In Memoriam: Judge Beverly Reid O'Connell

In 2013, Professor Amy Levin and I launched a judicial clerkship committee at Pepperdine Law. We wanted to help maximize clerkship opportunities students. That same year, Pepperdine saw its first alumna appointed to the federal judiciary: Judge Beverly Reid O'Connell. Our dean, herself a former federal judge, Deanell Reece Tacha, encouraged us to connect with Judge O'Connell to think about how we could best advance the cause of our students.

She passed away this week, after an abrupt health issue, and I thought I'd share a few thoughts about her.

I quickly found myself intimidated by the presence of Judge O'Connell when I first met her in her chambers--even if she couldn't have been taller than five feet. She was ready to get to business and talk about how we could help our law students and how she, as our first federal judge, could give back to the Pepperdine community. This was Judge O'Connell (I could never bring myself to call her "Bev" as so many of her friends did): intense, focused, driven, passionate, selfless, tireless. I valued every conversation and meal I shared with her in our handful of interactions over the years. These was mostly in the context of clerkships, but I had the pleasure of interacting with her when our Board of Visitors met, or at the annual dinner, events for which she always made time to attend. She was, as I said, tireless.

She did not suffer fools. She had high standards. But that business exterior could never belie the deep care and concern she had for the Pepperdine community in particular and the legal community as a whole. There is no doubt she was the single best advocate for Pepperdine I have encountered in over six years at the school. She was the kind of alumna schools dream about having. And, of course, as business-like as she could be, she had a delightful sense of humor and a disarming smile (when you had the pleasure of seeing it).

Her care extended to her externs and her judicial clerks. Yes, she was demanding, as I quickly learned from my students who spent time in her chambers. But she was also a tireless and vocal advocate for them in their legal careers. In her short time on the bench and on this earth, she influenced many around her who were affected deeply by her presence. Many of my students owe her a great deal, and for that her legacy will live on.

I don't have many words to say except these seemingly generic platitudes. I knew her a little, but hardly as well as so many of her classmates, fellow judges, and alumni in the Pepperdine community. Still, I'll miss her, because of her enthusiasm that made me want to be a better mentor to my students and citizen of the Pepperdine community. My prayers are with her family in this time. You will be deeply missed.

Partisan gerrymandering: never trust John Kasich with any power or responsibility

This is the fourth in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here. The second is here. The third is here.

Among the many amicus briefs filed in behalf of the plaintiffs and appellees challenging Wisconsin's state legislative district maps, one can find many current and former elected officials, Republicans and Democrats. One of those is Governor John Kasich of Ohio.

In 2011, Mr. Kasich signed into law a new congressional map for the State of Ohio, described by some as one of the most gerrymandered maps in the country. He was, quite literally, in a singular position as an elected official to veto the map and, as an actor in the political process, take a "stand" against partisan gerrymandering.

Instead, here, six years later, he has asked the Supreme Court never to trust him again--indeed, he has represented to the people of Ohio that he cannot be trusted with power or responsibility. He has asked the federal courts to step in and help draw district maps, because he cannot be trusted to do so.

It is a rather shocking thing, to me, at least, to read so many elected officials happily asking the federal courts to take political power from them, and expressly on the basis that they cannot be trusted to use it responsibly. That, I suppose, is par for the course for many politicians in our time of delegation to the administrative state and a reluctance to engage in the hard decisionmaking required of them. And it is, I suppose, to be expected for those currently (and, of course, temporarily) in the political minority in their jurisdictions, who may be tempted to seek an immediate and expedient solution to their political challenges.

But reading these pleas from politicians should be jarring. Some, I imagine, would read it very differently from the way I do--that is, they view this as the ultimate cry for help from a political process that cannot effectively respond in an effort to secure some help from a place of last resort, the federal courts. I, however, see it just the other way--the disappointing response of elected officials who hold the power and fail to exercise it responsibility, then seek to discard it into the responsibility of another.

Quick thoughts from today's oral argument in Gill v. Whitford

This is the third in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here. The second is here.

