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Volume 13, Number 4 (2019) Barnette at 75: The Past, Present, and Future of the Fixed Star in Our Constitutional Constellation

If prosecutors were to declare that someone committed a crime but not actually bring charges, so the argument goes, then the defendant would be unable to clear her name through the adversarial process. 

First, to the extent that Don Jr.’s privacy needed to be protected in the Special Counsel’s report, I’d note that the relevant facts to support a CFAA prosecution were *not* redacted from the report---all that was redacted was the reasoning behind the decision not to prosecute. 

I can think of at least two responses to this point: (a) that the factual discussion also should have been redacted, and (b) that a declaration by prosecutors that Don Jr.’s conduct constituted a crime is far more damaging than the recitation of facts, most of which had been previously reported in the media. 

Also, if we were truly committed to the idea that we need to protect individual privacy in all cases that do not result in formal charges, we would have to seriously alter how police publicize arrests of suspects before prosecutors have decided whether to file charges. 

In any event, if the real concern with nonprosecution decisions is that they might invade the privacy or harm the reputation of a particular individual, it seems to me that prosecutors could articulate their decisions in a way that minimized the privacy and reputational harms. 

That would allow the public to have more information about when DOJ pursues charges under overly broad statutes---information that, as I’ll explain in more detail below, is extremely important for the public to have.

But before turning to that argument, I wanted to address a comment by Orin Kerr, namely that he didn’t think that the Mueller report needed to “offer a broader explanation when to enforce the law” because “DOJ policy docs already have that for those interested.” Assuming that Orin is correct that DOJ policies offer sufficient detail on this issue for those who seek it out, I think it is important to note that the general public knows very little about nonprosecution decisions. 

I have seen many nonlawyers (and some noncriminal lawyers) repeatedly express the view that prosecutors must bring charges in cases where the defendant has broken the law. 

It is not only that these criminal justice outsiders think that prosecutors *should not* decline to prosecute for policy reasons, but rather that they are *entirely unaware* of how often prosecutors decline to prosecute on policy grounds. 

Put differently, even if Orin is correct that interested parties could learn more about DOJ nonprosecution policies, a great number of Americans don’t even know that such things happen, so they are unlikely to seek out additional information on the topic.

Let’s look at the full list of factors listed in 9-27.230, the section cited in the CFAA analysis in the Mueller report: In determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh all relevant considerations, including: I

(There is commentary to this policy, but it also does not provide that sort of substantive information.) Perhaps those law professors who served as federal prosecutors think that DOJ policies gave enough guidance about when nonprosecution was appropriate---I’d be interested to hear from them. 

(I discuss the problem in some detail in Part III of this forthcoming article.) The ability of the public to serve as a democratic check on prosecutorial discretion may seem less important in the federal system, where the Attorney General and the U.S. Attorneys are appointed by the President. 

One of the criticisms of universal/non-particularized injunctions is that they preempt percolation in lower courts, because the universal injunction by Court I short-circuits litigation in Court II, because Court I's injunction precludes the government from undertaking new enforcement efforts.

Supporters of universal/non-particularized injunctions counter that the substantial amount of parallel litigation shows that percolation still occurs, as multiple parties bring multiple lawsuits in multiple courts.

My reply has been that this shows courts are not serious about universality, in which case it would be better if each court kept its injunctions particularized and avoided the controversy over the scope.

HHS (involving repeal of the contraception mandate), in which the court requests briefing on whether the appeal of a particularized injunction has been rendered moot by a universal injunction issued by the Eastern District of Pennsylvania and how the mootness analysis is affected by the universal injunction coming from a trial court in another circuit.

There is no possibility that the government could enforce the revised mandate in a way that would violate the rights of the California plaintiff, because doing so would violate that universal injunction and could be halted with a motion to enforce the injunction in EDPa.

So California or those on whose behalf it is suing no longer are having their rights violated and no longer face a reasonable prospect of having the law enforced against them, because doing so would subject the government to contempt of court.

A plaintiff protected against enforcement of some law is protected against enforcement wherever he is and the bound government is prohibited from enforcing wherever the target is.

