Saturday, November 11, 2017

Equality Law Scholars’ Forum

Equality Law Scholars’ Forum

Friday, November 17 – Saturday, November 18, 2017

The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across equality law. 

Continue reading "Equality Law Scholars’ Forum"

Posted by Howard Wasserman on November 11, 2017 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Forget Fake News, Now There’s Fake Families

Two major newspapers have recently run two separate articles about fake families.

First, the New York Times ran this article about fake weddings as a way to have dance parties.  Apparently, Argentinians love a good wedding, but no one wants to marry anymore.  So, there’s now a business that exists to throw fake weddings, and it’s expanding to Chile, Mexico and the United States.

Then, the Atlantic ran this article about a business in Japan that allows single moms to hire a man to play the role of their child’s father.

To me, it’s striking how people are still often attached to family law structures and roles, even when they have given up on marriage.  But, this might be in line with the family law theories saying that people idolize marriage more than ever—to the point that they are delaying marriage because reality cannot live up to their expectations.  If this is true, I think coming up with the antidote will be difficult.

 

Posted by Margaret Ryznar on November 11, 2017 at 05:10 AM | Permalink | Comments (0)

Friday, November 10, 2017

Procedural posture in First Amendment cases (Updated)

Update: Note the clarification below, as I was not precise enough. The questioner was asking about cases in which a preliminary injunction was sought and denied. In White (and one case I thought of, Simon & Schuster), the plaintiff did not move for a preliminary injunction. Instead, the parties went straight to cross-motions for summary judgment on permanent injunctive relief.

A question was asked of me: Can we think of significant First Amendment cases in which the lower courts denied a preliminary injunction barring enforcement of a law, then SCOTUS granted cert., reversed, and held that the challenged law is not enforceable?

The only one I could come up with off the top of my head is Steffel v. Thompson. And there the lower courts denied relief on standing and Younger grounds, never reaching the First Amendment merits.

Any cases that fit this description, where the lower courts declared the law constitutionally valid and declined to enjoin, then SCOTUS granted cert to reverse?

Posted by Howard Wasserman on November 10, 2017 at 12:07 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (3)

Thursday, November 09, 2017

The overwhelming effect of stays pending appeal

The Second Circuit denied a stay pending appeal of the denial of an injunction barring suspension of NFL running back Ezekiel Elliott. The court referred to it as an "injunction pending appeal," which is wrong and the improper terminology makes the media reporting on this more confusing than usual.

Tracing the history of this case is a Fed Courts or Remedies problem all its own: 1) Elliott was suspended for six games and an arbitrator upheld the suspension; 2) a judge in the Eastern District of Texas issued a preliminary injunction barring enforcement of the suspension (allowing Elliott to play); 3) the Fifth Circuit reversed, holding that the district court lacked jurisdiction, grounds that were arguably incorrect, although the result was probably right (barring Elliott from playing); 4) the union and player filed suit in the Southern District of New York; 5) a district judge granted a TRO (allowing Elliott to play); 6) the same judge refused to grant a preliminary injunction (barring Elliott from playing); 7) the Second Circuit granted a temporary stay of the denial of the preliminary injunction (allowing Elliott to play) pending fuller consideration of the motion to stay; 8) the Second Circuit today denied a full stay pending appeal, allowing the judgment denying the preliminary injunction to go into effect, meaning the suspension goes into effect and Elliott will not be able to play on Sunday (unless SCOTUS gets involved).

Even more than in the marriage-equality litigation, the stay question dictates the result in these cases. Although the Second Circuit granted expedited appeal, it is not clear that the case will be resolved before Elliott has missed six games. The question is the weight the likelihood-of-success prong bears in these cases--it is hard to overturn an arbitrator's decision, so Elliott was not likely to succeed in having the denial of the injunction reversed. And that may have convinced the court of appeals there was no irreparable harm in having the suspension take effect.

Posted by Howard Wasserman on November 9, 2017 at 05:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Alphabet Soup for the Retired Soul

Lawmakers recently decided that making tax changes to 401(k) and other retirement options was off the table, determining it to be political suicide.

I wholeheartedly agree, but I’m not sure why.  Our attachment to these tax incentives for retirement accounts is puzzling when we do not take full advantage of them, whether it’s because of misguided optimism or an inability to save due to economic factors such as low wage growth.  Or, it could be the preference for instant gratification, which explains why people are more intent on saving for their vacations than retirement.  As a result, almost half of all working-age families have no retirement account savings, and the median for families with retirement savings was $60k.

Yet, saving has never been as important as it is today.  Social security funds will run dry by 2034.  Pensions are a dinosaur of the past.  Life expectancy is increasing.  

So, that explains why we are mentally attached to our 401(k)’s and Roth IRA’s. 

But, to make saving a reality, we may need even more tax incentives than the current ones (how about a universal savings account?), and maybe some good old-fashioned Thaler/Sunstein nudges to boot. 

Thus, while it's a feel-good story that tax incentives for retirement saving are here to stay, wouldn't it be an even more feel-good story if we all used them more?

Posted by Margaret Ryznar on November 9, 2017 at 05:15 AM | Permalink | Comments (6)

Wednesday, November 08, 2017

More jurisdictionality from SCOTUS

My opinion analysis for Hamer v. NHSC is up on SCOTUSBlog. As I predicted, the Court unanimously (through Justice Ginsburg, who cares most deeply about these issues) held that FRAP 4(a)(5)(C)'s 30-day limit on extensions to file notices of appeal was not jurisdictional, then punted issues of waiver, forfeiture, and equitable exception to the Seventh Circuit for initial consideration. A few additional thoughts.

Despite mentioning it at argument, the Court did not mention or cite Scott Dodson's arguments that the rule is jurisdictional because it allocates cases between courts, but the label matters less than the consequences (waiver, forfeiture, equitable exception, etc.) that a rulemaker attaches to the rule. Jurisdictional rules are mandatory only if Congress makes them mandatory; non-jurisdictional rules can be mandatory if Congress makes them mandatory. The Court did speak of timing rules "governing the transfer of adjudicatory authority from one Article III court to another," which smacks of the allocation concept that Scott uses. But the Court could not move past the label above the effects of the rule (which are not dictated by the label).

The "clear and easy" rule of decision the Court announced is that "If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category." This does not mention the Arbaugh rule that a rule is jurisdictional only if Congress speaks in jurisdictional terms. But the synthesis is that Congress can speak in jurisdictional terms, while the Court under the REA never can speak in jurisdictional terms.

In an email, Scott identifies some problems and open questions from describing the issue as the timing for transferring adjudicatory authority from one court to another. This would make timing limits in transfer-of-venue statutes or statutes governing the time for filing cert. petitions jurisdictional. Another question is whether the same rule applies to transfers of authority from state court to federal court, which would make timing requirements for removal and cert. petitions from state courts jurisdiction. Or it would mean that the time for filing a petition from federal court would be jurisdictional, while the time for filing a petition from state court might not be. Scott argues that these open questions show that the rule is not so "clear and easy."

Posted by Howard Wasserman on November 8, 2017 at 08:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, November 07, 2017

The Day Forbes Topples a Bogus Billionaire Cabinet Secretary?

In what may presage future developments, Forbes has dropped a bombshell of a story about how Wilbur Ross used "fake numbers" to "generate real assets."  In essence, Ross duped a Forbes reporter years ago into reporting the assets of a fund he managed as his personal assets.  According to Forbes, he kept adding to his fictitious wealth over time.  Although he recently contended to be worth about 3.7 billion, Forbes now pegs the actual number as closer to $700 million.

False beliefs about his wealth led to real returns.  Aided by the cachet and celebrity that came from being identified as a billionaire, Ross raised even more money for other funds.  The head of an Oregon pension plan described how Ross's asserted wealth led him to outsize expectations about Ross's competence:

Five other former employees add a more tangible reason: The more money Ross appeared to be worth, the more money investors seemed willing to give him. "Really, for us, it was a bet on him, " says Sam Green, who helped put $300 million into Ross' funds on behalf of the Oregon Public Employees Retirement Fund, citing his personal wealth as one factor. "I don't know of any better indicator of future success than having been successful in the past." Ross had seemed to figure out how to make fake numbers generate real assets.

In a normal administration, press reports revealing a history of sustained falsehoods would lead to the immediate resignation or firing of a cabinet secretary.  

Posted by Benjamin P. Edwards on November 7, 2017 at 04:56 PM | Permalink | Comments (7)

Alimony--More Important in Family Law than Tax

The House tax reform bill denies any tax treatment to alimony payments, like property division upon divorce and child support.  Currently, alimony is an above-the-line deduction to the payor per §215.  However, alimony was intended to be more revenue-neutral, so the flip side is that alimony is includable as gross income to the recipient per §71.    

These tax rules on alimony have made federal income tax planning an important aspect of matrimonial practice for decades.  In particular, they incentivize the higher-income spouse to agree to pay alimony in a time when state legislators and courts are chipping away at the alimony obligation.

Despite its high impact in family law, the current tax treatment of alimony has only a small fiscal effect.  Indeed, denying the current tax treatment to alimony payments would increase tax revenues by under $1 billion per year.  However, some of this money can be recovered by simply better enforcing §71.   

