Wednesday, April 10, 2019

SCOTUSBlog preview: Accrual § 1983 actions

I have a SCOTUSBlog preview of next Wednesday's arguments in McDonough v. Smith, considering when a § 1983 fabrication-of-evidence claim accrues for statute of limitations purposes. The basic dispute is whether the limitations period starts running on favorable termination of the underlying criminal proceedings.

It is an interesting arrangement, with the United States supporting the petitioner/plaintiff position that the lawsuit (filed within three years of his acquittal on criminal charges that were based on fabricated evidence) was timely, but arguing that the plaintiff's claims should be dismissed on prosecutorial immunity grounds on remand. There are amicus briefs from criminal-defenses lawyers and fed courts scholars supporting the petitioner, urging the Court to maintain a scheme in which a criminal defendant is not forced to pursue § 1983 litigation until the criminal proceedings have resolved.

Posted by Howard Wasserman on April 10, 2019 at 04:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

The Implied Repeal of Abortion Restrictions

Here's a question I'm thinking about. Suppose a state prohibited nearly all abortions prior to Roe v. Wade. After Roe, the state attempted to restrict abortion as much as constitutionally possible (say by banning nearly all third trimester abortions) and enacted a statute doing that. Would that subsequent statute be an implicit repeal of the earlier prohibition or not?

Here's why this is interesting. Suppose Roe were overruled tomorrow. What would state law be on abortion? One view could be that the pre-Roe statute applies unless it was expressly repealed. Another would be that the only the post-Roe restrictions would apply until the state legislated differently. This might matter a lot. A new state ban (or near ban) on abortion would take time to enact. Maybe it would not get enacted at all.  What would state law be in the interim?

Posted by Gerard Magliocca on April 10, 2019 at 12:51 PM | Permalink | Comments (8)

Tuesday, April 09, 2019

Call for Submissions -- Northwestern University Law Review Empirical Legal Scholarship Issue

Posted on behalf of the Northwestern University Law Review:
The Northwestern University Law Review is pleased to announce its second annual issue dedicated to empirical legal scholarship, to be published in Spring 2020. We welcome pieces making use of any and all empirical tools—including qualitative, quantitative, and mixed methods—to illuminate and engage questions of legal interest.

The Northwestern University Law Review accepts empirical articles on an exclusive basis only. The exclusive submission window for the 2020 empirical issue will run from March 15–April 15, 2019. Participating authors must agree to withhold the manuscript from submission to any other publications until receiving a decision from us. All publication decisions will be released no later than July 31, 2019.

Interested authors must submit articles and essays via email to Empirical Articles Editor Kerri Howard at [email protected] Please submit the article as a .doc or .docx file with a cover letter or similar email; CV; and, if desired, supporting materials. More information about submission requirements and the empirical selection process is available at

Posted by Sarah Lawsky on April 9, 2019 at 03:49 PM | Permalink | Comments (0)

A Special Relationship

My draft paper on Winston Churchill and the Constitution is now up on SSRN. Feedback please.

Posted by Gerard Magliocca on April 9, 2019 at 12:45 PM | Permalink | Comments (0)

JOTWELL: Thomas on Fountain & Willard on plea bargaining with juveniles

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Erika N. Fountain & Jennifer L. Willard, How defense attorneys consult with juvenile clients about plea bargains, 24 Psych. Pub. Pol'y & L. 192 (2017).

Posted by Howard Wasserman on April 9, 2019 at 09:20 AM in Article Spotlight | Permalink | Comments (0)

Monday, April 08, 2019

The Myth of Justice McReynolds and Justice Brandeis

In an otherwise terrific book by Justin Driver and in a recent post by Sandy Levinson over at Balkinization (where I also blog), the false story that Justice McReynolds refused to sit next to Justice Brandeis one year for the Court's official photograph was repeated. The story was debunked in a recent article in the Journal of the Supreme Court Historical Society. It has no factual basis--it was invented decades after the fact.

The story does capture the larger point that McReynolds was an Anti-Semite. That is true. But there are lots of ways to explain that which are not false.  

Posted by Gerard Magliocca on April 8, 2019 at 04:02 PM | Permalink | Comments (1)

Thoughts on the Rothgerber Constitutional Law Conference-National Injunctions

I mentioned that last Friday I had the privilege of attending the 27th Rothgerber Constitutional Law Conference at Colorado Law, on the subject of national injunctions.

I did not take comprehensive notes on all the papers, but here are a few highlights, ideas, and questions that I took away:

Continue reading "Thoughts on the Rothgerber Constitutional Law Conference-National Injunctions"

Posted by Howard Wasserman on April 8, 2019 at 02:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Your [Office holder]

President Trump likes to refer to himself as "Your President," as in "This is outrageous harassment of Your President by the Democrats." Over the weekend, speaking to a group of Jewish Republicans, he referred to Benjamin Netanyahu as "Your Prime Minister."

Has any previous President used this framing? It sounds new to me. It also has a ring of monarchism or authoritarianism--"Your Majesty," "Your King," "Your Dear Leader."

Posted by Howard Wasserman on April 8, 2019 at 01:25 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

"Honor, Oath, and Office"

I've put up on SSRN a short piece I wrote for my law school's alumni magazine, The Capstone Lawyer. It's a kind of introduction to a larger project--a book project, I hope, although it will have to wait in line behind several other projects--on oaths and the Constitution. The abstract is not much shorter than the piece itself, which is short--probably shorter than many of my blog posts!--and (I hope) readable. (It also has great art and some neat photos. I'm grateful to Monique Fields, who is responsible for the Capstone Lawyer and for making it look so good.) I hope readers enjoy it. Here's the abstract: 

This contribution to the Culverhouse School of Law's Capstone Lawyer magazine is a short introduction to a larger, ongoing project on oaths and the Constitution. That project seeks to examine the relationship between oaths and constitutional interpretation, and to argue for the revival of honor, suitably revised, as an essential virtue in citizenship and office-holding.

The focus here is on the intimate connection between the concepts and institutions that I call the "troika": office, honor, and the oath. Office is best thought of not simply in terms of power, and with the officer viewed merely as any individual who happens to exercise a power-wielding office at a given moment. Instead, the key feature of office is duty, and the officer is defined as much by the limits on his or her power as by its exercise.

Honor is the institution that connects the officer to his or her office. Properly understood, it has both internal and external aspects and involves more than the love of fame. Honor is the desire to be thought well of by those whose opinion ought to count, and the desire to *deserve* to be thought well of by that honor group. This "quality of character," as Sharon Krause puts it, this "ambitious desire to live up to one's code and to be publicly recognized for doing so," is essential if office-holders are to fulfill the duties of their office with virtue and excellence. And it provides the office-holder with a valuable sense of energy and agency. The character of the men and women who occupy offices thus remains an essential element of our political and constitutional order.

In our constitutional system, the device that ties individual honor to the ostensibly "impersonal" office is the oath. The oath is a linchpin that connects the individual to the office and the office-holder to the commitment to act honorably. It is imperfect, and in contemporary society both honor and oath require substantial rethinking and revivification to function properly. But the oath is not unimportant and is no mere empty ritual. Taken together, this troika of institutions--office, honor, and oath--encourage the sound and faithful performance of one's duties in a democratic constitutional republic. Thinking about the troika shifts our focus from power to duty, and from substance and doctrine to character and virtue. It helps us to see that a "government of laws and not of men" is and must be powerfully and ineluctably personal.

Comments on the larger project are emphatically welcome [via email]. I note that the subject of the oath, and of the importance of duty and character in office-holding, has given rise to a growing literature that is well worth exploring.

Posted by Paul Horwitz on April 8, 2019 at 10:00 AM in Paul Horwitz | Permalink | Comments (0)

Entry Level Hiring: The 2019 Report - Second Call for Information

This a reminder of the Entry Level Hiring Report.

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

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

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

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

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

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

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

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

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

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

Posted by Sarah Lawsky on April 8, 2019 at 08:59 AM | Permalink | Comments (0)

Sunday, April 07, 2019

The President's Tax Returns

Thus far, I have not heard a legal argument against the right of the House Ways and Means Committee to examine the President's tax returns. The statute, which was enacted after the Teapot Dome scandal, says that the Committee may examine the tax returns of "any person" as part of an investigation. Is the argument against compliance some sort of constitutional argument? 