The argument against mootness is that the EDPa injunction might be reversed on appeal, which would revive the current case or force the California plaintiffs to come back to court for their own injunction if the EDPa injunction goes away.

This creates the individualized litigation that proponents of universality want to avoid--the individualized litigation that I argue the system requires (outside of class actions).

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they are elected in legislative districts and assume national office by virtue of leadership in a political party that attains a legislative majority (or leads a legislative coalition).

Since Robert Mueller’s report was released on April 18, a number of people have commented on the Special Counsel’s decision not to make a “traditional prosecutorial judgment” about whether President Trump obstructed justice and thus committed a crime. 

The portion of the report that describes Don Jr.’s conduct is not redacted (it is described on page 60 of the Mueller Report), and Orin Kerr published this helpful article over at LawFare last year explaining how Don Jr.’s conduct falls within the criminal prohibition in section 1030(a)(2). 

assume that the decision to redact Don Jr.’s name from the declination analysis is grounded in the same “fairness concerns” that prompted Mueller not to reach a judgment on whether the President obstructed justice: The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case.

Those Principles instruct prosecutors to consider, among other things, the nature and seriousness of the offense, the person's culpability in connection with the offense, and the probable sentence to be imposed if the prosecution is successful.

To the extent that declination decisions are made on an ad hoc basis, people are not getting equal treatment, and prosecutors may make prosecution decisions for arbitrary or discriminatory reasons.

Finally, the fact that we allow prosecutors to decline prosecution under overly broad statutes doesn’t mean that they are under any obligation not to bring charges in trivial cases. 

There are plenty of cases in which prosecutors have decided to file charges against defendants whose conduct does not resemble harm that the legislature was trying to prevent when it enacted a criminal law. 

But, as I argue in a forthcoming paper, the modern embrace of textualism leaves defendants with essentially no recourse if their behavior fits within the incredibly broad statutory language.

We do not know whether the Department of Justice has adopted an internal policy not to charge all defendants in these sorts of cases, or whether this was a one-off decision based on the unique facts and circumstances surrounding this case. 

What is more, because most of the analysis is redacted, we do not have a statement from a respected group of federal lawyers – including not only Robert Mueller, but also Deputy Solicitor General Michael Dreeben – explaining why such a case is so trivial that it does not warrant prosecution. 

The majority contends that its decision is consistent with previous cases that required interpreting “ambiguities about the scope of an arbitration agreement” “in favor of arbitration.” But there was no question here about whether the court should require arbitration.

A growing line of cases views the Federal Arbitration Act (FAA) as protecting only a certain vision of arbitration: “traditional individualized arbitration.” Class arbitration, the Court explains, would “undermine[] the most important benefits of that familiar form of arbitration.” Lamps Plus repeats the Court’s pronouncement last term in Epic Systems v.

Lewisthat “with class arbitration[,] ‘the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.’” (emphasis mine).

Mattel, the Court limited judicial review of arbitration awards in part “to maintain arbitration’s essential virtue of resolving disputes straightaway.” Arbitration, however, is not the monolithic quick and dirty dispute resolution mechanism the Court seems to envision.

Interestingly, international commercial arbitration—the original context in which the Court began enforcing arbitration clauses and arguably most legitimate context for enforcing arbitration—often has attributes that contrast sharply with those the Court deems “fundamental.” A hallmark of modern international commercial arbitration is the arbitrator’s ability to select procedures appropriate for the dispute she is presented with, within the limits of the governing agreement.

But according to Lamps Plus,the FAA requires courts to interpret arbitration agreements pursuant to federal default contract principles—not state rules of contract interpretation—to ensure that arbitration follows the “traditional” model.

the guide dog has Putin's face and a collar with the Russian flag, while Trump is shown as a sightless man with dark glasses, with the guide dog on a lead taking him he knows not where.

And any answer must not reduce to a prohibition on criticizing Israel in the same terms and using the same tools, including cartoons and satire, that would be used without objection against other nations and other political leaders.