Here are a few quick running thoughts from today's oral argument in Gill v. Whitford. This post will be updated. The transcript PDF is here.

Standing? A question mostly ignored in the run-up to argument was the question of standing, because plaintiffs challenged the entire map, not specific districts. But it lurked in the background: Professor Ned Foley has mentioned it, and it's been looming ever since the Court accepted the case leaving open the question of jurisdiction. Right off the top, Justice Kennedy concedes, "You have a strong argument" on the standing issue. That remains a major question as the case moves forward. I wonder, however, if Justice Kennedy feels more comfortable with a more, shall we say, "creative" standing analysis if the claim arose under the First Amendment, a place known for exceptions to standing (e.g., the overbreadth doctrine). When the appellees rose to argue, Chief Justice Roberts came out of the gate calling it "arresting" to have racial gerrymandering claim that must be district-specific but partisan gerrymandering statewide.

Justice Kagan pushed back that in one-person-one-vote cases, the person in an overpopulated district can challenge the entire map.

First Amendment v. Equal Protection: Justice Kennedy has long suggested he prefers the case to turn on the First Amendment rather than the Equal Protection Clause. He returned to this theme repeatedly in this argument, too. A three-judge panel in Maryland seized on the First Amendment claim earlier. Whether it's a better doctrinal foothold is one thing; whether it gives rise to a more workable standard is another. Only time will tell.

Justice Breyer's Multi-Step Test: He quick offered a multi-step test. First, was there one-party control? If not (e.g., a bipartisan commission), end of case. (As a note, this would tend to insulate a good number of partisan gerrymandering challenges.) Second, is there partisan asymmetry? (And here the "efficiency gap" makes an appearance.) Third, is it "persistent" over a "range of voters." Next (he didn't number it), he looked to whether it's an "extreme outlier." Finally, then ask if there's "any other motive" or justification. Justice Breyer wasn't "positive" it's manageable but offered it quite early.

Justice Kagan and Evidence: Justice Kagan pinned Wisconsin on points about the evidence. She emphasized that if legislators are capable of considering the evidence, why not courts? She noted that there's "good evidence" of partisan intent, and intent that led to an effect, "which was to entrench a party in power." She tended to emphasize the problems in this record and the capability of the courts to handle it. What that looks like in a standard is a different matter.

Justice Kagan also believed that Wisconsin went "over pretty much every line you can name," but wondered about line-drawing for future cases to prevent "a world in which in every district somebody can come in and say: A-ha, there's been a violation of partisan symmetry; we're entitled to a redrawn map." The word "outlier" arose as a possible standard.

Justice Gorsuch and Guidance: Justice Gorsuch wondered how the Court's standard might guide the legislatures in the future: what would it need to know "to avoid having every district and every case and every election subject to litigation"? He wondered, "how durable" the efficiency gap might look like in the event a standard like Justice Breyer's was adopted. He later worried that "it would yield about a third of all the districts in the country winding up in court."

Predictability of voters: A common theme was not just durability, but the extent to which voters' preferences are predictable--and the relevance that should have. Justice Kagan and Sotomayor noted that the legislature wanted to maximize Republican seats, and it predicted how voters behaved, and they did a great job in doing so--the predictions were quite accurate, so why complain that voters preferences might vary from case to case? Chief Justice Roberts, in contrast, was concerned that it was "stereotypical" to assume that voters are going to vote simply based on partisan affiliation, and that people "vote for a wide variety of reasons."

The judicial function: Chief Justice Roberts emphasized the concern that if courts throw out a map because one party wins too often, "the intelligent man on the street is going to say that's a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that's going to come out one case after another as these cases are brought in every state." He worried, "It is just not, it seems a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent. That doesn't sound like language in the Constitution." He continued that it would sound like "sociological gobbledygook."

Justice Gorsuch later wondered where the judicial power resides; Congress has the power, why judges? (Justice Ginsburg rejoined that one-person-one-vote came from the same place.)

