PrawfsBlawg

Tuesday, June 04, 2019

Spring Self-Reported Entry Level Hiring Report 2019

Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2019. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes several hires who requested not to be included in the spreadsheet at the date of this posting, although the people will eventually be included in the spreadsheet.) 

Continue reading "Spring Self-Reported Entry Level Hiring Report 2019"

Posted by Sarah Lawsky on June 4, 2019 at 04:03 PM in Entry Level Hiring Report | Permalink | Comments (8)

Reacting to "Chernobyl"

I finished watching HBO's wonderful mini-series Chernobyl. It is interesting to see the distinct messages drawn from opposing political sides--the same show being watched in different universes.

For many conservatives, the message is "Soviet Union/Communism/Socialism is bad." The insight of the series is how bad things are when the state owns things like nuclear power plants, as well as the scientific institutes that investigate accidents. The current relevance is how much better we are because there is no Soviet Union and how bad it would be if one of those socialists became President.

For many liberals (and for the producers of the series), the message is "the cost of lies," the line with which the lead scientists begins and ends the series. The insight is the lies (or false denials) surrounding the fact and severity of the accident and the lies surrounding the cause of the accident. The current relevance is that we have similar problems of governmental lies and secrecy and willingness of people to lie to protect the government or its leaders. People will lie on behalf of many leaders, not only a communist state.

For what it is worth, showrunner Craig Mazin says it is both: "It’s anti­–Soviet government, and it is anti-lie, and it is pro–human being."

Posted by Howard Wasserman on June 4, 2019 at 02:51 PM in Culture, Howard Wasserman, Law and Politics, Television | Permalink | Comments (8)

JOTWELL: Wasserman on multiple authors on the problems with SCOTUS term limits

I have the new Courts Law essay, reviewing Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade's Whiplash (forthcoming in Tex. L. Rev.) and Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court (forthcoming in Yale L.J.). The first article shows the doctrinal instability that might arise from 18-year term limits, using an empirical study of Roe; the second offers two alternatives to term limits.

One of the Epps/Sitaraman proposals would have a fifteen-person SCOTUS comprised of ten permanent Justices (five from each major party) and five lower-court judges sitting for one term, chosen unanimously by the permanent members. Democratic presidential candidate Pete Buttigieg has endorsed that proposal, but Elie Mystal believes it is unconstitutional and naive, if exciting.

I somewhat like the other Epps Sitaraman proposal of the Supreme Court Lottery--the "Court" consists of every court of appeals judge and each sitting two-week sitting features a randomly selected panel of nine. This would have the interesting effect of making SCOTUS more like an ordinary federal court, which might not be a bad thing.

Posted by Howard Wasserman on June 4, 2019 at 11:26 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

AALS CFP: Corpus Linguistics & IP

The following is a CFP for the 2020 AALS Annual Meeting, co-sponsored by the Sections on IP and Law & Interpretation

Recent developments in data-based text analysis provide tantalizing opportunities to transform constitutional and statutory analysis. They may also provide new opportunities to understand infringing similarities in patent claims and copyrightable expression and to track the acquisition and loss of source significance. This panel will consider how corpus linguistic and other data-driven text analysis techniques might transform our understanding of how IP rights are acquired, shaped, and enforced.

Continue reading "AALS CFP: Corpus Linguistics & IP"

Posted by Howard Wasserman on June 4, 2019 at 09:31 AM in Teaching Law | Permalink | Comments (1)

Monday, June 03, 2019

Amar on exam-writing

Vik Amar at Above the Law offers some thoughts about writing good exam/assessment questions. He hits on four ideas: Offering more and different assessment opportunities; having a balance of open- and closed-book assessments (the latter to account for the need to prep for the Bar); using real cases or events (good idea, but be careful how you write it); and proper notice of the rules. Interestingly, on the third point, Amar does not warn about students being upset, offended, or traumatized by the real-world situations.

Posted by Howard Wasserman on June 3, 2019 at 08:30 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

It's all claim-processing rules

In a decision surprising no one, a unanimous Court,, per Justice Ginsburg (of course), held in Fort Bend County v. Davis that Title VII's administrative-exhaustion requirement was a mandatory, but non-jurisdictional, claim-processing rule.

The opinion adds a bit to its framework, stating that jurisdictional is "generally reserved for prescriptions delineating classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction)." Other prescriptions can become jurisdictional if Congress includes them in a jurisdictional provision, such as an amount-in-controversy. The opinion also hints at an overwhelming presumption that a provision is non-jurisdictional. Congress must "clearly state" something as jurisdictional, otherwise courts must treat is as non-jurisdictional, pointing to a growing list of non-jurisdictional claim-processing rules and preconditions for relief.

The Court then makes quick work in classifying this as non-jurisdictional. It does not appear in either § 1331 or Title VII's statute-specific jurisdictional grant; it appears in separate (although nearby) provisions that do not speak to jurisdiction or the court's authority. Instead, they speak to a plaintiff's procedural obligations--what it must do prior to commencing civil litigation--submit papers to the EEOC and wait a specified period; this is kindred to raising objections or registering a copyright before filing suit. That the exhaustion requirement serves important purposes--encouraging conciliation and giving the EEOC first crack at enforcement--did not affect the jurisdictionality question (although it could affect whether a provision is mandatory.

Finally, it is worth noting that the list of non-jurisdictional claim-processing rules and preconditions to relief includes Arbaugh's numerosity requirement. I would have said that this is neither, but a merits rule--the scope of the statute and who is covered by it. I am not sure what to make of this conflation. But I am most interested in the merits/jurisdiction line, so it is worth following.

Posted by Howard Wasserman on June 3, 2019 at 01:27 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, June 02, 2019

Saint Louis University Law Journal Call for Submissions

The Saint Louis University Law Journal is seeking submissions for its General and Teaching issues.  The General issue will focus on topics of interest to practitioners, but content on any subject is welcome.  For this year's Teaching issue, the theme of which is Property, submissions should address teaching the Property course, or other topics in the law of Property.   General issue submissions are due mid-July; Teaching issue submissions are due September 1.  Please direct submissions or questions to Jackie Coffman, Articles Editor for Vol. 64, at [email protected].

Posted by Howard Wasserman on June 2, 2019 at 11:18 AM | Permalink | Comments (0)

Friday, May 31, 2019

The Classification of Marijuana as a Schedule I Controlled Substance

I just wanted to note an opinion by my old boss, Guido Calabresi, in Washington v. Barr. The Second Circuit panel, by a 2-1 vote, held that individuals challenging the DEA’s classification of marijuana had not yet exhausted their administrative remedies. That said, the panel retained jurisdiction over the case and suggested that the DEA’s  failure to change the classification might lead to a constitutional holding that the current one is irrational. Stay tuned.

Posted by Gerard Magliocca on May 31, 2019 at 09:38 PM | Permalink | Comments (2)

Thursday, May 30, 2019

Florida supports free speech in universities . . . sometimes

I wrote last month about the free-expression statement adopted by the Florida State University System. I described it as a good statement, emphasizing  the importance of not stifling ideas because some find them offensive or abhorrent and of not allowing stated concerns for civility or respect be a cover for stifling expression.

Yesterday, the state took a giant step backward when the governor, at a cabinet meeting in Israel (which may be unlawful under state sunshine laws) signed into law a broad prohibition on anti-Semitism at public educational institutions. It defines as anti-Semitism a broad range of protected (if heinous) speech about Jewish people and about Israel. The law does include a clause that it shall not be construed to "diminish or infringe" upon protected constitutional rights. But the point of the April statement was to emphasize the special role of free expression on college campuses. It said not that the First Amendment applies there (because, duh), but that free speech plays a special role there and members of those communities must be especially tolerant of even repugnant ideas. Unless those ideas are anti-Semitic. FIRE is not happy.

This law does tie back to the discussion over that New York Times cartoon from April. The law defines as anti-Semitism certain criticism of Israel, while allowing "criticism of Israel that is similar to criticism toward any other country." But comments to my post and Steve Lubet's separate Faculty Lounge post argue that criticism of Israel may be anti-Semitic even if it is similar as that leveled at other countries, if the criticism plays on historic anti-Semitic stereotypes.

Posted by Howard Wasserman on May 30, 2019 at 04:27 PM in First Amendment, Howard Wasserman | Permalink | Comments (6)

Wednesday, May 29, 2019

Fisher & Larsen on "Virtual Briefing": A Recommendation and Some Thoughts

Jeffrey Fisher and Allison Orr Larsen have posted their forthcoming article, "Virtual Briefing at the Supreme Court." (Thanks to Larry Solum for the pointer.) It's a fine and fascinating article, necessarily speculative but with interesting details. It's commendable in seeking to open a conversation about a new phenomenon--or a new variety of an old phenomenon, but one whose own features and potential problems deserve to be studied. I have a few thoughts below, but first here is the abstract:

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today’s Supreme Court arguments are developed online: They are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent parties or have even filed a brief in the case at all. This “virtual briefing” (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case that the key players inside the Court are listening. In particular, we show that the Twitter patterns of law clerks indicate they are paying close attention to producers of virtual briefing, and threads of these arguments (proposed and developed online) are starting to appear in the Court’s decisions.

We argue that this “crowdsourcing” dynamic to Supreme Court decision-making is at least worth a serious pause. There is surely merit to enlarging the dialogue around the issues the Supreme Court decides - maybe the best ideas will come from new voices in the crowd. But the confines of the adversarial process have been around for centuries, and there are significant risks that come with operating outside of it particularly given the unique nature and speed of online discussions. We analyze those risks in this article and suggest it is time to think hard about embracing virtual briefing -- truly assessing what can be gained and what will be lost along the way.

In general terms the article is of a piece with Larsen's other examinations of the real-world details and dilemmas of the amicus process. It is also, to my mind, related to the writing of folks like Carissa Byrne Hessick about the intersection between social media activity and the ethics of legal scholarship. It also relates to some of the thoughts I have offered on the ethics of legal scholarship and its connection to the strategic use of multiple "platforms" for various purposes. A useful contribution in its own right, Fisher and Larsen's article is also useful when viewed in that broader context.

A few observations. First, Fisher and Larsen are admirably open about the limits of the article and about the preliminary nature of its aim: not to make a hard recommendation, but to "lay out the problem and to trigger a conversation." They canvass some of the potential benefits as well as the potential risks of the phenomenon they discuss, and examine possible responses, including doing nothing. It should be evident that I am in sympathy with that goal. One potential response to the "open secret" they discuss is that nothing untoward is going on because nothing is going on (or nothing new, different, or coordinated). A contrary response is to "shrug" because it's an "open secret," so everyone knows what is happening already. I'm allergic to "open secrets" for these reasons. The failure to discuss them openly, candidly, and clearly (including, say, people who are deliberately attempting to influence the Court saying publicly saying that they're trying to do so, preferably in the same piece of writing) means they are either hard to verify and identify more precisely, and thus are subject to the usual rumor mill and possibly incorrect conventional wisdom, or that the most accurate knowledge about them will be confined to small and elite circles whose ability to police themselves shouldn't be assumed or trusted. As they write, whatever the right thing to do is, the phenomenon should at least be publicly recognized and discussed, rather than "allowing virtual briefing to occur unrecognized and without evaluation."