Posted by Gerard Magliocca on April 7, 2019 at 07:54 PM | Permalink | Comments (6)

Thursday, April 04, 2019

Social Media Punctuation Reaches the Federal Courts

Today the Sixth Circuit issued an opinion in EMW Women's Surgical Center v. Beshear, which upheld a state statute regulating abortion. Judge Donald issued a dissent, which concluded with "I dissent!"

We used to focus on whether dissents said "I respectfully dissent" as opposed to "I dissent." Now we must consider whether a period or an exclamation point is used. After that, I suppose there will be "I DISSENT." Or "I DISSENT!"  Or "I DISSENT!!!!"

Posted by Gerard Magliocca on April 4, 2019 at 09:34 PM | Permalink | Comments (1)

North Dakota ERA Rescission Fails by One Vote

In contrast to some states that are considering the ratification of the ERA, North Dakota just considered rescinding its ratification from the 1970s. The rescission passed in the State House but failed in the State Senate by one vote! Thus, North Dakota's ratification stands. For now.

I doubt that there will be further news on ERA ratification efforts this year. Maybe in 2020 Virginia, which is electing a new Legislature this Fall, will take up the measure again.

Posted by Gerard Magliocca on April 4, 2019 at 01:42 PM | Permalink | Comments (1)

27th Annual Rothgerber Constitutional Law Conference: National Injunctions

On Friday, I will participate in the 27th Annual Rothgerber Constitutional Law Conference, sponsored by the Byron R. White Center at University of Colorado Law School. Thanks to Suzette Malveaux for putting this great program together and including me in the conversation.

Participants include Zachary Clopton (Cornell), Charlton Copeland (Miami), Davis Hausman (ACLU), Michael Morley (Florida State), Portia Pedro (Boston University), Doug Rendelman (Washington & Lee), Mila Sohoni (San Diego), Alan Trammell (Arkansas), Ahmed White (Colorado). I look forward to the weather in Denver and to seeing how the speakers divide on the core question of the propriety of universal injunctions.

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

A Jot on Jamal Greene's "Foreword: Rights as Trumps?"

At Jotwell, I have this "jot" about Jamal Greene's Rights as Trumps?, the most recent Foreword in the Harvard Law Review Supreme Court issue. As I note in the piece, the Foreword "project" is itself a fascinating one, superbly discussed in this article by Mark Tushnet and Timothy Lynch, which suggests among other things that for various reasons Foreword articles are often disappointing. There are good reasons to think the article needs an update in the present era, discussing whether and how the "project" of those Forewords, and of the Supreme Court issue, might or must change given developments in the technology and timing of scholarship. Regardless, as a confirmed and unrepentant old fogey, who still likes looking at new issues and tables of contents and thinking of journal issues as issues rather than accidental collections that are soon to be disembodied and float around Westlaw, I still look forward to the Foreword, even when it disappoints me.

Greene's article does not disappoint. It makes some valuable points--including one, about the "less momentous" nature of the "paradigmatic conflicts of a modern, pluralistic political order," that runs pleasingly contrary to the usual rhetoric of scholarship and extra-scholarly propaganda by legal academics, who have strong political, professional, and careerist incentives to treat every new dispute as an urgent, high-stakes one and scoff at the existence of serious competing claims on the other side of the position taken. As is usually the case with my jots, I try to remain loyal to Jotwell's mission of telling the reader why I like Greene's article "lots," while also raising questions about it. Enjoy. Or skip the jot and read Greene's article. 

Posted by Paul Horwitz on April 4, 2019 at 08:44 AM in Paul Horwitz | Permalink | Comments (1)

Wednesday, April 03, 2019

Call for authors: Feminist Judgments: Rewritten Property Opinions

Deadline for Applying: Friday, April 26, 2019

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on the rewritten opinions for an edited collection tentatively titled Feminist Judgments: Rewritten Property Opinions.

Continue reading "Call for authors: Feminist Judgments: Rewritten Property Opinions"

Posted by Howard Wasserman on April 3, 2019 at 05:09 PM in Teaching Law | Permalink | Comments (0)

Free speech petards

Last month I wrote about the controversy at UC-Davis, where people unearthed old tweets from an English professor calling for police officers to be killed, prompting introduction of a California House Resolution calling for the professor's firing. Last week, Davis rejected the call in a letter to Republican Assemblyman James Gallagher, citing the First Amendment and President Trump's executive order purporting to require universities receiving federal funds to  promote free enquiry on campus consistent with the First Amendment. Gallagher today wrote a letter to President Trump, insisting that the professor's speech is what suppresses campus speech and asking the President whether: 1) the intent of the order was to protect speech such as this, 2) whether Gallagher's call to fire the prof is consistent with the order's intent to stop intimidation and violence, and 3) whether Davis would lose funding if it fires the professor.

The answers, in order: 1) Of course not; 2) Of course not; 3) Of course not. But the President's intent cannot overcome charges of viewpoint discrimination.

Posted by Howard Wasserman on April 3, 2019 at 05:07 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, April 02, 2019

CrimFest! 2019 at Brooklyn Law -- Registration still open!

As many of you know, Dan Markel did an amazing job creating a community for law professors.  One of the many things that he did to create that community was to start CrimFest!  CrimFest is an informal, annual conference where those of us who study criminal law, criminal procedure, and related criminal justice topics meet to workshop papers.  

Even though Danny is gone, CrimFest continues.  This year’s conference will be held at Brooklyn Law School in New York.  The conference will open with an informal dinner on the evening of Sunday, July 14.  Then we will have two full days of panels on Monday July 15 and Tuesday July 16.  Attendees are responsible for their own travel and hotel expenses. The conference will provide breakfast and lunch, and will subsidize a happy hour on Monday evening.  The registration fee will be $65.00.

If you would like attend, please add your information to this spreadsheet:

As you will see, this is an open access document.  So please be very careful when adding your own information not to delete or otherwise alter any information that has been added by others.

Registration will remain open until May 31.  So you need not complete all registration information at this time, including whether you intend to workshop a paper, or the topic of the paper you intend to workshop.  But please be advised that, as in years past, we are limiting presentations to true works in progress.  You are welcome to present as little as a 3-page sketch of a project idea, a fully written draft, or anything in between.  But papers that have already been submitted for publication are not eligible.

Finally, CrimFest is intended to be a very inclusive conference:  It is not limited to those who have tenure or tenure-track positions.  In fact, we usually have a good crowd of fellows and VAPs who are planning to go on the market.  So please feel free to share this email with your colleagues.  Anyone who has the link to the spreadsheet can register!

I look forward to seeing many of you in Brooklyn this summer!

Posted by Carissa Byrne Hessick on April 2, 2019 at 03:22 PM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (1)

The Joke's On Us

Like many others in my little world, I read with regret Larry Solum's post yesterday announcing that he had discontinued his tradition of April Fool's Day entries offering parodies of articles by well-known law professors. Of course it is his choice, and it is an easy one to understand and sympathize with. But we will miss it, and hope his suggestion that it might be "revived in happier times" won't follow the same timeline and result as volume 2 of the third edition of Tribe's treatise on American constitutional law. 

In his post, Larry wrote, among other things: "Some of the spoofed authors wrote me with great concern, because they believed that someone had posted a fake article under their name. Others reported that they had received concerned emails from friends about the odd content of their new article. The authors were real people, and some of them have been offended by the posts or annoyed by the fall out. And over the course of the last few years, the legal academy has become increasingly politicized, heightening the the offense that some may take to the spoofs." Again, one understands all this, and of course it's worth remembering that these are indeed real people. Even Cass Sunstein is a real person! (And not, on the evidence of his publication rate, either a syndicate or a set of clones.) It's quite understandable if Larry, for whom the spoofs were a gratuitous offering and one that no doubt took a good deal of work to do as well as he did, didn't want the tsuris of having to deal with offended or annoyed colleagues. Still, it's worth noting that the people whose work he parodied were, by design and almost without exception, well established and tenured at some of the most prestigious, reputation-conferring law schools in the country. As real people, they surely vary in the thickness or thinness of their skin and in their degree of amour propre. But if anyone in our field can stand being parodied--and to my mind that category should include, at a minimum, everyone with tenure--surely they can.