While alimony payors often take a deduction, payees do not always include alimony in their gross income.  The Treasury Inspector General for Tax Administration (TIGTA) found that 47% of 567,887 tax returns filed in 2010 with an alimony deduction had either no corresponding alimony income reported by recipient spouse, or the amount of alimony income reported did not match the deduction taken.  This meant $1.7 billion in unreported taxes over 5 years.  TIGTA had recommended that the IRS send out warning letters to taxpayers alerting them to potential alimony errors. 

Thus, changing the current tax treatment of alimony while forgetting the family law context results in the unintended consequence of reducing alimony transfers.  If the goal is to guard the public fisc, enforcement of §71 is a better approach than denying tax treatment to alimony.

Posted by Margaret Ryznar on November 7, 2017 at 03:34 PM | Permalink | Comments (2)

Harvard Law School Program on Corporate Governance Fellowship Announcement

From the Harvard Law School Program on Corporate Governance and Financial Regulation: 

The Harvard Law School Program on Corporate Governance and Financial Regulation is pleased to announce the availability of positions of Post-Graduate Academic Fellows in the areas of corporate governance and law and finance. Qualified candidates who are interested in working with the Program as Post-Graduate Academic Fellows may apply at any time and the start date is flexible.

Candidates should be interested in spending two to three years at Harvard Law School (longer periods may be possible). Candidates should have a J.D., LL.M., or S.J.D. from a U.S. law school, or a Ph.D. in economics, finance, or related areas by the time they commence their fellowship. Candidates still pursuing an S.J.D. or Ph.D. are eligible so long as they will have completed their program’s coursework requirements by the time they start. During the term of their appointment, Post-Graduate Academic Fellows work on research and corporate governance activities of the Program, depending on their skills, interests, and Program needs. Fellows may also work on their own research and publishing in preparation for a career in academia or policy research. Former Fellows of the Program now teach in leading law schools in the U.S. and abroad.

Interested candidates should submit a CV, transcripts, writing sample, list of references, and cover letter to the coordinator of the Program, Ms. Jordan Figueroa, at coordinator@corpgov.law.harvard.edu. The cover letter should describe the candidate’s experience, reasons for seeking the position, career plans, and the kinds of projects and activities in which he or she would like to be involved at the Program. The position includes Harvard University benefits and a competitive fellowship salary.

Posted by Sarah Lawsky on November 7, 2017 at 10:46 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Monday, November 06, 2017

Law School Hiring, 2017-2018, Reminder

Recall that you can post information about interviews, callbacks, etc. on the spreadsheet.

For general questions, comments, or discussion about the teaching market, see A Clearinghouse for Questions. Here is a link to a late-ish page of comments on that thread. (I can't put a link that auto-refers to the last page of comments--the trick I was using no longer works. If you know a way to do this, please email me.)

Posted by Sarah Lawsky on November 6, 2017 at 10:43 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Sunday, November 05, 2017

Happy Meat Market

I hope everyone had a decently pleasant experience at the meat market this weekend--and that some great matches were made.  I remember it like it was just yesterday.  So, I can confirm that McSweeney's is right (and has great comic timing)--when they ran Academic Job Market or Terminal Illness? just a few days ago.

The gems include:

1. “I understand if you don’t want to talk about it.”

2. “Are you ready to think about alternatives?”

3. “You’ll land on your feet, I’m sure of it.”

4. “Have you tried praying?”

 

Read the rest here.

 

Posted by Margaret Ryznar on November 5, 2017 at 06:16 AM | Permalink | Comments (0)

Saturday, November 04, 2017

Are The Bangles no longer welcome at Reed College, either?

Read the intro. Whatever else is happening, this demonstrates a point that came out in the comments to this post: The level of offense and the level of evil that protesters see in objectionable speech is beyond what we saw previously, which explains the more-intense reactions and confrontations between speech and counter-speech.

Posted by Howard Wasserman on November 4, 2017 at 05:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Friday, November 03, 2017

Am I Out of A Job?

Yesterday, lawmakers promised that after their tax reform, you could do your tax returns on a postcard.   

I teach a huge 4-credit federal income tax course every year—should I reduce the course to 1-credit?  Or, should I still teach it in 4-credits, but show movies to fill class time?  I wouldn’t mind seeing La La Land again.  Haven’t seen It yet.  Maybe Victoria and Abdul.

However, I’m not going to take your movie suggestions yet.  The House bill is already filled with enough compromises that I don’t foresee much simplification.  And, the compromises are just starting.

The AARP is already blasting the decision to do away with the medical expense deduction.  The powerful home builders and realtors are upset about the cap on the mortgage interest deduction and the $10,000 limit on the deductibility of property taxes.  The most populous states are angry about the non-deductibility of state income taxes.

Invariably, the tax code picks winners and losers.  But, I don’t expect to be on the losing side, put out of a job because of the simplicity of the tax code.  At least, not quite yet.  And later, there's tenure.  

Posted by Margaret Ryznar on November 3, 2017 at 02:39 AM | Permalink | Comments (4)

Thursday, November 02, 2017

You Don't Own Me

I am delighted to announce that my new book You Don’t Own Me (Norton) is coming out in two weeks. It tells the true story of cutthroat competition and innovation in the toy industry, with the twists and turns of a thriller, including colorful personalities, egos, and opens windows to fundamental questions about law and ethics, parenting and childhood, consumer markets and cultural icons, copyright and creativity, race and feminism... 

You Don’t Own Me has been getting advanced praise from Publisher’s Weekly (“impressive”, "thoroughly researched”, “entertaining"), Kirkus Reviews ("crisp narrative", "aggressively researched", "dizzying" drama) Booklist (“outstanding”) and more ( “sparkling prose”, "thrill ride", "amazing story and great read", "Colorful and dramatic. ...Orly Lobel masterfully draws us in", “Elle Woods would eat this story up”, “gripping”; “A thrilling page-turner. Orly Lobel delivers the impossible. A fast-moving, fun book about marketing, litigation and the culture we create.”)

I’d love for you to read it ! 

Posted by Orly Lobel on November 2, 2017 at 06:21 PM | Permalink | Comments (9)

DC v. Wesby and Fourth Amendment Perspective

Last month, the Supreme Court heard argument in DC v. Wesby, the justices’ latest case on Fourth Amendment civil suits for damages. This time, the facts involve the arrest of twenty-one people who were attending what even their attorneys call a “licentious” house party. Wesby draws into sharp relief the role of perspective in Fourth Amendment litigation. As Justice Kagan noted during oral argument, the appropriate legal rule seems to change depending on whether we adopt the perspective of the arresting officers or the party-going arrestees.

In a forthcoming paper entitled “Fourth Amendment Fairness” (draft available here), I argue for a perspectival shift in Fourth Amendment doctrine that is consistent with the line of reasoning that Kagan and other justices explored in the Wesby argument. The paper provides a "contractualist" account of Fourth Amendment fairness in general; but in this post, I’ll focus on the perspectival issues raised in Wesby, without all the philosophical trappings.

Continue reading "DC v. Wesby and Fourth Amendment Perspective"

Posted by Richard M. Re on November 2, 2017 at 12:19 PM | Permalink | Comments (20)

CFP: SEALS Works-in-Progress

Announcement Here. Lou Virelli (Stetson) organizes these and they are great mini (3-4 people) workshops.

Posted by Howard Wasserman on November 2, 2017 at 10:20 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, November 01, 2017

Greetings

I’m happy to be returning as a PrawfsBlawg guest this month.  I will be blogging on areas in which I write and teach at IU McKinney—tax, trusts & estates, and family law—and on general issues of interest to colleagues.  Looking forward to it,

Margaret   

Posted by Margaret Ryznar on November 1, 2017 at 06:42 PM | Permalink | Comments (0)

Chemerinsky and Gillman on disruption as free speech

Erwin Chemerinsky and Howard Gillman (Chancellor at UC-Irvine) have a piece in the Chronicle of Higher Education discussing when and if disruption of one speaker constitutes free speech by the counter-speaker. The piece captures a lot of what I have been thinking and trying to get at in my posts on the subject. I like the argument and it works as a jumping-off point.

They argue that in an open forum, including on campus, no speaker has a superseding right of access and no speaker has a right to speak uninterrupted. A limited public forum with rules and reservation processes creates a preferred right of access to the original speaker and thus limits the counter-speech rights, such as to non-disruptive protests or to counter-speech activities outside the forum. This distinction works, although defining the nature of the forum remains important and perhaps difficult. We also have to find a way to address the situation in which loud counter-protesters in the general forum (where, H&C argue, they can be as loud as they want to be) drown-out the speaker inside the limited forum.

I disagree that we should label what counter-speakers are doing here as a heckler's veto, which I believe requires government action. I agree that the attitude reflected is "'If we can’t get the government to censor the speech, then we’ll do it ourselves'", but we need a different term. The better description might be civil disobedience--these protesters are breaking the rules, although for expressive purposes, and are subject to arrest for doing so. Government's obligation, H&C argue, is to allow the speaker to go forward by removing the disrupters. And when government fails to do so, that is a heckler's veto.

