Amicus Curiae Brief In Support of Neither Party in Baca v. Colorado Department of State

I'm pleased to share a brief I filed in Baca v. Colorado Department of State, a Tenth Circuit case concerning the power of state legislatures to cabin the discretion of presidential electors. You can view the brief here. It's part of a larger project on some archival research on original practices of the states concerning presidential electors--but, alas, the litigation calendar does not await the academic one!

From the Summary of Argument:

The text of the Constitution offers little about the scope of state authority to regulate presidential electors. And there is little judicial precedent about the proper scope of authority of states regulating presidential electors. See, e.g., Ray v. Blair, 343 U.S. 214 (1952). But there are extensive practices in states and in Congress—including practices at the time of the ratification of the Twelfth Amendment—that may help this Court determine the liquidated meaning of these constitutional provisions. Cf. The Federalist No. 37, at 236 (James Madison) (J.E. Cook ed., 1961).

These state and congressional practices reveal three conclusions. First, presidential electors have no right to anonymity when casting their ballots. Second, states have the power to replace presidential electors and levy fines on presidential electors, even after those electors have been selected. Third, Congress holds the power to scrutinize and even reject the electoral votes. In 2017, however, Congress counted Colorado’s electoral votes, and this Court has been asked to revisit a decision reserved to the judgment of Congress. When this Court decides this case, it should interpret the Twelfth Amendment through the practices of the states and of Congress.

"A Future Justice Kavanaugh and Executive Privilege"

Over at Law and Liberty, I have a piece on Judge Brett Kavanaugh and his views on executive privilege. It's titled A Future Justice Kavanaugh and Executive Privilege. From the opening:

If a prosecutor one day decided to indict President Donald Trump, a future Justice Brett Kavanaugh might not be the one to stop it.

Media reports, like this one over at the Washington Post, or this take over at Vox, concerning Kavanaugh’s views on executive power are too quick to assume that he would shield the executive branch during criminal investigations. His writings paint a very different portrait.

Kavanaugh, currently a judge on the District of Columbia Circuit, is a widely discussed candidate to replace Justice Anthony Kennedy on the United States Supreme Court. Kavanaugh has worked extensively in the White House for President George W. Bush. That might lead one to believe that he has a strong view of executive power. But it’s an earlier career experience that may have shaped Kavanaugh’s views, and they are not views that tend to defer to executive power.

Forthcoming article: "The Democracy Ratchet"

Over at SSRN, I've posted a draft of The Democracy Ratchet, forthcoming in the Indiana Law Journal. Comments welcome! The abstract:

Litigants seeking to lift burdens on the right to vote and judges adjudicating these claims have an unremarkable problem—what is the benchmark for measuring the nature of these burdens? Legal theories abound for claims under the constellation of rights known as the "right to vote." And when a legislature changes a voting practice or procedure, courts may have an easy benchmark—they can consider what the right to vote looked like before and after the enactment of the new law, and they can evaluate a litigant’s claim on that basis. Recently, federal courts have been relying on this benchmark for the principal causes of action litigants might raise after a new law has been enacted—a Section 2 challenge under the Voting Rights Act, a freedom of association claim subject to the Burdick balancing test, and an Equal Protection analysis derived from Bush v. Gore. And frequently, courts have found that new laws that eliminate once-available voting practices or procedures fail.

I describe this new practice as the Democracy Ratchet. But it is only recently that a convergence of factors have driven courts to (often unwittingly) adopt the Democracy Ratchet more broadly. So while a legislature can expand such opportunities, courts scrutinize cutbacks on such opportunities with deep skepticism—deeper than had no such opportunity ever existed. The ratchet tightens options, squeezing the discretion that legislatures once had.