If Larry's decision seems cause for lament, it's mostly because I enjoyed the parodies. More particularly, my lament has very little to do with concerns about supposed politicization within the legal academy. That supposition may be accurate. But I'm reluctant to draw strong conclusions about it without more evidence, and I'm unlikely to have that evidence. I'm unlikely to be in the right rooms to hear the right conversations that would prove or refute the thesis,  at least as it applies to more consequential matters. If law professors out there do absurd things like refusing to cite the "wrong" people or arguments even when those citations are relevant to their work, pushing prestige-conferring law reviews to publish certain people or views and not others, or finding publicly acceptable pretexts to support certain candidates and oppose others on illegitimate grounds, they are unlikely to write and tell me so. (Whether they should remain in the legal academy if they engage in misconduct like this, or whether their proper calling lies elsewhere, is a separate question. But I don't want to pronounce on that based on what I have made clear is something I can't even say exists.) Of course one can find examples of politics and of offense on Twitter. But I am trying to wean myself from that unhealthy place. Moreover, not everyone there engages in that sort of behavior, and those who do may be exceptional and inclined to do those sorts of things anywhere. 

Beyond the loss of personal pleasure, a more serious reason to lament this is that the legal academy, like any institution with a set of norms and practices that often become ossified and sometimes become highly exaggerated, is such fertile ground for parody. That's not a criticism of the legal academy as such. Almost any fairly formalized activity is also a potentially funny one, and a great deal of legal scholarship and its practices--especially those around the "branding" and selling of law review articles and the writing of abstracts--are highly formalized. Parodying what we do is a way of puncturing the bubble of our own self-seriousness. More important, perhaps, is that it helps put in high relief the kinds of things we acknowledge to each other or (sometimes) to ourselves but talk about publicly less often: the tropes, tricks, games, moves, and tactics that we consciously or unconsciously engage in when we do what we do, and especially when we try to bring what we do to market. It's not just that we ought to be able to laugh at ourselves and our own little place in the human comedy. It's that doing so is a useful way of revealing ourselves to ourselves, calling some of our standard practices into question, and showing a little humility and a sense of irony. Leaving aside the elite law professors Larry wrote about, who are indeed real people but should be in a position to stand all this (and in some cases would no doubt benefit from it), if there are concerns about punching "up" or "down," we should at least be able to parody, laugh at, and as it were punch ourselves.

P.S.: Along those lines, let me offer three possible titles for a Horwitzian "forthcoming article": 1) "A Pluralist Approach to Pluralism"; 2) “The Sub-Basements of Institutional Architecture: Rethinking the First Amendment Rights of Newspaper HR Departments and Church Annual Picnic Committees”; and 3) “A Conflicted Plea for Sanctimony About Ethical Legal Scholarship.” The last one seems both lifelike and especially apt in the context of this post. But of course most of the fun with Larry's parodies came from the abstracts, given that, as I've suggested, the practice of abstract-writing has become so standardized and thus often hilarious. Although I don't write about private law, I'm waiting for the day when an abstract begins like this: "Although private agreements are a cornerstone of law, they are surprisingly neglected by legal scholars. This article is the first to take a closer look at this phenomenon, which I call the ‘contract.’ I advance the novel and counter-intuitive argument that these 'contracts' depend most centrally on mutual understanding and consent.  This thesis has surprising and far-reaching implications across a range of cases and circumstances."   

Posted by Paul Horwitz on April 2, 2019 at 01:24 PM | Permalink | Comments (0)

Balkinization Symposium on Devins & Baum, The Company They Keep

At Balkinization, a symposium is starting on a new book by Neal Devins and Lawrence Baum, The Company They Keep: How Partisan Divisions Came to the Supreme Court. The first entry is by Rick Hasen. If it is perhaps a little eager to make a place for the arguments he has made in his own recent book, that seems quite natural, and the post is enjoyable on its own terms. I look forward to the other symposium entries as well and am happy to commend the symposium to readers. 

I have Devins & Baum's book, which is congenial to my interest in social class and the American legal profession. (My interest is in law professors, who are perhaps--and perhaps not coincidentally--more eager to talk about inequality than about social class, and more eager to talk about inequality and class as they apply to others than they are to talk about how it describes and affects us personally as law professors. There are exceptions, but that's my general impression.) I have skimmed parts of it but haven't read it yet, so I can't comment on it much. I can at least provide the publisher's description of the book: 

Are Supreme Court justices swayed by the political environment that surrounds them? Most people think "yes," and they point to the influence of the general public and the other branches of government on the Court. It is not that simple, however.

As the eminent law and politics scholars Neal Devins and Lawrence Baum show in The Company They Keep, justices today are reacting far more to subtle social forces in their own elite legal world than to pressure from the other branches of government or mass public opinion. In particular, the authors draw from social psychology research to show why Justices are apt to follow the lead of the elite social networks that they are a part of. The evidence is strong: Justices take cues primarily from the people who are closest to them and whose approval they care most about: political, social, and professional elites. In an era of strong partisan polarization, elite social networks are largely bifurcated by partisan and ideological loyalties, and the Justices reflect that division. The result is a Court in which the Justices' ideological stances reflect the dominant views in the appointing president's party. Justices such as Clarence Thomas and Ruth Bader Ginsburg live largely in a milieu populated by like-minded elites. Today's partisanship on the Court also stems from the emergence of conservative legal networks such as the Federalist Society, that reinforce the conservative leanings of Republican appointees. For the Warren and Burger Courts, elite social networks were dominated by liberal elites and not divided by political party or ideology. A fascinating examination of the factors that shape decision-making, The Company They Keep will reshape our understanding of how political polarization occurs on the contemporary Supreme Court.

As Hasen writes, "Devins and Baum offer a psychological model positing that Justices, like others, are the product of the world around them, and Supreme Court Justices travelling in elite social circles seek affirmation and approval from these elites." Hasen argues that this kind of influence would have taken one form during an era of greater elite consensus, but that the growth of polarization has created a "politically polarized elite world," with dual elites and dual supporting institutions and social networks that can each provide affirmation or disapproval. The existence of these polarized elite worlds "both shapes and reflects how Justices view their jobs and decide how to vote, leading to a new polarization on the Supreme Court."

Usefully, Hasen emphasizes "the role of the 'Celebrity Justice,' a phenomenon which Devins and Baum acknowledge near the end of the book. Scalia, and later Ruth Bader Ginsburg, became rock star Justices, drawing adoring crowds who celebrate these lawyers as though they were teenagers meeting Beyoncé. If we are thinking about the psychological effects on Justices getting affirmation that they are on the right path, cult-like worship can only make the assured even surer in their convictions. This seems especially dangerous during polarized times."

I could not agree more on this point. The Notorious RBG phenomenon (or Scalia worship) and the cult of personality and celebrity it represents, however understandable (I'm speaking here not of politics, but of Justice Ginsburg and the value of having previously under-represented role models), is bad for our already oversized view of the courts, bad for our politics, bad for the justices themselves, who hardly need further encouragement in thinking well of themselves and taking confirmation of their views from the like-minded (and who risk an increasing willingness to profit from these cults, whether personally or, as the line of Ginsburg products seems to have become, in creating a family business), and for us. I feel the same about the black-tie dinner appearances and selfie opportunities at FedSoc conferences, which may seem harmless and trivial enough to those who attend and participate in this adulatory culture but is not. While the connection between the celebrity justice phenomenon and political polarization may be clear, its connection to the idea of elite culture is perhaps less so. At a minimum, though, I might suggest that I would feel less worried about elites if they considered a fundamental characteristic and requirement of their position to be a quality of independence and maturity of mind, skepticism toward bromides and hero worship, and resistance toward consumer culture and its colonization of politics and governance. The celebrity justice phenomenon hardly contributes to those qualities; and without them, there is good reason to doubt that our "elites" will act in a way fully worthy of the positions of trust and privilege they occupy.    