Proportional representation? Proportionality only made a brief appearance when Chief Justice Roberts suggested that partisan asymmetry sounded "exactly like proportional representation to me," something "which has never been accepted as a political principle in the history of this country."

Guarantee Clause: It made a brief appears when Justice Gorsuch, no stranger to the Clause!, raised the issue that the heart of the claim was really a more specific claim in the Guarantee Clause rather than an Equal Protection Claim.

Prediction: No prediction from me! Nothing terribly remarkable from oral argument, but Justice Breyer's suggested path might be a starting point in the event the Court does decide to articulate a test. The question of a limiting principle, as Justice Kagan suggested, would be firm in their minds. I do expect, however, an important standing analysis to follow....

Partisan gerrymandering: a problem with an assumed solution

This is the second in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here.

I'll stipulate it. Partisan gerrymandering is a problem. And it has long been a problem. From the early days of the Republic to the present, it has vexed the political process.

But if that is a problem, the question is, what should the solution look like? Or, more specifically, who should fashion the solution?

Even if partisan gerrymandering is a problem, a solution that turns on the federal judiciary assumes that it is best suited, or suited equally with the political branches, to address the problem. There has been no meaningful argument that the federal courts are to be a last resort (a weaker version of the justiciability claim) or that they lack the institutional competence to handle these matters (the basic argument concerning the "political question doctrine").

Indeed, even in Baker v. Carr, the Court went out of its way to point out the (practical) political futility of trying to change redistricting by the political process, emphasizing that the people of Tennessee lacked the initiative power to amend the state Constitution to address concerns about malapportionment in the state legislature. (Of course, I should note, the people of Wisconsin also lack that power!)

It will inevitably stifle any innovation at the state level. Florida, California, and Arizona are just a few of the states that have initiated efforts to change how redistricting occurs in each state. (Arizona's even survived a legal challenge, albeit, I think, dubiously.) Florida added a constitutional amendment with fairly specific provisions that invited state judicial involvement; California created a citizens redistricting commission to draw the lines; Arizona developed a bipartisan redistricting commission. Whether these are the right solutions (as each is different) is probably a question of perspective.

But, I think, political, state-based efforts like these will be overwhelmed by litigation in the federal courts in the event the Supreme Court articulates a constitutional standard and finds that Wisconsin's redistricting runs afoul of it. True, some states (or, probably more specifically, their voters!) might want to go above and beyond this standard. But I do think that political innovation will dry up fairly quickly.

State law in Wisconsin already provides some modest protection against gerrymandering. The Wisconsin Constitution requires that state legislative districts be "contiguous territory and be in as compact form as practicable," and that "no assembly district shall be divided in the formation of a senate district." These help prevent--but by no means end!--some manipulation in redistricting.

And the governor--from a statewide elected office--is still involved in redistricting. To the extent the legislature has entrenched itself, a statewide, non-districted office remains a part of the process.

All this is to say that a three-judge federal court stepping into a traditional political area, and longstanding state practice, is the assumed solution in this case, and it is not immediately obvious that ought to be so. When courts articulate a standard, or apply their own judgment to a case, it simply looks different than political or state law-based redistricting. It is by no means obvious to me that the flaws of a few federal judges (and the litigation that surrounds such cases) are going to be somehow better for our democracy than the messy, sticky politics we've slogged through for a couple of centuries.

Some, of course, have pointed to the fact that only in cases of extreme partisan gerrymandering should courts intervene, or that this era is unique in partisan gerrymandering (to be fair, a claim made in the 1980s and 2000s in the last go-arounds, too). But to invite federal courts to weigh in on the state legislative redistricting process is, I think, significant to a degree not sufficiently recognized (in my own view!) in the discussions surrounding partisan gerrymandering so far. That is, even if gerrymandering is a problem, assuming that the federal courts are the best (and, indeed, they will become the prime place if the appellees succeed in Gill v. Whitford), or the necessary, place for such a solution is, I think, a logical step that requires something more.

Partisan gerrymandering: a scatterplot clause in the Constitution

This is the first in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week.

