Sunday, September 23, 2018

The Marvelous Ms. Professor

I have enjoyed my co-guest-blogger’s posts on medical education this month.  It also made me curious about business schools—what are they doing?

Among other things, they have been doing improv to develop students’ listening skills, collaborative behaviors, creative thinking, and confidence.  The classic Chicago-style improv is done using the “yes, and…” technique, by which players build on each other’s improvisation.  Law schools seem to be catching on, with improv seminars recently at Northwestern Law and at my own school.

It’s definitely a fun and creative way to build skills.  Meanwhile, for us faculty, stand up seems a good way to sharpen our skills—although we can’t all be the Marvelous Mrs. Maisel.  Any other fun and creative ways to better oneself in our profession?

Posted by Margaret Ryznar on September 23, 2018 at 03:59 AM | Permalink | Comments (2)

Saturday, September 22, 2018

Kavanaugh and the burden of proof

In The Atllantic, Benjamin Wittes addresses the issues of burden and standard of proof with respect to Brett Kavanaugh, the allegations against him, and his confirmation. A lot of people have been talking about these issues (often under the catchphrase "presumption of innocence") in the abstract, without diving into what they mean or how they apply.

Wittes argues that Kavanaugh bears the burden of persuasion because he wants the factfinder (50 Senators) to do something--confirm him to the Court; he is not entitled to that unless he can affirmatively convince them that he should be on the Court. The burden of persuasion is understood as the risk of non-persuasion--who bears the risk of losing and of not getting something if the factfinder is not persuaded. In other words, what is the status quo, who must change the status quo to prevail, and who loses if the status quo remains the same. If Kavanaugh were being prosecuted for sexual assault or sued by Ford for sexual assault, the burden would be on the state or Ford to change the status quo and show that he did what is alleged. If Kavanaugh was impeached and facing a Senate trial to remove him from the D.C. Circuit, the burden would be on the impeachers to show that he should be removed from the bench because he committed the disqualifying act. In each of those, the status quo is that Kavanaugh is free, not liable, and on the court of appeals. Here, the status quo is that he is not on the Supreme Court, so he bears the burden of showing that he should be, including whatever relevance the incident in 1982 may have to his qualifications.

Wittes also considers the standard of persuasion as the more-interesting question, because there is no agreed-upon or meaningful standard for this proceeding. One possibility is there is none, that the standard is ideological and nothing more. Wittes suggests two standards from Kavanaugh's standpoint--"minimally convincing" (enough to convince the few Republican stragglers to join the already-declared Republicans to confirm him) or "no asterisks," meaning enough evidence that a reasonable person will not doubt Kavanaugh's integrity or fitness for the position. Wittes argues that meeting something somewhere in the middle will not be sufficient for Kavanaugh to not only serve on the the Court, but to serve meaningfully or effectively.

Posted by Howard Wasserman on September 22, 2018 at 05:16 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, September 21, 2018

Something Fun to Try Over the Weekend—LSAT Prep

 

One of the most fun things I have done lately is become a volunteer member of the LSAC Audit Committee which resulted in my being able to attend the LSAC Annual Meeting and be present at Sal Khan’s presentation of his collaboration with LSAC to make high quality LSAT preparation available to all prospective law students(and everyone else) free of cost.  I love Sal Khan and the Khan Academy.  Their materials were lifesaving to me while I was plowing through the statisticsand research methods part of my Ph.D.  Not only is the material clear, it’s actually fun. You can find yourself dipping into subjects from art historyto Differential equations-all presented in manageable chunks with exceptionally clear visuals.

For the LSAT, the Khan Academy program provides individualized diagnostic testing that direct students to practice materials in the areas where they are the weakest.  These practice questions are not just similar to the LSAT, they are provided to Khan by the folks who write LSAT Questions.  And if that’s not enough, it creates a scoring system that makes studying for the LSAT a game and encourages students to put in the time needed to become comfortable with some very odd looking material. It can supplement a commercial program or be used as a stand-alone.

I introduce this material to you not to open up a debate on the value of the LSAT in predicting law school success or even to encourage you to share this information with anyone you know considering taking the LSAT (although they will appreciate it). 