Second, Fisher and Larsen are candid about the difficulty of defining "virtual briefing." Where do social media posts, op-eds, blog posts, podcasts, and other forms of commentary fall? Within different platforms, what kinds of different types are there and which count as "virtual briefing:" "hot takes, "deep dives," disinterested analysis versus advocacy or propaganda, direct attempts to manipulate the justices' concern for their reputations, and so on? Which are better and which are worse, and why? I'm not sure I agree with all their analysis here, in part because it is not always clear whether a particular format or ostensible aim is undertaken in accordance with its own ostensible standards or involves a mixture of more questionable moves and motives. But I agree with. the basic point they make here: "We acknowledge that we are identifying a line-drawing problem, but wrestling with that line is preferable to just passively accepting a new normal without pausing to consider the consequences."

They are equally candid about the difficulty of proving that this phenomenon has any effect on the Court, or even reaches it. It seems clear, given the amount of time and effort devoted to it, that many people think this "virtual briefing" reaches the justices or their clerks, either directly or by its effect on news accounts and opinion-makers whose approval the justices may covet. (Although it's hard to say even this for sure. Much of the effort could be equally motivated by a desire to advance one's own fame, career, or sense of self or self-importance; usually it's surely a mix, given the high art to which American professionals have raised the idea of doing well while doing good.) And some of the evidence they offer is quite indirect. But some of that evidence is intriguing. Their survey of law clerks on Twitter is fascinating.  

Third, while the article is mostly concerned with the potential damage to the Court and the adversarial system, I would add my concern, as a member an academic discipline, about virtual briefing's consequences for legal scholars and scholarship. As I wrote in the article I link to above, one standard defense of such activities is that a platform is a platform, and that it hardly matters whether one places one's "lengthy and original analysis of a legal issue," to quote Erwin Chemerinsky, in an amicus brief or an article. (Although it seems to me that if an article and an amicus brief say and do the exact same thing, then one may be doing one or the other job wrong.) And a separate, not quite contrary defense is that no one thinks an op-ed or tweet is anything like a piece of legal scholarship, and that it's wholly possible for the writer to keep these activities in entirely separate categories. I do know people about whom I would say this seems true.

On the other hand, consider three factors: the very blurriness that Fisher and Larsen note above, the difficulty of defining what is and isn't a deliberate form of "virtual briefing"; the number of legal scholars who see all their work not as inevitably political but as deliberately political and "engaged"; and the blurriness of human nature, the extent to which the different activities we engage in subtly influence each other and cannot successfully be kept in separate, airtight mental containers. Even for those who don't mean to blur these lines (and surely some will), there may be some writers who, having undertaken to engage in "serious scholarship," more partisan tweets often influenced by short-term emotions and reactions, op-eds that fall in between, podcasts, and so on, find that work blurring together, and the goals and standards that are supposed to govern each activity becoming indistinct and crumbling. If they cannot recognize that this is happening, how can they act on this recognition? If they do recognize it, will they be willing to say or anything about it? I strongly doubt that virtual briefing has been good for the integrity and quality of legal scholarship or of the legal academy. If and as it becomes the undiscussed norm within and beyond elite circles, and/or an entree to those circles, it seems more likely that the phenomenon will metastasize than that it will become more restrained and self-disciplined. 

Fisher and Larsen conclude by examining several possible responses. In the end, they give the slight nod to a policy of transparency and disclosure. The data they collect about law clerks actually convinces me that it is as or more necessary to engage in internal restrictions (which they also consider). Forbidding law clerks to post on social media seems inadequate, since the real problem is not what they say but the material to which they are exposed, often highly limited material that is mostly about reinforcing their priors. It seems a good minimum idea for judges to simply require law clerks to deactivate any social media account, whether public or anonymous, altogether for the length of their clerkship. (Yes, I assume they will still read newspapers and magazines, doubtless online, along with blogs and other Internet material. While it wouldn't break my heart as a judge to insist that my clerks stay off the Internet for a year, at least the social-media rule would cut down on the hottest of hot takes and the most impulsive, transient, and unreliable reactions.) That won't address the scholarly ethics problem I discuss above, but that's a separate problem that requires its own discussion and response in any event. 

Read the article! It's a start--as it's intended to be. 

Posted by Paul Horwitz on May 29, 2019 at 01:31 PM in Paul Horwitz | Permalink | Comments (0)

Politics and sports, again

The Fresno Grizzlies, the Washington Nationals' AAA affiliate, is being criticized for a video it showed on the scoreboard during its Memorial Day game. Images were shown over the sound of Ronald Reagan's First Inaugural; when the speech turned to "enemies of freedom," the video showed Kim Jong-un, Fidel Castro, Alexandria Ocasio-Cortez, and various protesters holding ANTIFA and "NO TRUMP NO KKK" signs. The team has apologized to Ocasio-Cortez specifically and to fans generally; the official team line is that the video was produced by a third party and found online (it seems to be available on You Tube) and no one with decisionmaking authority within the organization watched the whole thing.

Continue reading "Politics and sports, again"

Posted by Howard Wasserman on May 29, 2019 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Tuesday, May 28, 2019

Mitch McConnell and neutral principles

Over the weekend, Senate Majority Leader Mitch McConnell told a Chamber of Commerce luncheon that the Senate would fill a Supreme Court vacancy that should arise in 2020, contra his arguments in 2016 that the Senate should not fill Justice Scalia's seat in an election year but should let the people decide who should fill the vacancy. Asked to explain the seeming inconsistency, McConnell spokesman David Popp said the difference is that in 2016, the President was a Democrat and the Senate was controlled by Republicans, while now the Republicans control both.

Obviously that is nowhere close to what McConnell argued three years ago. But what would McConnell say about the converse of 2016--would not filling the seat be similarly proper when the President was a Republican and the Senate controlled by Democrats? That is, was Popp's point about split partisan control (a nonsense argument, but at least neutral) or was it specifically Democratic President and Republican Senate that made it ok, while the converse would not be?

I would have expected a different disingenuous argument, one that would sound slightly more neutral: The difference is that in 2020 the incumbent is seeking reelection and so is in the prime of his executive power, whereas the Democrat presented to the voters was not the current President. Again, a stupid argument. But it at least pretends to rest on some principle besides "now my party has the White House."

Posted by Howard Wasserman on May 28, 2019 at 10:56 PM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

We have Nieves (finally)--now what?

After six months, the Court finally decided Nieves v. Bartlett. My SCOTUSBlog analysis is here.

I am guessing the long delay owed to five opinions flying around with different combinations of ideas. Eight Justices agreed that the plaintiffs should lose here on summary; only Sotomayor would affirm, because the defendants did not challenge the way the Ninth Circuit applied the standard. Eight Justices agreed that that the presence of probable cause does not automatically defeat all retaliatory-arrest claims; only Justice Thomas made that argument. Two Justices (Ginsburg and Sotomayor) argued that the Mt. Healthy burden-shifting framework should apply; two Justices (Sotomayor and Gorsuch) argued that any direct evidence of improper motive, not only comparison of similarly situated persons, should be sufficient to show improper motive. A five-Justice majority (the Chief for Breyer, Alito, Kagan, and Kavanaugh) said probable cause is required unless the plaintiff can show objective evidence that he was arrested when similarly situated persons who did not engage in his speech were not. Both Sotomayor and Gorsuch feared this standard was insufficiently protective of First Amendment interests--Sotomayor's solution was to challenge the standard as wrong, while Gorsuch's was to work the lower-court refs and convince them that the majority's approach is broader than its language would suggest.

I am surprised by two things, First, Ginsburg was not able to cobble together a majority with Breyer, Sotomayor, Kagan, and Gorsuch, given the concerns that Kagan raised during argument. Second, no one emphasized proposed limitations as between serious and petty crimes or as between probable cause for the immediate charge at the time of arrest or probable cause based on a months-long scouring of the statute book.

Also, note the way Sotomayor's dissent engages with recent scholarship exposing the reality of police/public interactions and the litigation that results. This includes noting that any defendant police officers likely were indemnified and that most encounters are recorded by both police and members of the public, producing more evidence to prove (or disprove) improper motive.

Posted by Howard Wasserman on May 28, 2019 at 10:09 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Never Mind

After Alabama enacted its new abortion statute, I suggested in a post (on Jack Balkin's group blog) that the liberal Justices might want to grant certiorari when the litigation reached the Court. The way in which the Indiana abortion statute was handled today, though, indicates that the Court wants to stay as far away from this issue as possible (for now.)

Posted by Gerard Magliocca on May 28, 2019 at 09:50 PM | Permalink | Comments (1)

Saturday, May 25, 2019

The difficulty of civil rights relief

I may give my Civil Rights class the story of San Francisco police raid on a free-lance journalist seeking the identity of the journalist's source and unused material for a story on the death of the county public defender. The chief of the San Francisco police apologized on Friday, saying the search and seizure was wrong in several respects, that it would not use the materials seized, and that the matter was being referred to other agencies for further investigation. The journalist, Bryan Carmody, has moved to quash the warrants.

The case illustrates the difficulty of obtaining retrospective relief and remedies in federal court for constitutional violations and the way plaintiffs must threat a needle. It thus provides a nice puzzle for class discussion. Consider:

Continue reading "The difficulty of civil rights relief"

Posted by Howard Wasserman on May 25, 2019 at 03:18 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, May 23, 2019

Universal declaratory judgments

Chief Judge Saris of the District of Massachusetts entered a final judgment declaring invalid a Massachusetts law prohibiting surreptitious recording of government officials. This was two consolidated actions, one brought by two individuals and one brought by an investigative-journalism organization.

The court declined to issue a permanent injunction, finding that a declaratory judgment was sufficient, in part because:

Defendants have stated they will follow this Court's ruling, and the Court will take them at their word. . . .The Court "assume[s] that municipalities and public officers will do their duty when disputed questions have been finally adjudicated and the rights and liabilities of the parties have been finally determined . . ."

But what does it mean to follow the court's ruling? Does it mean not enforcing the law against the plaintiffs in these cases or does it mean not enforcing the law against anyone? That is, can a declaratory judgment be universal to protect beyond the named plaintiffs? Or must declaratory judgments be particularized, as injunctions must be (or so I argue). This affects what might trigger conversion of the D/J into an injunction-were the government to attempt to enforce the law against someone other than the plaintiffs.