Posted by Howard Wasserman on November 1, 2017 at 05:17 PM in First Amendment, Howard Wasserman | Permalink | Comments (6)

"Breaking the News": A Review of Franklin Foer's "World Without Mind"

Howard does most of the writing First Amendment writing around here. But I certainly have an interest in the subject, including speech and press issues, quite apart from my interest in law and religion. Some of that has to do with my very brief time in the trenches as a reporter and my time as a student at Columbia's journalism school, which at least back then was a very practically oriented program. Although I think I have been more or less assimilated into the academy, and certainly take seriously (possibly self-seriously) the importance of "academicizing" one's discussion of issues within one's field (to borrow a term from Stanley Fish) when writing as an academic or taking advantage of one's academic title in other forums, a small part of my brain remains that of a journalist, inculcated with its norms and worldview and concerned with the well-being and integrity of that institution. My views on the state of the modern news media and contemporary journalism are not at all positive. On the other hand, journalists operate in a very different and difficult environment today; I'm glad I had my own brief time as a reporter just before the profession was irreparably altered by the Internet.

That is a long way of prefacing a link to this review of Franklin Foer's new book, World Without Mind: The Existential Threat of Big Tech. Foer's primary subject is the harmful effect of the "Big Tech" companies, and their effect on the profession of journalism in particular. Thus, my review provides an occasion to offer some of my own views on what I think is wrong with much of modern journalism, including some major institutions such as the New York Times and the Washington Post, not to mention Foer's old stomping ground, The New Republic. And it's about something more than that: it's about how to interact with a culture that is obsessed with the ephemeral and to, as Foer puts it, "take back the mind."

I argue that "Taking back journalism—rescuing it from algorithms, consultants, opinionated Twitter feeds by reporters, and the obsession with page hits, and returning it to a state of serious, aggressive but disinterested professionalism—is a good in itself, a good for democracy, and a necessary start." But--and I acknowledge the tension here, which is one I experience personally--even that were to happen, I'm not at all sure it's a good thing to obsess with and attempt to keep up with the 24-hour news cycle, or even with, say, a 6- or 12-hour news cycle. That's true, I think even if one mostly avoids the trash and sticks to good writers or publications. There are excellent and even urgent reasons to make journalism better. But there are also very good reasons for cultivating one's own mind away from the noise, and focusing on more lasting and meaningful reading and thinking altogether. That doesn't necessarily mean disengaging from current events. But it might mean that wise and meaningful engagement with current events requires something other than a relentless urge to know and comment on the most up-to-the-minute developments.

A postscript: Coincidentally, Eric Segall today has a post about writing about law in an age in which there is a vast amount of both scholarship and "news" coming at an ever-increasing pace. On the former point, one could do worse than to read the first page of this paper by Mark Tushnet, and to be reminded that much of what purports to be new and improved, or just "novel," in our field is neither. On the latter, he writes:

The other major change for legal scholars is the all-too-real news cycle problem, which is a consideration that barely existed twenty years ago. To be heard over the din today, not only does one need to be smart at both substance and marketing, but one needs to be fast, very very fast. That skill is quite different than being comprehensive, careful, and thoughtful. It used to be that one had at least a year from a the date of a major Supreme Court case to contribute to the scholarly discussion of that case. The only real place to put the case in perspective was the law reviews. Very few professors wrote op-eds or magazine pieces. Today, a week is probably too long.

I have no particular objection from an inside perspective to any of what Segall writes here. It makes a lot of descriptive and practical sense. From a more detached or outside perspective, however, I think there is a lot for thoughtful people to question about these statements. Should the news cycle be a "consideration" for scholars? Should one desire particularly to be "heard over the din?" Why, exactly? What effect on scholars' work, and on their deeper sensibilities and integrity as scholars, might there be in getting "smart at . . . marketing" or "very, very fast?" (Academics these days argue routinely and mechanically that the "corporatization of the university" has had a deleterious effect on the academy and academic work. They like such sweeping arguments but are decidedly less keen on focusing on themselves. If they think that's true at a wholesale level, why wouldn't they be moved to reflect on the individual effects of a marketing-driven approach on their own work?)  If a week is "probably too long" to "contribute to the scholarly discussion" of a case, what does that suggest about the nature or quality of the "scholarly" discussion that takes place within that seven-day period? What's especially scholarly, or even useful, about a "hot take?" Academics often argue in response to such concerns in one of two ways. They offer a dose of realism about "the way things are," which doesn't really answer any of those normative questions. Or they argue that what they do as marketers, entrepreneurs, public commentators, and chasers of latest developments is essentially separate from their longer and larger academic work and has no effect on it, or only a positive one. I'm not at all convinced that's true.    

Again, here's the link to my review. There is surely much to disagree with in it, but I hope you enjoy reading it. I certainly enjoyed writing it.   

 

Posted by Paul Horwitz on November 1, 2017 at 12:11 PM in Paul Horwitz | Permalink

A Rule 60 Mechanism for Baseball Playoffs?

As the baseball world turns to the greatest single game in any season -- World Series Game 7 -- Washington Nationals fans are still lamenting what might have been. The Nationals lost to the Chicago Cubs in the decisive Game 5 of the National League Division Series in a game that included a truly bizarre 5th inning that may have ultimately dictated the outcome. 

The powers-that-be at MLB have admitted that the umpires in that 5th inning made a crucial mistake, which surely changed the results of that 5th inning and could have changed the outcome of the game itself. Not only did that error potentially affect who won the game and thus which team moved on to the next round of the playoffs, it also may have inadvertently led the Nationals to essentially fire their manager, Dusty Baker, and hire someone else.

So here's my question: should there be a recourse for something like this occurring, similar to Rule 60 of the Federal Rules of Civil Procedure? Should the Nationals be able to ask MLB for "relief" from that "final judgment," especially in an extraordinary case such as this?

Continue reading "A Rule 60 Mechanism for Baseball Playoffs?"

Posted by Josh Douglas on November 1, 2017 at 01:32 AM in Civil Procedure | Permalink | Comments (2)

Tuesday, October 31, 2017

Sponsored Post: Practicing Environmental Law

The following post is by Todd Aagaard, Vice Dean & Professor of Law at Villanova; David Owen, Professor of Law at UC Hastings; and Justin Pidot, Associate Professor at University of Denver, and is sponsored by West Academic.

A month or so into a typical environmental law course, something bad can happen. Students encounter the Clean Air Act. Statutory interpretation can be tough in any circumstance, but the Clean Air Act is a particularly daunting beast, with hundreds of partially overlapping and somewhat intertwined provisions and no simple organizing principles or themes. Many students approach environmental law with the notion that the subject matter is going to be inspiring and fun. Now, instead, they are slogging through statutory provisions that seem, in Justice Rehnquist’s memorable words, to “swim before one’s eyes.

Continue reading "Sponsored Post: Practicing Environmental Law"

Posted by Howard Wasserman on October 31, 2017 at 02:54 PM in Sponsored Announcements | Permalink | Comments (0)

Monday, October 30, 2017

Your Crim Pro Final

Here.

Posted by Howard Wasserman on October 30, 2017 at 08:06 PM in Criminal Law, Howard Wasserman | Permalink | Comments (3)

New ACS Brief on Local Voting Rights

The ACS has just published my new issue brief -- a condensed version of a longer GW Law Review article -- on local expansions of the right to vote. Here is the abstract:

The right to vote is a fundamental right inherent in the U.S. Constitution and all state constitutions. Most scholarship on this right focuses on only federal or state law and omits discussion about how local law may also confer this right. In his new Issue Brief, “Expanding Voting Rights Through Local Law,” Professor Joshua A. Douglas of the University of Kentucky explores how cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. He argues that municipalities can serve as “test tubes of democracy” that may experiment with different voting rules, and these expansions can then spread to other municipalities and even up to states or Congress. Douglas concludes that when examining these local laws, courts should defer to those that expand the franchise, while training a more skeptical eye on laws that restrict voter access.

If for no other reason, you should read it because it starts with a reference to The West Wing! (Ah, if only Jed Barlet was our president...)

 

Posted by Josh Douglas on October 30, 2017 at 03:35 PM in Article Spotlight, Law and Politics | Permalink | Comments (2)

JOTWELL: Erbsen on Lahav on Procedural Design

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Alexandra Lahav, Procedural Design. This is a great paper and it and the review are good reads.

Posted by Howard Wasserman on October 30, 2017 at 02:18 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Still more from the police misconduct archives

This post continues my efforts to highlight underused archives that show the history of police misconduct in Chicago....

The research that culminated in Secret Detention by the Chicago Police in 1959 was part of a larger, decades long investigation into police misconduct conducted by the Illinois ACLU. The investigation began by exploring coerced confessions and ended with Calvin v. Conlisk in 1972. Special Collections at the University of Chicago Library has the Illinois ACLU files, which contain notes, correspondence, and pleadings relating to Calvin and some other cases that were part of this investigation. Those materials offer important background on the work done by the ACLU, the Afro American Patrolman’s League, and the Metcalfe Blue Ribbon Panel.

