Friday, March 23, 2012

Trayvon Martin -- "Stand Your Ground" vs. "Pursue and Confront"

[Note: I've updated the discussion near the end of the post regarding burdens of proof]

There isn't much that hasn't already been said about the Trayvon Martin tragedy; at this point, even the president has weighed in. For the most part, people across the political spectrum agree that the situation should be investigated further, and it should go without saying that if George Zimmerman broke the law, he should bear the consequences.

But I want to use this post to explore the genesis of Florida's "stand your ground" law, and how that law might apply.

Let's start with the basics: historically, if you beat someone up, you were liable for battery. But you could avoid liability if were acting in self-defense -- the guy came after your first. For years, though, you would that defense if you have safely retreated from the fight. was the "duty to retreat" .

The duty to retreat itself had an exception: you did not have to retreat from, or within, your own home. So if someone broke into your house and threatened you, and you could safely retreat, you nonetheless did not have to do so; you could respond with force, up to and including deadly force. This was known as the "Castle doctrine", so called because "an Englishman's home is his castle". (Remember, most U.S. laws have their roots in English common law.)

So to recap: if you are attacked in public and can safely retreat, you must do so, but if you are attacked in your home, you can respond with deadly force, even if you can safely retreat. And that was the state of the law for hundreds of years.

But relatively recently -- first, about a hundred years ago, and then in the last ten or so years -- U.S. states have been expanding the Castle doctrine. Generally, people may respond with wherever they are. These statutes eliminate the common law duty to retreat. Florida has enacted such a law. The statute says, in relevant part, that someone "who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat". Fla. Stat. § 776.013(3).

How does that apply to Trayvon's case? (I'm assuming facts that closely to reasonable inferences that we can draw from the 911 recordings and other data, though it's important to note that we don't, and probably never will, know exactly what happened that night.)

So let's walk through the law. Obviously Zimmerman has killed Trayvon. Zimmerman will raise the defense of self-defense. The prosecutor will respond that he could and should have retreated; Zimmerman will point to Section 776.013.

Many commentators, including a sponsor of the original Florida law, have said that Section 776.013 does not give someone a right to "pursue and confront". But why not? After all, Zimmerman "ha[d] the right to be" in the gated community, and the law gives protection to someone in his vehicle. See Fla. Stat. § 776.013(1)(a).

I would focus, not on whether Zimmerman had a "right to be" in a particular area, but on two other things: first, whether was "engaged in unlawful activity" at the time of the attack, and second, whether Zimmerman "m[e]t force with force" .

Was Zimmerman engaged in unlawful activity? Trayvon's girlfriend says that she was talking to him just before the attack, and that Trayvon knew he was being followed and was trying to get away from Zimmerman. Reportedly, Zimmerman weighs 100 pounds more than Trayvon. If, by words or actions, Zimmerman created a "well-founded fear" in Trayvon and caused him to feel threatened, Zimmerman would be guilty of assault under Florida law. See Fla. Stat. § 784.011(1). Moreover, Zimmerman reportedly ignored the police's instructions not to pursue Trayvon. Florida law makes it a crime if someone "resists, obstructs, or opposes" a law enforcement officer. See Fla. Stat. § 843.01. If Zimmerman is guilty either of assault or resisting an officer, he was "engag[ing] in unlawful activity" and therefore would lose the protections of the statute.

Second, the statute only permits an individual to "meet force with force, including deadly force". But the implication is that the victim must have been the first aggressor (otherwise the "second" aggressor would be initiating force, not meeting it). For the defense to hold, Trayvon must have been the first aggressor.

