Wednesday, June 01, 2016

The Month of June

I look forward to guest blogging during the month of June! I appreciate the invitation to join the conversation for the month.

Posted by David Fontana on June 1, 2016 at 01:18 AM | Permalink | Comments (0)

Tuesday, May 31, 2016

Is Marital Trust Overrated?

A second very interesting presentation from the International Family Law Scholars conference I attended last week was Jill Hasday's presentation on her forthcoming book about deception. I had not really thought about it before, but deception, specifically fear of deception and punishment for deception, is a significant theme running through many family law cases and statutes. I look forward to reading the book when it is published and I think I was particularly interested in the topic, because discussions of mail order marriage often bring up concerns about deception.

In Buying A Bride, I don't focus on deception specifically. However, the fear that the intended spouse is not being honest about their background or marriage motives is a fear routinely expressed by both men and women considering mail order marriage. Therefore, what is so interesting to me about Hasday's project is that it demonstrates that deception and the fear surrounding deception is not something unique to mail order marriage rather, it is an aspect of many types of intimate relationships.

In mail order marriage, the fear of deception is heightened because the unknowns surrounding the intended spouse are obvious. Men worry that the women are using them for their money or citizenship while women fear the men just want sex or power. American law is sensitive to these concerns, particularly with regard to the women, and offers a number of protections aimed at reducing the risks of mail order marriage. For example, mail order brides are provided with information about their prospective husbands such as their criminal history and if they have sponsored any other mail order brides. In addition, the law protects against abuse by ensuring that abused immigrant wives are able to self petition for permanent residency. This law enables the women to leave their abusers and still remain in the United States. Men using seeking mail order marriages marriage don't have as many specific protections as the women but they often use contract law, specifically prenups, to protect their assets in the case of divorce. 

Continue reading "Is Marital Trust Overrated?"

Posted by Marcia Zug on May 31, 2016 at 10:41 AM | Permalink | Comments (0)

So, What Exactly is the ABF?

Thanks to Sarah and Howard for re-inviting me to post about the American Bar Foundation (ABF). Many PrawfsBlawg readers may already know what the ABF is and what it does, but since I became the new ABF Director back in the fall, I’ve learned not to take anything about the ABF for granted. So, let me begin by describing what exactly the ABF is.

Continue reading "So, What Exactly is the ABF?"

Posted by Ajay K. Mehrotra on May 31, 2016 at 07:22 AM in Blogging, Life of Law Schools | Permalink | Comments (0)

Monday, May 30, 2016

Veep, S5E6

More small developments as the season moves towards the inevitable vote in the House.

Selina must choose two failing banks to bail out and picks one of them because it is based in Illinois, a state she needs. The show still has her treating the House vote like a mini popular vote, with individual House members voting the state's interests rather than the party line.

Along those lines, Jonah's congressional campaign turns the corner when he begins criticizing the President and her poor performance. If he wins running on that platform, how might it affect his vote in the House? (Again, this is assuming he is running to become the new representative-elect for the next Congress). [Update: Jonah Ryan for Congress has a website]

Finally, we see the next step in Tom James' plan, as he is shown meeting with the Speaker of the House and the head of the lobbying firm Dan worked for (and for which James appeared to be shilling last week). Clearly James is trying to manipulate the House vote. But how? To formally get his name in the House election, he needs that faithless elector, but we do not know what has been happening with the electors. If James is trying to create a stalemate in the House as the way to become President, I go back to my original argument that he only acts as President until the House breaks that stalemate, so this seems a constitutionally unsuccessful move (and one I hope the show does not build the entire season around).

Posted by Howard Wasserman on May 30, 2016 at 09:31 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (6)

Sunday, May 29, 2016

Documents unsealed in Trump University lawsuit

On Friday, Donald Trump spent more than ten minutes of a campaign rally to criticize (and highlight the ethnic origin of) the judge in a class action against Trump University, mainly because the judge had issued various rulings against the defendant, a clear (according to Trump) indication that the judge was biased and should recuse. That same day, the judge has ordered unsealed a number of documents presented to the court on a class-certification motion. The court emphasized the public interest in the case (which suggested the need for public access to the documents), noting Trump's status as the front-runner for the Republican presidential nomination and that Trump had "placed the integrity of these proceedings at issue" in that race.

I guess judges do have ways to protect themselves against political attacks.

Posted by Howard Wasserman on May 29, 2016 at 03:40 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Saturday, May 28, 2016

Thiel, settlement, and third-party funding

Following up my previous post on Peter Thiel and Gawker, this TNR post is so wrong about so many issues with civil litigation.