And the stakes of taking the officer's word in this case--a $300 fine--are infinitely lower than when courts justify police shooting an unarmed person.

The Kansas Supreme Court refers to its Bill of Rights many times (I lost count) to justify its conclusion that the right to have an abortion is, in part, a natural right that necessitates strict scrutiny for state regulation.

For example, contracts will include multiple clauses about post-employment competition, including non-competes, ndas, non-solicit, assignment clauses, non-disparagement clauses (I have written about this breadth of clauses most recently in two forthcoming papers, Knowledge Pays, forthcoming in the Columbia Law Review and Gentlemen Prefer Bonds forthcoming in an antitrust symposium in Santa Clara Law Review).

Many of the clauses contain misleading and unenforceable terms and would be deemed void by courts if they were the subject to contract breach claims.The idea is that public policy should develop a better way to consider contractual arrangements where the sum is something larger than the parts.

This means that for example clauses that restrict mobility should be judged in relation to each other, on how much they operate together to signal, and to create, a lock-in talent and prevent competition.

The jurisprudence on unconscionability includes some such considerations when judged on substantive and procedural effects and multi-factors are taken into account, but I don't the law has developed a direct and consistent framework to adjudication what I am calling "Supra Addition"

Second, a contract thicket, and this may be a separate paper - exists when an entire workforce or industry are signed on similar clauses, which again creates a supra addition effect: for example, if everyone is signing non-solicitation of co-worker clauses or everyone is signed on class waivers or arbitration agreements or secrecy arrangements, the effects are on the industry at large, beyond the number of employees who sign the clauses, and they also have an effect on the terms and conditions of employee who have not signed these contracts.

A better conceptualization and adjudication of supra addition has implications both at the assessment stage: contract interpretation and whether contracts are enforceable, void, voidable, misleading, should be blue-penciled or completely tossed.

Second, a better understanding of the phenomenon of supra addition should suggest a more proactive approach to contract policy: waiting for each individual clause to be the subject of litigation never reveals the full picture.

-- as they allowed a law for sophisticated parties creep outside that context -- nor was this your grandfather's contra proferentem rule that was there to help non-drafters on the receiving end of adhesion contracts.

 The Court decided to pre-empt well-worn state contract law (that was surely around at the time the FAA was passed) in service of a new-fangled court-commitment to (now individualized rather than class) arbitration, which itself is supposed to be a product of contract.

 Put aside that the FAA drafters were focused on sophisticated party transactions (where consent and equal bargaining power was presumed) and that the Court has developed what amounts to a strong federal policy in favor of arbitration even in consumer and employment transactions (where consent is usually pretty thin in form contracts).

consent to arbitrate in class arbitrations, notwithstanding that the drafter has complete control over the arbitration agreement and is fully capable of drafting against a well-known and widely applied doctrine of core contract law. 

When the California courts used unconscionability law somewhat selectively -- mostly to kill arbitration agreements but otherwise not do much else -- I could get myself to see how discriminatory applications of contract law could be in some tension with the FAA's core purpose not to have courts disfavoring arbitration agreements.

 I'm embarrassed to be surprised that the conservative bloc wants to displace state contract law when neither the text nor the purpose of the federal law requires it. 

As Ethan Leib and I explore in Contract Creep, forthcoming in the Georgetown Law Journal, scholars and judges widely accept that so-called “sophisticated party” transactions should be treated differently than consumer or employment transactions involving individuals.

The wisdom of developing distinct doctrinal tracks in contract law for different transaction types traces to the distinctive goals of contract law in different contexts as well as empirical evidence of the distinctive ways sophisticated parties, on one hand, and individuals, on the other, are able to mobilize terms like arbitration to allocate risk.

 As we argue, however, the project of developing a contract law for sophisticated parties and another track for employees or consumers overlooks a fundamental challenge—one that today’s ruling both demonstrates and exacerbates.

In solidifying the privileged presumption of individual rather than class-wide arbitration and sidelining the principle of contra proferentem—construing an ambiguity against the drafter— today’s ruling facilitates creep in two directions. 

