One thing I have found interesting in the past month is the difficulty of writing about procedure when it is linked to politics, especially a presidential election when passions are running high; it often becomes difficult to separate the procedural issues from the substance of the election. So if procedure and politics [...]]]> Thanks to Deven and the rest of the CoOp crew for allowing me to spend some time here, and even to hang around for an extra week. I know there is some reader overlap between my regular spot at Prawfs and here, but it was a nice chance to reach to a new group of readers. And I appreciate the many comments to some of my posts; there was some engaged and engaging conversation.

One thing I have found interesting in the past month is the difficulty of writing about procedure when it is linked to politics, especially a presidential election when passions are running high; it often becomes difficult to separate the procedural issues from the substance of the election. So if procedure and politics are tough, how about sports and politics? How did some of the sports predictors do this presidential election?

1) Prior to this year, in 16 of the 17 presidential elections since the Redskins moved to Washington in 1937, the outcome of the team’s final home game before the election has matched the electoral result: A ‘Skins win and the incumbent party retains the White House, a ‘Skins loss and the incumbent party loses the White House. Make it 17 out of 18: The Redskins were pounded by the Steelers at home on Monday and the non-incumbent party won the White House on Tuesday.

2) One of the more venerable predictors has been the World Series winner (I learned about it in my freshman government class in 1986): American League team means a Republican President, National League team means a Democratic President. From 1952 until 1976, it worked every year. Then from 1980 until 1996, it worked only once–the Detroit Tigers and Ronald Reagan in 1984. But we now are 3-for-3 in the new Millenium–Bush/Yankees in 2000, Bush/Red Sox in 2004, and now, Obama/Phillies.

3) Finally, the election to which this one is most-often compared (in terms of potentially marking an ideological and generational political sea change behind an eloquent leader) is Ronald Reagan’s win in 1980. The last time the Philadelphia Phillies won the World Series? 1980. Some food for thought.

Thanks again to CoOp for inviting me to write and to all of you for reading.

My wife and I decided to tell our almost-three-year-old daughter about Obama this morning, mainly because we were so excited about it. My wife explained that the country had chosen a new “boss” (give us a break, we were talking to a 3-year-old), a man named Barack Obama, who seemed like a very nice man who believed in many of the things we do, including tzedakah (the Hebrew word for righteousness, which includes within it concepts such as charity and justice, and something that they talk about in her pre-school). We then told her that Obama showed [...]]]> At Prawfs, Sonja West and Paul Horwitz both talk about the world that we introduce to our children in the wake of Obama’s election, let me share the following:

My wife and I decided to tell our almost-three-year-old daughter about Obama this morning, mainly because we were so excited about it. My wife explained that the country had chosen a new “boss” (give us a break, we were talking to a 3-year-old), a man named Barack Obama, who seemed like a very nice man who believed in many of the things we do, including tzedakah (the Hebrew word for righteousness, which includes within it concepts such as charity and justice, and something that they talk about in her pre-school). We then told her that Obama showed that she could be anything she wants when she grows up; she responded that she wants to be a teacher. Tonight at bed time, she brought up that Mommy had told her she could be the boss or she could be a teacher when she grows up. I agreed that she could be whatever she wants to be and do whatever she wants to do. Her response:

“OK, when I grow up, I want to be Barack Obama.”

So do I, Lily. So do I.

To that end, let me recommend this Atlantic essay by psychologist Steven Pinker. And this needs no introduction:

First, Paul writes that the Phelps message of “God hates fags” is a “foul, false, and offensive message.” True enough, but so are a lot of other messages and a lot of other speakers. Later, Paul argues that there is a difference between “non-mainstream but sane views (consider the various versions of anarchism, on both the socialist and the capitalist side) and completely nutso views.” As I said in the Comments, the whole point of my first post was to find the [...]]]> Paul Gowder took the comments from my post about debating Westboro and the Phelps into his home forum. I wanted to respond more fully here. At one level, I think we are misunderstanding one another; at another, we are proceeding from different premises.

First, Paul writes that the Phelps message of “God hates fags” is a “foul, false, and offensive message.” True enough, but so are a lot of other messages and a lot of other speakers. Later, Paul argues that there is a difference between “non-mainstream but sane views (consider the various versions of anarchism, on both the socialist and the capitalist side) and completely nutso views.” As I said in the Comments, the whole point of my first post was to find the line between those two. Lots of messages are foul, false, and offensive and lots of messages–how do we decide which ones are OK to engage with?