Rather, there is a real opportunity to use these resources for law students who want to sharpen their skills before or during law school.  Of course, this is not using the materials as they were designed—our friends in medicine would call it “off-label”—and the fit may not be perfect.

But students might appreciate knowing that while their LSAT Scores are yesterday’s news, their reading comprehension and logical analysis skills are not immutable.  Using the Khan materials before (or during law schools) could be the equivalent of strength training for swimmers and tennis players.

These skills transcend subject matter.  For example, my Torts students know that the one question I will always ask them about every case is “What facts would have had to be different for the judge to reach a different conclusion?”  In Torts, the issue often involves the extent of the defendant’s duty of care to the plaintiff and the dispositive fact is usually about the relationship between the two—are they passing strangers, doctor/patient?  It is the kind of analysis so embedded in every subject area that any lawyer, law student, or law professor reading this can create their own example from their own area of expertise.

So dive in and have fun.  Make your own decisions about whether these materials would be helpful for your students. And a word before you do—remember these questions are designed for people who have not yet graduated law school.   Most of our students find starting the process of learning the law as initially difficult as we might find learning to compose music, play tennis, solve equations, or paint in oils.

Posted by Jennifer Bard on September 21, 2018 at 11:11 PM | Permalink | Comments (0)

Thursday, September 20, 2018

An infield fly rule for fake fair catches?

Last weekend, North Texas pulled off an amazing trick play, scoring a touchdown on a punt return by having the entire team (and everyone had to be involved) pretend the returner had called for a fair catch, then racing upfield when opposing players ran to the sideline believing the play was over. On Tuesday, there were conflicting reports as to whether the NCAA was considering outlawing the play. This New York Magazine piece by Will Leitch suggests a rule change may be necessary, with arguments sounding in the infield fly rule.

The infield fly rule (and similar rules) is necessary to address situations defined by four elements: Team A acts contrary to ordinary athletic expectations or fails to do what is ordinarily expected; that move produces an extraordinary cost-benefit advantage; Team B is powerless to counter the move in light of the game's rules, practices, and structure; and that imbalance creates a perverse incentive for Team A to try this often. Leitch's piece suggests that this is a situation requiring a limiting rule.

The key is the third element of Team B's powerlessness to counter the play in light of the game's structure. The punting team's counter is obvious--play to the whistle and hit the ball carrier unless you see the fair-catch signal and/or hear the whistle. But Leitch argues that the renewed focus on head injuries and player safety has changed that calculus. Tacklers no longer want to light-up a defenseless ball carrier and likely will draw a penalty for doing so, even if the hit was legal, because it "looks bad" and results in an injury. And it already can be hard for the punt coverage team to see and determine the fair catch signal.  North Texas' coaches essentially exploited that reluctance and that limitation on the tackler.

So while there is a counter, it is one that the tackling team will be unable to utilize without risking penalties on anything that looks close, making not a meaningful counter. Alternatively, if such hits are not going to be called, Team B gets its counter, but it is one the game's rulemakers will not want to encourage. This become a situation that gives one side a cost-benefit advantage (and thus a perverse incentive) and leaves the other powerless to respond, at least without creating other problems in the game's structure.

My first thought after this play was that it was a one-time, not-replicable event, because punt-coverage players now will be instructed to hit the returner unless they hear the whistle on the fair catch. Leitch's piece convinced me otherwise, that the cultural shift away from hitting defenseless players creates a limit on the tackling team and thus a control disparity that requires a limiting rule.

Posted by Howard Wasserman on September 20, 2018 at 11:50 AM in Howard Wasserman, Sports | Permalink | Comments (3)

More than a Home for the Holidays

I’ve been thinking a lot about the tax reform since it passed late last year.  There are a couple of things I want to say, one of which is to highlight homeownership as a savings mechanism—homeownership begins with a down payment and then continues with monthly payments for decades.  This point has not been made much, although I think it’s an important reason to have tax support for homeownership, such as the mortgage interest deduction and the SALT deduction.