Several items are of interest to lawyers, activists, and scholars interested in police misconduct in Chicago:

The first is the merest hint found in a folder labelled “Illegal Police Procedures, 1952-1958,” in Box 508, Folder 5. The folder contains notes relating to Mallory v. U.S., 354 U.S. 449 (1957), which dealt with the legal limits on the use of confessions in federal court.  In Mallory, the Court found that when a suspect was held in custody and interrogated for several hours (from “Early afternoon” to 9:30 at night, when he confessed) without being advised of his right to counsel or being taken before a magistrate was denied the protections of Rule 5(a0 of the Federal Rules of Civil Procedure. Much of the material in the folder relate to efforts to oppose legislation that might undermine Mallory, and research relating to coerced confession cases in Illinois.

That folder contains a brief handwritten note, undated, that reads “Nuremberg Trials, vol. 6, reference to electric prodding” (emphasis in original). Then, after a scribbled-out part, the note reads: “Electric Prodder file” (I have been unable to locate such a file).

Claims that the Chicago police used electric prods on suspects were made in relation to the Jon Burge cases. The general consensus, following the major study of the Burge torture claims by John Conroy, is that Jon Burge learned to use electo-shock torture during his tour of duty in Vietnam and brought the practice back to the Chicago when he joined the police department in March 1970. My own research into police torture claims from Chicago between 1871-1971, has turned up a claim of electro-shock torture from 1970 (which did not, so far as I can tell, involve Burge), but none before that. So this brief entry in the ACLU file, which suggests that electro-shock torture was used in the 1950s, raises some important questions for future research.

The second section of this file that is of note relates to the incredible story of Emil Reck. Reck (who was white) was arrested with three other teens in 1936 and charged with the murder of a Chicago physician. Two of the defendants pled guilty, Reck and a fourth defendant went to trial. At trial, both defendants claimed that they were tortured by the Chicago police. Each claimed that officers (at different stations) hung them by their handcuffed wrists as part of their effort to get them to confess. Reck offered evidence of other physical torture, and the record showed that he was hospitalized twice while he was in police custody, once after he began to vomit blood.

Notwithstanding that evidence, the two were convicted. Reck was sentenced to prison for 199 years.

Reck was unable to afford to buy the transcript of his trial, and so the initial appeal of his case raised a dubious procedural claim based simply on materials in the public court files (People v. Reck 392 Ill. 311). Many years later, Reck filed a post-conviction petition contesting his conviction, arguing that he was coerced into confessing through the use of torture. At the post-conviction proceeding, the judge determined that Reck’s conviction should not be overturned. Various habeas claims followed.

Finally, in 1961, the United States Supreme Court agreed to hear his case and reversed on the ground that his confession had been coerced. Unfortunately, the Court refused to examine his claims of physical torture and instead rested its decision on the evidence that he spent eight days in the custody of the Chicago police without access to a lawyer or family members. The Court also noted that Reck was only nineteen-years-old at the time, and had been repeatedly diagnosed as being “of subnormal intelligence.”

Finally, the Illinois ACLU files (Box 555, Folder 5) contain transcripts from various hearings in Reck’s long trek through the criminal justice system, pleadings, briefs, and research notes.

The ACLU files (Box 555, Folder 5) also contain materials relating to the police misconduct claims that formed the basis of Calvin v. Conlisk. The materials support the nearly contemporaneous work done by the Metcalfe Committee, and suggest patterns of abusive and harassing arrests that particularly targeted people of color in Chicago between the 1950s and early 1970s.

Posted by Elizabeth Dale on October 30, 2017 at 10:28 AM | Permalink | Comments (0)

Sunday, October 29, 2017

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

The winner has been selected for the eight annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility: Robert W. Gordon, The Return of the Lawyer-Statesman?, 69 Stan. L. Rev. 1731 (2017).


The Prize will be awarded at the AALS Annual Meeting in San Diego in January.

Posted by Rick Garnett on October 29, 2017 at 03:05 PM in Rick Garnett | Permalink | Comments (0)

Wednesday, October 25, 2017

Jews and the 2017 World Series

Some off-the-cuff baseball history.

The 2017 World Series features Jewish players on both teams--Alex Bregman for the Astros and Joc Pederson for the Dodgers. According to Bob Wechsler, author of The Jewish Baseball Card Book, this is the first two-Jew Series since 2004 (Gabe Kapler for the Red Sox and Jason Marquis for the Cardinals); the second since 1959 (when Sandy Koufax played for the Dodgers); and the fifth in history (the other two involved Hank Greenberg in 1945 and 1940).

In Game 2 this evening, Bregman is the Astros regular third baseman, while Pederson will start in left for the Dodgers. This is, as far as I can tell, the first time that both teams have started a Jewish player in a World Series game. Kapler did not start against Marquis in Game 4 in 2004, nor did the Jewish players playing against Koufax and Greenberg.

Bregman homered last night for the Astros' only run. I am trying to figure out who was the last Jewish player to homer in a Series. Greenberg hit 2 in 1945. I cannot find any homers since then. Who am I missing and when?

[Update: Naturally, we need a Halachic ruling on the last point: Steve Yeager, the Dodgers catcher in the '70s and early '80s, hit 2 homers in the '77 Series and 2 in the '81 Series (in which he won MVP), but converted to Judaism only after he retired. So he is Jewish, but was not when he hit those 4 homers. Do these count as World Series homers by a Jewish player?]

[Further Update: Pederson homered for the Dodgers’ first run of Game 2, making this the first Series with home runs by multiple Jewish players.]

[One More Update: According to Ron Kaplan, the only Jewish player to homer in the Series between Greenberg in 1945 and Bregman and Pederson this year (if you do not count Yeager) was Ken Holtzman, a pitcher for the A's, who homered in Game 2 of the '74 Series (in researching this by going through a list of Jewish players and their career stats, I did not think to look at any pitchers).]

Posted by Howard Wasserman on October 25, 2017 at 05:11 PM in Howard Wasserman, Sports | Permalink | Comments (5)

Monday, October 23, 2017

Abel reviews Espeland & Sauder's "Engines of Anxiety: Academic Rankings, Reputation, and Accountability."

Prof. Abel's review is in the Journal of Legal Education and can be downloaded here.  A bit:

Student choice of a law school is complicated and facilitated by a combination of ignorance and indifference. Few harbor a passionate desire to be a lawyer. . . .  They do not know what
kind of law they will practice or which schools prepare better for various specializations. . . .  If they have any image of lawyers, it probably is drawn from the media . . . , which depict (inaccurately) a practice few will enter[.]

If few applicants have intrinsic reasons for choosing among law schools (or even for becoming lawyers), they do share a common trait: ambition. They have been socialized from an early age to distinguish themselves through achievement: academic, athletic, cultural, social, political. Most can compare the status of their high school with that of its local competitors. They strove to get into the “best” college—for which they had a metric—and build a resumé there and in the subsequent gap year(s) to get them into the “best” law school.  They have been accumulating cultural capital the way earlier generations accumulated land (in feudal society) and capital (in bourgeois society). All they need is a marker of the best, preferably one that also will distinguish them in the eyes of prospective employers.

The[] changes in legal education and the legal profession since 1970 created an opening, indeed an imperative need, for information to guide aspiring law students in choosing a school. . . .

Posted by Rick Garnett on October 23, 2017 at 02:03 PM in Rick Garnett | Permalink | Comments (0)

A Conference of Possible Interest: "Here I Stand: Conscience, Reformation, and Religious Freedom Across the Centuries"

This event, sponsored by the Religious Freedom Research Project at Georgetown's Berkley Center, looks to be really good.  If you're in Washington, D.C. on Nov. 1 . . . check it out! (RSVP required.)  Here's the blurb:

On October 31, 1517, Martin Luther published his Ninety-Five Theses urging sweeping religious reforms and catalyzing the Protestant Reformation. The Reformation unleashed an intensified focus on freedom of conscience, with dramatic social and political consequences. It fostered new notions of religious liberty as well as new frameworks for civic life. At the same time, the Reformation built upon centuries of Roman Catholic and Eastern Orthodox theologies of conscience, dignity, and freedom in ways that are not always understood.

This symposium will explore these dynamics, but also examine how Christianity per se has unleashed distinctive and powerful principles of conscience and freedom across its 2,000-year history, even in the face of what Pope Francis has called the “ecumenism of blood”—the severe religious persecution affecting numerous Christian and non-Christian communities around the world.

The line-up of speakers and presenters is really impressive, and the keynote address is by the great Robert Louis Wilken.

Posted by Rick Garnett on October 23, 2017 at 01:44 PM in Rick Garnett | Permalink | Comments (0)

Friday, October 20, 2017

Supreme Court Fellows Program – Call for Applications

The Supreme Court Fellows Commission is accepting applications through November 3, 2017, for one-year fellowships to begin in August or September 2018.  The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission.  Fellows gain practical exposure to judicial administration, policy development, and education.  In each of the four placements, the Fellow will be expected to produce a publishable paper and will have unique access to federal judges, and to officers and staff of the federal judiciary, in connection with the research project. 

The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service.  Fellows will receive compensation equivalent to the GS-13/1 grade and step of the government pay scale (currently $94,796) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary.  Appointments are full-time and based in Washington, D.C.  A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2018, and finalists will be contacted on selection decisions within one to two weeks after interviews.

Further information and the online application are available on the Supreme Court’s website.

