PrawfsBlawg

Friday, July 24, 2020

Preparing for Fall Teaching: Guest Post on Combining Asynchronous and Live Online Teaching--Reasons and Strategies

This guest post is by Nina A. Kohn, David M. Levy Professor of Law and Faculty Director of Online Education, Syracuse University College of Law.  For the other posts in the series on preparing for fall teaching, see here.

My last post explored why faculty transitioning to online teaching should make live (or “synchronous”) teaching their default option.  Today’s post follows up with an explanation of why law faculty should nevertheless consider incorporating self-paced (or “asynchronous”) elements into their courses.  It also provides practical tips for faculty looking to add self-paced content to courses that are mere weeks away.

As I see it, there are three primary benefits to incorporating asynchronous elements into law courses.

Incorporating asynchronous lessons enhances live class.  Pairing live and asynchronous learning increases the likelihood that students come to live class sessions ready to engage with the material.  Students who have the opportunity to work through asynchronous lessons will tend to have a better understanding of material than they would have if they had only done assigned reading.  This is especially likely when asynchronous lessons include formative assessments that enable students to determine whether they understand the underlying material.  When students have tested their own understanding of foundational information before they join live class, faculty can use live class time more efficiently and engage in discussion of more nuanced and complex issues.

Continue reading "Preparing for Fall Teaching: Guest Post on Combining Asynchronous and Live Online Teaching--Reasons and Strategies"

Posted by Jessica Erickson on July 24, 2020 at 01:40 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (2)

Lawyers and judicial departmentalism

One thing keeping judicial departmentalism from diverging too far from judicial supremacy is DOJ and the role of government attorneys in the judicial process. Obligations to respect judicial authority, of candor to the court, and of being the government face in court compel attorneys to comply with judicial processes and not yield to the lesser impulses of the executive (which does not have a similar legal or ethical obligation of candor).

Yesterday's letter from the US attorney for SDNY to Judge Furman offers an example.

The attorneys acknowledged and apologized for inaccurate and misleading statements in the litigation (over New York's exclusion from the Trusted Traveler Program), which supported the (erroneous) litigation position that the AUSA was required to take on behalf of DHS. Irina Manta simplifies it. DHS made false statements in furtherance of its policy positions (restricting immigration), which it can do. But its power runs out when things enter court. DOJ attorneys serve as the go-between, the persons and institutions who must counsel the executive to change conduct when confronted with the judicial process. And they do that because they bear the brunt of the judicial wrath when the executive pulls stunts such as this.

Posted by Howard Wasserman on July 24, 2020 at 09:30 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

(Update) Grab your fedora, we are all journalists now and other thoughts on the Portland TRO

A federal judges issued a TRO preventing federal paramilitary force in Portland from targeting journalists and legal observers. An existing preliminary injunction, to which the City stipulated, does the same as to Portland police. Some thoughts and questions.

First, the TRO requires journalists and legal observers to identify themselves through badges or distinctive clothing (hats, press passes, etc.). Some concerns and questions.

First, it is about time we revived this look from His Girl Friday or The Brady Bunch.

Second, this seems to run afoul of the principle that the press does not have special status from other speakers when it comes to what they can say and their access to spaces. The key access cases speak of information-gathering by the press and the public. I expect that some non-press people in the mix of these protests are there to observe and record. And they possess or can possess the same equipment that allows a reporter to do her job--a device that takes photographs, moving pictures, and audio recordings. And I assume fedoras can be purchased online. Maybe the point should be to not have paramilitary forces using force and effecting arrests indiscriminately against anyone who happens to be in a crowd but is not engaging in unlawful activity, not only those with J.D.s or an institutional affiliation.

Continue reading "(Update) Grab your fedora, we are all journalists now and other thoughts on the Portland TRO"

Posted by Howard Wasserman on July 24, 2020 at 08:26 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, July 23, 2020

Watching on-screen, working on paper

The posts from Jessica and our other guests on teaching remotely/online have been great. But here is a question on integrating tech learning with non-tech work (this arose during our remote 1L orientation session today):

I ordinarily limit students' sue of technology in class-no laptops, hand-written notes, hard-cover books. I do it out of a believe, backed by much if not unanimous science, that this is the best way to learn. Obviously, I cannot prohibit them from taking notes on a computer when they are home. But how hard should I advise (or push) them in that direction? And should I require them to purchase hard-cover books so they at least have to do that part by hand?

Posted by Howard Wasserman on July 23, 2020 at 07:18 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Rethinking Preemption

In my work on Bushrod Washington, I came across an interesting nugget regarding statutory preemption claims. Back then, if a federal statute was in conflict with an Act of Congress, the courts would declare the state statute unconstitutional. Why was that? Because of the Supremacy Clause, they said. Today we do not say that a state statute like that is unconstitutional--we just say it's preempted.

Does this classification make a difference? Maybe. One thing this shows is that there is sometimes no clear line between a constitutional and a statutory claim. Thus, saying things like "in statutory cases we should do this but in constitutional cases we should do that" is imprecise. Second, if we think of preemption claims as constitutional, then that would suggest that some sort of avoidance canon might be used, either by state courts construing state law, federal courts certifying state law questions to state courts, or federal courts construing federal law. I can't say that I know what the practice is in preemption cases: My impression is that courts take a fairly straightforward approach without avoidance. Third, implied preemption might be disfavored as creating constitutional violations when they are not necessary.

Would all of this be better than current preemption doctrine? I have no idea. 

Posted by Gerard Magliocca on July 23, 2020 at 09:23 AM | Permalink | Comments (2)

Wednesday, July 22, 2020

Preparing for Fall Teaching -- Guest Post on Law School Online: Choosing Between Live and Asynchronous Teaching

This guest post is by Nina A. Kohn, David M. Levy Professor of Law and Faculty Director of Online Education, Syracuse University College of Law.  For the other posts in the series on preparing for fall teaching, see here.

Law faculty nationwide are grappling with how best to teach courses that are online for all or part of the semester.  The single most important decision most will make is what format to use. 

Should they teach synchronous (or “live”) classes, using a videoconferencing platform such as Zoom?  Should they teach asynchronous (or “self-paced”) classes, recording lectures or other content that students can interact with on a more flexible schedule?  Should they combine the two formats?

As someone who led the design and implementation of an online JD program, spent the past several months training faculty transitioning to online teaching, and has taught both a traditional, doctrinal course (Torts) and a seminar (Aging and the Law) online, my recommendation is actually very simple:  law faculty should make synchronous (live) teaching their default. 

As I explore in depth in my new article “Teaching Law Online: A Guide for Faculty” (forthcoming in the Journal of Legal Education), there are three primary reasons for making live law teaching the default even when classes are online.

Continue reading "Preparing for Fall Teaching -- Guest Post on Law School Online: Choosing Between Live and Asynchronous Teaching"

Posted by Jessica Erickson on July 22, 2020 at 03:27 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (4)

Shifting Rationales for Anti-Lynching Legislation

A federal anti-lynching bill is pending in Congress. A federal anti-lynching bill has been pending in Congress for over 100 years. What I find interesting in looking those proposals is how their constitutional rationale changes.

The first federal bill, which was introduced in the 1910s, said that private individuals who engaged in lynching violated the equal protection of the laws. Thus, the bill was grounded on Section Five of the Fourteenth Amendment. This was so notwithstanding the Supreme Court's state action cases (such as the Civil Rights Cases). The bill passed the House but died in the Senate.

In the 1930s, another major legislative effort was made. Again the bill rested on Section 5 (this time referring to equal protection and due process), but this time Congress focused on state and local officials who failed to stop a lynching. They were state officials, but the "inaction" theory of state action is one that the Supreme Court subsequently rejected in cases such as DeShaney. The bill passed the House but died in the Senate.