Homeownership might as well be a 401(k), except that people do not ignore it—its best feature and the very reason tax policy undercutting it poses a problem.  In fact, more people own homes than save significantly for retirement, probably because they cannot afford to do both.  And, just as we incentivize retirement saving in the tax code, so should we incentivize homeownership if that is people’s preferred savings method.

I make this point in my forthcoming U. of Miami Law Review article, along with the full argument for not curtailing tax homeownership benefits too severely.  You can read it here if interested.

Posted by Margaret Ryznar on September 20, 2018 at 04:54 AM | Permalink | Comments (4)

Tuesday, September 18, 2018

Executives, Golden Parachutes & #MeToo - great op ed by Professor Rachel Arnow-Richman

 My terrific friend and collaborator Rachel Arnow-Richman (Denver Law) has an op-ed today in the San Francisco Chronicle about CBS's ousted CEO Moonves and the contractual obligations of corporation toward their highest executives in the case of firing for cause, in the midst of severe sexual harassment allegations:

If #MeToo is to have lasting impact, companies must consistently take a hard line against high-level harassment, not just when it aligns with their other interests. This means abandoning contracts that insulate executives from accountability in favor of those that preserve employers’ ability to respond swiftly and nimbly to alleged violations of law. 

Posted by Orly Lobel on September 18, 2018 at 09:07 PM | Permalink | Comments (3)

When in France, Do As the French Do…and When Not in France, Still Do As the French?

France has had two big innovations in family law, and I look forward to see if they spread across the world as quickly as a hot new Chanel bag.    

First, in France, movements to grant rights for same-sex couples culminated in 1999 in a form of civil partnership called PACS (civil pact of solidarity), which aimed to protect unmarried cohabitants.  To gain political support for the bill, opposite-sex cohabitants were also included as its beneficiaries.  When the French Parliament adopted PACS, approximately 42% of couples who entered into PACS agreements were opposite-sex.  Today, over 90% of PACS agreements are between opposite-sex couples.   The number of registered opposite-sex couples under PACS has been continuously increasing, and there are now two PACS for every three marriages.  After the introduction of same-sex marriage and skyrocketing opposite-sex cohabitation rate, PACS is replacing marriage.  In the United States, cohabitation is also increasing and marriage is decreasing, but there is no middle-ground like PACS.

Also in France in 2016, non-judicial divorce was introduced.  In other words, spouses in France can now divorce by contract after hiring their own attorneys, which is then registered and official—no courts involved.  It has to be consensual, and children of a certain age can halt the non-judicial process, which then reverts to the court for judicial protection and oversight.  Non-judicial divorce is now not only an option in France, but is common.  In the U.S., American courts have been involved in every divorce case since the earliest cases of divorce.  While mediation and summary dissolution have been on the rise, American courts still have to at least rubber stamp agreements.  Recently, Minnesota legislators introduced legislation in 2015 and 2017 proposing an administrative divorce option, but it never became law.  If another state decides to further liberalize its divorce law, France certainly provides a compelling model to simplify the process while protecting the parties. 

I describe the French process more in my forthcoming Seattle article here, and I described PACS in my recent article here.  I think both are huge developments in recent family law, and I wonder if they will be transplanted to other countries, including the U.S.

Posted by Margaret Ryznar on September 18, 2018 at 05:14 PM | Permalink | Comments (5)

Monday, September 17, 2018

We are Not Alone

We in law schools are not alone  in our efforts to more effectively bridge the gap between professional school and the actual practice of the profession.  It is the vocabulary of our time—perhaps spurred by the general pace of life in an age of instant and constant communication.  Business, Pharmacy, Veterinary, Architecture, Speech Pathology & Audiology , Osteopathy, and Medical Schools are all proclaiming their progress in helping their students be “practice ready” so that they can “hit the ground running.” In the health sciences, the commitment to readiness for practice has resulted in a deep commitment to interprofessional training that reflects the realities today’s workplace.

