Fictional Attorney of the Month: John Shepherd

Mr. Shepherd is a "civil, cautious lawyer," Jane Austen explains in her novel Persuasion, and he serves Sir Walter Elliot, a widower who finds himself deeply in debt. Mr. Shepherd is shrewd as a counselor: he defers to Mr. Elliot's neighbor, Lady Russell, to advise him as to the best means of reducing his debt. And Mr. Shepherd carefully prods Sir Elliot to lease his estate to a naval officer, highlighting the attractive qualities of such men and emphasizing the pitfalls of alternatives. It is an excellent display of the art of persuading a recalcitrant client.

Mr. Shepherd's motives, however, are not wholly pure. He foists his once-married daughter, Mrs. Clay, upon the Elliots in the hope that she would gain the confidence Sir Elliot's eldest daughter and perhaps even wed Sir Elliot himself. As Sir Elliot has only daughters, it would jeopardize their estate if he remarried and had a son. And it would ensure that Mr. Shepherd's interests, not Sir Elliot's, were paramount in these considerations. Mr. Shepherd calls into question whether he is truly serving his client's interests, or merely serving his own.

He may not be a paragon of virtue, but his sly role as an attorney is notable, underdiscussed, and good enough for the Fictional Attorney of the Month.

BREAKING: Over four dissents, 10th Circuit denies en banc hearing in Guarantee Clause case

This post has been updated.

The Tenth Circuit has denied the petition for rehearing en banc in Kerr v. Hickenlooper, the case that found the Guarantee Clause justiciable. The PDF is here. Four judges dissented in three opinions. Rick Hasen calls it "potentially a huge case."

I wrote about this case in JURIST last March, and I've blogged about the case, the Tenth Circuit's decision, and the en banc petition. It inspired Elizabeth Price Foley and David Rivkin to write that it may invigorate legal challenges to the scope of President Obama's executive power, carried out at the moment by Speaker of the House John Boehner. Michael Ramsay had two posts earlier about the issue, too.

Briefly, Colorado voters in 1992 passed a Taxpayer Bill of Rights that requires all tax increases be approved by a popular vote of the people. Some legislators sued, claiming that the law deprived them of their legislative power. The district court, affirmed by the Tenth Circuit, found that the parties had standing to sue and that the Guarantee Clause claim was justiciable, and that the case should go to trial.

Judges Hartz, Tymkovich, Gorsuch and Holmes all voted for rehearing--all four of George W. Bush's nominees to the Tenth Circuit. They penned three dissents.

Judge Hartz emphasized that the Supreme Court's decision in Pacific States Telephone & Telegraph Company v. Oregon was essentially indistinguishable, and that existing Court precedent finds the Guarantee Clause nonjusticiable. He writes, "But I am at a loss to find a principled basis on which to hold that the challenge in Pacific States was a political question while the challenge here is not." He explained that some, like Professor Lawrence Tribe, have disputed the validity of that case, but it is precedent that binds the Tenth Circuit.

Judge Tymkovich, joined by Judge Holmes, emphasized that the doctrine of legislative standing and the nonjusticiability of the Guarantee Clause were important issues that the panel got wrong. He explains, "The net result of the panel's decision ratifying standing is that just about any policy provision codified in the state constitution would be subject to legislative standing and attack on the theory of vote dilution"--including marijuana laws, school funding, casino gambling proceeds, and so on.

Judge Gorsuch had a different, fundamental problem:

Where are the judicially manageable standards for deciding this case? The burden of showing such standards exist usually presents a plaintiff with little trouble. Most cases in federal court — whether arising under congressional legislation or the common law or sounding in equity — come with ample principles and precedents for us to apply in a reasoned way, even if those principles and precedents don’t always dictate a single right answer. But in our case the plaintiffs make a rather novel claim: they contend that Colorado’s government is not a republican one — and so violates the Guarantee Clause — because tax increases proposed by the legislature must also be approved by the public. Where are the legal principles for deciding a claim like that?