So Zimmerman's defense may be much weaker than it initially appears. All of the "Stand Your Ground" discussion has assumed that the law gives people free reign to shoot someone whenever they feel threatened. Although that may be the practical effect in some cases, in this case (based on the facts as reported in the media), Zimmerman can only avail himself of the defense if (a) he was not guilty of assault or resisting an officer; and (b) Trayvon initiated the fight. As to the second point, it might be easy to say that we can never know what happened because all we have left is Zimmerman's word. And there is the added wrinkle, as described by Professor Mannheimer, that a claim of self defense gives the defendant immunity from arrest and prosecution. So the claim of self-defense cannot be tested through the usual mechanisms -- unless the police have "probable cause that the force that was used was unlawful." Fla. Stat. § 776.032. It's not clear whether "unlawful" as used in Section 776.032 (to modify "force") means the same as it does in Section 776.013 (when used to modify "activity"). It may not; after all all, resisting an officer, for example, could be "unlawful activity", but it is likely not, on these facts, "unlawful force". Assault, on the other hand, could be "unlawful activity" that does involve unlawful force.

A commenter raised a good point about my initial post; it suggested that the defendant has the burden of proof to show he was acting in self-defense. Here, I elided two important but distinct concepts, one at common law and one statutory. First, the general rule is that the defendant has the burden of raising the affirmative defense, and the prosecution has the burden of proving beyond a reasonable doubt that it does not exist. Second, and important here: that question would never come up at trial, because of the immunity described above. Therefore, immunity is decided during pretrial proceedings, at which a judge decides if the defendant is immune from prosecution because he was acting in self-defense. And on this question, the defendant must show, by a preponderance of the evidence, that he was acting in self-defense. See Dennis v. Florida, 51 So. 3d 456 (Fla. 2010) ("[W]e hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.") (emphasis added). So, although it is true that the defendant does not bear the burden of proving self-defense at trial, he bears the burden of proving (albeit by a lesser standard) that the immunity attaches.

No matter how you look at it, the Trayvon Martin story is tragic. There's no reason this young man had to lose his life, and I'm sure even George Zimmerman wishes he hadn't acted as he did. I just wanted to write to add a bit of legal nuance, and to show that the mere fact that Florida has this law in place doesn't mean it will necessarily protect George Zimmerman here.

Sunday, February 12, 2012


BBL Readers,

As you can tell, we've been noticeably absent for the past couple of months. There is a reason for this: we all work now in a legal world that is demanding and that requires strict confidentiality. We will keep the BBL archives up as a resource for our readers. And, please e-mail us at if you are interested in taking the reigns of this once active law student blog.

Thanks to all.

Saturday, August 13, 2011

11th Cir. finds healthcare mandate unconstitutional

From Politico:
The 11th Circuit Court of Appeals on Friday ruled that the health care reform law’s requirement that nearly all Americans buy insurance is unconstitutional, a striking blow to the legislation that increases the odds the Supreme Court will choose to review the law.

The panel partially upheld a ruling issued in January by Judge Roger Vinson, who struck down the entire health reform law. However, the 11th Circuit said that the rest of the legislation can stand even if the mandate is unconstitutional.

The panel also said that the law’s expansion of Medicaid is constitutional, ruling against the states.
Read more here.

Monday, August 1, 2011

Debt bill passes the House

Last major roadblock cleared. From Politico:
With the government running on fumes, Congress and the White House moved quickly Monday toward expanding Treasury’s borrowing authority and putting in motion an ambitious plan promising between $2.1 trillion to $2.4 trillion in deficit reduction over the next 10 years.The hastily-written 74-page bill—never reviewed by a legislative committee and rushed to the floor— cleared the House on a 269-161 vote late Monday. The Senate is poised to act Tuesday—the very day of the threatened default. But passage seems all but certain given the margin in the House and unified support of Senate leaders of both parties.
Read more here.


UPDATE: Senate passes, Pres. Obama signs debt ceiling bill to avoid default.