Posted by Howard Wasserman on October 20, 2017 at 05:34 PM in Teaching Law | Permalink | Comments (0)

More from the archives

To continue my previous posts on the lost history of police misconduct in Chicago….

In 1959, the Illinois ACLU published a small pamphlet—Secret Detention by the Chicago Police. The report studied (and condemned) a specific Chicago police department practice: secretly holding arrestees for extended periods of time without charging them or taking them before a judge. In the process, it linked that practice to systemic mistreatment of minority and poor arrestees (p. 5) and confessions coerced by physical or psychological means.

Although brief, the Report combines quantitative and qualitative analysis. Its statistical analysis concluded that about 20,000 defendants were held incommunicado for 17 or more hours before being brought before a magistrate in 1956.  Nearly ten percent of those 20,000 were held in custody for more than 48 hours without being brought before a magistrate (pp. 5-6, for more detailed discussion of the data, see pp. 22-29). Often, these people were not merely in custody for an extended period, but were in custody and denied access to friends, family, or legal counsel (p. 11).

The ACLU report argued that those extended detentions led to instances of the third degree, or police torture. While some of that torture was “mild” (though still illegal), a hard slap, a blow from a blackjack or telephone book, a punch in the gut (p. 13), the ACLU charged that extended detention also provided an opportunity for more extreme acts. “It has been repeatedly charged, and on one occasions it apparently was proved, that the police have shackled a prisoner’s hands behind him, looped a rope through the handcuffs and over a door top, and hoisted the victim until his feet dangled, his toes barely touching the floor (p. 14). The report cited two cases where suspects complained they were subject to that practice: Emil Reck and Michael Livingston in 1936, and the case of Hector Verburgh in 1946 (p. 14). Reck, whose case finally made it to the United States Supreme Court in 1961, had his conviction overturned because he was held incommunicado for so long (the United States Supreme Court refused to examine his claims of physical torture). Verburgh, who was arrested during the investigation into the Susan Degnan murder, received a settlement from the city of Chicago after filing suit in the 1940s. My own research uncovered several other cases where suspects made similar claims.

The ACLU report described the arrest, detention, and mistreatment of Leslie Wakat, who was arrested by the Chicago police in 1946. Wakat claimed, ultimately successfully, that he falsely confessed to burglaries after being held for six days, during which time he was beaten repeatedly (pp. 15-17) In the end, Wakat’s claim was successful because he had obviously physical evidence to support his claims of mistreatment at the hands of the police. He was, as the ACLU report described it, “suffering from broken bones in his right hand, multiple bruises on his chest, arms, buttocks, shins and shoulders, and from injuries to his left leg and knee so serious as to require eight months’ treatment” (p. 16). In an all too familiar maneuver, police witnesses claimed that those injuries were a result of Wakat’s attempt to escape custody. According to one of the police witnesses “he grabbed my revolver and we both tangled and feel down the stairs about 25 or 30 feet” (p. 17). Other evidence undermined those claims.

The ACLU report argued that its data proved that Wakat’s case was an exception that demonstrated that greater protections for suspects and arrestees were needed. Many of those recommendations, stricter laws relating to detention, prosecution of officers who violate the civil rights of prisoners, and an independent bureau to investigate complaints against police officers (pp. 32-33), sound all too familiar.

Posted by Elizabeth Dale on October 20, 2017 at 10:37 AM | Permalink | Comments (0)

Thursday, October 19, 2017

Direct Republican Democracy?

A recent article in Slate explains that Camilo Casas is running for Boulder City Council on a unique platform: he will use an app to allow the city's voters to tell him how to vote "on any issue up for a vote before the council."   The app will enable voters to express their preferences on each council vote, and he will vote however the majority dictates.  The article discusses some of the practical implementation problems his idea faces; for example, low-income people or senior citizens may not have access to the app, and Russians seeking to infiltrate Boulder politics might hack it.  In this post, however, I want to analyze the conceptual underpinnings of his idea. 

Continue reading "Direct Republican Democracy? "

Posted by Michael T. Morley on October 19, 2017 at 09:29 PM | Permalink | Comments (3)

Wednesday, October 18, 2017

Morrissey v. U.S. and the IRS's Hostility to Reproductive Choice

Paraphrasing the Eleventh Circuit in its September opinion in Morrissey v. U.S.: “This is a tax post. Fear not, keep reading.” The tendency of the opinion to make light of tax law aside (of course a tax case can be “interesting”), the case is an important one for reproductive rights. At issue was the deductibility of assisted reproductive technologies (ARTs) used by Joseph Morrissey that enabled him and his now-husband to become parents.

Section 213 of the Internal Revenue Code permits a deduction for certain medical expenses. To qualify as deductible, amounts paid for medical care must be “for the diagnosis, cure, mitigation, treatment, or prevention of disease” or “for the purpose of affecting any structure or function of the body.” Thus there are two ways a taxpayer may qualify for the medical expense deduction: paying for medical care (1) arising from a “disease” or (2) affecting a person’s bodily “structure or function.” Morrissey argued that the egg donation, in vitro fertilization, and surrogacy costs he paid qualified as medical care because they affected his “reproductive function.” Mr. Morrissey also argued that denial of the deduction was a violation of his equal protection rights. The court of appeals rejected both arguments, affirming the district court’s grant of summary judgment in favor of the IRS.

I’ll begin with what the court of appeals got right. First, the court did not read a “disease” requirement into the “structure or function” route to a medical expense deduction. Second, the court did not summarily reason that ARTs are unrelated to a “function of the body.” The court of appeals thus avoided two errors that plagued the earlier Magdalin v. Comm’r case (a Tax Court memorandum opinion summarily affirmed by the First Circuit, and which I’ve written about here).

Unfortunately, the court of appeals got just about everything else wrong. For one, the court took a stinting view of the definition of “function of the body.” It parsed dictionary definitions to conclude that Mr. Morrissey’s reproductive function was limited to the provision of sperm: “The male body’s necessary function within the reproductive process is simply stated: it must produce and provide healthy sperm . . . .”. Though the court recognized that “function” might not be limited to the provision of sperm, it concluded that the “limiting modifier” of §213(d)—that medical care must affect a structure or function “of the body”—required its narrower view.

            The court took a similarly narrow view of Mr. Morrissey’s fundamental right to reproduce. Morrissey argued that the denial of the deduction would infringe upon his fundamental right to reproduce under Skinner. The court of appeals dismissed that argument, concluding that no fundamental right was at stake. In the court’s view, there is no fundamental right to “to procreate via an IVF process that necessarily entails the participation of an unrelated third-party egg donor and a gestational surrogate.” But, for Morrissey, exercising his fundamental right to reproduce meant seeking out a surrogate and some form of ART.

The Eleventh Circuit thus lent its imprimatur to the IRS’s ongoing resistance to recognizing the reproductive rights of same-sex parents and it did so robustly, providing a much thorough discussion of its reasoning than did the Tax Court in Magdalin.   I, along with others, have explored the IRS’s approach to §213 and ARTs in earlier work, but the landscape has changed since those earlier decisions (see that work here, here, here, here, and here).

With Windsor and Obergefell came a more robust recognition of the history of discrimination on the basis of sexuality and its import for the law. In the shadow of these cases, the Eleventh Circuit had the opportunity to interpret §213 more broadly to encompass greater reproductive choice and limit discriminatory implementation of §213.

Tax law is not only interesting, but it matters. The problem with the Eleventh Circuit’s opinion is not that it’s untenable but that it’s wrong. It’s wrong in that it provides significant precedent that reifies the heteronormativity and gender bias at the intersection of §213 and reproduction. In an article now in development, I will explore the impacts of Morrissey and possible solutions. In the immediate wake of the opinion however, I am left troubled by the missed opportunity to address the persistent biases of the Code that the Morrissey case represents.

Posted by Tessa Davis on October 18, 2017 at 06:38 PM | Permalink | Comments (13)

My Student Guide to Judicial Clerkships

Around this time of the semester I meet with a lot of students who are interested in post-graduation judicial clerkships. UK Law does quite well at placing our students in federal clerkships, so I am happy that there is a buzz among our students about this career path. 

Because my individual meetings with students tend to be quite similar, in that they often have very similar questions, I prepared a guide for them to read before they come to meet with me. It answers some of the most frequent questions I receive. Because I bet that others could also benefit from this guide, I am reproducing it below.

A few caveats: first, some of the advice is specific to Kentucky. Second, these are just my views, so as the kids say, YMMV. Third, I frequently update this guide, so what is below is simply the current version.

With that said, feel free to share with those who may be interested.

Continue reading "My Student Guide to Judicial Clerkships"

Posted by Josh Douglas on October 18, 2017 at 10:49 AM in Life of Law Schools, Teaching Law | Permalink | Comments (2)

Tuesday, October 17, 2017

NFLPA victim of drive-by jurisdictional ruling

The Fifth Circuit last week reversed a district court order enjoining the NFL from carrying out the six-game suspension of Dallas Cowboy running back Ezekiel Elliott because of a domestic-violence incident. I saw the story, but assumed that the court of appeals had reversed for the usual reasons that courts of appeals reverse in these sports cases--the district court had been insufficiently deferential to the arbitrator decision (see, e.g., Tom Brady and Deflategate). And because I do not write on those issues and because I do not like or watch football anymore (and my antipathy for the sport and the league grows), I did not write anything on it.