This Article seeks to solve the puzzle of how courts have scrutinized, and should scrutinize, legislative changes to election laws. Part I identifies recent instances in which federal courts have invoked a version of the Democracy Ratchet. It identifies the salient traits of the Democracy Ratchet in these cases. Part II describes why the Democracy Ratchet has gained attention, primarily as a tactic of litigants and as a convenient benchmark in preliminary injunction cases. Part III examines of the history of the major federal causes of action concerning election administration—Section 2 of the Voting Rights Act, the Burdick balancing test, and the Equal Protection Clause. In each, it traces the path of the doctrine to a point where a version of the Democracy Ratchet might be incorporated into the test. It concludes that these causes of action do not include a substantive Democracy Ratchet. Part IV turns to determine how the Democracy Ratchet might be used. It concludes that the Democracy Ratchet is best identified as an evidentiary device and a readily-available remedy for courts fashioning relief. It then offers suggestions for its appropriate use. Part V identifies some concerns with existing use of the Democracy Ratchet and instances in which it may be incorrectly used. It offers guidance for courts handling changes to election laws. Part VI concludes.

Federal Judicial Clerkship Report of Recent Law School Gradates, 2018 Edition

I've regularly posted judicial clerkship statistics on this blog. This year, I offer something slightly different: "Federal Judicial Clerkship Report of Recent Law School Gradates, 2018 Edition," a report I've posted on SSRN.

This Report offers an analysis of the overall hiring of recent law school graduates into federal judicial clerkships between 2015-2017 for each law school. It includes an overall hiring report, regional reports, overall hiring trends, an elite hiring report, and trends concerning judicial vacancies.

A preview of overall placement:

There's also been a decline in total law school federal clerkship placement, likely attributable in part to the rise in federal judicial vacancies:

For these and more, check out the Report!

My thoughts on Gill v. Whitford at SCOTUSblog: "No closer to consensus"

I had the opportunity to participate in a symposium on Gill v. Whitford at SCOTUSblog last here. Here's my entry. It begins:

Gill v. Whitford began as a blockbuster election-law case and ended (this time) as a federal-courts decision with a hint of trial strategy and evidence. It also left open the possibility of a transformational view of the First Amendment for future partisan-gerrymandering cases.

In 2016, a three-judge federal court found that Wisconsin’s state legislative map drawn in 2011 was an unconstitutional partisan gerrymander. Many hoped that the Supreme Court could provide a majority opinion articulating a standard for lower courts to handle such claims — past attempts at securing a majority had been elusive. But it wasn’t meant to be.

Continued hope for modest law school applicant increase in 2018

After a sharp spike in LSAT test-takers in July 2017, I noted that it was good news, with some caution, because first-time test-takers were slowly becoming smaller and smaller in the LSAT test-taker pool. In December 2017, I noted the same cautious optimism for improved applicant quality and quality this admissions cycle.

You can sort through up-to-date figures at LSAC here to see the pace of applicants, including higher quality and quantity. But, again, cautious optimism is in order.

While LSAT test-takers are up 19% year-over-year, applicants look to rise just 8%--better than a decline or a nominal increase, to be sure, but far short of the surge one might project from LSAT test-takers. Then again, given unlimited repeats, this is hardly a surprise. But another surprise is that despite a number of schools accepting the GRE, we don't see a higher applicant pool given the surge in LSAT test-takers. One might expect that LSAT test-takers now understate applicants. That's apparently not the case (at the moment, on a very superficial level).

Schools should hope that applicants exceed 60,000, which would be the first time since the 2009-2010 cycle. (I should emphasize here that LSAC has changed some of its counting in the last few cycles, so it's a rough approximation to go across years like this.) Additionally, if schools modestly increase their matriculants as the quality and quantity increases, we may see more than 40,000 enrolled for the first time since Fall 2012.

But visualized this way, the sharp increase of LSATs administered is in some contrast to the modest increase in applicants. Time will tell what this cycle holds--and by next fall, we'll know how schools handled this applicant pool in terms of overall matriculants.

Small law firm jobs shrink dramatically and big law hiring picks up for the Class of 2017

After sharing some big-picture good news about the legal job market for the Class of 2017, I thought I'd share a few details on the market, similar to my report last year. Indeed, the report is very similar to last year's because the trends have accelerated. And outcomes appear to be qualitatively and quantitatively better.

I drew comparisons to the Class of 2013 (which, it should be noted, were nine-month figures). Declines in overall jobs, overall graduates, and bar passage rates assuredly affect some of the industry-specific figures. Last year, I noted that jobs in smaller firms and business and industry were disappearing for entry-level hires. That continues to be the case.