Paul insists that “I know it when I see it” is close enough and, ultimately, all we have, since a meaningful objective line is impossible. And he probably is right. Of course, some people would have a very different views of the “sanity” of the Church’s views or, say, the views of the KKK or the views of many other speakers. This subjectivity works at the level of one individual’s choice about whom to engage with in a debate–my history professor’s flat refusal to sit down with deniers.

But it becomes problematic when it is the government doing the defining. And it is a short step from saying that a group is too insane to include in a debate than to saying it is too insane to be given access to a public forum where people will have to encounter that group’s expression–which will require a government definition. As I noted in the first post, that is the gravaman of the criticism directed at FIU by some faculty and students over allowing the Genocide Awareness Project onto campus–the group’s views are “non-mainstream-and-insane” and it was inappropriate to allow them onto campus and subject unwilling members of the FIU community to their “foul, false, and offensive” images of aborted fetuses and specious analogies.

Second, as to where I think we misunderstand each other. Paul objects to imposing an “obligation” to engage with insane views, which he argues entails and obligation to debate Phelps and Grand Wizards. I agree with that, because I was not suggesting any obligation to debate someone; clearly an individual can choose for herself with whom to debate and engage. I generally believe it is worthwhile to engage, however cursorily, with “non-mainstream-but-insane” speakers, even if only to expose them and their crazy views to the light of day. But there is not a requirement that anyone do so and I did not and would not argue otherwise–indeed, imposing such a requirement would itself run afoul of free-speech.

But the situation that provoked the post was different. Stonewall did choose to engage with the Phelps and with their ideas and views–and were being sharply criticized for that and subjected to pressure (or attempts at pressure) to rescind the invitation. I was trying to understand and identify the point at which a group is not worthy or entitled to be included in the debate, thus the point at which a group is doing something wrong to invite a speaker (such as Westboro) to debate. And I think an objective line beyond “I know it when I see it” is necessary to decide when such criticism is warranted.

The invitation was met with anger and criticism from all sides. Some on the left argued the invitation gave Westboro legitimacy in the public debate that it did not deserve. Jose has told me that [...]]]> Last weekend, the Stonewall Legal Alliance at FIU College of Law hosted a day of panels on Florida’s Amendment 2, a ballot initiative amending the state constitution to define marriage as a union of one man and one woman and prohibiting creation of substantially equivalent unions. At the heart of the event was a debate between my friend and colleague Professor Jose Gabilondo (Stonewall’s faculty adviser) and Marge and Shirley Phelps of the Westboro Baptist Church–an anti-(inter alia) gay rights group best known for picketing at the funerals of fallen soldiers.

The invitation was met with anger and criticism from all sides. Some on the left argued the invitation gave Westboro legitimacy in the public debate that it did not deserve. Jose has told me that he received letters of protest from a number of groups, including the Anti-Defamation League and the Southern Poverty Law Center, as well as letters from individuals directly critical of him. Requests were made to both the COL and University administrations to intervene and rescind the invitation. And some campus student groups were urged by administrators not to attend the event so as to avoid being confronted by insulting words and ideas. Some on the right complained that inviting Westboro to present the pro-Amendment 2 position was stacking the rhetorical deck in the anti-amendment side’s favor, because the opponent is incapable of presenting the “true” intellectual arguments against same-sex marriage and can do nothing other than turn the event into a circus that will horrify observers into opposing the ballot proposal and make Prof. Gabilondo’s anti-amendment arguments look better.

Jose discusses the controversy here, including a strong defense of uniquely open intellectual exchange in a university setting, including the presence of non-”mainstream” speakers and views. (And, to the extent it matters, Stonewall invited a number of local and national amendment supporters, all of which declined the invitation.

The common theme, left and right, is that Westboro is not (and should not be treated as) part of the legitimate public debate or public discourse on these issues. The Phelps are not capable of engaging in an intellectual or academic debate, because their views are too out-of-the-mainstream, and thus should not be included. They are a hate-spewing, bigoted circus show that either (from the left) does not deserve to be legitimized and treated as having something useful to say or that (from the right) should not be allowed to make the case for the conservative, anti-same-sex-marriage side because they cannot make it well and will have the effect of making those who agree with their conclusions, but for legitimate, non-bigoted reasons, look like bigots. Westboro is not part of the “mainstream” of public views and thus should be excluded from the discussion. Not to say that they cannot speak in their own fora (although multi-million-dollar civil judgments will curb that); only to say that they should not be invited into the fold of “polite” public fora, such as at a university event.