The book (insofar as I have glanced at it) and the Hasen post emphasize polarization. I hope at least one or more contributor--perhaps Frank Pasquale? or perhaps an intervention by Mark Tushnet, who's not on the list of symposiasts?--will take a somewhat different approach to this question. From a centrist or center-left position and, most important, from a position within the elite, the polarization focus suggests that "liberal" and "conservative" legal elites occupy two radically different and separate worlds. That is certainly the usual theme of many comments on blogs like these or on more pernicious and shallow social media. From what I might call by way of shorthand a more American Affairs  or Baffler perspective, however, that polarization may be less important than the common ties and assumptions that still connect many across any elite sector, including that of law and the courts (and the legal academy). Liberal and conservative elites are still elites, and share many common cultural backgrounds, assumptions, and manners and mores. Their list of what "just isn't done" may be longer than the list of whatever divides them. The norms they pick up from Yale or Harvard and appellate clerkships may make them more alike than they think, despite whatever purports to divide them. Whether the (these days, mostly hypothetical) paper on one's doorstep in the nicer sectors of Arlington, Chevy Chase, the Upper West Side, Austin, or Ann Arbor is the Wall Street Journal or the New York Times may seem a great difference to their readers and a trivial one to others residing outside these circles altogether.

Indeed, to those outside these circles the fierceness of these debates within a small and relatively closed community may suggest the degree to which these fights remain a form of luxury activity, or as much a matter of self-image as of a genuinely outward-looking perspective. Fierce debates over political representation in the legal academy usually focus on whether we are hiring too many elite center-left types and not enough elite center-right types. It would be nice if our palette were a little wider, a little less focused on whether, as it were, one's rep tie is blue or red: if it included more genuinely heterodox views and backgrounds, both left and right. I doubt this is possible for the judiciary or elite law firms; I would like to think, admittedly with what is almost certainly undue optimism, that it's still marginally possible for the legal academy, although just about everything associated with the hiring process these days, just as much (if differently) than in previous eras, seems designed to kill those hopes.

Given that Balkinization is itself an elite site populated by elite writers, it would be nice to see a rude or disturbing argument along those lines somewhere in the discussion. Regardless, I look forward to the discussion. And I offer my hope that symposium contributor Linda Greenhouse, who among other things figures in the book, will write a more self-examining contribution rather than one that focuses mostly on, say, the right and its networks. That's a perfectly worthy subject, but one she has written on plenty already. As someone deeply connected to both the liberal elite and its culture and networks generally and the American Constitution Society specifically, she has other resources to offer. She is well positioned to spill "'secrets," talk about how networks and their funding and coordination (or lack thereof) work on her side of the ostensible divide, look at how various cultural or political assumptions feed into the granting or withholding of praise, ask how many op-eds or columns by people within her networks (or by her) are deliberately aimed at the justices as readers or at the justices' social and professional networks, and generally to engage in self-examination and self-criticism. That kind of post would be educational to people like me, who are more than privileged but still peripheral to those kinds of circles and generally not in the room when elites speak more frankly than they do for public consumption. I don't expect any of this, to be hones. But it would be useful. (And of course I would be just as eager to learn more about the same phenomena within elite conservative circles, although those are generally located elsewhere than the academy and are, I think, more subject to reporting by news institutions I still partly trust than are liberal groups and networks.)       


Posted by Paul Horwitz on April 2, 2019 at 12:41 PM | Permalink | Comments (0)

Saturday, March 30, 2019

Constantineau returns again

Earlier this month, I highlighted an exchange in the American Legion argument in which Justice Kavanaugh seemed to adopt the idea that SCOTUS can avoid deciding federal constitutional issues in deference to a state supreme court applying the state constitution to the problem. Justice Gorusch made the same move in last week's argument in Rucho v. Common Cause (the North Carolina partisan gerrymander) in an exchange with the attorney for the League of Women Voters:

But -- but you also have the state supreme court option, as -- as Justice Kennedy -- Kavanaugh pointed out. And we often overlook that possibility in -- in our -- in our federal system.

Fortunately, and unlike  in American Legion, counsel here was ready with the right answer: "Other options don't relieve this Court of its duty to vindicate constitutional rights."

Theme warning.

Posted by Howard Wasserman on March 30, 2019 at 04:36 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

The Schoolhouse Gate

I've been concentrating on an article draft, but I did find time to read Justin Driver's terrific new book on the Supreme Court's cases involving public schools. I was surprised to learn, for instance, that some states still employ corporeal punishment and the Court upheld this practice in the 1970s. There are also many insightful points about familiar cases (Brown or Barnette) as well as ones you may not know. It is definitely worth your time.

Posted by Gerard Magliocca on March 30, 2019 at 10:31 AM | Permalink | Comments (3)

Friday, March 29, 2019

Rethinking Patient "Skin in the Game"

Health-costs-stockAs policymakers consider ways to address the high costs of health care, they would do well to refine the use of policies that give patients more “skin in the game.” Under a common view, health care costs are driven up by people who seek unnecessary care because insurance picks up the tab. By raising deductibles and co-payments, it is thought, people will think twice before going to the doctor’s office or the emergency department.

So deductibles and co-payments have risen considerably in recent years, and many more Americans have high-deductible plans with health savings accounts. But lay people aren’t so good at distinguishing between necessary and unnecessary care, and many will refrain from getting care when they need it. Some patients also will cut back on their medications. While simply raising patient cost-sharing hasn’t worked well, there are good ways to target financial incentives for patients.

Continue reading "Rethinking Patient "Skin in the Game""

Posted by David Orentlicher on March 29, 2019 at 07:54 AM | Permalink | Comments (3)

Thursday, March 28, 2019

On "Big Mountain Jesus" (again) . . . and also liberalism, the First Amendment, Dignitatis Humanae, etc.

I've posted a few times about the "Big Mountain Jesus" statue at Whitefish Ski Resort (click here for a picture).  And, the Supreme Court's pending case involving a war-memorial Cross in Maryland has brought back to public attention -- it's been about 15 years since the Court's pair of Ten Commandments cases -- the question of the First Amendment's implications for religious symbols, etc., in "public."

In the latest issue of First Things, I return to the "Big Mountain Jesus" controversy, and also speculate a bit about liberalism (as I understand it!), religious establishments, and other things.  Here is the SSRN abstract:

This paper, which was prepared for discussion at the May 2018 Dulles Colloquium, convened by the Institute for Public Life, engages current discussions and debates regarding the nature of “liberalism” and the content of “religious freedom.” It considers, specifically, whether a “liberal" political community may and/or should recognize or establish a religion, drawing on the Second Vatican Council's “Declaration on Religious Freedom.” And, it addresses the controversy surrounding “Big Mountain Jesus.”



Posted by Rick Garnett on March 28, 2019 at 12:18 PM in Religion, Rick Garnett | Permalink | Comments (0)

Tuesday, March 26, 2019

JOTWELL: Steinman on Burbank & Wolfe on class action statutes of limitations

The new Courts Law essay comes from co-section-editor Adam Steinman (Alabama), reviewing Stephen B. Burbank & Tobias Barrington Wolfe, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018), considering the common law nature of the tolling rules for FRCP 23.

Posted by Howard Wasserman on March 26, 2019 at 10:35 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, March 24, 2019

Inclusive forests and racist-insult trees

The history podcast Backstory did an episode on the history of profanity. The fourth piece is an interview with Smith College history professor Elizabeth Pryor, who is the daughter of comedian Richard Pryor. (You can listen and read the full transcript of the story at the link).

Continue reading "Inclusive forests and racist-insult trees"

Posted by Howard Wasserman on March 24, 2019 at 01:52 PM in Culture, First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Saturday, March 23, 2019

Football or basketball? Boise State or Gonzaga?

A thought hatched while watching the first two rounds of March Madness and the various mid-major schools winning or playing competitive: If you run a university and want to make a name for yourself through athletics, would you rather have a good football program or a good basketball program and is it better to throw (a limited amount of) money into developing football or basketball?

