Friday, November 29, 2019

More state action and private vendettas

I wrote awhile back about a case in which police officers took private action against a citizen (trashing his car) based on a personal vendetta resulting from a professional dispute (the citizen filed a departmental complaint about them). The Seventh Circuit found no state action in an analogous case. A citizen shouted at a police officer while he was making an arrest and criticized the officer (and perhaps threatened his family) on Facebook, prompting the officer to file a criminal complaint with a fellow officer, prompting that officer to arrest the citizen. The court held that, although the original interaction came when the officer was on the job, he acted as a private citizen in filing a criminal complaint with another officer, who then pursued those charges.

The Seventh Circuit's analysis would reject the potential claim in the earlier case. I imagine the court would say the officers acted as private citizens in trashing the guy's car and it is not enough that the dispute traces to official police conduct.

Posted by Howard Wasserman on November 29, 2019 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, November 27, 2019

JOTWELL: Azad on McAlister on unpublished dispositions

The new Courts Law essay is a guest submission from Ryan Azad (a clerk on the California Supreme Court), reviewing Megan McAlister, "Downright Indifference": Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. 1 (2019), arguing that unpublished opinions should at least explain the reasoning for the benefit of the (often pro se) litigants.

Posted by Howard Wasserman on November 27, 2019 at 10:55 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 26, 2019

Lawsky Practice Problems - On-Line Tax Teaching and Learning Tool

I've put together an on-line teaching and learning tool for introductory tax courses at

https://www.lawskypracticeproblems.org/

Some questions and answers follow after the break.

Continue reading "Lawsky Practice Problems - On-Line Tax Teaching and Learning Tool"

Posted by Sarah Lawsky on November 26, 2019 at 05:18 PM in Tax, Teaching Law | Permalink | Comments (3)

Monday, November 25, 2019

Organizing Fed Courts

My Fed Courts class ended this week. For the second straight year, I ran out of time and was unable to reach the last section, on  Congressional Control over the Federal Courts; this covers Klein and Plaut, as well as the fun theoretical stuff on jurisdiction-stripping, court-packing, etc.

After the jump is the broad strokes of my syllabus. I would welcome thoughts of what I can or should cut to give me the two days I would need to include this final section. Or, alternatively, is the congressional control stuff the least important and it falling by the wayside, while unfortunate, is less problematic than if I skipped something else.

By way of background, I teach Fed Courts as (in the words of one former student) "the love child of Con Law and Civ Pro." It is a federal-court litigation course, interspersed with some constitutional and judicial theory.

Continue reading "Organizing Fed Courts"

Posted by Howard Wasserman on November 25, 2019 at 11:44 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Eric Rasmusen, IU, and the First Amendment

For those who missed it, Indiana-Bloomington Provost (and law professor) Lauren Robel issued a public statement excoriating business professor Eric Rasmusen's publicly expressed views about women, racial groups, LGBTQ people, and others, while insisting that the First Amendment prevented the school from firing the tenured professor. The school did prohibit Rasmusen from teaching single-section required courses and imposed special blind-grading obligations. Rasmusen has responded. Many, such as Gregory Magarian (Wash. U.) on the blog Lawyers, Guns, and Money saw this as counter-speech in action. Brian Leiter doubts that a university administrator should comment on a faculty member's speech--he argues Robel should have stopped at "the First Amendment protects this speech, Rasmusen does not speak for IU, and we are monitoring to ensure compliance with anti-discrimination laws. Josh Blackman questions whether there is a First Amendment difference between firing a professor and hampering his teaching by reducing the size of his classes--either is a sanction imposed because of his speech.

On a different note, the Magarian interview is interesting as a wide-ranging discussion of where the First Amendment is trending. Note particular his discussion of Citizens United as not quite the bogeyman everyone says.

Posted by Howard Wasserman on November 25, 2019 at 10:59 AM in First Amendment, Howard Wasserman | Permalink | Comments (2)

The Role of Individualization in Kansas v. Glover

Earlier this month, the Supreme Court heard oral argument in Kansas v. Glover, a case about when police have reasonable suspicion to stop vehicles that are owned (but not necessarily being driven) by people with suspended licenses. I want to draw attention to an underappreciated strand of argument in this case—namely, the role of “individualized” or “particularized” evidence. In short, the justices and their commentators have focused on whether police had a reliable or testable basis for their suspicion; but a lack of individualized evidence may actually be the more serious and intractable problem.

Continue reading "The Role of Individualization in Kansas v. Glover"

Posted by Richard M. Re on November 25, 2019 at 08:30 AM | Permalink | Comments (1)

Sunday, November 24, 2019

A pleading question

The Comcast argument from two weeks ago featured competing hypotheticals designed to show proximate cause under § 1981, but instead showed the problem of pleading oneself out of court. Following some comments on my prior post, I have been thinking about both (which I would like to use in Civ Pro next semester).

Continue reading "A pleading question"

Posted by Howard Wasserman on November 24, 2019 at 11:15 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, November 23, 2019

Protesting Harvard-Yale (Updated)

Yale_Harvard_Protests-e1574537307629The second half of the Harvard-Yale Game was delayed for 48 minutes when students from both schools rushed the field to stage a climate-change protest calling for both institutions to divest from oil, gas, and other energy investments. Many protesters eventually left the field, while the last stragglers were escorted by police; I do not know how many students were arrested. [Update: This report says 42 students were charged with misdemeanor disorderly conduct]

Just to be clear (and putting state action to one side);

• The students should have been untouchable had the protest remained in the stands. While climate change has nothing to do with football, chanting and displaying signs about divestment is not inconsistent with cheering and displaying signs at a football game.

• The students were properly subject to arrest (reports suggest some wanted to be arrested). While engaging in expressive behavior, they did so in a place they had no right to be. This is civil disobedience--breaking the law, and accepting the consequences, to draw attention to the cause and the protest.

• This demonstrates why politics and speech are inseparable from sports. No one would be talking about a few hundred Ivy League students protesting climate change in the middle of campus. The protest now is a national story. And it is part of the story of a great football game--Yale won 50-43 in Double-OT, staging a late-game comeback, clinching the victory in darkness (no lights at the Yale Bowl), and claiming a share of the Ivy League title.

