Wednesday, December 06, 2017

Hunting for the Snark of Private "Expressiveness" in Masterpiece Cakeshop's Oral Argument

As anyone could have predicted (and, SSP, as I did predict in September), the Masterpiece Cakeshop oral argument's colloquy about whether baking is more, less, or just as "expressive" as hair-dressing, floral arranging, make-up artistry, wedding announcement calligraphy, or architecture was a comedy of Snark Hunting. The Snark was the elusive prey being tracked in Lewis Carroll's epic nonsense poem, The Hunting of the Snark by a band of nine characters who had no coherent notion of what a Snark might be. (Their leader, the Bellman offered "five unmistakable marks," such as "its taste, Which is meagre and hollow, but crisp" and "its slowness in taking a jest" as useless criteria). Kristen Waggoner played the Bellman's role to perfection, confidently informing the Court that architecture was not protected expression, "because buildings are functionable, not communicative." Cake-baking, by contrast, was, Waggoner asserted several times, definitely expressive, because it expresses creative expression. Carroll's Bellman offered a similarly confident test for Snarks:

"Just the place for a Snark! I have said it twice:
That alone should encourage the crew.
Just the place for a Snark! I have said it thrice:
What I tell you three times is true."
Despite O'Brien and Spence, expressive conduct, like Carroll's Snark, is everywhere and nowhere. All conduct deliberately chosen sends a message, and, if the government's prohibits it because of its message rather than its non-expressive effects, then the prohibition is likely content-based regulation subject to heightened scrutiny. As then-Professor Kagan persuasively argued two decades ago, it is governmental purpose, not private expressive intent or effects, that normally determines whether a law is a prohibited regulation of speech.

The SCOTUS extricated itself from its Snark Safari only when the justices finally focused on Colorado's likely purposes in prohibiting Jack Phillips from refusing to make wedding cakes for same-sex nuptials. By page 51 of the transcript, Justice Kennedy asked Colorado's Solicitor General Yarger whether a Colorado Commissioner's remarks about religious motivation's being "despicable" indicated hostility to religion in violation of the Free Exercise clause. After the jump, I will suggest that governmental hostility to a purely secular ideology would equally violate the First Amendment's Speech clause. The difficulty, of course, is proving up the bad motive, and, on that practical question, I have argued that a decent respect for federalism suggest maximum deference to Colorado's good faith.

Continue reading "Hunting for the Snark of Private "Expressiveness" in Masterpiece Cakeshop's Oral Argument"

Posted by Rick Hills on December 6, 2017 at 09:01 AM | Permalink | Comments (7)

Tuesday, December 05, 2017

Argument in Masterpiece Cakeshop

Having read the transcript, I have no idea where this is going or what standard anyone seems to be gravitating to. The only one of the four advocates who really got an opportunity to frame a legal standard was David Cole of the ACLU on behalf of the complainants, who was given the time to explain how O'Brien fits the scheme. Otherwise, counsel for the petitioners got caught up in an escalating series of hypotheticals involving make-up artists and sandwich artists and the difference between chefs and bakers (and, I thought, fumbled a bail-out question from Justice Alito about the expressive nature of architecture). SG Noel Francisco acknowledged the Court may not adopt his "race is different" position, although he did put across a "predominant" purpose or effect idea. And everyone fought the justices' hypotheticals (there seems to be more of that going on this Term).

The justices also seemed all over the map. Only Justice Alito asked questions obviously designed to support the attorneys on one side and challenge the attorneys on the other. The other Justices were asking pointed and prodding questions of both sides. And a lot of those questions read like a Donald Trump speech--"It's a great cake, it's a beautiful cake."

We did learn a few things: 1) Justice Alito does not go to may five-star restaurants; 2) part of Francisco's wedding cake remains in his freezer; 3) Justice Gorsuch does not like the taste of wedding cake*; 4) Ollie's Barbecue and Piggie Park have not gotten this much attention in 50 years.

[*] We were lucky. Our wedding cake was delicious.

Posted by Howard Wasserman on December 5, 2017 at 05:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (6)

Accepting GRE

With BYU, eleven schools will accept the GRE rather than the LSAT from prospective students. I would like to hear, especially from anyone teaching at or affiliated with those eleven schools, about the pros and cons of this move. And since we have permanent bloggers and past guests at both schools, I hope for some input.

