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (3)

Sunday, January 26, 2020

Alan Dershowitz Is Barking Up the Wrong Tree

Tomorrow the President's lawyers will argue that an abuse of power, without an alleged violation of law, cannot be a high crime and misdemeanor under the Constitution. Alan Dershowitz, who is expected to make this claim, took the opposite view during President Clinton's impeachment. But he now says he's changed his mind, based in part on his research into President Andrew Johnson's impeachment trial. As someone who has studied and written about the Johnson trial, I cannot see how that precedent can lead to the conclusion that an abuse of power is not impeachable. Professor Dershowitz is wrong if says otherwise. Let me explain why.

President Johnson's lawyers did contend that an abuse of power--standing alone--was not impeachable. This  argument was made in response to one of the articles of impeachment--Article X--that did not allege a violation of law and only alleged an abuse of power. The Senate, of course, acquitted President Johnson. From this, I gather, Professor Dershowitz wants to argue that the Johnson trial created a precedent that an abuse of power cannot be an impeachable offense.

One problem with this claim is that many of the Senators in the Johnson trial explained their votes in written "opinions" published after the verdict was delivered. You can read those opinions here (from pages 417 to 524 in the Supplement to the Congressional Globe.) Guess how many Senators endorsed the view that an abuse of power alone cannot be a high crime and misdemeanor? Zero. That's right--zero. The Senators who voted not guilty and wrote opinions instead said that they either thought President Johnson did not abuse his power or that he did not do so in a manner serious enough to warrant removal. These written opinions are the law of the Johnson impeachment trial, just as written judicial opinions are for an ordinary court case.

Accordingly, the Johnson precedent does not support President Trump's claim than an abuse of power alone is not impeachable. There are other ways of making that argument, I suppose, but this is not one of them. 

Posted by Gerard Magliocca on January 26, 2020 at 07:59 PM | Permalink | Comments (3)

Saturday, January 25, 2020

On Disappointed Presidents

President Trump’s response to impeachment proceedings seems more defiant than regretful. The President has expressed regret in other areas, however.  He “may[]” regret his appointment of Jerome Powell as Chair of the Federal Reserve. The President may also have reason to be disappointed in Chief Justice Roberts, a Republican appointee who has publicly countered the President’s attack on the independence of federal judges. Any disappointment suffered by the President would reflect Powell’s and Roberts’ independence and ability to remain in office while making decisions contrary to the President’s wishes. The independence of administrative agencies such as the Fed has been controversial. The independence of the federal judiciary is established by Article III of the Constitution.  

Supreme Court Justices have a long history of casting independent votes that disappoint the presidents who appointed them. President Eisenhower declared Justice Brennan one of his greatest “mistakes.” A disappointed President Theodore Roosevelt complained that he “could carve out of a banana a Judge with more backbone than” Justice Holmes. Historically, Justices’ voting records in non-unanimous cases reflect a strong tradition of independence, though there is reason to think that presidents have enhanced their ability to appoint ideologically compatible Justices in recent decades. As noted by Lee Epstein and Eric Posner, we may be on the cusp of a new era in which Justices’ votes align with the parties of their appointing presidents more than ever before. It seems unlikely that the Court will ever have another Justice like John Paul Stevens, a Republican appointee who generally sided with the liberal wing of the Court, or even a more moderate Republican appointee like Justice Kennedy.

Any shift to a more political court would still depend on Chief Justice Roberts, who may have a broader commitment to the Court’s institutional independence. And perhaps Justice Gorsuch’s commitment to originalism and textualism will lead to unexpected results in certain cases. The magnitude of any change would also depend on the types of cases that the Court chooses to decide. A Term in which the Court overruled Roe v. Wade and declared vast swaths of the administrative state unconstitutional would be very different than one in which none of these things occurred. 

Notwithstanding any increase in politicized voting, presidents ultimately lack power to create vacancies that allow them to appoint new Justices to the Court. Article III’s life tenure provisions instead allow Justices to choose when they will retire. In recent decades many Justices have chosen to remain on the bench and pass up politically opportune retirements. Justice Ginsburg declined to retire when President Obama was in office, and last year Justice Thomas declined to retire during President Trump’s first term in office. (Because it is an election year, none of the Justices are likely to retire voluntarily this year.) Both of these possible retirements would have maximized Justice Ginsburg’s and Justice Thomas’s odds of being replaced by like-minded successors who would remain on the Court for many decades to come. Justices’ autonomous retirement decisions present another facet of judicial independence that one would not expect to change any time soon.

Posted by Christine Chabot on January 25, 2020 at 09:48 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (2)

Judge Easterbrook does judicial departmentalism

People are talking about Judge Easterbrook's opinion for the Seventh Circuit in Baez-Sanchez v. Barr, taking the BIA to task for not following the court's instructions on remand. Easterbrook is outraged about executive conduct that "beggars belief.' The court has "never before encountered defiance of a remand order,and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails."

Easterbrook then says the following:

A judicial decision does not require the Executive Branch to abandon its views about what the law provides, for the doctrine of offensive non-mutual issue preclusion does not apply to the United States. United States v. Mendoza, 464 U.S. 154 (1984). The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistaken—though it has been followed elsewhere, see Meridor v. Attorney General, 891 F.3d 1302, 1307 & n.8 (11th Cir. 2018). But they are not free to disregard our mandate in the very case making the decision. That much, at least, is well established, not only in Plaut but also in many other cases. See, e.g., United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

Although he does not use the term, this is a nice and succinct encapsulation of judicial departmentalism: The executive can disagree with and disregard a judicial decision it regards as mistaken in some other case. But the executive cannot disregard the court's mandate in the current case when that mandate has become final and unreviewable.