Where are the legal principles for deciding a claim like that? The plaintiffs don’t say. They don’t suggest, for example, that the Clause requires all decisions about legislation to be made by elected representatives rather than the public. Neither do they contend that the Clause is offended only when all legislative decisions are made by direct democracy. If the Constitution could be said to contain one or the other of these rules — either forbidding any experiment with direct democracy or forbidding only the total loss of a representative legislature — we might have a principled basis for deciding the case. The former rule of decision might require judgment for the plaintiffs; the latter, for the defendants. But the plaintiffs in our case disclaim either such standard. They seem to acknowledge that some direct democracy is consistent with republican government, insisting only and instead that the kind here runs afoul of the Constitution.
And this is where we run into trouble. To date, the plaintiffs have declined to advance any test for determining when a state constitutional provision requiring direct democracy on one subject (here, taxes) does or doesn’t offend the Clause. No doubt, the task the plaintiffs face is a formidable one: they enter a field in which the Supreme Court has already dismissed for lack of judicially manageable standards a case challenging a state constitutional provision that allowed citizens to overturn by direct vote any state legislative enactment (not just enactments raising taxes). The plaintiffs enter a field, too, where the Supreme Court has more recently chosen to derive a multi-part justiciability test from its preexisting Guarantee Clause jurisprudence — in the process expressly reaffirming the idea that the Clause lacks judicially manageable standards for cases like ours.

The case seems likely to head to the Supreme Court. Whether it's the best vehicle to address the Guarantee Clause is another question--there's still the legislative standing issue that needs to be surmounted. But the case, as it stands, leaves much litigation to the imagination of enterprising legislators.

Paul Clement enters pending Arizona redistricting litigation

I've previously blogged about what the Constitution means when it uses the word "legislature" in the context of the Times, Places and Manner Clause, and the Arizona state legislature's challenge to the ballot proposition that shifted the authority to draw congressional districts from the legislature to an independent commission. A three-judge panel rejected the Arizona state legislature's argument by a 2-1 vote.

Yesterday, the Arizona state legislature filed its reply brief (available via Scribd). Of note: former United States Solicitor General Paul Clement of Bancroft PLLC is now the counsel of record. Bringing in someone of his caliber suggests an increase in the stakes--and perhaps even an increase in the likelihood the Supreme Court will consider the merits of the case.

Justin Levitt's All About Redistricting, Ballot Access News, and SCOTUSBlog all have some coverage of the pending Arizona State Legislature v. Arizona Independent Redistricting Commission litigation. The Supreme Court will likely decide in late September whether to hear the case.

Extraterrestrial exposure quarantine laws and Apollo 11

President Richard Nixon greets Apollo 11 astronauts Neil Armstrong, Michael Collins, and Buzz Aldrin during their quarantine, July 24, 1969, via NASA.

This month marks the 45th anniversary of the Apollo 11 mission, the first manned lunar landing. But less discussed about this historical incident is the quarantine that took place after the astronauts landed.

The astronauts were quarantined from their splashdown on July 24, 1969 until their release on the evening of August 10--18 days of isolation to ensure that they did not bring back any contaminants from the moon.

The quarantine procedures were set forth in 14 C.F.R. § 1211 (now long since amended) in a part entitled "Extraterrestrial Exposure." The scope of the regulation:

This part establishes: (a) NASA policy, responsibility and authority to guard the Earth against any harmful contamination or adverse changes in its environment resulting from personnel, spacecraft and other property returning to the Earth after landing on or coming within the atmospheric envelope of a celestial body; and (b) security requirements, restrictions and safeguards that are necessary in the interest of national security.

It authorizes NASA to establish quarantine procedures and standards to evaluate who should be quarantined and when it is safe to release a person from quarantine.

The regulation was filed on July 15, 1969 (45 years ago today), and appeared in the Federal Register at 34 Fed. Reg. 11975 on July 16, 1969--the day of the Apollo 11 launch. It's perhaps no surprise, then, that it includes this effective date:

Effective date. In light of the Apollo 11 space mission and the need to guard the Earth against extraterrestrial contamination, it is hereby determined that compliance with section 553 of Title 5 of the United States Code is impracticable and contrary to the public interest; therefore, the provisions of this Part 1211 are effective upon publication in the FEDERAL REGISTER.

You can read the entire regulation here, via Scribd.


Wigmore critiques judges for failing to read legal scholarship

Following up on a couple of recent critiques of the legal academy, here's what John Henry Wigmore had to say about legal scholarship in his treatise on evidence, written in 1915, in which he laments the shortcomings of judicial opinions (available via Google Books):

1. A first shortcoming to be noted is the lack of acquaintance with legal science. By “legal science” is meant all that is above, between, and behind the particular rules and precedents,—the system of legal knowledge,— that which distinguishes the architect from the carpenter. In an administrator of the law, one's equipment as a scientist may be in general denoted by one's attainments in (a) legal history, (b) legal philosophy and jurisprudence, (c) sound discrimination of the best sources of knowledge.

