Friday, October 11, 2019

The President’s Tax Returns

I highly recommend reading today DC Circuit opinions. The panel opinion by Judge Tatel and the dissent by Judge Rao are both excellent and turn, I think, largely on the standard of review that should be applied to a congressional subpoena of the President or other officials subject to impeachment. 

That said, the most relevant question now is whether the DC Circuit decides to take the case en banc. If it does, then it’s hard to see how the issue can be resolved before the presidential election. 

Posted by Gerard Magliocca on October 11, 2019 at 07:59 PM | Permalink | Comments (8)

Talking Infield Fly Rule in Pittsburgh

For those of you in the Pittsburgh area: I will be at White Whale Bookstore in Pittsburgh on Saturday evening, discussing my book on the infield fly rule  The event was organized in cooperation with the Sports & Entertainment Law Societies at Pitt and Duquesne. It runs 7-9 p.m. Earlier Saturday afternoon, I will speak at the fall meeting of the Forbes Field Chapter of the Society for American Baseball Research.

If you are in the area, please join us.

Posted by Howard Wasserman on October 11, 2019 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)

Sports and Speech

I am watching the NBA/China controversy play out, as it has evolved from a simple tweet into a full-blown illustration of the role of speech within sports. From a free-speech (not to be confused with First Amendment, because I doubt there is state action to be found here, except by China) standpoint, the NBA and its teams have done everything wrong. From Commissioner Adam Silver trying to have it both ways ("we respect free speech, but what Morey did was wrong"), to teams removing fans from arenas, to a team PR person cutting off media questioning of players. The NBA apologized for the last one and said the team should not do that. But if the league is going through these contortions to cut-off speech, it should be no surprise that teams would follow suit in their own clumsy ways.

The interesting question is how far into the regular season this bleeds. China may form a unique chapter in the book on the subject of sport-and-speech I someday hope to write.

Posted by Howard Wasserman on October 11, 2019 at 07:51 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, October 10, 2019

Mrs. Felix Frankfurter

I was doing some research for my biography of Justice Washington when I came across the obituary of Marion Denman Frankfurter, the widow of Justice Frankfurter. The obituary appeared in The New York Times in 1975. To show you how much social mores have changed, here was the title of her obituary:

"Mrs. Felix Frankfurter is Dead; High Court Justice's Widow, 84." 

The first line of the obit was: "Mrs. Felix Frankfurter, widow of the Supreme Court Justice, died a nursing home here Sunday at the age of 84. She had been an invalid for more than 20 years." The rest of the obituary, which was eight paragraphs long, continued to refer to her as "Mrs. Frankfurter." Only one time in her own obituary did the Times use her first name, calling her "[t]he former Marion A. Denman."

Posted by Gerard Magliocca on October 10, 2019 at 08:26 PM | Permalink | Comments (0)

Playing on Yom Kippur

Journalist Yair Rosenberg beat me to this, but: Three teams in MLB's post-season have a Jewish player, each Jewish player played either Tuesday night or Wednesday, and each team lost. Alex Bregman of the Astros played on Tuesday night and the Astros lost Game to even the series. Max Fried of the Braves pitched on Wednesday and gave up four runs in an inning-and-change as the Braves lost Game 5 and the series. Joc Pederson of the Dodgers played Wednesday evening in the Dodgers loss of Game 5 and the series.

So is the lesson do not play on Yom Kippur? It may not help. The Dodgers famously lost Game 1 of the 1965 World Series as Koufax sat, with Don Drysdale getting shelled and someone (stories vary as to who) joking that Dodgers manager Walter Alston wished Drysdale were Jewish.

One interesting question: In the era in which all post-season games are at night, what does it mean to play "on Yom Kippur"? Bregman played on Kol Nidre. But many (most) non-Jewish fans probably are not aware that the holy day begins at sundown; so had Bregman not played on Tuesday evening "because it is Yom Kipper," many people might have been confused. On the other hand, the Dodgers game began at 6:45 PDT, past the time that many Jews had broken their fasts (my Reform temple's break fast was at 6:30), so he was not playing on Yom Kippur, which also might have confused people.

Meanwhile, the Astros and Rays play Game 5 tonight. If the Astros lose, it will be our first all-Goyishe LCS and World Series in several years. The new is not all bad; win or lose, Bregman might win American League MVP, making him the fourth Jewish player to win an MVP (joining Greenberg, Koufax, and Al Rosen).

Update: The Phillies fired manager Gabe Kapler. Well, we ask who shall perish by fire.

[Further Update: The Astros won, with Bregman breaking the game open with a 2-run double in the first.]

Posted by Howard Wasserman on October 10, 2019 at 05:09 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Surprising, Disturbing and Encouraging Things We Learned Researching Law Jobs

The following is by Andrew McClurg (Memphis and my former FIU colleague), Christine Nero Coughlin (Wake Forest), and Nancy Levit (UMKC) and is sponsored by West Academic.

As seasoned law professors, we thought we had a good handle on legal careers and the legal job market. We were wrong. In researching and interviewing more than 150 lawyers for our new book Law Jobs: The Complete Guide (West Academic Publishing 2019), we discovered we didn’t know nearly as much as we thought. For this post, we asked ourselves a three-part question: “What was the most surprising, disturbing, and encouraging thing you learned from this book project?”

Continue reading "Surprising, Disturbing and Encouraging Things We Learned Researching Law Jobs"

Posted by Howard Wasserman on October 10, 2019 at 09:31 AM in Sponsored Announcements | Permalink | Comments (0)

A Tale of Two Clarity Doctrines

Many controversial legal doctrines are concerned with clarity, but they are not all treated the same way. At the moment, perhaps the most interesting pairing involves qualified immunity and Chevron. Under the doctrine of qualified immunity, police and other government officers may be held personally liable for damages only if they transgressed “clearly established law.” And, under Chevron, administrative agencies have leeway when interpreting statutes, unless “the intent of Congress is clear.” One of these standards asks about law and the other about intent, but both try to get at what is legally clear—and so seem similar.

In practice, however, the Supreme Court treats these two doctrines quite differently. Qualified immunity has morphed into a seemingly insurmountable barrier to damages, with the Court routinely enforcing the “clearly established law” requirement through summary reversals, often unanimously. By contrast, Court majorities have long been prepared to find that agencies have defied clear statutory directives, and the Justices don’t typically enforce Chevron via summary relief. In fact, recent decisions have so diluted and pockmarked Chevron deference that some justices have wondered if the case has been silently overruled. Legal clarity thus seems to have shrunk almost to the vanishing point for qualified immunity, even as it remains substantial, and growing, in connection with Chevron.