Yet whether or not we should be doing this (let alone how) is still a matter of considerable debate that, unfortunately, has become wrapped in a false and unnecessary dichotomy between the scholarly  and the practical.  I hope that looking at how other professional schools prepare their students for post-graduation work life can help us get beyond a framing of this discussion that creates unnecessary stress and discord.  Study of the theoretical framework or historical development of a field is essential for all professionals so they can develop a deep understanding of the “why” as well as the “how.” Equally, there can be no effective skills training without substance.  The data on learning is in—everyone learns more in context than in a vacuum. (lots of great resources posted by Yale).

Perhaps some of the tension comes because one of the early justifications for increased emphasis on practice was to make students more attractive to the big law firms after the financial crash.  That never seemed likely and quickly revealed itself to be a myth. As Dr. Lauren A. Rivera explains in this article and in her book Pedigree: How Elite Students Get Elite Jobs the realities of large firm (law included) hiring are rooted in class and culture. And speaking of class and culture, another good reason for doing this is to level the playing field and send all our students with the tools they need to succeed in an environment that still very much skews in the direction of country clubs and old school ties.   

Nor did it seem plausible that with the right combination of courses newly minted lawyers without access to start-up funds, financial support, or a pre-existing client base could become self-sufficient solo practitioners   

But for the next two posts, I will talk about accessible resources for helping our students succeed in a job market that starts almost as soon as they arrive   Outside the big law firms, there is an increasing emphasis on expecting that students will have substantial exposure to work settings in clerkships, clinics, and externships before they go on the market for their full-time job. (This is true in undergraduate job searches as well).  Some of these placements can result in direct hires, thus turning  into an extended interview, but even placements that cannot offer permanent employment still have considerable value by their ability to offer informed, positive references. 

So, what can we do to prepare students to be successful in externships, summer jobs, and later on the job market?   The laws of physics prevent us from instilling judgement or experience in ways that would make our students appreciably different from graduates of the past.  [This is why law students who have had prior work experience tend to advance more quickly once they hit the market—they don’t know any more law than their classmates, but the maturity they bring with them in the world of work makes a big difference]. But  there are two major categories of things we can do to help.   

The first, which I discuss today,  includes the kind of training that  business schools have been offering for years: how to make a successful transition from student to employee/professional.   Many universities have entire career service departments that devote considerable type to developing very helpful information about things like dress and basic expectations of the workplace, that our students may have missed because they weren’t directly entering the workforce from college. The second is more specific to law and many schools are already far ahead in doing the kinds of things that students need to make the connection between what they learn in class and what lawyers do in practice.  More on that later.

Category 1--making the transition

In addition to the general information available at most universities, there are already terrific law-specific resources.

Nancy Rapport and Jeffrey D. Van Neil have a book called “Law Firm Job Survival Manual: From First Interview to Partnership” that should be required reading before a student so much as shadows a practicing lawyer.  Last year I highlighted Randolph Kiser’s Soft Skills for the Effective Lawyer. Calvin Gladney calls these Wrap-Around Skills.  Our friends in the profession of Law Librarians have been way ahead on gathering information helpful to the new lawyer—see Harvard and American for examples, but look at your own library's website too. Also the ABA Young Lawyers Division, the National Association of Bar Executives, and indeed local bar associations are really shining in their efforts to be of assistance to new lawyers.  See DC, and Ohio as examples.  Finally, it is at best unfair to our students not to prepare them for the diverse world they are about to enter.  A good place to start is an ABA publicationWhat if I Say the Wrong Thing? 25 Habits for Culturally Effective People (ebook) by Verna A. Myers which has practical and helpful ideas specific to lawyers.

This kind of readiness training is also something our alumni and employers would be delighted to help us with—for example I once organized a boot-camp for first years before their first externships experiences that was primarily staffed by the local bar(both recent graduates and seasoned supervisors) as well as  by the heroic career services folks who got the calls when things went wrong.  

Next post:  Category 2- Integrating the practice of law into the existing curriculum (not just adding skills courses) so as to encourage the application of legal knowledge to legal practice.  Hint--we can find ideas in 1) the work medical schools have done in integrating their curriculums without reducing rigor or the amount of material each class covers as well as 2) in the creative programs developed by some of our most forward thinking colleagues.

