Wednesday, April 26, 2017

Better Call Saul does professional responsibility

If Season 1 of Better Call Saul brought us impact civil litigation, and Season 2 brought us competition for clients, Season 3 is poised to bring us the attorney-disciplinary process. As things stand entering Episode 3-04, Chuck baited Jimmy into first confessing to tampering with some documents, then to committing a series of crimes, including felony breaking-and-entering. And the plea deal the prosecution offers Jimmy (at Chuck's manipulative suggestion) is pretrial diversion in exchange for a confession, which will be presented to the State Ba. The premise is that confession of a felony would mean disbarment. So we seem to be gearing up to see Jimmy litigating an attorney-disciplinary proceeding in the coming weeks.

Is confession to a felony per se, unaccompanied by jail time, grounds for disbarment (as opposed to suspension or reprimand)? And if the goal is to get Jimmy disbarred, wouldn't tampering with documents in a legal proceeding be stronger grounds than criminal charges resulting from a dispute between two brothers?

I look forward to seeing it play out, although we know the outcome--Jimmy will continue practicing law, just not as Jimmy McGill.

Posted by Howard Wasserman on April 26, 2017 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink | Comments (0)

A Bipartisan Federalism Alternative?

I am late to the conversation, but at the end of last year and early this year there was a discussion about progressive interest in federalism during the Trump Administration.  The dialogue was rich and substantial, and some good posts to consult as part of that discussion were those by Rick Hills here, Heather Gerken here, and Ilya Somin here.  One of the topics of contention was whether federalism had or could attract bipartisan support in hyper-polarized times.

I want to present an alternative institutional arrangement that has attracted bipartisan support: decentralizing federal power.  I have written about this previously, and blogged about it last month here, here and here.  Several Republicans in Congress have introduced legislation to address this issue, and last week prominent Democratic Representative Tim Ryan from Ohio introduced related legislation (even though previous votes on this issue had been along party lines).

The Republican proposal—unfortunately called the “Drain the Swamp Act of 2017”—suggests that 90 percent of federal officials in Washington D.C. be relocated and relatively soon.  This is a very bad idea.  While I have argued that too many federal officials are in Washington, moving this many this fast is a very bad idea.  The Ryan proposal seems more sensible, asking for a commission to consider the issue and make suggestions.

One of the issues I have addressed in past writings and am addressing in current writings is how decentralizing federal power is both a compliment and substitute to federalism.  The comparison is particularly instructive now, given that decentralizing federal power could attract bipartisan support in a way that federalism might not be.

Posted by David Fontana on April 26, 2017 at 09:03 AM | Permalink | Comments (0)

Still The People's Justice?

A few years ago I wrote an essay labeling Justice Sonia Sotomayor "The People's Justice" for her interest in and capacity to communicate to and with larger public audiences.  While I was primarily talking about her communications with the public outside of her judicial opinions, her dissent from the Court's denial of cert in Salazar-Limon v. City of Houston is notable for its expressive effect.  It has received a lot of media coverage already, including from places not normally known for their coverage of Court opinions.

Posted by David Fontana on April 26, 2017 at 08:13 AM | Permalink | Comments (0)

Tuesday, April 25, 2017

Salazar-Limon and the expansion of summary judgment

On Monday, SCOTUS denied cert in Salazar-Limon v. City of Houston, a § 1983 action arising from an officer-involved shooting of an unarmed person. The Fifth Circuit granted summary judgment in favor of the officer, seeming to credit the officer's version of events over the plaintiff's version, even without video. It also touched on the "he was reaching for his waistband" defense that has become a mainstay in these cases. The case was carried over six times before cert was denied--apparently, because Justice Sotomayor was writing a dissent from denial of cert for herself and Justice Ginsburg, which prompted a concurrence in denial of cert by Justice Alito, joined by Justice Thomas. I am quoted in an Atlantic piece on the case.