First, it derides the ACLU/NAACP analogy (also offered by Eugene Kontorovich) as "ridiculous." That is correct to the extent the ACLU or NAACP are not motivated by private vendettas. But the comparison works at the broader level of someone with an agenda (whether personal or ideological) helping someone else litigate their claims. And the fact that the agenda is personal rather than ideological should not matter. Public-interest organizations are no more consistent than individuals in their positions, as will no doubt be demonstrated when various political groups go silent about President Trump's executive actions.

Continue reading "Thiel, settlement, and third-party funding"

Posted by Howard Wasserman on May 28, 2016 at 05:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Friday, May 27, 2016

Litigation financing and the First Amendment

I wanted to share two takes on the news that tech billionaire Peter Thiel has been funding Hulk Hogan's lawsuit against Gawker Media. Simona Grossi (Loyola-LA) argues there is nothing inherently wrong with Thiel financing someone else's litigation, which represents a different type of third-party litigation financing, although she suggests that due process may require transparency in such funding arrangements.* Slate's Mark Joseph Stern argues that the problem is not Thiel funding the litigation, but that the litigation is possible because of elected state judges and state privacy torts that may not sufficiently leave room for free speech.

[*] In discussing litigation financing, Grossi mentions  public-interest organizations providing free/reduced-fee representation. But she does not mention the role of attorneys' fees for many of these organizations, which affects how that financing model operates. Of course, the court knows when attorneys' fees are potentially in play, so any transparency concerns are addressed.

Both argue that Thiel's funding activities are protected by the First Amendment, although for different reasons. Stern finds support from NAACP v. Button and constitutional protection for ideological litigation, while Grossi finds support in an analogy to campaign finance. The answer, I think, is a combination of these.

Continue reading "Litigation financing and the First Amendment"

Posted by Howard Wasserman on May 27, 2016 at 10:44 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Opportunities for Feedback on Scholarship

Yesterday, I returned from the Eighth Annual Junior Scholars-in-Intellectual Property Workshop (JSIP) at Michigan State University College of Law where I received excellent feedback on a forthcoming paper.  The workshop, organized and hosted by Adam Candeub and Sean Pager, pairs each junior scholar with two more senior scholars who carefully read and critique the papers.  Because the workshop is small, all attendees read the papers and provide additional comments.  This was the second time I attended JSIP (and, unfortunately, the last as a "junior" scholar).  Like last time, I left the workshop feeling very lucky to have had the opportunity to get such substantial and helpful feedback on my work.

The Junior Federal Courts Workshop, which has a similar format as JSIP (although larger), is another conference I've participated in more than once, and have gotten really good comments on paper drafts.  Since it can be difficult for new scholars to determine which workshops, conferences, roundtables, etc. are the "best" in terms of feedback, I thought I'd ask the PrawfsBlawg community to weigh in on that question and share thoughts and experiences.  

Posted by Megan La Belle on May 27, 2016 at 06:40 PM | Permalink | Comments (2)

Marriage may not be not for everybody, but property law is.

I recently got back from a fascinating conference hosted by the International Association of Family Law (ISFL) and I wanted to write about an interesting presentation given by  Katrine Fredwall from the University of Oslo, Norway. In Norway, as well as most of Western Europe, couples are increasingly choosing long term cohabitation over marriage. In many of these countries, cohabitation rates are over 60%. In the United States, cohabitation rates are not nearly as high, but they are increasing here as well. Consequently, considering how countries like Norway choose to address the legal implications of cohabitation may provide insight into how the  US should address our own growing rates of cohabitation.

In her presentation, Fredwall explained that a few year earlier, she had been asked to suggest rules addressing how the property of long term, cohabiting couples should be divided at the end of the relationship (either because of death or breaking up). The idea that the property of cohabiting couples might be considered jointly owned is a relatively new idea. At the same time, joint ownership of marital property and the division of marital  property at divorce is well established. In fact, the ability to have the courts recognize both spouses' right to a share of the marital property is sometimes cited as one of the biggest legal benefits of marriage. Consequently, it makes sense that as cohabitation replaces marriage, some of marriage's legal benefits may need to be transferred to cohabitation.

Continue reading "Marriage may not be not for everybody, but property law is."