(a) Acquaintance with legal history is almost totally lacking. There are now ample modern sources for a knowledge of the history of the great principles of our law. They are unknown to our judges. The citations of Pollock and Maitland’s History since its appearance in 1895 could be numbered on the fingers of both hands. There exist now plenteous other standard authorities. But whenever there is an expounding of history, Blackstone suffices. For the judiciary's purposes, the world stopped still with him.

(b) The philosophy and jurisprudence of the law are unknown. Austin, Salmond, Holland, Amos, Sidgwick, Spencer, Terry, Gray, might as well not have written. To be sure, Anglo-American legal science itself has, until very recently, covered formally but a part of the field, chiefly the so-called analytical jurisprudence; but even this has suffered “the long divorce of steel” from the law, so far as judicial opinions reveal.

(c) There is no discrimination in the use of the expository authorities. Such a discrimination is the mark of a sound legal education and a correct scholarly standard. But, in the judicial opinions, the superficial products of hasty hack-writers, callow compilers, and anonymous editors, are given equal consideration with the weightiest names of true science. Obviously, any printed pages bound in law-buckram and well advertised or gratuitously presented constitute authority fit to guide the Courts.

Note, however, that it must be bound: for if it is in periodical form, it is ignored. For ten and twenty years past there have been at the service of the profession some half a dozen legal periodicals, publishing the weightiest critiques of current legal problems. There is nothing in judicial opinion to show that these articles have ever been read; apparently their great labor and acute skill have been wasted on the judges.[n.1] The article by Louis Brandeis and S. D. Warren on “The Right of Privacy” (published in the Harvard Law Review some twenty-five years ago) is the most notable of the rare exceptions discoverable.

[n.1]: And when occasionally they are read, and used, they are studiously not cited. A notable example of this was recently related to the writer, by one who had it directly from a chief justice.

How state court clerkship opportunities affect legal employment

California state courts do not offer clerkships to new law school graduates. And that decision affects the employment outcomes of graduates of California law schools.

Federal clerkships have been examined at great length (here and elsewhere). State court clerkships, however, remained relatively underexamined. And they are a source of significant volatility in comparing employment outcomes of graduates.

It's a crude general statement to say that law students tend to practice in the state in which their law school is located. I looked at how many law school graduates came from each state's law schools in 2013. (Alaska has no law school.) I then looked at how many of those graduates obtained state court clerkships in the reported ABA employment statistics. Lacking more granular data, it was a rough proxy--graduates, after all, may clerk in another state rather than the state of their law school. (For more details, see the bottom of this post.)

Here's a map (courtesy of of how many law school graduates from each state's law schools obtained state court clerkships, with figures in a table below:

State St. Clerks St. Grads Pct.
New Jersey 273 855 31.9%
South Dakota 14 71 19.7%
Hawaii 20 104 19.2%
Montana 15 81 18.5%
Nevada 23 132 17.4%
North Dakota 12 74 16.2%
Maryland 95 602 15.8%
Delaware 44 279 15.8%
Minnesota 121 942 12.8%
Idaho 13 117 11.1%
South Carolina 49 442 11.1%
New Mexico 12 114 10.5%
Vermont 21 200 10.5%
Colorado 46 444 10.4%
Utah 26 292 8.9%
Oregon 45 524 8.6%
Pennsylvania 140 1700 8.2%
Rhode Island 14 175 8.0%
Iowa 25 328 7.6%
Maine 6 96 6.3%
Kentucky 25 421 5.9%
Virginia 85 1440 5.9%
Washington 38 655 5.8%
Arizona 36 630 5.7%
Louisiana 52 924 5.6%
Mississippi 20 377 5.3%
Wyoming 4 76 5.3%
District of Columbia 113 2211 5.1%
West Virginia 6 130 4.6%
Connecticut 24 538 4.5%
Nationwide 2044 46116 4.5%
Massachusetts 100 2384 4.2%
Indiana 31 831 3.7%
Alabama 15 421 3.6%
North Carolina 46 1424 3.2%
Wisconsin 15 487 3.1%
Georgia 34 1112 3.1%
Missouri 27 885 3.1%
Tennessee 15 497 3.0%
Kansas 9 324 2.8%
Michigan 54 2228 2.4%
New York 113 5009 2.3%
New Hampshire 2 107 1.9%
Nebraska 4 249 1.6%
Texas 30 2323 1.3%
Ohio 19 1476 1.3%
Illinois 29 2274 1.3%
Arkansas 3 275 1.1%
Florida 34 3185 1.1%
California 46 5185 0.9%
Oklahoma 1 466 0.2%
Alaska 0 0 0.0%

For most of the top few states (e.g., Hawaii, Montana, Nevada, North Dakota, and South Dakota) have similar characteristics: one in-state school, a relatively insular market, and small law schools. Those schools each send a handful of their graduates to clerk in their states' courts--at least, it's probably a good guess, despite the lack of more granular data, that they're clerking in their home state.