The prevailing answer is football, because that draws more alumni interest and money. Schools such as UNC, Kansas, Duke, and Kentucky (or Indiana and UConn back in the day)--consistently great in basketball, generally non-competitive with the rare-blip exception in football--still believe that football success is essential. Jealousy of football contributed to the fall of the original Big East (which has been reborn as a basketball-first conference of Catholic schools, all technically east of somewhere). On the other hand, success in basketball seems easier to obtain--a basketball program costs less than a football program and success can be established by snagging two or three great players. And basketball comes without football's physical and moral baggage.

This question is especially salient for schools such as FIU--non-flagship public schools in a low-mid-major conference (comprised of similar schools and one former SWC school no one else wanted) with a finite amount of money to spend on this project. Consider:

Sustained football success caps out at competition in the conference, conference championships, and invitations to obscure, middish-December bowl games that no one watches against similar low-mid-major schools. The chance to make that leap is limited by the conference. And even if you make the leap, you remain locked out of the highest level of competing for a national championship, which will never look beyond the power conferences and Notre Dame. And all this requires a lot of money and a lot of player, who may suffer severe mental and physical problems because of the sport.

Sustained basketball success could mean consistent appearances in the NCAA Tournament, with early-round games watched or followed by many people and early-round victories offering more opportunities to play top-level teams on national tv. There is a chance, however remote, to play for a national championship. The Tournament Selection Committee is at least a bit more solicitous of non-power-conference schools, this year inviting multiple schools from some non-major conferences.

The question, in short: Is it better to be Boise State or Central Florida in football or Gonzaga or Wichita State or Towson or George Mason in basketball? The prevailing wisdom is the former; I would take the latter.

Posted by Howard Wasserman on March 23, 2019 at 04:14 PM in Howard Wasserman, Sports, Teaching Law | Permalink | Comments (5)

Friday, March 22, 2019

"A Grimace and a Shrug"

I have the pleasure today of attending a conference on "Academic Freedom and Free Speech on Campus" at Emory, whose Center for the Study of Law and Religion has been kind enough to host me as a visiting scholar this semester. The speakers include Nancy Leong, Jacob Levy, Sasha Volokh, Julie Seaman, David Bernstein, Sigal Pen-Porath, Deborah Lipstadt, Greg Lukianoff, and many more.

The conference is closely tied to Emory's Open Expression Committee, chaired by Sasha Volokh and including stakeholders from across the university. I applaud Emory for having a committee like this, which does an excellent job of avoiding what seems to me a problem with current university management of campus speech issues: that different offices and constituencies with potentially very different views about free speech and/or the university mission or their own office's mission are often spread across campus, and don't necessarily address the same issue at the same time or speak with one voice. (Would that my own university, which more than deserves the "yellow light" rating given it by FIRE--and which has managed the neat trick, not of prioritizing "liberty" over "equality" or vice versa, but of doing a poor job on both--had such a committee, and one that was as active as Emory's committee is. On these issues, Alabama's faculty is at least as responsible as its administration for not doing all that it could and should be to protect free speech and academic freedom.)

The conference turns out to be even more timely, given President Trump's issuance yesterday of his executive order on "Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities." The key paragraph of the order with respect to campus speech is this:

To advance the policy described in subsection 2(a) of this order [to "encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions"], the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

As Scott Greenfield nicely summarizes it at his Simple Justice blog, FIRE's statement responding to the order amounts to "a grimace and a shrug." On the one hand, it says, "To the extent that today’s executive order asks colleges and universities to meet their existing legal obligations, it should be uncontroversial." On the other, the order and its implementation bear watching for "unintended consequences that threaten free expression and academic freedom," and the order is unclear about "how or by what standard federal agencies will ensure compliance, the order’s most consequential component."

One could say a little more--one might grimace a little more heavily. That colleges and universities should meet their existing legal obligations, or abide by their own clearly stated standards in the case of private institutions, should indeed be uncontroversial. But whether the federal government should take a heavy role in ensuring that they do can be much more controversial. That can be true even for those of us who believe strongly in vigorous protection for both academic freedom and free speech on campus; think that universities should take a broad view of both; and worry that many administrations have shown very little willingness to do so, especially if it might mean getting bad publicity or upsetting (or disciplining, as it sometimes should) students, who to those universities are also "customers" in a national market for students and their tuition dollars.

I'm reluctant to either repeat myself and thus ride a hobby horse, or do too much to promote old work, but I'll end up doing a little of the latter to avoid doing too much of the former. The federal executive order comes after years of similar efforts on the part of state legislatures and proposals in Congress, so there's plenty of existing literature out there. With apologies for linking to Twitter and with the caveat that I take no statement there as anyone's fully worked out position, I do not think, with Jamal Greene, that such an order "would very clearly be illegal and unconstitutional." (To be fair, Greene was writing before the text of the order was issued.) Such bills or orders might be unconstitutional. It depends very much on what they do, and how far they intrude upon such academic governance issues as hiring; even if one favors greater ideological diversity on campus, that doesn't mean government can force that outcome by commandeering what ought to be disciplinary and departmental decisions. But Greene's broad conclusion is far from "very clear," and--obviously depending on what such a law or order says and how it is implemented--there are reasonable arguments that such a law or order can be constitutional. In the case of this order, the "consistent with applicable law, including the First Amendment" language suggests that it may turn out to be somewhere between self-limiting and meaningless in any event. (At The National Review, Stanley Kurtz argues that the order is "not the weak and largely symbolic move some claim. On the contrary, it’s a game changer." He may be right that the order will encourage universities to give a higher priority to ensuring that campus speech is protected. Beyond that, I find his assertion far too confident and exaggerated, and suspect it is more of an effort, all too common in public discourse, to make things so by saying they're so.) 

There are also very good arguments that such laws are a bad idea regardless. Again, they may be a bad idea even if one strongly believes in the protection of free and open expression on campus and of academic freedom, and thinks universities have done a poor job of meeting their duties on this score. Those of us who have argued that the law, and citizens and institutional stakeholders, should be more attentive to the role and function of various institutions in facilitating free speech, among other First Amendment freedoms, might argue that: 1) a vital, and in the long run valuable, aspect of these institutions is self-governance; 2) government interference with that self-governance, even in the service of the crucial value of free speech, might be a cure worse than the disease; 3) there may be room, especially in a nation with more than hundreds of public and private colleges and universities, for varied visions of the university mission; and 4) a key element of self-governance is the responsibility of both stakeholders--like faculty--and citizens to argue about those visions and to hold these institutions to account. At least for folks like me, that means insisting that if they are to have autonomy in governing themselves, they meet their corresponding duty to do so consistently with the respect for free speech and academic freedom that are certainly part of my vision of. the university.

On these points, I recommend a pair of posts by Keith Whittington. And from my own older work, you might look at this 2007 article, arguing vehemently against academic bills of rights on institutional autonomy grounds while insisting that that autonomy carries grave responsibilities with it for universities and their stakeholders, or pages 128-30 of my book First Amendment Institutions. I cite to other scholars who have argued that "such bills might survive a constitutional challenge," while arguing that things like an Academic Bill of Rights (or the new executive order) are "a mistake." Such efforts misunderstand the truth for search, and neglect the value and potential of both institutional autonomy and institutional pluralism. 

[Comments are closed, partly for irony value and mostly because I am otherwise occupied and don't have time to moderate the comments, as I prefer to do.]


Posted by Paul Horwitz on March 22, 2019 at 11:04 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, March 21, 2019

Game of Papers/Game of Thrones

This McSweeney's piece suggested quotations from The Princess Bride that double as comments on paper (I have used "I do not think it means what you think it means"). I wondered: What quotations from Game of Thrones might serve a similar function? The obvious one is "You know nothing, Jon Snow."

What else can serve this function?

Posted by Howard Wasserman on March 21, 2019 at 04:17 PM in Culture, Teaching Law, Television | Permalink | Comments (5)

Personal jurisdiction problems in Nunes v. Twitter (Updated)

At the Civ Pro Listserv, Alan Trammell (Arkansas) questions whether there is personal jurisdiction in Virginia in Nunes v. Twitter (to say nothing of bovinal jurisdiction over Devin Nunes' Cow).