The answer should be that a declaratory judgment must be as particularized as an injunction. Under the Article III/litigation-structure arguments from Sam Bray, Michael Morley, and me, the point is that any judicial remedy must be particularized because the remedy should resolve the dispute between the parties to the action and not beyond. In endorsing particularity in federal remedies, SCOTUS explicitly treated declaratory and injunction relief the same, as stopping enforcement of the challenged law only against the federal plaintiffs and leaving the state free to enforce against others who violate the statute. Moreover, declaratory judgments are a "milder" form of relief because non-coercive, compared with the "strong medicine" of an injunction. If so, it would not make sense for the milder remedy to have broader party effects than the stronger remedy. Finally, it would be odd for these plaintiffs to be able to convert to an injunction to stop enforcement of the law against someone else, just as one individual cannot ask a court to enjoin enforcement of a law against someone else.

Posted by Howard Wasserman on May 23, 2019 at 09:15 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (13)

JOTWELL: Erbsen on Frye on Tompkins

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Bryan L. Frye, The Ballad of Harry James Tompkins, 52 Akron L. Rev. 531 (2019), which argues that we may have the facts of Erie wrong, that Tompkins actually was trying to jump on the train when he was struck by that protrusion.

Posted by Howard Wasserman on May 23, 2019 at 11:57 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

FIU Micro-Symposium: Infield Fly Rule Is in Effect (Updated)

I am happy to announce that FIU Law Review has published a micro-symposium on my book, Infield Fly Rule Is in Effect. We found nine people, in and out of legal academia, to write short comments, followed by my overall response. This was fun to put together.

I want to flag two contributions containing ideas that I really wish I had seen or thought of myself while I was writing the book, if only to respond to them.

Rob Nelson, a former minor-league pitcher and the founder of Big League Chew, introduced what he called the "Enfield Fly Rule." There are two versions, both designed to keep the basic protections of the Rule in place but denying to the defense any windfall from an unintentional drop. Under one version, an infield fly is a foul ball, so the batter is out if it is caught and the ball is foul if it is not caught. Under a second version, the ball is fair and live if caught (so the runners could tag-up), but a do-over if not caught (so it does not even count as a strike).

Spencer Waller (Loyola) identifies another non-baseball situation requiring a limiting rule--flopping in soccer and in basketball. Both fit the criteria I described for when a limiting rule is needed to deter the conduct and avoid an extraordinary benefit. What is interesting is that the solution both soccer and basketball have come up with is post-game sanctions of fines and/or suspensions should officials, upon reviewing plays on video, identify a flop. But these rules do nothing to sanction or deter the flop in the moment, thereby allowing the flopping player to gain the benefit of the flop (a penalty kick or red card in soccer, free throws or a turnover in basketball). So fines or suspensions may not provide sufficient deterrence against the conduct--a player may deem the flop worth it in the moment to allow his team to win, willing to deal with a fine or even one-game suspension after the fact.

Posted by Howard Wasserman on May 23, 2019 at 11:48 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, May 21, 2019

Waiting for Nieves v. Bartlett

SCOTUS heard argument in Nieves v. Bartlett on November 26, the first case of the December sitting. This means it will be more than five six months from argument to decision, even if the case comes on the next opinion day (Tuesday, May 28). It was obvious from the argument that the Court was divided and searching for a middle ground that would leave officers free to handle disorderly conduct situations while not leaving police free to arrest government critics for minor violations, while also not having lots of cases going to trial. The long drafting time suggests a divided court and multiple opinions.

The Court heard ten cases in this sitting; seven have been decided and three remain--Gamble (Fifth Amendment separate sovereign), Carpenter (how much of eastern Oklahoma remains Indian reservation), and Nieves. Roberts and Alito have not written anything from this sitting. Both seemed inclined towards the officer in Nieves.

Posted by Howard Wasserman on May 21, 2019 at 11:49 AM in First Amendment, Howard Wasserman | Permalink | Comments (4)

Florida State Law Review Summer 2019 Exclusive Submission Track

The Florida State University Law Review is delighted to open an exclusive submission track for Summer 2019. Authors who submit to the exclusive submission track agree to accept a binding publication offer, should one be extended. Authors agree to withhold submitting their manuscripts to any other journal until a decision has been made. The exclusive submission track will open from May 27^th to June 16^th and decisions will be rendered by June 23. Accepted manuscripts will be published in Volume 47 of the Law Review. Final manuscripts will be due November 15^th for Issues 3 and 4. Articles selected for Issues 3 and 4 are expected to be published in August 2020.

Continue reading "Florida State Law Review Summer 2019 Exclusive Submission Track"

Posted by Howard Wasserman on May 21, 2019 at 10:55 AM in Teaching Law | Permalink | Comments (1)

Birth Rights and Wrongs

My wonderful colleague Dov Fox has a new fascinating book out this week - Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law. The book looks at the fast-changing science and practices of reproduction and examine what happens when mistakes are made - tests are misread, labs mess up IVF, doctors make wrong calls. Dov is a leader in the field and the book is sure to become central in any discussion about reproduction. It has already been receiving glowing reviews which you can read here. A must-read - I highly recommend it!

From the cover:

Millions of Americans rely on the likes of birth control, IVF, and genetic testing to make plans as intimate and far-reaching as any they ever make. This is no less than the medicine of miracles. It fills empty cradles, frees families from terrible disease, and empowers them to fashion their lives on their own terms. But every year, thousands of accidents happen: Pharmacists mix up pills. Lab techs misread tests. Obstetricians tell women their healthy fetuses would be stillborn...

The book sets forth a new way of thinking and talking about reproductive interests and injuries in law and life. We’re used to blaming randomness or cosmic injustice when we don’t get the child we want, or when we get the one we don’t. And yet cutting-edge interventions promise to deliver us from the vagaries of natural conception and the genetic lottery. Sometimes things don’t work out—but that’s no reason to turn a blind eye when bad behavior seriously impairs efforts to avoid, pursue, and shape procreation. Failed abortions, lost embryos, and switched donors may be first-world problems. But these aren’t innocent lapses or harmless errors. They’re wrongs in need of rights.

Posted by Orly Lobel on May 21, 2019 at 12:31 AM | Permalink | Comments (0)

Monday, May 20, 2019

"Sponsored" Symposia: A Possible Trend--and Cause for Concern--in Elite Flagship Law Review Publishing

I have been holding on to this blog post for a while, for various and mostly obvious reasons. But when a potential trend arises that deserves to be noted and discussed, and some thought given to future policies, surely someone ought to call attention to it. You can be sure that I will do my best to be careful and descriptive, note any instances in which I lack information, and add the usual layers of caveats, although mostly at the end, not the beginning. So my warning (but not apology) in advance about any entirely typical excessive length. 

In the past year, I have noticed some top-15 law reviews (by the usual rough and customary measures) doing something I have rarely if ever seen at the elite main or flagship law reviews. There are three such examples I'm aware of--three being, by journalistic tradition, enough to count as a "trend." The trend, if it is that, hardly portends the end of the world. (Neither, by the same token, would the utter disappearance of the top ten law reviews be the end of the world--but I don't doubt that would be noted and discussed.) But its importance and possible impact is larger than it might appear at first, and does have some distinctly disquieting aspects. I am less concerned with criticizing it (although I do just that) than I am with drawing it to our attention, calling for us to think about it, and suggesting that law review faculty advisors and law school administrators ought to be aware and proactive about it rather than passive or indifferent. 

The trend, roughly, is this: A number of elite flagship law reviews have been giving over issues of their volume to symposia or special issues that are 1) sponsored by or with particular groups; 2) generally, the groups have particular positions, agendas, leanings, or however you want to describe them; 3) the topic or topics of the symposium reflect that position; and 4) it seems pretty clearly reflected too in the list of speakers.

Let me describe the examples I have in mind. I did not reach out to anyone involved, for better or worse. I'm simply basing my description on the public record, which seems entirely fair. But I would be very glad to learn more, and it might change my views or alleviate my concerns. Where I offer an opinion, I make that clear and take full responsibility for it. Of course I acknowledge that people may disagree with my own assessment. I also acknowledge that, although we are talking about unusually privileged young adults who should not be immune from criticism or treated as if they should never be publicly discussed--not if we are to treat them with genuine respect, anyway--this post does involve law students. I'll save the usual list of caveats until later, but you can take it as a given that nothing here is offered in contempt or disrespect. Indeed, my primary concern is not with the students themselves but with the advice they're getting (or not getting), or pressures they're facing, from tenured and influential law professors, and with the role of law review faculty advisors and law school administrators.

Here are the three examples:

1) The November 2018 Columbia Law Review is a symposium issue titled A First Amendment For All?: Free Expression in An Age of Inequality. The symposium was co-sponsored by the Knight First Amendment Institute at Columbia and the Center for Constitutional Governance. I know very little about the latter center, although it looks general enough in mission and affiliated faculty based on its web site. I do roughly follow the work and publications of the former, which in my opinion does tend to have a particular focus and orientation. Readers can judge for themselves, but I think it is fair to say that the symposium as a whole had a thesis and an underlying belief in and desire to advance and promote that thesis. This is not, by a long shot, a knock on the quality of the articles, including those that share the thesis entirely. And there are two, by Leslie Kendrick and Louis Michael Seidman, that I think are reasonably and commendably skeptical about the value of the project (although I have long wondered whether or not the symposium organizers and other participants were or weren't truly delighted to find Seidman more or less outflanking everyone on the left, rather than from a position of mere progressivism, and from a posture of skepticism about shoehorning every political project into something involving judicial review). The listed participants at the symposium, including the moderators (I have also wondered whether they asked Philip Hamburger to participate or moderate or not, given his recent scholarly focus on speech and religion issues), seem, from my general knowledge, mostly sympathetic to the basic thesis. The print articles don't appear to feature any strong skeptics of the basic thesis, champions of a soi-disant "First Amendment Lochnerism" or strong civil libertarianism, or other genuinely heterodox (in this context) views. 

2) The 2019 UCLA Law Review Symposium, titled Latinx Communities, Race, and the Criminal Justice System, is listed as co-sponsored by the Law Review and "BruinX, Office of Equity, Diversity and Inclusion." (UCLA community members are free to correct me, but I believe BruinX is the research and development arm of UCLA's Office of Equity, Diversity and Inclusion. I can't tell from the comma whether one or both institutions were involved, although I suspect it's the former.) The subjects covered at the symposium are not in my area, so I hesitate to offer descriptions or assessments of how and whether other or different perspectives were, were not, or could have been a part of the symposium. I assume the symposium will result in a print issue, but it has not yet, so I can't say for sure. Nor can I say what its contents will be if it does land in print. 

3) The 2019 Texas Law Review Symposium, Reclaiming Constitutional Norms, is listed as having been co-sponsored by the American Constitution Society. As is, I gather, usual for ACS events, the speakers listed for each panel feature (from my outside reading and estimation, at least) several speakers likely to line up roughly on one side of an issue and/or be ACS members or regulars and one person likely to offer a different perspective. (Of course there may be differences between those who are roughly on the same side of an issue; and conversely, of course there is no guarantee that everyone invited to offer a different perspective was as "different" as one could have asked for or actually did offer a heterodox perspective on the issue. For example, I don't know whether anyone was invited to participate who is skeptical of the very idea of constitutional "norms," or at least critical of the sudden popularity of this concept and of the potentially fair-weather use to which it is currently being put.) Despite my respect for the organizers and for the commendable fact of some obvious effort to include different views here, I suppose I find this symposium especially unusual in that the ACS has its own publications, including the Harvard Law & Policy Review. Given that the ACS's mission is openly political or ideological or however one wants to describe it--and one can definitely applaud it for its candor about this--and that it has its own publications, it is perhaps especially odd to see it partnering with the prestigious general-interest law review of a large public university law school. I assume that a symposium issue of the law review will result, but again I can't say for sure; nor do I know what the contents of such an issue would be. 