Posted by Howard Wasserman on November 23, 2019 at 04:45 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, November 21, 2019

Bribery, Impeachment, and the Common Law

Earlier this morning I published an online essay with The Atlantic about how the crime of bribery fits into impeachment. The editors at The Atlantic made me take out a lot of nerdy stuff about legal treatises.  And while I totally understand why that level of detail probably isn’t appropriate for a general audience, I wanted to offer that level of detail to the other law professors and lawyers out there who care about how we ought to understand bribery as it relates to impeachment.

The Constitution specifically lists bribery as grounds for impeachment.  Article II, section 4 says: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  I’m intrigued by the use of the word “shall” in that Clause.  (Does that mean it's mandatory rather than a matter of discretion?!)  But I’m a criminal law professor, not a constitutional law expert, and so I want to try and stay within my area of expertise.

Because there is a credible argument that President Trump committed bribery when he withheld military aid to Ukraine in return for announcements of political investigations, the public obviously cares what the word bribery means in the Constitution.  I’ve seen a number of people offer opinions on the issue. And while I do not think that there are clear cut answers here, I think that the opinions that are being bandied about are insufficiently nuanced, if not wrong.  So here is my more nuanced take.

Continue reading "Bribery, Impeachment, and the Common Law"

Posted by Carissa Byrne Hessick on November 21, 2019 at 11:56 AM in Carissa Byrne Hessick, Constitutional thoughts, Criminal Law | Permalink | Comments (5)

Wednesday, November 20, 2019

Leavenworth, ep.5: The Fight Continues

Final post from Eric Carpenter (FIU)  on Leavenworth. Thank to Eric for doing this.

Here are links to the prior posts: Prologue; Episode 1; Episode 2, Part I; Episode 2, Part II; Episode 3; Breaking News; Episode 4.

The series ends without a complete answer from the director on why the far-right has embraced Lorance (or Golsteyn or Gallagher). I think this is the reason: the far-right rejects counter-insurgency doctrine in general—even if they don’t recognize that they do.

The producers provide some new insights into this theory. They bring in some Vietnam vets to talk about how good it was back in the day when they could shoot up everything in sight. That wasn’t quite the case in Vietnam, but the rules of engagement then were very broad in some parts of the country for some periods of time (in some cases, those rules may have violated the laws of war). In contrast, while Lorance was in Afghanistan, the rules of engagement were as restrictive as they can get, only allowing force in self-defense.

Continue reading "Leavenworth, ep.5: The Fight Continues"

Posted by Howard Wasserman on November 20, 2019 at 11:40 AM | Permalink | Comments (0)

The Six Stages of Scandal

This old chestnut works for any political scandal and for this impeachment (Hat Tip to Mickey Kaus)

Stage 1: It can’t possibly be true.

Stage 2: It’s not true.

State 3: You can’t prove it’s true.

Stage 4: Why are you trying to prove it’s true?

Stage 5: It’s disgusting that you’ve proved it’s true.

Stage 6: What’s the big deal anyway?

Posted by Gerard Magliocca on November 20, 2019 at 09:34 AM | Permalink | Comments (4)

Tuesday, November 19, 2019

I'm old

I taught Hicks v. Miranda in Civil Rights today. A student was explaining Miranda's close connection to and interest in the state in rem civil forfeiture action as a basis for Younger abstention. The following exchange occurred:

Student: They were his DVDs.

Me: It was 1975.

Student: They were his videotapes.

Me: It was 1975.

[Student stares blankly]

Posted by Howard Wasserman on November 19, 2019 at 12:37 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (5)

Monday, November 18, 2019

Martin Van Buren's Memoir

One of the most interesting sources that I'm working with in the Bushrod Washington biography is Martin Van Buren's autobiography. Here is a wonderful passage in which he shares his thoughts about Madison, Bushrod, and Chancellor Kent.

In my experience of men I have never known three men who received so nearly the same stamp from the hand of Nature as James Madison, Bushrod Washington and James Kent. In the simplicity, sincerity and inoffensiveness of their dispositions they were identical; each owned a delightful cheerfulness of temperament and anunvarying desire to develop that heaven-born quality in others. With a buoyancy of spirits and manners sometimes bordering on levity, they never for a moment hazarded the respect of their friends or of those about them. Mr. Madison's life having been devoted to politics he was more reserved in regard to public affairs, but upon all other subjects they spoke their sentiments with the simplicity and directness of children. Kent possessed more genius and learning than his brother Judge, but Washington's mind was of a highly respectable order.

Mr. Emmet, in speaking to me of Kent, said that he was a learned and able Judge—but a poor Jury-man. The justice of this distinction frequently occurred to me. Elevated to the Bench at an early age, and ardently devoted to domestic life, he had mixed but little with the world and was proportionally disqualified to sift and weigh testimony. This was strikingly exhibited at the commencement of his official duties as Chancellor. Being obliged in most cases to decide both law and fact, and too liable to be led into extremes, by his detestation of fraud, several of his first decrees failed to stand the test of review in the Court for the Correction of Errors. At the first or second Term of that Court, not fewer than six of his Decrees (speaking from memory) were reversed with the concurrence of his former brethren of the Supreme Court.

Having occasion to call at his office the next morning on professional business, he displayed, in my presence, what, in almost any other man, would have been regarded as undignified violence of temper and manner, but would not, to one who knew him well, bear any such construction. The reversals of the preceding day having been referred to, he broke out into a mock tirade against the Judges, to the following effect;—"They are unfit for their places, Mr. Van Buren; You know that they are! Spencer and Van Ness are able enough, but instead of studying their cases they devote their time to politics! You know that, as well as I do! As to Judge Yates"—raising his hands—" I need say nothing! You should roll him back to Schenectady!" . . . "And as to my cousin Platt! He is only fit to be Head Deacon to a Presbyterian Church, and for nothing e1se!"

Posted by Gerard Magliocca on November 18, 2019 at 08:38 PM | Permalink | Comments (3)

Sunday, November 17, 2019

Presidential Impoundment

One aspect of the impeachment inquiry that is not getting enough attention is that the President almost certainly broke the law by holding up the Ukraine aid no matter what his reason was. The money was appropriated by Congress. All of the statutory conditions for releasing the funds were met. But the money was not released for months.

The Budget and Impoundment Control Act of 1974, which was enacted after President Nixon's aggressive impoundment of appropriated funds, says that Presidents must spend appropriated money within 45 days unless the specific appropriation says otherwise. If the money is not spent, then the President must explain himself and get Congress's approval for the refusal to spend. Needless to say, in this case the President did not explain himself to Congress and did not seek approval 45 days after the Ukraine aid was appropriated.