But a reaction paper from one of my Fed Courts students revealed that the Fifth Circuit issued the dreaded drive-by jurisdictional ruling. A 2-1 divided court held that the district court lacked jurisdiction because the Elliott and the NFLPA had not exhausted CBA grievance processes, which placed a claim for relief "beyond 'judicial review.'" The court stated that Arbaugh, Henderson, and other recent jurisdictionality decisions did not change SCOTUS or Fifth Circuit precedent treating exhaustion as jurisdictional in the labor context. Judge Graves dissented, arguing that jurisdiction was established when a plaintiff claims a violation of a contract between an employer and a labor organization and that the grievance procedures appeared in the CBA, not the LMRA.

Under Scott Dodson's theory (and I think Scott cracked the problem of defining jurisdiction in a principled way),exhaustion is jurisdictional, because it measures when a case can enter a court or move to a court from another body (such as an arbitration panel). But the Fifth Circuit is descriptively wrong under recent decisions and the direction of the doctrine. Very little is jurisdictional anymore, especially when it does not appear in a statute. The "beyond judicial review" language (drawn from a 1967 SCOTUS case) is the sort of loose, figurative language that SCOTUS had used and attached jurisdictional labels, without thinking through the logic or consequences of the label; this is the language Justice Ginsburg had in mind when she introduced, and argued for limiting the effect of, drive-by jurisdictional rulings. And statutory exhaustion (as under Title VII) is not jurisdictional; it seems inconceivable that a statutory requirement would not limit the court's jurisdiction, but a private contractual obligation, not required by any statute, could strip a court of its structural adjudicative authority.

The question is what happens next. Elliott's first game of the suspension is next Sunday. The NFLPA has asked the Fifth Circuit for en banc review and also sought its own TRO in the Southern District of New York (where the NFL offices are located). The jurisdictional basis for the ruling was wrong, but that does not mean that the court of appeals was wrong that Elliott failed to exhaust his contractual remedies and that the injunction should not have issued. Elliott and the NFLPA may have properly lost, just on 12(b)(6) rather than 12(b)(1) grounds.

Posted by Howard Wasserman on October 17, 2017 at 01:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

Sunday, October 15, 2017

An overbroad defense of universal injunctions

Judge Leinenweber of the Northern District of Illinois denied a stay pending appeal of a universal (he called it nationwide) preliminary injunction barring enforcement of certain funding conditions against sanctuary cities. This is the first extended defense of universal injunctions (more than in the original order granting the injunction).  (H/T: Josh Blackman)

The gist of Judge Leinenweber's defense is that the attorney general's authority does not vary by jurisdiction. And similar universal jurisdictions have been upheld, in which relief inured to non-parties as well as parties. The court also finds support from the per curiam in Trump v. IRAP, where the Court allowed the injunction to stand as to those "similarly situated" to the plaintiffs, which matches the injunction here applying to cities and states similarly situated to Chicago. Most tellingly, the court rejected the argument that similarly situated plaintiffs can file their own lawsuits and use the first decision as precedent because "judicial economy counsels against requiring all these jurisdictions (and potentially others) to file their own lawsuits to decide the same legal question." The court recognized reasons to be "cautious" before entering such injunctions and that they should not be the "default," citing the recent work of Bray, October guest Michael Morley, and UCLA's Michigan's Maureen Carroll. He pointed to concerns for forum shopping, conflicting injunctions, and interference with law development within a circuit, then explained (in a sentence or two) why those "not insignificant concerns" do not overcome the benefits of a universal injunction in this case.

The problem remains that the argument prove too much. As Sam Bray argues, it logically requires (or at least permits and encourages) a district court to issue a universal injunction in every constitutional challenge to federal law. Because the proposed funding conditions challenged here do not differ from any federal law.  The authority of federal officials to enforce every federal law does not vary by jurisdiction. Judicial economy always favors one lawsuit over many lawsuits. There would be a flood of similar lawsuits by everyone affected by every federal law.* Federal uniformity and the unfairness of disparate application of federal are present with respect to every federal law. Despite the court's rhetorical attempt to limit such injunctions to "extraordinary" cases, every case is extraordinary as he defines it; the reasoning applies to federal immigration laws, federal regulations of immigration attorneys, and federal law regulating any conduct.

[*] The solution is supposed to be FRCP 23(b)(2) class actions. But the growth of universal injunctions makes that rule superfluous.

Leinenweber closes with a paean to the rule of law and the role of the courts in ensuring the rule of law is enforced, which is undermined (in reality or in perception) if the attorney general can enforce "likely invalid" laws against other persons even while under an injunction as to some. Several responses. That is true of every federal law, making such injunctions the norm. The rule of law also includes limitations on the scope of a district court's lawmaking and remedial authority as compared with a court of appeals or SCOTUS; it therefore is as undermined by one district judge barring enforcement of federal law as to everyone in the world in all circumstances everywhere in the world. And without saying so, it also rests on a model of pure judicial supremacy--the Article III judge has spoken and the attorney general's authority to disagree, outside of that litigation, ceases to exist.

Posted by Howard Wasserman on October 15, 2017 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Police Misconduct in Chicago: The Forgotten Past

To return to the topic of the DOJ Report on Chicago policing, I wanted to write a bit in this post and some later ones about other investigations into policing in Chicago that the DOJ ignored in its report. These other investigations are less well-known than the Kerner and Walker commission reports, so it’s worthwhile giving them attention for a moment or two. They are historically interesting on their own. At the same time, as my summaries suggest, they are evidence of the longstanding patterns and practices of police misconduct are in Chicago.

The first investigation, conducted in the summer of 1972, resulted in a report titled “The Misuse of Police Authority in Chicago,” prepared after a four-day blue-ribbon panel on police misconduct organized by Ralph Metcalfe. It was prompted by the grassroots efforts of the Third Ward Committee on Crime Prevention, which was concerned with the rise of crime in Chicago’s majority black neighborhoods and increasing instances of police misconduct.

The Third Ward Committee might have been as concerned with crime as it was with policing, but the blue-ribbon panel was only interested in the latter. In June and July 1972, Metcalfe, then a congressman representing the part of Chicago’s south side that included the third ward, and his multi-racial panel took testimony from Black, Latino, and white witnesses about instances of police brutality on the city’s predominantly black and brown south and west sides. The complaints ran an all too familiar gamut: a dentist complained about a police encounter following a routine traffic stop (he was missing a light over his license plate) that resulted in injuries to his wrists that prevented him from working for several days (Report, p. 2). A mother recounted how her son was shot to death by a police officer at a local public high school; her account that included claims that suggested the officer planted a gun near her son to justify the shooting (Report, p. 4). A gym teacher described a beating at the hands of twelve to fifteen white police officers (Report, p. 10). Many of the witnesses testified that police officers called them names (from n***r to “Black m**** f****” to “dirty Puerto Rican”). Most of the witnesses also testified that their complaints about their mistreatment to the Internal Affairs Division (IAD), the section of the police department assigned to handle police misconduct claims, were ignored.

The panel treated the problem of misconduct as a failure of policing, specifically the related failures to hire minority officers, train those officers who were hired, or investigate or discipline officers who were accused of abuse. Although high-ranking police officials ignored Metcalfe’s invitation to appear before the panel, the panel did hear from several experts on police hiring and training, and reviewed materials gathered by the Chicago Bar Association and the Law Enforcement Study Group. In addition, the panel considered the documentation gathered by the Afro-American Patrolmen’s League and lawyers affiliated with the ACLU of Illinois for Calvin v. Conlisk (72 C 3230), a civil rights case that charged that Chicago failed to properly train and discipline police officers.

The recommendations of the report echoed those discussed in Locking Up Our Own (esp. ch. 3);  they also sound uncomfortably similar to some of the police reform efforts discussed in Chicago today. The report called for increased public oversight and police accountability to the public (Report, pp. 60-61).  Among other things, it recommended that the department’s hiring and promotion practices (which it characterized as discriminatory) be reformed (Report, p. 62), and it recommended the creation of an independent (of the police department) investigative agency that would be charged with hearing claims of police misconduct and abuse (Report, pp. 65-59). And it called for an immediate end to an immediate end to aggressive patrol policies and a halt to the practice of stopping “Brown persons …by policemen for the sole purpose of investigating residency status” (Report, p. 74).

 

Posted by Elizabeth Dale on October 15, 2017 at 01:46 PM | Permalink | Comments (0)

Saturday, October 14, 2017

Argument on ATS in Jesner v. Arab Bank

SCOTUS heard argument on Wednesday in Jesner v. Arab Bank, considering whether a corporation can be sued under the  common law cause of action under the Alien Tort Statute. I listened to the audio and have a few thoughts on the procedure, without getting into the substantive question of corporate liability.

The Court a good job (certainly better than four years ago in Kiobel) talking about the issues without conflating jurisdiction and merits. Everyone spoke about causes of action and the scope of the norms that are part of federal common law and can be enforced through that cause of action, without speaking about jurisdiction in a sloppy way.