Further, a number of justices have found the very idea of legal clarity to be problematic in the context of Chevron and related doctrines, but not in the context of qualified immunity. To wit, then-Judge Brett Kavanaugh wrote an important article arguing that Chevron’s clarity standard is vacuous; and, last summer, four justices cited Kavanaugh’s paper in leveling a similar charge against the clarity standard underlying Auer deference. Even Justice Elena Kagan, no Chevron nihilist, has noted that different justices apply Chevron differently. By contrast, the qualified immunity standard is generally viewed as high, but not amorphous.

How should we account for the discrepancies between qualified immunity and Chevron? I suggest part of the answer in a just-published article entitled Clarity Doctrines. While qualified immunity and Chevron have similarly worded tests for clarity, they adopt dissimilar vantage points. Qualified immunity assesses legal clarity from the perspective of a stylized officer in field. By contrast, Chevron adopts the perspective of the deciding court.

Continue reading "A Tale of Two Clarity Doctrines"

Posted by Richard M. Re on October 10, 2019 at 08:35 AM | Permalink | Comments (6)

Wednesday, October 09, 2019

Not A Constitutional Crisis Yet

The claim that we are in a constitutional crisis is as common as it is incorrect. The fact that an impeachment inquiry is underway is not a crisis. The Constitution expressly provides for impeachment. The fact that the President is not cooperating with the impeachment inquiry is not a crisis. He is not required to cooperate. Richard Nixon did not cooperate and was, in part, subjected to an Article of impeachment by the House Judiciary Committee for that.

The real constitutional crisis will come next year if the President loses the election and refuses to leave office because he says he won. (And the deep state or the bogeyman or the Loch Ness Monster sabotaged the vote count against him.). Then we have a problem. Until then, we merely have politics. 

Posted by Gerard Magliocca on October 9, 2019 at 08:12 PM | Permalink | Comments (7)

Foucault and the CCP's social-credit scheme

I highly recommend this book(s) review, by John Lancaster, in the London Review of Books, called "Document Number Nine."  Among other things, it discusses the striking developments in AI/machine learning and the ways that the CCP dictatorship is using them for policing, surveillance, rewards, and punishment.  Along the way, though, there was this, which echoed some themes I've been presenting, in my first-year Criminal Law course, when we talk about "Big Data" and Predictive Policing:

At the moment, the main impacts of people’s social credit are on activities such as travel: people with bad social credit can’t fly, can’t book high-speed train tickets or sleeper berths; they have slower internet access and can’t book fancy hotels or restaurants. It isn’t difficult to project a future in which these sanctions spread to every area of life. The China-wide version of social credit is scheduled to go live in 2020. The ultimate goal is to make people internalise their sense of the state: to make people self-censor, self-monitor, self-supervise. Strittmatter quotes Discipline and Punish: ‘He who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays both roles; he becomes the principle of his own subjection.’ The Chinese version of social credit is the closest thing we’ve ever seen to Foucault’s system in action at a national level.

And this:

Given all this, it is frequently the case that outsiders are surprised by the apparent freedom of the Chinese internet. People do feel able to complain, especially about pollution and food scandals. As Strittmatter puts it, ‘a wide range of competing ideologies continues to circulate on the Chinese internet, despite the blows struck by the censors: Maoists, the New Left, patriots, fanatical nationalists, traditionalists, humanists, liberals, democrats, neoliberals, fans of the USA and various others are launching debates on forums.’ The ultimate goal of this apparatus is to make people internalise the controls, to develop limits to their curiosity and appetite for non-party information. Unfortunately, there is evidence that this approach works: Chinese internet users are measurably less likely to use technology designed to circumvent censorship and access overseas sources of information than they used to be.

A new chapter, perhaps, in a revised version of Andrew Ferguson's book?

Posted by Rick Garnett on October 9, 2019 at 10:37 AM in Rick Garnett | Permalink | Comments (2)

Tuesday, October 08, 2019

Impeaching Civil Officers

The White House decision to stonewall the impeachment inquiry is not surprising. The House of Representatives could, of course, make that obstruction a separate article of impeachment, as was done with President Nixon. But that probably does not accomplish much. 

There is another path forward though. Other members of the Executive Branch can be impeached. Take Ambassador Sondland, for example. He is not testifying to the House per the direction of the President. If he is impeached, though, he might have to consider to whom his loyalty is owed. The same could be true for others. This is no different than the standard prosecutorial practice of seeking to flip witnesses by threatening them with jail time if they do not cooperate. 

Posted by Gerard Magliocca on October 8, 2019 at 06:53 PM | Permalink | Comments (15)

Good Faith and Removal Authority

The DOJ has asked SCOTUS to give the President unprecedented powers to fire independent agency heads. But Jed Shugerman & I note in today’s NYT that the Constitution's presidential duty of faithful execution might empower Congress to guard against bad faith removals.


Posted by Ethan Leib on October 8, 2019 at 12:41 PM | Permalink | Comments (0)

Monday, October 07, 2019

Virginia has jurisdiction over Twitter in Nunes suit

It must be awful procedure day. In addition to whatever the Second Circuit did, a Virginia trial court denied Twitter's motion to dismiss for lack of personal jurisdiction Cong. Nunes' suit against Twitter, a Twitter user, and Devin Nunes' Cow.

The court found "general personal jurisdiction" over Twitter, based on its being registered to do business in Virginia, having a registered agent in Virginia, deriving a large amount of revenue from there, and having many users in Virginia, "sufficient minimum contacts to confer jurisdiction." Perhaps in 2005, but not since Good Year, Daimler, and BNSF did away with general jurisdiction based on a company doing a lot of business in a state and seemed to limit general jurisdiction to state of incorporation and principal place of business. The court discussed BNSF to distinguish it based on the injury occurring in the forum state, but ignored the other two cases. It also emphasized that Nunes suffered an injury in Virginia (because that is where the tweets were sent from and read), while not mentioning that locus of injury is not sufficient and Twitter did not direct any activities (not deleting the tweets) at Virginia in relation to this case. Even if knowledge of the plaintiff's location were sufficient (it is not, after Walden), Twitter's assumption would have been that Nunes was in California or Washington, D.C., not Virginia.

The court also rejected a forum non conveniens argument, because it was not clear there was an alternative forum. It was not clear there would be jurisdiction in California, even though both Nunes and Twitter are from there and the individual defendant consented to jurisdiction there. (Nunes does not want to be in California, where he must deal with its SLAPP statute).

Someone said the judge has a reputation as being pretty good. This is not his best work.