Impoundment itself is not an impeachable offense (at least when done once) but the act of impoundment refutes the argument that no laws were violated in this situation.

Posted by Gerard Magliocca on November 17, 2019 at 05:57 PM | Permalink | Comments (6)

Pleading yourself out of court and other thoughts on Comcast

Some thoughts after listening to arguments in Comcast, where the question was the causation standard ("but-for" or "motivating factor") for a § 1981 action.

• I did not understand the  argument from respondent (represented by Erwin Chemerinsky) that the standard could be motivating factor at pleading and but-for at trial or summary judgment. A motion under 12(b)(6) is supposed to ask whether, if everything the plaintiff alleges is true, the plaintiff can prevail--under whatever the controlling legal standard will be. It makes no sense--especially given the spin in Twiqbal--to allow a pleading to pass scrutiny when its facts could not meet the applicable standard.

The argument and questions seemed to conflate this with the distinct, and unremarkable, proposition that a plaintiff need not plead all the evidence she will have or use to prove her or claim. Or that a plaintiff should only be expected to plead what she can know or learn pre-discovery (an idea to which Justices Gorsuch and Kavanaugh, as well as Kagan, seemed receptive). Or that a plaintiff can prove her case with different evidence and different rationales than she pleads it.

Continue reading "Pleading yourself out of court and other thoughts on Comcast"

Posted by Howard Wasserman on November 17, 2019 at 11:50 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Leavenworth, ep. 4: Perspectives

The following is from my FIU colleague Eric Carpenter.

The timing of this episode is perfect. It covers pardons and the far-right’s efforts to get one for Lorance. The director shows how the right-wing media (primarily Sean Hannity) and Lorance’s supporters in Congress (primarily, Duncan Hunter—yes, the one under indictment) got the facts wrong and repeated these misrepresentations over and over and over again. And remember, this is where President Trump gets his information. The director includes a clip where Duncan Hunter says as much.

Continue reading "Leavenworth, ep. 4: Perspectives"

Posted by Howard Wasserman on November 17, 2019 at 09:31 AM in Criminal Law, Howard Wasserman | Permalink | Comments (1)

Saturday, November 16, 2019

Inexplicable decisions, in one post

The unifying themes of these decisions is that I heard about them yesterday and I do not understand.

Continue reading "Inexplicable decisions, in one post"

Posted by Howard Wasserman on November 16, 2019 at 03:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

All that is wrong with Twitter, in one story

In 2017, an undergraduate at a college in South Dakota joined the selection committee for the schools' Common Read program because she did not want a certain YA author's book included, because YA is not what college students should be studying, and preferred one of several books on social justice. Last week, the local paper runs a story about the Common Read program (2019 is its 10-year anniversary), including a quotation from that undergrad (who is now in grad school) about joining the committee.

The following ensues:

Continue reading "All that is wrong with Twitter, in one story"

Posted by Howard Wasserman on November 16, 2019 at 01:32 PM in Culture, Howard Wasserman | Permalink | Comments (0)

Leavenworth, Breaking News

The following is by my FIU colleague Eric Carpenter, who has been live-blogging the Starz documentary.

Yesterday, President Trump pardoned Clint Lorance, along with Major Matthew Golsteyn (charged with the summary execution of a detainee). He also ordered the promotion of Special Warfare Operator First Class Edward Gallagher to the grade of E-7, the rank he held before he was court-martialed for murdering a detainee (he was acquitted of that charge but convicted of another charge, and the grade reduction was punishment for that other charge).

This was a terrible decision. He basically ignored the advice of his military counselors and followed the advice of Sean Hannity, thereby politicizing a justice system that already has issues with public confidence. The current coverage (and the coverage from when he thought about doing this earlier in the year but backed down) lays out many of the reasons why this was a bad decision. Further, by taking these actions, Trump may have committed a war crime.

Continue reading "Leavenworth, Breaking News"

Posted by Howard Wasserman on November 16, 2019 at 11:14 AM in Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, November 14, 2019

Rehearing Petition in Gundy

Last Term, the Supreme Court decided United States v. Gundy. Or did it? 

The decision in Gundy was a plurality opinion by Justice Kagan, with a concurrence in the judgment by Justice Alito. Three Justices dissented and indicated that they would say that the statute in question was invalid on non-delegation grounds. Why were there only eight Justices? Because the case was argued before Justice Kavanaugh was confirmed.

In July, counsel for Gundy filed a petition for rehearing. The petition argued that the case should be reheard by the full Court in light of Justice Alito's concurrence, which suggested that he favored the dissenting position in principle but did not want to leave the Court equally divided. The petition for rehearing is still pending.

Something odd is going on. Petitions for rehearing are rarely granted by the Court nowadays, even though that wasn't always the case. The Court could have set Gundy for reargument after Justice Kavanaugh was confirmed. Instead, they went ahead and issued a decision. Why, then, are they hesitating about denying the rehearing petition? It is a waste of time to issue a set of opinions and then withdraw them and start all over again.

Could Justice Kavanaugh be complaining that he was denied the opportunity to participate in Gundy? Is Justice Alito having second thoughts about not joining the dissenters? We'll find out soon enough, I guess. 

Posted by Gerard Magliocca on November 14, 2019 at 08:50 PM | Permalink | Comments (1)

VAP/Fellowship Reflections: An Overview of the Types of Programs Out There

Over the summer and fall, I interviewed the directors of 14 VAP/fellowship/PhD programs.  As the series comes to an end, I wanted to discuss some of the main takeaways as well as highlight some questions that these interviews raised for me.  These reflections may take a few posts, but in this first one, my goals are fairly modest.  I want to provide an overview of the different types of VAPs and fellowships out there, along with some pluses and minuses of each kind of program.  I offer this up not for those of us already in academia who think we already know all of this.  Instead, my intended audience here are people who are curious about academia and have come to learn that a VAP/fellowship/Ph.D. is a de facto requirement for entering the profession these days, even if they aren’t exactly sure how to evaluate all the different programs out there. 

By my count, there are five different types of VAPs and fellowships, plus a few law-related Ph.D. programs.  Let me know in the comments if you think I’ve missed or conflated any of these categories.