If there are other recent examples of sponsored or co-sponsored symposium issues of this sort in what I will call generally elite flagship law reviews (as opposed to secondary journals at elite schools), do speak up and let me know. I think three is enough to go on, in any event, in suggesting that there are various questions we should be asking about this and various legitimate concerns we might have about it. The questions and concerns include:

Continue reading ""Sponsored" Symposia: A Possible Trend--and Cause for Concern--in Elite Flagship Law Review Publishing"

Posted by Paul Horwitz on May 20, 2019 at 06:23 PM in Paul Horwitz | Permalink | Comments (16)

Interviewing Fellowship and VAP Directors: What Do You Want to Know?

In an earlier post, I explained my plan to interview as many VAP and fellowship directors as I can this summer, with the goal of improving transparency into how these programs work and how to make the most of them.  The series itself will start in June, but first I want your input.  What do you want to know about these programs?  For those who have done a VAP or fellowship recently, what do you wish you had known before you started?  For those of you who are contemplating these programs, what are you wondering about?  I have included a draft list of questions below, but I am open to editing them or adding more.  My goal is to make this series as helpful as possible, so let me know what you want to know!  You should also feel free to reach out to me directly at [email protected] if you want to share additional questions or thoughts.

Let me also acknowledge the elephant in the room.  I know a lot of people don’t like the gatekeeping nature of VAPs and fellowships or the exclusionary nature of the law teaching market more generally.  I get it.  I have very mixed views on it myself.  Following up on Paul’s very helpful post, I have included a few questions related to the broader policy implications of VAPs and fellowships, and I also hope Paul’s post sparks a broader discussion about these programs and law faculty hiring more generally.  My series of interviews feeds into this debate, to be sure, but I also recognize that, like it or not, this is the market reality for aspiring law faculty and we are all better off if people know as much as possible about how the system works now.  It doesn’t do anyone any good to debate the system among ourselves, while keeping information about how it works now under wraps.  And I am very open to expanding this series to include law faculty who have been on hiring committees, non-traditional candidates, etc. after the original round of interviews.  So let’s get more information out there, while also working to improve things as much as we can. 

Draft Questions:

Application Process

1. When does the program start accepting applications?
2. What is the timeline for conducting interviews?
3. How are the interviews structured? Are there first-round and second-round interviews?
4. When has the fellowship typically filled all of the positions?
5. How many fellowships are available? Is there flexibility in the number of fellows each year, and if so, how does that affect future years?
6. How many applications are typically received?
7. Who selects the fellows? Is there a committee? Is there a chair?
8. If the fellows have teaching responsibilities, how does the application process gauge their teaching ability?
9. What additional criteria is used to select the fellows? What helps an applicant stand out in the application process?
10. Which of the following do successful applicants typically have when they apply­— A research agenda? A draft of a paper?  One or more published papers (other than a student note)?
11. Does the program have a preference for candidates in particular curricular areas?
12. Does the program have a preference for candidates with PhDs?
13. Do you make any special effort to hire candidates from diverse backgrounds?

Fellowship Basics

1. How long does the fellowship last?
2. Is the fellowship renewable? If so, under what circumstances?
3. How much are fellows paid per year?
4. Do fellows receive health benefits?
5. Do fellows receive access to university or university-subsidized housing?
6. Do fellows receive travel funding and/or other professional development funding?
7. Do fellows receive funding to hire research assistants?
8. Do fellows receive reimbursement for any law teaching market-related expenses?
9. Are fellows expected to live in the same city as the law school?

Making the Most of a Fellowship

1. Approximately how many fellows are at the law school in a given year?
2. How often do the fellows get together and in what capacity (i.e., a regular workshop series)?
3. Do fellows participate in the broader intellectual life of the law school (i.e., faculty workshops), and if so, how?
4. Who supervises the fellows?
5. Are fellows matched with an assigned mentor or guided towards faculty in their area of interest at the law school, and if so, how?
6. Are fellows given assistance in making connections with law faculty in their area of interest at other law schools, and if so, how?
7. Are fellows given other support related to their research?
8. Are fellows given assistance in developing a research agenda?
9. What role do fellowship directors or faculty at the school play in helping VAPs or fellows place their work?
10. Are fellows given assistance in finding recommenders?
11. Do you have any special advice for candidates with PhDs doing a VAP or fellowship? Are there special considerations they should keep in mind?
12. Does the fellow have teaching responsibilities?
13. If so, what courses do they teach? Do they have any input in what courses they teach?  Do they have the opportunity to teach one or more courses in their area of interest?
14. What percentage of time should they expect to spend on teaching vs. scholarship vs. other administrative responsibilities?
15. What training and/or mentoring do fellows receive related to their teaching?
16. What other duties do the fellows have?
17. What other advice do you have for fellows when it comes to making the most of the VAP or fellowship?

The Job Market

1. What type of mentoring do fellows receive related to the hiring process?
2. Do you have faculty or staff who are responsible for shepherding fellows through the market?
3. Do fellows have an opportunity to do a mock screening interview?
4. Do fellows have an opportunity to moot their job talk in front of faculty and/or other fellows?
5. Does the school run a moot camp for fellows and alums?
6. Do fellows have the opportunity to receive feedback on their application materials from faculty or others at the school?
7. What percentage of your fellows over the past 5 or 10 years have landed in tenure-track positions at law schools? Is there a list of these fellows and their positions available online?
8. Do you support fellows who need to go on the teaching market more than once? If so, how? Is the fellowship renewable for another year?

Broader Questions

1. What do you think are the benefits of the rise of fellowships and VAPs as an entry point for so many law faculty positions? What do you think are the costs?
2. Do you think that fellowship and VAP programs have any responsibility for helping to open up law faculty positions to people from diverse or non-traditional backgrounds? How does your program help to do that, if at all?
3. How do you respond to the criticism that VAPs and fellows may get too much help on their scholarship from you or others on the faculty and that therefore it is hard for hiring committees to know how much of the work and ideas comes from the VAPs or fellows themselves?
4. What do you want hiring committees to know about your fellowship? Any other thoughts you’d like to pass on to them about the state of law faculty hiring?

Posted by Jessica Erickson on May 20, 2019 at 04:12 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (5)

Sunday, May 19, 2019

Prof. John Copeland Nagle, RIP

My friend and colleague, John Nagle, passed away yesterday morning. Like everyone who knew John, I'm crushed. He was a warm, kind, and decent man; an insightful and thoughtful scholar; a dedicated teacher and mentor; a generous friend; a loving father and husband; a winsome and inspiring Christian. He was the first person who welcomed me, in the summer of 1999, when I moved into my office at Notre Dame Law School, and I cannot imagine the school -- or, really, my own life in the academy -- without him.

If you are not already familiar with his (voluminous!) scholarship -- on topics from moral pollution to the Desert Sands Fruitfly to severance to environmental stewardship -- have a look.  (I used to tease him for having managed to convert his love of the outdoors and our national parks into a research agenda, but -- obviously -- I was just jealous.)  And, if you have a few minutes, read this lovely tribute and remembrance by his (and my) former student, Prof. Derek Muller (Pepperdine).   

UPDATE:  Here is the announcement, with several quotes and remembrances, from Notre Dame Law School.

Réquiem ætérnam dona eis, Dómine,
et lux perpétua lúceat eis.
Requiéscant in pace. Amen.

Posted by Rick Garnett on May 19, 2019 at 09:05 AM | Permalink | Comments (3)

Friday, May 17, 2019

What's Roe got to do with it?

Andrew Sullivan praises Elizabeth Warren's proposals to codify Roe-level protections through federal legislation, because it allows for a political debate and political compromise that Roe preempted. He also blames Roe for the "batch of truly extreme bills in red states outlawing" abortion, which are designed to gin up a Supreme Court case that, with Brett Kavanaugh on the Court, will overrule Roe and the constitutional right to reproductive choice. But neither premise makes sense.

Sullivan's argument seems to be that because public opinion has remained relatively static on abortion since 1973, that legislators would not enact such extreme laws that are bound to be unpopular. But that makes no sense.  Alabama did not enact this law to challenge Roe for the sake of challenging Roe. It enacted this law because officials want to stop women from having abortions in Alabama. Once Roe is overruled, this remains the law in Alabama; there is no reason to believe that the Alabama legislature, having had its law declared constitutionally valid and enforceable, will say "oh, let's find a compromise." This will be the law in Alabama and the governor will set about enforcing it with glee. And nothing about Alabama's political alignment suggests Republican officials would pay any sort of political price for these laws. Same with Georgia, Missouri, and other states following on this course.

Roe was decided in a world in which abortion was illegal in many states. Without Roe, many of those bans would have remained in place. Or, as some states liberalized reproductive choice (which was happening in the years prior to Roe), other states (likely the states that are in the news now) would have enacted the laws that they are enacting or seeking to enact now. Contra Sullivan, it seems as likely that, without Roe, we would have gotten where we are (or where we are headed), but would have gotten here 40 years ago.

Continue reading "What's Roe got to do with it?"

Posted by Howard Wasserman on May 17, 2019 at 06:17 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Some Suggested Questions for Fellowship and VAP Directors

I'm delighted that Jessica Erickson will be interviewing fellowship and VAP directors. I look forward to the results. I should note that a few years ago, Elizabeth Chamblee Burch and I co-chaired a panel of the AALS section on Scholarship at the annual meeting titled "The State of the Art on Placing Legal Scholarship and its Potential Consequences." A video is available here. Despite the title, as I recollect, part of the discussion was about the role of fellowships and VAPs and of fellowship and VAP directors in shaping and helping to place scholarship. I would also recommend as relevant a book which landed with a thud on my desk this morning: Ted White's third and final volume of Law in American History, specifically chapter 6, "The American Legal Academy and Jurisprudence II: From Process Theory to 'Law And.'" Among other things, it contains interesting discussions of changes in faculty hiring.

The difficulty with suggesting questions for such a series is that in our small world, with all its conventions and strategic considerations, it can be impolitic to ask the questions one actually wants answered, and being impolitic is a cardinal sin among academics, including legal academics. This is one of the academic attractions of "speaking truth to power:" it points outward, not inward, and so lets sleeping dogs lie. Some questions will necessarily reflect on the strengths and weaknesses of the fellows, who are hardly unprivileged but are also only at the beginning of their careers; I do want to ask questions about them, or about the system that produces them, but with no intent to offend or make them nervous. Some questions will reflect on the people who run those programs. In either case, those of us who want to hire these candidates and want to maintain good relations with their mentors risk damaging that goal if we are impolitic. Better, on this view, to ask those questions in private or not ask them at all, on the assumption that people in the know will, well, know--even if that means both that we entrench the usual systems of hierarchy and inside baseball, and even if it means that the people who consider themselves cognoscenti think they know the real story but are actually thin on details and thick on myths and assumptions.