The LSAT is not so tied to what we do in law school that it is an obviously superior predictor of success. Both include logic games (how to seat five people in one car when everyone hates everyone else). One pro is that law schools can better compete for the college senior who is torn between grad school and law school--a law school can recruit her without making her prepare for and take another test. I cannot think of any disadvantages, frankly. What are the two sides?

Posted by Howard Wasserman on December 5, 2017 at 05:07 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Friday, December 01, 2017

Drifting justices

Richard Primus takes down the arguments that Chief Justice Roberts has become (or always has been) a secret liberal and has "moved left." Primus argues that it is not Roberts who has changed but the questions presented to the Court--the questions have moved right, shifting the conclusions Roberts reaches and the Justices with whom he aligns, even without him have changed. And none of this could have been accounted for when Roberts was being vetted, so this should not be regarded as a case of failed vetting.

This is an intriguing argument to which I would add a few thoughts.

1) On the vetting point, Primus focuses on Roberts twice rejecting aggressive conservative theories surrounding ACA, which were not on Republicans' minds when vetting Roberts in 2005 (when the individual mandate was a Republican idea). Roberts has voted the straight conservative line on those issues for which he would have been vetted--reproductive freedom, religious liberty, affirmative action, same-sex marriage, and voting rights. Put differently, while the questions presented have moved rightward on these issues, they have not reached the point of outflanking Roberts to the right.

2) Primus' framing offers a new way of thinking about Justice Frankfurter, where the questions presented moved leftward, leaving him straddling, if not dissenting, on many. For Frankfurter, it was a shift of constitutional issues--from the scope of federal power to individual rights. But the basic idea of the legal questions moving and the Justice staying in place holds.

Posted by Howard Wasserman on December 1, 2017 at 09:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (21)

Greetings and Happy December!

Thanks to Howard for inviting me back! For those who don't know me, I teach Civil Procedure, Professional Responsibility, and Secured Transactions at Case Western Reserve School of Law. I look forward to guestblogging this month, which will be a happy distraction for giving (and grading) exams. December also means working hard to win the LDB Challenge--trying to make it to December 26 without ever hearing the Little Drummer Boy. New this year is an added challenge: Whamageddon (avoiding "Last Christmas," which I already lost on the way home from school today).

Anyone have favorite (or not-s0-favorite) holiday songs?  I'm especially fond of Elf's Lament. I don't think Santa's labor practices are entirely legal...

Posted by Cassandra Burke Robertson on December 1, 2017 at 08:19 PM in Music | Permalink | Comments (0)

Thursday, November 30, 2017

You're Invited! AALS 2018 in America's Finest City

The 2018 AALS Annual Meeting is just around the corner. And it's happening here in San Diego. So I naturally should bring my hosting skills. I plan to post about top things to do in San Diego [here's something not to do: do not bring your winter coats even though the conference is Jan 3-6]. Whether you are coming with a family or on your own there is something here for everybody. Do you love beaches or cities? upscale or hole in the wall eateries? the desert or the mountains?  Here in San Diego, why choose? everything is close by. Below is a picture I snapped of one of my regular running trails (can you spot my running buddy?). Along with fellow prawfs I hope to also plan our traditional MarkelFest one of the conference evenings. 

I also want to share a few of the exciting events that I am taking part in and would absolutely love to have everyone attend. First -- You gotta come celebrate with me! On Friday Jan 5, 5:30-7 USD Law is holding a reception celebration for my book (and I will talk about it a bit) You Don't Own Me and everyone is invited. My colleague Roy Brooks also has a new book out about racial justice and will speak as well. We have a beautiful campus and it's close to Old Town if you feel like having fresh made tacos and margaritas afterwards.

Second event, in which I become evil: The IP Evil Twin Debate is an annual debate, serious in substance but lighthearted in tone, we all wait for (a highlight - we get to write up (a parody of) our evil twin's bio). Last year it was Mark Lemley v. his evil twin Rebecca Tushnet debating patent law and at the 2016 event Pamela Samuelson took on her evil twin Randy Picker on copyright. This year Michael Risch is pure evil while I stand for everything that's good in a debate about trade secrecy. Christopher Cotropia is our fierce moderator. It's at Thomas Jefferson Law School Friday 430 to 530 (and then we can go together to my campus for the book event) -  It will be fun! 

