Tuesday, February 23, 2016

Scalia's Pro-Business Legacy

By Professor Elizabeth Pollman 
This is an excerpt from an op-ed Professor Pollman wrote for The Atlantic.
Justice Antonin Scalia took his seat on the bench in 1986, during one of the greatest bull markets and the heyday of corporate mergers and acquisitions. In the three decades he served on the high court, he helped raise barriers for employees and consumers and he helped strike down limits on corporate political spending in the U.S. democracy. He will be remembered for his intellect and personality, but he should also be remembered for increasing the power of business in society.

For example, in Walmart Stores, Inc. v. Dukes, the Supreme Court denied 1.5 million women the ability to bring a class action against Walmart for unequal pay or promotions on the basis of sex. A class action would have allowed all of the women to join together in one gender discrimination lawsuit, brought by one set of lawyers who would be paid out of any recovery from the suit. These plaintiffs might not otherwise be able to surmount the logistical and economic obstacles to bring 1.5 million individual suits against one of the world’s largest companies. Without the class action, they might not even be aware of their own claims or the patterns of discrimination.

Read the full story here.

Monday, February 22, 2016

Politics and the Supreme Court

By Professor Eric Miller

Prof. Miller is guest blogging on Prawfsblawg, where this post originally appeared.

I had thought of writing something about Justice Scalia. I was not a huge fan of his politics; and I thought the manner in which he expressed himself both in his opinions and public appearances often went out of his way to diminish his opponents. If you were a criminal defendant, a person of color, a woman, a member of a labor union, or gay (the list is non-exhaustive), then at some point Justice Scalia did something that was materially harmful to your interests, and he usually disparaged you (or your legal proxy) for arguing for those interests in the forum of constitutional law. The fact that some people found him personally charming seems immaterial to those of us hurt by his decisions and outraged or disappointed or just plain unamused by his rhetoric. Donald Trump is also a personally charming man whose rhetoric and actions have malicious consequences, and I'm no longer a Tom Brady supporter given his "nice guy" defense of Trump. It's nice that the institution of the Court got to operate in a civil manner because he was not personally offensive to the other justices (or to his clerks or his former law school colleagues, it seems), but the great Justice could be notoriously churlish to those of us who were not a member of those clubs.

Monday, February 15, 2016

Ohio Gov. John Kasich is Really Running for Vice President

By Professor Justin Hughes
Originally posted on The Los Angeles Daily News

Ohio Governor John Kasich just did very well in the New Hampshire primary — second place behind Donald Trump and first among the pack that might be called “mainstream” Republican candidates. That success will hide from view something that John Kasich knows all too well: that by running in these primaries Kasich has made himself the GOP’s most obvious and most perfect choice for a vice presidential nominee. If Trump heads the ticket, Kasich brings serious foreign affairs, Washington and executive government experience, not to mention a sensible, moderate voice. And he helps galvanize Ohio’s critical swing vote — ask any pundit or politically mindful Ohioan: you have to go back to 1960 to find someone elected president who did not carry the Great State of Ohio.

Kasich would bring that same formula to a Cruz campaign, a Rubio campaign, a Bush campaign or a Carson campaign.

Sunday, February 14, 2016

Recess Appointments and the Scalia Vacancy

By Professor Aaron Caplan

No semester of Constitutional Law ever goes by without a teaching opportunity taken from the front pages. This post suggests how teachers can connect yesterday's unexpected death of Justice Antonin Scalia to the recess appointments clause of Art. II, sec. 2, cl. 3. That clause was at issue in NLRB v. Noel Canning (2014).

The timeline:

Friday, February 12, 2016: The Senate goes into intra-session recess scheduled to end on Monday February 22. This gives legislators a break for the week containing the President's Day holiday (Monday February 15).

Saturday, February 13: Justice Scalia dies.

Sunday, February 14: Today.

If the President can lawfully make a recess appointment, the new justice would serve until the "end of [the Senate's] next session." At the latest, the session of the Senate will end when the new Congress takes office; according to the 20th Amendment this will occur on January 3, 2017 or another date set by statute. (January 3, 2017 is a Sunday, so perhaps such a statute exists.) At the earliest, the session ends when both Houses of Congress agree to adjourn. According to Art. I, sec. 5, cl. 4, neither house can adjourn for more than three days without the consent of the other.

So is a recess appointment allowed this week? If Justice Scalia's concurrence in Noel Canning had prevailed, the answer would be an easy "no." In his view, a recess appointment is allowed only during a recess that falls between two sessions of Congress, and not during an intra-session recess like this one. Moreover, he believed a recess appointment was possible only if the vacancy begins during such a recess between sessions. Since the vacancy did not occur within the right kind of recess, no recess appointment would be allowed.

