The Faculty Lounge

Mitchell-Hamline Prof. Appointed to Judgeship

Professor Colette Routel, a well-known professor in the Federal Indian Law community, has been appointed to a judgeship in Hennepin County, Minnesota. In making the appointment, Governor Walz rightly recognized Prof. Routel as  “a brilliant lawyer who brings a unique perspective with her many years of experience as an attorney, tribal court judge, and law professor.” The full press release is here. Hennepin County has gained an important jurist, and it's a credit to the State of Minnesota that such a stalwart advocate for tribes was appointed to a judgeship. At the same time, the Indian Law Community of academics and practitioners will miss her sorely. Among many other accomplishments, Prof. Routel has been nothing less than a force of nature when it comes to writing amicus briefs in federal Indian law cases. Congratulations to Professor Routel!

Judges and the Duty to Listen

One of the things progressive legal academics love to angst about is the relationship between minority rights and the courts. Sometimes, it seems like our analysis reflects little more than the changing political alignment of the judiciary. The Warren Court appears to make great strides in protecting marginalized communities from democratic predations, and so we produce deep tracts explaining why courts are important countermajoritarian bulwarks. Then we experience a significant conservative retrenchment during the Burger/Rehnquist/Roberts years, and the tenor of the scholarship changes -- it turns out that courts are poor vehicles for progressive social change. And now, with Democrats potentially gaining control over the judicial branch for the first time in a generation, the pendulum swings again: progressives are urged to abandon our "defensive crouch" and reassert a muscular left constitutionalism.

None of this seems to do much in the ways of explaining why courts are supposed to be systematically more sympathetic to outgroups compared to the political branches. One could argue that we got idiosyncratically lucky with the Warren Court, and have been misled ever since. The Warren Court, after all, did what it did in part because it turned out that the overseer of Japanese internment and a former Alabama klansman were willing to promote historically progressive racial policies. This does not seem like the sort of historical fortune likely to be replicated. There is something odd, it must be said, about starting with the problem of political marginalization and ending with the idea that we should delegate those issues to a institution that is whiter, maler, richer, and older than the American population writ large.

Call for Contributions - Feminist Judgments: Rewritten Tax Opinions

bumping to the front; February 29 deadline for applications

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Tax Opinions. This edited volume, to be published by Cambridge University Press, is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, will be published in 2016 by Cambridge University Press. (That book’s Introduction and Table of Contents are available here.) Subsequent volumes in the series will focus on different courts or different subject matters. This call is for contributions to a volume of tax decisions rewritten from a feminist perspective.

Tax volume editors Bridget Crawford and Anthony Infanti seek prospective authors for 8 to 10 rewritten tax-related opinions covering a range of topics. Authors are welcome to suggest cases of their own choosing or to consult the editors or others for ideas. All tax-related cases are appropriate for rewriting. Possible cases from U.S. courts are listed here, but that is not an exhaustive list. Cases may come from any jurisdiction and any court, including non-U.S. jurisdictions. The volume editors conceive of feminism as a broad movement concerned with justice and equality, and welcome proposals to rewrite cases in a way that bring into focus issues such as gender, race, class, disability, sexual orientation, national origin, and immigration status.

As the core of the Feminist Judgments Project is judicial opinions, proposals must be either to (1) rewrite a case (not administrative guidance, regulations, etc.) or (2) comment on a rewritten case. Rewritten opinions may be re-imagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000 word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made (4,000 word maximum for the commentary). Commentators and opinions writers who wish to work together are welcome to indicate that in the application.

In suggesting possible cases for rewriting, the volume editors have had the input and advice of an Advisory Panel of distinguished U.S. scholars including Alice Abreu (Temple), Patricia Cain (Santa Clara), Joseph Dodge (Florida State), Mary Louise Fellows (Minnesota), Wendy Gerzog (Baltimore), Steve Johnson (Florida State), Marjorie Kornhauser (Tulane), Ajay Mehrotra (American Bar Foundation, Northwestern), Beverly Moran (Vanderbilt), Richard Schmalbeck (Duke), Nancy Shurtz (Oregon), Nancy Staudt (Washington University), and Lawrence Zelenak (Duke).

The U.S. Feminist Judgments Project approaches revised judicial opinion writing as a form of critical socio-legal scholarship. There are several world-wide projects engaged in similar efforts, including the U.K.-based Feminist Judgments: From Theory to Practice (2010); Australian Feminist Judgments: Righting and Rewriting Law (2014); the Women’s Court of Canada; ongoing projects in Ireland, New Zealand, and a pan-European project; and other U.S.-based projects currently under way.

Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten tax cases should fill out an application here.

Applications are due by February 29, 2016 at 5:00 p.m. eastern. Editors expect to notify accepted authors and commentators by April 15, 2016. First drafts of rewritten opinions will be due on August 15, 2016. First drafts of commentary will be due on September 15, 2016.

Planned Parenthood Defunding as Unconstitutional Bill of Attainder?

David Cohen (Drexel) had an interesting op-ed in the Philadelphia Inquirer on Sunday arguing that the current legislative efforts (at both the federal and state levels) would, if successful, result in unconstitutional bills of attainder. 

From David's piece, which is available here ...

"A bill of attainder is a law that inflicts punishment upon a particular individual without a judicial trial.     In other words, a bill of attainder is, as the Supreme Court has termed it, a 'trial by legislature' rather     than by court.

"The Constitution prohibits both Congress and state legislatures from enacting bills of attainder for two     important reasons that go to the heart of our democracy. One, laws that target individuals threaten civil     liberties because legislatures do not afford individuals the protections of a trial. Two, bills of attainder     conflict with basic notions of separation of powers. . . .

"Though no one is talking about it, this most recent dust-up over federal funding for Planned Parenthood   is very clearly an example of an unconstitutional bill of attainder: Congress is singling out Planned     Parenthood and punishing the organization for allegedly improper and illegal actions.

"More specifically, a bill of attainder has to meet three legal requirements: The law has to 'determine guilt and inflict punishment,' it must act 'upon an identifiable individual,' and it must do so 'without provision of the protections of a judicial trial.' All these requirements are met here."

While I am not a Constitutional Law expert, David makes a pretty compelling argument.  Thoughts?

Formal Poetry Contest Based on Scalia's 2015 Disssents

I can't vouch for this organization, but the challenge they pose sounds super fun.

 

More information is available at:  http://poetrybusinessmanager.com/1st-annual-scalia-dissents-formal-poetry-contest/

Law Clerks, Confidentiality, and David Lat's "Supreme Ambitions"

Out here in the great Pacific NW, the Portland outpost of the Ninth Circuit Court of Appeals just had a fantastic book club discussion of David Lat's new novel, "Supreme Ambitions," hosted by none other than Judge Susan Graber.  As the Washington Post noted, "Supreme Ambitions" is "an engrossing page-turner that focuses on the ... subject of federal judges and their law clerks."  It's also a thriller, a love story, and tale about an ethical quandry--all wrapped up in one extremely diverting novel!

Among his other pursuits, Lat is founder and managing editor of Above the Law, and thus tightly plugged into the sturm und drung of being a newly graduated lawyer in the 21st century.    This, combined with a tremendous variety of ages and experience at the book club luncheon (ranging from fresh-faced law clerks to almost 30 years on the federal bench), made for a fascinating and wide-ranging discussion about the topics in the book.

So as not to give away the plot of the book (which I highly recommend), I wanted to focus on one topic that sparked a good discussion at the book club meeting:  the question of confidentiality.  Judicial clerkships are an interesting beast, yoking the appointed or elected judges to brand new law graduates, and giving these law clerks unprecedented access to confidential information and influence over how cases are decided.  How strong is the ethos of confidentiality in this atmosphere?   If there is potential wrongdoing by a judge, is it the law clerk's duty to report it?  Or are law clerks simply extensions of the judge, not authorized in their own right to do anything without the imprimatur of the court?

We've had law clerk confidentiality leaks before, of course.  Edward Lazarus, a former Blackmun clerk, famously--and controversially-- published an entire book about the "secrets" of the Supreme Court in Closed Chambers.  As the blurb for the book itself notes, this caused a "firestorm of controversy," with an argument about confidentiality and ethical violation pitted against an argument about openness and transparency in the justice system.

This last point, in my opinion, is why both lawyers and laymen have a constant fascination with what goes on inside the judiciary.  Much of American adjudication takes place behind closed doors.  Any  insider account is all the more thrilling because the general public knows so little about the machinations of decision-making.   This is particularly true in criminal justice, where we have gone from a system of jury trials to a system of plea bargains, shifting the adjudications from public to private.   The public simply desires to peer behind the alabaster columns and underneath their robes, whether it's the local judiciary or the Supreme Court (which still refuses to allow cameras for oral arguments!)

In any case, if you want to have a captivating read that also gives you the inside scoop on the exciting life of a 9th Circuit law clerk in glorious Pasadena, CA (home to my beloved judge A. Wallace Tashima) , be sure to pick up Supreme Ambitions!