Third event, a timely serious panel moderated by Ed Rubin (Vanderbilt) with Robert Post (Yale), Will Forbath (Univ. of Texas), Jide Nzelibe (Northwestern), and myself speaking about the role of the scholar in the larger society, both in general and in response to Trump's election.  This will include questions about scholarly agendas and standards of objectivity as well as our normative obligations to our students and our ability to be neutral in highly political climates. Jan 3 at 1:30.

Fourth event, not to neglect my employment law side -- I am part of the Employment and Labor law's section panel on The American Workplace in the Trump Era, Jan 5, 1:30. Hot-button issues - enforceability of class action waivers in arbitration agreements, discrimination on the basis of sexual orientation, joint employment doctrine, public employee speech, whistleblowing, NDAs and confidential settlements and more. 

 Other than that my dance card is completely empty - I look forward to seeing everyone!

 

San diego sunset

 

Posted by Orly Lobel on November 30, 2017 at 11:46 PM in Life of Law Schools, Orly Lobel, Things You Oughta Know if You Teach X, Travel | Permalink | Comments (4)

Rotations

Welcome to December and returning guests Andra Robertson (Case Western) and Michael Mannheimer (Northern Kentucky). And thanks to our November visitors for a great month.

Posted by Howard Wasserman on November 30, 2017 at 10:25 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 29, 2017

Carpenter – Post-Oral Argument Thoughts

The following guest post is by past guest-Prawf Andrew Ferguson (UDC).

Today, the Supreme Court heard oral arguments on the much awaited Fourth Amendment case of the term – Carpenter v. United States.  Fourth Amendment nerds from all over the country flocked to the Supreme Court like it was a constitutional solar eclipse. 

Carpenter involves the warrantless collection of historic cell phone records for location information covering 127 days.  Suspected of being involved in a series of armed robberies (ironically enough of cell phone stores), police used Timothy Carpenter’s cell phone location data to tie him to the crimes and obtain a conviction.  Carpenter appealed arguing that obtaining this information without a warrant violated his Fourth Amendment rights.

Continue reading "Carpenter – Post-Oral Argument Thoughts "

Posted by Howard Wasserman on November 29, 2017 at 06:41 PM in Constitutional thoughts, Criminal Law, Law and Politics | Permalink | Comments (12)

A Conversation in Chicago about Trinity Lutheran

A few days ago, thanks to the good people at the Lumen Christi Institute at the University of Chicago, I was able to participate in a panel/conversation about last year's Trinity Lutheran case with my friends Andy Koppelman and (fellow Prawf) Dan Rodriguez.  The video of the event is available here.  (As you'll see, the video-producers substituted some bald guy for me but the words and bad jokes were mine.)  Unfortunately, I suppose, for the organizers and audience, Andy and I were in substantial agreement for most of the event.

Posted by Rick Garnett on November 29, 2017 at 01:48 PM in Rick Garnett | Permalink | Comments (0)

Farewell

I’ve enjoyed my month guest blogging and receiving reader comments.  Thank you, farewell, and happy holidays!

Margaret

Posted by Margaret Ryznar on November 29, 2017 at 01:09 AM | Permalink | Comments (2)

Tuesday, November 28, 2017

The Judicial Power Over Patents and the Future of Administrative Adjudication after Oil States

The following guest post is by my FIU colleague Hannibal Travis, Professor of Law at FIU College of Law and this semester the Irving Cypen Visiting Professor of Law at University of Florida. He wrote about Oil States prior to argument.
OiOI

Although in a less spectacular way that in some other oral arguments, yesterday’s oral argument in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC put competing judicial philosophies on brief display.  Emily Bazelon, Eric Posner, Cass Sunstein, and others argue that one major “judicial philosophy,” by seeking to limit the discretion of administrative agencies, “would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers.”  Another judicial philosophy of “minimalism” and “majoritarianism,” according to Sunstein, would result in “reasonable” regulations being upheld from constitutional challenges.  There was a subtext of this struggle between constitutional worldviews as the justices questioned attorneys in Oil States.