Posted by Howard Wasserman on January 25, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Immigration, Judicial Process | Permalink | Comments (6)

Friday, January 24, 2020

A False Argument About the Impeachment Trial

Some Republican Senators are arguing that calling witnesses in the impeachment trial would lead to litigation and delay the proceedings for months. This assertion is false and sounds like an excuse not to call witnesses.

Nixon v. United States (the case about Judge Nixon, not President Nixon) makes clear that the federal courts have no authority over the manner in which the Senate conducts impeachment trials. Period. This conclusion is firmly supported by the text of the Constitution, which gives the Senate the sole power to try all impeachments. Period. Any other conclusion creates all sorts of problems. Can a federal district court enjoin the Senate from holding the trial? Can that court order the Chief Justice to halt the proceedings? The idea is preposterous and unlawful.

Posted by Gerard Magliocca on January 24, 2020 at 10:31 AM | Permalink | Comments (7)

In (Partial) Defense of Chief Justice Chase

Salmon Chase is getting clobbered in the press this week. People are criticizing his conduct  in presiding over the Andrew Johnson trial and urging Chief Justice Roberts not to follow his example. There is merit to these criticisms. Chief Justice Chase was trying to run for President in 1868 and shaped his rulings in the trial to further that goal. Shame on him.

Chief Justice Chase's aggressive view of his authority as the presiding officer, though, is another matter. One important point that is often overlooked is that Chase was a former Senator. As a result, he was very familiar with the Senate's procedures and probably felt confident in his ability and authority to run the trial. By contrast, Chief Justice Roberts is new to the Senate and must rely heavily on the parliamentarian. So he is probably more hesitant to take any initiative, though that may change as the trial unfolds. I don't think, though, that Chief Justice's political aspirations undercut the validity of the precedents that he set in 1868 (such as the Chief's power to break tie votes in the Senate). 

Posted by Gerard Magliocca on January 24, 2020 at 09:17 AM | Permalink | Comments (0)

Musical grammar scolds

I recently found myself having to explain the difference between "was" and "were" as the verb in a conditional sentence ("If X were true" rather than "If X was true"). I offered the example of the song What if God Was One of Us, which, of course, should have been "What if God were one of us."

This got me thinking of other songs with glaring grammatical errors. I thought of Live and Let Die's "if this ever-changing world in which we live in."

Other thoughts? A non-law diversion for a Friday.

Posted by Howard Wasserman on January 24, 2020 at 08:53 AM in Culture, Howard Wasserman | Permalink | Comments (10)

Thursday, January 23, 2020

Janus and Stare Decisis

Labor scholars have explored Janus and its implications to unions and the job market, but Mike Gentithes has written an article arguing that the most pernicious effect of the case will be the way it undermines stare decisis generally, with dire consequences for abortion rights, civil liberties...

here is the abstract: 

Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly and undermine trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court, acting as a bulwark to wholesale jurisprudential reversals by the Justices. Yet in recent years, the stare decisis doctrine itself has come under threat.

With little public or scholarly notice, the Supreme Court has radically weakened stare decisis. The Court has long suggested that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. But in several recent decisions, the Court has suggested that “poor reasoning” in a prior decision both triggers stare decisis analysis and justifies overruling cases. This presents a grave threat to legal stability. Justices can always find reasoning they believe is “poor” in prior decisions. Stare decisis under this formulation provides little restraint against changing course. It also opens the door to “wave theories” of stare decisis, whereby new Justices seeking rapid change can claim fidelity to a weak version of stare decisis early in their careers, only to suggest a stronger version later to protect their own decisions.

This weakened version of stare decisis has deep analytical flaws that would allow perpetual changes to legal doctrine based simply on the current Justices’ policy preferences. The Court must not accept the alarming effects such a weak version of stare decisis would have on legal stability, consistency, and judicial legitimacy.

very interesting read. H/T Rick Bales.

Posted by Orly Lobel on January 23, 2020 at 11:36 AM | Permalink | Comments (8)

Wednesday, January 22, 2020

Notice, Vagueness, and Trump’s Anti-Impeachment Argument

On Monday, the President’s lawyers filed a memorandum with the Senate that lays out his response to the House’s impeachment case. One argument in the memo stood out to me—the idea that President Trump cannot be impeached because he did not violate a specific criminal law.  The President’s lawyers are making this argument in response to the first article of impeachment—the one that alleges an abuse of power. 

This argument has gotten a lot of attention because Alan Dershowitz, who recently joined the President’s legal team, has argued that, as a historical matter, impeachment and removal are only constitutionally permitted if Congress proves the President committed a crime.  There is ample evidence that contradicts Dershowitz’s historical argument—evidence that constitutional experts across the country have been quick to identify. 

Importantly, the President’s lawyers have framed the argument in terms that are not purely historical.  They have also argued that, as a substantive legal matter, a President may only be impeached and removed for conduct that is clearly forbidden by law.  That substantive argument is not receiving the same level of attention as Dershowitz’s historical argument. (Though I do recommend this great essay from Ilya Somin over at the Volokh Conspiracy.)  Because the substantive argument is intuitively appealing, I think that it is important to highlight what is wrong with it.