Continue reading "Salazar-Limon and the expansion of summary judgment"

Posted by Howard Wasserman on April 25, 2017 at 11:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Of bar passage, opportunity, and collective effort: a perspective on a very difficult issue of great importance (and about which reasonable people can and do differ)

In an effort to turn heat into some light, let me try my best to clarify my thinking on an issue that has engaged many well-meaning law profs (which is not to say that all law profs so engaged are well-meaning; I'll leave it at that).  No special knowledge or authority from me of course, but just one law prof's opinion:

1. I remain convinced that the effort on the part of the ABA Section on Legal Education to strengthen standards for, and thus the accountability of, law schools is on the whole a good thing.  Indeed, it is the responsible thing to do, given what it is a very difficult, and often quite tragic, predicament facing law students with unconscionable debt, thin employment prospects at least in the short term, and not the credential necessary to enter into the legal profession as a lawyer.  So, the effort is an important one;

2. Furthermore, this effort is not a racist one, regardless of occasional, irresponsible comments along those lines.  Does it have a disparate impact on racial minorities? Acknowledging the pertinence of the question, that would seem a rather severe stretch.  Ask yourself: If the bar exam itself is not a violation of the Civil Rights Act because members of racial groups pass in much lower numbers (itself a matter of serious, pressing concern and unacceptable in a profession that rightly aspires to be inclusive in all aspects), then how is it that a standard for bar passage that applies across all law schools would be such a violation?

3. To be sure, one doesn't have to reach disparate impact law to still worry about the effect of this heightened standard on opportunities for members of minority groups.  I, too, worry about that.  On a professional level.  On a personal level.  From the perspective of someone who would not be where I am today without structures of access, commitment to inclusion at my law school and large, access-focused public university in southern California and, yes, affirmative action.  But I worry equally, as I wrote with Dean Craig Boise from Syracuse several months ago, about the deep predicament and often dire circumstance of disadvantaged students coming to law school with a promise of success, only to find themselves without adequate support, deep in debt, and essentially forgotten by law profs and administrators whose interests are shaped by other considerations and demands.  Regulation is surely no panacea, but the well-meaning effort to hold accountable law schools through the imperfect, but best available, mechanisms of the current bar exam is an important one.  And legal educators would do well, in my view, to engage in constructive, data-driven, appropriately humble conversations about how best to achieve the fundamentally congruent goals of opportunity and educational adequacy;

3. Thanks to the efforts of many educators and associations, there is progress in this direction.  And we should both note it and applaud it.  For example, the California bar examiners should be commended for heeding the call of California law deans and others to look anew at the bar cut score and to the ways in which the current structure is inhibiting access and opportunity.  This is not just a "California problem," but is a problem more generally for our professional nationally;

4. The continuing expansion of the UBE (along with attention to a more consistent cut score nationally) promises to help law students, this by broadening opportunity to look at many more law schools across the country, those who are able to provide a comprehensive curriculum without the barriers of entry that come from "teaching to the bar;"

5. The AALS, under Judy Areen's wise leadership, has undertaken a remarkable "Before the JD" project, to gather information about why, other than the powerful impact of cost and debt, law school has eroded so significantly in popularity.  I hope and expect that we will learn much useful from this study, including how to think about outreach and inclusion for pre-law students of color;

6. Arizona and Harvard's decision to offer the GRE as an alternative test to the LSAT is intriguing, and it would seem promising at least on a preliminary glance.  Both law schools maintain that this broadening criteria for admission will help with access.  Moreover, if it destabilizes to some degree the large impact of USNews insofar as the LSAT becomes less of a barometer, that could and should help with diversity as well.

Alongside these very constructive reforms, danger looms large.  The potential defunding of the Legal Services Corporation to opportunity is a serious threat on a more global level. So too is the threat to the Interest Based Repayment program which has helped public interest grads in meaningful ways.  

But not to meander to far from the point:  The energy and momentum behind regulation and oversight of law schools whose track record in assisting their graduates of color with their academic and employment efforts is troubling is a positive development.  I joined a letter  from the AALS deans steering committee asking the ABA Section to take some more time to look closely at the data and join in a conversation that might yield a regulatory outcome that would be even better and would garner more support.  That is not inconsistent with the position in favor of more accountability.  And, indeed, the revised standard on the table is to me clearly better than the status quo.

 The important problems of access and opportunity by students of color -- including first generation college students like myself and many of my students, here at Northwestern and at other law schools at which I have had the privilege of teaching -- cannot be escaped or evaded by resisting efforts at regulation and accountability.  Such evasions are fundamentally unfair to the individuals whose lives and careers are at stake and often in peril.