Jose’s post offers a strong defense of expanding the range of speakers and ideas to be included in the debate, a position I share. It is not clear how one defines “mainstream,” a politically loaded term. And even the most reprehensible views (or most reprehensible manner of expressing some views) should be given the opportunity to be exposed to the light of day, if only to be ridiculed and defeated appropriately.

This incident brings to mind two somewhat similar controversies. The first occurred when I was in college in the late ’80s. Northwestern had a tenured engineering professor whose hobby was Holocaust denial and who had written a book on it. Around the same time, a Holocaust denial group published several editorial advertisements in The Daily Northwestern, pitching its views and seeking to debate (or at least sit down for a beer with) Peter Hayes, an NU history professor and leading Holocaust scholar. This was in the relatively early days of both the Holocaust as a subject of scholarship and pedagogy in the U.S. and of Holocaust denial as an open subject, at least in the U.S. And Hayes explained to me that he (and others in the discipline) refused to engage on the subject with deniers (either the engineer or the head of that group), whose views were deemed intellectually unserious and unworthy of engagement.

The second is ongoing. Last week, FIU’s College Republicans hosted a two-day display by a group called the “Genocide Awareness Project,” an anti-abortion group that compares legalized abortion to, among other things, the Holocaust, slavery, apartheid, and the Cambodian Killing Fields, and features graphic photographs of terminated fetuses. FIU’s decision to allow the group to set-up has been met with protests and criticism from faculty and student organizations, in part based on the view that the Genocide Awareness Project is an extremist, out-of-the-mainstream group that has no place on campus. Stay tuned on this one; I expect it to become a topic of discussion on campus, about which I likely will write more.

I am not sure of the answers here. Is there some difference between what views and ideas are acceptable in political debate (broadly defined) and what is acceptable in academic or university debate–and if so, should the university be more inclusive of non-mainstream ideas? I throw this out for consideration.

But let’s assume Berg had standing to challenge the deprivation of his constitutional right to vote for an eligible presidential candidate (since many commenters on this site have derided reliance on standing as a dodge by Obama and the court). It is worth thinking about how one could go [...]]]> One key to teaching procedural classes is to get students thinking about how to frame litigation when it is brought, incorporating all the doctrines and rules that we have been drilling into them. A good new example is Berg v. Obama, the lawsuit filed by a Pennsylvania lawyer to stop Barack Obama from being elected President on the ground that Obama is not a natural-born citizen. The lawsuit was dismissed last week, correctly, for lack of standing.

But let’s assume Berg had standing to challenge the deprivation of his constitutional right to vote for an eligible presidential candidate (since many commenters on this site have derided reliance on standing as a dodge by Obama and the court). It is worth thinking about how one could go about bringing such a lawsuit–whom to sue for what claims and what relief. Berg’s initial strategy was to sue Obama, the DNC, and the FEC–and only the latter two were targeted on the constitutional claims. The big problem (mentioned, but under-analyzed in the opinion) was that neither Obama nor the DNC is a state (or federal) actor, at least not for purposes of running for election. Moreover, I do not see how, even if a court were to find that Obama is ineligible for the presidency, the court could enjoin Obama from running for president. Enforcement of the prohibition on a non-natural-born citizen becoming President does not rest with the non-natural-born citizen–it is not a constitutional obligation to refrain from trying to become President. It is a duty on the federal and state government officials who control the machinery not to allow him to be selected as President or to take the oath and assume the office. It is true that, in any suit against some state or federal electoral official, Obama would intervene as a defendant under FRCP 24 to protect his interests. But that is different than making him a party in the first instance and having the injunction run against him.

So who should Berg have sued? Let’s have some fun. My thanks to my colleague Tom Baker, who wasted fifteen minutes talking through this with me.

The obvious target should have been the Pennsylvania Secretary of the Commonwealth, the executive-branch official responsible for overseeing state elections, including determining ballot eligibility. An injunction could prevent the Secretary from allowing Obama on the ballot or, given the late date, from certifying Obama as the winner of the state popular vote, because doing so would violate the Eligibility Clause, thus violating Berg’s right. Actually, Berg named the Secretary, Pedro Cortes, in the Amended Complaint, but Cortes had not been served as of the date of the dismissal.

Of course, that only makes Obama unable to run or win in Pennsylvania. And the electoral map is such that Obama could become President even without winning Pennsylvania. So Berg would have to bring suits in all 50 states and the District of Columbia against the Secretary of State in each state. But Berg would lack standing in any state other than Pennsylvania; he cannot vote in any other state, thus he has not been deprived of his right to vote for an eligible candidate in any other state. So Berg would need to find a voter in every other state who would be willing to sue the Secretary of State in each of these other states. And perhaps the Pennsylvania decision would have a persuasive effect, if not an outright preclusive effect, in the later cases.