Posted by Marcia Zug on May 27, 2016 at 05:02 PM | Permalink | Comments (4)

Thursday, May 26, 2016

For Dan

As Howard writes below, all of us today are anxious to learn more about the developments in Dan's murder investigation. This may take a while but we are grateful that it finally looks like there  is movement. For those heading to LSA NOLA next week, plans are underway for a MarkelFest gathering. Stay tuned. Meanwhile, on this day when we are anxious to know more, but when we also know that nothing will bring back Dan, I wanted to share here, on the blog he founded and with the community he knitted together, the words I said at Dan's memorial last month at Harvard. 

For Dan

 Dan our beloved friend – ʻOlam u-meloʼo– a world in its entirety, full of life, radiating energy and warmth, building friendships, spreading love, creativity, and joy.

Dan and I knew each other here in law school but our friendship truly began as we began our teaching careers. All of us newbies, baby-professors – prawfs spelled R-A-W as Dan coined us – were in many ways raised by Dan. Dan was our peer but he was wiser and he realized early on what is important. He taught us to speak our minds, to write more and to write less, to think fast and slow, to experiment – to write differently, in different mediums and style – to write articles but also books and blogs – and to embrace broader audience. To theorize but to connect with practice. He helped us move beyond conventional anxieties of tenure and hierarchy and instead care about the ideas and the research and the teaching for their own sake, to care about building our institutions, contributing to our community, energizing our student, in the class and beyond, enriching our minds through engagement and conversation, even or especially if that meant taking risks and even if it meant that sometimes you get it wrong or imperfect.

And Dan was brilliant. A brilliant scholar, a gifted writer, a fearless thinker. He knew how to capture the essence of a difficult topic, to understand the underlying logic of current debates, and he pushed us all to fine-tune our thinking. He knew however that more important than any one piece of scholarship, however groundbreaking and well-received, are the exchanges and friendships among colleagues. He also understood that intellectual engagement cannot be done right without heart, without knowing the people and lives behinds the theory and concepts.

Continue reading "For Dan"

Posted by Orly Lobel on May 26, 2016 at 03:29 PM | Permalink | Comments (2)

Arrest in Dan's death

As many of you know doubt have heard, Tallahassee Police have announced an arrest in Dan's death. Sigfredo Garcia was arrested yesterday evening. The probable cause affidavit for the murder charge has been sealed and the investigation remains ongoing. TPD declined to give further details at a press conference this morning.

We have written very little here about Dan's death (as opposed to about Dan himself) to avoid the speculation and general b.s. that has surrounded this tragedy. We are happy to write about genuine news and may occasionally check back in as the case progresses.

Comments on this post are closed.

Posted by Howard Wasserman on May 26, 2016 at 02:36 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 25, 2016

Frank Easterbrook, the First Amendment, and the Chicago Cubs

My colleague calls this case the trifecta. Interestingly, news reports (BNA, NLJ, etc.) have focused on the court of appeals affirming the denial of the preliminary injunction and rejecting the argument that the flat ban on sales on the adjacent sidewalks violates the First Amendment. But the court spent a lot of time on possible First Amendment defects in a related ordinance requiring all peddlers to be individually licenses, except those selling newspapers. The court questioned both the exception for newspapers under Reed v. Gilbert and the licensing requirement as a whole, to the extent it disadvantages a small publication that relies on individual part-time sellers. The opinion offers the plaintiffs arguments to make in moving for a permanent injunction on remand.

And Easterbrook could not resist starting with this line: "The 2016 season is under way, and the Cubs are doing well on the field. Left Field hopes to do as well on appeal."

Posted by Howard Wasserman on May 25, 2016 at 04:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

I Desecrated a Bluebook, in Public

So when the end of the year rolled around we put together our “Law Revue.” A few of us did a take on Les Miserables designed to poke fun at what I will call the culture of Bluebook idolatry. You can imagine how it went: Valjean is in prison for improperly italicizing an ellipse; Javert is the nazi editor who relentlessly hounds Valjean for his sloppy bluebooking; to escape Javert’s tyranny, Valjean disavows the U.S. legal academy, moves to Canada, and becomes an interdisciplinary legal studies professor. At this point in the play, just as Hugo’s Valjean tears up his yellow parole ticket, our farcical Valjean tears up a Bluebook.

We had about ten students in the play, and when I suggested at our first (and only) rehearsal that Valjean would destroy a Bluebook, you should have seen their faces. I honestly do not think that proposing to destroy a bona fide religious text would have elicited a stronger reaction. They were aghast; dumbfounded; in terror, awe, and shock. Tear up a Bluebook? HOW COULD YOU?