Continue reading "The Judicial Power Over Patents and the Future of Administrative Adjudication after Oil States"

Posted by Howard Wasserman on November 28, 2017 at 11:25 PM in Civil Procedure, Intellectual Property | Permalink | Comments (0)

Sponsored Post: Evidence in Practice

The following post is by Deborah Jones Merritt & Ric Simmons (both of The Ohio State University-Moritz College of Law) and is sponsored by West Academic.

Law professors try to generate active, rather than passive, knowledge in students. We want our students to do more than simply recite legal rules—or even choose the correct answer to a multiple choice question. To work effectively as lawyers, our students must be able to seize relevant facts from an unfolding situation, recognize the legal implications of those facts, and craft solutions.

Classroom hypotheticals, writing exercises, and problem sets help develop active knowledge, but we wanted to go further for our Evidence students. The fourth edition of our book, Learning Evidence: From the Federal Rules to the Courtroom (West Academic Publishing), will include seven online courtroom interactives to aid active learning.

Continue reading "Sponsored Post: Evidence in Practice"

Posted by Howard Wasserman on November 28, 2017 at 09:31 AM in Sponsored Announcements | Permalink | Comments (1)

Bamberger & Lobel, Platform Market Power

Kenneth Bamberger (Berkeley) and I just posted our new article on SSRN- Platform Market Power. Over at Legal Theory Blog, Larry Solum wrote today that it is "Highly Recommended" - thanks Larry! Download it while it's hot and let us know what you think. Here is the abstract:

The rise of the platform economy has been the subject of celebration and critique. Platform companies like Uber, Airbnb, and Postmates have been rightfully celebrated as positively disruptive, introducing much–needed competition in industries that have been otherwise over–mature and stagnant. However, some of the leading new platforms have had such meteoric success that their growing market dominance and technical capacity raise questions about new forms of anti-competitive practices, and negative impacts on consumer and employee welfare.

In this Essay, we develop a framework for considering the market power of platform companies that use digital technology to connect a multi-sided network of individual users. Specifically, we use the example of Uber as a lens to identify eight questions that are important for assessing platform power. These questions address the way a range of issues play out in the platform context, including more traditional competition concerns around innovation, regulatory arbitrage, barriers to entry, and price setting through platforms’ use of the network form to coordinate transactions, the use of digital pricing, and the use of pricing bots. These questions also focus on new concerns about power derived from data collection and use; the use of data to expand into other markets; and the implications of market power for consumer choice about personal privacy.

Together, these questions provide policymakers a framework to consider whether and how questions of market power (and competition more generally) may pose complexity or require analytic adjustments—and how the development of platforms implicates both new opportunities for, and challenges to, consumer and employee welfare in the digital context.

Posted by Orly Lobel on November 28, 2017 at 01:59 AM | Permalink | Comments (0)

Monday, November 27, 2017

JOTWELL: Michalski on Dodge & Dodson on personal jurisdiction

The new Courts Law essay comes from Roger Michalski (Oklahoma--one of several new contributors to the section), reviewing William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, Mich L. Rev. (forthcoming), which argues for a national-contacts test for personal jurisdiction over non-US persons.

Posted by Howard Wasserman on November 27, 2017 at 12:19 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The future of intellectual property and the administrative state: Oil States v. Greene’s Energy (Guest Post)

The following guest post is by my FIU colleague Hannibal Travis, Professor of Law at FIU College of Law and this semester the Irving Cypen Visiting Professor of Law at University of Florida.

The Future of Intellectual Property and the Administrative State: Oil States v. Greene’s Energy

Efficient dispute resolution is something of a Holy Grail in intellectual property (IP).  Several of the major innovations in the field over the past two decades chased it: WIPO domain name dispute resolution, the statutory license process for webcasters and digital downloads of cover songs, the introduction of an theory of induced infringement into copyright jurisprudence affecting online intermediaries, the evolution of copyright filters such as ContentID and Audible Magic CopySense, and the America Invents Act of 2011.  The results have been mixed in many cases. 