Jury Trial removal and the Boston Marathon bomber trial

With so much going on in the news, the details of the Boston Marathon Bomber's jury trial have fallen from the headlines a bit, at least for those of us not in New England.  Yet even before the trial starts, a controversy has erupted over whether the trial venue should be changed from Boston to another federal district.   I find this issue, one of jury rights and community rights and defendant's rights--fascinating, and so I wanted to share some of what's been published recently:

1) Tsarnaev's defense, having had their motion for removal twice rejected already, is hoping that hopefully third time will be the charm, filing today.  (hat tip:  Legal Times & Howard Bashman)

2) Leon Nefakh has a fascinating piece in Slate today discussing jury bias in the Tsarnaev, Eton Patz, and Colorado shooting jury trials

3) The New York Times recently held one of their "Room for Debate" online forums on whether Tsarnaev's trial should be moved, featuring Valerie Hans, Jeffrey Abramson, Lincoln Caplan, Richard Lind, Thaddeus Hoffmeister, and myself. 

Happy reading!

Kozinski, For The Ages

Dissenting in Alvarez v. Tracy, in which a panel upheld the lower court's denial of a habeas petition:

I have read the opinion many times and disagree with pretty much everything in it, including the numerals and punctuation. I explain why in the pages that follow, but first I pose a more basic question: How can a court committed to justice, as our court surely is, reach a result in which the litigant who can afford a lawyer is forgiven its multiple defaults while the poor, uneducated, un-counseled petitioner has his feet held to the fire? I attribute no ill will or improper motive to my excellent colleagues. They are fair, honorable and dedicated jurists who are doing what they earnestly believe is right. But we see the world very differently.

H/T Sonja West

Filibuster Reform and Consumer Protection

Everyone understood how much was at stake last year when Senate Democrats eliminated the filibuster for judicial nominations to the federal district courts and courts of appeal. And it didn’t take long for the new “Democratic” majority on the U.S. Court of Appeals for the D.C. Circuit to flex its muscles. In late July, the court reversed course on the balance between the public’s interest in regulation of business practices and the corporate interest in freedom of speech.

In earlier decisions, the court of appeals had struck down graphic warnings for cigarette packs and a requirement that manufacturers disclose whether they produce their goods with minerals mined in the Democratic Republic of Congo. But the en banc court, in rejecting a challenge to country-of-origin disclosure rules for meat products, concluded that the earlier decisions did not allow sufficient leeway for the government to mandate warnings or other informational disclosures to the public.

Perhaps the U.S. Supreme Court will restore the D.C. Circuit’s previous balance, but for now, the tide has turned in favor of consumer protection.

Stanford's Mariano-Florentino Cuéllar Nominated To California Supreme Court

I just missed this one last month.  Professor Tino Cuéllar of Stanford Law School was nominated to serve on the California Supreme Court by Governor Jerry Brown.  There he would join fellow academic Goodwin Liu.  He needs a statse bar commisision OK  after which he will need voter approval this November.  It's all in the family.  His wife, Lucy Koh, is a on the federal bench in the N.D. California.

Federal Pleading

    As many of you know, my main area of academic interest is cyberlaw and intellectual property. But I also spent a fair amount of time teaching civil procedure and have an interest in how procedure affects substantive rights. I have certainly been aware of the major change in federal pleading brought about by Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Supreme Court transformed how federal pleading works from the “notice pleading” recognized by Conley v. Gibson, 355 U.S. 41 (1957), to a new standard often called plausibility pleading. See Twombly, 550 U.S. at 556.

    Although the Supreme Court couched the transformation of pleading standard as an attempt to clarify a rule that had been “questioned, criticized, and explained away,” Twombly, 550 U.S. at 562, it was, in reality, a modification of the rules of pleading that had been written into the rules from their origin in the 1930s. This difference has now returned to cause great difficulty in the intellectual property field, particularly for patent infringement claims. As several courts have now discovered, the Supreme Court’s modification of Rule 8 without following the Rules Enabling Act’s provisions that allow the rules to be amended, see 17 U.S.C. §§ 2071–74, have left us with a set of federal rules that are internally inconsistent. Rule 84 reads, “The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.” Comparing the new plausibility pleading standard with Form 18 (supposedly sufficient to state a claim in patent infringement) brings out the conflict. As one court stated:

Without doubt, Twombly and Iqbal also implicate the “sufficiency” statement in Rule 84. In particular, when Rule 84 says that a form “suffices under these rules,” it obviously refers, inter alia, to Rule 8(a) and to Form 18 which posits what was thought before Twombly and Iqbal to be sufficient, at least as to claims of direct infringement. And, if the Supreme Court, as it clearly did in Twombly and Iqbal, says that Rule 8(a) must be applied differently than is provided for in a form, then the viability of the form must be measured against the new standard, even if the effect of doing so is to nullify the form.