Well, OK. What if Berg wants to assert not his right to vote for an eligible candidate in the Pennsylvania election, but his right not have an ineligible person become President, assuming, of course, that Obama wins 270 EC votes-worth of state popular elections (and still putting standing to one side)? Now Berg must enjoin the people in the federal government who would make Obama President. It seems to me Berg might have three options. First, he could try suing the 538 electors (or at least those committed to Obama/Biden) who will “meet” and vote on December 15. But I simply cannot imagine a judge enjoining electors from voting a certain way. It seems like that would create a massive separation-of-powers problem, akin to ordering legislators to vote a certain way, something courts generally are not willing or able to do. Second, he could try enjoining the House of Representatives from certifying the Electoral College results. But this unquestionably would be barred by Speech or Debate Clause immunity. Finally, he could sue Condi Rice, the U.S. Secretary of State, to enjoin her from certifying the results of the House vote accepting the EC results selecting Obama. That, it seems to me, is the only possible way to go.

And just to add three more wrinkles. First, none of the actions described in the previous paragraph would be ripe at this point The need to stop the federal apparatus from recognizing Obama as President and allowing him to take the Oath of Office (or, put another way, Berg’s right to have the apparatus not recognize an Obama victory or allow Obama to take office) is not triggered prior to Election Day and Obama actually winning 270 EC votes-worth of popular elections. Second, the political question doctrine would block any injunction from issuing, since the question of eligibility seems to be textually committed to Congress. Of course, if we are going to recognize citizen.ideological standing, we may as well eliminate the political question doctrine.

Third, what would happen if, say, Rice were enjoined from recognizing a House certification of Obama as President? Come January 20, we would have a President who has failed to “qualify,” and Joe Biden would become acting president under the Twenty-second Amendment.

All this is my way of saying that, even if Berg did not lack standing, a combination of the limits of the judicial process and our byzantine, multi-layered system for selecting a President makes judicial resolution of this matter virtually unworkable.

Did I miss any other steps that Berg might have taken? Any other bizarre twists that I missed?

Not bad, especially since I had thought before we ran the numbers that our faculty might have a couple of built-in disadvantages, given the study’s methodology. First, we have a very bottom-heavy faculty–10 of our 22 tenure/tenure-track faculty are pre-tenure and five of those are in their second year teaching, and three of our senior faculty [...]]]> FIU College of Law (which opened in Fall 2002) is not yet a member of the AALS, which meant we were not included in the Roger Williams survey of faculty productivity at non-Top-50 law schools. So, as St. Thomas (MN) did last month, we ran our numbers. The result: a 4.590 faculty score, placing us around # 30, just behind Indiana-Indianapolis and just ahead of St. John’s, Tennessee, and Loyola-Chicago.

Not bad, especially since I had thought before we ran the numbers that our faculty might have a couple of built-in disadvantages, given the study’s methodology. First, we have a very bottom-heavy faculty–10 of our 22 tenure/tenure-track faculty are pre-tenure and five of those are in their second year teaching, and three of our senior faculty are newly tenured. Second, we have a lot of specialists doing legal history (including non-U.S./non-English legal history) and niche international work, stuff that tends to place in specialty journals and that also tends to be shorter. Third, several of our top senior people have focused almost exclusively on writing books (scholarly and casebooks) rather than law review articles over the past 3-4 years (although I wonder if the trend in the academy towards book projects makes this an issue across the board).

Anyway, I was happy to see us come out that well in a preliminary study. It gives us something to build on with a new dean (we are beginning a dean search as I write this) and in the never-ending search for new faculty.

But I would like to hear how these numbers–donors, new donors, average donation amount–compare with past primary and general elections. And what do these numbers [...]]]> The Obama Campaign announced Sunday that it raised $ 150 million in September, an obscene, record-breaking figure that more than doubles the previous record (which was Obama’s haul in August). This certainly justifies Obama’s decision to opt-out of public financing. What is especially interesting to me is that 3.1 million people have contributed to his campaign, including more than 630,000 new contributors in September. And the average donation was around $ 86. Of course, by definition “average” means there were donations of more than that, including several large fund-raising events, including one hosted by Barbra Streisand that netted $ 11 million.