But one of the obligations of academic tenure, which includes responsibility for the state of one's discipline as well as one's individual institution, is to be impolitic.  I'm not sure the questions I ask here are impolitic; I just haven't worried much about whether they are or not. One should also note that there are obvious reasons for the people Jessica will interview to be politic as well, so it's important to dig down and push back if they offer bromides or generalities. In any event, here are some questions I would be happy to have asked and almost as happy to have answered. 

1) What do we lose by relying on fellowships and VAPs in hiring? It seems to me that the answers to the question what we gain from them are much more obvious, and hence less interesting and less worth asking. I'm happy to be proved wrong by answers that teach me something new about what we gain. But many of those gains seem obvious. Most prominently for me, the average level of basic quality and polish of the candidates I have seen over the past 15 years or so has increased significantly. In addition, their commitment to an academic life is more guaranteed, with the departure from (or, alas, skipping of) legal practice and the sacrifice of time involved in a fellowship serving as proxies for the demonstration of commitment to the academic life that is one of the functions of a doctoral program. (I should note that "commitment" is not the same as "calling." Whether we hire people who have an academic calling is a separate question.) In some respects the candidates are more diverse than they would be, and were, in a system that relied more heavily on individual recommendations and sponsorship at a few schools.

But what do we lose by this system? I've previously recommended Martha Nussbaum's article Cooking for a Job: The Law School Hiring Process, which is now aged but still pertinent, if not prescient, in its concern that law school hiring might prize "quickness, glibness, and aggressiveness" and undervalue "reflectiveness, quietness, and uncertainty." Nussbaum argues in part that it would be better if candidates had writing we could judge carefully instead of focusing on their marketing skills and ability to pass "lunch." Well, we now have articles a-plenty from candidates who go through the fellowship/VAP process. But have we moved away from glibness, marketing skills, "catchy phrases and slogans," passing or flunking "lunch," and the like? Or have we rather refined and improved, through the fellowship process, the job of training candidates to show those questionable qualities, in their writing as well as their selling--the job, in sum, of "polishing" candidates? We gain, I have suggested, a higher average threshold level of quality and readiness. But do we miss rough gems--individuals who are not yet "polished" but who in time might be more likely to contribute genuinely new and heterodox ideas? Do we lose promising oddballs and eccentrics? Candidates who are more high-risk but also more high-gain? Do we lose, or let diminish, the ability to see beneath the patina and make deeper judgments? Not to mention losing those practicing lawyers who not only have longer and more meaningful legal experience but also and genuinely have an academic calling, but are not inclined to go the fellowship route?

2) If there are any such losses, do fellowship and VAP directors attempt to address and remedy them, or are these losses baked in to the current system? I think this question goes to both selection and training. On the selection level, are fellowship and VAP directors looking for rough gems and people with unconventional backgrounds? Or are they already predisposed to hire as fellows or VAPs those who have already checked the same old boxes--top five (or top three) school, law review, two federal court clerkships, work for a "suitable" firm or interest group? If it's the latter, is that really the best use of these resources--to further polish the already-fairly-polished? I am asking rather than answering this question: maybe the answer is that these are the most likely best scholars and we should want them to become law teachers, just as we select the most promising undergraduates in history for graduate programs rather than the C students. But the answer to the question seems less obvious to me than that, since a doctorate is a prerequisite to become a history professor and a fellowship, despite increasing reliance on it as a qualification, is not a prerequisite to become a law professor. At the training level, do fellowship directors talk about the difference between surface polish and serious depth? Do they discourage or encourage the use of "catchy phrases and slogans" and the like? Do they serve as a chisel or cudgel or as a chamois for their fellows? When they give references, are they willing to distinguish those of their fellows who are superficially brilliant from those who have greater depths--or at least to let the superficially brilliant speak for themselves while making a greater effort to champion those who don't lunch well but show true promise as scholars and teachers?

3) How much of the "polish" comes from the programs' leaders and faculty and how much from the fellows themselves? Just as the standard level of quality of the top-school fellows and VAPs seems higher and more standardized,  so does their facility and homogeneity in using particular tropes, approaches, strategies, and so on in their scholarship, their presentations, their FAR forms, their interviews, etc. Is this a result of what they are learning from the directors of these programs, or individual faculty mentors? Or is much of it the product of horizontal exchanges of information (and lore)?   

4) Is there any point in doing a fellowship or VAP at a school beyond the top five or ten schools? Is there sufficient justification for having a fellowship program at such schools? Again, I'm answering this question, not presuming an answer. I can speak on the level of experience about how terrific some colleagues who came from fellowships outside the top five schools have been. Nevertheless, hiring rates from those programs are surely lower than from the top schools, and whether a VAP program at such a school provides serious training, mentorship, and so on will surely vary by school. Of course the choice is up to the prospective fellow, who is an adult with a law degree and everything. But it's equally true that such a school could tally up the outcomes and evaluate the depth and quality of its program and decide it's not worth it, or not fair to would-be fellows, to maintain it. If they do maintain it, do the directors at such schools give fair warning to prospective fellows that hiring outcomes go down outside of the most recognized VAP or fellowship programs? 

5) Do top fellows and VAPs over-place their work? If so, how and why? This is another potentially impolitic question, but one on which I have heard plenty of sotto voce consensus. It is true both that the quality and the placement of articles from the candidates I have seen over past 15 years has climbed significantly, but I think the latter is more true than the former. To be clear, I am not speaking ill of the quality of the pieces I am reading by fellows and VAPs; as I said, I think their average quality level has skyrocketed and that the fellowship/VAP process has much to do with that. I would nevertheless suggest that their average level of placement seems to exceed their average level of quality and contribution. (Coming up with a new bottle for old wine, or a new label for an old bottle, has its uses but is not a deep contribution.)

Would the directors agree? (I imagine they would not, or wouldn't say so if they did. But there's no harm in asking.) What role do they, or individual faculty mentors, play in article placement for fellows and VAPs under their care? Some? None? A great deal? Should they play any role in helping their fellows with placement at all? I see excellent reasons why the answer should be no, other than advice about how best to write and frame an article and even about how best to play the placement game (although I hope they include some skepticism about that game along with their advice). I think that directors could (must, really) at least be candid about saying whether or not they or other faculty members help push or place articles. But I no longer assume that they are the sole reason. Coming from another country, I did not fully participate in the networks of elite social capital when I was beginning my career in the US or in legal academia. I certainly benefited from some of that, but I didn't have the same level of network and really wasn't aware of much that goes on--and still am not, for the most part blissfully. How much does placement for fellows or VAPs at top law reviews depend less on their program (except as a basic credential that law reviews can use for plausible justification) and more on the individual fellows' past or present acquaintance with the student editors at those journals, through law school, clerkships and clerk networks, undergraduate institutions, and other elite small-world factors? If that's what's going on, it's another excellent reason to question the law review system (and perhaps the United States) as a whole, but not something I'd lay at the feet of the programs and their directors. Still, I'd like to know more. I hate to assume anything in this area without knowledge, and it's precisely knowledge that is in short supply, or kept under wraps rather than made utterly transparent. I will add again, lest I be thought too rude in asking this question, that I have heard more than a few professors suggesting that a number of recent articles by elite fellows seem clearly overplaced, even if they are good, and certainly polished, articles. Doubtless they could all be wrong, and doubtless many of them would disagree about which articles are or aren't overplaced. But it seems odd for this observation to be simultaneously widespread and not publicly discussed.     

6) Do elite fellowship and VAP programs challenge questionable versions of "meritocracy," improve them, or entrench them, or some or all of the above? One of the advantages of these systems--at least if they are fully and generously funded, and even then one must factor in those potential candidates whose family commitments in particular places may make them less willing or able to take on a fellowship or VAP--is that it relies less on the "old boy" network (which can still be an old boy network even if it extends beyond boys) under which Dean A at Law School taps Student B on the shoulder and destines him or her for a teaching job. That was the older system, and one finds constant reference to it in the memoirs of or histories discussing mid-century law professors of note. There is no doubt that along some lines, the fellowship/VAP system is more diverse. Of course, a system in which no fellowships existed but we did have a meat market could also result in diversity of hiring, but one advantage of the fellowship system--here I'm focusing on this as a plus rather than a minus--is that it teaches some promising people some of the vocabulary and polish that others imbibed from professor parents or other sources of relevant training and social capital. Do elite fellowship directors seek out such students, or concentrate on those who already have that social capital and just polish them up a little more? (See question 2 above.) Do they look for socioeconomic as well as other forms of diversity? Do they look for ideological diversity, including giving serious weight to clerkships or legal work experience for judges or groups that don't have the cachet of certain other judges or groups? Do they do the same when it comes to the hiring process? I have noticed that some fellows who take slightly more heterodox or unpopular positions on hot-button issues have placed extremely well while still fellows, but fared less well at the hiring level. That difference also means that once they're berthed at less prestigious schools compared to those at which their more orthodox fellow fellows (pardon me) have landed, articles of comparable quality will place more poorly depending on where a fellow has ended up. Again, I don't lay that at the feet of the directors. But have they noticed this--and if so, have they worked to counter it? Ultimately, is the fellowship/VAP program a way of countering the usual reproduction of hierarchy, a way of keeping it but making it fairer and more equitable, or a way of modernizing the same old phenomenon and dressing it up in more respectable garb? Is this something that the programs, their directors, and their schools think about, worry about, and discuss?

7) How can fellowship directors cultivate a knowledge of--and an interest in on the part of prospective professors--a wider spectrum of these United States? One potential problem with a reproduction of hierarchy system is that both its senior and its junior members can be caught up in a closed loop of limited life experience. To exaggerate, a person who grows up in Brookline, shuttles between Cambridge and New Haven for his or her education, and then briefly lives and works in New York and DC before returning to Cambridge or New Haven for a fellowship may lack a more comprehensive knowledge of what possibilities lie outside that rather parochial experience. And if that person's mentor has followed the same arc, traversing the spectrum all the way from A to B, the problem is compounded. I have encountered fellows for whom the idea of teaching outside about ten schools and four cities was seemingly far from their experience, and fellows who told me about rather narrow advice they were given by elite mentors about where to teach. Do directors of these programs make an effort to learn about law schools across the country and pass on what they know? Do they encourage their fellows to think beyond a short list of schools or cities? Do they feel they know enough to do so, or that their colleagues who serve as mentors do?

I'm sure others can and will come up with other questions, but this is certainly a start.  