Macronix Intern. Co., Ltd. v. Spansion Inc., 2014 WL 934505 (E.D. Va. 2014). In other words, Twombly and Iqbal have repealed Rule 84.

    Another district court dealing with an similar patent infringement claim was willing to call out the Supreme Court:

The Forms in the Federal Rules Appendix, such as Form 18, satisfy the federal pleading rules and illustrate the simplicity and brevity that these rules contemplate. Rule 84 and the Advisory Committee notes to the 1946 amendment of Rule 84 make clear that the proper use of a form contained in the Appendix of Forms effectively immunizes a claimant from attack regarding the sufficiency of the pleading. That immunizing effect is not altered by variations in regional circuit law, because the Federal Rules cannot be amended by judicial interpretation. Accordingly, to the extent any conflict exists between Twombly (and its progeny) and the Forms regarding pleading requirements, the Forms control. Nevertheless, an implausible claim for patent infringement rightly should be dismissed.

JDS Uniphase Corporation v. CoAdna Photonics, Inc., 2014 WL 2918544 (N.D. Cal. 2014) (quotation marks and citations omitted).

    Examining Form 18 shows how far plausibility pleading is from what the rules establish as the requisite. To allege patent infringement, the form requires four paragraphs:

    1.    A statement of jurisdiction (Referencing Form 7: “This action arises under Title 35 of the U.S. Code.”).
    2.    A statement of patent ownership (“A U.S. patent no. ###### that claims <short description of patent claim> was issued on <date> to the plaintiff who owned it during the infringement and still owns it.”);
    3.    A statement of infringement (“The defendant has infringed the patent by making, using or selling it.”); and
    4.    A statement of notice of patent (“A statutory notice was placed on the product by the plaintiff and a written notice of infringement was sent to the defendant.”).

Note that many of these phrases authorized by Form 18 are “conclusory [in] nature.” Iqbal, 556 U.S. at 681. Paragraph 1 states the conclusion that the action is brought under Title 35. Similarly, paragraph 2 establishes ownership without pleading the facts that establish it; paragraph 3 asserts infringement without providing the facts of when this happened, where it occurred, how it was done, or even which products of the defendant were infringing; and paragraph 4 concludes compliance with notice provisions without any specification of the when, where, how or why.

    Now, of course, the requirement of pleading a patent infringement complaint (or most other actions, see, e.g., Form 10 & 11) is unclear. Cautious counsel may spend considerably more time drafting a complaint so that it begins to resemble the “who, what, when, where and how” that was required by the code pleading system the Federal Rules replaced. The extra money this is likely to cost may be worth it if it avoids a 12(b)(6) battle over the form of the pleading even though avoiding pleading battles now is as unlike as it was under the code system of pleading.

    Rule 84 demands “simplicity and brevity.” Rule 8(e) demands a pleading system “to do justice.” The Supreme Court’s target may have been business and civil rights litigation as were involved in Twombly and Iqbal, but no matter that shows up in federal court is likely to be immune. Let’s argue about the form of the pleading rather than the merits of the action. Counsel: Prepare your demurs and your dilatory and peremptory pleas!

As a Supreme Court Justice, Does Sexism Go Away?

That's essentially what George Stephanapoulos asked Justice Sotomayor on today's This Week.  Here is a partial transcript:

GEORGE STEPHANOPOULOS: You also write in your book about some of the sexism you faced even as a prosecutor. Any as a Supreme Court justice or does it go away? 

SONIA SOTOMAYOR: It hasn't happened in awhile where someone called me honey. But you know people did when I was on the federal bench below. 

STEPHANOPOULOS: On the federal bench? 

SOTOMAYOR: Oh, yeah. And I'm sure that the marshall who called me honey thought it was a term of endearment. But I'm equally sure that he would not find a term of endearment or using  for a male judge.

STEPHANOPOULOS: And on a Supreme Court dominated for generations by men, she's now one of three female justices. We talked about the difference a woman judge makes, justice makes. Do you think a woman president would make a big difference? 

SOTOMAYOR: Oh, probably at least in some little girl's perceptions of herself. And that is important enough. 

STEPHANOPOULOS: And you have seen that as a justice? 

SOTOMAYOR: I’ve seen it as a justice. I can't tell you the letters I have gotten from children talking about the impression that having me on the court has made on them.