But I would like to hear how these numbers–donors, new donors, average donation amount–compare with past primary and general elections. And what do these numbers tell us about the debate over campaign-finance rules and public funding? The theory of Buckley v. Valeo (which never has been entirely repudiated) is that making campaign contributions is a First-Amendment protected way of expressing support for a candidate, albeit a right subject to fairly close regulation and limitations in amount (a principle with which I generally agree). The theory of campaign-finance regulation has been that politicians will simply cozy-up to a small number of big-money donors who use large contributions to gain access and influence, resulting in various forms of corruption (indeed, that was the warning from the McCain Campaign in response to the Obama announcement).

But if a campaign can fund itself, at least in part, on smaller contributions from a substantial number of voters looking to do their part and have their say, do we come close (or at least closer) to a First-Amendment regime of “The People” speaking through their pocketbooks to support a candidate, without the same risk of corruption or influence-peddling? I think McCain’s criticism misses the mark because the corruption rationale works when a campaign receives $ 2 million from one contributor; it looks very different, and has a different effect, when the campaign receives $ 2 million from 20,000 contributors. The corruption criticism looks out of place when it becomes not a problem with the amounts of money people are able to contribute (which remain restricted), but of the number of people who are able to contribute, particularly in small amounts.

Can what Obama has achieved tell us anything about how candidate fundraising can work, especially with the power of the internet? Is Obama a unique candidate and no (or few) other candidate can generate this kind of excitement and support?

Updated and moved to top: Tuesday morning

Publius at Obsidian Wings links Obama’s expansive fundraising to Madison’s theory of republicanism. Recall that Madison argued that the way to limit the power of factions in a republic is to increase the size of the republic and thus the number of factions, preventing any one from seizing control. Similarly, dramatically expanding the size of the donor base, the Obama model (and Publius recognizes, as does one of our commenters, that Howard Dean started us down this road in 2004) prevents any one donor from gaining influence.

Well, today, I received an e-mail from the author of the opinion, Ninth Circuit Judge Raymond Fisher, and a copy of the revised opinion, which included the following footnote:

The district court granted defendants’ motion to dismiss, which was premised solely on jurisdictional grounds. It is unclear, however, whether the FTAIA is more appropriately viewed as withdrawing jurisdiction from

the federal courts when a plaintiff fails to establish proximate cause or as simply establishing a limited cause of action [...]]]> In August at Prawfs, I criticized the Ninth Circuit decision in In re DRAM Litigation, which dismissed a claim under the Foreign Trade Antitrust Improvements Act (FTAIA) for lack of subject matter jurisdiction, rather than for failure to state a claim, which I believe was the more appropriate ground.

Well, today, I received an e-mail from the author of the opinion, Ninth Circuit Judge Raymond Fisher, and a copy of the revised opinion, which included the following footnote:

The district court granted defendants’ motion to dismiss, which was premised solely on jurisdictional grounds. It is unclear, however, whether the FTAIA is more appropriately viewed as withdrawing jurisdiction from

the federal courts when a plaintiff fails to establish proximate cause or as simply establishing a limited cause of action requiring plaintiffs to prove proximate cause as an element of the claim. Compare Empagran S.A. v.

F. Hoffman-LaRoche, Ltd., 417 F.3d 1267, 1268-69, 1271 (D.C. Cir. 2005) (affirming dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction), with In re Elevator Antitrust Litigation, 502 F.3d 47, 49-50 (2d Cir. 2007) (affirming dismissal on 12(b)(6) grounds). The Supreme Court’s decision in Empagran I provides little guidance because, although the district court had dismissed under Rule 12(b)(1), the Court did not explicitly address whether the issue was properly viewed as one of federal question subject matter jurisdiction or of a failure to state a claim under federal law. We decline to resolve the question, because it was not argued by the parties and in this case the result and analysis are the same. Accordingly, we assume without deciding that the district court correctly dismissed under Rule 12(b)(1).

Judge Fisher also graciously said that they welcome constructive feedback from academics. No citation for Prawfs or for my articles on the issue, unfortunately. But kind of nice to see that we can have some practical effect.

Hillel received a ton of good responses as to where he could place this article. And I think that suggests that the rules for legal writing in the academy are not as confining as Hillel’s post suggests. There actually are a lot of opportunities to write and publish short and fun pieces [...]]]> At Prawfs, Hillel Levin has a post asking for suggestions on where to place a short, somewhat tongue-in-cheek essay that nevertheless explores important legal ideas (I am looking forward to reading the paper). He is looking for suggestions as to where to place the article, noting that the writing game is somewhat “confining.” I added my two cents on possible outlets in the Comments, but I wanted to break out a broader point.