Posted by Dan Rodriguez on April 25, 2017 at 01:42 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (10)

Getting Civ Pro mileage out of Trump

For my in-semester essays in Civ Pro, I got a lot of mileage out of Zervos v. Trump, the defamation lawsuit filed by the former Apprentice contestant who alleges Trump sexually assaulted her (the allegation is that when Zervos went public with her allegations and Trump denied them, he called Zervos a liar, constituting defamation per se).

I got four essays out of the basic lawsuit, with only a little bit of elaboration beyond the Complaint itself and only a few made-up or altered facts, as necessary: 1) Whether another of Trump's sexual-assault accusers (I used Natasha Stoynoff, the People Magazine journalist) could join as a plaintiff; 2) How Trump could raise a defense of presidential immunity (that is, the difference between 12(b)(6) and 12(c) for affirmative defenses--I moved the case to federal court); 3) Whether Trump could remove to federal court in New York (a test of the Forum Defendant Rule--I tweaked the facts and had the lawsuit filed on January 23); and 4) Whether Zervos could have filed the lawsuit in her home state of California rather than New York (a test of the Effects Test for personal jurisdiction, with some internet thrown in).

All-in-all, a helpful teaching case, in a framework that students would be interested in and with which they would be somewhat familiar. And, at least so far, no complaints from students about asking them to write about Donald Trump and his misdeeds, even having to answer one question as Trump's counsel.

I will leave with a question for the Civ Pro types: What would your conclusion be on the P/J-in-California question? Based on the allegations in the Complaint, Zervos is from California and one of the sexual assaults that Trump denies occurred there (the other occurred in New York). But Trump's denials of the assault accusations (i.e., the defamatory statements) were made either via Twitter directed at the world or at campaign rallies in states other than California, with no indication the statements made it into California through his efforts. And what makes Trump's denials defamatory is that he is denying Zervos' statements about the assaults, which were not made in California, not the California-based assault itself. My initial thought was that there would be no jurisdiction in California. But when I sat down to write the sample answer reaching that conclusion, I moved in the other direction (I ended up writing two sample answers, one going each way). Thoughts?

If my initial conclusion was wrong and California would have jurisdiction over Trump, it raises some interesting questions and ties personal jurisdiction to other, strategic issues for the plaintiff. If there is jurisdiction in California, why did the plaintiff go to New York, especially New York state court? Trump is certainly no less popular in New York City than in California (although perhaps not Orange County, where Zervos lives). One answer may be that she wanted to keep the case in state court--because of the Forum Defendant Rule, Trump (almost certainly a New Yorker) could not remove to federal court in New York, although he could remove to federal court in California. But to the extent any temporal presidential immunity exists, it would be in state court (an issue the Court in Clinton v. Jones left open), while it is clear that no such immunity exists in federal court. That being so, why would Zervos pick state court over federal court?

Posted by Howard Wasserman on April 25, 2017 at 09:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, April 24, 2017

JOTWELL: Thornburg on Hoffman on plausibility pleading

The new Courts Law essay is from Elizabeth Thornburg (SMU), reviewing Lonny Hoffman, Plausible Theory, Implausible Conclusions (U. Chi. L. Rev. Online), in which Hoffman responds to William H.J. Hubbard, A Fresh Look at Plausibility Pleading, (U. Chi. L. Rev.).

Posted by Howard Wasserman on April 24, 2017 at 03:47 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

As Arkansas Doubles Down on Death, a Look at the First Four

Assuming all goes according to plan, Arkansas will conduct 2 executions tonight—the nation’s first double-execution in over 15 years.

For those just catching up, tonight’s events follow what was originally the state’s plan to execute 8 people over the course of 11 days.

Of the 4 men scheduled for execution last week, 2 had their executions stayed—one is a schizophrenic, the other has organic brain damage and is intellectually disabled—and a third man’s death sentence was recommended for commutation to life without parole by the state’s parole board.  This was the first time that the Arkansas parole board has recommended commutation since 1990, a decision made in part because this man was one of several people who participated in an attack on a teenager—described as “the tragic result of a group dynamic gone wrong”—and he was the only one to receive the death penalty.  He was 20 years old at the time.  The (now retired) judge from the man’s trial wrote to the parole board that his death sentence was “excessive punishment” in light of the facts and the distinctly cruel environment in which he was raised.  