A state like New Jersey is an anomaly. It has a robust state court clerkships system designed specifically for recent law graduates. Its website boasts 480 one-year positions. So it's probably no surprise that New Jersey-based law schools channel an extremely high number of graduates into state court clerkships.

Other states are not so fortunate--California among them, as it sits near the bottom of the list.

Here are the numbers as a percentage of full-time, long-term, bar passage-required jobs. (As a note, even though these positions are often only one year, they are still considered "long-term.")

State St. Clerks FTLT BPR Pct.
New Jersey 273 539 50.6%
Hawaii 20 56 35.7%
Delaware 44 132 33.3%
Maryland 95 290 32.8%
South Dakota 14 44 31.8%
Nevada 23 84 27.4%
North Dakota 12 44 27.3%
Montana 15 56 26.8%
Minnesota 121 538 22.5%
Vermont 21 109 19.3%
Rhode Island 14 73 19.2%
South Carolina 49 269 18.2%
Idaho 13 73 17.8%
Colorado 46 273 16.8%
Oregon 45 296 15.2%
Maine 6 41 14.6%
New Mexico 12 84 14.3%
Utah 26 187 13.9%
Pennsylvania 140 1012 13.8%
Louisiana 52 464 11.2%
Iowa 25 229 10.9%
Arizona 36 338 10.7%
Washington 38 364 10.4%
Kentucky 25 244 10.2%
Virginia 85 965 8.8%
Mississippi 20 230 8.7%
Connecticut 24 290 8.3%
West Virginia 6 75 8.0%
Wyoming 4 51 7.8%
District of Columbia 113 1441 7.8%
Nationwide 2044 26539 7.7%
Massachusetts 100 1345 7.4%
Indiana 31 477 6.5%
North Carolina 46 754 6.1%
Michigan 54 915 5.9%
Alabama 15 272 5.5%
Wisconsin 15 279 5.4%
Missouri 27 523 5.2%
Georgia 34 724 4.7%
Kansas 9 206 4.4%
Tennessee 15 363 4.1%
New York 113 3153 3.6%
New Hampshire 2 74 2.7%
Nebraska 4 151 2.6%
Ohio 19 818 2.3%
Florida 34 1653 2.1%
Illinois 29 1413 2.1%
Texas 30 1506 2.0%
Arkansas 3 163 1.8%
California 46 2557 1.8%
Oklahoma 1 302 0.3%
Alaska 0 0 0.0%

Now, of course, if California courts began offering robust clerkships opportunities for graduates, it might simply be that graduates who otherwise would have pursued other job opportunities would instead take a state court clerkship first. But, this data, I think, does show that regional employment opportunities greatly affect the short-term legal employment outcomes of graduates. (And I imagine many will draw a variety of conclusions from this data--but, the primary purpose of this post is to provide the data.)

Methodology note: A few schools do distort the picture for a few states (like Yale in Connecticut sends relatively few of its graduates into state court clerkships). So I thought I'd define each school's "home market" as the state where the school sent the largest percentage of its graduates. The only schools that had a percentage difference is at least one-half of one percentage point were Pennsylvania, Kentucky, North Carolina, and Connecticut--and the greatest of these was Connecticut at a 2.6-point difference. These were too small for me to decide to use this metric--particularly because the state where the school sends the largest percentage of its students may change from year to year, which would make future comparisons across years more difficult.

Looking for the Constitution in Rand Paul's proposed felon voter law

Last month, Senator Rand Paul of Kentucky proposed a federal law that would guarantee the right of ex-felons to vote in federal elections. The text of the bill, S.B. 2550, has just been released.

It's just missing one small things: a constitutional basis for the federal government to enact such a law.

A few months ago, a group of senators, led by Senator Ben Cardin, introduced S.B. 2235, the Democracy Restoration Act, that would do a similar thing.

But what, exactly, is the constitutional basis for Congress extending the right to vote to ex-felons in federal elections?