The ultimate performance went well. We had some terrific singers and what I thought were some decent lines (Fantine, lamenting how her RA had promised to Bluebook all her footnotes but abandoned her on the eve of submission, sings “I dreamed a dream in time gone by / when hope was high and ideas worth writing / I dreamed my piece would place so high / I dreamed my offers would be exciting”). Alas, the audience did not laugh quite like I expected. But when Valjean tears up the Bluebook? Riotous applause. To the students in the audience, it was the skit’s psychological climax.

What is it about this book? Silly me, I thought it was nothing more than an editing guide. But in the contemporary academy it somehow morphs into a powerful and multi-faceted symbol: of success, or oppression, or ennui. We suggest to our students that law review is the pinnacle of law school prestige, and then they find it to be largely administrative work. Is it me, or are edits at even the top law reviews growing increasingly tedious, unreasonable, and utterly detached from the article’s real substance and importance?  I am reminded of Thomas Merton’s account of the ladder we spend our lives climbing, but upon reaching the top realize that we’ve leaned it against the wrong wall. Seems to me that we, as legal educators, should help our students pitch their ladders more meaningfully.

And how did our skit end? Valjean adopts Fantine’s orphaned manuscript, finishes the footnotes and, having come to terms with the legal academy (singing "Who Am I?"), places it in the top 25.

Posted by Andy Spalding on May 25, 2016 at 02:12 PM | Permalink | Comments (2)

Anatomy of an Anti-Corruption Revolution

What does a meaningful anti-corruption revolution look like? I’ve already asserted this month that what’s going on in Brazil is best understood as a success story for anti-corruption reforms and the rule of law, if not for democracy itself. I suppose I should defend that claim.

The story begins about ten years ago, when optimism in Brazil, economically and politically, was at an all-time high. But a series of events would precipitate major change. It began in 2005 with a now-seemingly-miniscule (though at the time, substantial) vote-buying scandal called Mensalao. Brazil then began a long-slow decline into the present recession. In the context of these political and economic turns for the worse, Brazil was chosen to be one of only three countries to host the world’s two most expensive athletic events back-to-back: the FIFA World Cup and Olympic Games (the others being Russia, who is doing so now, and the U.S., back in the 1990s). The last straw was the government’s decision to increase fares on subsidized public transportation. That’s when the widely publicized protests began, which concerned the misuse of public funds.

In this context, Brazil enacted four major statutes. In 2011, it adopted major procurement reforms, and an equivalent of the U.S. Freedom of Information Act. Then in 2013 came the two biggies: the so-called Clean Companies Act, which imposed corporate liability for official bribery, and a RICO-style organized crime bill that created a new obstruction of justice charge. Long story short: these laws, working together, have allowed enforcement authorities to expose and prosecute systemic corruption. In other words, in response to public protests about government corruption, a democratically elected body enacted a series of reforms that are now being used to root out corruption and hold both public and private officials accountable. This, I submit, is precisely how an anti-corruption revolution is supposed to work.

If you want the longer version of this story, see our ebook.

Posted by Andy Spalding on May 25, 2016 at 08:31 AM | Permalink | Comments (1)

Tuesday, May 24, 2016

Trusts, religious paraphenalia, and freedom of the church

I am a week late to this decision from Judge McConnell of the District of Connecticut, resolving a dispute between two congregations over ownership of a pair of historic rimonim (the deocorative bells that adorn a dressed Torah). The opinion spends 40+ pages lovingly tracing the long story of Touro Synagogue and the Jews of Newport, R.I., including the 1790 letter exchange with George Washington and with several divergences into the Iberian Inquisition and differences between Sephardic and Ashkenazi practices. The opinion is a wonderful read as a judicial summary of a piece of American-Jewish history. The central legal issue was the relationship between the current Newport congregation and a congregation in New York that formed in the early 1800s, when most of the Newport Jewish community left for New York.

My question, for those who know such things (looking at you, Rick and Chris Lund) is whether the court successfully avoided any freedom-of-the-church problems. Because the structure of Jewish congregations is not religiously compelled, the questions (what corporations were formed, trust relationships, trustee conduct, existence of a bailment) could be resolved on purely secular grounds. I caught one point in which the court drew an inference (that the rimonim were received at the same time as some torahs, because the items travel together) that is based on some religious idea. But mostly the court seemed able to focus on general legal principles, without touching on any point of obvious Jewish law.