Fast forward to the current bill. As far as I can tell, the constitutional basis for the legislation is the Thirteenth Amendment. The preamble talks about lynching as a direct legacy of slavery and criminalizes private action, though the bill also refers to civil rights. It is hard to see how the bill could be authorized on any other ground. The Fourteenth Amendment state action cases are still there (many of them are incorrectly decided, but there we are), and lynching probably does not fall within the Commerce Clause authority as defined by cases such as Lopez and Morrison.

If this bill is enacted and ever used in a protection, then it will be interesting to see how a constitutional challenge will play out. I can't imagine that the Supreme Court would strike down such a law, but a Thirteenth Amendment explanation would open some new doors.

Posted by Gerard Magliocca on July 22, 2020 at 09:28 AM | Permalink | Comments (3)

Tuesday, July 21, 2020

Nondelegation Doctrine--How or To Whom?

I've never been interested in the non-delegation doctrine. I suppose that's because I am not an administrative law scholar. Or it could just be that the doctrine was (until recently) moribund. 

But here's a thought that (for all I know) is not original. Much of the discussion of non-delegation is about the standard Congress must use in delegating. Is a statute too vague? Does the importance of the delegated issue change what "too vague" is? The trouble with these formulations is that they are . . . well . . . too vague for courts to implement well.

I wonder if a sounder non-delegation doctrine is that Congress may not delegate certain powers to certain parties at all. Suppose Congress delegates regulatory authority to a private firm or individual. We would probably think that deeply wrong even if Congress offered clear guidelines for the exercise of that discretion. ("Deeply wrong" may not mean "unconstitutional." That's why I'm thinking this through). You can find language in Andrew Jackson's Bank Veto and later commentary on that decision that says something like this. Or what about Congress delegating certain powers to the Executive Branch or to the states that in some sense are seen as core congressional powers. This could be described as a separation of powers problem, but maybe it's really a non-delegation problem.

Posted by Gerard Magliocca on July 21, 2020 at 08:15 PM | Permalink | Comments (9)

Preparing for Fall Teaching – Discussion Boards in Physically Distanced, Hybrid, and Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here.  Posts this week will focus on the second step, which is designing assessment & engagement techniques for these new learning environments. 

Most assessment and engagement tools that people are talking about now are relatively familiar for most law professors.  We know how to check individual students’ comprehension in class, oversee discussions, and facilitate group work.  We just need help adapting these familiar techniques for physically distanced or remote courses.  Discussion boards, however, are different. Most law faculty have never used discussion boards, and my guess is that most of us have a pretty negative view of them.  And yet they seem quite prevalent in online courses, so I think many of us might be wondering if we should use them this fall and, if so, how we can use them effectively.

Continue reading "Preparing for Fall Teaching – Discussion Boards in Physically Distanced, Hybrid, and Remote Courses"

Posted by Jessica Erickson on July 21, 2020 at 02:58 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (4)

Monday, July 20, 2020

Has the submission window moved?

Scholastica sends daily announcements about article submissions, including which journals have reopened for submissions. I have seen several such announcements the past few days, including from some top journals.

 I had thought that the already-narrow August window opened around August 10. Has it moved up? Are journals actively accepting and reviewing articles? Are scholars submitting? Would love to hear from authors and journal editors.

Posted by Howard Wasserman on July 20, 2020 at 10:04 PM in Howard Wasserman, Teaching Law | Permalink | Comments (19)

Some thoughts on gay rights, religious liberty, and baseline hell

I wrote this response as part of Balkinization's symposium on Andy Koppelman's new book, Gay Rights versus Religious Liberty. As readers of this blog might already know, I tend to think that many areas of law are so afflicted by what I call "baseline hell" that it is a waste of time to ask whether or not some action is "harmful" to other people rather than a protection against other people's "harmful" actions.

There is a corollary to baseline hell: Rather than talk about whether or not some actor is playing offense or defense, it is more profitable to address frankly and squarely the moral merits of the action. We can better tolerate actions based on erroneous beliefs when that error is not too great -- for instance, when that error does not offend the deepest commitments of a liberal democracy. There are, after all, a lot of erroneous and harmful ideas out there -- anti-vaxxer conspiracy theories, flat-earth physics, Holocaust denial, white supremacy, heterosexism, etc. -- and we ought to assess, and distinguish between, degrees of those ideas' harmfulness and wrongfulness in deciding how much to accommodate them as the basis for anyone's action. Our constant habit of asking whether or not an action "harms" another person rather than asking whether or not the idea is right or wrong, good or bad, prevents us from making that (IMHO) necessary assessment.

To be a bit more precise, there are ideas that are (1) obviously, plainly wrong but probably harmless (e.g., flat-earthism), (2) both mistaken and harmful (anti-vaxxer conspiracy theories), and (3) not only wrong and harmful but also inimical to democratic cooperation. White supremacy is in that third category, which is why, I think, we not only appropriately refuse to accommodate shop owners' racist refusals to serve but also rightfully shame racists in social interactions outside of commercial interactions. Whether or not heterosexist disapproval of same-sex marriage falls into this distinctively and appropriately stigmatized category of beliefs is, I think, a much closer question. But whether or not you agree with me on that score, I think that it is a more useful question to ask than to ask whether or not the owner of a small business in a competitive market for flowers or cakes "harms" customers by refusing to serve them or instead engages in self-protection from the "harm" of violating the owner's religious beliefs. As I argue in my symposium contribution, the answer to that latter question is lost in a futile circularity of baseline hell.

Posted by Rick Hills on July 20, 2020 at 11:37 AM | Permalink | Comments (12)

Sunday, July 19, 2020

Relationship as Product

In a new article posted on ssrn Samuel Becher and Sarah Dadush argue that today companies are selling not only products and services but also the promise of long-term relationships and emotional connectedness. As part of this trend, businesses frequently pretend that their relationships with consumers are more profound and intimate than they actually are - A business emails its clients, saying “Hello to this beautiful community of people we love!”; a telecom company greets a customer returning from a trip overseas, with a text that reads “Welcome home! We hope you had a safe trip”; A petrol company e-mails a customer, congratulating him on being “a great customer” and informing him that “we thought we’d return the favor” by offering a few cents discount on fuel; an airlines is “friendly reminding” a traveler to “grab her umbrella and coat”; or an investing banking company contacts a client, saying “Friendly note: [Name of client,] We want to reward you with up to $500 offer.”

The article links the practice of humanizing and selling business-to-consumer relationships with the loneliness epidemic, the decline in social trust and the importance of relationships to our wellbeing and physical and mental health. Against this interdisciplinary background, the article argues that B2C relational practices are opportunistic and can be harmful to consumers and society. It suggests scrutinizing what it dubs “emotional and love promises” by rethinking the puffery doctrine and by considering whether such practices “can amount to a deceptive or unfair trade practice”.

I found this article relevant to our strange and unusual times, when, as someone tweeted recently "who needs a boyfriend when my university cares about my wellbeing so much that it sends me a daily email saying how much it cares about my safety and physical and emotional health." Same with my (former) gym, yoga studios, hair salons, restaurants, airline, and shopping mall.

 

Posted by Orly Lobel on July 19, 2020 at 12:26 PM | Permalink | Comments (4)

Saturday, July 18, 2020

Andrew Mellon's Tax Trial

Continuing with "Article Ideas for Anyone Who Wants Them," I give you the tax trial of former Treasury Secretary Andrew Mellon in the mid-1930s.

Andrew Mellon was one of America's leading bankers. In 1921, he became the Treasury Secretary and held that post for 11 years under three different Republican Presidents. Mellon was the most influential Treasury Secretary other than Hamilton, and became identified with the policies that led to the Crash of 1929 and the Great Depression. (He was also a prolific art collector and created the National Gallery).

