Wednesday Writs for 7/31


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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23 Responses

  1. Avatar Oscar Gordon says:

    LL5: I appreciate the sentiment from the police, but it would be better if they just noted the plate number and sent the registered owner a Thank You card.Report

  2. Avatar Aaron David says:

    Slightly off-topic, but I am curious about the legal beagle opinions on this:

    Seems to me that a State is interfering in a Federal issue, by requesting a document they have no legal rights to (outside of the CA franchise tax board action) and is not a requirement of his ability to run for president. I see this as disenfranchising many CA voters over a petty argument, but I am curious about the legal standing of it.Report

    • Avatar Michael Cain says:

      Added twist is that it only applies to the primary, which is one of the inputs to the process of selecting delegates to the national convention. All sorts of bizarre behavior is allowed at that level — eg, the Iowa caucus system. Questions of standing to sue might be interesting. The California parties probably have standing, the national parties might, but I doubt that individual candidates do.

      Of course, IANAL, so what do I know?Report

      • Avatar PD Shaw says:

        The SCOTUS struck down a Missouri law that would have put warnings on both primary and general election ballots next to candidates that exceeded the state’s term limits for Congressional Represenatives. This is after such restrictions were ruled unconstitutional, so its obviously an attempt to revisit the policy in the form of public disclosure. As far as I can tell, the SCOTUS didn’t find any importance to the primary situation, basically finding it to be an impermissible attempt to regulate a federal office.

        (Cook v. Gralike (2001))

    • Avatar PD Shaw says:

      I think its probably unconstitutional, but sounds like its going to go to the SCOTUS.

      One of the arguments made in my state, which appeared to have killed the bill, was that if disclosure of tax returns is so important for informed voting, then why doesn’t the bill apply to other elected officials as well? The bill passed one legislature and stalled in the second for reasons unknown, but the chief sponsor has said he was willing to resubmit the legislation with additional elected officials if necessary. This was a political death, but I would expect that the SCOTUS in evaluating the state’s legitimate interest to consider the discrepancy.Report

      • Avatar Michael Cain says:

        Are we betting yet? I’ll bet that the courts all punt on it. None of them are going to be willing to take on the question of what restrictions state parties, and by extension, state governments, can impose on who makes the primary ballot. Especially at this late date, when there are many restrictions in so many states.Report

        • Avatar PD Shaw says:

          SCOTUS has ruled broadly in the U.S. Term Limits case about the broad divisions of authority between state and federal regulation of federal elections. I don’t see how or why they would punt; they will decide whether this is within the State’s power because it is “procedural” of not because it seeks “to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”

          State authority to dictate the time, place and manner of the election of _federal officials_ derives from the Constitution. States have broader authority over their own officials. I think that the States are going to have a problem arguing that tax returns are a normal procedural role for state governments, when they are doing it for the first time for one office. I also think California is going to advocate a limiting principle to what it seeks to do to avoid a complete fragmentation of the Presidential electoral system in which strong Red and Blue states pass ballot measures intended to determine the outcome of the opposing party’s primaries. (These arguments came up about eight years ago when states proposed legislation to require long form birth certificates to get on the Presidential ballot.)Report

          • Avatar Michael Cain says:

            No federal official will be elected on March 3 in California.

            100+ years ago, many states required that their state legislators follow the popular vote in choosing US Senators, even if it meant voting against their own party’s candidate. None of those statutes were ever struck down. Last year, partisan gerrymanders were ruled a political question and put off limits to federal courts. A few years back in Arizona v. Arizona the SCOTUS ruled that different states could interpret “the legislature” in different ways for drawing US House districts.

            The easy way out of a partisan-looking situation — as the sitting President is the only potential candidate unwilling to show his tax returns — is to punt.Report

            • Avatar PD Shaw says:

              The case I linked to above involved primaries. I am quoting from it in my previous comment.Report

              • Avatar Michael Cain says:

                The comment I read you saying the SCOTUS didn’t address the primary part in their opinion? Apologies if I misread that.Report

              • Avatar PD Shaw says:

                Sorry, I didn’t communicate that well. The Court didn’t find the primary aspect at all relevant. The ruling applied to both general elections and primaries without any additional analysis. The important point was that the state was regulating the federal elections beyond what it considered merely procedural.Report

    • Avatar George Turner says:

      If Trump’s lawyers are smart they’ll let it stand and then challenge California’s electoral votes under section 2 of the 14th Amendment, which says:

      Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

      Assume they can win the argument that Trump’s supporters were effectively disenfranchised because they weren’t allowed to vote for Trump in the primary, which might be a bit tough, but whatever.