No debt vote yet

Even though party leaders have arrived at a "deal," voting has not yet occurred in the House or Senate on the measure. While the House is scheduled to vote tonight on the bill (after markets close, lest we forget the TARP fiasco) there are signs that members on both sides are not playing ball:
House Minority Leader Nancy Pelosi, D-Calif., said, "You'll have to ask the speaker. He has the majority." Democrats met for over two hours on the debt ceiling compromise Monday afternoon in the Capitol. Vice President Joe Biden offered a personal appeal to lawmakers to support it—Democratic support is expected to be crucial to getting it over the goal line.
Minority Leader Pelosi's comment, made at 2:35 p.m., likely indicates strong push-back from the House Progressive Caucus. Let's hope this gets done soon so we can all move on happily--at least until after 2012 when this nonsense likely comes up again. For a play-by-play on the debt ceiling negotiations, see the National Journal.

Saturday, July 30, 2011

Senate cancels debt bill vote, progress ensues

This might be the first glimmer of real hope we've seen for weeks. From The New York Times:
After a tense day of Congressional floor fights and angry exchanges, Senator Harry Reid, the majority leader, called off a planned showdown vote set for after midnight, but said he would convene the Senate at noon on Sunday for a vote an hour later. He said he wanted to give the new negotiations a chance to produce a plan to raise the federal debt limit in exchange for spending cuts and the creation of a new Congressional committee that would try to assemble a long-range deficit-cutting proposal.

“There are many elements to be finalized and there is still a distance to go before an arrangement can be completed,” said Mr. Reid, who just a few hours earlier had played down talk of any agreement. “But I believe we should give everyone as much room as possible to do their work.”

Mr. Reid’s announcement set off an almost audible sigh of relief on Capitol Hill, where lawmakers and their aides had been bracing for an overnight clash over the debt following a day that had seen a heated House vote and lawmakers trudging from office to office in search of an answer to the impasse.

The first indication off a softening of the hard lines that have marked weeks of partisan wrangling over the debt limit came in the afternoon when the two leading Congressional Republicans announced that they had reopened fiscal talks with the White House and expected their last-ditch drive to produce a compromise.

Following the House’s sharp rejection of a proposal by Mr. Reid to raise the debt limit and cut spending, Senator Mitch McConnell of Kentucky, the Republican leader and a linchpin in efforts to reach a deal, said he and Speaker John A. Boehner were “now fully engaged” in efforts with the White House to find a resolution that would tie an increase in the debt limit to spending cuts and other conditions.

“I’m confident and optimistic that we’re going to get an agreement in the very near future and resolve this crisis in the best interests of the American people,” said Mr. McConnell, who noted he was personally talking to both Mr. Obama and Vice President Joseph R. Biden Jr., a favorite partner in past negotiations.
Despite today's theatrics, a final debt deal is (apparently) in the works. ABC News has learned the details of a "tentative deal" reached by Republicans and the White House. It would be structured as follows: (1) $2.8 trillion in a debt ceiling increase (through 2012); (2) immediate cuts of $1 trillion; (3) vote on the Balanced Budget Amendment; (4) a committee to recommend (roughly) $1.8 trillion in further cuts to match (dollar for dollar) the debt increase; and (5) a trigger mechanism to enact "across-the-board cuts," including cuts to Defense and Medicare. Let's be cautiously optimistic.

Friday, July 29, 2011

Pres. Obama must now use 14th Amendment

You read that correctly. Even though roughly three days remain before a first ever U.S. default, President Obama must now unilaterally invoke the 14th Amendment to raise the debt ceiling on his own--and without Congressional approval. The idea of using the 14th Amendment is not new. Others, including former President Bill Clinton, have advocated this approach. The argument is two-fold. Textually, the Clause 4 of the 14th Amendment says that "the validity of the public debt … shall not be questioned." Practically, as law Profs. Posner and Vermeule point out, "[t]he president has the power during crises to take actions that are necessary to protect the country."