After he left office, the DOJ sought to indict Mellon on tax fraud charges. A grand jury refused to return a true bill (by an 11-10 vote). Then a civil tax trial ensued, with Robert Jackson (in his first big government post) making the government's case. This was a big media event at the time, which ended with Mellon's estate paying several hundred thousand dollars in back taxes.

I highlight the case for a few reasons. First, there's a great story here. Andrew Mellon! Robert Jackson! And grand jurors doing something pretty unusual. Second, I've thought of this example in the past few years when people say that in America we don't use law enforcement to go after political enemies. While that's generally true, there are some notable counterexamples. Mellon's case may be one, as there is some evidence that he was targeted by the Roosevelt Administration because he was a high-profile Republican Cabinet officer.

I suspect that nobody has given a good account of the case because . . . well . . . it's about taxes. Mellon's biographer did tell that story but in a way that may have been too favorable to his subject. A tax scholar and a con law scholar should get together and write this paper.   

Posted by Gerard Magliocca on July 18, 2020 at 10:26 PM | Permalink | Comments (3)

Law schools still in denial

I predicted several weeks ago that law schools committed to some jury-rigged hybrid schemes would retreat from that as the summer continued, and as more evidence accumulated both of the folly of pursuing in-residence learning and also as faculty became more adept at remote/online learning modalities.  It appears I was wrong.  Through some combination of hubris and predicament (and maybe the lack of autonomy in bureaucratic university structures), most law schools are plowing ahead with these ventures.  A big virtual conference on "law school logistics in the time of COVID-19" indicated that law schools are determined to try these schemes; it also revealed enormous unease with these choices.

The unease is warranted.  This strategy continues to be folly.  And the ambient denial is both remarkable and dispiriting.  Our students and faculty deserve better.

Scott Galloway has a big picture essay that lays at the dilemma at the university-wide level.

And law professor Tim Duane, an expert in environmental science, inter alia, gives some grim information about this hybrid world in our law schools.

 

Posted by Dan Rodriguez on July 18, 2020 at 03:26 PM in Daniel Rodriguez | Permalink | Comments (9)

Friday, July 17, 2020

Trump, Twitter, Facebook, and the Future of Online Speech

The New Yorker, it turns out, reads law review articles. This article, worth a read, covers a lot of ground and draws on the scholarship of Jeff Koseff, Danielle Citron, Eric Goldman, Kate Klonick, Daphne Keller, and also my own work on The Law of the Platform.

 

Posted by Orly Lobel on July 17, 2020 at 04:36 PM | Permalink | Comments (2)

Preparing for Fall Teaching – Discussion and Socratic Dialogue in Physically Distanced, Hybrid, and Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here, and for the  five step approach that I am using, see here.  Over the next two weeks, I will focus on the second step, which is designing assessment & engagement techniques for these new learning environments. 

One of the biggest challenges professors face this fall is how to spark discussion and conduct Socratic dialogue in their courses.  Anyone who taught this spring knows that it is so much harder to get students talking over Zoom than in a traditional classroom.  There’s something about staring at a bunch of faces on a screen that makes people more hesitant to join in.  I’ve never tried to hold a discussion in a physically distanced classroom with everyone in masks and six feet apart, but I can’t imagine it will be any easier.  So how can we generate meaningful discussions, especially around difficult topics, when we are distanced from one another?

I don’t have any techniques that will magically erase these challenges.  It will be hard.  But I do have some tips that may help.  The key, I think, is setting the stage for the discussion in more deliberate ways. Consider the following strategies:

Continue reading "Preparing for Fall Teaching – Discussion and Socratic Dialogue in Physically Distanced, Hybrid, and Remote Courses"

Posted by Jessica Erickson on July 17, 2020 at 02:56 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

"Big Mountain Jesus" statue vandalized

I have blogged a few times, over the years, about the "Big Mountain Jesus" statue at Whitefish ski resort (a great place, BTW) in Montana.  I'm very sorry to share the news that the statue was vandalized last weekend.   Here's a little bit, from a short essay I did a while back, about the statue (and an earlier round of a different sort of iconoclasm):

Whitefish Mountain, a ski resort in northwest Montana, is known for its spicy terrain, rime-clothed “snow ghosts,” and postcard-perfect views of Glacier ­National Park. And, of course, for “Big Mountain Jesus.”

Big Mountain Jesus is a kitschy but beloved dashboard-ornament-style six-foot-tall statue standing on a six-foot-tall stone pedestal near the summit of one of Whitefish’s peaks. It was erected in 1955 by some local Knights of Columbus who had served in Italy during World War II with the 10th Mountain Division and remembered fondly the statues and shrines that were ubiquitous in the Apennines and Alps. Because Whitefish and the statue are on leased public lands, and the Knights’ permit has to be ­reauthorized by the United States Forest Service every ten years, the enterprising secularizers at the Freedom from Religion Foundation eventually, and predictably, made a federal case out of Big Mountain Jesus, claiming among other things that it “excludes all the brave Jews and atheists that fought in World War II.”

The statue survives, for now, notwithstanding the lack of any accompanying, equal-time-supplying idols or icons. The federal judge assigned to the case noted that “[t]o some, Big Mountain Jesus is offensive and to others it represents only a religious symbol. But the court suspects that for most who happen to encounter Big Mountain Jesus, it neither offends nor inspires.” Instead, the memorial “serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, t-bars, leather ski boots, and 210 cm skis.” The relevant U.S. Court of ­Appeals took the auspices and then agreed, duly reporting that Big Mountain Jesus has a “secular purpose” and—because “the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in Mardi Gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures”—the statue does not “endorse” Christianity.

According to the news report, "the forest service learned of the vandalism on Monday, but did not yet have information on whether the incident is being investigated."

Posted by Rick Garnett on July 17, 2020 at 10:41 AM in Rick Garnett | Permalink | Comments (0)

The History of the Bluebook

I learned something interesting the other day. The first edition of the Bluebook was created in the 1920s, mainly by Henry J. Friendly and Herbert Brownell. Finally we may have found a flaw in Friendly's otherwise stellar reputation!

Or so I first thought. But then came my next question: What did the first edition of the Bluebook look like? Maybe the problem is not with the Bluebook itself, but how the Bluebook has evolved over the past century. I'm sure folks at the Harvard Law Review or Yale Law Journal have a first-edition Bluebook sitting around in the office somewhere. It would be fun to see how that compares to the current version.

Posted by Gerard Magliocca on July 17, 2020 at 09:24 AM | Permalink | Comments (5)

Thursday, July 16, 2020

Why bulls and bears?

Question for anyone who might know: Why are bulls and bears the animal metaphors for the financial markets and why is an up market "bull" and a down market "bad"? My father was an over-the-counter stock trader and I had a t-shirt showing a bull beating up a bear, but I never thought to ask.

A colleague says it is because a fighting bull gores up when it is winning, while a fighting bear swipes down when it is winning.

Looking for other theories.

Posted by Howard Wasserman on July 16, 2020 at 07:18 PM in Howard Wasserman | Permalink | Comments (2)

2020 Law Journal Meta Rankings

From Bryce Newell.

Posted by Howard Wasserman on July 16, 2020 at 03:36 PM in Howard Wasserman, Teaching Law | Permalink | Comments (4)

Wednesday, July 15, 2020

Anti-SLAPP law does not apply in Second Circuit

The Second Circuit has joined the chorus holding that state anti-SLAPP laws (in that case, California's) do not apply in federal court. The case arises out of a lawsuit against Joy Reid over two tweets with a photo of a woman in a MAGA hat interacting with a Latinx teen at a city council meeting; one tweet described the plaintiff as shouting epithets at the teen (who said their interaction was civil), while the other juxtaposed the infamous 1957 photograph of the screaming white teen in Little Rock.