 

Posted by Paul Horwitz on May 17, 2019 at 05:08 PM in Paul Horwitz | Permalink | Comments (12)

New Summer Series: Interviewing Fellowship and VAP Directors

Thanks, Howard, for introducing this new series!  As Howard mentioned, I am the Chair of the AALS Committee on Becoming a Law Teacher.  The Committee’s goal is to improve the available resources regarding how to become a law professor.  There is information out there already, to be sure, but it is pretty scattered and if you were new to the law professor world and didn’t have many connections, it could feel pretty puzzling.  What is a job talk anyway?  And how about a research agenda?  And why is everyone terrified about the Wardman Park Hotel?  Our goal is to demystify the process as much as we can.

That’s the big project, but we are partnering with prawfsblawg on one specific part of it.  As we started to dig into the data, it become clear to us that VAPs and fellowships are the de facto gateway into the profession.  We all know that to some extent, but the stats that Sarah Lawsky has put together are even more striking than we would have guessed. Almost everyone (literally, almost everyone!) who is hired for a tenure-track law professor job today has either done a fellowship or VAP or has gotten a PhD.  And yet, while there is some information available on the tenure-track market, there is surprisingly little information about these programs.  How do you get a fellowship?  How does one fellowship differ from another in terms of mentoring, teaching and research time, and basic employment terms?  And how can you make the best use of your fellowship time to prepare for the entry-level market?  If you have stayed in touch with your law school professors or have friends who have done VAPs or fellowships, they might be able to give you some information about specific programs.  Otherwise, though, you are on your own. 

Our hope is to change that.  Over the summer, I will interview the directors of as many VAPs and fellowships as I can.  I will ask them all of the questions I would have had when I was new on the market, along with additional questions I crowdsource here from all of you.  Then I will post edited transcripts of the interviews here on prawfsblawg and on AALS’s website.  My goal is to post one interview per week starting in June and continuing through most of the summer.  I will also maintain a spreadsheet of basic information about each program for easy comparison. 

I’ll be back in a few days with a draft list of questions for the interviews, and I would love your feedback!

Posted by Jessica Erickson on May 17, 2019 at 09:53 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (24)

Introducing Jessica Erickson on AALS hiring

Over the next few weeks and months, we will publish a series of guest posts from Jessica Erickson (Richmond). Jessica is the chair of the AALS Committee on Becoming a Law Teacher; the committee's new project is providing information on how law-faculty hiring functions, formally and behind the scenes. Jessica will interview directors of VAP and fellowship programs and will post edited transcripts here and at the AALS website.

Stay tuned.

Posted by Howard Wasserman on May 17, 2019 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Thursday, May 16, 2019

The Making of a Justice

I read Justice Stevens' memoir with interest. There are many pleasing anecdotes, and the book gives the first detailed account from a Justice about what occurred behind the scenes in landmark cases such as Bush v. Gore and Heller. The fact that he can write any book at 99 years of age is amazing.

That said, Justice Stevens either had no editor or a bad one. There are more than the expected number of errors in the book. For example, at one point he says: "My fourth term on the Court began a month before Jimmy Carter defeated Gerald Ford in the 1978 presidential election." This sentence contains two mistakes that an editor should have corrected. Justice Stevens also says that George W. Bush's second inauguration occurred in 2004, which is another unfortunate typo. The book is also too long and becomes something of a death march through the Justice's opinions. Best to just skim. 

Posted by Gerard Magliocca on May 16, 2019 at 09:34 PM | Permalink | Comments (1)

Getting the nomenclature right

I am picking on this CNN article, but it is common to the erroneously framed discussion of what happens next with Alabama's abortion law. The governor signed the bill yesterday and by its terms it becomes effective six months after it takes effect, so mid-November. Plaintiffs are getting ready to sue.*

[*] The lawsuits are ripe and plaintiffs have standing even suits are filed before the law takes effect in November. Courts treat cases as ripe when filed before a delayed effective date, at least absent some indication that the situation could change before the effective date, which is unlikely here. The most recent cases to highlight this principle were the challenges to the Affordable Care Act, which were brought years before most provisions (such as the individual mandate) took effect.

What will not happen: The courts will not stop the law from taking "effect." The courts will not "block" or "stop" or "halt" the law. Courts do not have the power to do that through private litigation, as it would impinge on the legislative power. A law takes effect whenever the enacting legislature says it takes effect and courts cannot block or halt that. The statute will remain part of the laws of Alabama forever (unless repealed), a monument to the political moment.

What will happen: The courts will enjoin the Alabama executive from enforcing that law against certain persons, presumably a class or clients of a Planned Parenthood facility. The statute remains part of the laws of Alabama, but the state executive cannot enforce it, on pain of contempt of court.

Posted by Howard Wasserman on May 16, 2019 at 08:24 AM | Permalink | Comments (7)

Wednesday, May 15, 2019

The new abortion laws and judicial departmentalism (Updated)

Whatever I may believe about the new abortion restrictions in Ohio, Alabama, and Georgia as a matter of policy or validity under my normative understanding of the Constitution, the process is playing as it should in a judicial-departmentalism regime:

The political branches enact--and plan to enforce--laws that they believe are valid on their best constitutional understanding. That this understanding conflicts with prevailing judicial doctrine does not matter. In fact, it cannot matter. Judicial doctrine can change only if there are new cases for the courts to hear and decide; new cases arise only if governments enact laws that might be invalid under current doctrine, then are able to argue for reversing existing law or establishing new law in defending those laws in court (whether against a defense in an enforcement action or as defendant in a pre-enforcement Ex Parte Young action). The government then takes its chances. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees.  This is how the system, and the interplay among co-equal branches with interpretive authority, works.

Dahlia Lithwick argues that these new abortion restrictions put Chief Justice Roberts in a bind. Roberts, Lithwick, argues, wants to maintain the facade that judicial decisionmaking is more than raw politics; one way to do so is through incrementalism, rather than overruling the right to reproductive freedom in one fell swoop. The way to do that is to allow lower courts to declare these new laws invalid (as they are under existing doctrine) and enjoin their enforcement, then deny cert (all while deciding other cases involving other laws that allow the Court to limit the right without overruling precedent). The problem is that it takes four (Thomas, Alito, Gorsuch, Kavanaugh) to grant cert in one of these cases, which might force Roberts to forego his desired institutionalism or vote to retain Roe as precedent. Unless he can convince Kavanaugh or Gorsuch to join him in slow-walking things.

This argument works both ways politically. Imagine Hillary Clinton had won, appointed Merrick Garland and Sri Srinivasin to the Court, and now want to overrule Shelby County so DOJ can resume enforcing the pre-clearance requirements of the Voting Rights Act. What would have to happen? DOJ would resume enforcement efforts, creating new litigation in which DOJ argues that Shelby County should be overruled. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees. But there would be no alternative way to set-up the judicial question.

Update: Gerard paints a different scenario, in which Ginsburg, Breyer, Sotomayor, and Kagan rush to grant cert (perhaps after the district court issues the inevitable injunction but before judgment in the 11th Circuit), daring their brethren (literally, given the gender divides on the Court) to eliminate the constitutional right to abortion in a case involving laws that allow for no narrowing construction, provide no exceptions, and are punitive in nature. And all in an election year.

Posted by Howard Wasserman on May 15, 2019 at 06:45 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Goldilocks and the Future of Legal Scholarship - Symposium Issue

Last semester, Loyola Chicago held an excellent conference on the big question of "The Future of Legal Scholarship". The symposium issue of the journal is now available and includes articles by the anonymous illustrious Law Prof co-authored with Darren Bush, LAW REVIEWS, CITATION COUNTS, and TWITTER (Oh my!): Behind the Curtains of the Law Professor’s Search for Meaning;Caprice Roberts on Unpopular Opinions on Legal Scholarship; The Law Review Follies by Eric J. Segall; Picking Spinach by Anthony Michael Kreis, and finally, my article:The Goldilocks Paths of Legal Scholarship in a Digital Networked World.

Posted by Orly Lobel on May 15, 2019 at 03:04 PM | Permalink | Comments (3)

Ballparks as public spaces and free speech

Interesting interview with architectural critic Paul Goldberger about his new book, Ballpark: Baseball in the American City, in which he describes baseball parks as "a key part of a whole category of public space in the American city." I have a thing for old ballparks, so I look forward to seeing the book.

Goldberger's conception of the ballpark as "public space" is key to my arguments about fan speech. Because the First Amendment is understood as making (publicly owned or controlled) public spaces open for expressive activities, at least so long as expression is not inconsistent with other uses of that space. The grandstand of a ballpark is a large speech zone--the whole point of the space is to allow fans to speak in the form of cheering, shouting, waving signs, etc.

Posted by Howard Wasserman on May 15, 2019 at 09:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (5)

Tuesday, May 14, 2019

Exclusive Submissions: Kentucky Law Journal

The Kentucky Law Journal is opening an exclusive article submission track for interested authors. The submission track will open on Wednesday, May 15 and close on Sunday, June 2, 2019. Final publication decisions will be made by Tuesday, June 4, 2019. Authors agree to accept a binding publication offer if the manuscript is selected for publication. Authors further agree to withhold manuscripts from other publications until final publication decisions are made. Accepted manuscripts will be published in Book 2 (final manuscript deadline July 1) and Book 3 (final manuscript deadline September 3). Please include a Book 3 preference in your cover letter if you cannot make Book 2 deadline.

We welcome manuscript submissions from any area of legal scholarship. We look forward to reviewing innovative manuscripts from a diverse academic field. Please send all submissions in PDF format, including manuscript, CV, and cover letter, to Alexander Pabon, Managing Articles Editor of the Kentucky Law Journal, at [email protected] If you have already submitted your manuscript via Scholastica, we ask that you please resubmit your materials in the method described above before the June 2 deadline.

Posted by Howard Wasserman on May 14, 2019 at 06:03 PM in Teaching Law | Permalink | Comments (0)

The end of the Warren Court (Reposted and Updated)

Elsewhere, Steve  notes that today marks the 50th anniversary of Abe Fortas' resignation from SCOTUS, making it the last day that the Court had a majority of Democratic appointees.

But it is more than just the appointing party.

In his history of the Warren Court, Lucas Powe argues that what we label "The Warren Court" lasted about 6 1/2 years. It began in the fall of 1962 with the appointment of Arthur Goldberg, which provided a consistent five-person liberal/civil libertarian majority. Goldberg was replaced by Fortas three years later, continuing that five-person majority on mostly the same terms (save for perhaps a few outlier votes). And the appointment of Thurgood Marshall in 1967 solidified that majority by providing a one-vote cushion--the liberal position could afford one defection (such as Justice Black in some crim pro cases) and still retain the majority. Because of Fortas' forced resignation, that six-Justice majority became a four-Justice minority within four months of Nixon's inauguration.

Continue reading "The end of the Warren Court (Reposted and Updated)"

Posted by Howard Wasserman on May 14, 2019 at 04:50 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Fun with evidence

The problem set I use in class has this as a problem in the hearsay section. Supposedly Charles Manson's lawyer would make this objection.