Under either argument, one central truth remains: the current self-inflicted crisis will be averted. However, we are now only days away from a catastrophe that has significantly decreased the confidence of global investors in our economy and governing ability. For that reason, President Obama has the obligation to act alone. If President Obama bypasses Congress on this issue, he will provide a signal to investors and other nations that, regardless of future spending fights, the United States has a fail-safe mechanism to ensure that it meets its bills on time: the Constitution.

There will, of course, be external risks associated with this approach--i.e., the courts could get involved, and reject the administration's arguments. However, as many legal commentators opine, the judiciary is unlikely to inject itself into this hyper-political battle. I find it hard to believe that a judge would want the threat of a national default hanging on his or her personal interpretation of the Constitution. Restoring confidence is absolutely imperative in light of the way this crisis has played out. The only way to do that now is to provide the world with an indication that the United States will never default on its obligations.

Monday, July 25, 2011

The NFL Lockout Is Over!

The New York Times -- via the AP -- is reporting that the players have approved a deal to end the NFL lockout. The players' vote comes a few days after the owners', and basically wraps things up. The players have unanimously recommended that the named plaintiffs in Brady v. NFL accept the deal, and that the union be re-constituted. All of this will happen by August 4th.

So there we have it, after 4 1/2 months. If it's this hard to get a $9 billion deal done just for football, what does that say about the $14.3 trillion deal we need to reach on the debt ceiling...?

Friday, July 22, 2011

What's the Hold Up?

As you probably know by now, the NFL owners approved a new collective bargaining agreement that would bring an end to the lockout. Initial reports were that the players would vote this morning. That seems not to be the case; the players want more time to digest exactly what's in the new agreement. It still seems like the players will vote today. But the main takeaway here is that the process is going to take time.

Earlier, I wrote that this is an unusual situation in which the employer wants a union but the employees don't. Expect that same issue to crop up again. The owners want the NFLPA to immediately reconstitute as a union, with e-mail signatures from players so that the process could be over in minutes. The players say that the process must be thorough and deliberate; they want owners to reopen team facilities so that players can sign union cards there. This all goes to one of the initial issues in the case: whether the union's disclaimer was a "sham" or not. If the NFLPA is a "union" that pops in and out of existence almost on a whim, you can expect that, ten years from now, the owners will point to that fact to argue that any future decertification is also a "sham". For that same reason, the players want to act deliberately.

And of course various minor issues, like player conduct, safety, etc., will be collectively bargained after the new CBA is in place. These should not hold up a deal. There is also the outside chance that some of the lead plaintiffs in Brady v. NFL will get some special consideration, though I think that's unlikely at this point.

All in all, I think we are in good position to wrap this up in the next couple of days. I think the players grumbling about the process is more posturing than anything else; they don't want to be seen as rolling over immediately after the owners' vote. I would guess that we have a deal very soon.

Thursday, July 21, 2011

Why Isn't the NFL Lockout Over Yet?

(Update, 7pm EDT: The owners have approved the CBA and the players are set to have a conference call at 8am tomorrow morning. Substantive details about the CBA below.)

Over the last few weeks, we've been told repeatedly that a deal to resolve the NFL lockout is just around the corner. For a while, we were looking forward to July 4th. Last week, I had a source tell me that a deal would be approved on Wednesday, or Sunday at the latest. Then we thought the players would vote to approve a deal yesterday, and that the owners would do so today. As of now (1:30 pm EDT) the owners have not yet voted. So what are the major stumbling blocks here?

1) There is a lawsuit out there! The players and owners might agree to a new collective bargaining agreement, but Brady v. NFL still looms. There aren't any court dates in the immediate future, but the lawsuit has to be resolved somehow. Recently, we're hearing reports that Logan Mankins and Vincent Jackson (two other named plaintiffs in the class action) want payouts of $10 million each to drop their claims. I think such a bonanza is unlikely. But regardless of any "bonus" for the two of them, the lawsuit needs to be settled, separate and apart from the CBA.