The question being presented to the Supreme Court this week is whether the Constitution limits the trend towards dispensing with the trappings of federal civil procedure in certain IP disputes.  The Patent Trial and Appeal Board of the U.S. Patent and Trademark Office (PTO) has been considering more than 1,000 petitions per year, on average, for inter partes review (IPR) of patent claims that were not novel or that were obvious considering the prior art.  Patent law specialists comb through voluminous filings citing often obscure technical publications and foreign patents in a way that would be too time-consuming and expensive if done for each of the 500,000 patent applications submitted annually.

Continue reading "The future of intellectual property and the administrative state: Oil States v. Greene’s Energy (Guest Post)"

Posted by Howard Wasserman on November 27, 2017 at 09:31 AM in Civil Procedure, Intellectual Property | Permalink | Comments (2)

Old Friends, New Research

Interdisciplinary research is all the rage, and sometimes the best way to enter this world is by building bridges on campus with other departments.  

If readers have tips on building these cross-campus relationships, I'm all ears.  I’ve been lucky that an old friend and former classmate in the economics department from the University of Chicago recently arrived on my campus as faculty in the business school.  It wasn’t long before we started to brainstorm on the links between our fields. 

And now, we’re working on a new empirical project.  The hypothesis is that people are not aware of the legal consequences of marriage, and are not considering them seriously enough.  But, we shall soon see how the data turns out. 

 

Posted by Margaret Ryznar on November 27, 2017 at 04:33 AM | Permalink | Comments (2)

Sunday, November 26, 2017

Who heads the CFPB and how to find out?

Marty Lederman deconstructs (and questions) the OLC memo concluding that the President's appointment of Mike Mulvaney was lawful and controlling. Sam Bray argues that the answer is a quo warranto action filed by the AG or the US Attorney for the District of the District of Columbia.

On Sunday, Leandra English filed suit in the District of D.C., seeking a TRO and declaratory judgment (with a passing reference to a writ of mandamus) that she is the lawful Acting Director and that the Mulvaney appointment is invalid. The suit names Trump and Mulvaney as defendants, for a declaration barring Trump from appointing any other Acting Director and barring Mulvaney from asserting the authority of the office.

Posted by Howard Wasserman on November 26, 2017 at 10:28 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

An Imperfect Idea to Improve Immigration Court Practice

Immigrants often struggle to find quality representation in immigration court.  There are far too many scoundrels selling immigrants false hope and filing baseless asylum claims in exchange for up-front cash payments.  These lousy lawyers often escape accountability for years because the government deports their victims.

The best solution appears politically difficult.  It would be better to simply pay for immigration defense like we pay for criminal defense.  Sadly, the right to criminal defense does not now extend to the banishment and exile dispensed by our immigration courts.

I've thrown out an alternative, disclosing attorney track records and outcomes to prospective clients.  In theory, this would mitigate information asymmetries and help improve the market for immigration services.  The best could charge a premium for their services.  The worst might be driven out of business--which would be good for immigrants.  An immigration attorney in the bottom 10% actually reduces a client's chances below what she would face going without representation.

The proposal certainly has its warts.  Some lawyers might just duck hard cases to pad their stats and draw more clients.  Others might skew their advice to clients to obtain statistical wins for themselves.  Immigrants without enough money will still struggle to find representation.  In a best-case scenario, it's possible that securing representation by a lawyer with a strong record will make others more willing to lend to finance the representation.  It gives information that could be used to underwrite the risk.

Despite the flaws, I think it would be better to have the problems caused by too much information instead of the problems immigrants now face in a world with too little information.

Posted by Benjamin P. Edwards on November 26, 2017 at 09:30 PM | Permalink | Comments (1)

Kentucky Law Journal Accepting Submissions for 2018 Symposium

The Kentucky Law Journal is moving to a submission system for selecting its 2018 symposium. You can find more info here. The deadline to submit proposals is Jan. 1, 2018, and the symposium will be held in October or November. Past symposia have been a huge success.

Feel free to reach out to me or the EIC, Jordan Shewmaker (jordan.shewmaker@uky.edu), with any questions. 

Posted by Josh Douglas on November 26, 2017 at 01:21 PM in Symposium | Permalink | Comments (0)