The Supreme Court is set to hear Gill v. Whitford, an appeal from a three-judge panel finding that Wisconsin's state legislative redistricting was an unconstitutional partisan gerrymander. A read of the amicus briefs in support of the appellees, however, suggests that the resolution of this case doesn't have much to do with the Constitution.

Among the 32 amicus briefs filed in support of appellees, just 12 even bother to cite the United States Constitution (from my review of the tables of authorities). Among those, just eight cite the most relevant texts: the Fourteenth Amendment (the basis for the finding that partisan gerrymandering claims are justiciable under the Constitution in Davis v. Bandemer) or the First Amendment (Justice Kennedy's suggested alternative constitutional provision for assessing partisan gerrymandering claims in Vieth v. Jubelirer). Indeed, even the brief of Constitutional Law Professors fails to cite the Constitution. And the appellees themselves do not cite to the Constitution, either. [UPDATE: A commenter below notes that the briefs do refer to these constitutional provisions in other places. The Constitution is not cited or included in the Table of Authorities, but it is referred to.]

Briefs understandably do different things. But most appear to drift away from any attempt to figure out what the Equal Protection Clause means: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."

The briefs, and the public commentary surrounding them, have focused on something else: political evidence and political science data surrounding Wisconsin in particular and redistricting generally. Maps showing old and new district lines and political boundaries, shaded maps with voter preferences, bar charts, and scatterplots overwhelm the discussion.

It's true that the bulk of the case is about what evidence courts can, or should, use when evaluating a partisan gerrymander. But that gets a bit ahead of the first question, in my view: what does the Constitution demand in redistricting? That is, what does it mean to "deny" a person (perhaps, in particular, a voter) the "equal protection of the laws"? It appears to me, at least, that this question of law has been relegated to an assumption or afterthought as the data and tools and evidence dominate the debate. Others, I'm sure, may disagree, pointing to the language from cases like Bandemer or Vieth in establishing the relevant legal standard. But, I think, given the uncertainty for three decades in these partisan gerrymandering cases, I think spending time working with the text of the Constitution remains a question of prime importance.

Why are bar exam scores improving?

The news that the mean scaled MBE score has risen for the second year in a row and is now the highest since 2013 is good news for law schools and law students. I've been tweeting the results of the comparative overall pass rates in some jurisdictions as they roll in. It shows that, as expected with an increase in the MBE, passing rates are up in most jurisdictions. That's helped by jurisdictions that have lowered the cut score: Oregon, for instance, reduced its passing score from 142 to 137, and its passing rate rose from 58% in July 2016 to 79% in July 2017. (The low point of MBE scores came in July 2015).

But, why? In 2014, I noted that it looked like bar pass rates would have a bleak (at least short-term) future. In 2016, scores slightly improved; and here in 2017, they've improved quite a bit (though well behind where they were in 2013 and the preceding decade of relatively high scores).

Schools that saw their declines in bar pass rates in September to November of 2014 would not have been able to take action on the admissions front until they admitted students who began in August 2015. (Indeed, some might have hoped it was a one-time blip and might not have reacted even then.) But we could look at a couple of things to see if their practices changed.

First, it turns out that the bottom end of the incoming classes in August 2014 had worse predictors than August 2012--but the July 2017 test-takers scored much better than the July 2015 test-takers. A whopping 146 law schools saw a decline in their 25th percentile LSAT incoming classes (i.e., the cohort most likely to fail the bar--relative, of course, to each school's LSAT profile and each jurisdiction's cut score) in that two-year period. 29 held steady in their 25th percentile, and just 14 saw an improvement.

If anything, then, we should expect bar pass scores to be much more this past July! But we also have another factor: academic dismissals. Note that the incoming class from August 2014 may have had worse credentials, but they would have completed their first year in May 2015, shortly after some schools would have been aware of the significant drop in the bar pass rates.

Professor Jerry Organ tracked attrition and noted an uptick in academic dismissals among that August 2014 incoming class by 2015--and before they took the July 2017 bar. Overall first-year attrition was up slightly, from 6.25% for the Class of 2015 to 7.04% for the Class of 2017. But attrition rose the most at schools with the lowest LSAT profiles. Among schools with a median LSAT profile below 150, attrition rose from 12.1% to 17.1% in that two-year stretch, while declining slightly at all other institutions.