FTLT Class of 2013 Class of 2017 Net Delta
Solo 926 392 -534 -57.7%
2-10 6,947 5,145 -1,802 -25.9%
11-25 1,842 1,628 -214 -11.6%
26-50 1,045 953 -92 -8.8%
51-100 846 779 -67 -7.9%
101-205 1,027 956 -71 -6.9%
251-500 1,041 983 -58 -5.6%
501+ 3,978 4,569 591 14.9%
Business/Industry 5,494 3,241 -2,253 -41.0%
Government 4,360 3,812 -548 -12.6%
Public Interest 1,665 1,419 -246 -14.8%
Federal Clerk 1,259 1,151 -108 -8.6%
State Clerk 2,043 1,984 -59 -2.9%
Academia/Education 490 303 -187 -38.2%

I think the decline is likely attributable to two factors. First, as bar passage rates decrease, the most marginal graduates--who were already the ones most likely to enter solo practice--are the ones most likely to be squeezed out. The same holds true at very small firms, 2-10 attorneys. If the graduates who'd typically fill those spots are now failing the bar exam, we'd expect the positions to decline. A nearly 60% decline in entry-level sole practitioners, and more than a 25% decline in 2-10-attorney firm hiring, is pretty sharp in just four years.

Additionally, business & industry jobs are the ones most likely to be categorized as J.D. advantage positions, and we've seen a decline in those positions generally.

On top of that, big law hiring--at firms with more than 500 attorneys--has increased 15% in four years. Given the dramatic decline in the number of graduates--12,000 fewer graduates between 2013 and 2017--things look even better. For the Class of 2013, 8.6% of graduates ended up in the biggest of law firm jobs; that figure climbed to 13.3% for the Class of 2017. Of course, big law jobs aren't everything, and there were slight declines in 101-500-attorney firms along with federal clerkships. But, the trend is a good one.

All in all, these are good signs for the market. The employment figures are not just quantitatively better; they are also qualitatively better, as more graduates are in the most coveted jobs (again, conceding that big law jobs aren't everything), and fewer are in the more marginal or least desired positions.

Good news for legal employment outcomes for the Class of 2017

UPDATE: This entire chart may need to be redone because the ABA's data confusingly differs from the individual forms and its overall spreadsheet--funded positions were originally included in top-line figures. These figures have been changed. My apologies.

The American Bar Association released its comprehensive employment statistics for the Class of 2017, a few weeks ahead of last year's pace (a laudable improvement). Here are some top-line figures (excluding Puerto Rico's three law schools):

  Graduates FTLT BPR Placement FTLT JDA
Class of 2012 45,751 25,503 55.7% 4,218
Class of 2013 46,112 25,787 55.9% 4,550
Class of 2014 43,195 25,348 58.7% 4,774
Class of 2015 40,205 23,895 59.4% 4,416
Class of 2016 36,654 22,874 62.4% 3,948
Class of 2017 34,428 23,078 67.0% 3,121

The statistics reveal some fairly remarkable figures. Law schools have shed 12,000 graduates in four years. The result? A placement rate in unfunded full-time, long-term, bar passage-required positions has risen from about 56% to 67%.

Year over year, raw placement in those jobs improved slightly, too, with about 200 new placements in those jobs. Some improvement in bar passage rates (whether better test-takers or lower cut scores) surely can't hurt.

Significantly, placement in J.D.-advantage jobs has dropped fairly sharply in the last couple of years. For years, the versatility and flexibility of J.D. has been a common point of defense among law schools, not without some controversy. But those positions--which not only highlight the versatility of the J.D., but aren't contingent on passing the bar--have been declining, too. That said, if schools are able to place more graduates in bar passage-required positions, all the better for them.

I've continued to wonder whether the ABA's decision to change the reporting deadlines from 9 to 10 months after graduation has improved the reporting situation for schools--but, we lack any data about the impact of such changes.

In short, we have some good news for law schools. Placement has topped 2/3 in bar passage required jobs, and those positions have seen a modest improvement. I'll dig into some more industry-specific figures in the near future.