YouTube clip here.

 

 

Technology in the Courts

    Much of my scholarship addresses cyberlaw. In order to keep up in this field, I have to follow the developments in two fields: law (obviously) and computer science. For this second area, it helps that I am trained in computer science and spent several decades programming for a variety of businesses. As part of the process of keeping up with computer technology, I maintain my membership with the Association for Computing Machinery, the primary academic society for computer science.

    In this month’s Communications of the ACM, there was an interesting commentary entitled, “Technology Confounds the Courts.” It was written by Keith Kirkpatrick, apparently a non-lawyer. Comm. of the ACM, May, 2014, at 27. In the article, Mr. Kirkpatrick attempts to identify the reasons why our courts often do a poor job of understanding the computer technology that is involved in many modern cases. I found this commentary interesting as it examined a commonly identified problem within cyberlaw from the perspective of a technologist. Two of his points — the age of judges and the narrowness of decision-making — miss the mark. His underlying point — that judges need to understand technology — is sound although achieving the goal may be more difficult than he realizes.

The Misses

    Several times the author raises the average age of judges as a cause of their technological ignorance. See id. at 27 & 28. He also raises a somewhat related issue: the fact that our federal judges are appointed for life. See id. at 29. On these issues being a significant source of technological ignorance in the judiciary, I assert that Mr. Kirkpatrick is just plain wrong. A lot of us grey hairs have comprehensive knowledge of the current technology and how it is used. I could choose many examples, but I will highlight one of the professors I have always held in high regard, Frederick Brooks of the UNC Computer Science Department. According to his biography, Dr. Brooks is 83 years old. He has been a very important leader in the computer science field since the 1950s when helped develop the most famous line of mainframe computers ever, the IBM 360 series. He founded the computer science department at UNC where he is actively involved in researching virtual reality, hardly a backwater area of computer science. Similarly, most judges of my experience are not monk-like. They read the paper (probably online) and even Reddit. They serf the Web. Their exposure to technology is similar to others with busy lives. Mr. Kirkpatrick: age is irrelevant.

    The author also complains about the narrowness of many technological-related decisions. See id. at 28–29. Here, he needs to better understand our legal system. Because we live in a common law country, a fundamental aspect of the system is that the courts render as narrow of a decision as the facts allow. Rather than being a fault, seeking the narrowest grounds for decision has kept the common law functioning for centuries.

The Hit (Well, Mostly)

    Judicial ignorance of technology may not be complete, but its existence is impossible to deny. See, e.g., St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773 (S.D. Tex. 1999). The harder question is deciding how this can be changed. Mr. Kirkpatrick advocates for a more specialized court using both the EU’s Court of Justice and the Japanese Intellectual Property High Court as examples. Kirkpatrick, Technology Confounds at 29. For the EU court, “the more complex selection and appointment process involving a disparate group of EU members ... are more likely [to result in judges who are] current on a greater variety of technologies.” Id. For the Japanese court, he suggests that its use of full-time technical advisors will result in more competence. See id. Of course, he did not need to go overseas for examples as the U.S. Federal Circuit with its patent expertise would also seem to qualify (although far from all of the judges appointed to the Circuit have technological backgrounds).

    Personally, I’m not sure how well a specialized, technology court would work. In the U.S., at least, we would still run into the “one supreme Court” language in Article III of the Constitution. Even if a technology court decided a case, it would be subject to an appeal the Supreme Court; indeed, this is the pattern with the Federal Circuit and the Supreme Court. In my area of cyberlaw, for example, the Federal Circuit often has a better understanding of the technology even though the Circuit might forget the broader purposes of the patent act. Ultimately, though, it is the Supreme Court’s often mistaken understanding of the technology that rules the day.

    More importantly, it is not clear that a technology court is practical. To start with, which technology? As Mr. Kirkpatrick’s article correctly points out, our court system has done a horrible job articulating a functional system of laws for computer software. Part of the reason for this is that even our more techno-centric court lacks any members with the relevant computer science training. The Federal Circuit has numerous judges trained in chemistry and other traditional scientific areas — as well as some trained in history and other liberal arts — but it does not have computer scientists. This is problematic as it has become impractical to be the technological Jack-of-all-trades that it was possible to be through the late 1800s or early 1900s.

    What that leaves is a suggestion in the article that our judges no longer pretend that they can understand all forms of technology without assistance. So, if a court recognizes that it needs help, where does it turn? One source that Mr. Kirkpatrick does not discuss is the lawyers who are representing the parties. There are numerous examples of case where the parties prepared a joint technology statement to help the court understand the issues. Of course, this only works where the parties agree about the technology — something that is less true in intellectual property litigation where defining the technology “your way” is often equivalent to winning. Further, it assumes that the legal team is sophisticated enough about the technology to be able to competently articulate it.