The Second Circuit joins the Fifth, Eleventh, and D.C. Circuits in not applying them, compared with the Ninth and First that. The court followed the prevailing approach--FRCP 12 and 56 provide the standards for pre-trial resolution, leaving no room for state law. The court rejected the amici argument that the SLAPP law serves a "distinct function of protecting those specific defendants that have been targeted with litigation on the basis of their protected speech," supplementing rather than conflicting with the FRCP. But this is a policy argument, one that contradicts the policies underlying the FRCP themselves. The court also rejected the defendant's argument that she can recover attorney's fees under the statute for a 12(b)(6) dismissal; the statute allows fees when the defendant prevails on the statutory motion to strike, not on some other basis.

Tellingly, the four most recent cases have gone this way, while the First Circuit decision is from 2010 and the seminal Ninth Circuit cases is from 1999, with several Ninth Circuit judges calling for its reconsideration in 2013. The courts of appeals are congealing around the correct Erie answer and may not require SCOTUS resolution, one point of percolation.

But that might not be the correct answer as a matter of the First Amendment and the need to protect speakers, especially media, against frivolous lawsuits by powerful individuals designed to chill public criticism. (Query whether this is such a case, but bracket that for a moment). Many First Amendment advocates want a full federal anti-SLAPP statute. For the moment, I think a fee-shifting statute, combined with vigorous use of Twiqbal would be sufficient to get rid of cases early in the process and to protect defendants from the intentional imposition of litigation costs. But I need to look in greater detail at how federal courts have looked at defamation claims under that pleading standard.

Continue reading "Anti-SLAPP law does not apply in Second Circuit"

Posted by Howard Wasserman on July 15, 2020 at 07:01 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Preparing for Fall Teaching – Assessment Through Comprehension Checks in Physically Distanced, Hybrid, and Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here.

In an earlier post, I laid out a five step approach to redesigning your courses for a physically distanced, hybrid, or remote semester.  Over the next two weeks, I will be focusing on the second step, which is designing assessment & engagement techniques for these new learning environments.  I covered the basics of assessment theory as it relates to these new learning environments in my last post.  In this post, I will begin to talk about specific assessment techniques.

Aside from all of the other challenges of teaching in a distanced classroom, we will all have to figure out whether and how to change the ways in which we engage and assess our students.  The techniques that we’ve used in the past may not work in these new learning environments.  As we have seen, it can be much harder to get students to participate in discussions when they are participating remotely.  You can’t just put people on Zoom or in a room with masks and trust that conversation will naturally develop.  Group work is similarly a lot harder in a physically distanced classroom, as is peer editing.  You have to thoughtfully and deliberately re-engineer interaction from the traditional classroom to fit the physically distanced, hybrid, or remote space. 

Over the next two weeks, I’ll talk about six different assessment and engagement techniques – comprehension checks, Socratic dialogue, discussion, group work, community-based learning, and reflection & metacognition.  I also hope to include a few guest posts from legal analysis & writing faculty and clinical faculty on specific assessment techniques used in these classes. 

The rest of this post will focus on comprehension checks – i.e., quick assessments to make sure that students understand the material and can apply it.  I am going to break down comprehension checks into those done before class to make sure that students have completed and understood the reading and those done during class to check that students understand the class discussion and are able to apply it to new situations. 

Pre-Class Comprehension Checks 

I’ve used a number of techniques to check students’ comprehension before class, and I’m considering a few new ones this year.  The benefit of these techniques is that I can move some of the analytical work into students’ before-class preparation, leaving more class time for deeper work.  I can also easily gauge whether students understood the material, allowing me to correct common misconceptions in class.

Continue reading "Preparing for Fall Teaching – Assessment Through Comprehension Checks in Physically Distanced, Hybrid, and Remote Courses"

Posted by Jessica Erickson on July 15, 2020 at 02:43 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (0)

Monday, July 13, 2020

The Burr Trial

The Supreme Court's reliance on John Marshall's rulings in Aaron Burr's Treason trial to resolve Trump v. Vance raises some interesting questions and points.

1. Was the Burr trial the most important in American history? If not, what was? There's a fun cocktail party debate. 
2. The Burr Trial is the only significant time where we see Chief Justice Marshall acting alone as a judge. Everything he did on the Supreme Court was done in collaboration with at least some colleagues. It's easy to overlook this fact.
3. Some quick research suggests that citing the Burr Trial as a precedent coincided with the start of Marshall-mania in 1895. In that year, the Court relied heavily on Marbury to justify its decision in Pollock and cited the Burr Trial in a significant way for the first time (in Sparf and Hansen), one of my favorite sets of Supreme Court opinions. Marshall's reputation before 1895 was not as strong as it was after that year.

UPDATE: Orin Kerr correctly points out that Marshall was not acting alone: he sat alongside a District Judge. I should have been clearer about that. In practice, District Judges rarely challenged a Circuit Justice unless the Justice wanted a legal question appealed to the Supreme Court, which required a formal disagreement. (One of Washington's District Judge partners basically just cracked the occasional joke during circuit case.) We can, therefore, be confident that Marshall's rulings in the Burr Trial were his own rather than the product of extended consultation. 

Posted by Gerard Magliocca on July 13, 2020 at 07:55 PM | Permalink | Comments (6)

Universal v. Nationwide, Again

The Ninth Circuit affirmed an injunction prohibiting enforcement of DOJ's sanctuary-city regulations as to California and the City and County of San Francisco. This comes after the Second Circuit denied rehearing en banc of a panel decision declaring the regulations valid. We now have a clear circuit split, although I imagine nothing will happen at SCOTUS if Biden wins and the regulations go away.

The Ninth Circuit did narrow the injunction to prohibit enforcement within California but nowhere else. It did so in terms that seem to contemplate the distinction between the injunction's who and where:

Plaintiffs here, a state and a municipality, “‘operate in a fashion that permits neat geographic boundaries.’” . . . Because Plaintiffs do not operate or suffer harm outside of their own borders, the geographical scope of an injunction can be neatly drawn to provide no more or less relief than what is necessary to redress Plaintiffs’ injuries. This is distinguishable from a case involving plaintiffs that operate and suffer harm in a number of jurisdictions, where the process of tailoring an injunction may be more complex.

The court distinguished a case involving asylum organizations that operate in California and other states, where an injunction limited to California would not address the harm from losing a client in Texas.

On the other hand, the court "acknowledge[d] the 'increasingly controversial' nature of nationwide injunction," a framing that confuses the point. There should be nothing controversial about nationwide injunctions, which the court faced here--injunctions that protect the plaintiffs wherever they operate. The controversy is over universal injunctions--injunctions that attempt to protect beyond the plaintiffs. Still, we are slowly getting there.

Posted by Howard Wasserman on July 13, 2020 at 03:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

CFP: Akron Law Review

Akron Law Review is seeking to publish an issue devoted to criminal justice reform. Topics may include, but are not limited to:

• Recent efforts in and new ideas regarding bail reform, pretrial detention and pretrial “services”, the use of proprietary algorithms to make decisions about pretrial release, and other uses of technology for “predictive policing.”
• Exploring new and existing ways of holding police accountable, including changes to qualified immunity, obstruction of justice charges for turning off cameras, changing the burden of proof in federal civil rights actions against the police, and taking charging decisions away from local prosecutors.
• Collateral consequences of conviction, easier or automatic expungement, and felon disenfranchisement.
• Financial burdens from the criminal justice system including fines, court costs, late payment fees, privatized probation and pretrial services, etc.
• “Abolition” of prisons and/or police and alternative ways of securing public safety, and how these might be implemented in our legal system. Do models of policing/public safety/criminal justice in other countries, or historical instances where police forces were disbanded and replaced, have anything to teach us?

Articles published by Akron Law Review average 15–25,000 words. Please email submissions and any questions to [email protected] Articles submitted on or before September 15, 2020 will receive priority consideration. The submission window will close when the edition is full or on October 15, 2020.