2) What happens to the NFLPA? Remember, NFLPA has been operating as a trade association, not a union, since March. And, if you believe Gene Upshaw, the former head of the NFLPA, the NFLPA only existed as a "union" after the last lawsuit because the owners insisted on it. They players would prefer to remain a "trade association" so that they can have the leverage of a future antitrust lawsuit against the owners. (Remember, they lost on appeal because they had been a union.) For similar reasons, the owners will want to force the players to reconstitute the union. I suspect the union will re-form, but that there will be language that allows them to "decertify" or "disclaim interest" in a future labor fight.

3) Voting is messy. 24 of 32 owners and 50%+1 of the the 1900-or-so players will need to approve the deal. Keeping the owners in line should be fairly easy. Keeping tabs on almost 2000 players, dispersed around the country, is going to be harder. There is nothing to suggest that there will be a mass defection from among the players' ranks, but we have seen before that things don't go as planned.

4) Dotting is and crossing ts. There are still details to work out, such as the specifics of the franchise tag, the particulars of how the players' union will re-form, the looming lawsuit regarding TV revenues, whether the settlement of the lawsuits would be by "consent decree" -- meaning that the courts have continued oversight of the case -- and so on. These details are not, in and of themselves, major, but my guess is that the two sides will try to score minor points with these last few issues.

I think we're closer to a deal than we've been in a long time. I'm particularly glad that the Eighth Circuit's ruling seems not to have derailed talks. But there is definitely work left to get done.


UPDATE: As noted above, the owners approved the CBA. The vote was 31-0, with the Oakland Raiders abstaining. (Really?) Here are some key provisions of the new CBA, as reported by ESPN:

• This would be a ten-year deal, running through the end of the 2020 season. The current league year would begin next week, although I've seen reports that team facilities would be open as early as Saturday. (Note, the owners' vote is contingent on the union re-forming and approving the deal.)

• You might recall that the split of total revenues was an issue. The players are now going to get a smaller percentage (48% in early years, as opposed to the mid-50s), but the owners will not get a cut off the top for expenses. (Last year they took $1bn of the $9bn to cover expenses, and divided the rest.)

• The salary cap will start at $120 million with a minimum of $106.8M

• Veterans earn free agency after fourth season

• Rookie contracts will start lower, be subject to a cap, and will last for four years (with a team option for the fifth year).

• Training camp and OTAs are scaled back.

As to the franchise tag, the issue for players like Manning was that they had been franchised once already. The players wanted a rule that a player could be franchised only once in his career. It doesn't look like that's part of the final deal.

By the way, in fairness, I should say that Logan Mankin's agent has said that he is not holding up a deal and that reports to the contrary are incorrect. Vincent Jackson, too, is denying such reports. I'm not sure where those rumors got started, but I'm happy to set the record straight.

Friday, July 8, 2011

Five Practical Implications of the NFL Lockout Ruling

As sports fans and legal nerds try to make sense of the Eighth Circuit's ruling earlier today regarding the NFL Lockout, here are a few things to keep in mind:

1) This is a limited decision. The owners raised several arguments in their briefs. The Eighth Circuit only ruled on one, holding that the lower court did not have jurisdiction to lift the lockout as to players under contract. The Appeals Court suggested that the lockout could be invalidated as to rookies and free agents, but the issue was not yet resolved (see #2)

2) Rookies and free agents cannot start signing contracts. They are still locked out. The Eighth Circuit said, in effect, the following: "The lockout might be invalid as to rookies and free agents, but the lower court has to have a full hearing on this issue." So until and unless the lower court holds a hearing and rules that the lockout is invalid, even rookies and free agents are locked out (unless, of course, the owners voluntarily end the lockout).

[By the way, what would it mean if they could sign? The Eighth Circuit has said that players under contract could be locked out. So a team could sign a free agent, and then immediately lock him out! I suppose this might give teams some certainty, knowing they've signed a particular free agent, but it is sort of a crazy outcome.]