    The other possibility, of course, as Mr. Kirkpatrick suggests, is to encourage the judges to recognize their technological shortcomings and to appoint masters under Rule 53 to help the court determine the technologically based facts. Unfortunately, the limited nature of the rule and the requirements of the Constitution may interfere. Rule 53 only allows masters if both parties consent, Fed. R. Civ. P. 53(a)(1)(A), or if the case is a non-jury case and is “exceptional,” id. 53(a)(1)(B). The Constitution imposes two limitations on the use of masters: each parties right to have the case ultimately decided by a Judge appointed under Article III and to demand a jury trial in many cases.

    Even with the constitutional limitations, however, it would seem to be time to revisit the use of masters in technology cases within the federal system. For non-jury cases, the rule could be easily amended to make it clear that complicated technology underlying a case is an “exceptional condition” that the rule requires. Id. Obviously, the rule has to recognize the jury trial right provided by the Seventh Amendment. It would seem that a master’s report on the technology could be submitted to the jury to assist it in its decision-making in the same way that the report would be submitted to the judge in a non-jury matter. In both cases, the Article III or Amendment Seven decision-maker would be preserved while providing them with technological expertise from a neutral source.

Justice Scalia's Dissent in Windsor & Why Everyone Should Learn Indian Law

I was reading Justice Scalia's dissent in Windsor the other night and came across a statement that was wrong in regard to whether the Court had decided a previous case in which the plaintiff and defendant were not adverse.  There is a very clear example from federal Indian law that contradicted his statement that the Court has never decided such a case, yet no one, as far as I could tell, cited it in the briefs or in any of the opinions.  This experience reminded me how important Indian law is, even for those who don't practice or teach it.

Specifically, Justice Scalia says "[w]e have never before agreed to speak--to 'say what the law is--where there is no controversy before us."  United States v. Windsor, 133 S. Ct. 2675, at 2700 (Scalia, J., dissenting).  So convinced is he of this proposition that he repeats later on, "[t]he majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below."  Id. at 2702.

Yet, in Menominee Tribe v. United States, 391 U.S. 404 (1968), Justice Douglas, writing for the majority, explains:  

" The Court of Claims by a divided vote held that the tribe possessed hunting and fishing rights under the Wolf River Treaty; but it held, contrary to the Wisconsin Supreme Court, that those rights were not abrogated by the Termination Act of 1954. We granted the petition for a writ of certiorari in order to resolve that conflict between the two courts.  On oral argument both petitioner and respondent urged that the judgment of the Court of Claims be affirmed. The State of Wisconsin appeared as amicus curiae and argued that that judgment be reversed."  Id. at 407 (emphasis added).

This could have been an incredibly useful case for the majority opinion (and the plaintiff's argument), and knowing about it and distinguishing it could have strengthened Justice Scalia's dissent, but apparently it was on no one's radar, which demonstrates I think just how marginalized federal Indian law is.  

Justice Scalia, for his part, has, at least in the past, controversially suggested that he doesn't need to decide Indian law cases based on precedent, so perhaps there is little reason, in his view, for him to be well-versed in the precedents.   In a 1990 memo to Justice Brennan, he is reported  to have said:  "[O]ur opinions in this field have not posited an original state of affairs that can subsequently be altered only by explicit legislation, but have rather sought to discern what the current state of affairs ought to be by taking into account all legislation, and the congressional 'expectations' that it reflects, down to the present day."  Philip P. Frickey, "A Common Law for Our Age of Colonialism: the Judicial Divestiture of Indian Tribal Authority over Nonmembers," 109 Yale L.J. 1, 63 (1999) (emphasis added).  And, of course, it wasn't just Justice Scalia's oversight--apparently no one thought to raise or distinguish Menominee Tribe.  

But Windsor is evidence of why federal Indian law is important, even if you don't expect to teach it, practice it, or decide cases based on it.  It relates to other areas.   Not only do the cases include structural constitutional issues like the case or controversy requirement, but federal Indian law, contrary to most people's perceptions, is a very broad subject.  Issues of taxation, criminal jurisdiction, civil jurisdiction, civil rights, administrative law, environmental law, and child welfare all come up with some regularity.