The jurisdictional allegations are a garble and, Alan notes, not consistent with recent P/J precedent. (of course, the entire complaint is poorly drafted nonsense, so no surprise the attorney would get this wrong, as well). But here is what we can glean. Twitter is a Delaware corporation with its principal place of business in California. Liz Mair is a Virginia citizen and the sole member of Mair Strategies LLC. Devin Nunes Mom and Devin Nunes Cow are unknown. Nunes is a California citizen and a representative of that state.

There is general jurisdiction over Mair and Mair Strategies, both of which are "at home" in Virginia under recent precedent because domiciled there. That is easy. In fact, I would guess that Nunes sued in Virginia because that was the surest way to get Mair.

As for Twitter, it is not domiciled in Virginia, so it is not obviously at home under the new analysis. The complaint alleges that Twitter is "at home" in Virginia, in between allegations of Twitter's ubiquity, being registered to do business in Virginia, targeting Virginians with advertising, and earning revenue from source customers; it later alleges that Twitter engages in "continuous and systematic business in Virginia." This sounds in the old "doing business" test for general jurisdiction, which the Court has rejected three times in the past decade. Giving counsel the benefit of the doubt about his understanding of current P/J doctrine, he might be setting up one of two arguments: 1) By mentioning registration, it jumps into an ongoing scholarly debate about whether registration constitutes consent to personal jurisdiction or 2) the Court has left open the possibility that a company can be at home beyond its state of incorporation and PPB in extraordinary circumstances, so maybe he is going to argue this is the extraordinary case and Twitter the extraordinary defendant. I doubt either works here, but each at least reflects a current understanding of jurisdiction.

However great the marketing, advertising, and revenue drawn from Virginia, it has nothing to do with this lawsuit, so it no longer provides the basis for general jurisdiction. But that advertising and revenue does not give rise or relate to the mean comments on which Nunes is suing, so it cannot form the basis for specific jurisdiction. Another option for specific jurisdiction is a Walden/Calder argument. But Nunes has no obvious connections to Virginia, other than that it is close to where he works in DC; his connections to Virginia are not greater than his connections to any other state besides California. The mean comments about Nunes do not discuss him or his conduct specifically in Virginia and were not "directed to" or "aimed at" Virginia. A Walden/Calder argument might work in California or DC, but my guess is he does not want to sue in either place, where he potentially is wildly unpopular.

Update: Some email exchanges raise the question of why he went to Virginia. Alan pointed out that Henrico County, Va. is not a conservative bastion. My theory: His lawyer thinks he can get Twitter anywhere on a doing business theory and Virginia is the only place he knew he could get Mair. And Virginia has rural areas, so that helps with reaching the cow.

Update: A commenter asks whether Nunes could establish specific jurisdiction over Twitter because the offending tweets came from Virginia. All Twitter has done is provided a nationwide platform for anyone, anywhere to use for their tweets, having no involvement in this particular tweet or that particular user. I think more purposeful direction of the conduct at the forum state is required; knowledge of where the tweet might (or did) come from is not enough.

Posted by Howard Wasserman on March 21, 2019 at 11:07 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (3)

Wednesday, March 20, 2019

Petition to the FTC to Ban Non-Competes

I am proud to be part of a petition submitted today the FTC bringing together the Open Markets Institute, the AFL-CIO, Service Employees International Union (SEIU), and over 60 other signatories — including labor organizations, public interest groups, and dozens of legal scholars. The petition calls on the FTC to use its regulatory power to issue a federal rule to ban the practice nationwide (similar to the ban that already exists in California and in some other states for certain industries and parts of the workforce).  If you are a reader of this blog, you probably know that I have argued in my research on noncompetes, including in my book Talent Wants to be Free that they harm not only workers but also innovation and economic growth. In my new article, Gentlemen Prefer Bonds: How Employers Fix the Talent Market, I argue that they further have a negative effect on certain identities, including women, minorities and older workers. As my research and others have argued, the FTC and the federal antitrust division should be involved in protecting competition and preventing anti-competitive practices in the labor market, just like in the product markets. 

Coverage today of the petition in Bloomberg can be found here. The Open Markets press release is here. The full text of the petition can be found here.

Posted by Orly Lobel on March 20, 2019 at 05:06 PM | Permalink | Comments (1)

The Compliment Sandwich

Law professors spend a lot of time assessing the work of others and giving feedback on that work.  We give feedback as part of scholarship workshops, as part of hiring and tenure reviews, and as part our interactions with students, just to name a few situations.  Some law professors are really incredible at giving feedback.  Others less so.  Perhaps because of the wide variation in styles and effectiveness, I’ve had a number of conversations with other law professors on the most successful ways to give feedback on another’s work.

One model—a model that I prefer—is what a friend of mine calls “the compliment sandwich.”  The basic idea is to situate your criticism between an opening compliment and a closing compliment.  Sometimes the compliment is nothing more than a quick aside before and after lengthy criticisms—a compliment about having chosen an important topic to begin, for example, and a compliment about how you think the paper adds to the field to end.  The “bread” in that compliment sandwich is very thin—“almost more like a cracker or a pita, than real bread,” my friend joked.  Other times the criticism is negligible next to the compliment—kind of like a finger sandwich:  mostly bread with just a tiny bit of filler.  But you get the basic idea—like a sandwich, criticism is easier to consume and digest if it is wrapped up in something that is both neat and agreeable.

I have been thinking a lot about the compliment sandwich recently because I’ve heard a few people speak negatively about those who are too quick to compliment others.  There are, for example, a handful of law schools and law professors who seem to eschew any positive comments at workshops as a point of pride.  Instead, the feedback delivered is uniformly critical, and the tone of the criticism can be extremely negative.  The decision to be only critical in feedback seems intentional—they seem to eschew compliments and focus only on the problems with a person’s work because that is what “serious” people do.

Continue reading "The Compliment Sandwich"

Posted by Carissa Byrne Hessick on March 20, 2019 at 11:45 AM in Carissa Byrne Hessick, Life of Law Schools | Permalink | Comments (16)

Tuesday, March 19, 2019

Racial bias and diversity jurisdiction

Scott Dodson's new article (forthcoming in Duke L.J.) came at a good time, as I began diversity jurisdiction (and the rationales for it) Monday and continue on it tomorrow and have presented some of his ideas in class. Scott argues that outsider bias does not justify diversity jurisdiction, while considering other reasons for having (and perhaps expanding) that jurisdiction. This includes suggestions that diversity jurisdiction might alleviate racial bias in state courts.

Reorienting diversity jurisdiction around racial bias (regardless of in- or out-of-state) offers a strong new argument against the complete-diversity requirement, as illustrated by New York Times v. Sullivan. Sullivan sued four Alabama-based African-American civil rights leaders (Shuttlesworth, Lowery, Seay, and Abernathy) who had signed the Times ad; this prevented removal to federal court, by destroying complete diversity and adding non-removable forum defendants. The complete-diversity requirement made no sense in Sullivan even on the local-bias rationale: Having a local defendant did not cure the bias when: 1) the local was an African-American who was functionally an outsider in 1960 Alabama and 2) there was an obvious outsider (The Times) waiting to be hosed.

The racial turn adds to this position. There unquestionably was bias against the African-American defendants in state court because of their race (the trial court allowed Sullivan to enforce the judgment against the four men). Scott's argument suggests their presence in the case, rather than keeping the case in state court, should have been the basis to make it (and cases like it) more readily removable.

Posted by Howard Wasserman on March 19, 2019 at 06:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Admissions ...

As profs, and especially as prawfs, teaching graduate students, we are rarely involved in college admissions. And yet...we probably should be more knowledgeable and offer more of our input to the process. Much has been written about the recent scandals, but here's my two cents, as quoted in the Los Angeles Times:

Orly Lobel, law professor at the University of San Diego, said it’s a good thing that universities compete to land the best students.

“But if the competition becomes skewed and focused on how to draw those who are wealthy and privileged,” she said, “then we need to stop and remember the reason universities exist: the pursuit of knowledge and truth, education, research and learning.”

