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)

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 https://teach.aals.org/

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.

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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 http://time.com/4211871/chinese-food-history/.

[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?

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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.

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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.

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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)

The Criminalization of Private Market Competition

A couple of years ago Rochelle Dreyfuss and I wrote about the conflation, in rhetoric and practice, between trade secrecy and national security. We sounded the alarm that using the criminal justice system to prosecute run of the mill competition between employees and their former employers - even when such competition involves taking trade secrets - a category that as we see in civil litigation is subject to much dispute and factual ambiguity - is a risky extension of the risks employees face when leaving their employer. The Uber-Waymo case settled, with part of the settlement being Waymo, owned by Google, getting shares in Uber's venture. Competitors become collaborators. Innovation and the race to autonomous cars continue. But now the former employee of both - the one who moved between the companies and triggered the civil dispute is being prosecuted for his actions and may face up to 10 years in jail. We should worry about this development, as I argue in this new piece in the Wired.

Posted by Orly Lobel on August 29, 2019 at 12:30 PM | Permalink | Comments (2)

Faculty Hiring: FIU (two tenure/tenure-track positions)

Assistant, Associate, or full Professor of Law (two positions)

Florida International University College of Law, Florida’s public law school located in Miami, invites applicants for two tenured or tenure-track Assistant, Associate, or full Professor of Law positions to begin in the 2020-21 academic year. Our primary curricular interests are Cyber Law (focusing on cybercrime/forensics, interconnected cities, infrastructure security, and general cybersecurity training and education), Environmental Law, Wills & Trusts, and Torts. The Cyber Law position may be a joint appointment with another FIU School or College.

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Posted by Howard Wasserman on August 29, 2019 at 10:01 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Faculty Hiring: FIU

Lecturer in Legal Skills and Values

Florida International University College of Law, Florida’s public law school located in Miami, seeks applicants for entry-level or lateral appointments for the position of Lecturer in Legal Skills and Values. The start date for the position is August 2020.

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Posted by Howard Wasserman on August 29, 2019 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, August 28, 2019

Merits, not standing

I have no idea whether the Eleventh Circuit is correct that a single unsolicited text violates the Telephone Consumer Protection Act. But it highlights the absurdity of treating standing as something other than substantive merits. The heart of the analysis is the scope of the TCPA and congressional intent--what should be questions of whether a plaintiff has stated a cause of action under applicable substantive law.

Posted by Howard Wasserman on August 28, 2019 at 10:17 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Legal Methods Hiring at Utah

The University of Utah S.J. Quinney College of Law invites applications for one or more career-line faculty positions, on a presumptively renewable five-year contract basis, at the rank of assistant or associate professor beginning academic year 2020-2021.

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Posted by Howard Wasserman on August 28, 2019 at 10:35 AM in Teaching Law | Permalink | Comments (0)

Monday, August 26, 2019

A real universal injunction

Equity famously cannot enjoin a crime. But can we agree that this injunction would be universal and not nationwide?

Posted by Howard Wasserman on August 26, 2019 at 11:02 AM in Howard Wasserman | Permalink | Comments (1)

Sunday, August 25, 2019

Qualified immunity and judicial departmentalism

The Sixth Circuit on Friday held that Kim Davis was not entitled to qualified immunity from a claim for damages by same-sex couples denied marriage licenses in the early weeks after Obergefell. Obergefell clearly established the constitutional right the plaintiffs sought to vindicate--to receive marriage licenses and a reasonable official should have known about that right. And Davis did not show her entitlement to a religious accommodation, as the court said:

Davis provides no legal support for her contention that Kentucky’s Religious Freedoms Restoration Act required her to do what she did. Her reading of the Act is a subjective one and, as far as we can tell, one no court has endorsed. In the presence of Obergefell’s clear mandate that “same-sex couples may exercise the fundamental right to marry,” and in the absence of any legal authority to support her novel interpretation of Kentucky law, Davis should have known that Obergefell required her to issue marriage licenses to same-sex coupleseven if she sought and eventually received an accommodation, whether by legislative amendment changing the marriage-license form or by judicial decree adopting her view of the interplay between the Constitution and Kentucky law.

Under judicial departmentalism, an executive official, such as Davis, is free to adopt and implement her "subjective" reading of the statute and judicial precedent. She does not need "legal authority to support her novel interpretation of Kentucky law"--the legal authority is her power as an executive official to act on her understanding of the law she is empowered to enforce. But qualified immunity is focused on precedent and the judicial understanding of precedent. So it could check executive officials going too far in a departmentalist direction, by tying them to judicial precedent on pain of damages.

Posted by Howard Wasserman on August 25, 2019 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, August 24, 2019

More on SLAPP laws in federal court

The Fifth Circuit on Friday held that Texas's SLAPP law does not apply in federal court on diversity, following the (correct) analysis from the D.C., 10th, and 11th Circuits that the state law conflicts with FRCP 12 and 56 by adding an additional hurdle to trial. This decision complicates the circuit split because the 5th Circuit had held in 2009 that Louisiana's SLAPP law applies in federal court. The panel held it was not bound by circuit precedent. It was pre-Shady Grove, which the panel says sharpened the proper analysis. And the Texas law is different than the Louisiana law; the latter uses standards that look like summary judgment, while Texas imposes higher standards that more "manifest[ly]" conflict with the Federal Rules.

I doubt this will be the case on which SCOTUS will resolve the question, at least not immediately. The first move will be en banc reconsideration on the Fifth Circuit to resolve its internal split.

My conclusion on the overall Erie question is that the "special motion" provisions should not apply in federal court but fee-shifting provisions should. The question is whether that sufficiently protects free-speech interests, by allowing litigation to last a bit longer (until the protections of NYT can do their work in an appropriate case), but allowing the defendant to recover attorney's fees, which recoups the defendant's major financial burden.

Posted by Howard Wasserman on August 24, 2019 at 11:26 AM in Civil Procedure, First Amendment, Judicial Process, Law and Politics | Permalink | Comments (2)

Friday, August 23, 2019

IJ Podcast on the Bill of Rights

The Institute for Justice, as part of its podcast series on the Fourteenth Amendment, just released the latest episode on the failure of incorporation in the late 19th century. It features yours truly and Michael McConnell. 

Posted by Gerard Magliocca on August 23, 2019 at 08:23 PM | Permalink | Comments (0)

We are Hiring!

Faculty recruitment is happening  early this year, with the FRC convening early October. Good luck to all and a note about University of San Diego Law School: we are actively looking to recruit both entry level and lateral scholars. We have a particular interest in corporate law but we are very open to any and every field. Our chair is Mary Jo Wiggins, resumes and inquiries can be sent her way - [email protected].

Again good luck to all the entry-levels heading to DC!

Posted by Orly Lobel on August 23, 2019 at 05:49 PM | Permalink | Comments (0)