And that's just the beginning.  There's also the fact that federal Indian law is incredibly interesting in it's own right, and it provides important insight into our government and society.  Felix Cohen, the primary architect of the field, once explained:  "'Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians . . . reflect[s] the rise and fall in our democratic faith."   Rennard Strickland, "Indian Law and the Miner's Canary:  The Signs of Poison Gas," 39 Clev. St. L. Rev. 483, 483 (1991).  If you want to learn about white fear, for example, just read a Supreme Court case about tribal jurisdiction.  Jurisdiction cases such as Oliphant v. Suquamish Indian Tribe, Plains Commerce Bank v. Long Family Land & Cattle, Nevada v. Hicks, and Justice Kennedy's concurrence in the judgment and Justice Souter's dissent in United States v. Lara are replete with concerns (sometimes implicit but always readily perceptible) that tribes will not treat non-member litigants fairly.  Sometimes I wonder why all of this concern exists.  And then America's history of interaction with tribes pops into my head and explains it.  Assimilation, termination, extermination have all been official U.S. policies with respect to tribes.  As a psychological matter, the fear is understandable.

Along with white fear, you can see the cases in a broader context and think about our government's hypocrisy.  While the Court worried about potential unfairness to nonmember litigants in tribal courts, and denied tribal jurisdiction as a prophylactic measure to prevent it, American officials were busy waterboarding and otherwise torturing non-citizens suspected of terrorism, and the federal courts seemed eager to avoid hearing about it. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009); El-Masri v. United States, 479 F.3d 296, 300 (4th Cir. 2007); Ann E. Tweedy, "Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States V. Lara: Notes Toward a Blueprint for the next Legislative Restoration of Tribal Sovereignty," 42 U. Mich. J.L. Reform 651, 707 n.274 (2009).

 And beyond of all these macro issues, federal Indian law, given its variety and complexity, is endlessly interesting.  Not to mention that working for tribes is an incredible learning experience and one of the best jobs out there.

Judge Gould on overcoming obstacles

Here's an inspiring video about the Ninth Circuit judge I clerked for, the Honorable Ronald M. Gould.   He was a great judge to work for, and this is both a wonderful testament to his strength and perseverance in the face of MS and a reminder of how much each of us can accomplish.  

Nina Pillard Voted Onto D.C. Circuit

The nomination of Georgetown University Law Professor Cornelia Pillard to the D.C. Circuit was approved last night.  Pillard, who holds a JD from Harvard, is also the faculty director of the Supreme Court Institute.  She joined the Georgetown faculty in 1997.

Interesting Blogging On The New York Stop And Frisk Litigation Fiasco

My colleague Anil Kalhan, as well as Mike Dorf, have had some interesting posts recently following the bizzaro unfolding of the high profile New York  stop and frisk litigation.  For those who haven't been following it, Judge Shira Scheindlin ruled that New York's stop and frisk policy was improperly using racial profiles.  On appeal, a three judge panel on the Second Circuit rapidly issued an order staying the decision and removing Judge Scheindlin from the case (although neither party had requested this remedy or briefed the issue.)  Anil's posts are here and here and Mike's is here.  The Second Circuit panel was Cabranes, Walker and Parker.

Patent Appeals & Labor Law

In my last post, I noted that it has become quite easy to get design patents. But it wasn't always that way. So what changed? One possible explanation is that the PTO simply abandoned its examining duties. But I think the blame—or credit, depending on your point of view—belongs with the U.S. Court of Appeals for the Federal Circuit.

Since 1982, the Federal Circuit has had exclusive appellate jurisdiction over patent cases. The court’s influence on utility patent law has been widely noted (and criticized). But the court has also worked rather dramatic—and equally problematic—changes to design patent law.

So I was intrigued when I heard that, in a recent speech, the Hon. Diane Wood suggested rolling back the Federal Circuit’s exclusive jurisdiction over patent appeals. To be clear, she isn’t proposing that the Federal Circuit be abolished; rather, she envisions giving parties “a choice: they could take their appeals to the Federal Circuit, thereby benefiting from that court’s long experience in the field, or they could file in the regional circuit in which their claim was first filed.”

According to Chief Judge Wood, this proposal is similar to the system we have for the review of National Labor Relations Board decisions. So I’m curious what labor law people think—does this dual-path appeal system work well in the NLRB context? Do most parties pick their local circuit or the D.C. Circuit? How often is Judicial Panel on Multidistrict Litigation intervention required?

Constitutional structure/individual rights

One of the ideas that the study of state constitutions makes particularly easy to understand is the slipperiness of categorical boxes that we often take for granted. On the surface, for example, it's easy to put explicit separation-of-powers clauses (which many state constitutions have, modern administrative state to the contrary) in the structure-of-government box, while free-expression clauses seem to fit neatly in the individual-rights' box.