Posted by Howard Wasserman on July 13, 2020 at 03:05 PM in Teaching Law | Permalink | Comments (0)

Preparing for Fall Teaching – Assessment Theory for Physically Distanced, Hybrid, and Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here.

In an earlier post, I laid out a five step approach to redesigning your courses for a physically distanced, hybrid, or remote semester.  This post introduces the second step, which is designing assessment & engagement techniques for these new learning environments.  I’ll cover this step in a number of posts over the next two weeks.  In this intro post, however, I want to review the basics of assessment theory, especially as it relates to these new learning environments.

First, the good news – assessment theory is largely the same in physically distanced, hybrid, or remote courses as it is in traditional courses.  The same principles still apply, so we aren’t reinventing the wheel from a theory perspective.  The bad news though is that we may not always follow this theory perfectly in our own classes.  So before diving into specific techniques for the fall (they’re coming in future posts – I promise!), I want to highlight some of the key principles from assessment theory that will be especially relevant as we redesign our courses for the fall. 

Alignment:  In my last post, I discussed integrated course design and how defining your learning objectives should be the first step of any course redesign.    Your learning objectives should then inform your assessments and learning activities, with all three tightly aligned.   This visual shows the interdependent relationship between these three parts of course design.

Continue reading "Preparing for Fall Teaching – Assessment Theory for Physically Distanced, Hybrid, and Remote Courses"

Posted by Jessica Erickson on July 13, 2020 at 12:25 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (0)

AALS Federal Courts Section: Calls for Nominations

After the jump is information on two Calls for Nominations from the AALS Section on Federal Courts: The first is for the Daniel J. Meltzer Award, designed to honor the life and work of the late Prof. Meltzer. The second is for the Best Untenured Article on Federal Jurisdiction.

Continue reading "AALS Federal Courts Section: Calls for Nominations"

Posted by Howard Wasserman on July 13, 2020 at 12:08 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday, July 11, 2020

Bushrod Washington Draft Complete

Phew! This draft is done. I'm happy to share the manuscript with interested scholars. Just drop me a note. In the meantime, on to the next article, which I'll start talking about soon.

Posted by Gerard Magliocca on July 11, 2020 at 08:48 AM | Permalink | Comments (1)

Friday, July 10, 2020

The process of Mazars and Vance (Updated)

Some process questions following Mazars and Vance, less about what happens on remand in these cases* than about what happens in future cases.

[*] I agree with what I have seen as a prevailing consensus--Trump runs out the clock on these subpoenas for this term, but may be in for a world of hurt and embarrassment as a private citizen if he loses in November. If he wins in November, all bets may be off.

Continue reading "The process of Mazars and Vance (Updated)"

Posted by Howard Wasserman on July 10, 2020 at 03:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Preparing for Fall Teaching– Identify Your Learning Objectives

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here.

In my last post, I laid out a five step approach to redesigning your courses for a physically distanced, hybrid, or remote semester.  This post covers the first step, which is to identify your learning objectives. 

I’ll fully admit that this step is the least exciting of the five.  We have so much to learn about distanced and remote pedagogy that we are eager to dive into the new stuff.  We don’t want to spend our precious time this summer on more general pedagogical work.  I get it, but if you’re going to spend time overhauling your courses, you have to know what you want your students to get out of them.  It’s the foundation for all of the other steps. 

Pull out your old learning objectives from past syllabi, and take a hard look at them.  Do they still represent your learning goals for the course?  My learning objectives represent a constant battle between depth and breadth.  It feels so satisfying to cover lots of content in a course, zipping through the chapters in a casebook.   This satisfaction dissipates though when you see the same students in a year or two, and they remember little of the content.  Three weeks of personal jurisdiction in Civil Procedure becomes “um, minimum contacts?”

This isn’t a critique of our students.  It’s just how the human brain works.  Our brains are not designed to remember lots of information if we don’t regularly use it.  That doesn’t mean that content is irrelevant—I still teach personal jurisdiction!—but I need to do more in the classroom to get it to stick in students’ minds.

Just as importantly, most of us have pedagogical goals that extend beyond our students being able to remember and parrot back the content.  We want our students to be able to use the content in various ways, and it takes time to develop these deeper skills.   So deciding on your learning goals is a balance between covering lots of concepts and developing students’ ability to use these concepts in various ways.

Continue reading "Preparing for Fall Teaching– Identify Your Learning Objectives"

Posted by Jessica Erickson on July 10, 2020 at 10:35 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (3)

Thursday, July 09, 2020

Teaching and evolving doctrine

I will teach 1L Constitutional Law (structure, powers, and basic 14th Amendment) for the first time this semester.

A friend who teaches the course at another school described the difficulty in this course as the rapid increase in the amount of law in a course whose time structure has not changed. Many major cases that occupied many casebook pages and many minutes of class time when he began are now one-paragraph or one-parenthetical notes. In the past two weeks, the Court has decided four cases--Seila Law, June Medical, Vance, and Mazars--that could be substantial cases in addition to or in lieu of what is in the casebook. (My momentary preference is to add Seila Law and maybe Mazars but not the others). And that is without cases radically altering the legal landscape (we are not living through either the Switch in Time or whatever we call Lopez).

Is this unique to Constitutional Law? Do other law school subjects (especially 1L course) have the same issues? Is Con Law unique because the focus is on SCOTUS decisions, so every new case seems important and necessary to the course?

I have experienced this a bit with personal jurisdiction in Civ Pro. I have moved several post-2011 cases (Nicastro, Walden, and Daimler and probably Ford when it comes out next Term) into the mix. During an early Civ Pro Unavailability Workshop someone raised which of the nearly ten recent P/J cases to include and which 1980s-era cases to replace, to say nothing of what to do with Pennoyer. Less so in Fed Courts and Civil Rights, where I use a treatise and new developments or applications (e.g., the legislative and policy move to eliminate qualified immunity) can be integrated into existing materials without displacing them.

But it feels pervasive and never-ending in trying to plan this course. Thoughts?

Posted by Howard Wasserman on July 9, 2020 at 01:01 PM in Constitutional thoughts, Howard Wasserman, Teaching Law | Permalink | Comments (7)

Wednesday, July 08, 2020

Justice Kagan’s Warring Views on the Religion Clauses

Today (Wednesday) the Supreme Court decided two cases involving questions of law and religious rights: Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267, consolidated with 19-348), which addressed the scope of the First Amendment’s “ministerial exception,” and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431, consolidated with 19-454), which determined the legality of regulations exempting employers from ACA-mandated contraceptive coverage for religious reasons. Justice Kagan joined the majority in both—in full in Our Lady and in the judgment in Little Sisters. But in what appears as case of the right hand not knowing what the left hand is doing, a footnote in her concurring opinion in Little Sisters misreads the majority opinion she joined in full in Our Lady. (Of course, she could be putting forth a revisionist reading.)

Our Lady grounds the so-called “ministerial exception” clearly in the broader doctrine of church autonomy. That doctrine, supported by the Religion Clauses, “protect[s] the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” (Slip op. at 10) (quoting Hosanna-Tabor, 565 U.S., at 186). Further, “[s]tate interference in that sphere would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion. The First Amendment outlaws such intrusion.” (10).

Our Lady observed that “[t]he independence of religious institutions in matters of ‘faith and doctrine’ is closely linked to independence in what we have termed ‘matters of church government.’” (10) (quoting 565 U. S., at 186). The First Amendment “protect[s] [religious institution’s] autonomy with respect to internal management decisions that are essential to the institution’s central mission.” (11). What is more, “a component of this autonomy is the selection of the individuals who play certain key roles.” (11). The Court notes that the “‘ministerial exception’ was based on this insight.” (11). And the “constitutional foundation” for the Court first recognizing this exception in Hosanna-Tabor “was the general principle of church autonomy”—“independence in matters of faith and doctrine and in closely linked matters of internal government.” (12). To support this, the Court notes three earlier church autonomy cases, all of which had to do with the control of church property (though in some, but not all, “the authority and appointment of a bishops” was also at issue).