That leaves the fourth man, Ledell Lee, who was executed last Thursday night—Arkansas’s first execution since 2005.  Lee had protested his innocence from the day he was arrested until the night he was executed, 24 years later.  The Innocence Project had taken his case and fought for DNA testing, which the State of Arkansas fought tooth and nail to deny and which he never did receive.  In a dissent to the Arkansas Supreme Court’s decision denying his stay last week, one judge wrote that DNA testing was a “modest request” in light of the fact that the hair evidence used against Lee at trial “tilted in the State’s favor a very weak case based entirely on circumstantial evidence.”  For his last meal, Lee chose Holy Communion.

Both of the men who Arkansas is planning to execute tonight have admitted their guilt and taken responsibility for their crime. Maybe tonight Arkansas will finally give supporters of the death penalty executions they can feel good about.  That’s hard to say of the first Arkansas four.

 

Posted by Corinna Lain on April 24, 2017 at 02:19 PM | Permalink | Comments (1)

Counter-speech or heckler's veto?

There are some troubling aspects to this edition of FIRE's So to Speak podcast on the Manhattan Institute's Heather MacDonald being a victim of a heckler's veto. MacDonald was shouted down at Claremont-McKenna College, where she had been invited to give a talk on her new book on policing. In the interview, she describes speaking to an empty room, because student protesters outside had blockaded the entrance, and the talk ending early because the university refused to let police disperse the protesters. MacDonald wrote about her experiences.

My free-speech positions generally align with FIRE's, so I was surprised by the problems I found with the discussion:

1) It does not appear they have grappled with the protected nature of some of the protesters' activities (MacDonald allowed at one point that they were "arguably" within First Amendment protection). All heckling seems to constitute a heckler's veto in their telling. Except heckling a speaker is constitutionally protected, including to the point of trying to shout down or drown out that speaker, with the hope that she will give up and go away. (I like to point to the scene in Casablanca with the competing songs). So is asking snarky questions during the Q&A. So is pounding on drums and chanting. There is a line to be drawn somewhere and I admit to not knowing precisely where that is. Blockading the entrance or pounding on the glass is over the line. So is invading the speaker's space or trying to grab the microphone. But shouting from across the way must be protected. And there is an ocean between those.

The  undercurrent to the interview is that the First Amendment (as opposed to civility or a Platonic ideal of polite exchange of ideas) requires those who oppose ideas to allow those ideas a polite hearing. But this privileges the position of the invited speaker (MacDonald) to say what she wants and she wants to, imposing  on others to give her a polite listen and only engage in counter-speech (supposedly the remedy to be applied) on her terms. Rather, counter-speech, no less than "original" speech, may be vehement, caustic, and unpleasantly sharp. Counter-speech, no less than "original" speech, can produce the verbal tumult, discord, and dverbal cacophony that is not a sign of weakness but of strength.

Again, do not hear me as saying that the protesters were entirely in the right. Only that there is a First Amendment element that went almost entirely unacknowledged throughout the interview and MacDonald' narrative.

Continue reading "Counter-speech or heckler's veto?"

Posted by Howard Wasserman on April 24, 2017 at 09:31 AM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (5)

Sunday, April 23, 2017

The hubris of the unknowing

Whittier is closing its law school, as all of us in our corner of the academic and profession universe now know.

I do not work, and have never worked, at the Whittier Law School, whether as a faculty member, a senior administrator, or in any other role.  I am not an alumnus, nor am I affiliated in any way with the university.  Therefore, whatever I might think about the law school's capacity to survive or even thrive in this difficult climate, I would not presume to know nearly enough to opine about this issue in any public fashion.

But this does not appear to deter various pundits -- Prof. Stephen Diamond most recently.

What makes knowledgeable professionals so confident that they would quickly rush to judgment?  Whittier's sudden closing is obviously a tough thing for current students and faculty.  Perhaps the decision will be unraveled in the face of public pressure or via littigation.  Yet there seems precious little basis to jump into a matter whose complex issues are essentially private, despite the efforts of many in and around the school to make this into a public spectacle.  Perhaps bloggers should neither aid nor abet these efforts.