The President’s substantive argument, in a nutshell, is that he cannot be impeached for abuse of power because there is no clear, legal definition of “abuse of power.”  In the absence of a clear definition, the argument goes, it would be unfair to impeach the President because, at the time he acted, President Trump did not know that conduct was forbidden.  It would also give Congress too much power because Congress could use the nebulous charge of “abuse of power” to impeach and remove future presidents based on legitimate policy disagreements.  If these sound familiar to you, it may be because they are similar to an argument that Josh Blackman made several weeks ago.

These may also seem like familiar arguments because they are based on due process principles.  In particular, they rely on arguments that justify the rule of lenity and the void-for-vagueness doctrine—due process limitations that many of us learned about in our first year criminal law classes.  Personally, I love teaching these topics to my students, and I have also used those principles in my scholarship to repeatedly argue for more narrow and more specific criminal laws.  But here is the rub:  I make these arguments because this is not the current law in this country.  We routinely punish people without making clear beforehand what people can and cannot do.  We have done so since this country was founded nearly 250 years ago.  We do this despite the fact that it isn’t fair to the people we punish.  And we do it despite the fact that it gives police and prosecutors enormous amounts of power.

Continue reading "Notice, Vagueness, and Trump’s Anti-Impeachment Argument"

Posted by Carissa Byrne Hessick on January 22, 2020 at 08:18 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink | Comments (4)

Tuesday, January 21, 2020

Defining a show trial

Some people are decrying-in-advance the upcoming Senate impeachment as a "show trial." At some level the term is apt. The factfinder seems to have its mind made up; the procedures in place do not seem calculated to discover the truth; and the proceeding will bear the cover of a judicial proceeding but serve as little more than a cover for the political decision of those in power.

But  think of "show trials" in the context of the Soviet Union or other totalitarian regimes, where the government uses the sheen of judicial process to purge and execute an enemy of the state, where a conviction is the pre-ordained result. This is going the opposite way--an acquittal is the pre-ordained result. The comparator is not Soviet or authoritarian show trials of ordained enemies. The comparator is state criminal proceedings against Klan members and other Southern whites charged with crimes against African-Americans (e.g., Byron De La Beckwith).

Does the term "show trial" still apply?

Posted by Howard Wasserman on January 21, 2020 at 03:10 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

JOTWELL: Michalski on Copus on judicial attention

The new Courts Law essay comes from Roger Michalski (Oklahoma), reviewing Ryan Copus, Statistical Precedent: Allocating Judicial Attention (Vand. L. Rev., forthcoming), which considers ways to determine the types of cases that warrant judicial attention.

Posted by Howard Wasserman on January 21, 2020 at 08:15 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, January 20, 2020

Could Congress Put Chief Justice Roberts on the Federal Reserve’s Open Market Committee? It’s Not As Crazy As You Might Think

The Supreme Court has paid careful attention to Article II’s Appointments Clause requirements in recent cases. Such enhanced scrutiny coincides with renewed constitutional challenges to the appointments process for members of the Federal Reserve’s Federal Open Market Committee. Drawing on my recent paper, this post provides several reasons why the Committee’s appointments should be considered constitutional. These appointments even find support in the First Congress’s decision to make Chief Justice John Jay an ex officio member of the Sinking Fund Commission. The Commission is a founding-era antecedent to the Open Market Committee, and Chief Justice Jay served on the Commission without ever receiving an appointment as a principal officer in the executive branch.

First consider the Appointments Clause issues raised by the Open Market Committee. Its monetary policy decisions have enormous ramifications for the U.S. economy, and yet only seven of the Committee’s twelve members (the governors) are appointed as principal officers. The remaining five members of the Committee are presidents of regional Federal Reserve banks. The bank presidents vote independently and as the governors’ colleagues on the Open Market Committee, but their appointments are approved by the governors rather than the President and Senate. Thus the bank presidents meet only the requirements for inferior officers. Peter Conti-Brown has argued that multiple vacancies on the board of governors have exacerbated the problem by granting bank presidents a majority of votes on the Open Market Committee. It’s not clear that this change (or underlying factors) would render bank presidents principal officers under current precedent. A minority of governors would still retain power to remove bank presidents at will, and regional bank presidents cannot form a quorum of the Committee necessary to transact business without the presence of at least two governors.  (Please see my paper for citations to relevant authority.)

Nor do the bank presidents’ appointments run afoul of originalist arguments for broader Appointments Clause requirements. The Sinking Fund Commission, which again was the Open Market Committee’s founding-era antecedent, provides helpful precedent on this issue. As explained earlier, the Sinking Fund Commission was proposed by Alexander Hamilton, passed by the First Congress, and signed into law by President George Washington. Like the Open Market Committee, the Sinking Fund Commission conducted open market purchases of U.S. securities pursuant to a statutory mandate. In this legislation, Congress specified that five principal officers would become ex officio members of the Sinking Fund Commission: the President of the Senate/Vice President, the Chief Justice, the Secretary of State, the Secretary of Treasury, and the Attorney General. The decision to bestow ex officio positions upon five persons who were already properly appointed principal officers is distinct from appointments concerns raised by the Open Market Committee. Still, the Sinking Fund Commission’s ex officio provisions suggest that some members of multi-member agencies may serve without meeting Appointments Clause requirements for executive officers.