Continue reading "VAP/Fellowship Reflections: An Overview of the Types of Programs Out There"

Posted by Jessica Erickson on November 14, 2019 at 02:36 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (3)

Wednesday, November 13, 2019

FIU wins ATL Halloween Costume Contest

The winner of Above the Law's Legally Themed Halloween Costume ContestProf. Tom Baker's Con Law Section at FIU, continuing the since-2012 tradition of dressing like Prof. Baker on or around October 31.

FIU: We pass the bar and we dress well.

Posted by Howard Wasserman on November 13, 2019 at 09:29 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

JOTWELL: Tidmarsh on McGovern & Rubenstein on negotiation class actions

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Francis E. McGovern & William B. Rubenstein, The Negotiation Class: A Cooperative Approach to Class Actions Involving Large Shareholders. The timing is perfect, because the Sixth Circuit just agreed to review the class certification decisions in the opioid litigation that followed the McGovern & Rubenstein approach.

Posted by Howard Wasserman on November 13, 2019 at 11:49 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 12, 2019

Daily Northwestern gets pummeled--some thoughts (Updated)

I am a graduate of Northwestern's Medill School of Journalism, although I never worked at The Daily Northwestern and never pursued journalism as a career. I am following and interested in the scorching negative reaction to the paper's apology for its coverage of a campus speech by Jeff Sessions last week, at which protesters gathered outside and some protesters attempted to force their way into the lecture hall, where they were confronted and restrained by campus police.

It appears the paper overreacted and that its reporting, including the photographs it took and posted online, followed appropriate journalistic standards. It also appears that some of the sharp reaction to the apology reflects the "these damn snowflakes" annoyance with millenials, such as the paper's suggesting that it harmed and "retraumatized" student protesters by reporting on them (which is what the protesters seem to charge). And the paper seemed to be motivated by the possibility that its photographs and reporting could be used as a basis to identify and sanction student protesters--Northwestern does not provide amnesty for protesters who violate university rules (such as sneaking into the reserved lecture hall) and students are not excused from attendance policies because they were out protesting.

Continue reading "Daily Northwestern gets pummeled--some thoughts (Updated)"

Posted by Howard Wasserman on November 12, 2019 at 06:52 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Turpin v. Locket

I am nearly done with the first portion of my Bushrod Washington biography. This is the part that covers his career before he was appointed to the Supreme Court in 1798. I am going to start to posting some items about my research that I think might be of interest.

Here's one nugget that I came across. In Turpin v. Locket, the Virginia Court of Appeals (the highest court in Virginia) found itself equally divided on whether the state legislature could revoke a prior grant of property to the Episcopalian Church. Why was the Court equally divided when there were five judges? Here is what the Court Reporter said by way of explanation:

The above case had been argued at a former term; and, during the succeeding vacation, Mr. Pendleton, then president of the court, and who sat in the cause, prepared his opinion in writing, (which the reporter has seen,) that the glebes belonged to the protestant episcopal church; and that the act of 1802, was unconstitutional. But the opinion was not delivered, as he died the night before it was to have been pronounced.

Yikes!

  

Posted by Gerard Magliocca on November 12, 2019 at 01:47 PM | Permalink | Comments (2)

Argument in Hernandez v. Mesa

Good luck to Steve Vladeck in this morning's argument in Hernandez v. Mesa, on whether a U.S. law enforcement officer can be sued for damages in a Bivens action for killing a non-U.S. person on the other side of the border.

Update: Transcript here.

Posted by Howard Wasserman on November 12, 2019 at 07:07 AM in Howard Wasserman | Permalink | Comments (1)

Monday, November 11, 2019

John Oliver on SLAPP suits

John Oliver's Last Week Tonight did a long piece on SLAPP suits, including his experience as the target of one by coal baron Bob Murrary in state court in West Virginia (a state that lacks a SLAPP suit). And Devin Nunes sued Twitter in Virginia (which refused to dismiss) because its SLAPP statute is weaker than the one in California (the natural forum for that suit). The video is embedded after the jump.

The piece is funny, although too simplistic in a blanket call for statutes with a call for coordination. A federal statute cannot define the pleading standard in state court, although it perhaps could require attorney's fees.* So a federal statute would not have jelped State statutes cannot define the pleading standard in federal court (the subject of a circuit split, where the "does not apply" position seems to be winning) but can require attorney's fees in federal court.

[*] This would be an interesting § 5 question. Are procedural protections such as a pleading standard and fee-shifting congruent-and-proportional to protecting the First Amendment rights of the targets of these suits?

Also, the show missed a great irony. It discussed a $ 5 billion SLAPP suit that Trump brought against journalist Bob O'Brien, admittedly for the point of hurting O'Brien. But the story did not mention that Trump prevailed in the Stormy Daniels lawsuit--a suit designed to criticize the President of the United States--under California's SLAPP law and recovered six-figures in attorney's fees.

Continue reading "John Oliver on SLAPP suits"

Posted by Howard Wasserman on November 11, 2019 at 07:00 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, November 10, 2019

Kentucky Law Journal: 2020 Symposium Topic Submissions

How to Submit

Kentucky Law Journal is now accepting symposium topic proposals for the 2020–2021 academic year. Please submit symposium topic suggestions following the instructions below no later than November 22, 2019 at 7:00 pm EST. If you have questions, please email our Special Features Editor, Summer Bablitz, [email protected] or Editor-in-Chief, Kyle Schroader, at [email protected]

Continue reading "Kentucky Law Journal: 2020 Symposium Topic Submissions"

Posted by Howard Wasserman on November 10, 2019 at 11:02 PM | Permalink | Comments (0)

Friday, November 08, 2019

State-level universality

Much of the controversy over "nationwide" or "universal" injunctions has arisen in suits challenging federal las and regulations. But the reason for finding and using the appropriate nomenclature is that the real problem--injunctions protecting beyond the plaintiffs--can arise in challenges to all laws at all levels.

A divided Eighth Circuit addressed this in Rodgers v. Bryant, a challenge by two individual beggars (their term) to Arkansas's anti-loitering law. The district court granted a preliminary injunction prohibiting all enforcement and the majority of the court of appeals affirmed, relying on the district court finding that the law is "plainly unconstitutional," so it should not be enforced against anyone. Even the courts most willing to issue non-particularized injunctions in challenges to federal law have advanced beyond "the law violates the Constitution, so it can't be enforced against anyone" rationale.