      In 2016 Trump got 32% of the state’s votes, (4,483,810) in 2016. If that 4.4 million figure (12% of the state’s 2010 population) is taken as the disenfranchisement, the 14th Amendment says we strip California of 12% of their 53 population-based electoral votes, which drops them to 48 instead of 55. If he could win the argument that 33% of the voters were disenfranchised, he could drop California to 37 electoral votes.

      Or he could argue that California unconstitutionally interfered with and rigged their state’s vote, and make a case that all of California’s electoral votes be thrown out. That one may be more morally supportable but I’m not sure how
      that would happen in practice except by having the electoral college refuse to seat California’s electors.

      In any event, he shouldn’t settle for having to fight an unconstitutional requirement when he can toss California out of the race.Report

  3. Avatar Saul Degraw says:

    LL3 and LL4: Amy Wax is Jewish and I find her statements against immigrants disappointing as a co-religionist. Mainly because the same stereotypical remarks were said about our ancestors.

    Previously, she was banned from teaching 1Ls for opining that she never saw black students do well. She got close to mentioning students by name.

    As one of those really sucky but strategic matters, I can see why Penn Law is giving her the kid gloves. She would have the full backing of the wingnut circuit. Even if termination was lawful, she could instigate a suit and get unlimited funding from someone like Peter Thiel or Rebecca Mercer that wants to stick it to the libs.Report

    • Avatar Aaron David says:

      One of the prime attributes of academia is the freedom to research and have unpopular opinions without fear, because, as you know, what is at one time unpopular and dangerous (Judaism) can change. My great-grandfather wrote his dissertation on The Censorship of Hebrew Books. All ideas should be on the table and debated. No matter the unpopularity.

      Penn is right to come out and say they don’t approve of her statements, but not to remove her from teaching unwelcome ideas. Students need to be challenged to come up with better arguments.Report

      • Avatar CJColucci says:

        I think the exact opposite. While fellow faculty members would be right to come out and say that they don’t approve of her statements, I think the right course for the institution is to say that she speaks for herself and not the institution. Full stop. As for teaching assignments, her “unwelcome ideas,” to the extent that they are ideas at all, are not germane to any of the required 1-L courses she previously taught, so she has no more right to express them in Torts or Contracts than I would have to spend more than de minimis class time on the doings of the Philadelphia sports franchises. (In theory, a dean could tell me to STFU about that, period, and stick to my knitting, but no sane dean would bother over trifles.) If the Penn administration thinks, as it obviously does, that her expressed ideas raise a legitimate suspicion among students that she might not be fair to them, removing her from required courses, while keeping her on the books and teaching elective courses (which most faculty members prefer anyway) makes perfect sense.Report

        • Avatar Aaron David says:

          So, professors should only be able to talk about the things they teach? Never do research into other areas, not talk about how current issues affect laws, etc?

          You are missing the whole point of academic freedom.Report

          • Avatar CJColucci says:

            Academic freedom is a large part of my legal practice, and what I have said is pretty much the mainstream view of the matter. My clients don’t think I miss the whole point. Prof. Wax can research anything she wants and talk about it all she wants. But not just any time and anywhere she feels like it. She has no academic freedom to engage in speech IN THE CLASSROOM that is not germane to whatever it is she is supposed to be teaching. She might do a lot of research into medieval Icelandic criminal law (there’s actually a fair amount of work on this) and have non-mainstream views on the subject. She has every right to spend her non-classroom time on this, try to publish her views on it, or present her views at conferences, on television, or at bar mitzvahs. But if she is teaching Contracts, her business is to teach Contracts, and if she takes up non-trivial amounts of class time to express her views on medieval Icelandic criminal law, she isn’t doing her job and administrators can tell her to stick to her knitting, without infringing academic freedom.Report

  4. Avatar Saul Degraw says:

    LL8: California’s bar passage rates have declined dramatically over the last few years.

    Part of me wonders if this was done kind of, sort of intentionally as an experiment to see if it boosts bar passage rates.Report

    • Avatar wvEsquiress says:

      I’ve heard that theory as well.Report

    • Avatar Slade the Leveller says:

      Isn’t that a good thing? To me it suggests that law schools are either admitting too many unqualified students, or aren’t teaching well to the students they do admit. In either case, it’s a good way of thinning the herd.Report

      • Avatar Saul Degraw says:

        Paul Campos once commented on LGM that he was surprised about the lack of law school closures/mergers. He thought it would be much more of a blood letting. Instead, schools admitted a lot of unqualified students probably.* So bar rates plummeted and now we are in the stage where everyone forms committees that do everything they can to avoid hard truths.

        *Mine included. My cohort was a decent bunch and so were the classes around us and then the standards went way down. The dean had to send out letters about results being disappointing a few times. Now we are “back to basics” I think of a “classic curriculum” and being tougher with admission standards.Report