It reinforces the trend of treating arbitration provisions—originally recognized by bespoke doctrine as a tool for sophisticated parties—as a matter of general contract law in which the employer-drafter’s consent is paramount.

And framing contra proferentem as a public policy doctrine beyond the issue of consent, the ruling circumscribes the applicability of the doctrine in the context of an employee presented with a form agreement. 

As we outline, this old principle of contract construction has migrated in its current form from insurance law, where its most compelling rationale is pro-consumer, into general contract law, to be applied in sophisticated party transactions.

Today’s ruling further muddies the distinction between doctrinal tracks in both directions: limiting contra proferentemin the context of a form agreement drafted by a powerful repeat player, and protecting employers’ consent to arbitration without regard to transaction type.

In doing so, the Court not only widens the on-ramps for transaction-specific doctrine to jump tracks but demonstrates the generalizing trend that will complicate the project of developing bespoke doctrine.

He threw to second for the force on Goodwin (the third baseman was covering second on a shift against the lefty Bour), then a relay to first for the inning-ending double play on the non-running batter.

We can see how easy it would have been for the second baseman to let the ball hit the ground and immediately make the first of one or two throws for a double play--had the fielder been quicker grabbing the ball off the ground, he could have made one throw to second base for a tag-the-runner-on-second/tag-the-base-to-force-the-runner-on-first double play.

It appears that the petitioner is going to win and that the Court will find the § 1983 claim timely because filed within three years of the favorable termination of criminal proceedings.

And he received an avalanche of questions--including from the Chief and Justice Kavanaugh--showing sympathy for the argument that favorable termination should be required for policy reasons of avoiding collapse and confusion between criminal and civil proceedings.

The real question is going to be how the Court gets there--whether by focusing on the elements of a § 1983 claim (as the United States urges) or at the level of judicial policy (as petitioner urges).

My introduction includes a discussion of an issue I have been playing with--whether, if you could establish state action (which I do not believe you can), the NFL violates the First Amendment by prohibiting players from kneeling during the anthem.

The State University System of Florida and its twelve public postsecondary institutions adoptthis Statement on Free Expression to support and encourage full and open discourse and the robust exchange of ideas and perspectives on our respective campuses.

The principles of freedom of speech and freedom of expression in the United States and Florida Constitutions, in addition to being legal rights, are an integral part of our three-part university mission to deliver a high quality academic experience for our students, engage in meaningful and productive research, and provide valuable public service for the benefit of our local communities and the state.

The purpose of this Statement is to affirm our dedication to these principles and to seek our campus communities’ commitment to maintaining our campuses as places where the open exchange of knowledge and ideas furthers our mission.

fundamental purpose of an institution of higher education is to provide a learning environment where divergent ideas, opinions and philosophies, new and old, can be rigorously debated and critically evaluated.

Through this process, often referred to as the marketplace of ideas, individuals are free to express any ideas and opinions they wish, even if others may disagree with them or find those ideas and opinions to be offensive or otherwise antithetical to their own world view.

The very process of debating divergent ideas and challenging others’ opinions develops the intellectual skills necessary to respectfully argue through civil discourse.

And though we believe all members of our campus communities have a role to play in promoting civility and mutual respect in that type of discourse, we must not let concerns over civility or respect be used as a reason to silence expression.

Because universities and colleges are first and foremost places where people go to engage in scholarly endeavors, it is necessary to the efficient and effective operations of each institution for there to be reasonable limitations on the time, place, and manner in which these rights are exercised.

These limitations are narrowly drawn and content-neutral and serve to ensure that all members of our campus communities have an equal ability to express their ideas and opinions, while preserving campus order and security.

discuss, for example, the origins of automatic voter registration, started statewide in Oregon largely thanks to some innovative thinking by Steve Trout, the elections director, and Kate Brown, then the secretary of state who became governor.

I talk about the adoption of ranked choice voting in numerous local elections and then Maine’s statewide implementation last year, highlighting both the reformers who made it happen and the reasons why the system can improve our elections.

and try novel social and economic experiments without risk to the rest of the country.” If states are laboratories of democracy, then I like to think of cities and localities as “test tubes of democracy” that can try out reforms on an even smaller scale.