Consider the Chief Justice. Chief Justice Jay was first appointed to an Article III office outside of the executive branch and performed judicial duties that had nothing to do with the Sinking Fund Commission’s open-market purchases of U.S. securities. The new duties Congress assigned as a Sinking Fund Commissioner were not germane to his existing judicial duties or even duties within the judicial branch. It would seem that the Chief Justice served on the Commission without a second appointment qualifying him to be an executive officer. The historical record does not clarify whether the Chief Justice’s role was permissible because he served alongside other properly appointed executive officers, or because the Commission’s open-market purchases were quasi-private actions that did not involve significant authority of the United States. Either way, Chief Justice Jay’s service on the Commission without an appointment to an executive post suggests that the limited appointments process for regional Federal Reserve bank presidents is also permissible.  

Posted by Christine Chabot on January 20, 2020 at 10:17 AM in Constitutional thoughts, Legal History | Permalink | Comments (1)

Securing Constitutional Change

The 22nd Amendment and its provision for presidential term limits has a neat bit of constitutional circumlocution in it to avoid “burdening” that Document with the filthy particulars of a proper noun, specifically, Harry S. Truman.  First, the Amendment articulated a general rule: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once.”

Then, the Amendment carves out an exception: “But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.” The category the exception defines has only one person within it. It never mentions Truman by name, but sure enough it applies only to him as the person who held the office of President when Congress proposed the 22nd Amendment on February 6, 1947.

Beyond this curious attention to form, this Amendment embodies pragmatic wisdom when thinking about securing future amendments. It is clear enough why Republicans would favor the 22nd Amendment after the breach of the two term so-called "tradition" with FDR and Truman's succession after FDR's death. But why would any Democrat support an amendment that term limited an incumbent Democratic President in an apparent partisan sally against FDR? To win the support of enough Democrats in Congress and the state legislatures, Truman was grandfathered. The present addressed, Democrats looked beyond that horizon to consider (i) the uncertainty of a possible future where a Republican president could potentially serve multiple terms and (ii) the wisdom of lengthy presidential tenures generally. The House and the Senate voted to pass the amendment with Democrats crossing over to join Republicans in the bicameral supermajorities.

Constitutional change requires: (1) addressing upstream political constraints of the status quo, through strategies that "buy out” incumbents whose short term political oxen would otherwise be gored, thereby making change unlikely under supermajority regimes; and (2) relying on uncertainty, such as occasionally created by futurity (or distant futurity), in order to place parties in an original position behind a veil of ignorance, at least for those changes that lack any clear substantive political valence beyond the short run. In this way, supermajority rules privilege incumbents and provide them leverage in any political bargaining, but uncertainty resulting from futurity can aid parties in thinking evenhandedly about political principles. That's not to say partisanship disappears, but this kind of strategy can peel away enough moderates on the margins to allow change to occur. As one detailed academic account explains (JSTOR subscription required), several Democrats in the House and in the Senate as well as in the state legislatures crossed over to support the amendment.

Continue reading "Securing Constitutional Change"

Posted by T. Samahon on January 20, 2020 at 08:00 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (3)

Sunday, January 19, 2020

The Thirteen Amendment and Criminal Convictions

I want to flag an interesting new article by James Gray Pope in NYU Law Review. Professor Pope does terrific work on Reconstruction, and I want to digest this one before discussing the implications for the Fourteenth Amendment. Here is the Abstract:

Judging from present-day legal and popular discourse, one might think that the Punishment Clause of the Thirteenth Amendment has always had one single, clear meaning: that a criminal conviction strips the offender of protection against slavery or involuntary servitude. Upon examination, however, it appears that the Amendment’s Republican framers took an entirely different view. It was the former slave masters and their Democratic allies in Congress who promoted the interpretation that prevails today. From their point of view, the text clearly specified that, once convicted of a crime, a person could be sold into slavery for life or leased for a term at the discretion of state legislatures and officials. But contemporary Republicans emphatically rejected that reading. They held that convicted persons retained protection against any servitude that was inflicted not as a punishment for crime but for some non-penological end, such as raising state revenue, generating private profits, or subjugating black labor. Within a few months of the Amendment’s ratification, the Republican majority in the Thirty-Ninth Congress had outlawed the early, race-based forms of convict leasing. When that proved insufficient, the House passed a bill outlawing race-neutral convict leasing, which the Senate postponed when the focus of Republican strategy shifted to black voting rights. 

The Republican reading faded from view after the Democratic Party regained control of the Deep South. For several decades, white supremacist regimes incarcerated African-American laborers en masse and leased them to private employers without facing a serious Thirteenth Amendment challenge. Present-day scholars sometimes treat this silence as evidence that the Amendment authorizes such practices. Courts similarly honor the Democratic reading on the assumption it has always prevailed. So thoroughly has it triumphed that even prisoners’ rights advocates accept it as constitutional truth. 

Neither courts nor advocates have, however, taken into account the framers’ views. Their interpretation sank from sight not because it was wrong but because Democratic paramilitaries terminated Reconstruction, freeing states to expand convict leasing and insulate it against challenges, constitutional or otherwise. Had the Republican reading been enforced during the era of convict leasing, it might have prevented one of the most barbaric and shameful episodes in United States history. And perhaps, if revived today, it might yet accomplish similar results. Nothing in the text, original meaning, or Supreme Court jurisprudence of the Punishment Clause blocks that path. 