And if you are craving some good academic satire these days, read the sequel to Dear Committee Member. It's called The Shakespeare Requirement, about a plot by the chair of the econ department at a midwestern university to annihilate the humanities. It's also about the dignity of a profession dedicate to the pursuit of knowledge, research, and education.


Posted by Orly Lobel on March 19, 2019 at 12:30 PM | Permalink | Comments (2)

Shephard's Drone

Brett Frischmann has done something fabulous.  He brought his scholarly expertise and insightful research to the world of fiction. After the publication of his excellent book with Evan Selinger, “Re-Engineering Humanity”, which was selected as one of the Guardian's best books of 2018, now comes the novel Shephard's Drone. Here's the teaser:

When a geneticist sees an infant die, minutes after receiving a routine genetic modification shot, she’s forced to question what she’s always believed about her field—and determined to find out what went wrong. Her search for answers uncovers a deeper truth about how technology shaped human evolution.

I had the privilege of reading it when it was just a draft manuscript with a different it's gotten even better. As one of the blurbs by Joshua Cohen says, "Brett Frischmann writes like a mad scientist, altering the code of life to elicit new thoughts, feelings, and behaviors. His novel is an experiment conducted on our brains and hearts, to condition us for the future." 

go read it!

Posted by Orly Lobel on March 19, 2019 at 12:21 PM | Permalink | Comments (0)

Nunes v. Devin Nunes' Cow

I do not have much to say about Nunes v. Twitter, which includes as a named defendant "Devin Nunes' Cow." The lawsuit is absurd, reflects no understanding of the First Amendment or defamation law, is poorly drafted, and should be sanctioned frivolous under Rule 11 (or the Virginia counterpart). Folks are having fun with it across the Interwebs.

But some are expressing concern that this lawsuit, while facially ridiculous, is part of a broader campaign by Trump supporters and allies to bring defamation lawsuits, even patently meritless (if not frivolous) ones, hoping that the costs of defending will bankrupt or silence critics. If so, it calls to mind the campaign among Alabama officials against civil rights activists and the northern press that led to New York Times v. Sullivan. But the attorney fee provisions in state SLAPP laws are designed to protect defendants against this strategy, making that the more important component of these laws (rather than the special motion to strike, which is really just a 12(b)(6)) and the component that unquestionably should apply in federal court.

Posted by Howard Wasserman on March 19, 2019 at 11:42 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Time to Channel Madison

MadisonAlexander Hamilton has been fashionable of late, but for a solution to our extreme political polarization, we should look to James Madison. As Madison recognized, people are not angels. We cannot rely on the virtue of government officers to do the right thing. Rather, we need to design our political system in a way that creates the proper incentives for public-spirited conduct by elected officials.

To be sure, Madison didn’t get it all right. While he was correct on theory and many of the practicalities, he came up short on implementation. The critical structural flaw in our political system lies in its “winner-take-all” nature. That feature does much to fuel our high levels of partisan conflict. My experience as a state legislator made this clear.

Like many first-time candidates, I pledged to judge ideas by whether they were good or bad, not by whether they were Democratic or Republican. And as a three-term legislator, I worked across party lines regularly. But I also found that try as one might to stay above the partisan fray, one inevitably gets sucked in. That’s because each side understands that if it gains control of the levers of government power, it can promote its agenda, while if the other side gains control of government power, there is little that can be done to achieve one's own goals or to stop the other side from achieving its goals. Recent Supreme Court appointments are illustrative.

Continue reading "Time to Channel Madison"

Posted by David Orentlicher on March 19, 2019 at 10:28 AM in Law and Politics | Permalink | Comments (2)

Monday, March 18, 2019

The Triumph of Jot-for-Jot

Today the Supreme Court granted certiorari in Ramos v. Louisiana. The petition asks the Court to extend the Sixth Amendment's unanimous jury requirement to the states and to overrule Apodaca v. Oregon, which rejected that aspect of incorporation. The Court will almost certainly overrule Apodaca (perhaps unanimously).

Ramos will mark the end of a long debate within the Court. Decades ago when incorporation began, some Justices took the position that the Court should not impose the provisions of the Bill of Rights to the States jot-for-jot (in other words, identically). That view has declined over time, and Apodaca is its final vestige. In both McDonald and Timbs,the Court described Apodaca as an anomaly. Next Term the anomaly will disappear.   

Posted by Gerard Magliocca on March 18, 2019 at 08:14 PM | Permalink | Comments (7)

More right-wing snowflakes are outraged

This story about calls by some UC-Davis students and California Republicans for the firing of a Davis professor who called (on Twitter, several years ago) for the killing of police officers reminds me of a comment I made last summer about calls by the Broward County Police Benevolent Association to boycott the Miami Dophins for not forcing players to stand. The political right, on and off campus, has as little patience for objectionable speech as the political left and is as ready to call for boycotts and firing of speakers who say mean things they do not like.

The Davis situation and the Dolphin situation share another similarity (as does the ongoing controversy at Sarah Lawrence College, which has gotten far greater attention but is still a call to sanction a professor for "expressing his views"). As one person put it on Twitter: "[T]erms that absolutely no one in the media has used so far to describe this episode include snowflakes, call-out culture, victimhood culture, outrage culture, cancelled, coddled, PC run amok, censorship, self-censorship, fragility, identity politics, or micro-aggressions."

And just to head-off a response: The prof's speech, while obnoxious, is constitutionally protected and comes nowhere close to incitement.

Posted by Howard Wasserman on March 18, 2019 at 06:14 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Diversity and Judicial Review

I'm writing about Winston Churchill's views on the American Constitution, and one focal point of my paper is his thought that judicial review is a function of diversity. In other words, the more diverse a state is, the more frequent or robust judicial review will be. Testing this claim is challenging. How do you control for other relevant variables? How do you measure diversity? And so on.

Here is a simple test that occurred to me though. What is the least diverse constitutional democracy? I think the answer is Japan (or Japan is one of the least diverse). Under Churchill's diversity idea, one would expect that Japan would use judicial review far less than other such democracies. It turns out that this is true. I'm looking for a precise figure, but it appears as if the Japanese Supreme Court has struck down less than ten statutes in its entire history. Could there be another explanation for this? Sure, but it is an interesting data point. 


Posted by Gerard Magliocca on March 18, 2019 at 12:39 PM | Permalink | Comments (4)

Transparency as a Sword

As a general matter, I support transparency in the criminal justice system.  It is difficult to obtain reliable data about crime and criminal prosecutions --- especially data from state and local systems.  Because we elect many state and local criminal justice officials, this lack of data and transparency is troubling.  If the public is unable to discover what criminal justice actors are doing, then they will find it difficult to hold those actors accountable.

And so, I was surprised to hear a number of people here in the state of North Carolina complaining about a state law that requires the gathering and dissemination of criminal justice data.  The law requires the collection and reporting of information about when judges waive the collection of court fees in criminal cases.  Here’s the full text of the relevant statute:

The Administrative Office of the Courts shall maintain records of all cases in which a judge makes a finding of just cause to grant a waiver of criminal court costs under G.S. 7A-304(a) and shall report on those waivers to the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety and the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by February 1 of each year. The report shall aggregate the waivers by the district in which the waiver or waivers were granted and by the name of each judge granting a waiver or waivers.

The people who are complaining about this law argue that it creates pressure for North Carolina judges not to grant waivers to criminal defendants.  To be clear, the legislature can’t prohibit judges from granting all waivers---if defendants are indigent, then the Constitution forbids the state from imposing these court fees. 

Since I learned about this law, I’ve been wondering:  Is there a way to square my desire for more readily available criminal justice data with the idea that these reports are a bad idea?  After all, for those of us who wish to study the criminal justice system, more data is better than less data.  And if voters need transparency in order to hold their official accountable, then shouldn’t they have this information about their judges?  After all, judges are elected here in North Carolina.

After some reflection, I think that this sort of information could be very valuable.  But it would depend on the nature of the information that was gathered and how much of that information was disseminated.