The majority would reach the same result through a different route. The majority view in Noel Canning does not require that the vacancy begin during a recess. Nor does it prohibit recess appointments during intra-session recesses. But to be constitutional, a recess appointment may only be made during a recess that is sufficiently long that the Senate's inability to timely confirm the nominee would pose a significant problem for effective governance. The majority believed that such recesses must, as a matter of constitutional requirement, be more than three days long, and that a recess of ten days or less was presumptively not long enough to trigger the recess appointment power, although that presumption could be potentially be overcome. It is hard to see how it could be overcome on these facts, since the Court is capable of operating with eight members for the coming week, after which time the Senate returns and can consider nominations under the usual process.

Thus, under either Noel Canning approach the President would not be able to appoint a new justice this week, since it falls within an intra-session recess of ten days and the vacancy occurs with nine days of recess remaining.

Going forward, either house of Congress can prevent any possible recess appointment by ensuring that no sufficiently long recess occurs. The majority in Noel Canning made clear that the Senate is "in session" when it says it is, even in a pro forma session where no business is conducted. Hence, the Senate could choose to bang the gavel once every two or three days and stave off recess appointments. Or, as happened in Noel Canning itself, the House could refuse to give the Senate permission to adjourn for longer than three days, forcing the Senate once again to bang the gavel.

Because Noel Canning has as a practical matter made recess appointments over the objection of either house of Congress impossible, the courts will not need to puzzle through a question not presented in that case: namely, what does it mean for a recess appointee to finish a term at the "end" of the "next" session? Assume the President actually makes a recess appointment in February 2016. Assume Congress takes a one-month intra-session recess on August 1. It then adjourns the entire session on December 1, 2016, allowing the new Congress to begin its session on January 3, 2017. Does the recess justice's term end on August 1, September 1, December 1, or January 3? Looks like we won't find out.

Friday, February 12, 2016

Faculty Workshop Series: The End of Integration

Yesterday Professor Michelle Adams of the Benjamin N. Cardozo School of Law, Yeshiva University will be the presenter at the LLS Faculty Workshop.  Her presentation “The End of Integration” draws from her immense expertise on affirmative action, civil rights and race discrimination, and constitutional law.  At Cardozo, Professor Adams serves as the co-director of Floersheimer Center for Constitutional Democracy.  Her law review articles have appeared in the California Law Review, the Texas Law Review, the Iowa Law Review, the Boston University Law Review, and other scholarly journals.  She is the author of several amicus briefs in the United States Supreme Court and regularly presents her work and blogs on legal issues for various interactive websites, including NYTimes.com.

Tuesday, February 2, 2016

Prof. Glazier's Amicus Briefs in Military Commission Case Finds Influential Audience

As reported in an earlier post on Summary Judgments, Professor David Glazier has filed two amicus briefs in support of Abd al-Rahim al-Nashiri, the high-profile Guantanamo detainee. Now, the merits of the arguments contained in those briefs are addressed on LawFare.

Both amici address the unintended consequences of allowing the government to treat the existence of hostilities as a factual question subject to retrospective determination. They both argue that perceptions of the legitimacy of our military courts system affect the security of our armed forces. The RMAG amicus argues that reciprocity is a key determinant in ensuring the safety of US troops that are captured abroad, citing as evidence of the power of reciprocity and legitimacy the fact that 99% of U.S. war prisoners in Germany during World War II survived.

Dean Paul Hayden Continues Legacy of Prosser & Keeton on Torts

Few law books are as universally recognized for their impact on a subject area as “Prosser & Keeton on Torts.” Loyola Law School Interim Dean Paul T. Hayden is carrying on the legacy of the 1941 tome that has become an essential study aid for generations of law students and lawyers. Along with two co-authors, he recently published “Hornbook on Torts,” a 1,200-page book that provides a single-volume overview of the entire field of tort law that is the successor volume to Prosser & Keeton’s work.

Originally written by William Lloyd Prosser, iconic professor and longtime dean of Berkeley Law, and later joined by Page Keeton, dean of the University of Texas Law School, the last edition of that hornbook book came out in 1984. Hayden’s collaborator Dan B. Dobbs (himself a co-author of the 1984 Prosser & Keeton edition) produced the first new edition of its replacement (titled “The Law of Torts”) in 2000. Hayden began writing the annual supplements to that book several years later. A few years ago, Hayden, Dobbs and co-author Ellie Bublick decided it was high time for second edition, which hit shelves in early January 2016.
The impact and importance of the new book are not lost on Hayden. “The ‘Prosser & Keeton Torts Hornbook’ was one of the books I relied on heavily as a first-year law student 35 years ago,” said Hayden, the Thomas V. Girardi Professor of Consumer Protection Law. “It’s gratifying to be part of such a legacy.”

Hayden’s other works include the widely adopted casebooks “Ethical Lawyering: Legal and Professional Responsibilities in the Practice of Law,” “Torts and Compensation,” “Global Issues in Tort Law” and “The Law of Torts,” a four-volume treatise with annual supplements. But “Hornbook on Torts” possesses a unique value to Hayden.

“We hope that it will aid law students, professors, lawyers and judges as they navigate an area of law that is superficially simple but often mystifyingly complex and obtuse in application.”