Posted by Gerard Magliocca on January 19, 2020 at 09:12 PM | Permalink | Comments (3)

Law Professors, Lawyers, and Ethics

It was announced last week that Harvard law professor Alan Dershowitz has been added to President Trump’s impeachment legal team.  As Dershowitz has told multiple media outlets, it will be his role to argue that, as a constitutional matter, a President cannot be impeached unless he committed a crime.  I assume that Dershowitz’s faculty position at Harvard will give his argument additional gravitas and authority in the eyes of at least some Senators and some members of the public.

When Dershowitz appeared on CNN’s State of the Union this weekend, CNN legal analyst Jeffrey Toobin took great pains to point out that Dershowitz was making his argument about what the Constitution requires as an advocate for Trump, not as a neutral expert.  Dershowitz seemed surprised and annoyed that Toobin made such a big deal about the issue. Dershowitz readily conceded that of course he was “just a lawyer” who will be acting as an advocate, not as an expert witness. (You can see the exchange here, beginning around the one minute mark.)

But we shouldn’t overlook why Toobin thought it was important to emphasize this point on national TV.  Dershowitz is routinely identified as a constitutional scholar and a Harvard law professor. Those titles allow him to claim expertise. It gives him an air of neutrality that he wouldn’t have if he were appearing only as a lawyer. As Toobin implied, because of Dershowitz’s position at Harvard and because he will be making an argument about how to interpret the Constitution, people might mistake Dershowitz as a neutral expert.  Indeed, I imagine that it is his position at Harvard that has (at least in part) given Dershowitz the large public platform that he enjoys and that led President Trump to ask Dershowitz to join his legal team.

I’ve previously expressed concerns about law professors offering opinions on matters of public discussion.  In particular, I have concerns about law professors offering opinions outside of their areas of expertise—concerns that have only grown with the current impeachment.  But I think that Dershowitz’s joining the President’s legal team as a lawyer in order to make a particular legal argument sets up a conflict between his ethical obligations as a lawyer and his ethical obligations as a scholar. 

I believe that Dershowitz, as a scholar, has obligations of sincerity, candor, and openmindedness.  And I think that those scholarly obligations may conflict with his ethical obligation as a lawyer to “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.”   For example, I don’t see how a law professor who has been specifically asked to represent an individual in order to make a particular legal argument about a difficult legal question, such as the original meaning of a particular constitutional provision, can say that he approached that question in an openminded fashion.  He was retained to arrive at a particular conclusion; that seems like the opposite of openmindedness to me.

Continue reading "Law Professors, Lawyers, and Ethics"

Posted by Carissa Byrne Hessick on January 19, 2020 at 04:54 PM in Carissa Byrne Hessick | Permalink | Comments (12)

Friday, January 17, 2020

Faithless Electors

As if the Supreme Court did not have enough on its plate, the Justices today agreed to decide whether states can punish presidential electors who vote contrary to state law. (Personally, I think that the answer is no, but leave that aside for a moment.)

One thing that the Court could say, I suppose, is that Congress can decline to count the votes of faithless electors but that states lack the power to regulate these officials. While Congress has always counted faithless elector votes as valid, there have been debates in Congress over some of those counts. I don't know enough about those debates to reach a firm conclusion, but you might say that Congress in some sense can decide what to count.

Posted by Gerard Magliocca on January 17, 2020 at 07:55 PM | Permalink | Comments (0)

Two from the Fifth Circuit

From John Ross' invaluable weekly round-up of federal court of appeals decisions at Volokh Conspiracy come two from the Fifth Circuit.

Continue reading "Two from the Fifth Circuit"

Posted by Howard Wasserman on January 17, 2020 at 07:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

*Does* Paul, Weiss "Need" Harvard Law?

No doubt there are many things one could say about this Harvard Law School student protest against Paul, Weiss designed to urge it to drop ExxonMobil as a client. Many of those observations would depend on one's substantive and political views and would be too obvious to need saying and convincing only to one's allies, so let's skip it. (Although one want to might read the actual opinion dismissing claims against that company and ask whether the merits of some of that litigation are that great. State attorneys general have been known from time to time to file lawsuits that have more to do with political optics and the questionable use of state power than with an interest in actually seeking a remedy.) And the first thing I would say is that of course the students are free to urge whatever they want, whether they represent one or one hundred percent of the student body. But I would like to ask two questions.

The first is to question the supposition put forward by a HLS law student (who I can hardly blame either for framing things this way or believing the statement, given our culture): that the students recruited by big firms at these or any other elite law school are "the future lawyers they need to stay on top of their field." I don't doubt their intelligence: in my brief time studying and teaching at such schools, I really did find the students highly smart, talented, and hard-working, and this was true not just of the best students but of a large percentage of them. The most relevant comparison between law school student bodies is with the "middle" of the class, and the middle at these elite schools is very impressive. But I have found that the same thing is true, at a minimum, of the top students at every law school I have taught at, no matter where it is on the US News rankings. Students choose to go to different schools for many reasons. Some have family obligations or work obligations, or financial limitations. Some have extraordinary talents but, perhaps because they are first-generation students who don't come from professional-managerial-elite families, lack social capital of a certain kind. They haven't been told about the advantages that accrue disproportionately to going to an elite school, or that employers economize on search costs by sticking with a few conventional schools, or that judges do the same in selecting the clerks who will end up commanding job-seeking advantages. But they bring other advantages that some of the students at top schools may not have. They are hungry and ambitious. They don't take such job opportunities for granted. They don't take such salaries for granted, and think working their asses off in return is not an injustice or inhumanity but a reasonable return and an enormous opportunity. They may be less likely to leave after three or four years and thus less likely to take for granted the enormous early investment made in them by the firms. They may get their sense of moral and social identity and satisfaction elsewhere than their jobs and job status--say, in working through a church or local community or in many other places.   