Hillel received a ton of good responses as to where he could place this article. And I think that suggests that the rules for legal writing in the academy are not as confining as Hillel’s post suggests. There actually are a lot of opportunities to write and publish short and fun pieces such as this one that make creative (and often important) legal points. Many journals will jump at them. The expansion of outlets, both in the number of journals as well as the addition of on-line supplements (that really were intended for precisely this sort of thing), means there is a place for this type of work. One of my great frustrations was my inability to place this piece (like Hillel’s, it was short, tongue-in-cheek, but, I think, hit on an interesting idea about the law) in some law journal forum, settling instead for FindLaw.

Of course, something like this does not “count” if you are at a school that counts publications and are just trying to meet the statutory minimum for promotion and tenure. But I think committed and successful scholars just keep writing, doing many different types of projects for many different forums, all of which form an overarching body of legal writing. The short piece that Hillel is describing is a perfect example of the sort of things that should be part of that corpus, in addition to the traditional books and big law review articles. And that is why I do not believe blogging is anathema to legal scholarship–it is another way of exercising the writing muscles.

I had the privilege and honor of clerking for Judge Giles from 1998-2000 (the early stages of his stint as chief). Judge Giles did not have the national cache of a SCOTUS Justice, nor was he the sort of judicial rock star that made our long-lost A3G swoon. He was, instead, a “lawyer’s judge,” exemplifying what makes a good trial-court judge: smart, pragmatic, caring, and quite at ease working in close quarters with lawyers and parties. He also was about the nicest, most humble [...]]]> Last week, Judge James T. Giles, senior judge and former chief judge of the United States District Court for the Eastern District of Pennsylvania, resigned from the bench after almost thirty years, to become Of Counsel at a law firm in Philadelphia.

I had the privilege and honor of clerking for Judge Giles from 1998-2000 (the early stages of his stint as chief). Judge Giles did not have the national cache of a SCOTUS Justice, nor was he the sort of judicial rock star that made our long-lost A3G swoon. He was, instead, a “lawyer’s judge,” exemplifying what makes a good trial-court judge: smart, pragmatic, caring, and quite at ease working in close quarters with lawyers and parties. He also was about the nicest, most humble person you ever will meet holding a position of power. His were the most pleasant chambers to work in–relaxed, friendly, and very thoughtful. Giles frequently would walk into the clerks’ area to sit and chat about just about anything.

Best of all, much of what I bring to my civil procedure class on the nuts-and-bolts workings of the pre-trial process I learned from working in his chambers.

Judge Giles was a proud practitioner of what the scholarly literature calls “managerial judging”–the judge taking an active role overseeing the pre-trial process and keeping a watchful eye over how the attorneys conduct themselves and and how the litigation is proceeding. He believed in helping to move cases along and push the parties towards settlement. He might have been (I never asked him specifically) among the group of federal judges who considered it a “failure” of the process when a case went to trial–we had, I think, fewer than ten civil trials in my two years. But he did like to tell parties and lawyers during settlement conferences that, no matter how strong you think your case, a jury trial is coin flip.

I learned about the informality of much of the discovery process and the resolution of discovery disputes. Giles’s practice upon receiving either a Motion to Compel Discovery or a Motion for a Protective order often was to get the parties on a telephone conference to hear their competing arguments and to resolve the disputes quickly, to get them back into the exchange of information and the movement of the case towards resolution–whether by settlement, pre-trial motion, or trial. He did not suffer attorney bickering lightly.

I also got a glimpse of the attitude that lower-court judges have towards the prospect of being reversed on appeal. Which is to say, it never really crossed his mind and certainly did not affect his decision making. This is an important insight; students too often believe that trial-court judges are motivated by a desire not to be reversed, as though reversal is a sign that the judge had done something wrong. Giles never thought that way and I doubt other trial-court judges do, either. In fact, being reversed did not necessarily convince him that he had been wrong in any normative or objective sense. This did not free him to blatantly ignore controlling law or to issue wild and unsupportable decisions. But other things constrain judges from doing that. Within the range of what is justifiable under the law, Giles made what he saw as the correct call and was not moved from that view by nothing more than the fact that the Third Circuit disagreed with him.

It is noteworthy that he made a public point of explaining publicly his decision to leave the bench as motivated almost entirely by flagging judicial salaries and the continued failure of Congress to provide a judicial pay raise. He said that, if he thought Chief Justice Roberts’s efforts at increasing judicial pay would be successful, he would have stayed on. But, lacking confidence in Congress, he decided it was time to move on. He explained this as his reason when we spoke prior to his announcement, but I was surprised, given his low-key persona, that he would make a public point of it.