Are there First Amendment problems in this decision? Is this case so different from deciding which of two competing groups is the "real church" arguing over property, the type of cases courts are not permitted to hear?

Posted by Howard Wasserman on May 24, 2016 at 04:54 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Monday, May 23, 2016

Should the IOC Require Host-Nation Anti-Corruption Reforms?

There’s a joke in Olympic law circles: the host-nation organizing committee has 100 lawyers, and 99 of them do IP. The International Olympic Committee cares a lot about protecting its own and its sponsors’ intellectual property; no surprise there. But you may be surprised to hear that the IOC has turned its attention in the last decade or two to a number of issues that generally concern ethics or justice.   In the various legal documents involved in the Olympic Games, you’ll see nods (of varying degrees) to doping, environmental concerns, and even human rights. This is not to say that the IOC places a premium on these issues; far from it. But their importance is at least acknowledged.

Not so with host-nation corruption. It can be said that corruption in international sport has three dimensions. The first is competitive corruption (doping, match-fixing, and the like). The second is corruption within the international governance organization (FIFA, IOC). These two have received enormous attention in the last decade or two, including from the IOC. But there is a third dimension of corruption that the international governance organizations have, to date, largely overlooked: official corruption within the host nation. For more on this, see our ebook.

What if a commitment to adopting meaningful anti-corruption reforms was a criterion for awarding the Games? What if a country could not win the bid without entering into enforceable agreements to reasonably deter its own official corruption? This is not to say that we should only award the Olympic Games to countries that already tend to enforce anti-corruption laws; if we did that, the movement toward awarding bids to developing countries would instantly stall and we’d be hosting the Games in European and North American countries almost every time. But what if a country were required to do what Brazil is now doing, and take appropriate steps to address its own official corruption? This may be an idea whose time has come.

Posted by Andy Spalding on May 23, 2016 at 02:28 PM | Permalink | Comments (0)

Nero's Acquittal

Last week I posted about the odd theory of second degree assault being played out in the Baltimore trial of Edward Nero, one of the six officers charged in the rough ride killing of Freddie Gray.   Today, not surprisingly, given the lack of evidence presented by the prosecution, Nero was acquitted by a judge.  His fellow officer, forced to testify by the prosecution, stated that Nero was not involved in Gray's arrest. Now, police are famous for testifying falsely when it behooves them, with no consequences in civilian trials.  But it's hard to imagine that Miller (the testifying officer) would inculpate himself at the expense of his colleague.  Regardless, the judge had no choice but to acquit Nero, at least on that charge. 

Would it be better if the judge had convicted Nero, not based on evidence, but because the criminal justice system is horribly rigged in favor of police and the privileged? In my opinion, a conviction with no evidence does more to harm accountability for police and especially for political DAs than an acquittal.  But I can certainly see how this might be viewed as one more instance of a white police officer's liberty taking precedence over the life of a young African American man.  That said, the longer view is that all defendants should get the same opportunity to defend themselves against charges brought by overly zealous prosecutors that the police do.  This is also the thrust of a couple of articles I have written.  Holding police accountable when they make unfair illegal arrests is a prosecutor's duty in all cases, but so is prosecuting only cases where evidence is reliable and where a suspect is criminally culpable, both legally and normatively (see Josh Bowers' fantastic article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute).  

On the other hand, the press release put out immediately by the Baltimore FOP undermines any intelligent or nuanced discussion of Nero's criminality by suggesting that he and all the officers charged in Gray's killing are innocents wrongly persecuted by an overly zealous prosecutor and unfair criminal justice system. Nero may not be criminally liable, but that certainly doesn't mean he did "nothing wrong."  Moreover, this tone deaf attitude in the face of personal and cultural grief on the part of over-policed under-served communities, is exactly the kind of attitude that permits police to make illegal arrests every day with no consequence. 

Posted by Kate Levine on May 23, 2016 at 12:49 PM | Permalink | Comments (10)

Veep, S5E5

The show takes place during Thanksgiving weekend, in an episode that has a lot of House-election stuff in the air.

Selina begins making phone calls to whip votes for the coming House election. But the show approaches that election in a way that is, at least on the surface, sloppy--the correct understanding may be in the background, but the details to come out in the way characters discuss the mater.

Details (and spoilers) after the jump.

Continue reading "Veep, S5E5"

Posted by Howard Wasserman on May 23, 2016 at 11:53 AM in Constitutional thoughts, Culture, Howard Wasserman, Television | Permalink | Comments (3)