Dissenting, Judge David Stras gets it perfectly right--the district court granted a universal preliminary injunction, prohibiting state police from "enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs." It is "universal" in that it protects the universe of people who might be subject to Arkansas law-as universal as the travel ban, only applicable to a smaller universe.

Stras examines the history equity to conclude that such non-particularized relief was not proper in individual actions and that equity's representative actions are now reflected in FRCP 23. Stras also hits the essential point that there is no reason to believe (and neither the district court nor the majority found) that "safeguarding Rodgers’s and Dilbeck’s right to speak somehow depends on preventing enforcement of the anti-loitering law against anyone else." The plaintiffs, he argued, sued to vindicate their own rights, so they obtain "complete relief" from an injunction protecting them from arrest under the statute.

Posted by Howard Wasserman on November 8, 2019 at 07:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Wealth Taxes Are Not Unconstitutional

I want to make a point that is getting lost in the discussion of wealth taxes. Assume for the sake of argument that a wealth tax is a "direct tax" as defined by the Constitution. The Constitution does not say that direct taxes are prohibited. Rather, direct taxes must just be apportioned among the states according to their respective numbers. Thus, a wealth tax is not unconstitutional, though the way in which such a tax is applied can be.

Posted by Gerard Magliocca on November 8, 2019 at 03:23 PM | Permalink | Comments (6)

Leavenworth Ep. 3, Judgment

The latest from Eric Carpenter of FIU on the series. Episode 3 featured Eric and his Military Justice class.

After you are convicted of an offense, one option is to blame your defense attorney for that result instead of the facts. Another is to come up with conspiracy theories to explain what happened. In this episode, we see Lorance use both options. I’ll talk about some issues related to those options and comment on some of the unusual features of the military justice system (why wasn’t Lorance in pretrial confinement leading up to the court-martial? why did he have a civilian defense counsel?) that come up in that context.

Continue reading "Leavenworth Ep. 3, Judgment"

Posted by Howard Wasserman on November 8, 2019 at 02:18 PM in Criminal Law, Law and Politics | Permalink | Comments (0)

Law and Entrepreneurship Association - Call for Papers

The 14th annual meeting of the Law and Entrepreneurship Association (LEA) will be held on Friday, March 20, 2020, at the University of North Carolina School of Law.

The LEA is a group of legal scholars interested in the topic of entrepreneurship—broadly construed. Scholars include those who write about corporate law and finance, securities, intellectual property, labor and employment law, tax, and other fields related to entrepreneurship and innovation policy. Our annual meeting is an intimate gathering where each participant is expected to read and actively engage with all papers under discussion.

The LEA welcomes papers and proposals on all topics relevant to entrepreneurship. Proposals should be comprehensive enough to allow the LEA board to evaluate the aims and likely content of the papers they propose. Papers may be accepted for publication but must not be published prior to the meeting. Works in progress, even those at a relatively early stage, are welcome. Junior scholars and those considering entering the legal academy are especially encouraged to participate.

To submit a proposal or paper, please email Professor John Coyle at [email protected] by January 13, 2020.  Please include the subject line: “LEA Submission – {Name}.”

The University of North Carolina is located in Chapel Hill, North Carolina, with easy access to Raleigh-Durham International Airport (RDU).  For additional information, please email Professor John Coyle at [email protected].

Posted by Carissa Byrne Hessick on November 8, 2019 at 08:07 AM | Permalink | Comments (0)

Thursday, November 07, 2019

Two thoughts on the Socratic method (or whatever we call Q&A teaching)

1) My colleague Stanley Fish appeared on FIRE's So to Speak podcast, discussing his new book, his old book that there is no such thing as free speech, and other topics. It is a wide-ranging hour-plus discussion.

At one point in the conversation, Fish explains why he does not want to hear student opinions or what they think/believe about some subject; interviewer Nico Perrino asks if that means Fish does not like the Socratic Method. But is there any connection between the Socratic Method and students offering their opinions and personal views? I believe I would be regarded as a highly and rigourous Socratic professor, in that I ask a lot of directed questions. But I give students no opportunity to espouse their opinions or to tell me what they think; I  use tight, specific questions to draw out specific answers tied to the material. There is little danger of a student going off on an unrelated tangent or saying something offensive. There are some professors who allow and welcome student pontificating through less-directed questions. But that is a matter of professorial style--it is not inherent in being Socratic.

2) Judge Jane Roth (3d Circuit and my former Judge) visited FIU this week as a Jurist-in-Residence and the lead judge for our intramural moot court final. As part of her visit, she spoke with students about oral argument, especially about the centrality of answering questions directly, slowly, and as specifically and precisely as possible. Judge Roth visited some classes and commented on how well the students had handled hard questions in those discussions. That reminded me of something I tell 1Ls on the eve of their first argument in legal writing--the Q&A teaching style imitates oral arguments. You should be prepared in your argument the way you are prepared in class. And if you can handle a Socratic class, you can handle moot court.

Posted by Howard Wasserman on November 7, 2019 at 07:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Wednesday, November 06, 2019

Sport and speech, again (edited slightly)

Two items.

1)  The Washington Nationals visited the White House earlier this week, down several players, including outspoken pitcher Sean Doolittle. Doolittle and others were criticized for politicizing sports; Rep. Crenshaw labeled Doolittle's actions juvenile and said "These ceremonies aren’t about your petty political sensibilities, they are about celebrating a great American pastime in the Oval Office." But the visit included one player donning a MAGA hat and receiving a presidential hug and another player heaping praise on the President. That sounds like more than a celebration of the great American pastime that happens to occur in the Oval Office--that sounds like a nakedly political celebration of the current occupant of the Oval Office. (We can debate whether MAGA is racist; there is no debate that it is an electoral message unique to one candidate). Which is fine, I suppose. But then the right of players to opt-out is more urgent--it is not a petty political sensibility, but a right not to be associated with a blatantly political message and a blatantly political event you find offensive.

2) The President will attend the LSU-Alabama game in Tuscaloosa this weekend. On Tuesday, the President of the Alabama Student Government Association sent an notice about increased security and the need to arrive early, then closed with "Any organizations that engage in disruptive behavior during the game will be removed from block seating instantly for the remainder of the season."*

[*] Alabama apparently has one home game left this season, against Western Carolina. Quite the threat.