Justice Gorsuch asked petitioner/plaintiff counsel what the continued point of the ATS is, given that § 1331 grants jurisdiction over claims grounded in federal common law incorporating international law. Counsel explained that the ATS is like the maritime-jurisdiction grant, a more specific grant in the Judiciary Act of 1789 through which Congress could make absolutely clear that such cases could be brought in federal court. What neither mentioned (and what you would expect Gorsuch to remember, given his Originalist obsession) is that the 1789 Act did not include general "arising under" federal-question jurisdiction, necessitating these subject-specific grants. To the extent § 1350 is vestigial or superfluous with modern § 1331, it is not alone.

Posted by Howard Wasserman on October 14, 2017 at 10:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, October 13, 2017

Zarda and the Trump Administration's Surprising (and Largely Unrecognized) Approach to Anti-Discrimination Principles

The Trump Administration's Justice Department ("DOJ") attracted substantial public criticism for its decision to file an amicus brief before the en banc U.S. Court of Appeals for the Second Circuit in Zarda v. Altitude Express.  The main issue in the case whether Title VII of the Civil Rights Act's prohibition against sex-based discrimination prevents employers from discriminating based on sexual orientation.  DOJ argued that Title VII should not be interpreted to prohibit employment discrimination against homosexuals.  It contends, in part, that "sex discrimination" necessarily involves the belief that one sex is inferior to the other.  Because discrimination against homosexuals does not involve or arise from a belief that either males or females are superior to the other sex, it does not constitute "sex discrimination."  Many commentators have assailed DOJ's decision to get involved in the case at such a late stage to argue against gay rights, particularly since the EEOC is already a party litigant and urging the exact opposite interpretation of Title VII.  Putting aside the merits of DOJ's position for a moment, I wanted to point out an overlooked -- and potentially significant -- implication of DOJ's argument that might have escaped the notice of the Trump Administration's political appointees (who were the only people to sign the brief).

Continue reading "Zarda and the Trump Administration's Surprising (and Largely Unrecognized) Approach to Anti-Discrimination Principles"

Posted by Michael T. Morley on October 13, 2017 at 06:01 PM | Permalink | Comments (9)

Thursday, October 12, 2017

Unconstitutional Intent and the Executive

A central focus of the ongoing Travel Ban cases is whether the restrictions they impose are invalid because they were motivated by invidiously discriminatory intent on the part of the President.  Broadly speaking, a government action which is otherwise constitutionally permissible violates Equal Protection principles (whether under the Fourteenth Amendment or the Fifth Amendment's Due Process Clause as construed in Bolling v. Sharpe) if the official who adopts, approves, or takes that action did so based on racial considerations -- which for brevity should be understood as including ethnicity and national origin as well -- or religious considerations.  This Equal Protection principle applies even more forcefully when the government official acts based on stereotypical views about, or animus toward, people of a particular race or religion.  The foundations of this principle trace back to the Supreme Court's post-Civil War Era ruling in Yick Wo v. Hopkins.  (I would like to refer to Yick Wo as a Reconstruction Era case, but it was decided a decade after Reconstruction ended).  The Free Exercise and Establishment Clauses reinforce, complement, and establish Equal Protection-type safeguards prohibiting intentional religion-based discrimination.  This posting considers some of the implications of focusing on the President's personal, subjective intent and motivation to identify such discrimination in determining the constitutionality of official action. 

Continue reading "Unconstitutional Intent and the Executive "

Posted by Michael T. Morley on October 12, 2017 at 09:33 PM | Permalink | Comments (7)

Laptops are loud

I banned laptops from my classroom beginning in January 2009 (the first semester following the faculty vote on my tenure) and my only regret was that I did not do so sooner. This was the early days of the anti-laptop push-back. A few professors (including David Cole of Georgetown) had begun identifying and arguing the negative effects, although we did yet have the empirical studies as support. In any event, it ha been about 20 semesters of teaching with no computers in the room.

In the past week, I have visited classrooms of three colleagues (as part of P&T review) who allow laptops. And boy do they make a lot of noise when 20+ students are all typing away at once. I noticed the quiet of no laptops almost immediately in January 2009. I forgot the loudness until this week.

 I know the students in the classes I observed either have in this semester and/or had in past semesters) professors who banned laptops. I remain struck and confused by how little voluntary change there has been. I keep expecting the no-laptop benefits to become so clear that students would recognize and never go back. But it has not happpened. Despite being prohibited from using laptops in Class A, more than half the students in both classes have gone back to using them when allowed to do so in Class B.

Posted by Howard Wasserman on October 12, 2017 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (37)

JOTWELL: Mullenix on Symeonides on forum-selection clauses

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Simeon Symeonides, What Law Governs Forum Selection Clauses?, ___ La. L. Rev. (forthcoming).

Posted by Howard Wasserman on October 12, 2017 at 09:58 AM in Article Spotlight | Permalink | Comments (0)

Wednesday, October 11, 2017

How far we have come, in the wrong direction (Updated)

Gyree Durante, a freshman backup quarterback at Albright College, a D-III school in Pennsylvania, was kicked off the team for kneeling during the national anthem. The team's "leadership council" had decided to kneel during the coin toss (because racial injustice is intimately associated with coin tosses) but stand for the anthem. Durante thus acted against the team decision that was an "expression of team unity and out of the mutual respect team members have for one another and the value they place on their differences."

[Updated: Upon further consideration, I must marvel at how so much anti-intellectualism and raw majoritarianism was packed into such a seemingly anodyne statement. Because the majority won, in a rout. The athlete inclined to do so was denied the opportunity to express a criticism of an aspect of American society in a meaningful way, unless kneeling or coin tosses per se mean something about racially disparate police violence. The majority deigned to allow him a small expressive token, but that token is meaningless as a message (or the message the athlete wanted to send), again unless kneeling or coin tosses say something about racism and police violence. Yet this is praised as  "mutual respect for differences."  There was no mutual respect at work here--the majority got what it wanted by prohibiting a protest around the symbol of what some people see as the social problem to be protested; Duarte got nothing of expressive consequence.]

In this article, I discussed Toni Smith, who in 2003 was a member of the women's basketball team at Manhattanville College, a D-III school in New York. During the ramp-up to the Iraq invasion (which was being sold to the public as a necessary national-security response to 9/11), Smith would turn her back to the flag during the anthem. She was not sanctioned and was supported by her teammates, coaches, and school administrators. Some fans booed or jeered and one person walked onto the court mid-game to get in her face. A Google search revealed that Smith (now Smith-Thompson) is an organizer with the NYCLU and wrote an open letter to Colin Kaepernick in 2016.

But it is striking that such protests (which I describe in the article as symbolic counter-speech, in that a person counter-speaks to a symbol through the symbol itself) draw more public anger and less support from teammates and those around the protester today than 15 years ago, on the eve of what at the time was a popular military action. That speaks depressing volumes to our willingness to protect political dissent (or at least certain forms of political dissent). Smith-Thompson suggested the difference is social media. Another difference is that President George W. Bush did not make a hobby of calling out dissenters as unpatriotic sons-of-bitches.

Posted by Howard Wasserman on October 11, 2017 at 10:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (7)

Against unity

Unity is the enemy of the freedom of speech.

If unity is a primary value or principle, then free speech cannot exist.  If the goal is for society (or some segment of it) to be "unified," then speech that "divides"--that undermines unity or does something other than unify--cannot be tolerated. But another word for speech that "divides" is speech that anyone disagrees with, Holmes's "thought that we hate." If the goal is unity, then ideas and speech that divide-- ideas that anyone disagrees with--can be and must be suppressed or pushed out of sight. A society that values unity uber alles has no need to protect the freedom of speech and will not protect the freedom of speech. A "united" community will not seek to suppress speech that unites everyone in agreement, only speech that divides. But division undermines unity, so that society is justified in suppressing that dividing speech.

This means that "unity" is not a neutral or benign principle. A governing entity (the NFL, the President's spokesperson, whoever)  that argues about the need for unity is really arguing that it can and should be able to suppress speech. Because those who utter divisive--i.e., unpopular or dissenting--ideas divide, undermining that goal of unity.

Posted by Howard Wasserman on October 11, 2017 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (23)

Tuesday, October 10, 2017

Argument: Hamer v. NHSC

Here is my SCOTUSBlog recap of Tuesday's argument Hamer v. NHSC. Justice Ginsburg was as engaged in this argument as I think I ever have seen her. She even had some love for the arguments of Scott Dodson (Hastings), who filed an amicus brief putting forward his theory that a jurisdictional rule is any rule, regardless of source, that places a case in one court and out of another. She asked petitioner's counsel about Scott's argument; his response was that Scott's formulation is "incorrect" because inconsistent with prior cases and the Rules of Civil Procedure, although without explaining whether or why that formulation is normatively wrong. No one else followed on Ginsburg's question.

Posted by Howard Wasserman on October 10, 2017 at 10:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, October 09, 2017

"Thanks, Iowa Supreme Court!"

Today in my Election Law class we covered state regulation of false or misleading campaign advertisements. (The doctrine is generally that even blatantly false ads enjoy First Amendment protection.) It is one of my favorite class periods of the semester because I show some pretty incredible political ads. The one below is perhaps the most outlandish. It aired during the Iowa judicial retention election in 2010, just after the Iowa Supreme Court had issued a ruling that effectively legalized same-sex marriage. The ad is worth two minutes of your time. (All three justices up for retention lost.)