Continue reading "Justice Kagan’s Warring Views on the Religion Clauses"

Posted by James Phillips on July 8, 2020 at 07:10 PM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (4)

Universal v. Nationwide

A good illustration of why the nationwide/universal and where/who distinction matters for the scope-of-injunction question. Here is footnote 28 in Ginsburg dissent in Little Sisters:

Although the Court does not reach the issue, the District Court did not abuse its discretion in issuing a nationwide injunction. The Administrative Procedure Act contemplates nationwide relief from invalid agency action. See 5 U. S. C. §706(2) (empowering courts to “hold unlawful and set aside agency action”). Moreover, the nationwide reach of the injunction “was ‘necessary to provide complete relief to the plaintiffs.’ ” Trump v. Hawaii, 585 U. S. ___, ___, n. 15 (2018) (SOTOMAYOR, J., dissenting) (slip op., at 25, n. 13) (quoting Madsen v. Women's Health Center, Inc., 512 U. S. 753, 765 (1994)). Harm to Pennsylvania and New Jersey, the Court of Appeals explained, occurs because women who lose benefits under the exemption “will turn to state-funded services for their contraceptive needs and for the unintended pregnancies that may result from the loss of coverage.” 930 F. 3d, at 562. This harm is not bounded by state lines. The Court of Appeals noted, for example, that some800,000 residents of Pennsylvania and New Jersey work—and thus receive their health insurance—out of State. Id., at 576. Similarly, many students who attend colleges and universities in Pennsylvania and New Jersey receive their health insurance from their parents’ out-of-state health plans. Ibid.

Ginsburg is correct that protecting New Jersey and Pennsylvania is not bounded by state lines, given the number of employees, students, etc. likely to turn to the state for financial assistance. That is, the injunction should have been nationwide in where it protects the parties.  It should protect NJ and Pennsylvania and those people with some connection to NJ or Pennsylvania (on whose behalf NJ and Pennsylvania sued), regardless of where those people are.

But complete relief does not require that the regs be enjoined as to other states who may incur the same harm as NJ and PA or to individuals who might be denied coverage but have no connection to NJ and PA. That is, the injunction need not be universal (or non-particularized) in who it protects. Complete relief to NJ and PA does not require that the enforcement be enjoined as to California or those people who might turn to California for funding if denied coverage.

For what it is worth, the same should apply to the lawsuit Harvard and MIT filed to stop ICE from enforcing the rules with respect to student-visa holders and remote courses. Complete relief to Harvard and MIT does not require enjoining enforcement of the regulations as to other schools or students from schools other than Harvard and MIT. It only requires an injunction protecting Harvard and MIT and their students, regardless of where located. I recognize this is inefficient. But this is the scheme we have.

Posted by Howard Wasserman on July 8, 2020 at 01:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Preparing for Fall Teaching – Five Steps to Designing a Physically Distanced/Hybrid/Remote Course

This post is part of a series on preparing to teach in the fall.  For the first post in the series, see here.

As I mentioned in my first post, I’ve spent a lot of time this summer reading books and attending webinars about remote teaching.  A week or so into this deep dive, however, I found that I was overwhelmed.  Perhaps you’ve had a similar experience.  There are lots of great tips out there, but it can feel like drinking from a water hose.  We’re told to learn more about our learning management systems, keep our videos short, offer flexible options for students, have a good online presence, experiment with new assessment techniques, caption our videos, along with so many more tips.  They were all good ideas, but it was too much.  I wasn’t sure where to start. 

I needed a broader framework, so I took a step back and tried to fit this information into five concrete steps to redesigning a physically distanced, hybrid, or remote course.  This post introduces these steps, and I’ll go into each step in more detail in future posts.  Approaching the fall using these steps feels a lot less overwhelming, at least to me.

Here are the five steps I will be talking about:

Continue reading "Preparing for Fall Teaching – Five Steps to Designing a Physically Distanced/Hybrid/Remote Course"

Posted by Jessica Erickson on July 8, 2020 at 10:34 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (3)

Tuesday, July 07, 2020

Bingham, Ohio

I hear that the city of Columbus is looking for a new name. A name that is part of Ohio's history and stands for racial justice. How about Bingham, Ohio? 

Posted by Gerard Magliocca on July 7, 2020 at 07:48 PM | Permalink | Comments (4)

Call for Articles: Post-Pandemic Impact on Healthcare Development and Delivery

Posted by Sarah Lawsky on July 7, 2020 at 04:24 PM in Law Review Review | Permalink | Comments (0)

The First Amendment and the preferred first speaker

Harper's has published online (and will publish in print) a letter on "justice and open debate" from a cross-section of journalists, authors, and academics, including several law professors. They decry a "new set of moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity." They allude to  recent events involving fired editors and analysts, canceled books, investigated professors--what has come to be called, loosely, "cancel culture."

The authors claim to "uphold the value of robust and even caustic counter-speech from all quarters," but to fear that "it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought." Ken White (Popehat to those on Twitter and KCRW) sees the letter as drawing an untenable (or at least elusive) distinction between "silencing" and "more/responsive/critical" counter-speech. White labels this the "problem of the preferred first speaker," the " tendency to impose norms of civility, openness, productiveness, and dialogue-encouraging on a RESPONSE to expression that we do not impose on the expression itself." In other words, the original speaker is free to say what she wants however she wants; the response must listen to, engage with, and respond to that speech. "Shut up" is not acceptable counter-speech.

This is an extension and expansion of the problem of campus speech and "controversial" speakers. The invited speaker (Charles Murray, whoever) is the preferred first speaker, entitled to have his say; those who object or oppose his views are expected to sit quietly, listen to what he says, perhaps ask a question or make a comment during Q&A (if he deigns to call on them). Anything else (such as a noisy protest outside the hall) is the dreaded heckler's veto.

Both situations create a puzzle . We do not want people to lose their livelihoods for their speech, nor do we want speakers chased off campus. But we also should not hamstring one side of the debate--to paraphrase Justice Scalia, we should not allow the original speaker "to fight freestyle," while requiring counter-speakers "to follow Marquis of Queensberry rules." I do not know the right answer or correct balance either to the recent online issues or to campus speech (the latter will not be an issue for awhile, unfortunately). But this letter does not provide it.

Meanwhile, White provides a great title for the article I hope to write.

Posted by Howard Wasserman on July 7, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Judenhaas

At The Forward (subscription required), Stephen D. Smith argues against use of the term antisemitism (or anti-Semitism) in favor of "Jew hatred." He argues it is more accurate, less couched in pseudo-science, and less recent (Smith traces the term antisemitism to the late-19th century, whereas the concept has existed for millenia).

Unfortunately, "Jew hatred" is awkward. Fortunately, the Germans provide a single word: Judenhaas. Maybe the term (but not the concept) will catch on.

Posted by Howard Wasserman on July 7, 2020 at 12:15 PM in Howard Wasserman | Permalink | Comments (1)

Monday, July 06, 2020

A New Series of Posts on Remote & Physically Distanced Teaching – Preparing for the Fall and Famous Last Words

In January, I had lunch with a law professor who teaches primarily online, and I told her that I knew nothing about remote teaching.  It just wasn’t something I saw myself getting into, I told her.  I can now file that under “famous last words.” Like most of you, I got a crash course in remote teaching this spring when I had to suddenly take my Securities Regulation course online.  The plan is for me to teach my Civil Procedure classes this fall in-person in a physically distanced classroom, but I obviously need to be prepared to take both classes online if the health conditions change. 