The answer to the hearsay problem is that the name is not an assertion, because it labels someone without saying anything about the state of the world. But I have seen the point made that the real issue is not hearsay so much as lack of personal knowledge of the fact.

Anyway, something to share next semester.

Posted by Administrators on May 14, 2019 at 11:17 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Monday, May 13, 2019

The Permanent Disability of a Justice

Here is part of a question that I posed to my Constitutional Law class. Suppose Justice X suffers a stroke and his left alive but without any cognitive function. Justice X's family members are appalled at the prospect that he might be replaced by President Y. They invoke some statements by Justice X that he would not want to be replaced by President Y. Consequently, they decide to keep Justice X alive until President Y is no longer in office.

Two years later, President Y and his supporters argue that this situation is a disgrace. The Court needs nine functioning members! More darkly, they say that Justice X's seat should be deemed vacant. The President nominates a new Justice and the Senate (controlled by his party) confirms the new Justice. She shows up at the Court to take the oath. What happens then?

Turns out that there is no textual authority on this question. Vacancies on the Supreme Court are created by death, retirement, or resignation. There is no precedent for a seat to be declared vacant without one of these two events. (One Justice resigned in 1861 to join the Confederacy. Had he not resigned, I presume he would have been swiftly impeached and removed.)  

Posted by Gerard Magliocca on May 13, 2019 at 09:16 PM | Permalink | Comments (5)

Ginsburg wields the assignment power

A 5-4 majority in Apple v. Pepper held that iPhone users can sue Apple for anti-trust violations resulting from its App Store monopoly. Justice Kavanaugh wrote for himself, Ginsburg, Breyer, Sotomayor, and Kagan. People will be talking about that line-up and Kavanaugh splitting on a text-based antitrust case.

That line-up means Ginsburg assigned the opinion as senior-most associate justice in the majority (the Chief and Thomas, the two more senior to her, dissented). This is the second time Ginsburg assigned the opinion, the first coming last Termin Sessions v. Dimaya. Note that Ginsburg made the strategic assignment move here-she gave the opinion to the unexpected member of the majority as a reward and to keep him in the fold.

Posted by Howard Wasserman on May 13, 2019 at 12:00 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

SCOTUS overrules more precedent, no textual support to be found

The buzzwords that Republicans and judicial conservatives insist make their approach the only legitimate and constrained are textualism and respect for stare decisis. It is hard to take that seriously after today's decision in Franchise Tax Bd. v. Hyatt, holding that the Constitution requires that a state enjoy sovereign immunity in the courts of another state and overruling 1979's Nevada v. Hall. Justice Thomas wrote for himself, the Chief, Alito, Gorsuch, and Kavanaugh; Breyer dissented for the other four.

There is no textual basis for this (there really is none with all of state sovereign immunity); the majority instead relies on what is implicit in the structure and the "implicit ordering of relationships within the federal system." As for respect for stare decisis, the majority disposes of that in less than two full slip-opinion pages. Justice Breyer closes his dissent with a portentous "[t]oday’s decision can only cause one to wonder which cases the Court will overrule next."

Posted by Howard Wasserman on May 13, 2019 at 11:34 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Predicting SCOTUS on universal injunctions (Updated)

Noah Feldman predicts that SCOTUS will reject the Trump Administration's calls to reign-in universal injunctions, basically arguing that taking the power to issue non-particularized injunctions from lower courts makes more work for SCOTUS. Josh Blackman responds in a Twitter thread.

I agree with Josh that Noah makes his category error here:

If the justices were to hold that the lower courts lack the power to issue nationwide injunctions, then there would be only one way for the courts to block a law nationwide: The Supreme Court would have to issue the injunction itself. After all, it’s the only court with a truly national jurisdiction.

That wouldn’t give the justices any extra power, because they can already issue nationwide injunctions. But it would give the justices more work.

* * *

The upshot is that, if they prohibit nationwide injunctions by the lower courts, the justices will be agreeing to place themselves more in the spotlight, without the plausible deniability that allows them to leave injunctions in place.

SCOTUS does not have any greater power to issue a universal/non-particularized injunction than a district court. The limit on non-particularized injunctions comes from Article III's case-or-controversy requirement, which limits SCOTUS as much as it limits lower courts. If a lower court issues a particularized injunction and SCOTUS affirms, that does not create a universal injunction--it creates an Article-III-final particularized injunction, one that the executive no longer can avoid. As Josh notes, it also creates binding precedent that lower courts must follow to resolve other cases involving other parties and will use as the legal basis for later, also-particularized injunctions. But the SCOTUS decision in Case # 1 does not alone get us there.

Feldman envisions SCOTUS using the lower courts to avoid taking responsibility for universal injunctions--allowing some to remain in effect while overturning those they do not like. If lower courts cannot issue universal injunctions, SCOTUS would be forced to issue them. But this proceeds from several false premises, First, that a SCOTUS-affirmed injunction can have broader judgment (as opposed to precedential) effect than a lower-court injunction. Second, that if SCOTUS "really did not like" a particularized/non-universal injunction it would not overturn it just as quickly when asked to do so by the government.

Update: One additional point I neglected earlier: Noah begins by minimizing this as a legal-academic debate that had no practical resonance before Vice President Pence raised it in a Fed Soc speech last week. But that is not accurate. The scope issue was raised in U.S. v. Texas (DAPA) and was briefed, at the Court's request in Trump v. Hawaii, triggering a question from Gorsuch (his "cosmic injunction" line) and a concurrence from Thomas arguing that injunctions should remain particularized to the parties. He is write that legal scholars are playing a role here--but the government has been engaged on the subject at least as long.

Posted by Howard Wasserman on May 13, 2019 at 10:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Thursday, May 09, 2019

SEALS Prospective Law Teachers Workshop

Each year, SEALS hosts a Prospective Law Teachers Workshop (PLTW), which provides intensive opportunities for VAPs, fellows, and practitioners to network and participate in mock interviews and mock job talks—prior to the actual teaching market. The Workshop also includes a luncheon and 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teachers Workshop will be held at Boca Raton Resort & Club in Boca Raton, Florida on Tuesday, July 30, and Wednesday, July 31, 2019. If you are interested in participating specifically in the Prospective Law Teachers Workshop, please send your CV, and a brief statement explaining your interest, to Professor [email protected]. Please also indicate when you are hoping to go on the teaching market. Applications are due by June 1, 2019. Past PLTW participants have secured tenure-track appointments at an impressive array of law schools.

Continue reading "SEALS Prospective Law Teachers Workshop"

Posted by Administrators on May 9, 2019 at 09:30 PM in Teaching Law | Permalink | Comments (0)

Empathy, LGBT rights, and employment discrimination

Rick Bales (Ohio Northern) predicts that SCOTUS will hold 6-3 that Title VII prohibits discrimination against LGBT employees as a form of sex discrimination. He predicts that the "defectors" will be the Chief and Kavanaugh--the Chief to avoid the institutional damage from a high-profile decision that appears politically motivated and Kavanaugh as a way to show himself as less political and because such a decision might reflect the empathy he espouses.

Posted by Administrators on May 9, 2019 at 08:18 PM in Employment and Labor Law, Howard Wasserman, Law and Politics | Permalink | Comments (5)

More on Kavanaugh and empathy

Thanks to Paul for parsing Kavanaugh's Senate testimony. I stand corrected as to Kavanaugh--his comments on Monday were consistent with his testimony, suggesting a sincere belief that judges should think about and understand all sides of an issue and the effects of judicial decisions. My mistake in lumping Kavanaugh in with the standard reaction to the idea of empathy among Republicans in Congress and many conservative commentators.

Working off what Paul provides, let me add the following:

• "Empathy" as a concept in judging is non-ideological. One can listen to all sides and consider the effects of decisions and reach a range of results across an ideological spectrum. It does not reflect or demand a commitment to any party or position. It is surprising that the concept continues to generate so much opposition.

• The questions from Sasse and Graham show a continued inability (or refusal) to recognize the distinction between empathy and sympathy (Graham even uses the wrong word).

• I am not surprised that no Democrats addressed this in either direction, because they have run from empathy from the minute Obama mentioned the concept and the public discussion immediately misunderstood the word and what he meant.

Posted by Howard Wasserman on May 9, 2019 at 01:13 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Wednesday, May 08, 2019

A Few More Details on Kavanaugh and "Empathy"

I was spurred by Howard's post below, and the interesting comments on that post, to go through transcripts of the Kavanaugh confirmation hearings. It's hard to search for synonyms for (some form of) "empathy," such as, in Boolean-speak, "listen /s others." But I did search for "empath!," "civility," "discourse," and even "listen /s others." On a whim, I searched for "shoes"--which was actually a fairly productive search!

The search results are decidedly imperfect. I encourage others to do a better job. (I certainly did not watch or listen to the hearings in real time, and others might draw on their recollections, and then follow up to correct the inevitable errors in their memories.) But here's what I found:

1) "Empathy" comes up several times in the confirmation hearings. At least two friends of Kavanaugh's who testified spoke about Kavanaugh as empathetic, and one told the committee she believed Kavanaugh "has exposed himself to a wide range of people" from "a variety of backgrounds," and that he would "listen empathetically and hear their voices."

2) The number of senators I found discussing empathy is extremely small and exclusively Republican. The most prominent discussion comes from Senator Sasse. He criticizes popular invocations of "empathy" as a desired judicial quality, arguing that Congress "constantly abdicates its responsibility" to listen to, represent, and correct the concerns of citizens, and that calls for judicial empathy often amount to a call for the judiciary to do what Congress so often fails to do. He argues that the role of a judge is not "to exercise empathy" but "to follow written laws."

3) A search for "shoes" actually yields several interesting results. Kavanaugh talks at the hearings about the importance of "standing in the shoes of others," and understanding that we could each be homeless or disadvantaged. Kavanaugh also mentions his mother's judicial career as a major influence, and says, "She taught me that good judges must always stand in the shoes of others." One of the supporters I mentioned earlier discusses receiving advice from Kavanaugh during law school about the importance of standing in the shoes of others and "understand[ing] the issue from all points of view."

4) This search also yields a colloquy, again with a Republican senator. This time it is Senator Graham. He asks Kavanaugh, who has spoken about standing in the shoes of others, "Is it fair to say that your job as a judge is to not so much stand in the shoes of somebody you're sympathetic to but [to] stand in the shoes of the law?" Kavanaugh replies, "You're in the shoes of the law but with awareness of the impacts of your decisions....That's the critical distinction. You can't be unaware. When you write an opinion, how's it going to affect people?" He then emphasizes the importance of explaining oneself in a judicial opinion in a way that is not too full of oneself as a judge but rather makes an effort to show the litigant that one understands his or her situation.

5) A search for words like "civility" and "discourse" yields a lot of irrelevant results and a few relevant ones. The most relevant example is this statement from Kavanaugh: "I think civility and collegiality help make a good judge. A good judge understands that real people are affected in the real world."