Surely that can offset some of the worsening LSAT profiles. But it can hardly explain all of it. I wonder if institutions have found better strategies of intervening with at-risk students, or providing more robust bar exam support for at-risk students. Perhaps in the last couple of years, students have been sufficiently scared of failing the bar to study harder or earlier (we know that over time, a bar exam test-taker's score will improve). These are matters that institutions may have the data to examine (or may be in the process of collecting). Regardless, it remains good, albeit still slightly mysterious news--and those in legal education hope that it is the beginning of a continued trend of good news.

Where are they now? Supreme Court clerks, OT 2007

Following up on posts on a ten-year retrospective on the Supreme Court clerks from October Term 2003, October Term 2004, October Term 2005, and October Term 2006, here's what the clerks from October Term 2007 are doing. This list is probably unreliable and has not been fact-checked in any way, except for the links provided (and these links often aren't the best source material).

Chief Justice John G. Roberts

Jason T. Burnette (Georgia 2006 / R. L. Anderson), partner at Jones Day

Joshua Hawley (Yale 2006 / McConnell), attorney general of Missouri

Anton Metlitsky (Harvard 2005 / Garland), partner at O'Melveny

Erin Morrow Hawley (Yale 2005 / Wilkinson), professor at Missouri

 

Justice John Paul Stevens

Todd Gluth (Berkeley 2005 / W. Fletcher), partner at Cooley

Sara Eisenberg (Cardozo 2005 / Lifland (D.N.J.) / Barry), deputy city attorney of San Francisco

Kate Shaw (Northwestern 2006 / Posner), professor at Cardozo

Abby Wright (Penn 2006 / Boudin), attorney, DOJ

 

Justice Antonin Scalia

Aditya Bamzai (Chicago 2004 / Sutton), professor at Virginia

John Bash (Harvard 2006 / Kavanaugh), associate counsel, White House (and nominee, U.S. Attorney, W.D. Tex.)

Bryan M. Killian (Harvard 2005 / Niemeyer), partner at Morgan Lewis

Rachel P. Kovner (Stanford 2006 / Wilkinson), assistant to the Solicitor General

 

Justice Anthony Kennedy

Michael Chu (Harvard 2006 / D. Ginsburg), partner at Kirkland & Ellis

Stephen J. Cowen (Chicago 2006 / D. Ginsburg), of counsel at Jones Day

Annie Kastanek (Northwestern 2005 / Ripple), AUSA, N.D. Ill.

C.J. Mahoney (Yale 2006 / Kozinski), partner at Williams & Connolly (and nominee, Deputy Trade Representative)

 

Justice David H. Souter

Bert Huang (Harvard 2003 / Boudin), professor at Columbia

Leslie C. Kendrick (Virginia 2006 / Wilkinson), professor at Virginia

Michael J. Mongan (Stanford 2006 / Garland), deputy solicitor general of California

Micah W.J. Smith (Harvard 2006 / Calabresi), AUSA, S.D.N.Y.

 

Justice Clarence Thomas

Eric McArthur (Chicago 2005 / Luttig), DAAG, DOJ

Carrie Severino (Harvard 2004 / Sentelle), chief counsel and policy director, Judicial Crisis Network

Heath Tarbert (Penn 2001 / D. Ginsburg), nominee, Assistant Secretary of the Treasury for International Markets and Development

Leila Mongan (NYU 2005 / Sentelle / Lamberth), most recently counsel at Hogan Lovells

 

Justice Ruth Bader Ginsburg

Ruthanne M. Deutsch (Georgetown 2004 / Dyk), partner at Deutsch Hunt

Brian H. Fletcher (Harvard 2006 / Garland), assistant to the Solicitor General

Thomas G. Saunders (Yale 2004 / Leval), partner at WilmerHale

Zachary D. Tripp (Columbia 2005 / Kearse), assistant to the Solicitor General

 