With that in mind, I’ve spent a good part of the summer trying to prepare for whatever the fall will throw at me and the rest of the legal academy.  I’ll admit that I may have gone overboard on this task, reading more books and attending more webinars than is probably healthy.   I’ve done a deep dive into this topic because I’m the Associate Dean for Faculty Development at the University of Richmond School of Law and I want to be a resource for the faculty at my school.  I’ve now collected a lot of good ideas from across the academy and other available resources, and I’d love to share them more broadly.  My series will try to summarize the most helpful ideas I’ve come across and create space in the comments for people to share other ideas as well.

Continue reading "A New Series of Posts on Remote & Physically Distanced Teaching – Preparing for the Fall and Famous Last Words"

Posted by Jessica Erickson on July 6, 2020 at 05:30 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (0)

Call for Papers - Regulatory Compliance Implications of COVID-19

Posted by Sarah Lawsky on July 6, 2020 at 02:23 PM in Law Review Review | Permalink | Comments (0)

Pop culture, high culture, and judicial work-product

I see Gerard's point, while agreeing with one commenter that Kagan's opinion is likely to be read by the general public. And for what it is worth, Kagan's reference to Hamilton was oblique--a reference to the Broadway stage, while tying her point to the House vote as a cause of his duel with Burr.

But a question: Should it matter that Shakespeare or The Ililad or Canterbury Tales were pop culture in their times? Should judges wait 150 years to see what has staying power and what is lost to history? And should we think of other judicial work-product doing the same, such as the Chief Justice's 2019 Year-End Report, which explained why John Jay only wrote five Federalist essays, then said "perhaps if Jay had been more productive, America might have rewarded him with a Broadway musical." Does it make a difference that judicial opinions are expected to have a longer shelf life than an administrative report about one year in the courts?

Posted by Howard Wasserman on July 6, 2020 at 02:19 PM | Permalink | Comments (5)

On invalidating laws and universal declaratory judgments

After the jump is FN 8 of Kavanaugh's plurality in Barr v. AAPC. As I said, I wanted to include this in its own post.

Continue reading "On invalidating laws and universal declaratory judgments"

Posted by Howard Wasserman on July 6, 2020 at 02:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Notes on Barr v. AAPC

There is a lot in the Court's decision in Barr v. AAPC, declaring invalid the government-debt exception (enacted in 2015) to the ban on robocalls to cell phones (enacted in 1991), but holding that the remedy is to allow government to enforce the original 1991 ban on everyone. Kavanaugh writes for the Chief, Thomas, and Alito that the exception is unconstitutionally content-based and does not survive strict scrutiny and for the Chief and Alito that the remedy is to level everyone down. Sotomayor finds the law constitutionally invalid under the less-rigid scrutiny proposed by Breyer and severable. Breyer writes for Ginsburg and Kagan that the law is constitutionally valid under less-rigid scrutiny, but that, since everyone else disagrees, they agree that the 2015 exception is severable. Justice Gorsuch agrees the 2015 exception invalid on a different analysis, but that the proper remedy is prohibiting enforcement of the entire robocall ban. So one 6-3 on the First Amendment issue, a largely different 7-2 on severability.

Continue reading "Notes on Barr v. AAPC"

Posted by Howard Wasserman on July 6, 2020 at 01:35 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Hiring Plans and Hiring Committees 2020-2021

I am collecting information about (1) whether a particular school plans to hire in 2020-2021, and (2) if so, information about the school's hiring committee and hiring interests.

Please share in the comments the following information related to the 2020-2021 law school faculty hiring season. (A spreadsheet is below. You cannot edit the spreadsheet directly.)

Continue reading "Hiring Plans and Hiring Committees 2020-2021"

Posted by Sarah Lawsky on July 6, 2020 at 11:36 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (18)

Trump, Twitter, Facebook, and the Future of Online Speech - The New Yorker reads law review articles!

The New Yorker reads law review articles and books by law professors! Excellent coverage today of the timely topic of regulating online speech and digital platforms showcasing works by an impressive list of law professors, including Jeff Kosseff, Danielle Citron, Kate Klonick, Eric Goldman, Daphne Keller, and my article The Law of the Platform, published in the Minnesota Law Review.

Posted by Orly Lobel on July 6, 2020 at 11:29 AM | Permalink | Comments (0)

Pop Culture References in Judicial Opinions

I'm against it, except in the rare case that you think might actually be read by the general public. In today's "faithless electors" opinion, Justice Kagan refers to Veep, and "Hamilton" the musical. In one her dissenting opinions recently, she referred to "Schoolhouse Rock." Won't all of this be really dated really quickly? 

Maybe it's just a matter of taste. But I'm not sure that Supreme Court opinions from the 1920s would read better if they said things such as "just like Al Jolson" or "this statute is as mysterious as 'The Shiek.' (Look 'em up kids--they were big once.) 

Posted by Gerard Magliocca on July 6, 2020 at 10:33 AM | Permalink | Comments (10)

Thursday, July 02, 2020

Rule of Four

We have been playing a weekly online pub trivia game. One of the questions this week asked how many votes were needed for SCOTUS to take a case (the formal question was whether it was more than, less than, or equal to four). 46 % got it right. I am trying to decide whether that is more or less than I should have expected.

Posted by Howard Wasserman on July 2, 2020 at 10:23 PM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

COVID-19 and state bar licensing

There has been fairly widespread coverage of the situation with state bar exams and new law school graduates.  As befits our highly balkanized system -- what I have called in a paper I am busy working on, "Our Bar Federalism -- there are fifty different conversations underway.  Some states (Utah, Washington, Oregon) have adopted a version of a diploma privilege; some states have constructed forms of limited license practice -- so a variation on the diploma privilege scheme; others have postponed their bar exam and/or committed to administer it on-line; many states have not yet made up their mind.  So, lots going on in space.  As more solutions emerge, there will be more information available, perhaps also on this blog.

Incredibly, a few states remain intransigent about administering the bar exam on time and in the ordinary way, albeit with social distancing protocols and other adaptations.  In some of these states, bar authorities are requiring students to sign waivers of liability so as to protect the bar examiners.  It is fair to say that the supreme court and bar authorities in these states are getting an enormous amount of pressure, led by worried, and well-organized, new graduates, to revisit their decisions to go ahead with business as more-or-less usual.  These students are working to collect allies from throughout the profession, including leaders in legal education, to speak out on their behalf.  

A number of other letters continue to circulate, in California, Illinois, Texas, Florida, North Carolina, and elsewhere.  Typically these letters highlight particular "impact statements," depictions of the special burdens and dilemmas that new graduates face.  Without summarizing in any way these personal stories, I can assure you that there are truly heart-rendering, and occasionally even tragic.  They reveal a cohort under enormous stress, facing health and economic difficulties that undergird their worry. And, too, they illustrate the costs of a broken system, that is, the potential erasure of so many graduates who would otherwise succeed on the bar exam and in their new careers. Here is one letter from a graduate of an east coast law school speaking to the New York bar authorities:

"I am a recent graduate of an ABA-accredited law school. Like thousands across the country who also registered for New York’s bar examination, I remain eager to serve as an attorney in the State which Judge Michael J. Garcia of the New York Court of Appeals aptly described as “one of the most robust legal markets in the country.” Drawing further from Judge Garcia’s letter to the Deans of each of New York’s law schools, I am certain of our collective agreement on at least one other principle: that we candidates for admission to New York’s bar continue to face challenges of grave magnitude, owing primarily to the continued spread of COVID-19 absent a vaccination’s (imperfect) promise of safety to otherwise quell our fears.

. . .