Posted by Howard Wasserman on October 7, 2019 at 06:22 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

District court abstains in Trump subpoena case (Fast Update)

The Southern District of New York abstained under Younger from a federal lawsuit by the President seeking to stop enforcement of a New York grand-jury subpoena seeking 8 years of Trump tax returns and financial records. The court abstained in a meticulous Younger analysis, then explained why the President did not enjoy immunity warranting a preliminary injunction even if it kept the case. The Younger analysis is almost certainly correct. The President's attempt to create an exceptional-circumstances exception by analogizing his immunity to double jeopardy (which some courts have held as a basis for not abstaining) was interesting, but I think properly rejected.

Given Steve's thesis that Trump and his DOJ cannot stand passing through the court of appeals, next step SCOTUS on a petition for cert before judgment?

Quick Update: The Second Circuit stayed the decision. But what did it stay and what does it mean to stay it? The district court abstaining? It makes no sense to "stay" a decision declining to hear a case. The denial of the preliminary injunction, which was arguably dicta? What does the stay of the denial of an injunction do--it can't create the injunction, which was never issued (because the district court lacked the power to issue it). What the Second Circuit wanted to "stay" is the state-court subpoena, but it has no power to do that. Ah, procedure.

Further Update: The Second Circuit order states

Appellant has filed a motion seeking an order temporarily staying enforcement of a subpoena to his accountant. Because of the unique issues raised by this appeal, IT IS HEREBY ORDERED that a temporary administrative stay is granted pending expedited review by a panel of the Court.

So the court did stay the subpoena, not the district court order. I have had some conversations with Civ Pro colleagues and the general view is this makes no sense. Administrative stays are routine  as a precursor to turning the stay to a motions panel. But there is nothing to stay here. The court cannot "stay" a dismissal of an action or the denial of an injunction. Now there are mechanisms for the court to do this, namely under the All Writs Act as in aid of the court's appellate jurisdiction. But that is not what Trump asked for (it requested a stay) and the court did not do the (I expect) more complex analysis required before issuing a writ. It seems as if the court took the usual approach to an unusual case. In the routine case, the district court enjoins enforcement of a law or reg and the court of appeals stays that injunction; here, it rotely applied that procedure in a situation that does not match.

Posted by Howard Wasserman on October 7, 2019 at 11:18 AM in Carissa Byrne Hessick, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Stare Decisis for Decisions Prior to Confirmation

To what extent does a Justice consider a prior holding binding when he or she dissented in  that prior case? This is a question I've been pondering as we begin the new Term. 

When we think of stare decisis, we usually look at whether the Court should adhere to a decision or not. In my research and writing on the Marshall Court, you see many examples of a Justice saying something like this: "I think that the Constitution means X. But the Court held to the contrary in case Y. So I have to say Y."

I'm hard pressed to think of a recent high-profile example of this sort of deference. That's especially true, though, when the Justice in question participated in the case and lost. For instance, I doubt that Justice Breyer or Justice Ginsburg will apply Heller. My sense is that they will just continue to dissent from that holding. They probably would not do the same for a case that preceded their tenure (or at least far less often). They probably do feel a stronger pull to follow a holding by the Court issued when they were not on the Court.

Take the upcoming abortion case as another example. The statute in question is hard to distinguish from the one invalidated three years ago in Hellerstedt. Chief Justice Roberts dissented in that case. One way of looking at the new case is that he will just stick with his prior position and, in effect, vote ti overrule Hellerstedt. Indeed, when I asked my students about this, they laughed at the thought that a Justice would refrain from trying to overrule a case from which they dissented if the opportunity presented itself. 

Now the fact that the Chief Justice voted for the stay in the abortion case could be a middle ground. The precedent is binding on preliminary matters, but not for the final disposition. Or maybe it suggests that he will accept stare decisis here. Who knows.

Posted by Gerard Magliocca on October 7, 2019 at 10:26 AM | Permalink | Comments (11)

Sunday, October 06, 2019

So glad sports are not political

Houston Rockets GM last week tweeted "Fight for Freedom. Stand with Hong Kong." This pissed off Rockets owner Tilman Fertitta, who insisted that Morey does not speak for the Rockets, which is a "non-political organization," although Fertitta regularly publicizes his support for the Bushes and President Trump. Morey's tweet caused the Chinese Basketball Association, headed by former Rocket star Yao Ming, to suspend cooperation with the Rockets following Morey's "'improper remarks regarding Hong Kong' to which it expressed its 'strong opposition.'" The NBA, trying to save its business interests, responded with the following word salad:

We recognize that the views expressed by Houston Rockets general manager Daryl Morey have deeply offended many of our friends and fans in China, which is regrettable. While Daryl has made it clear that his tweet does not represent the Rockets or the NBA, the values of the league support individuals' educating themselves and sharing their views on matters important to them. We have great respect for the history and culture of China, and hope that sports and the NBA can be used as a unifying force to bridge cultural divides and bring people together.

The ESPN story highlighted the league trumpeting the "open flow of ideas," although those words appear nowhere in the NBA statement and the reaction by the Rockets owner, the CBA, and the NBA all seem to reflect a desire to staunch the flow of ideas, since the premise of every reaction is that Morey was out of line to tweet a political opinion. Plus, in what universe is a statement in support of people protesting freedom "regrettable"? And who was "deeply offended," besides the leaders of an authoritarian state that is the target of pro-western protests?

Posted by Howard Wasserman on October 6, 2019 at 10:03 PM in First Amendment, Howard Wasserman | Permalink | Comments (8)

Federalism and Guns: Why the Democratic Party should not back a new national gun control law

The Democratic candidates are in a bidding war with each other to see who can back the toughest package of new national gun control laws. Given the justified emotions surrounding firearm fatalities and the efforts at “progressive mobilization” that are goading the candidates to evermore effusive promises of radical change, one would think that this is no time for me to dish out more of my Defensive Crouch federalism. But hear me out. There is a non-frivolous argument that, whatever their merits for whipping up Democrat primary voters, these gun proposals will be, as actual bills and laws, self-defeating. Instead, I urge a program of “gun federalism”: Get rid of centralizing preemption that strips states of power of enact their own gun policies, and protect states from each other by regulating more stringently interstate gun shipments.

Here’s the abstract theory underlying my partisan case for “gun federalism.” The party in power (the “PIP”) has to balance the benefits of pressing for a policy against the risks that such a policy will mobilize the members of the party out of power (the “POOP”). It makes no sense for the PIP to push for a law with modest benefits if that law so outrages the POOP that the PIP loses control of Congress in the midterms, sacrificing the chance to enact other laws with greater benefits. Moreover, the benefits to the PIP of any national law must be reduced by the compromises required to enact that law. One such compromise is that the national law might preempt subnational laws also favored by the PIP. Finally, the PIP should discount the benefits of a national law by the chance that it will be sabotaged by members of the POOP who control subnational governments needed to implement that law.