The hubris of the unknowing. 

 

Posted by Dan Rodriguez on April 23, 2017 at 03:06 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (51)

Justice Alito, funny man

Former GuestPrawf Jay Wexler (BU) has written extensively on who on SCOTUS gets laughs during argument, pointing out that there has been less laughter this Term without Justice Scalia.

Well, perhaps Justice Alito is looking to fill-in the gap. Alito was, relatively speaking, a laugh riot last Monday. During the argument in Perry v. MSTB, Alito got laughs for asking who had written the CSRA, whether it was someone who enjoyed pulling wings off flies. And in the subsequent argument in Town of Chester v. Laroe Estates, Alito got laughs with an extended riff on how defendant standing makes no sense, that a defendant would be perfectly happy for the court to tell it that it must leave the case for lack of standing.

Hilarious.

Posted by Howard Wasserman on April 23, 2017 at 11:05 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Thursday, April 20, 2017

No Simple Algorithm

In his article Libertarian Separation of Powers, Aziz Huq asks whether a libertarian should prefer one instantiation of interbranch structure over another.  His answer is no:  What institutional arrangements maximize liberty is deeply contingent.  “Confident prediction and prescription require a high degree of historical and circumstantial tailoring. There is no facile algorithm.”

Something loosely similar, I’ve been suggesting in previous posts, is plausibly true of the class action.  For libertarians, there’s no simple algorithm for regulating  class certification.

In this post, I’ll flesh out the point further by turning to the current version of the Fairness in Class Action Litigation Act ("FICALA"), Congress's latest attempt at class action regulation. To blog-simplify, I’ll assess the Act from the standpoint a crude libertarian—someone whose strong preference for private ordering leads him to embrace very crude constraints on state intervention in the marketplace. 

The virtue of this heuristic is not that it tells us whether reforms in the Act are good, bad, or indifferent, but that it makes the following claim at least colorable:  Even confined to a single category of Rule 23 class action, Rule 23(b)(3), it’s not clear that there’s one set of optimal libertarian class certification rules.

I’m going to focus on one portion of the FICALA:  its provisions on partial certification or “issue classing.” Partial certification, grounded in Rule 23(c)(4), involves slicing class claims into their component issues and then certifying discrete common issues (most often, issues related to primary conduct or general causation), leaving individualized issues relating to specific causation and damages calculation to later proceedings brought by individual class members. 

FICALA, following circuits like the Fifth, forbids partial certification—class certification, it provides, should hinge on the certifiability of the class claims considered as a whole.  This turns Rule 23(c)(4) into the most banal of housekeeping provisions—one that allows the court to segment and hold separate trials on a series of common issues in a thoroughly cohesive class. 

How might the crude libertarian think about FICALA's partial certification ban? 

Continue reading "No Simple Algorithm"

Posted by Mark Moller on April 20, 2017 at 11:40 PM in Civil Procedure | Permalink | Comments (0)

Wednesday, April 19, 2017

Judge John T. Noonan, Jr., RIP

My Mirror of Justice colleague and Villanova prawf Patrick Brennan posted over there that Judge John T. Noonan, Jr., of the Court of Appeals for the Ninth Circuit, has passed away at the age of 90.  I was blessed with the chance to learn from him, and to get to know him reasonably well. (He visited my law school, during my first year, to speak about the then-current-and-controversial proceedings surrounding and leading to the execution of Robert Alton Harris.)  He was not only a thoughtful and conscientious judge, and a prolific and prominent scholar; he was a really and inspiringly good and faithful person.  If you've never read Persons and Masks of the Law (here), check it out.  Requiescat in pace.