Again emphasizing the imperfection of the search strategy and my willingness to be corrected by better research, I would make the following observations, which I offer neither in support of nor in criticism of Howard's post or of either Kavanaugh or his (stated or revealed) approach to judicial decision-making, but to offer additional details to Howard's post and perhaps lend further perspective:

1) Kavanaugh's discussion of something like "empathy" at the circuit conference was not new. He made the point about the importance of standing in the shoes of others several times during the (widely publicized and televised) confirmation hearings, and emphasized--as others discussing judicial empathy have before--the importance not only of listening to and attempting to understand others, but of attempting to explain one's decision to the parties, and perhaps especially the individual and/or disadvantaged litigant, in a way that may go for or against the legal claim involved but shows that one understands the litigant's perspective.

2) There was very little discussion of empathy on the part of Republican senators. This might support Howard's question whether some Republican senators (insofar as they are part of the incredibly broad and non-specific group Howard is implicitly discussing: people who opposed Obama's use of the word "empathy" and/or those who think of Kavanaugh as "the darling of the Republican judiciary") don't care all that much about the use of a word like "empathy" as such. On the other hand, Kavanaugh himself speaks in terms of standing in the shoes of others, not in terms of empathy. And at least one Republican Senator (Sasse) directly and critically addressed the idea of judicial empathy, while another (Graham) asked about it and put forward a critical distinction between standing in the shoes of others as a judge and "standing in the shoes of the law," to which Kavanaugh's response signaled partial disagreement or at least clarification: namely, that a judge. ought to stand "in the shoes of the law" but with awareness of the impact of one's decision on people in the real world.

3) I could find no Democratic senators addressing any of these points in the hearing transcripts. That doesn't mean no one did; it just means I couldn't find any evidence that they did in my rather limited searches. I found no Democratic senators referring to and praising Kavanaugh's discussion of standing in the shoes of others, none criticizing it, and none engaging in a colloquy with him about it, perhaps to clarify what he meant by it and how it would work in his judicial decision-making. This might support a similar proposition to the one Howard speculated about. It might suggest that support for "Obama's use of the term" was fair-weather support, not a matter of deep interest or "grounded in principle." Or it might not. Democratic senators on the Judiciary Committee are a tiny subset of the indistinct and undefined group of people who supported Obama's use of the word empathy, and should not lightly be assumed to be representative of that wider mass of people. They are also political actors, who might agree with or approve of what Kavanaugh said on the subject at the hearings but not say so publicly, for political reasons. If that is seemingly not a response that is "grounded in principle," neither does it prove that they have no principled interest in judicial empathy. (But that would suggest, by the same token, that there might be Republican senators on the committee who disagreed with Kavanaugh's perspective, and have what is indeed a principled opposition to that view, but said nothing, again for political reasons.).

I don't know whether this changes Howard's view. Since he spoke speculatively, if perhaps suggestively, I won't assume he has a strong or settled view on these questions. I am disinclined to lump large masses of people together, and thus disinclined to assume based on limited evidence that all Republicans or all Democrats (a grouping in which, in truth, I have very little interest) share the same view, that all people who have spoken about judicial. empathy have the same view, or that speech or silence from any one individual within this vast group indicates much if anything about the views of others within that vast group. Such an approach seems to me to lack empathy, among other problems. So I would probably worry about the last two paragraphs of Howard's post with or without this additional research.

But I would hope the research does add a little extra depth to Howard's discussion and speculation. Perhaps it will move him to second-guess or deepen his speculation. Perhaps it will also convince him that the question about the presence or absence of principled views on judicial empathy extends beyond opponents of that word or concept, and includes its supporters, who also should be subjected to critical inquiry. 

In my view, a tentative set of propositions that combines a certain amount of both charity and realism would be that there are indeed those who, on principled grounds, are supportive of or opposed to the idea or label of judicial "empathy"; that there are nuanced differences among them about what empathy entails and what role it plays in judging; that in the heat of the moment, many of those people--particularly but not exclusively elected officials--will not speak about empathy at all, favorably or critically, if it is politically inconvenient to do so, which may suggest not a lack of principle (although that's a possibility) but a lack of fortitude or integrity; and that a very small but not non-existent number of people will do so.

As I said, the research was tentative and incomplete, and so are these propositions, although they seem reasonable enough. And I emphasize again, given the difficulty of having disinterested and academic discussions in a rather politicized era, including doing so among legal academics, some of whom may inadvertently overestimate the importance of their public pronouncements about these issues and/or succumb to a tendency to reduce a discussion to the politically relevant but intellectually shallow question whether one is "for" or "against" someone or something, that none of this should be taken as indicating either praise for or criticism of Kavanaugh, or as assuming that what a judicial nominee--or a senator!--says or doesn't say on a public occasion is strong evidence of what that person believes, cares about, or will actually do in practice. 

Posted by Paul Horwitz on May 8, 2019 at 09:34 AM in Paul Horwitz | Permalink | Comments (1)

Tuesday, May 07, 2019

Call for Papers: Second Annual Chicagoland Junior Scholars Conference

The Northern Illinois University College of Law will host the Second Annual Chicagoland Junior Scholars Conference at Loyola University Chicago School of Law on Friday, September 27, 2019. This conference will offer junior scholars (those who have spent 7 years or fewer as full-time professors) the opportunity to present their works-in-progress, to receive feedback from their colleagues, including senior faculty, and to network with other legal scholars from the Chicago area and beyond. Articles may be presented at various stages of development. If you are interested in presenting a paper at the conference, please submit a working title and abstract of 200-300 words to LeAnn Baie ([email protected]) no later than June 28, 2019. Selected authors will be notified by July 15, 2019. Final papers will be due no later than September 6, 2019. There is no registration fee for this conference. Meals will be provided. Email Prof. Sarah Fox at [email protected] with questions.

Posted by Howard Wasserman on May 7, 2019 at 10:36 PM in Teaching Law | Permalink | Comments (0)

It is the empathy, stupid

Yesterday, I attended the 7th Circuit Bar Association Conference and the Judicial Conference of the 7th Circuit (a combined event that appears unique). I moderated a discussion on jurisdictionality (with Scott Dodson of Hastings and Jessica Berch of Arizona State) and watched an excellent panel on judicial independence and the rule of law. I also attended the dinner, which was keynoted by a conversation among Justice Kennedy, Justice Kavanaugh, 7th Circuit Chief Judge Diane Wood, and Northern District of Illinois Judge Gary Feinerman (who clerked for Kennedy the same term as Kavanaugh).

At one point in the discussion, Kavanaugh discussed the importance for judges to listen and to put themselves in someone else's shoes. They must hear and understand the positions of parties, attorneys, or fellow judges, in order to understand where they are coming from and the position they are urging. This is part of essential-but-vanishing "civility" in public discourse.

Wait, though. There is an English word for adopting another's perspective so you can understand their position (although Kavanaugh did not use it)--empathy. When President Obama suggested that empathy was an essential quality for judges, he was lambasted as urging lawlessness and the remark used as a basis for opposing his judicial nominees. Yet here was the darling of the Republican judiciary insisting that this is a necessary quality for him, as a judge, and for public debate more broadly.

Makes you wonder if the opposition to Obama's use of the term was not grounded in principle.

Posted by Howard Wasserman on May 7, 2019 at 02:59 PM in Howard Wasserman, Judicial Process | Permalink | Comments (8)

JOTWELL: Mulligan on Spencer on personal jurisdiction in federal court

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing A. Benjamin Spencer, The Territorial Reach of Federal Courts, Fla. L. Rev. (forthcoming), which argues for federal courts exercising jurisdiction based on national contacts through a self-executing Fifth Amendment Due Process.

Posted by Howard Wasserman on May 7, 2019 at 11:44 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Monday, May 06, 2019

Granting Certiorari from District Court Opinions

One issue that may arise over the next year is the Supreme Court's discretion to grant review directly from a district court opinion. This power is exercised sparingly. (How sparingly I do not know.) The reason this may become an issue is that there are many lawsuits now pending (or soon to be filed) that challenge various decisions by the Trump Administration. A principal goal of the Administration seems  to be delaying any resolution of these matters until after the next election. If the litigation proceeds in the ordinary way, that goal may well be achieved. Four Justices, however, can make that more difficult by an expedited grant of certiorari.

Is this a good idea? Or when it is a good idea?  

Posted by Gerard Magliocca on May 6, 2019 at 09:41 PM | Permalink | Comments (6)

Friday, May 03, 2019

Bodycams and police discretion

Interesting story from a former police officer arguing that bodycams undermine community policing. The obligation to record everything eliminatesofficers' ability to ignore or skirt department regulations when it might be beneficial for relations with the community--for example, by not arresting a mother driving with young child and groceries with an expired license. As she puts it "[s]eemingly overnight, keeping my job meant doing everything by the book," because camera footage is subject to internal review.

Later, Miller argues that "[s]ince the adoption of body cameras, the law is the law." But hasn't the always been the law? Of course not, because police officers wield a tremendous amount of inherent discretion in choosing what laws to enforce, how, when, and why. And many officers, such as herself, wielded that discretion for good, in a way that helps the community and maintains good relations between police and public (or at least certain segments of the public). Bodycams, she argues, make that harder.

But Miller's argument ignores that many officers used that discretion for ill. And no one--including the good officers--did anything to stop the bad actors. The clamor for a technological solution arose because of a felt need for some tool to reign in abuses of that executive discretion--police departments, fellow officers, municipal governments, prosecutors, and courts were not willing or able to do it. By purporting to offer incontrovertible video evidence (even if it is not incontrovertible) of "what happened," bodycams make it more difficult for the relevant actors to ignore misconduct. Miller questions the efficacy of bodycams in providing that check on "bad apples," and she is right that the point that is in empirical dispute. But nothing and no one has emerged as a better check.

Posted by Howard Wasserman on May 3, 2019 at 09:27 AM in Howard Wasserman | Permalink | Comments (6)

Wednesday, May 01, 2019

The Belt-and-Suspenders Canon

James Brudney and I have uploaded our newest piece, The Belt-and-Suspenders Canon.  It is available for download here.  An abstract follows:

This Essay christens a new canon into the doctrines of statutory interpretation, one that can counter the too-powerful canon that has courts imposing norms against redundancy in their readings of statutes. Judges engaging in statutory interpretation must do a better job of recognizing how and why legislatures choose not to draft with perfect parsimony. Our Essay highlights the multifarious ways legislatures in federal and state governments self-consciously and thoughtfully – rather than regrettably and lazily – think about employing “belt-and-suspenders” efforts in their drafting practices. We then analyze in depth courts’ disparate efforts to integrate a belt-and-suspenders canon into their thinking about anti-surplusage rules and other textual canons. By sketching a promising future for this new canon, we hope to draw judicial practice closer to legislative practice and to enhance the enterprise of statutory interpretation for textualists and intentionalists alike.

As it happens, our last effort together -- Statutory Interpretation as Interbranch Dialogue? -- was just released by the UCLA Law Review.

Posted by Ethan Leib on May 1, 2019 at 07:58 PM | Permalink | Comments (3)