Judged according to this general logic, the Democrats’ gun proposals are bad bets. They pose high risks of self-defeating preemption clauses, sullen obstruction from local law enforcement, and heavy mobilization of rural gun lovers in swing states. An anti-preemption/anti-encroachment strategy for guns (explained after the jump) might provide much of the same policy benefit at a tiny fraction of the political cost.

Continue reading "Federalism and Guns: Why the Democratic Party should not back a new national gun control law"

Posted by Rick Hills on October 6, 2019 at 06:53 AM | Permalink | Comments (18)

Friday, October 04, 2019

Northwestern Pritzker School of Law--Associate Dean of Clinical Education

Northwestern Pritzker School of Law invites outstanding applicants for the Associate Dean of Clinical Education of its Bluhm Legal Clinic.

Continue reading "Northwestern Pritzker School of Law--Associate Dean of Clinical Education"

Posted by Howard Wasserman on October 4, 2019 at 11:36 AM | Permalink | Comments (0)

Tea leaves on the abortion case

SCOTUS granted cert in two related cases challenging Louisiana's admitting-privilege law. The Fifth Circuit had declared the law valid despite Whole Woman's Health, in which the Court declared invalid a similar Texas law, drawing some arguably specious distinctions. The Court (with the Chief joining Ginsburg, Breyer, Sotomayor, and Kagan) stayed the Fifth Circuit order and reinstated the injunction in February.

I have to think this is a reversal, because there is no meaningful way to distinguish this law from the Texas law in Whole Woman's. If Roberts wanted to take the air out of WWH and let the law take effect, he would have denied the stay and voted to deny cert. Now perhaps he is setting the Court to overrule Whole Woman's and this is a power move--"only we can ignore or overrule our precedent." But I would expect that Roberts values "institutionalism" enough that he would not want to overrule a three-year-old decision.

The Court did grant a cross-petition in the case to consider whether medical providers can so easily assert third-party standing on behalf of all current and potential patients. This was a point in Thomas's WWH dissent.

Posted by Howard Wasserman on October 4, 2019 at 11:09 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, October 03, 2019

Censure Didn't Work

One suggestion making the rounds is that the House of Representatives (or the Senate) should censure President Trump for his recent conduct rather than impeach. The Censure Resolution of 1834, passed by the Senate and condemning President Andrew Jackson, is cited as the principal precedent. I've written about that measure in some of my prior work.

A lesson from that example, though, is that censure is ineffective. The conduct for which President Jackson was censored (withdrawing federal deposits from the Second Bank of the United States) was not undone. His party won the ensuing midterm elections. The Democrats also won the next election round (in 1836) and then expunged the Censure Resolution from the Senate Journal. Granted, Jackson's opponents could not bring an impeachment--they lacked the votes. Censure was, for them, not a feature but a bug.

Posted by Gerard Magliocca on October 3, 2019 at 08:20 PM | Permalink | Comments (5)

Wednesday, October 02, 2019

A Note on Not Covering (here) the Dan Markel trial

Hi friends, I received several questions from friends this week about why Prawfsblawg is not covering the trial of those (thus far) who have been charged with the murder of our blog's founder, beloved leader, colleague, scholar and teacher. We have posted about this decision in the past and I thought I'd reiterate for those who were unaware. We at Prawfs made a decision shortly after Dan's death that this blog, one of Dan's great legacies, will continue to celebrate his life and his love of all things scholarship and legal academia. We decided we would not cover the circumstances of his death and the investigation and the ongoing legal process related to his murder. A friend wrote me today that he was unaware that this was a deliberate collective decision and that he felt it "might be a good post on Prawfs to explain what otherwise might seem as silence on the issue."

So there you have it. I can personally say that I have been glued to the live viewing of the trial that started last Thursday and am following all the coverage. In the past two days, I basically haven't been doing much else other than following the trial and teaching my classes. And I miss our friend every day. 

Posted by Orly Lobel on October 2, 2019 at 09:46 PM | Permalink | Comments (2)

JOTWELL: Sullivan on Lobel on Gentlemen Prefer Bonds: How Employers Fix the Market for Talent

The new Jotwell work law essay comes from Charles A. Sullivan, Dissolving Bonds, JOTWELL (October 2, 2019), reviewing Orly Lobel, Gentlemen Prefer Bonds: How Employers Fix the Talent MarketSanta Clara L. Rev. __ (forthcoming, 2019), available at SSRN  (the article is part of symposium on frontiers of antitrust law). 

Sullivan does a wonderful job reviewing my piece and adding context and commentary on the political will and viability behind some of my policy suggestions. My article argues that beyond the formal noncompete, employers use a range of restrictive covenants that impede mobility, depress wages, and harm all employees, but some (women and minorities) even more than others. I propose in the third part of the article some courses of action beyond the ex ante non-enforcement. I agree with Sullivan's skepticism about how effective advance notice and disclosure requirements would actually be. Sullivan rightly identifies the more radical types of reforms: regulatory proactive activity by the FTC or attorney generals, or class actions (which are largely an impossibility with today's mandatory arbitration and class waivers). I should mention that Sullivan has written a few years ago an important article about the persistence unenforceable contracts.

Sullivan concludes with this, which I greatly appreciate:

"Even more so than usual, a “jot” such as this can only scratch the surface of the piece it is reviewing and Lobel’s article is required reading for those concerned about competition in the labor markets and the concomitant effects on economic welfare of workers."

I love JOTWELL! This is the fourth or fifth time an article of mine is selected for JOTWELL and it is always such an honor and such a wonderful way to engage on scholarship!


Posted by Orly Lobel on October 2, 2019 at 09:33 PM | Permalink | Comments (2)

How Should Article VII’s Ultimatum Game Affect Constitutional Interpretation?

Suppose that you accept the originalists’ premise that 18th century linguistic norms ought to determine the communicative content of American constitutional words and phrases. Which 18th century norms should you use, if 18th century speakers disagreed about the applicable norms? As Jack Rakove has noted, the Constitution was ratified during Revolutionary times when the meaning of words were in flux. What if 18th century Americans were in ferocious disagreement with each other about how to read constitutional text?

I have recently posted a draft article arguing Article VII of the U.S. Constitution defined a revolutionarily new legislative process with interpretative consequences. That Article VII process amounted to a one-shot Ultimatum Game. The essence of this Ultimatum Game was that Federalist proposers who drafted a proposed Constitution in a secret Philadelphia Convention sent it for an up-or-down vote to state ratifying conventions where amendments to the proposal were forbidden. Anti-Federalists dominated several important ratifying Conventions (in particular, Massachusetts, Virginia, and New York), and they bitterly resented the Article VII process, complaining that the process amounted to (using their oft-repeated phrase) “cramming the Constitution down our throats.” As modern political science notes, such a process gives the proposer a decisive advantage over the ratifiers whenever the ratifiers’ preferences lie somewhere between the status quo and the proposers’ preferences. The further the ratifiers’ preferences are from the status quo to which the situation will revert if the proposal is rejected, the greater the proposers’ power to cram a proposal down the ratifiers’ throats that the ratifier dislikes. Because Anti-Federalists generally hated the Articles of Confederation (albeit not as much as the Federalists), they would theoretically hold their noses and approve any proposal that they really, really disliked to avoid reversion to the dreaded anarchy of the Articles.