3) The players aren't completely out of options. The Eighth Circuit said that the players are not entitled to an injunction, that is, an order lifting the lockout. But they can still go forward with their antitrust lawsuit, which might entitle them to tens or hundreds of millions of dollars in damages. And in theory, they could appeal the Eighth Circuit's ruling, either by way of an "en banc" appeal to the full Eighth Circuit (this decision was made by a three-judge panel) or by an appeal to the U.S. Supreme Court. But that would stretch the litigation onward for months. As to the negotiations...

4) The balance of power has shifted. Over the last week or two, we've been hearing that the League has been meeting with players' representatives and getting close to a deal. The Eighth Circuit's ruling drops a bomb in the middle of those talks. The biggest question I have is whether the owners will try to "claw back" some of the concessions they've made (such as splitting revenue almost 50-50) in light of their legal win today. Still,

5) The best hope for football is a negotiated deal. Yes, the players might take this up to the Supreme Court (and maybe even win). Yes, the owners might have to lift the lockout for rookies only. Yes, the players might win hundreds of millions of dollars in an antitrust suit.

But all of these options take time--lots of time. The best hope for us fans is that the two sides treat today's ruling as if it never happened and keep going with their negotiations. We've heard that they're close. If, instead of pushing across the finish line, they start taking a hard stance in light of the ruling, we will probably be farther from a deal than we've been for about the last three weeks.

BREAKING: Huge win for NFL Owners; lockout continues

The Eighth Circuit has just ruled that the Norris-LaGuardia Act prohibits federal courts of entering injunctions in labor disputes. As I've discussed before, the owners have said that this doctrine means that Judge Nelson's order issuing an injunction against the lockout--holding in effect that the lockout was invalid--should be null and void. Today, the Eighth Circuit agreed with the owners, handing them a huge win.

Some people had suggested that the Court would "stand down" while mediated talks were ongoing, particularly because those talks seemed to be making good progress. (At least at the district court level, Chief Magistrate Judge Boylan, who has been overseeing discussions, has entered orders on the docket that are sealed (i.e., not public), which I assume relate to the status of the confidential talks.) Today's decision means (1) the lockout can continue and (2) the balance of power has shifted dramatically in the negotiations. We'll see whether this is seen as a setback by the players, and if the owners try to "claw back" some of their previous concessions in light of today's ruling.

Updates to follow...

UPDATE 7/8/2011, 11 am: As expected, this decision broke down among 2-1 lines, just like every other Eighth Circuit decision to date. The majority held that the Norris-LaGuardia Act, which generally prohibits injunctions in the context of labor disputes, applied here, and so Judge Nelson did not have jurisdiction to issue an injunction lifting the lockout. The Court notably did not reach the other arguments raised by the NFL. This means, for example, that the League might still be liable for violations of the antitrust laws and be forced to pay money damages. (I can't, however, imagine that this will go on for that long.)

The majority relied on Section 4(a) of the Act, which prohibits injunctions against "remain[ing] in any relation of employment". The Appeals Court ruled that players were in a "relation of employment" with owners, the owners decided not to "remain" in that relationship any longer, and so the Act prohibited an injunction. But the Court also held that this rule does not apply to free agents and rookies. Because free agents and rookies are not currently employed, they cannot "remain" in a state of employment. Thus, the lockout could be potentially invalid regarding free agents and rookies. However, Judge Nelson did not hear from live witnesses on this point (she only took paper submissions), and the Appeals Court sent the matter back for a hearing. In theory, Judge Nelson could rule that the lockout is invalid as to free agents and rookies, and we could have a bizarre situation where veterans are locked out but rookies and free agents are not.

Later today I'll explore some of the practical implications of this decision.

Wednesday, June 1, 2011

Where Do We Stand with the NFL Lockout?

Sorry for the delay in posting -- I've been on vacation in beautiful Portugal -- but I'm back now. So here is a little roundup of where things stand with regard to the NFL Lockout.