Posted by Rick Garnett on April 19, 2017 at 06:15 PM in Rick Garnett | Permalink | Comments (3)

In honor of national haiku poetry day

Problems to be solved                 

New legal education

Windows not boxes

 

Law's creeping mission

Turning lawyers inside out

Changing the frameworks

 

ABA evolves

Must meet our changing landscape

Modern modes prevail

 

Knowledge so diverse

Integrating disciplines

Law as just one part

 

Injustice matters

Demanding change in our time

Teaching law for real

 

Scholars in situ

Researchers ever searching

New wisdom at hand

 

 

 

 

Posted by Dan Rodriguez on April 19, 2017 at 11:26 AM in Daniel Rodriguez | Permalink | Comments (11)

Tuesday, April 18, 2017

SCOTUS on inherent powers

I have a piece at SCOTUSBlog on Tuesday's unanimous decision (8-0, as Justice Gorsuch was not on the bench when the case was argued in January) in Goodyear Tire & Rubber v. Haeger, holding that there must be a but-for connection for an award of attorney's fees for bad-faith conduct under a federal court's inherent powers. The court remanded to determine whether Goodyear waived its challenge to a base award of $ 2 million or whether the district court must redo the entire fee calculation. I am a bit surprised by the outcome, although the Court announced a legal standard broad enough to support a similarly large award, if the court makes appropriate findings.

Posted by Howard Wasserman on April 18, 2017 at 01:38 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Notes on Monday's SCOTUS arguments

I covered two of yesterday's arguments for SCOTUSBlog--in Perry v. MSPB (considering where review is had for MSPB decisions) and Town of Chester v. Laroe Estates (considering whether intervenors must have standing). Some additional thoughts below.

First, the story for many commentators about Perry was how engaged Justice Gorsuch was with both sides in the first case on his first argument day (it is not clear from the transcript, but reports are he asked his first question about ten minutes in). What has been discussed less is that Gorsuch seemed poised to rejected everything the Court had said previously about mixed cases. While the Court as recently as five years ago in Kloeckner v. Solis had stated that mixed cases go entirely to a district court, Gorsuch pushed both sides to the conclusion that the CSRA does not authorize district courts to review MSPB decisions and that mixed cases must be split up, with discrimination issues going to the district court and CSRA issues to the Federal Circuit. It is not clear where and whether he will follow that position. I previously, mainly jokingly, predicted that Gorsuch would write Perry, because it seemed the kind of case assigned to the junior-most Justice and I expected it to be unanimous, in light of Kloeckner. I may prove partially correct about him writing--but it may be a solo dissent.

Continue reading "Notes on Monday's SCOTUS arguments"

Posted by Howard Wasserman on April 18, 2017 at 01:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

From Jotwell: "What Will the Federal Government's Resistance to President Trump Look Like?"

My latest contribution to the Constitutional Law section of Jotwell is this piece, titled "What Will the Federal Government's Resistance to President Trump Look Like?" It follows in some senses from my earlier Prawfs post titled "Will the Civil Service Revolt, or Work to Rule, in a Trump Presidency?" It also emphasizes why I think Prof. Jennifer Nou has been doing great and useful work on this subject, and why I think the earlier article by Jessica Bulman-Pozen and David Pozen on Uncivil Obedience is useful and newly timely, even if I also spend a good deal of time in the jot on that article's critics. Some excerpts:

How should one respond to injustice, illegitimacy, or broader threats posed by a democratic governmental regime? Although readers may lump these items together, the commas and “or” matter here, for they are not all the same and the proper response to each may differ. One common answer to some or all of them is civil disobedience. Another, rendered more problematic by the democratic nature of the regime and perhaps by the relative lack of courage of the professional-managerial class, is open rebellion. A third possible response, Jessica Bulman-Pozen and David E. Pozen argued in a valuable, important, and still under-examined 2015 article, is uncivil obedience: a conscientious, communicative, reformist act of strict “conformity with . . . positive law,” “in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied.” . . .

Behind all this, obviously, is President Donald Trump: that extraordinary figure whose extraordinary actions have called forth—demanded, many would insist—extraordinary responses from citizens and scholars alike. Many of the most prominent responses to the new regime have come from citizens, albeit often fairly elite ones: marches, “days without [X],” lawsuits, and the usual collection of group letters, petitions, and op-eds. In that context, it is clearer that thinking about modes of response and resistance to this administration, including resistance within the executive branch, has a strong constitutional law component. (Anyway, as Adrian Vermeule recently observed, administrative law “is sublimated constitutional law just as constitutional law is sublimated theology.”)