Posted by Jennifer Bard on September 17, 2018 at 03:21 PM | Permalink | Comments (0)

FIU COL leads Florida Bar passage . . . again

A bit of shameless school self-promotion. I am happy to say that FIU College of Law again led Florida law schools in bar passage, at 88.1 %. By my count, this is the sixth time in the past seventh Bar administrations that we have led the state (on the seventh, we finished second, missing by one). We remain a well-kept secret in legal ed.

Posted by Howard Wasserman on September 17, 2018 at 02:51 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Reconstructed Ranking for Law Journals Using Adjusted Impact Factor

I would like to thank everyone for their comments and especially USForeignProf who added an important perspective. The main  motivation of our study was to expose the risks of blindly relying on rankings as a method for evaluating research. While we do not have data about the impact of metrics on the evaluation of research in law, we suspect that law schools will not be insulated from what has become a significant global trend. Our study highlights two unique features of the law review universe, which suggest that global rankings such as the Web of Science JCR may produce an inaccurate image of the law journals web: (1) the fact that the average number of references in SE articles is much higher than in articles published in PR journals; and (2) the fact that citations are not equally distributed across categories. In our study we tried to quantitatively capture the effect of these two features (what USForeignProf has characterized as the dilution of foreign journals metrics) on the ranking structure.

To demonstrate the dilution effect on the Web of Science ranking, we examined what happens to the impact factor of the journals in our sample, if we reduce the “value” of a citation received from SE articles from 1 to 0.4. We used the value of 0.4 because the mean number of references in SE journals is about 2.5 times greater than the mean number of references in PR journals (in our sample). For the sake of the experiment, we defined an adjusted impact factor, in which a citation from the SE journals in our sample counts as 0.4, and a citation from all other journals as 1. I want to emphasize that we do not argue that this adjusted ranking constitutes in itself a satisfactory solution to the ranking dilemma. We think that a better solution would also need to take into account other dimensions such as journal prestige (measured by some variant of the page-rank algorithm) and possibly also a revision of the composition of the journals sample on which the WOS ranking is based (which is currently determined - for all disciplines - by WOS stuff). However, this exercise is useful in demonstrating numerically the dilution effect. The change in the ranking is striking: PR journals are now positioned consistently higher. The mean reduction in impact factor for PR journals is 8.3%, compared with 46.1% for SE journals.  The table below reports the results of our analysis for the top 50 journals in our 90 journals sample (data for 2015) (the complete adjusted ranking can be found here). The order reflects the adjusted impact factor (the number in parenthesis reflects the un-adjusted ranking). In my next post I will offer some reflections on potential policy responses.

  1. Regulation and Governance (10)
  2. Law and Human Behavior (13)
  3. Stanford Law Review (1)
  4. Harvard Law Review (2)
  5. Psychology, Public Policy, and Law (18)
  6. Yale Law Journal (3)
  7. Texas Law Review (4)
  8. Common Market Law Review (22)
  9. Columbia Law Review (5)
  10.  The Journal of Law, Medicine & Ethics (29)
  11. University of Pennsylvania Law Review (8)
  12. Journal of Legal Studies (15)
  13. Harvard Environmental Law Review (14)
  14. California Law Review (6)
  15. American Journal of International Law (19)
  16. Cornell Law Review (7)
  17. Michigan Law Review (9)
  18. UCLA Law Review (12)
  19. American Journal of Law & Medicine (36)
  20. Georgetown Law Journal (11)
  21. International Environmental Agreements-Politics Law and Economics (41)
  22. American Journal of Comparative Law (25)
  23. Journal of Law, Economics, & Organization (37)
  24. Journal of Law and Economics (35)
  25. International Journal of Transitional Justice (42)
  26. Law & Policy (44)
  27. Harvard International Law Journal (26)
  28. Chinese Journal of International Law (47)
  29. Journal of International Economic Law (48)
  30. Law and Society Review (46)
  31. Antitrust Law Journal (27)
  32. Indiana Law Journal (24)
  33. Behavioral Sciences & the Law (51)
  34. Virginia Law Review (16)
  35. New York University Law Review (17)
  36. Journal of Empirical Legal Studies (39)
  37. Leiden Journal of International Law (54)
  38. University of Chicago Law Review (20)
  39. Social & Legal Studies (58)
  40. World Trade Review (61)
  41. Vanderbilt Law Review (23)
  42. Harvard Civil Rights-Civil Liberties Law Review (32)
  43. Modern Law Review (63)
  44. Annual Review of Law and Social Science (49)
  45. European Constitutional Law Review (64)
  46. Oxford Journal of Legal Studies (59)
  47. Journal of Environmental Law (65)
  48. European Journal of International Law (57)
  49. Law & Social Inquiry (62)
  50. George Washington Law Review (31)