When I worked at one of the big firms and was involved in summer associate hiring, at least some colleagues (not all, of course) wouldn't even deign to look at an applicant who didn't come from one of a very few schools. I'm not sure they had a reason for this, other than convention and a narrow band of life experience limited to those schools. But despite the added search costs, and keeping in mind that many students at top schools surely view things differently than the negative caricature of entitlement I've offered, it has long seemed to me that top law firms looking not just for talented students but also for a good long-term investment in the future of their firm would be better off picking off the top students at the schools they most often seem to ignore. They might have to invest more in certain kinds of training. But they would still get terrific raw material, and might find that these hires would have more commitment, gratitude, ambition, and seriousness about the work than some of their conventional hires. A typical rejoinder is that there is a benefit to these firms in having students from the top schools. It reassures clients that they are getting the best of the bet and makes these firms look as elite as their competitor firms. Such hires are thus safe picks. But that's just one factor to consider, and it must be balanced against the actual benefits they might get from going against the grain. A firm that eschewed the safe and comfortable path and took a flier on top students at these non-"top" schools might find that such a strategy would enable it to do great instead of just well. In any event, and without meaning any ill will to the students at the usual top schools, it is far from clear to me that these are the students these firms "need." This is common rhetoric and a common assumption, but it shouldn't be taken for granted.

My second question is: What, exactly, is moral seriousness? The position of these students has a high cosmetic appearance of ostensible moral seriousness. But it might also be seen as an example of the kinds of phenomena that have been discussed in connection with the meritocracy: of actual or self-described progressives who are "under meritocracy’s thumb . . . captives who embrace their captor, through a sort of ideological Stockholm syndrome,” and whose complaints and prescriptions tend to demand certain changes (especially regarding horizontal equality) while leaving other perquisites and prerogatives (especially regarding questions of vertical equality and social class) blissfully under-examined and undisturbed. It may be nice to dream of and work for a world in which all owners of BMWs or Teslas, or residents of Georgetown or Chevy Chase or Palo Alto, represent a remarkably diverse group of people. But it seems a little incomplete, and rather conveniently so. I have no objection as such to worrying about the representation of a particular client or about arbitration agreements for summer associates. But if that is enough to buy one off, while leaving a hundred other corporate clients in place and unquestioned and not, say, demanding that secretaries and mailroom workers get paid as well as or better than summer associates, then it seems to me that this form of moral seriousness might have as much or more to do with one's desire to have one's luxurious cake, and feel (or look) virtuous while eating it, than with a more genuine and thoroughgoing form of moral seriousness.                   

Posted by Paul Horwitz on January 17, 2020 at 10:05 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, January 16, 2020

Alexander Hamilton and Independent Monetary Policy

Many thanks to Howard and PrawfsBlawg for the opportunity to post. I’ll start with my latest paper, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies. The discussion should be of interest to anyone concerned with executive power, finance, originalism, the longstanding constitutional debate over independent agencies, or Alexander Hamilton. (Although you will have to check out Tuan Samahon’s interesting post for Hamilton’s views on impeachment.)

The Federal Reserve’s independent monetary policy decisions have greatly vexed President Trump. The President’s complaints happen to align with leading originalists’ arguments that the Federal Reserve and other independent agencies are unconstitutional novelties of the twentieth century. My paper demonstrates that the Fed’s independent monetary policy has an impeccable originalist provenance in the Sinking Fund Commission. The Commission was an obscure agency proposed by Alexander Hamilton, passed by the First Congress, and signed into law by President George Washington in 1790. Like the Federal Reserve, the Sinking Fund Commission conducted open market purchases of U.S. securities pursuant to a statutory mandate. Hamilton, Washington, and the First Congress all approved an independent structure for the Sinking Fund Commission. Their decisions to create an independent Commission with five members to check one another — and to include the Vice President and Chief Justice as ex officio Commissioners who could not be replaced or removed by the President — belie the notion that such independence violated the newly minted Constitution.

In its “Act Making Provision for the Reduction of Public Debt,” Congress delegated purchases of debt, in the form of U.S. securities, to an independent, multi-member body comprised of “the President of the Senate[and Vice President], the Chief Justice, the Secretary of State, the Secretary of the Treasury, and the Attorney General . . . .” ch. 47, 1 Stat. 186 § 2 (1790). Thus, five founders who occupied key principal offices became ex officio members of the Sinking Fund Commission: Vice President John Adams, Chief Justice John Jay, Secretary of State Thomas Jefferson, Secretary of Treasury Alexander Hamilton, and Attorney General Edmund Randolph. The Act provided for purchases “under the direction of” these Commissioners, “who, or any three of whom, with the approbation of the President of the United States, shall cause the said purchases to be made . . .” Id. Congress directed the Commission to make purchases “best calculated to fulfill the intent of [the] act,” which was designed to both “reduc[e] the amount of public debt” and benefit the creditors of the United States “by raising the price of their stock” in U.S. securities. Id. at §§ 1-2.