Invoking Trump as a justification will no doubt win instant forgiveness for skirting or breaking various “rules,” both in the real world and in academia. As these thoughtful articles—two of them fortunately written before a sense of Trump-derived urgency began shaping and distorting public and academic discourse—demonstrate, however, it is unclear when, whether, and how such behavior should be treated forgivingly. Strategies of resistance shaped in response to exigent circumstances do not necessarily disappear when those circumstances do, and in the meantime they encourage retaliatory counter-strategies. And many citizens’—and academics’—passionate dislike of the administration may lead them to accentuate the positive aspects of these rule-breaking strategies while minimizing or ignoring the negative. This is thus simultaneously a good, bad, and necessary time to think both about both how resistance forms not only to but within the very organs of a constitutional regime, and about the potential dangers of those strategies. . . .

[T]hese resistance practices demand wide-ranging academic analysis, of a sort that neither ignores nor is driven solely by present exigencies . . . [W]e should be grateful that the study (and critique) of uncivil obedience came along when it did—“BT,” as it were—and that Nou continues the job in a calm fashion “AT.” We need much more of this.

Posted by Paul Horwitz on April 18, 2017 at 12:48 PM in Paul Horwitz | Permalink | Comments (0)

On the Execution Saga in Arkansas

Honk if you think what’s happening in Arkansas is just plain weird.

Two drug companies filed suit, they want their drugs back

Arkansas says it’s not telling whether it even has them. It’s a secret.

A state trial court in Arkansas issued an order to prevent Arkansas from using the drug companies’ drugs (if they are).

Then the judge joined an anti-death penalty demonstration in front of the governor’s mansion, lying on a cot that was supposed to be a gurney while people with picket signs smiled in the background.

Then a federal judge issued an order staying all executions because the state’s viewing policy allowed only one lawyer to be present for an execution, and if a lawyer had to rush out to file an emergency petition, the inmate wouldn’t have a lawyer to witness his execution.  And also, the court said the inmates may well prevail on a challenge to Arkansas’s lethal injection protocol.

Then the Eighth Circuit said that was wrong, on both counts, but with a dissent.

Meanwhile, the drug companies say they don’t need the temporary restraining order from the state trial court because of the stay in federal court.

But oops, that’s gone—and so is the state trial court judge. He was taken off the case for joining in the demonstrations.

I’m exhausted just trying to catch up with it all. And I haven't a clue as to what’s going to happen with Arkansas’s executions, but I'm betting it's going to be weird.

Posted by Corinna Lain on April 18, 2017 at 08:30 AM | Permalink | Comments (15)

Monday, April 17, 2017

the eternal recurrence of law review complaints (or, why is law review reform so hard?)

My previous post concerned the narrow issue of law reviews' policy towards their own school's faculty, although some comments raised larger concerns. Towards the bottom, James Grimmelmann complained,

[t]he law-review debate crops up on Prawfs, CoOp, and/or TFL every year or two, and every time the arguments are familiar, repetitive, and tedious.

Indeed! (And as Orin Kerr noted, Grimmelmann's complaint, and the proposal he contributed, are themselves parts of the same cycle.) Many of the commentators' reforms, all of which have some merit, assume the possibility of institutional change, such as widespread, blind, and anonymous peer-review. But a major recession and funding challenges to the legal academy and higher education have produced no changes to law reviews despite the regular airing of complaints and proposed reforms. For reasons I discuss below the jump, I'm skeptical of such reform occurring in the short- or medium-term.

Continue reading "the eternal recurrence of law review complaints (or, why is law review reform so hard?)"

Posted by Mark Fenster on April 17, 2017 at 10:08 AM | Permalink | Comments (25)

Sunday, April 16, 2017

Donald Trump's First Amendment

This tweet from early this morning captures it: Someone should look into who paid for the small organized rallies yesterday. The election is over!

Let's break this out:

• There is something wrong with people paying or accepting money to engage in First Amendment activity. The source of the funds should be investigated, disclosed, and (perhaps) sanctioned.

• There is something wrong with organized rallies or other peaceable assemblies.

• The only opportunity people have to express their political preferences is during an election. Once the election is over, the First Amendment runs out and it is inappropriate to take to the streets to criticize the President.

Posted by Howard Wasserman on April 16, 2017 at 05:29 PM in First Amendment, Howard Wasserman | Permalink | Comments (10)