Justice Stephen Breyer

Michael Bosworth (Yales 2003 / Katzmann / Kakoff), counsel at MacAndrews & Forbes

Karen Dunn (Yale 2006 / Garland), partner at Boies Schiller

Eric J. Feigin (Stanford 2005 / Wilkinson), assistant to the Solicitor General

Philippa M. Scarlett (Columbia 2003 / A. Williams), formerly DAAG in DOJ

 

Justice Samuel Alito

James Hunter (Yale 2003 / Alito), partner at Hunter & Kmiec

Geoffrey J. Michael (Yale 2000 / Alito), partner at Arnold & Porter

David H. Moore (BYU 1996 / Alito), general counsel, USAID

Jessica E. Phillips (Northwestern 2006 / Flaum), counsel at Boies Schiller

 

Justice Sandra Day O'Connor

Heidi Bond (Michigan 2006 / Kozinski, shared with Kennedy), author

 

A few thoughts:

Law professors continue to flow from a few justices. Only five law professors among the bunch, and they're spread out a bit more than previous years.

Plenty of government service. There were 15 involvement in government, and not all federal--service in Missouri, California, and San Francisco peppered the resumes of this class.

A small drop in law firms. There were 14 in law firms, down from 19 last year--and those were all partners. This year's includes several counsel & of counsel positions.

All in all, the sample size is consistently too small to draw much comparison from class to class or across classes. But it's worth looking back over the years to see if 10-year retrospectives have changed terribly much!

Update: I mixed up an OT 2008 Ginsburg clerk with an OT 2007 clerk; that has been corrected!

Aaron Hernandez's family may not be able to sue NFL over concussion-related issues

Aaron Hernandez was a former tight end for the New England Patriots. He was accused of murder, convicted, and committed suicide while in prison. It was just disclosed that he, a 27-year-old man, suffered from severe chronic traumatic encephalopathy, associated with concussions among football players. His family has filed a lawsuit against the National Football League.

But, they probably can't do that. (Well, I suppose they can file a lawsuit, but they probably can't win it.)

The NFL negotiated into a class action settlement a few years ago, and refined it, to settle all concussion-related and head injury-related lawsuits among its players. The payout would total about $1 billion, all told, with the bulk of it cash to former players.

It extends to all player who were retired as of July 7, 2014--Mr. Hernandez last played in 2012, so he'd fit this definition.

Players (and their families) had an opportunity to opt out of the settlement, but, as far as I can tell, Mr. Hernandez never did.

The biggest value to the NFL includes the preclusive effect of the settlement--that is, as a condition of handing out cash to former players and their families, the plaintiffs must agree not to sue the NFL for any related lawsuits. Section 18 of the settlement agreement includes broad provisions, typical of a class action settlement, precluding litigation over any concussion-related or head injury-related lawsuit.

In short, Mr. Hernandez's family probably can't successfully sue because their claims are all wrapped up in the concussion class action settlement. Because they didn't opt out, they're bound by it. So go class action litigation and settlements.

There are some challenges pending to the adequacy of the class action settlement, but those challenges have been losers so far, and I find it difficult to believe they'll succeed. There is a chance, too, that Mr. Hernandez's family might find a creative way to attack the judgment. But I think those are probably unlikely to succeed. Class action settlements have significant preclusive consequences, and the Hernandez lawsuit is simply a high-profile demonstration of what those consequences look like.

UPDATE: I've read reports that some believe Mr. Hernandez is not covered because he was not "retired." That is, he was young and, if he had been found not guilty, could have returned to seek a contract. The definition of "retired" almost assuredly covers him in at least two respects (and I've excerpted the relevant portion below). First, the New England Patriots cut him in 2013, and he was no longer seeking active employment. Second, he may have been deemed to have "informally" retired once he was cut from the team and facing criminal charges. I find it hard to believe that does not fit the definition. Indeed, some additional reporting suggests that just such a finding of CTE would make it easier for his family to collect from the class action settlement.

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