It isn't, as Section 2(2) of Mr. Cardin's bill says, the Times, Places and Manner Clause, which Arizona v. Inter Tribal Council expressly notes precludes federal authority over voter qualifications (and, indeed, apparently killed Oregon v. Mitchell in the process regarding federal power over voter qualifications in federal elections).

Section 2(3) of Mr. Cardin's bill cites "[b]asic constitutional principles of fairness and equal protection," which is not exactly a basis for legislative authority. The third sentence of the section cites the 13th, 14th, 15th, 24th, and 26th amendments empowering "Congress to enact measures to protect the right to vote in Federal [ed: this power also extends to state] elections," which is true, but does not necessarily (except, see below) empower Congress to enforce qualifications regarding felon status. And the third sentence of the section cites the 8th Amendment's ban on cruel and unusual punishments, which is certainly correct, but, alas, does not empower of Congress.

Section 2(4)(C) or Mr. Cardin's bill notes that felon disenfranchisement law "disproportionately impact racial and ethnic minorities," (see also Section 2(10)-(11)), which is certainly the case--the harder question, under existing Supreme Court jurisprudence, is whether a racially disparate impact is a sufficient basis for the exercise of congressional power to expand voter qualifications under the Reconstruction Amendments--which, I think, is a great question, and would likely fracture the majority that wrote the statements in Inter Tribal regarding the congressional power over voter qualifications.

So that's, I think, the best possible constitutional hook for Mr. Cardin's bill.

Mr. Cardin's bill would enfranchise all ex-felons, violent, non-violent, and those who convicted of an election-related felony.

Mr. Paul's bill does something different.

First, Mr. Paul's bill extends only to "non-violent" ex-felons, "non-violent" meaning crimes that defined as crimes of violence under 18 U.S.C. § 16 and analogous state laws.

Second, Mr. Paul's bill excludes felons serving a term in prison from the scope of his bill, and those serving a term of probation if it's less than one year (or the first year of a longer probation term). Mr. Cardin's bill extends to enfranchise those who are serving a term of probation.

Third, Mr. Paul's bill includes no mention of a constitutional basis for enacting this law.

Given Mr. Paul's abiding concern over the scope of federal authority in other areas, I found the complete lack of any constitutional hook as a slight surprise.

Perhaps Mr. Paul would rely on similar constitutional bases as Mr. Cardin, but he would run into some of the same problems. At best--in my own understanding of the Constitution's authority granted to the federal government--he might be able to argue that the disparate impact of felon voting laws on racial minorities would authorize Congress to enact this law, pursuant to its power under the Reconstruction Amendments.

But that constitutional claim is not made explicitly. And we are left merely to guess.

Portions of this post originally appeared in emails sent to the Election Law listserv.

Law school applicants, matriculants, and employment outcomes - in one chart

Occasionally, to me, at least, the facts and figures about law school enrollment and employment outcomes tend to blur. So I created a visualization of the current situation.

This chart combines LSAC data and ABA employment data for the law school classes of 2011 to 2017. (The ABA employment data for the Class of 2010 is not comparable to its later data sets.)

The top light blue slashed bars represent the total applicants to law school in that applicant cycle. For example, for the Class of 2011, there were around 82,000 applicants in the 2007-2008 cycle.

The dark blue slashed bars represent the total matriculants to law schools each year. For example, for the Class of 2011, there were around 49,400 matriculants beginning law school in the fall of 2008.

The five solid bars underneath represent the employment statistics of that year's graduating class, as reported in the employment data 9 months from graduation. For the Class of 2011, there were 43,735 graduates whose employment was reported as of February 15, 2012.

(The margin between matriculants and graduates reflects a few losses. First, I removed graduate statistics of the three schools in Puerto Rico, which amount to a few hundred graduates each year. Second, those who dropped out, or who were dismissed, are not included among graduates. Third, there's some lag in data for students in joint-degree or part-time programs, and they would not be included in data for matriculants three years after entering a program.)

The red solid bars represent unemployed (whether seeking or not seeking employment) and those whose employment status is unknown.

The orange bars represent part-time employed, short-term employed, any employed in professional or nonprofessional positions, those whose employer is unknown, and those pursuing an additional degree.

The light green bars represent those in full-time, long-term, JD advantage positions, whether funded by the school or not.

The medium green bars represent those in full-time, long-term, bar passage required positions funded by the school. (The ABA data for the Class of 2011 does not separately break out this data.)

The dark green bars represent those in full-time, long-term, bar passage required positions not funded by the school.

Applicants for the Class of 2017 are estimated using the most recent LSAC data.