The only drawback to having clerked for him? I cannot watch or listen the the music from Annie. But that is a story for another post.

I want to ask a more pedestrian question that arose with some colleagues: How appropriate is it for professors to include political signs or messages around their offices, particularly in the doorway? Is it OK to have a candidate poster on your door or on the walls of your office? How about [...]]]> This presidential election has had much discussion about the voting preferences of academics, particularly law professors–from the legal advisory teams (consisting of many law professors) that every major-party candidate established during the primaries to the joke (made in this forum) about “Law Professors for McCain” holding their meeting in a booth in a diner somewhere between Chicago and South Bend to news and academic studies about where law professors and law faculties donate money.

I want to ask a more pedestrian question that arose with some colleagues: How appropriate is it for professors to include political signs or messages around their offices, particularly in the doorway? Is it OK to have a candidate poster on your door or on the walls of your office? How about in the window facing out onto campus, visible to all who walk by? Is there something about that space that ought to be “welcoming” to students of all stripes and views, such that a prominent visual display of one’s political and partisan views is inappropriate? Is the office different than a classroom, where (I am guessing) most would believe it is inappropriate to display political preferences in that way? Or is this all simply a “grow-up-and-deal-with-it” issue for the students, something they should become accustomed to as they enter the legal world?

Cross-posted at PrawfsBlawg

In addition to being the centennial of the Cubs’ last championship, 1908 also was the centennial of one of the game’s most infamous gaffes, by Fred “Bonehead’ Merkle. Some detailed history. On September 23 of that year, [...]]]> On Saturday night, Deven’s Los Angeles Dodgers beat the Cubs 3-1, completely a dominating three-game sweep in the National League Division Series in which they outscored the Cubs 20-6. Thus will it be more than 100 years between world championships for the Cubs, who famously last won in 1908. This century of losing has been blamed on everything from billy goats to black cats to twenty-something fans in head phones to the refusal to install lights at Wrigley Field. I want to suggest a new source: legal formalism.

In addition to being the centennial of the Cubs’ last championship, 1908 also was the centennial of one of the game’s most infamous gaffes, by Fred “Bonehead’ Merkle. Some detailed history. On September 23 of that year, the Giants and Cubs, tied for first place, played at New York’s Polo Grounds. Tied 1-1 with two outs and runners at first (Merkle, then a rookie first-baseman) and third, the Giants’ Al Bridwell singled, scoring the runner from third, and apparently winning the game.Giant fans immediately ran onto the field, a common practice in those days, both to celebrate and to head to the stadium exit in right field that was closest to the trains and streetcars home. To get out of the crowd, Merkle turned right and headed for the clubhouse, which was located behind centerfield (the Polo Grounds remains my favorite of the now-deceased ballparks), without touching second base. That left the force at second base in effect. Amid the chaos, Cubs second baseman Johnny Evers got a ball (no one knows for sure whether it was the actual ball that had been hit on the play and that fact never has been established; some stories have a Giants player throwing the actual batted ball into the stands) and tagged second base and umpire Hank O’Day called Merkle out on the force, which nullified the run and ended the inning. The game then was called because of darkness and declared a tie. The teams finished the season tied, so the tie game was replayed; the Cubs won 4-2, winning the pennant and then the World Series–their last.

And here we have legal formalism at work. O’Day’s call was correct under MLB rules. A run does not score if a trailing runner is forced out at another base for the third out of the inning. And there seems no dispute that Merkle did not touch second. On the other hand, the crowd had stormed the field, so Merkle’s decision to get off the field as quickly as possible is understandable. It was common in those days for fans to come onto the field and for players to head for safety, even without touching the base. The rule was not well-known and was not regularly (if ever) enforced in end-of-game situations. And, of course, we do not know whether the ball that Evers had when he tagged the base was the right ball. On the other hand, some accounts have Evers trying the same move a few weeks earlier on the same umpire–it did not work then because the umpire had not watched to see whether the runner touched second. But O’Day was on notice when it counted.

So how does karma work? One way would be to deny the Cubs the benefit of the “tainted” victory by having them lose the World Series. Another way would be to give the Cubs the benefit of the Series that year–and never letting them have it again. So, if you are an 8-year-old Chicagoan in 1908, which do your choose?