The response was both unexpected and appropriate. By Wednesday, the SGA announced it "strongly affirms its beliefs in free speech rights and the rights of all students to express their opinions." (Good to know the student government strongly affirms the First Amendment). Of course, then it blamed the media for "assigning political context" to a message meant to be about heightened security--damn media for quoting the SGA's words. A later email did slightly better (no:

Some have misinterpreted my comment regarding ‘disruptive behavior.’ … By disruptive behavior, we are asking students to be respectful to all students and staff and avoid altercations . . . My email has nothing do with anyone’s First Amendment rights and I am sorry for any confusion. Please express yourself and especially your pride for the Tide.

But the explanation--we wanted people to avoid altercations and to show respect to staff--still beggars belief unless the SGA sends a similar message before every game. Which it clearly does not. It was obviously worried about people booing or protesting the President and did so in the ham-handed way we have come to expect from those with government power.

I like when sports/speech controversies are this easy and arise at public universities, where the application of the First Amendment is not in dispute.

Posted by Howard Wasserman on November 6, 2019 at 11:33 PM | Permalink | Comments (3)

Can Presidential Electors be Computers?

There are two common criticisms of the Electoral College. One is that sometimes a person who loses the national popular vote can still become president. The other is that presidential electors are not bound by the vote of their state and can, in close elections, change the result.

Let's think a little about the second point. Suppose a state with 10 electoral votes designated 10 computers as its presidential electors? The computers are told to vote in accordance with whatever state law says about presidential elections (e.g., whomever wins the popular vote in the state gets all of the electoral votes). They execute the program and send the votes to Congress. Would such a state scheme be constitutional?

Maybe. The Constitution says who cannot be electors (members of Congress and any person "holding an Office of Trust or Profit under the United States") but says nothing about who or what can be an elector. The Electors are then instructed to meet and vote. Can a group of computers meet? Sure they can. That just means "put them in the same room" or network them together.

Can they vote? Sure they can, unless vote means "exercise discretion." The last point is not so clear to me. The recent Tenth Circuit opinion on presidential electors suggested that giving them the power to vote meant that they could not be bound by a state to make a particular decision. Voting implies a free choice. A free choice is not compatible with an automaton. But is the Tenth Circuit correct in putting that sort of weight on the word vote in the Constitution? What if artificial intelligence is programmed in a way that allows some minimal level of discretion? Is that good enough? Just food for thought. 

 

Posted by Gerard Magliocca on November 6, 2019 at 02:08 PM | Permalink | Comments (5)

Allen v. Cooper argument review

My SCOTUSBlog review of Tuesday's argument. It seems pretty clear the Court is going to reverse--only Justice Alito pushed petititoner's counsel and he seemed just as suspicious of the arguments from counsel for the state. Four justices--Ginsburg, Breyer, Kagan, and Kavanaugh--all expressed different versions of a suspicion that the state was asking for a license to violate rights.

A few interesting stray comments and exchanges from the state's side. The first was his assumption that sovereign immunity only bars claims for damages but no injunction relief; this is true in effect because of Ex Parte Young, but not true as a matter of formal sovereign immunity doctrine. The other was the Court's response to the state's argument that, even if the state cannot be sued, the individual infringing officers can be sued, while conceding they will be indemnified and may enjoy qualified immunity. That last point raised the Chief's hackles--he did not seem to buy an individual suit as an alternative if the officer would be immune; counsel for the state argued that the showing for an intentional infringement (and thus a due process violation) is the same as the showing for clearly established, so any officer claiming immunity likely did not violate due process. Anyway, that was the most exorcised the Chief has been about an officer enjoying qualified immunity.

And, of course, I could not resist some pirate jokes.

Posted by Howard Wasserman on November 6, 2019 at 11:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Saturday, November 02, 2019

Leavenworth, Ep. 2: Casualties, part 2

The following is by my FIU colleague Eric Carpenter, who is blogging this show. Episode 3, airing Sunday, features talking-head interviews with Eric and footage of his Military Justice class mooting the case.

The Lorance fact pattern isn’t a classic “following orders” case. Lorance was not following any orders when he ordered the shooting. The fact pattern does set up interesting issues with the soldiers in his platoon, though. Some followed illegal orders (like shooting harassing fire at the village) and some refused illegal orders (like reporting false information to the higher headquarters). It looks like the soldiers were granted immunity for those actions so that they would testify, and I expect that the defense will tie this into the idea that the whole platoon had a motive to lie. By saying Lorance was 100% at fault, they could get the immunity they needed.

Continue reading "Leavenworth, Ep. 2: Casualties, part 2"

Posted by Howard Wasserman on November 2, 2019 at 02:03 PM in Criminal Law, Culture, Howard Wasserman | Permalink | Comments (1)

Friday, November 01, 2019

Fun with diversity (Updated)

Two fun news stories on diversity.

1) President Trump announced yesterday that he was changing his domicile from New York to Florida, although he insists he enjoys living in the White House and plans to continue to do so for another five years. The jurisdiction essay for spring 2017 had Trump attempting to remove Summer Zervos' lawsuit; the best answer was despite having moved to Washington and owning property in Florida at which he spent a bit of time, he remained a New York citizen and was barred from removal by the Forum Defendant Rule.

So has Trump affected a change of domicile with his announcement, seeing as how he owns property and spends some part of the year in Florida? Or does he need to be present there more permanently after leaving the White House? Better still, does his stated desire to remain the White House five more years suggest an intent to remain (and thus a change to DC), at least for now?

2) I got a call from a journalist about this one. An insurance company filed suit against a Washington, D.C.-based law firm (a limited partnership). The firm moved to dismiss because it has a London office and a partner a U.S. citizen) who moved to London to staff the office, has been there for five years, and intends to remain in London for the foreseeable future, while keeping his U.S. citizenship. Because that London partner is domiciled in the U.K. while remaining a U.S. citizen, he is "stateless" for diversity purposes. And because a partnership takes on the citizenship of all partners, the partnership is stateless for diversity purposes. Thank you, Elizabeth Taylor.

I could not tell the reporter whether this was unusual or whether it was an increasing trend. The firm's motion cites a 1990 case from the Second Circuit holding that Sullivan Cromwell could not be sued in diversity because of its U.S.-citizen partners staffing overseas offices.

What I cannot figure out is why the firm (which filed its own suit in state court) would rather be in NC state court against a NC-based insurer. It is both an outsider to the state and a defendant, the two groups who generally want to be in federal court.