Posted by Oren Perez on September 17, 2018 at 02:53 AM in Article Spotlight, Howard Wasserman, Information and Technology, Law Review Review, Peer-Reviewed Journals | Permalink | Comments (13)

Sunday, September 16, 2018

Australian politicians as bad as U.S. politicians . . .

in their reaction to a nine-year-old girl refusing to stand and sing the Australian national anthem (as a show of support for Australia's indigenous people). (H/T: A student looking ahead to our Law Review Symposium on Barnette's 75th anniversary).

The CNN story says "the school had tried to be respectful of her wishes by providing alternatives, such as not singing along." There remains a nice question as to precisely what Barnette protects as a First Amendment matter (which obviously has nothing to do with the Australia story. Is it all participation in patriotic rituals or only having to recite the words while otherwise participating in the ritual. That is, could the proposed alternative (stand at attention, don't speak) be imposed on a student?

Posted by Howard Wasserman on September 16, 2018 at 08:28 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Guest Post: Would Appointment of Judge Kavanaugh to the Supreme Court be Constitutional?

If the Senate votes Judge Brett Kavanaugh onto the Supreme Court, it seems pretty clear that he will solidify a staunchly conservative majority on the Court. This new majority will stake out firmly conservative positions on a range of critical issues, including voting rights, reproductive rights, and corporate rights. With a Justice Kavanaugh on board, the Supreme Court will bring a strong ideological bias to its decision making. While that is highly controversial, it’s one of the features of our judicial appointment process.

Or is it? We ought to consider the constitutional implications of ideological bias on the Supreme Court. In particular, principles of due process and the framers’ original intent provide good reason to think that neither a conservative nor liberal majority should be able to impose its views on the Court.  

The Due Process Clause promises litigants that they will receive an impartial hearing before a neutral court. And a neutral court decides cases without any personal, political, or other bias. Once Judge Kavanaugh joins the Supreme Court, it won’t be a neutral court. Any party promoting a liberal viewpoint before the Justices would not be able to count on a fair shot at prevailing.

Because it is unfair for litigants to have their cases decided by an ideologically-biased court, other countries and some U.S. states have designed their highest courts so decisions reflect a broad range of ideological views. Arguably, due process requires something similar for the Supreme Court.

Continue reading "Guest Post: Would Appointment of Judge Kavanaugh to the Supreme Court be Constitutional?"

Posted by David Orentlicher on September 16, 2018 at 02:41 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (22)

Friday, September 14, 2018

The Deuce '77

I just watched the season two premiere of The Deuce, which time-jumps to 1977 and depicts the late-'70s New York City of Ed Koch that I remember as a I kid. After the jump, one thought and one question:

Continue reading "The Deuce '77"

Posted by Howard Wasserman on September 14, 2018 at 03:27 PM in Culture, Howard Wasserman, Television | Permalink | Comments (0)

Serena and the umpire

I am a week late to the conversation about the blowup between Serena Williams and the chair umpire during the US Open women's final. I do believe there is a race-and-gender piece to this, although it is not as simple or direct as some make it out to be. Kevin Drum has a good blow-by-blow of events and I agree with his descriptions and conclusions. I repeat some of his points with additional commentary below.