What interpretative conventions ought to accompany a document ratified through such a process? In the article, I suggest that the Federalists deliberately adopted a stance of presuming that contested constitutional terms were ambiguous in order to assuage Anti-Federalist resentment over Article VII. Especially during the Massachusetts ratifying convention and thereafter, two standard Federalist talking points were that (1) popular ratification through state conventions required a proposal filled with vague language but (2) Anti-Federalists would have equal odds of influencing the interpretation of ambiguous phrases after ratification. This ratification strategy suggests an interpretative convention: When in doubt, construe constitutional phrases to be strategically (meaning deliberately) ambiguous. As originalists generally agree, strategically ambiguities cannot be resolved by looking to facts contemporary with ratification such as linguistic usage or shared constitutional purposes. Instead, the legal meaning of strategic ambiguities must be resolved through constitutional “construction” using post-ratification materials.

After the jump, I have provided some answers to FAQs I’ve encountered when discussing this idea with colleagues. The broad take-away, however, is that the contested character of Article VII really matters to originalism. One cannot figure out what norms should apply to any linguistic artifact — a novel, a card game, a love letter, an elevator pitch, a treaty, a statute, etc. — until one investigates the process that produces that artifact. The Article VII process suggests IMHO that the right linguistic norm is a presumption of strategic ambiguity, but, even if you reject that position, you really need to take Article VII’s contested character into account when devising one of your own.

Continue reading "How Should Article VII’s Ultimatum Game Affect Constitutional Interpretation?"

Posted by Rick Hills on October 2, 2019 at 10:16 AM | Permalink | Comments (9)

Monday, September 30, 2019

Bleg: Great Recession and the Legal Academy

Can anyone point me to studies or articles on the slowdown in legal academic hiring during and just after the Great Recession?

Posted by Howard Wasserman on September 30, 2019 at 07:24 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Saturday, September 28, 2019

Ex-Wards of the Admiralty

I'm teaching Admiralty--my favorite course--this semester. This gives me an opportunity to address an important development from a Supreme Court decision earlier this year. In The Dutra Group v. Batterton, the Court held that punitive damages are unavailable in an unseaworthiness action. One passage of Justice Alito's opinion for the Court stated:

Batterton points to the maritime doctrine that encourages special solicitude for the welfare of seamen. But that doctrine has its roots in the paternalistic approach taken toward mariners by 19th century courts. [citations omitted] The doctrine has never been a commandment that maritime law must favor seamen whenever possible. Indeed, the doctrine’s apex coincided with many of the harsh common-law limitations on recovery that were not set aside until the passage of the Jones Act. And, while sailors today face hardships not encountered by those who work on land, neither are they as isolated nor as dependent on the master as their predecessors from the age of sail. In light of these changes and of the roles now played by the Judiciary and the political branches in protecting sailors, the special solicitude to sailors has only a small role to play in contemporary maritime law.  It is not sufficient to overcome the weight of authority indicating that punitive damages are unavailable.

This marks a substantial change for maritime law. For the past two centuries, seaman have been, in the words of Justice Joseph Story, "wards of the admiralty." This was, in part, based on paternalistic stereotypes about sailors, as the Court said. There was also, though, a valid recognition that they deserved more help. The diminution of that idea is in keeping with the ongoing "normalization" of maritime law, by which I mean that its special characteristics are being gradually eroded. In some instances this is a good development and more would be better (such as ending the limitation of liability doctrine). Sometimes, though, treating seamen like other workers just means they are now being treated worse.

Posted by Gerard Magliocca on September 28, 2019 at 08:52 PM | Permalink | Comments (3)

Friday, September 27, 2019

Qualified Immunity and Stare Decisis

Recently, a lot of terrific scholarship has attacked qualified immunity as unsound both as a legal and as a policy matter. I applaud this work and largely agree. If the question then is "Should Congress abolish or dramatically curtail qualified immunity?" I would say yes. If the question, though, is "Should the Court overrule its predecents on qualified immunity?" I would say no (or no chance).

Stare decisis, the Court has told us a million times, is at its apex in statutory cases. Qualified immunity, for better or worse, is an interpretation of Acts of Congress. And we are just talking about one precedent or a few--there are almost too many cases to count where the Court has applied qualified immunity since Fitzgerald set forth the modern framework in 1982. I just don't see the Justices revisiting any of this. Granted, they could start using a more favorable (for plaintiffs) definition of "clearly established law" in cases going forward, but that would be more of a marginal change. More than that can (and should) come only from Congress.

Posted by Gerard Magliocca on September 27, 2019 at 02:16 PM | Permalink | Comments (4)

Wednesday, September 25, 2019

A Shout Out

To my former co-blogger Danielle Citron, who today was awarded one of the MacArthur "Genius" Grants. Way to go Danielle!

Posted by Gerard Magliocca on September 25, 2019 at 09:43 AM | Permalink | Comments (1)

I am so confused...(or: how I made a cameo in the Peloton trademark case, as a consumer)

Thanks to Rebecca Tushnet's great coverage, I just realized that I am a confused Peloton rider in this new trademark case. And I happen to be teaching trademarks tomorrow morning. 

So it all started when Hugh Jackman was bragging about his Peloton leaderboard times and I got off my bike and tweeted "“Hugh giving all the rest of us in the #Peloton family goals to aspire to @onepeloton @pelotonmagazine though I bet he doesn’t have near 500 @classpass classes yet!” [update: I am now nearing 700 classes on classpass]. 

And now this tweet is brought in Move Press, LLC v. Peloton Interactive, Inc., No. LA CV18-01686 JAK (RAOx), 2019 WL 4570018 (C.D. Cal. Sept. 5, 2019) to establish that consumers confuse Peloton Magazine as associated with Peloton the indoor online cycling community.

Happy to also serve as an expert, not just a confused consumer - give me a call, if I don't answer I might be on my bike trying to beat Hugh...



Posted by Orly Lobel on September 25, 2019 at 01:12 AM | Permalink | Comments (1)

Monday, September 23, 2019

JOTWELL: Campos on Bartholomew on e-notice in class actions

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Christine P. Bartholomew, E-Notice, 68 Duke L.J. 217 (2018), exploring the use (or non-use) of new technologies for providing notice in class actions.