Those ideas are important, of course, and I discuss some of them in the Epilogue, but the point of this book is to highlight and promote electoral changes that are already in force – with positive results – in states and localities all over.

It’s a popular press book that tells some truly inspiring stories of everyday Americans who are working in communities all over the country to fix our election system.

Joshua Cardenas of San Francisco, then 16 years old, advocated to lower the voting age to 16 for local elections, which came very close to passing in 2016 and likely will win enough support in the near future.

Vince has long lamented that in legal education, students are generally asked to read and synthesize large chunks of doctrine drawn from small, chopped-up excerpts of cases, rather than reading individual cases in full and  engaging carefully with them as individual texts.

Given the elite-reproduction nature of law school hiring, most of us owe considerable debts to teachers whose fame and prestige we can hardly advance and for whom we can do little in return that they really need.

It is almost literally an arresting passage: so evocative and powerful that it often hijacks the attention of scholars writing about Barnette, who thus neglect much else of importance in the opinion, including much that might help us read the "fixed star"

Frankfurter's dissent in particular has long been short-changed, in large part because of the arresting nature of the opening, deeply personal passage in which he identifies himself as "one who belongs to the most vilified and persecuted minority in history."

That passage has encouraged a general dismissiveness toward the dissent, in which casebooks (which skip the concurrences altogether) quote its dramatic opening but treat the dissent (most of which they omit) as a defensive outburst justifying his opinion in Gobitis and his place on the so-called "wrong side of history"

There is actually much to learn from the concurrences and Frankfurter's dissent, each of which in various ways previews arguments and competing views--especially about law and religion--that would recur for the next 75 years and counting.

In doing so, it offers an implicit and explicit tribute to Vincent Blasi, whose teaching and writing have emphasized the value of deep, careful engagement with the language and arguments of a single text, such as a judicial opinion, and who has been an inspiration to me and many other contemporary First Amendment scholars.

And for good reason: As this close reading reveals, the words and deeper music of Barnette are in genuine tension with current popular positions on these issues, and suggest that at some point these scholars need to engage directly and seriously with Barnette.

This is true not just in the sense that Barnette positively inspired a great deal of First Amendment doctrine, but also in the sense that much of the jurisprudence that followed consisted of efforts to cabin Barnette and its implications and to build safety valves around it.

But I do suggest that there are good reasons to suspect that many modern scholars might be (or ought to be) ambivalent about Barnette, given the import of that case for the implications of the theories and arguments they have been advancing of late, and that this ambivalence might express itself in part by bracketing Barnette through silence.

in mind, it means more than that, and suggests real conflicts with the kinds of arguments that have been popular in recent years among First Amendment scholars--but not, for the most part and notwithstanding Justice Kagan's dissent in Janus [the initial post accidentally said "Masterpiece Cakeshop"

The worst that can happen is that openly questioning Jackson's opinion might deprive them of some strategic or rhetorical resources in advancing their arguments, and make it less likely that such arguments will win support from judges.

Competition principles apply in equal force to the labor market as to the product market, with the added effect that human capital is a living resource—its quality is endogenous to the competition for it.

The strength of competition in the labor market depends on a range of factors, but a key measure of competition is the number of alternatives available for employees to consider.

First, it explains the broader landscape of anti-competitive restrictions that are routinely placed on employees including horizontal collusion between employers agreeing to fix wages or refraining from poaching each other's employees and vertical arrangements between employers and employees, which may include employees agreeing not to solicit customers or former co-workers post-employment;

and to avoid building on their professional knowledge, reaching beyond trade secrecy protections and into information that should remain in the competitive markets public domain, such as customer lists, compensation information, and general know-how.

Second, while many of the harms potentially caused by non-competes are well-documented, the article presents a neglected aspect of labor market concentration: the perpetuation of wage gaps and inequalities.