The Commission’s multi-member structure, appointments, and tenure provisions insulated the Commissioners from presidential control. Congress gave the President no say in appointing members of the Commission when it specified ex officio Commissioners. Although the President had already appointed the Attorney General and Secretaries of Treasury and State to ostensibly related executive offices, the President never appointed the Chief Justice or Vice President to executive posts. Nor did the President have any power to remove the Vice President and Chief Justice. This structure left the President no recourse if the Vice President or Chief Justice refused to perform their basic duties as Commissioners. Such neglect of duty actually occurred when Chief Justice Jay refused to set aside his judicial work for a crucial Commission vote in 1792.

The Act further checked the President by requiring at least three Commissioners to approve any purchases the President may have desired under the Act. The Vice President and Chief Justice did not answer to the President, and the three remaining executive officers on the Commission (Hamilton, Jefferson, and Randolph) openly voted against one another rather than following a singular executive directive. The Commission’s multi-member structure trumped any opportunity for executive direction and facilitated independent decisionmaking.

The Sinking Fund Commission provides a founding-era precedent for the Federal Reserve. Like the Sinking Fund Commission, the Federal Reserve’s Federal Open Market Committee is free to decline presidential requests to purchase U.S. securities or take other action designed to lower interest rates. The Sinking Fund Commission shows that independent monetary policy decisions date all the way back to the founding of our Republic.

Posted by Christine Chabot on January 16, 2020 at 07:11 PM | Permalink | Comments (3)

Universal consent decrees

Two U Conn students who were prosecuted and sanctioned by the university for violating the school policy against "disruptive behavior" for uttering a racial slur have filed suit in the District of Connecticut, claiming the school sanctions violate the First Amendment. (H/T: Eugene Volokh). The case should be easy as a First Amendment matter--the students seem to have shouted the slur into the ether, not directed at anyone and not accompanied by any threatening conduct.

But it is procedurally interesting, potentially complicated, and seemingly wrong. After the jump.

Continue reading "Universal consent decrees"

Posted by Howard Wasserman on January 16, 2020 at 04:47 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Impeachment and the Direct Election of U.S. Senators

My thanks to Prawfsblawg for permitting me this guest writing stint. As a long-time reader, I have enjoyed others’ insights and now hope to contribute a few worthwhile nuggets during the next few weeks.

What type of impeachment trial can we reasonably expect in a Senate constituted by directly elected senators? As other commentators have observed (e.g. Jonathan Adler and Carissa Byrne Hessick), Alexander Hamilton anticipated the possibility that the House process could degenerate into a partisan food fight where House members, laying all merits aside, rush to defend or rise to oppose, a President along party lines. Nonetheless, Hamilton thought the Senate, constituted as a court of impeachment, would act as "a tribunal sufficiently dignified, or sufficiently independent" to save the process from a crassly partisan fate ruled by political bosses.

The impeachment of a President entails different political calculations than impeachment of a judicial officer, and the case of presidential impeachment probably more sorely tests the procedure's limits than the relatively lower stakes of a U.S. district court judge. It's unsurprising that many judicial impeachments, say, of an Alcee Hastings, a Walter Nixon, or a Thomas Porteous, occasion little partisan fanfare.

Continue reading "Impeachment and the Direct Election of U.S. Senators"

Posted by T. Samahon on January 16, 2020 at 08:00 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (4)

Wednesday, January 15, 2020

Privileges Or Immunities Palooza

The new issue of the Notre Dame Law Review is out. In that issue you will find three terrific papers about the Privileges Or Immunities Clause of the Fourteenth Amendment, plus a fourth one by my (which I decline to characterize). Check them out if you have any interest in this subject.

Posted by Gerard Magliocca on January 15, 2020 at 01:16 PM | Permalink | Comments (1)

Upcoming guests

I am thrilled that we are going to have some guest-prawfs joining us in the coming weeks.

Beginning later this month and into February, we will be joined by Tuan Samahon (Villanova) and Christine Chabot (Loyola and a fellow former Jane Roth clerk). Welcome to both and I hope you enjoy their contributions.

In late February and March, we will have an on-line symposium on Ben Barton's new book, Fixing Law Schools: From Collapse to the Trump Bump and Beyond (NYU). More details to come.

Posted by Howard Wasserman on January 15, 2020 at 08:32 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, January 13, 2020

Why not just have oral argument?

Bloomberg has a story (behind paywall) Judge Alan Albright of the Western District of Texas and some of his standing orders and practices. Among them: The use of "audio briefs," recordings of briefs longer than 10 pages, which the judge listens to while driving and biking.

I am in favor of greater orality in litigation. But part of the benefit of more orality is more bench presence and more contact between the court and the advocates. This seems to provide the worst of both worlds--the looser argumentation of oral compared with written advocacy, but without the presence and contact.

Posted by Howard Wasserman on January 13, 2020 at 11:02 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, January 12, 2020

What we mean by one-sided

Reviews for the documentary "No Safe Spaces"--an exploration featuring Adam Corolla and Dennis Prager of anti-conservative speech restrictions on college campuses--have divided along expected partisan lines. Conservative publications praise it for exposing anti-conservative-speech biases on campus, liberal publications decry its one-sidedness in criticizing campus liberals as censorious, without considering the problems that racist, sexist, etc., speech causes on campus.

This column is the first I have seen calling the film out for a different one-sidedness: Not engaging with equal-and-opposite efforts by conservative groups and leaders--including the President--against liberal speech. The author labels this "free-speech tourism," waving the banner of free speech when their political compatriots are attacked, while seeking to impose similar restrictions on speakers they find political objectionable. Thus, the film celebrates supposed free-speech champions who have called for de-platforming of liberal speakers and have sued critics on specious defamation claims. In an interview described in the piece, Corolla pleaded ignorance to censorship efforts from the other side, which should show a lack of seriousness or understanding of the project.