(Although I find the ad amusing, I also think it's offensive and harmful.)

The debate during this class is always spirited, with some students arguing that the government should be allowed to regulate patently false campaign speech -- especially if it is about the election itself (such as "Republicans should vote on Tuesday; Democrats should vote on Wednesday") -- while other students take a more absolutist First Amendment approach. The debate has perhaps become even more interesting these days given the current tenor of our political discourse.

Posted by Josh Douglas on October 9, 2017 at 02:17 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (2)

On Not Thinking Much About History

The Department of Justice’s January 2017 report on the Chicago police department prompted me to reflect on how policy makers often ignore the historical context that shapes the issues that they wish to engage. In this post, I want to talk a bit about how that sort of inattention was manifested in that particular report. In a latter post, I hope to explore the larger question.

I should begin by admitting that there is much to admire about the report, especially now that events and decisions in D.C. and Chicago have made it less likely it will have any actual impact.  Prepared in a little more than a year, the report rests on an extensive investigation that spanned 300 days of interviews in Chicago. DOJ researchers visited each of the city’s 22 police districts, interviewed officers and commanders, and went on ride-alongs with police officers. The researchers talked with officials of Chicago’s various police unions, met representatives of 90 community organizations, and held several community forums. They also reviewed training documents, reports on policing in the city, and Chicago’s police misconduct complaint database. Finally, the researchers met with local lawyers and activists working on police misconduct in Chicago, and consulted current and former law enforcement officers from around the country (Report, p. 2).

And all that evidence is arrayed to substantiate the report’s damning conclusion that a significant number of Chicago’s police officers engaged in unconstitutional or illegal use of lethal and nonlethal force, as part of a pattern of discriminatory or harassing interactions with people of color and members of Chicago’s LGBTQ communities. The report also provides ample support for the charge that Chicago’s police have a code of silence and culture of lying designed to undermine investigations into misconduct.

It is also the case that the analysis offered in the report is complex. It traces the use of lethal and nonlethal force from actual police practices, through the failures to train and mentor that helped establish those practices, to the lack of discipline that institutionalized the practices. Its treatment is evenhanded, exploring the impact police misconduct has on its most frequent victims, Chicago’s communities of color and LGBTQ population, while also considering the effect poor training and lack of discipline has on members of the police department. Indeed, the report’s discussion of the Independent Police Review Authority (IPRA)’s failures to investigate and discipline officers, makes it clear that just how related these problems are. Bad investigations by IPRA have destroyed citizen trust in the department, especially in the communities hardest hit by the police abuse. At the same time, the erratic discipline IPRA has meted out discouraged officers who tried to follow the rules, encouraged the creation of a department culture that favors silence, lies, and concealment (p. 8, 51-52), and sabotaged efforts to create standards of acceptable practice.

But ultimately the report fails. And it does so because it does not consider the larger context in which these problems have arisen. Its discussion of discipline ignores the work of scholars like Barry Friedman, whose recent work Unwarranted: Policing Without Permission, documented how decades of court decisions have made it harder for aggrieved individuals to bring police misconduct claims. Friedman’s study pointed out a trap created by the late Justice Scalia's jurisprudence on the Fourth Amendment. On one hand, the justice often voted against application of the exclusionary rule, on the theory that wrongful searches could be redressed by claims for money damages. On the other, Justice Scalia often voted against civil rights claimants who sought damages for wrongful searches and seizures (Friedman, 137). Victims of police misconduct in Chicago have found themselves caught in a similar bind. The legal retrenchment Friedman described have made it harder for them to press successful claims in court, while the failures of the review boards documented in the DOJ Report have meant they have little hope of obtaining administrative redress.

That failure, in turn, is exacerbated by another situation well-documented in another study by the Chicago Reporter. The Reporter’s investigation revealed that Chicago’s law department typically has settled police misconduct charges.  The consequence, as the Chicago Reporter put it, is that those “cases conclude as they occurred—outside the public glare.” Because settlement awards were typically confidential, Chicago residents are kept unaware of the scope and cost of police abuse. The secrecy also make it difficult to for individuals to establish persistent wrongdoing by individual officers. Again, none of that appears in the DOJ report.

These are not the only places where examining the recent problems tbe report described from a broader, historical perspective would have improved the report’s analysis. The discussion of abusive arrests in the report (p. 51), would have benefitted from consideration of Rights in Conflict, the report on the violence at the 1968 Democratic National Convention. Engagement with the Kerner Report on racial unrest in 1967 would have given depth to the DOJ discussion of tensions between Chicago’s police department and the city’s communities of color (p. 15). The discussion of the culture of silence and lies (p. 8) would have been strengthened by considered of Nicole Gonzales Van Cleve’s recent study of criminal justice in Cook County. And ultimately, the entire report would have been stronger if the DOJ had actively engaged the historic problem of racial and economic segregation in Chicago, since that enabled the police to treat residents of Chicago’s various communities in the very different ways the report describes.

The report’s narrow focus seems to have been deliberate. Prompted by the outrage that followed the city’s efforts to prevent investigation into the police shooting of Laquan McDonald, the Department of Justice chose to focus on lethal and nonlethal force, and the ways in which the Chicago police department dealt with that problem (p. 1). The narrow scope meant the report largely ignored the department’s long, tragic history of police torture and failed to explore whether the two problems were related. Yet as the Wickersham Commission pointed out in the 1930s (p. 127), and the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Punishment has recognized more recently (Art. 1.1), torture can involve either physical or mental abuse used to obtain confessions or violence used to coerce or intimidate a person during an arrest. So too, the report’s discussion of community mistrust of police (pp. 4, 15) should have considered whether Chicago’s campaign to deny police torture contributed to the problem.

Posted by Elizabeth Dale on October 9, 2017 at 11:10 AM | Permalink | Comments (0)

Sunday, October 08, 2017

Police as prosecutors

A lawsuit in Manhattan civil court is challenging a program in which NYPD lawyers prosecute summons cases, pursuant to a delegation by the Manhattan DA. The apparent impetus for the move was that the DA generally does not send attorneys to summons court, resulting in many cases being dismissed, in turn forming the basis for constitutional claims arguing that officers lacked probable cause to issue the summons. The police department requested the delegation so it could litigate summons cases or offer a resolution would require the defendants to admit liability, barring a subsequent lawsuit. Plaintiffs claim this is a conflict of interest for the police, which violates due process, undermines the adversary system, and raises a hint of selective prosecution. Plaintiffs allege that the police are pursuing only claims against those cited while engaged in expressive activity (the plaintiffs were cited for actions during a police-reform march, and the charges against one of them were dismissed when the judge found the arresting officers' testimony contradicted by video of the events).

For you crim/crim pro/PR scholars in the audience: What is the problem here, as a legal or ethical matter? Because I do not see it. A lot seems to be about the intent of the delegation and the police lawyers' strategy--to protect officers from subsequent civil suits. But that seems like one, valid influence on prosecutorial discretion, whether the DA or its delegee is exercising that discretion. As for the focus on people cited for expressive conduct, that sounds in selective prosecution, a defense that is hard to prove and as much of a problem (or non-problem) with or without the delegation. What am I missing? 

Posted by Howard Wasserman on October 8, 2017 at 11:49 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Gill and Congressional Authority (A Response to Prof. Morley)

It's October, so that means two great things: baseball playoffs (go Nationals!) and continued commentary on election law.

Michael Morley starts us off with some interesting commentary on Gill v. Whitford, the partisan gerrymandering case that the Supreme Court just heard last week. His conclusion is basically that if the Court recognizes a standard for partisan gerrymandering under the Fourteenth Amendment's Equal Protection Clause, then that could open the door to substantial congressional intrusion into state and local redistricting, particularly allowing Congress "to attempt to influence and reshape the partisan outcomes of state and local races."

My response? Not bloody likely!

Continue reading "Gill and Congressional Authority (A Response to Prof. Morley)"

Posted by Josh Douglas on October 8, 2017 at 10:26 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (10)

The Overlooked Issue in Gill v. Whitford, the Supreme Court's Political Gerrymandering Case

This week, the Supreme Court heard oral arguments in Gill v. Whitford, the political gerrymandering case from Wisconsin.  The Court will decide whether "judicially manageable standards" exist for determining when a legislative map constitutes an unconstitutional political gerrymander and, if so, whether the lower court crafted the correct constitutional test.  In my next post, I will discuss some of the substantive considerations raised by the plaintiffs' claims and the lower court's ruling.  Here, however, I will bring attention to one of the most important issues in the case that has been almost entirely overlooked throughout the course of the litigation -- a Court ruling recognizing a broad right against political gerrymandering will expand the scope of Congress' power under Section 5 of the Fourteenth Amendment to regulate and attempt to influence the outcomes of state and local elections along partisan lines.  (Full disclosure:  I authored an amicus brief in support of the State of Wisconsin in Gill, but am writing here solely in my personal capacity).

Continue reading "The Overlooked Issue in Gill v. Whitford, the Supreme Court's Political Gerrymandering Case"

Posted by Michael T. Morley on October 8, 2017 at 12:51 PM | Permalink | Comments (10)