Continue reading "Transparency as a Sword"

Posted by Carissa Byrne Hessick on March 18, 2019 at 06:43 AM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (5)

Friday, March 15, 2019

Call for Papers: Tenth Annual Constitutional Law Colloquium

Call for Papers: Tenth Annual Constitutional Law Colloquium


Continue reading "Call for Papers: Tenth Annual Constitutional Law Colloquium"

Posted by Sarah Lawsky on March 15, 2019 at 03:33 PM | Permalink | Comments (2)

Thursday, March 14, 2019

Birch Bayh RIP

I wanted to note the passing of former Indiana Senator Birch Bayh. He is the only American other than Madison who drafted more than one ratified constitutional amendment (the 25th and the 26th). He also was the author of Title IX. That is quite a record. My law school has a lecture in constitutional law named in Senator Bayh's honor. Sadly, he was never able to come in person to attend. 

Posted by Gerard Magliocca on March 14, 2019 at 02:25 PM | Permalink | Comments (1)

Wednesday, March 13, 2019

Another right is clearly established--flipping cops the bird

So says the Sixth Circuit (h/t: Volokh). At least for the moment--the court only affirmed denial of defendant's 12(c) motion.

Posted by Howard Wasserman on March 13, 2019 at 06:09 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Making Sure the Wealthy Do Well by Doing Good

YaleUniversityAs the college admissions scandal illustrates, wealthy parents always will look for ways to game the system in favor of their children. Fortunately, there’s an important way for elite universities to turn parental gaming strategies in a direction that will promote income equality rather than exacerbate income inequality—the top class rank admissions policy pioneered in Texas.

In Texas, if students graduate in the top ten percent of their high school class, they earn automatic admission to the University of Texas at Austin, Texas A&M, and other public universities. This promotes diversity in the colleges’ entering classes because students at poor, heavily minority high schools have the same odds of admission as students at wealthy, heavily white schools. Indeed, at UT-Austin, which admits students through both a modified top ten track and a standard track with an affirmative action component, the top class rank students are more racially and economically diverse.

Top class rank policies also may provide the most effective solution to the problem of economic inequality in the United States. Economic inequality creates highly uneven opportunities for success in life. Children in wealthier communities have much greater chances for upward mobility than do children in low-income communities.

Continue reading "Making Sure the Wealthy Do Well by Doing Good"

Posted by David Orentlicher on March 13, 2019 at 11:44 AM | Permalink | Comments (5)

Tuesday, March 12, 2019

Tort Law and Suicide

I want to recommend a really fine article just published in Northwestern Law Review by Alex Long. Great articles on tort doctrine are rare birds. Here is the Abstract:

Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit recovery in a wrongful death action from a defendant who is alleged to have caused the suicide of the decedent. In many instances, courts apply a strict rule of causation in suicide cases that has actually been dubbed “the suicide rule” in one jurisdiction. While reluctance to assign liability to defendants whose actions are alleged to have resulted in suicide still remains the norm in negligence cases, there has been a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles. This Article argues that this trend is to be encouraged and that it is time for courts to largely abandon the special rules that have developed in suicide cases that treat suicide as a superseding cause of a decedent’s death. 

Posted by Gerard Magliocca on March 12, 2019 at 08:30 PM | Permalink | Comments (3)

Monday, March 11, 2019

‘Ya Gotta Believe

Howard makes some excellent points in his latest post about Judge Sutton. One concern, though, is that more than one federal judge has told me that they think what the Suprem Court said about qualified immunity dicta not being dicta is, in fact, dicta that they will not follow. More broadly, many judges are simply unwilling to comment on an issue or rely on that commentary when there is another more succinct way to resolve the case. The same instinct might hold if a state Supreme Court insisted that state law discussions must always take priority over federal law discussions. Judicial culture matters a lot in this situation. 

Posted by Gerard Magliocca on March 11, 2019 at 07:59 AM | Permalink | Comments (5)

Saturday, March 09, 2019

Fighting words

There has been controversy this week surrounding Chicago's Geoff Stone using a racial epithet in his First Amendment class to illustrate fighting words (via an anecdote from a class years ago). Inside Higher Ed has a good summary of the controversy, which ends with Stone meeting with a group of students and agreeing not to use the word in class (although not sure what he will replace it with). The catalyst for the controversy was an op-ed in the Chicago Maroon by a white student, who argued that Stone's use of the word was "racist because he, as a white man, repeated a word used by white people to perpetuate the subjugation of black Americans for hundreds of years. He trivialized the word’s history and the lived experience of black students.

Interestingly, the stories focus on Stone using the word in teaching fighting words and why, because of that word, the doctrine remains relevant. But I assume the class reads and discusses Brandenburg, in which the word appears and in which it is essential to figuring out how the Court decided that case.

Finally, if Stone remains correct that the word is appropriate as part of the material and the student/op-ed writer is correct that context matters, I wonder about the classic Chevy Chase-Richard Pryor skit "Job Interview" from first-season Saturday Night Live. It illustrates the point at which we cross into fighting words and the uniqueness of that word among all epithets directed at all groups. Even the 1975 studio audience recognized both points.

Continue reading "Fighting words"

Posted by Howard Wasserman on March 9, 2019 at 09:31 AM | Permalink | Comments (0)

Friday, March 08, 2019

Even more on Judge Sutton

This seemed too long for a comment to Gerard's post, so I will lay it out separately.

The rights-violation prong in a qualified-immunity case is not treated as dicta. In Camreta v. Greene, the Court held that it would hear "winner's appeals" from officers in cases in which the lower court held that the right was violated but granted immunity because the right was not clearly established. In justifying the decision, the Court stated the "constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or "statements in opinions. They are rulings that have a significant future effect on the conduct of public officials" The Court quoted a Scalia dissent from denial of cert in a similar case in which he argued that winner's appeals were proper because "[t]hat constitutional determination is not mere dictum in the ordinary sense, since the whole reason we require it to be set forth (despite the availability of qualified immunity) is to clarify the law and thus make unavailable repeated claims of qualified immunity in future cases."

So I wonder if the same could be said about the state constitutional decision in the cases Sutton has in mind. Both are grounded in concerns for clarifying the law. Both also have concerns and effects on appealability. Camreta ensures that unfavorable merits determinations are not rendered unappealable by the favorable judgment on the separate prong of the analysis. Sutton's proposal would better position state courts to immunize decisions from SCOTUS review under the independent-and-adequate doctrine.

One further, unrelated Sutton point: Justice Kavanaugh name-dropped Judge Sutton in argument in American Legion v. American Humanist Association, asking respondent whether the Court should avoid deciding the Establishment Clause issues here because the Maryland courts could handle this under the Maryland Constitution. Counsel missed the question, prompting  Justice Sotomayor to jump in three pages later to bail her out. Kavanaugh seemed to use Sutton's book to bolster Justice Rehnquist's Chief Justice Burger's dissent in Wisconsin v. Constantineau, in which he argued that a federal court should abstain under Pullman when the state courts have not addressed the issue under the state constitution.

And since we are on the subject, I will highlight Jim Pfander's JOTWELL review of Sutton's book from January.

Posted by Howard Wasserman on March 8, 2019 at 07:45 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Thursday, March 07, 2019

More on Judge Sutton

To follow on Rick's post, today I attended a lecture that Judge Sutton gave in Indianapolis about his book on state constitutional law. There were lots of interesting ideas discussed that I would like to post about over the next few days.

One of those ideas is that state courts should give state constitutional claims priority over federal constitutional claims. In other words, suppose someone brings a free speech claim under state and federal law. Instead of starting with the federal claim (as most state courts do) and only addressing the state claim if necessary, Judge Sutton suggests doing the opposite. This would allow for greater development of state doctrine, which would have a self-reinforcing effect in future cases.

Here's a thought about that. A problem would be the same one often presented in qualified immunity cases. If a state claim is discussed and rejected, then a federal claim is accepted, the state discussion is dicta. (Just as a statement that something is a right but is not "clearly established" leaves the right as dicta). How then can that develop the law? Perhaps state supreme courts could tacitly agree that their state law dicta is binding in their future cases, but lower state courts would face a dilemma. 

Posted by Gerard Magliocca on March 7, 2019 at 08:28 PM | Permalink | Comments (7)