What good is the talent New York hopes to attract if it dies (literally or metaphorically) at the testing table or the bar prep desk, weakened in the physical sense by this virus or emotionally and mentally for having endured months of study and of encouraging the courts and the Board of Law Examiners to adopt the common sense alternatives to the in-person bar examination which many in the legal community have supported? The American Bar Association first urged states to cancel their bar exams on April 7; the deans of all law schools in California have united to support a diploma privilege there; the deans of Texas law schools and the Bar Associations of Houston, Austin, San Antonio and Dallas have done the same; and I’ve now lost count of the number of professors and lawyers who stand in support of either a diploma privilege or a remote exam administration. Contrariwise, the NYSBA’s Bar Exam Task Force and the Court of Appeals insist with great fervor that we need to take this test in person. The same Task Force has reservations about the exam’s ability to measure preparedness for practice in New York  – reservations which, coupled with mounting recognition of the fact that the bar exam is more likely a revenue-generating gatekeeping tool than it is a yardstick of attorney competence cannot be reconciled with the State’s unwillingness to consider an emergency alternative in the wake of a pandemic.

The other states I mention in this letter have demonstrated something you might think is simple but has proven itself utterly remarkable in light of New York’s treatment of bar admission candidates: trust - in the law school accreditation process, for those states that granted a diploma privilege, and in their graduates, in the case of both the diploma privilege and online, remote administration. I believe we who intend to sit for New York’s exam have done everything in our power to show that we deserve this level of trust from the State’s courts and legislature. We’ve shown a willingness to pay through the nose for it, too – registering for other states’ exams just for the chance to transfer our scores into the place whose people we are eager to serve.

What will it take for the Court of Appeals to hear us? I am an immunocompromised candidate whose father survived COVID and whose last living grandparents are still recovering from the virus’s deadly effects. Like many of my colleagues, I lost a loved one. I live in a constant state of fear, not only of contracting this illness but of failing to convince those who have taken this far less seriously that they ought to be more worried. My immigrant parents could not be prouder of me for making it further than anyone in our family ever has. I live in fear of letting them down, by taking the time to write letters like these – time they would prefer I spend studying. But I am tired of having to sing for my supper. I shouldn’t have to bear my soul to earn my keep, without contracting an illness in the process. I do not want to believe that the profession we know not to have always been welcoming of people who look like me, and less so of my Black brothers and sisters and gender non-conforming peers, is far more impermeable than any of us could have imagined.  I stand proudly before anyone who reads this, having achieved all that I have in this life against all odds, with one desire: to practice the law. I appeal to you on grounds of public health, safety, and shared struggle in the journey to becoming a lawyer, for those of you who know all too well the trials and tribulations of law school. You know that after three years of rigorous coursework and practical preparation, nobody should have to risk her life to sit for an examination. I urge you to make our voices heard by lending yours to the movement. Please support the cause for an alternative to the in-person bar exam in September, whether it be a diploma privilege or an online administration of the exam. Our lives and our ability to contribute that great talent of which Judge Garcia spoke in his letter quite literally depend on it."

 

 

 

Posted by Dan Rodriguez on July 2, 2020 at 12:12 PM in Daniel Rodriguez | Permalink | Comments (2)

Espinoza's Recasting of Trinity Lutheran Raises Religious Liberty Questions

On its surface, Espinoza v. Montana Dept. of Revenue (No. 18-1195) appears to be a complete victory for religious liberty. A 5-4 majority held that discriminating on the basis of religious status in the context of school funding violated the Free Exercise Clause. As the majority declared, “once the a State decides to [subsidize private education], it cannot disqualify some private schools solely because they are religious.” Slip op. 20. And the decision cast serious doubt on the discriminatory Blaine Amendments found in a majority of state constitutions. The outcome clearly belongs in the win column for Free Exercise Clause fans.

But perhaps more so than case outcomes, it is the doctrinal seeds down in the pages of the U.S. Reports that steer the course of the law. And the seeds sown in Espinoza raise unanswered questions for religious freedom. Specifically, Espinoza recasts a little discussed but significant point in Trinity Lutheran in such a way as to call into question the chances that some future religious discrimination claims will prevail.

First, a little conceptual background. The Court’s free exercise jurisprudence has three tiers of protection. In the lowest tier—laws deemed neutral and generally applicable under Employment Division v. Smith—the government must only satisfy rational basis (if even that), the least protective doctrinal test of the Court. Needlessly to say, free exercise challenges never win in this tier.

Continue reading "Espinoza's Recasting of Trinity Lutheran Raises Religious Liberty Questions"

Posted by James Phillips on July 2, 2020 at 11:10 AM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (4)

Sleeping Under Bridges and Stealing Bread

Concurring in Espinoza, Justice Alito quoted Anatole's France's famous line that       "[t]he law, in its majestic equality, equally forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." We all know this quote and judges have used this in many opinions. I started to wonder, though. Who was France? What was the context for the quote? Why are people citing this, and what are they citing it for? DING, DING, DING. Potential law and literature article here. So I started digging.

First, Anatole France was a famed poet, journalist, and novelist. He won the Nobel Prize for Literature in 1921 and died in 1924. France was a socialist who supported the Russian Revolution. (It's kind of ironic, therefore, to see him quoted by some conservative judges.)

The "bridges" quote comes from France's novel "The Red Lily." Here is the entire passage:

Choulette wished to express in it human misery, not simple and touching, such as men of other times may have felt it in a world of mingled harshness and kindness; but hideous, and reflecting the state of ugliness created by the free-thinking bourgeois and the military patriots of the French Revolution. According to him the present regime embodied only hypocrisy and brutality.

“Their barracks are a hideous invention of modern times. They date from the seventeenth century. Before that time there were only guard-houses where the soldiers played cards and told tales. Louis XIV was a precursor of Bonaparte. But the evil has attained its plenitude since the monstrous institution of the obligatory enlistment. The shame of emperors and of republics is to have made it an obligation for men to kill. In the ages called barbarous, cities and princes entrusted their defence to mercenaries, who fought prudently. In a great battle only five or six men were killed. And when knights went to the wars, at least they were not forced to do it; they died for their pleasure. They were good for nothing else. Nobody in the time of Saint Louis would have thought of sending to battle a man of learning. And the laborer was not torn from the soil to be killed. Nowadays it is a duty for a poor peasant to be a soldier. He is exiled from his house, the roof of which smokes in the silence of night; from the fat prairies where the oxen graze; from the fields and the paternal woods. He is taught how to kill men; he is threatened, insulted, put in prison and told that it is an honor; and, if he does not care for that sort of honor, he is fusilladed. He obeys because he is terrorized, and is of all domestic animals the gentlest and most docile. We are warlike in France, and we are citizens. Another reason to be proud, this being a citizen! For the poor it consists in sustaining and preserving the wealthy in their power and their laziness. The poor must work for this, in presence of the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread. That is one of the good effects of the Revolution. As this Revolution was made by fools and idiots for the benefit of those who acquired national lands, and resulted in nothing but making the fortune of crafty peasants and financiering bourgeois, the Revolution only made stronger, under the pretence of making all men equal, the empire of wealth. It has betrayed France into the hands of the men of wealth. They are masters and lords. The apparent government, composed of poor devils, is in the pay of the financiers. For one hundred years, in this poisoned country, whoever has loved the poor has been considered a traitor to society. A man is called dangerous when he says that there are wretched people. There are laws against indignation and pity, and what I say here could not go into print.

The first American judge to quote the bold print was Justice Frankfurter, in his concurring opinion in Griffin v. Illinois. (I'll have more on that after I go through all of the other court references.) Why this quote became famous is not as clear.

To make one simple observation about France's quote, the line directly challenges the idea that formal equality is sufficient for justice. Yet there are many Supreme Court opinions that insist upon formal equality as the relevant standard. Can that be reconciled. If so, how?

Posted by Gerard Magliocca on July 2, 2020 at 09:10 AM | Permalink | Comments (3)