The combination of this column and left-leaning criticism of the film reveals where we are: Much of the right is not serious about its First Amendment advocacy, while much of the left does not want to talk about, or use, the First Amendment.

The piece closes on a nice point about free speech:

The doc's inability to grapple with growing animosity toward free speech on both sides of the political aisle shows just how hollow these concerns among conservative "free-speech tourists" are. * If you don't call out your own side or loudly defend the First Amendment rights of your political enemies, you're not a free-speech warrior. You're a free-speech tourist.

Posted by Howard Wasserman on January 12, 2020 at 04:09 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Saturday, January 11, 2020

James Pogue on "The Decline of Nonfiction in the IP Era"

I quite enjoyed this piece from The Baffler. It may be overstated and over-amped, but that is par for the course for The Baffler and most magazine journalism; it is still enjoyable even if it should be read, like everything else, skeptically. The contemporary tendency, including for legal academics, is to celebrate the multi-platform world in a way that echoes the now purportedly dated and much-mocked earlier burst of enthusiasm about "synergy." Seeing the parallel may perhaps lead us to mock those days a little less, to see some of the undue utopianism and lack of self-awareness of the modern tendency more clearly, and to see more clearly the value of institutions (in the Mary Douglas sense), the downsides of blurring or eliminating them, and the degree to which our current enthusiasms are more consumerism than connoisseurship.

Pogue's piece does not argue that nonfiction is dying or dead. If anything, it is thriving in one sense, as the profusion of narrative podcasts, among other things, suggests. (Although I'm not a fan of those podcasts, and think they are highly mannered--God save me from another post-This American-Life voice, with its uptalk and other vocal affectations, male or female, or another somber-music dramatic pause--and mostly trivial, and are bringing back practices that we rightly came to think of as ethically dubious in journalism.) Rather, he argues that "[w]e are now in the mature stage of a book-to-film boom that is quietly transforming how Americans read and tell stories—and not for the better." And not just books, of course, but magazine articles, podcasts, and other forms of nonfiction. 

In discussing how the narrative-industrial complex affects nonfiction, he writes:

[T]he book-to-film complex is bolstered by two imperatives that now govern our nonfiction almost without exception: foreground story as an ultimate good, ahead of deep personal insight, literary style, investigative reporting, or almost any other consideration that goes into the shaping of written work; and do not question too closely the aristocracy of tech and capital that looms over us, the same people who subsidize the system that produces America’s writing....The power of book-to-film in American writing is in how it sits at the edge of the consciousness of every writer, editor, and podcast producer, a dark energy of the entertainment market that drives wealth and reward. You just have to tell a gripping story and leave the powers-that-be unnamed.

And let me quote some more:

This is more or less how most editors I know describe what they want these days. One—clearly hoping to land stories that would get bought for film since he was hardly offering enough money to make writing a feature for him worth it otherwise—recently sent me a call asking for “ripping yarns, stories of true crime, of loves lost and won. Rivalries in sports, tech, and entertainment. Chronicles of dreams realized and broken. We want to take readers on spell-binding adventures, introduce them to powerful jerks they don’t know (or don’t know enough about), weirdos, eccentrics, and folks in search of redemption.”

This email almost made me throw my laptop off my balcony. We all know this kind of storytelling, even if we don’t exactly have a name for it. It is your non-friend’s favorite true-crime podcast. It is the magazine story that the documentary you just watched was based on, and it is the novel that was based on the real event that the even-better magazine piece described and that will soon be a television show. It is the books that now dominate the bestseller lists by writers like [David] Grann or Patrick Radden Keefe or Gillian Flynn, which have all been pre-engineered to read like movie thrillers long before anyone even sat down to start on the script.

We think less about what this kind of writing isn’t. These editors asking you to rip the yarn never talk about politics beyond a possible desultory nod toward wanting stories from writers of “diverse backgrounds.” They do not talk about voice or literary style. They do not ask for excavations of an inner life or the forces of history or any of the things that once would have made a work of writing lasting. A writer may find clever ways to worm these things in, but in the end they are ancillary goods. The desire is always for work that puts narrative ahead of all other considerations, and this is the kind of writing that now dominates our literature: it describes the world without having a worldview. Which is a workable definition of the kind of writing most easily converted into IP....

At least some of my peers are now handing over their working lives to producing cynical content rigged to fit the desires of streaming services, which, when you think about it, is a small tragedy for a world as fucked as ours. Most of the good writers are not. But how could you not at least think about these imperatives when a strange new amalgam of Hollywood and tech offers the greatest rewards for a hit second novel and when magazines pay below rates that were standard three decades ago?...

We have a perfectly good word for the kind of writing and reporting this all encourages: trash. Trash is how we once thought of work designed above all to fit commercial demands and generic narrative forms. The imperative to produce it isn’t going away soon. But I don’t think we have to accept it. 

Very enjoyable. 

  

Posted by Paul Horwitz on January 11, 2020 at 11:07 AM in Paul Horwitz | Permalink | Comments (0)

Friday, January 10, 2020

Baude and Chilton offer advice to scholars (junior and otherwise)

Great posts by Will Baude and Adam Chilton advising junior scholar--and, really, all scholars. A good way of thinking and talking about the scholarly game and what we do.

Posted by Howard Wasserman on January 10, 2020 at 12:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)