Continue reading "Serena and the umpire"

Posted by Howard Wasserman on September 14, 2018 at 10:52 AM in Howard Wasserman, Sports | Permalink | Comments (15)

Thursday, September 13, 2018

Go Fish

We are now teaching students with an attention span shorter than that of a goldfish.  We ourselves now have an attention span shorter than a goldfish.  Since 2000, the human attention span decreased 33%, from 12 seconds to 8 seconds.  It is no coincide that the first smartphones appeared in the 2000’s.  So, how do we motivate students to learn despite shortening attention spans?

This is what I am working on right now for my next article, Motivating Law Students, with the help of the empirical data from student focus groups. 

Right now, I am knee-deep in the literature.  Daniel H. Pink is right in Drive to say that motivation is complicated.  There are two types of motivation: intrinsic motivation (curiosity, engagement, etc.) and extrinsic motivation (grades, bar passage, jobs, etc.).  It turns out that intrinsic motivation is far more effective.  But, intrinsic motivation is also more finicky—the conditions have to be just right for students to feel intrinsically motivated. 

There are ways to build courses to bring out the intrinsic motivation in students.  And, I am intent on finding as many of them as possible.  I have some early ideas that are in line with the literature, which include feedback on assessments and autonomy, but I welcome thoughts in the comments.  

Posted by Margaret Ryznar on September 13, 2018 at 06:55 PM | Permalink | Comments (8)

Mark up of Injunction Authority Clarification Act

The House Judiciary Committee marked-up the Injunction Authority Clarification Act, the bill that would eliminate universal injunctions. No word on what happened, although it did start a conversation on the CivProProf Listserv.

In addition, Jeff Sessions announced litigation guidelines for DOJ attorneys in litigating the scope of injunctions. Interestingly, Sessions' statement shows he still does not understood the issue fully, because he twice rails about "single (unelected) district judges" issuing these injunctions. But the problem of universal injunctions improperly protecting non-parties has nothing to do with the number of judges on the case or the level of court. SCOTUS cannot issue (or affirm) universal injunctions any more than a district court can enter universal injunctions. SCOTUS only can affirm a particularized injunction and thereby prohibit enforcement of the challenged law against the named plaintiff, on threat of contempt; the judgment and injunction go no further. SCOTUS's decision may halt future enforcement against non-parties, but purely as a matter of binding precedent, not as a matter of the injunction itself.

Posted by Howard Wasserman on September 13, 2018 at 04:56 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Imagine if There Were No Grades

 This is a mini post without the usual links because I am still in New York tapping on my phone  in coffee shops.   I will probably clean this up and re-post with more links when I get back.

 But an article about business schools and grades in today’s Inside Higher Education  https://www.insidehighered.com/news/2018/09/13/cornell-mba-students-vote-grade-nondisclosure-recruitment?utm_source=Inside+Higher+Ed&utm_campaign=92a239a926-DNU_COPY_01&utm_medium=email&utm_term=0_1fcbc04421-92a239a926-197442921&mc_cid=92a239a926&mc_eid=8efa9a3c62spurs me to move forward with something that I will be writing more about later in the month, the effects of grades on learning.

Continue reading "Imagine if There Were No Grades"

Posted by Jennifer Bard on September 13, 2018 at 11:19 AM | Permalink | Comments (0)

Yet evading review

Mootness can be overcome* if the claim is capable of repetition yet evading review. One important limitation on this doctrine, that often gets confused or overlooked, is that the harm must be reasonably likely to recur as to this plaintiff, not generally and not as to someone else.

[*] I do not like to speak of it as an "exception" to mootness because I subscribe to Scalia's argument that a case that is C/R/E/R is simply not moot.

The Eighth Circuit held that a an action by a Democratic elector challenging Minnesota's faithless-elector law was not C/R/E/R. The court held that it did not evade review because the plaintiff waited too long to file suit, thereby shortening the time period. Rather than suing on November 8 (right after the election) or November 29 (when the results were certified), he waited until December 19, the day his vote (for Bernie Sanders) was discounted and he was removed as an elector. That left only 2 1/2 weeks to litigate, whereas a lawsuit on December 8 would have allowed almost two months for expedited litigation in both the trial court and court of appeals.

Continue reading "Yet evading review"

Posted by Howard Wasserman on September 13, 2018 at 07:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)