But in practice, some of the most important rights in the daily lives of Americans are decided by structural clauses (which, I know, we also see at the federal level). For example, whether pensioners in Pontiac, MI will continue to get the health benefits they bargained for turns largely on the obscure structural question of whether the state legislature complied with a constitutional clause that requires a 2/3 vote to give effect to statutes sooner than 90 days after the end of the legislative session (you'll hear more about this at Wayne Law Review's exciting symposium on Oct. 11).

Even within the structural category, vertical and horizontal allocations of power can seem clear but become fuzzy upon closer inspection. In most states, constitutional clauses providing for local governments offer a version of autonomy that permits them to carry out a broad range of government functions unless otherwise prohibited by law (home rule). Superficially, these clauses are about the relationship between the state and its localities. Just as significantly, though, except in the few states where home rule provisions are so strong that local ordinances can trump overreaching state statutes, home rule clauses that authorize local autonomy "subject to law" can also be understood as separation-of-powers clauses. Historically, courts used to examine municipal exercises of authority, in common-law fashion, to determine whether they were "really" local functions. Home-rule type clauses tell the courts not to interfere when a municipality regulates private parties. But these clauses still typically permit the legislature to interfere whenever it wants; the statute always trumps the ordinance. So home rule takes power away from the judiciary and leaves it with the legislature.

I think that structure-of-government issues can strike students as excessively abstract or theoretical. The fuzziness of the category distinctions that state constitutionalism highlights makes it easier to convince students that there is intense practical value in being able to argue constitutional structure on behalf of clients big and small. Advocates who fail to consider state constitutional structural questions when fighting for or against state regulation of any sort are just leaving money on the table.

David Barron Nominated To First Circuit

Harvard Law Professor David Barron has been nominated to the U.S. Court of Appeals for the First Circuit by President Obama.  He is a Harvard Law grad and has served a couple of stints in the Office of Legal Counsel - including, most recently, serving as the Acting Assistant Attorney General for the OLC.  He joined the Harvard Law faculty in 1999.  According to the NY Times, Barron penned the secret DOJ memo providing support for killing a U.S. citizen, a terrorism suspect,  abroad without trial.

Battle of Blair Mountain

Erik Lomis has a very good post on the Battle of Blair Mountain, which began on August 25, 1921, ninety two years ago today and about which I am shamefully ill-informed.  Since I'm deeply interested in another violent tragedy from earlier in the year in 1921, I should be much better informed about this than I am.  Lots of violence in 1921, for sure.

Because I'm working a little on the nature of Gilded Age legal thought, I was just reading two companion  opinions from the West Virginia Supreme Court that struck down a West Virginia statute that prohibited coal companies from paying working in company script and also from charging workers more than regular customers.  If you haven't read State v. Fire Creek Coal and Coke Company, 10 S.E. 288 (West Virginia, 1889)  and State v. Goodwill, 10 S.E. 285 (W.Va. 1889) you might find them illuminating about the judicial ideology of the era.

Quite an opinion that Fire Creek.  In discussion of freedom of contract, the Court says the act "is an insulting attempt to put the laborer under legislative tutelage, which is not only degrading to his manhood, but suversive of his rights as a citizen of the United States."  Not quite sure what to make of the reference to manhood.  It's been cited a few times in the past couple of decades but was once rather notorious.  Pound used it as part of his discusison of mechanical jurisprudence.  

Also, I see through the magic of westlaw that it was the subject of a recent case note in the third volume of the Harvard Law Review back in 1890.   (Who know that westlaw had journals going back that far?)  But get this -- the following is the entirety of the case note:

Constitutional Law -- Liberty -- Police Power. -- Owners of factories and mines were prohibited by statute from paying their employees in orders on the stores of the company, and from selling goods from the stores to their employees at a greater profit than they obtained from strangers.  Held, the statute was opposed to the Fourteenth Amendment of the United States and to the “life, liberty, and property” clause in the Bill of Rights of the Constitution of West Virginia, and could not be supported as an exercise of the police power.  The court lay great stress on the fact that it does not apply to all employers, and is therefore class legislation.  Goodwill, 10 S. E. Rep. 285 (W. Va.); State v. Fire Creek Coal & Coke Co., 10 S. E. Rep. 288 (W. Va.).

In Pennsylvania a similar statute was curtly declared “utterly unconstitutional and void.” Godcharles v. Wigeman, 113 Pa. St. 431.

I guess it was easier to get a publication in 1890, huh?