Posted by Howard Wasserman on September 23, 2019 at 10:50 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, September 22, 2019

Minding the abstention gaps

I am trying to make heads or tales of this Third Circuit decision, which reveals some problems and holes in abstention.

A family court awarded custody of Malhan's children to Myronova, his ex-wife, ordered him to pay child and spousal support, and to give his ex rental income from their jointly owned properties. Malhan eventually received joint custody (and more than half of residential time) and the court ordered Myronova to return some money. But the court postponed a request to reduce child-support obligations until final judgment (which has not issued), although the children spend more time with Malhan and he earns less money than is ex. At one point Malhan stopped paying child support (in erroneous reliance on a comment by the judge), causing the court to garnish his wages. Malhan sued in federal court, challenging (among other things) the disclosure and administrative levy of his bank accounts, the garnishing of his wages (which order was vacated), and the refusal to allow the plaintiff to claim certain offsets and counterclaims in the state proceedings.

Continue reading "Minding the abstention gaps"

Posted by Howard Wasserman on September 22, 2019 at 07:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Friday, September 20, 2019

Book Review of "The Heart of the Constitution"

Lael Weinberger has posted a draft paper reviewing my most recent book.

I am currently writing my next book (about Bushrod Washington). Blogging will thus be reduced for some time, though as I reach the parts of the book on law that will change.

Posted by Gerard Magliocca on September 20, 2019 at 02:01 PM | Permalink | Comments (0)

Thursday, September 19, 2019

Trump is not getting any Younger

The President filed in the Southern District of New York a complaint and a motion for TRO/Preliminary Injunction, seeking to stop New York D.A. Cyrus Vance from using a state grand jury to obtain the President's tax returns. The motion argues that a sitting president is immune from state prosecution, including grand jury proceedings. The motion does not mention or respond to what many commentators thought of when they saw the lawsuit--Younger abstention, which prohibits a federal court from enjoining ongoing state criminal proceedings, including grand jury.

But Younger is subject to some rare exceptions. The federal court may act (i.e., need not abstain) when the state proceeding is brought in bad faith or for harassing purposes, where the underlying law is flagrantly and patently unconstitutional, and perhaps in other unusual circumstances, such as biased decisionmakers and in some circuits a colorable claim that the state prosecution is barred by double jeopardy. A colorable defense of presidential immunity seems similar to a claim of double jeopardy or bad faith to perhaps fit within that exception--a prosecution with no hope of success or or producing a sustainable verdict, particularly one that implicates substantial federal interests that outweigh the state's interests in law enforcement.

Posted by Howard Wasserman on September 19, 2019 at 10:40 PM | Permalink | Comments (1)

Wednesday, September 18, 2019

Research Fellowships at Stanford Constitutional Law Center

For those seeking an academic career. Information here.

Posted by Administrators on September 18, 2019 at 08:59 PM in Teaching Law | Permalink | Comments (0)

Tuesday, September 17, 2019

On Account of Sex

Next month, the Supreme Court will hear argument in a set if cases that pose the question of what "sex" means in Title VII of the Civil Rights Act of 1964. Does "sex"encompass sexual orientation? Does "sex" encompass a claim of transgender discrimination? And so on.

One thing I'll be watching is whether any of the Justices mention the implications of these cases for the Equal Rights Amendment. At least one of the amicus briefs makes the following point: The Court's interpretation of "sex" in these cases will be highly relevant for the meaning of "sex" in the ERA if one more state ratifies that proposed amendment and puts the constitutional issue back before Congress. If any of them think that ERA ratification is on the table, they may be wary of giving a broad reading to "sex" in Title VII. On the other hand, a narrow reading of "sex" may end up making the ERA's ratification more likely by narrowing its scope.

Posted by Gerard Magliocca on September 17, 2019 at 04:22 PM | Permalink | Comments (4)

Monday, September 16, 2019

FIU Bar Passage

I do not know if I have ever done this before, but I wanted to highlight that FIU Law grads had a 95.7 % pass rate (111/116) for the July 2019 administration of the Florida Bar. A ton of credit to Louis Schulze, assistant dean for academic support, who does an amazing job working with students on how to learn and study, and Raul Ruiz, who runs our bar-prep program.

Posted by Howard Wasserman on September 16, 2019 at 10:46 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, September 15, 2019

Conference at Penn Honoring the Scholarship of Ronald Gilson

This Thursday I am excited and honored to be part of a wonderful conference at Penn, co-organized by Stanford Law, Columbia Law, Wharton & the Journal of Corporate Law, honoring the scholarship of Professor Ronald Gilson. There will be six speakers, each presenting a paper that responds to a line of Gilson's scholarship (my paper is about his influential article on noncompetes and the rise of Silicon Valley's high tech region). Gilson will be delivering the luncheon keynote speech and the papers of the conference will all be published in the Journal of Corporate Law. Here is a glimpse of the agenda:


9:05 – 9:45                  First Paper, Kate Judge, Columbia Law School

Gilson Paper:  The Mechanisms of Market Efficiency, 70 Va. L. Rev. 549 (1984) (with Reinier Kraakman)      

9:45 – 10:30                Second Paper, Mariana Pargendler, Fundação Getulio Vargas (FGV) Law School

Gilson Paper:  Controlling Shareholders and Corporate Governance: Complicating the Comparative Taxonomy, 119 Harv. L. Rev. 1642 (2006) 

10:45 – 11:30              Third Paper, Peter Conti-Brown, The Wharton School

Gilson Paper:  Rethinking the Outside Director: An Agenda for Institutional Investors, 43 Stan. L. Rev. 863 (1990) (with Reinier Kraakman)

11:30 – 12:15              Fourth Paper, Orly Lobel, University of San Diego Law School

Gilson Paper:  The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants Not To Compete, 74 NYU L. Rev. 575 (1999)

12:30 – 1:15                Keynote Address, Ron Gilson

1:30 – 2:15                  Fifth Paper, Matt Jennejohn, BYU Law School

Gilson Paper:  Braiding: The Interaction of Formal and Informal Contracting in Theory, Practice, and Doctrine, 110 Colum. L. Rev. 1377 (2010) (with Chuck Sabel and Bob Scott)

2:15 – 3:00                  Sixth Paper, Colleen Honigsberg, Stanford Law School

Gilson Paper:  Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 Yale L.J. (1984).

Posted by Orly Lobel on September 15, 2019 at 04:37 PM | Permalink | Comments (0)

Thursday, September 12, 2019

Dorf on the irrepressible myth of the great scholar/bad teacher

My experience, as a student and faculty member, lines up with Mike's: I have had, as teachers and colleagues, many excellent scholars who also were also excellent teachers. And I would add another category: Great scholars who are not great teachers, but want to be  and, even well into their careers, think a lot about teaching and how to improve. The archetype of the "prof who can't be bothered with teaching" is not a thing--or no more of a thing than the insurance salesman who can't be bothered. There are always people who are not good at their jobs.