By the way, I have been looking at current Major League Baseball rules (Download 04_starting_ending_game.pdf) and it appears the result would be the same under current rules. Rule 4.09(a) addresses this situation and requires that all runners touch the next base. Rule 4.09(b) provides that in a walk-off situation (run scoring in the last half of the final inning), the runner on third must touch home and the batter must touch first, with no mention of any other runners. But that rule is limited only to plays with the bases full which force the runner on third to advance–not the situation in 1908, because the runner on third was not forced to come home. A comment creates an exception when fans rush the field and prevent either from touching the necessary base, with the bases awarded because of fan interference. But that comment is limited only to Rule 4.09(b), which, again, does not cover the 1908 situation. Am I reading the rule correctly?

Or maybe umpires impose flexibility as a matter of their own discretion. In 1976, the Yankees won the ALCS when Chris Chambliss hit a home run to lead-off the ninth inning. Thousands of fans descended on the field to celebrate, pull up grass, and (I have read) try to steal pieces of padding off the outfield fence) as Chambliss tried to get around the bases; he eventually gave up and ran for the safety of the clubhouse. Later, after the field had been cleared, the umpires pulled Chambliss out of the clubhouse and had him touch home plate. Formalist, to be sure. Call this a mix of formalism and pragmatism–make sure the batter touches the bases, but allow him to get out of the madness of the moment without penalty.

The obvious example is John McCain’s “suspension” of his campaign last week and his call for cancellation of the first presidential debate so he could return to Washington and be personally involved in negotiations, rather than “phoning it in” (a phrase that must be retired soon). At the time, I argued that the notion of halting our electoral processes to handle a crisis was the wrong approach, that our rules and procedures for selecting those who [...]]]> Coming as it does less than two months before presidential and congressional elections, the bailout debacle has been inextricably entangled with electoral politics. One issue that seems to have revived is the myth of the indispensable public official, the person who must be present and involved, electoral rules be damned.

The obvious example is John McCain’s “suspension” of his campaign last week and his call for cancellation of the first presidential debate so he could return to Washington and be personally involved in negotiations, rather than “phoning it in” (a phrase that must be retired soon). At the time, I argued that the notion of halting our electoral processes to handle a crisis was the wrong approach, that our rules and procedures for selecting those who govern on our behalf had and must move forward even in the most dangerous times. We all know how well this move turned out, both for McCain and for legislative progress on the bill. Of course, economics and finance are not McCain’s strong suits (a point I think he readily concedes), so he never was going to be able to offer much of substance (and news accounts of the White House summit confirm this). McCain was there to provide “leadership” in the negotiations process–his presence alone was both necessary and sufficient to get something done. But I always have doubted that leadership without substantive content accomplishes much and, to some extent, this bears that out.

Tim Zick points to a second example, as earlier this week New York Mayor Michael Bloombeg indicated plans to announce (probably today) that he would seek a third term as mayor, despite the city’s two-term limit on mayors. Bloomberg apparently will ask the City Council to change the city’s term limits, which was enacted by popular vote twice in the early 1990s. Bloomberg had insisted all year that he would leave at the end of his current term (at the end of 2009), but has changed his mind (with broad support in city government and city power structures) in the wake of the financial crisis that, while national in scope, could have its most direct effects in New York and requires his presence and involvement. Bloomberg is very popular as mayor, so his reelection seems a foregone conclusion. And commenter on Tim’s post notes that Bloomberg’s move is of a piece with those of his predecessor, Rudy Giuliani, who initially argued that he should remain in office past the end of his term, which was to expire several months after 9/11 (9/11 was to have been the day of New York’s primary). Giuliani’s idea was roundly rejected and quickly withdrawn. And, as expected, the city moved forward in its recovery without its hero.

I take less issue with what Bloomberg has planned than with what McCain or Giuliani attempted. From a procedural standpoint, Bloomberg is working to change the existing election rules and to run within those rules. And the new rules would apply prospectively to all other officer holders. I have no love for direct democracy, so I am not offended by the fact that a change in New York law would be made by the legislature over the apparent (although decades-old) will of the people. But both McCain and Giuliani argued that we should ignore or suspend current rules for their respective circumstances, because each was so essential to resolving the current crisis.

Ultimately, that procedural difference could help explain why the latter efforts fell flat, while Bloomberg’s efforts likely will succeed (although much can change in a year). While the public buys the myth of the hero politician at some level, it also has an unstated respect for electoral rules and becomes suspicious of anyone who insists that he is so indispensable as to be able to work around those rules.

Cross-posted at PrawfsBlawg

Deven kindly agreed not to rescind the guesting offer, despite his commitment to the Dodgers. Perhaps a friendly wager is in order?