Posted by Howard Wasserman on November 1, 2019 at 01:58 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Thursday, October 31, 2019

Faculty Fellow, The Center for Innovation Policy at Duke Law

From the Center for Innovation Policy (CIP) at Duke Law:

The Center for Innovation Policy (CIP) at Duke Law seeks a Faculty Fellow for the 2020-2021 academic year. The Center brings together technology and business leaders, government officials, legal professionals, and academic experts to promote welfare-enhancing innovation by identifying improvements in federal law and policy focused on intellectual property and technology regulation. It has partnerships with Duke University’s Innovation & Entrepreneurship Initiative, the Center for Entrepreneurship and Innovation at Duke’s Fuqua School of Business, and the Center on Law and Technology at Duke Law. The Faculty Fellow’s duties will include working with Center co-Director Professor Arti Rai on a number of different grant-funded projects and articles involving 1) administrative lever for improving patent quality and 2) the intersection of patents and trade secrecy, particularly in the area of machine learning. The Faculty Fellow will also be able to spend considerable time on independent academic work.

The position will include invitations to all faculty workshops and support for scholarship. The Fellow will also have the option of co-teaching a class with Professor Rai. The starting date is the fall of 2020. The salary for the position will be commensurate with experience. The Faculty Fellow will also receive Duke University benefits. Initial appointment is for one year, renewable upon mutual agreement by the Faculty Fellow and the Center. Candidates should have either a J.D. or a graduate degree in a STEM discipline or quantitative social science.

Duke is an Affirmative Action / Equal Opportunity Employer committed to providing employment opportunity without regard to an individual’s age, color, disability, gender, gender expression, gender identity, genetic information, national origin, race, religion, sex, sexual orientation, or veteran status.

Apply through https://academicjobsonline.org/ajo/jobs/15290. For questions or more information, contact Balfour Smith ([email protected]).

Posted by Sarah Lawsky on October 31, 2019 at 08:17 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Leavenworth, Ep. 2: Casualties, part 1.

The following is by Eric Carpenter (FIU), who is live-blogging the show

We get to the actual shooting in this episode. I think the facts in the case, as I have learned them, convincingly show that Lorance is guilty of specific intent murder. I was wondering how the director was going to portray the facts, and it appears the director thinks so, too. Again, this is basically a self-defense case. In this post, I’ll go over a few of those facts and discuss an issue with the investigation that came up in the show. In the next post, I’ll give a quick discussion on how military law deals with the problem of when a superior gives an illegal order to a subordinate.

Continue reading "Leavenworth, Ep. 2: Casualties, part 1."

Posted by Howard Wasserman on October 31, 2019 at 05:54 PM in Criminal Law, Law and Politics | Permalink | Comments (0)

Expert Witnesses in the Impeachment Trial

One question that may come up in the trial is whether the House managers can call expert witnesses to testify about whether the facts support their allegation of a high crime and misdemeanor. This was not done in the Johnson and Clinton trials, but there is a fair argument for that testimony here. One can imagine calling foreign policy officials from Republican Administrations past (Colin Powell, for example) to offer their opinions on the President's alleged conduct toward Ukraine. And the President could call his own experts to counter whatever they say. 

Granted, John Bolton arguably serves both roles (as a fact witness and an expert). But his testimony before the House committee is still uncertain.

Posted by Gerard Magliocca on October 31, 2019 at 12:49 PM | Permalink | Comments (5)

Wednesday, October 30, 2019

JOTWELL: Mullenix on Choi on class-action mega fees

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions, which examines "mega fee" awards in class actions.

Posted by Howard Wasserman on October 30, 2019 at 11:36 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Capping off a year in a yarmulke

Sunday marked one-year (on the Western calendar) since the shooting at Tree of Life Synagogue in Pittsburgh. Today marks one year since, in reaction, I began wearing a yarmulke.

So what have I learned after a year?

Continue reading "Capping off a year in a yarmulke"

Posted by Howard Wasserman on October 30, 2019 at 09:31 AM in Howard Wasserman, Religion | Permalink | Comments (0)

Tuesday, October 29, 2019

Aaarrrgument preview: Allen v. Cooper

I have a SCOTUSBlog case preview on next Tuesday's arguments in Allen v. Cooper, considering whether states enjoy 11th Amendment/sovereign immunity from suit for copyright violations. The dispute arises from film and video documenting the salvaging of Blackbeard's flagship, the Queen Anne's Revenge. Thanks to the SCOTUSBlog editors for letting me get away with that title.

Speaking of the Eleventh Amendment, download while it's hot the new paper by Will Baude and Stephen Sachs, The Misunderstood Eleventh Amendment. Because the plaintiff is from North Carolina, their plain-language argument would be that the Amendment does not apply, but there are questions about the state being subject to personal jurisdiction in the action.

Posted by Howard Wasserman on October 29, 2019 at 01:54 PM | Permalink | Comments (5)

Judging Lawyers Based On Their Clients

Yesterday the New York Times published a lengthy story on external work that Elizabeth Warren did while she was still a law professor.  The story, which is titled “Elizabeth Warren’s Days Defending Big Corporations” focuses on a few different themes—the amount of money that Warren made off of these external gigs, the fact that her campaign’s summaries of these representations is overly simplified, and the identity of the clients she represented. 

As I explained last spring, when the Washington Post wrote about the fees that Warren collected for this work, the amount of money that Warren made for these representations seems to be within the range of what other professors with comparable experience and profiles charge.  And while I think that we could have a fruitful and worthwhile conversation about the desirability of law professors taking on this paid external work, that doesn’t seem to be the upshot of the Times or WaPo stories. 

The Times does point out that the summaries that the Warren campaign put out of these representations are overly simplified.  And as someone who generally expects candor and nuance from other law professors (even former law professors), I was sorry to see that Warren’s campaign isn’t holding themselves to that standard.  But the Twitter horde’s response to the story seems to be one of outrage: How dare Warren have any corporate clients? Corporations are, by definition, evil!!  In light of this weird, kneejerk response, I understand the campaign’s decision—even if I don’t approve of it—to oversimplify in order to push back against this lack of nuance in public opinion.  And the Times headline suggests that the editors at the paper at least know about this rabidly anti-corporate viewpoint (and perhaps share it themselves).