I argue that the problem of unenforceable anti-competitive restrictions in employment contracts calls for a proactive approach, including notice requirements in employment contracts;

President Trump has made two recent moves that some are labeling threats to the rule of law: 1) DOJ (at White House urging) declining to defend the Affordable Care Act and 2) Trump instructing the head of ICE to deny entry at the border and to disregard court orders to stop denying entry and promising to pardon officials held in contempt for disregarding court orders.

From the premise that the executive can reach independent constitutional determinations it follows that the executive can make litigation choices consistent with those determinations, including declining to defend laws.

DOJ guidelines on when to decline are just that--prudential guidelines for making controversial choices and avoiding defeat in court, but not constitutionally compelled and not inconsistent with an idealized rule of law.

The second is impermissible, as the President and the rest of the executive branch cannot disregard court orders that bind them or refuse to enforce court orders binding others.

It is an interesting arrangement, with the United States supporting the petitioner/plaintiff position that the lawsuit (filed within three years of his acquittal on criminal charges that were based on fabricated evidence) was timely, but arguing that the plaintiff's claims should be dismissed on prosecutorial immunity grounds on remand.

There are amicus briefs from criminal-defenses lawyers and fed courts scholars supporting the petitioner, urging the Court to maintain a scheme in which a criminal defendant is not forced to pursue § 1983 litigation until the criminal proceedings have resolved.

In an otherwise terrific book by Justin Driver and in a recent post by Sandy Levinson over at Balkinization (where I also blog), the false story that Justice McReynolds refused to sit next to Justice Brandeis one year for the Court's official photograph was repeated.

Alan Trammell (Arkansas) made a cute rhetorical move, trying to shift the focus from Trump and Obama (which naturally provoke partisan reaction) to the case of Kim Davis and whether, once she disregarded Obergefell, the district court should have been able to order Davis to issue licenses to all couples.

Charlton Copeland (Miami) offered a separation-of-powers perspective, arguing that universal injunctions may be uniquely appropriate against executive overreach to restore a balance among the branches, even if universality would not be appropriate against the same policy enacted by the legislature.

If the executive has the power to disagree with judicial precedent but not injunctions in a given case, does giving that judgment preclusive effect undermine that executive power.

As to the latter group, that presents an interesting question of default rules--if the injunction is silent, should we presume that the injunction is particularized to the plaintiff or presume that it is universal?

That project seeks to examine the relationship between oaths and constitutional interpretation, and to argue for the revival of honor, suitably revised, as an essential virtue in citizenship and office-holding.

Office is best thought of not simply in terms of power, and with the officer viewed merely as any individual who happens to exercise a power-wielding office at a given moment.

If you have information about entry-level hires for this year, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.) Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.) Areas of Specialty (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty) Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this) (Comments are closed on this post in order to drive comments to the original post.) Posted by Sarah Lawsky on April 8, 2019 at 08:59 AM |

Regardless, as a confirmed and unrepentant old fogey, who still likes looking at new issues and tables of contents and thinking of journal issues as issues rather than accidental collections that are soon to be disembodied and float around Westlaw, I still look forward to the Foreword, even when it disappoints me.

that runs pleasingly contrary to the usual rhetoric of scholarship and extra-scholarly propaganda by legal academics, who have strong political, professional, and careerist incentives to treat every new dispute as an urgent, high-stakes one and scoff at the existence of serious competing claims on the other side of the position taken.

The volume editors conceive of feminism as a broad movement and welcome proposals that bring into focus intersectional concerns beyond gender, such as race, class, disability, gender identity, age, sexual orientation, national origin, and immigration status.

Last month I wrote about the controversy at UC-Davis, where people unearthed old tweets from an English professor calling for police officers to be killed, prompting introduction of a California House Resolution calling for the professor's firing.

Gallagher today wrote a letter to President Trump, insisting that the professor's speech is what suppresses campus speech and asking the President whether: 1) the intent of the order was to protect speech such as this, 2) whether Gallagher's call to fire the prof is consistent with the order's intent to stop intimidation and violence, and 3) whether Davis would lose funding if it fires the professor.

CrimFest is an informal, annual conference where those of us who study criminal law, criminal procedure, and related criminal justice topics meet to workshop papers.