Posted by Howard Wasserman on September 12, 2019 at 04:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (13)

Public Ministers and Original Jurisdiction

Article Three, Section Two of the Constitution provides, in part: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."

Simple question. Has there ever been an original jurisdiction case involving an ambassador, public minister, or consul? I think that the answer is no, but if anyone knows of one I would be much obliged.

Posted by Gerard Magliocca on September 12, 2019 at 03:33 PM | Permalink | Comments (3)

Asylum injunction stayed, everyone confused

Sam Bray and I agree on the impropriety of universal injunctions--I am the NAIA version of Sam as opponent of universality. But I disagree with Sam's suggestion that Thursday's SCOTUS order staying the asylum regulations portends the end of universal/nationwide/whatever injunctions. This case is too confused and too much of a procedural and analytical mess to be that vehicle or even the canary in the coal mine.

First, the unstayed injunction that reached SCOTUS had been narrowed in the court of appeals to be circuit-wide rather than nationwide. So nationwideness should not have been an issue in this case. The court was staying a narrow injunction against a federal regulation.

Continue reading "Asylum injunction stayed, everyone confused"

Posted by Howard Wasserman on September 12, 2019 at 07:44 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, September 10, 2019

Interview with Dean Theodore Ruger on Penn Law's Academic Fellowships

I’m excited to announce the latest interview in my series interviewing VAP and fellowship directors.  We're coming to the end of this series, but I hope to have one or two more this fall.  This interview is with Theodore Ruger, the Dean and Bernard G. Segal Professor of Law at the University of Pennsylvania Law School. He spoke to me about the various fellowship programs at Penn Law, including the George Sharswood Fellowship, the Regulation Fellow, the Center for Technology, Innovation and Competition (CTIC) Fellowship, the Quattrone Fellowship, and a new fellowship with the Center for Ethics and the Rule of Law (CERL).  An edited transcript of our conversation is below, and I have invited Ted to respond to any questions in the comments.  Thanks, Ted, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here. For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at

Q. Thank you for speaking with me about Penn's fellowship programs, I appreciate it.

A. Sure, I'm happy to discuss them. We've really expanded our programs in the past several years. With multiple programs running simultaneously, it forms a great cohort of fellows, but there's not a single director, so as Dean I'm someone who has seen the growth of our fellowships and can speak to all of the different kinds.

Continue reading "Interview with Dean Theodore Ruger on Penn Law's Academic Fellowships"

Posted by Jessica Erickson on September 10, 2019 at 09:36 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Root, root, root for the new citizens

Thoughts about nationalization ceremonies being held at baseball games? Too informal and non-serious? Does the "frivolity of hotdogs, peanuts and Cracker Jack" detract from the solemnity of the citizenship ceremony? Or is it a subtle recognition that baseball was, at least a century ago, the vehicle through which immigrants and new citizens became American (unfortunately, neither baseball nor welcoming new people to the American policy are as popular as they once were). And what if some jerks at the game decided to jeer or hold "go back where you came from" signs?

Posted by Howard Wasserman on September 10, 2019 at 02:36 PM in Howard Wasserman | Permalink | Comments (4)

I am not alone


I would add that, based on Ferguson's description of the examples Gladwell uses in the book, he is again trying to squeeze widely disparate examples into a single category. The issue with Chamberlain/Hitler, Madoff, Sandusky, and Cuban spies is that they successfully lied to people about their actions or intentions. The problem with Bland was--at best--a racially charged, power-imbalanced confrontation between a police officer and a person of color--the kind that happens too frequently.

Posted by Howard Wasserman on September 10, 2019 at 10:06 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Monday, September 09, 2019

Nicole Garnett JOT on "The War Against Chinese Restaurants"

I'm posting/linking to a short JOT (Download Garnett JOT 2019)written by Prof. Nicole Stelle Garnett on Gabriel Chin's and John Ormonde's 2018 article, “The War Against Chinese Restaurants."  (The piece turned out not to be run-able in JOTWELL because, the author and editors realized after the piece was completed, the article had already been JOT-ed.  But, that's no reason not to post or read it here!)

Petty Tyrants and their Property-Law Arsenal:  A Cautionary Tale

 Nicole Stelle Garnett*

Gabriel J. Chin & John Ormonde, “The War Against Chinese Restaurants,”

67 Duke Law Review 681 (2018)

For my friend and colleague, John Copeland Nagle (1960-2019), with whom I shared many Chinese meals, and for Jean Chen, the best chef in South Bend, Indiana, who cooked most of them.

            Today, according to the Chinese American Restaurant Association, there are over 45,000 Chinese restaurants in the United States – more than the number of McDonald’s, KFCs, Pizza Huts, Taco Bells, and Wendy’s combined.[1]  That statistic surprised me, but not as much as the revelation in Gabriel Chin & John Ormonde’s fascinating article, “The War Against Chinese Restaurants,” that Chinese restaurants have flourished in the U.S. for the past century and a half.  Indeed, in the late-nineteenth and early-twentieth centuries, Chinese restaurants were so successful that that they were considered a cultural menace and became the target of a xenophobic “war” declared by early labor unions and their political allies who employed a variety of legal tools, including the tools of property regulation, to prevent them from opening (or force them to close).[2]


* John P. Murphy Foundation Professor of Law, Notre Dame Law School.                           

[1] Emelyn Rude, A Very Brief History of Chinese Food in America, Time Magazine, Feb. 8, 2016, available at

[2] In 1920, AFL President Samuel Gompers (a leader of the Chinese exclusion movement), wrote a book entitled Meat v. Rice: American Manhood against Asiatic Coolieism, Which Shall Survive?

Continue reading "Nicole Garnett JOT on "The War Against Chinese Restaurants""

Posted by Rick Garnett on September 9, 2019 at 10:54 AM in Rick Garnett | Permalink | Comments (2)

Friday, September 06, 2019

Penn State Law Review Symposium

The Penn State Law Review is now accepting articles for its annual symposium, which will be hosted in the Spring of 2020. This year, the topic of the Penn State Law Review Symposium will focus on the legal implications of upcoming technological advances, for example, artificial intelligence, autonomous vehicles, and big data.

Continue reading "Penn State Law Review Symposium"

Posted by Howard Wasserman on September 6, 2019 at 11:13 AM in Teaching Law | Permalink | Comments (0)

Thursday, September 05, 2019

"We the People" on universal injunctions

The new episode of the National Constitution Center's "We the People" podcast featured Amanda Frost and I discussing and debating universal injunctions. It was a great conversation.