I won’t rehash here the argument that I made on Twitter – which is that even a non-simplified description of Warren’s work for corporations shows that she was, in all of these, cases pushing for a robust bankruptcy system in which the bankruptcy process fully and finally discharges all debts and liabilities.  (In other words, according to the Times’ own reporting, Warren’s work for corporate clients was consistent with her academic principles—principles, which she undoubtedly believes are important to protecting ordinary people.)  Instead, I’d rather talk about why it’s newsworthy to talk about the identity of Warren’s clients.  Because there is no denying that it is the identity of Warren’s clients—i.e., that they are corporations—that folks who support other candidates in the Democratic primary seem to be most worked up about.

I think this is a topic worth talking about because it is part of a larger question—namely whether to judge lawyers based on the identity of their clients.

Continue reading "Judging Lawyers Based On Their Clients"

Posted by Carissa Byrne Hessick on October 29, 2019 at 09:28 AM in Carissa Byrne Hessick, Current Affairs, Law and Politics | Permalink | Comments (4)

Saturday, October 26, 2019

Leavenworth, Ep. 1: Soldiers.

This post is by my FIU colleague Eric Carpenter, a retired Ranger and JAG attorney. He is covering the HBO documentary for us. Episode 1 aired last Sunday; Episode 2 premieres tomorrow.

If Clint Lorance had not deployed to Afghanistan, he would have never committed a crime like murder. By all accounts, he was a productive member of society and joined the military for honorable purposes. In Episode 1 of Leavenworth, the director appears to start his argument for why a law-abiding, disciplined soldier would commit a crime like this. His basic thesis will be, I think, that Lorance was overcompensating for several factors and felt he had to quickly establish himself as a tough leader who would impose his will on the enemy. Ignoring the rules of engagement (or creating his own) fit that image.

One of these factors is that Lorance was tasked mid-tour, on short notice, to replace the battle-seasoned platoon leader of a battle-seasoned platoon. The original platoon leader—the one who led the unit through the preparations for combat and the initial part of the deployment—was wounded in an improvised explosive device (IED) explosion. This platoon leader appears to have been well-respected by his soldiers and was Ranger-qualified.  

Continue reading "Leavenworth, Ep. 1: Soldiers."

Posted by Howard Wasserman on October 26, 2019 at 04:40 PM in Criminal Law, Law and Politics | Permalink | Comments (0)

An Impeachment Trial as Original Jurisdiction

Yesterday, one of the President's advisors (a deputy of John Bolton) filed suit asking a federal court to determine if he must obey a House subpoena in the impeachment inquiry if the President is telling him not to testify. The suit is a good way of avoiding a decision on testifying that is bound to anger someone. But the case also illustrates a unique aspect of impeachment trials. 

Long before this suit is resolved by the courts, the House will send impeachment articles to the Senate. At that point, the issue will change into: "Must someone subpoenaed by the Senate for an impeachment trial testify when the President tells him not to testify?" The House impeachment managers or the President's lawyers, though, can raise this question directly with the Chief Justice as presiding officer. Thus, the High Court of impeachment in the Senate functions as a form of original jurisdiction.

Three implications flow from this observation. First, delay becomes impossible. Filing lawsuits to drag things out in the courts won't work when the Chief Justice has original jurisdiction over impeachment trial matters. Second, the Associate Justices are totally cut out of the process. Only the Chief Justice's views matter. Third, there are no lower courts to sift arguments and help the Chief Justice as is typically true for constitutional issues. He is on his own, though he can seek the advice of the Senate parliamentarian.

The bottom line, once again, is that the Chief Justice will wield considerable power over the upcoming trial, and will be largely exercising his own discretion. 

Posted by Gerard Magliocca on October 26, 2019 at 03:35 PM | Permalink | Comments (3)

Baseball and politics, again

The Astros win in Game 3 last night means there will be a Game 5 in Washington Sunday night, which means a game attended by President Trump (although not to throw out the first pitch).

Question to watch: Will fans boo trump, chant "impeachment" or "Ukraine," or otherwise criticize the President? And how will MLB and the Nationals respond?

Update: MLB Commissioner Rob Manfred golfed last week with Trump and Lindsey Graham. I think I have my answer to the third question.

Posted by Howard Wasserman on October 26, 2019 at 02:03 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1)

Friday, October 25, 2019

Aaron Sorkin wrote Donald Trump, Example No. 31

I have argued before that Aaron's Sorkin's The West Wing reflects and lauds the politics practiced in the Trump White House, albeit in service of different substantive policy ends. The latest example is the announcement that the White House would cancel subscriptions to The New York Times and Washington Post and was ordering agencies and departments to cancel their subscriptions.

In one episode of The West Wing, President Bartlet and C.J. Cregg are mad about coverage of the administration by reporter Danny Concannon and his paper (I do not remember if it was the Post or a fictional paper). In a meeting among the three, Bartlet announces that he is canceling "our" subscription to Danny's paper. C.J. applauds the move as a way to damage the paper financially. Bartlet then reveals that he was speaking only of his personal subscription, not the governmental subscription, which disappoints C.J.

The point is that Sorkin liked the sort of politics in which the government punishes critics financially, in a way that would worsen the effectiveness of government (if we believe that staying abreast of the news is important for government officials). C.J. is the POV character in that scene and she is incensed that Bartlet will not do more to sanction and financially injure the paper and his critics.

Nor does this explanation cut it:

The difference is that Bartlet was a good president, who was prone to being occasionally snitty. In contrast, Donald Trump is an awful president who routinely displays the immaturity of an infant.

That cannot be right. Either it is ok for a President to lash at his critics in this way or it isn't. Either it is ok to call political adversaries names or it isn't; either it is ok to strip press credentials from critical reporters or it isn't. Neither the political position nor perceived quality of the President and administration should make a difference.

Posted by Howard Wasserman on October 25, 2019 at 03:27 PM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Pledge to Reduce Academic Marketing Waste

This is making the academic rounds today. I post it without comment.

In honor of International Day of Climate Action (October 24), a group of law professors have announced the Pledge to Reduce Academic Marketing Waste, which seeks to address the routine and indiscriminate use of paper-based flyers, newsletters, offprints and postcards by law professors and law schools.  Most of this material is discarded without ever being read.  However, law schools continue to produce and distribute these materials in an effort to increase or maintain their national and international rankings.

Continue reading "Pledge to Reduce Academic Marketing Waste"

Posted by Howard Wasserman on October 25, 2019 at 02:38 PM in Teaching Law | Permalink | Comments (0)