Posted by Howard Wasserman on September 5, 2019 at 11:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Under color?

An interesting under color question. The officers were in disguise (and thus out of uniform) and presumably off-duty. But their personal vendetta arose from their professional conduct as police officers about which the citizen-victim had complained. Could they have done this but-for their official position? Being police officers did not enable the conduct. But being police officers is the only reason they had to vandalize this guy's property.

Posted by Howard Wasserman on September 5, 2019 at 11:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, September 04, 2019

JOTWELL: Levy on Fisher and Larsen on virtual briefing

The new Courts Law essay comes from Marin Levy (Duke), reviewing Jeffrey L Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court (Cornell L. Rev., forthcoming), exploring how online speech and writing affects SCOTUS decisionmaking.

Posted by Howard Wasserman on September 4, 2019 at 11:36 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Trade Secrets, FOIA, Research & Platforms

All of the above meet in today's hot story from Bloomberg on how Uber is claiming that the information that cities hold on names of Uber drivers is proprietary confidential information. It all started with an economist Peter Norlander, from Loyola Chicago business school who requested the names of Uber and Lyft license holders from the City of Chicago. The question he wants to ask in his study is a question that is very relevant to the hottest employment and labor law policy debates of the moment: how much overlap exists between the drivers of these two competitors. The reason this question is relevant to the policy debate on employee classification -- see my previous post on this here - is that an argument made in favor of independent contractor status [rather employee classification] of workers on these apps is that they have the freedom to work for multiple platforms simultaneously. Under default employment laws, this parallel work would be in tension with the common law employee duty of loyalty which assumes exclusive work with one company and not competitors [not to be confused with the debates on noncompetes which are about post-employment competition, not during employment].

So the the city told Norlander he can't have the data because making the names public would make it easier for competitors to poach drivers. Seriously? Labor market competition is something we want to protect actually.

While FOIA does have exemptions for trade secrets, names of workers - whether they are employees or ICs should not be a trade secret. There may be privacy concerns from the workers' perspective though I don't think this applies here, but open to think about that. But Uber shouldn't get to claim secrecy because it wants to prevent poaching. I am quoted on this toward the end of the article.

Posted by Orly Lobel on September 4, 2019 at 12:30 AM | Permalink | Comments (7)

Friday, August 30, 2019

Teaching leadership and addressing gender inequality

The following post is by Hannah Brenner, Vice Dean for Academic and Student Affairs and Associate Professor of Law at California Western School of Law ([email protected]) and Renee Knake, Professor of Law and Doherty Chair in Legal Ethics at the University of Houston Law Center ([email protected]) and is sponsored by West Academic.

Law schools increasingly acknowledge the importance of teaching students about leadership, many offering new courses and even specializations or certificates. (A quick search reveals numerous programs launched in the past handful of years at a range of schools, including Baylor, Columbia, Elon, Michigan State, Ohio State, Santa Clara, Tennessee, and the University of Chicago, among many others—please feel free to supplement this list in the Comments.) The Association of American Law Schools recently approved a new Section on Leadership. Two years ago, Stanford Law Review devoted its annual symposium issue to the topic. Given the prominent roles lawyers often take on in their professional lives and in their communities, we believe that this training is necessary and we applaud efforts like these to better prepare our future lawyers.

Continue reading "Teaching leadership and addressing gender inequality"

Posted by Howard Wasserman on August 30, 2019 at 08:52 PM in Sponsored Announcements | Permalink | Comments (0)

Declaratory judgments and injunctions

The Fifth Circuit held that due process was violated by a system in which some portion of cash bail was used to fund court expenses and the magistrate deciding bail sits on the committee deciding how money should be spent. The remedies portion states as follows:

After recognizing this due process violation, the district court issued the following declaration: "Judge Cantrell's institutional incentives create a substantial and unconstitutional conflict of interest when he determines [the class's] ability to pay bail and sets the amount of [*8] that bail."

That declaratory relief was all plaintiffs sought. They believed that section 1983 prevents them from seeking injunctive relief as an initial remedy in this action brought against a state court judge. See 42 U.S.C. § 1983 ("[I]n any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable . . . .").7

That statutory requirement reflects that declaratory relief is "a less harsh and abrasive remedy than the injunction." Steffel v. Thompson, 415 U.S. 452 , 463 (1974) (quotation omitted); see also Robinson v. Hunt Cty., 921 F.3d 440 , 450 (5th Cir. 2019); Restatement (Second) of Judgments § 33 cmt. c ("A declaratory action is intended to provide a remedy that is simpler and less harsh than coercive relief . . . ."). Principal among its advantages is giving state and local officials, like Judge Cantrell, the first crack at reforming their practices to conform to the Constitution. Steffel, 415 U.S. at 470 .

One response to the declaratory judgment would be eliminating Judge Cantrell's dual role, a role that is not mandated by Louisiana law. In contrast, because Louisiana law does require that the bond fees be sent to the Judicial Expense Fund, LA. R.S. 13:1381.5(B)(2)(a) , the declaratory judgment cannot undo that mandate. Challengers did not seek to enjoin that statute, instead arguing only that the dual role violated due process. But given today's ruling and last week's in Cain, it may well turn out that the only way to eliminate the unconstitutional temptation is to sever the direct link between the money the criminal court generates and the Judicial Expense Fund that supports its operations.

I am unsure about the final paragraph. The challengers cannot "enjoin that statute" because courts do not enjoin statutes; they enjoin enforcement of statutes. The district court could have declared that the state-law mandate created the unconstitutional conflict of interest; to comply with that judgment, the defendants would have had to stop enforcing that statute, much as if they had been enjoined from enforcing.  The court issued a seemingly narrower declaratory judgment. Perhaps the point of the final sentence is that eliminating the defendant magistrate's dual role would not eliminate the constitutional violation, opening the door to an injunction because the defendants violated the declaratory judgment.

Two other cute procedural pieces in the case: It was certified as a class action, thus avoiding mootness when the named plaintiffs' criminal cases ended. The court also noted that it is not clear that the exceptions provision of § 1983 applies here, because it is not certain that the defendant judge was acting in a judicial rather than administrative capacity.

Posted by Howard Wasserman on August 30, 2019 at 06:08 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, August 29, 2019

Norm Lefstein (1937-2019)

I want to note the passing of Norman Lefstein, the longtime former Dean of my law school. Norm was a leader of the criminal defense bar who did amazing work in improving representation for indigent defendants. Here is his obituary from the Indiana University Robert H. McKinney Law School. Rest in peace.

Posted by Gerard Magliocca on August 29, 2019 at 08:07 PM | Permalink | Comments (0)