1) The players filed their brief in the Eighth Circuit. I won't go into much detail here, because the arguments are pretty similar to what they've been raising all along. A few people I've been in touch with think that this brief is very well written and persuasive, and that may well be true, but as one friend put it, it's mostly a matter of "packaging". The legal issues haven't changed, and the players (and owners) have been briefing these issues in one way or another for months. No one has said anything they haven't said before. (The players have pitched their argument in light of the Eighth Circuit's decision granting a stay, but the issues are fundamentally the same.) The owners filed a reply brief, but again, nothing earth-shattering.

2) The legal issues haven't changed. At the end of the day, the question is whether the union's decertification in March was a sham. The Norris-LaGuardia Act says that a court cannot issue an injunction -- for example, to lift the lockout -- when there is a conflict that "grow[s] out of a labor dispute". The owners say this lawsuit clearly grows out of a labor dispute, namely, the failed negotiations over a new collective bargaining agreement. The players say there can be no labor dispute when there is no union. This divide runs through all of the arguments: If the decertification was valid, then the players almost certainly win. If not, they almost certainly lose.

3) We will see more heat than light on Friday On Friday, legal nerds will see two of the nation's greatest appellate lawyers argue a complicated case involving antitrust and labor law. But that won't tell us anything about how the Court will rule. Even on an expedited schedule, a decision could take weeks. It is very hard to gauge how judges will rule based on oral arguments, and judges almost never rule from the bench in an appeal like this. That said, we know where to focus. Judge Bye (the Democratic appointee) has consistently been on the players' side during the appeals process. He would have denied the temporary stay, and he would have denied the longer stay pending appeal, meaning he would have let Judge Nelson's order lifting the lockout stand. So we can safely chalk up one vote for the players. The players will have to swing one of the other two judges (both Republican appointees) to their side. Which one? We don't know -- the majority opinions (from which Judge Bye dissented) were unsigned.

4) The outsiders have started weighing in. Amicus curiae -- "friend of the court" -- briefs have been pouring in. Other major players' unions have filed papers supporting the players; the Chamber of Commerce supported the owners. Interestingly, the coaches have filed a brief supporting the players. One court decision I read described amicus briefs as briefs that anyone is allowed to file and no one is required to read. So I wouldn't put too much weight on these briefs.

5) Judge Doty is the wild card. If the owners can expect a receptive audience at the Eighth Circuit, the players have one with Judge Doty. Remember, Judge Doty held a hearing a few weeks ago to determine how much money the players should get because (he held) the owners negotiated a favorable deal for themselves with regard to certain TV contracts. If Judge Doty awards the players hundreds of millions of dollars, the landscape could shift dramatically. The players could offer to "give up" this money in exchange for concessions with regard to the lockout. By contrast, if the Eight Circuit rules for the owners, and Judge Doty's decisions hasn't come out yet (or if he awards the players very little money), the chips will be stacked strongly against the players.


Finally, remember: just because the NFL is on hold doesn't mean that football is! NFL football is exciting, engaging, and just plain fun. But if you're really into football, don't forget that football, even professional football, doesn't stop with the NFL. Arena and other leagues are gearing up around the country. College teams are putting pieces into place, with workouts and combines. Semipro teams nationwide play football twelve months out of the year. In New York, a youth football team (the Bronx Colts) and a semipro team (the New York Spartans) are holding a combine for players of all ages on Saturday, followed by a (free!) prime-time semipro football game under the lights just across the street from Yankee Stadium. (Disclosure: I'm the offensive coordinator of the Spartans.) All around the country, players and coaches young and old are in football mode. If any good will come of the lockout, perhaps it will be that some of these men (and women!) who work hard, simply for the love of the game and with little to no financial recompense, will get a bit of the spotlight.

So with that, my shameless plug: if you're in or around New York, come check out the Spartans take on the NYC Gators -- for free -- 7:30 p.m. Saturday night at Macombs Dam Park, just across from Yankee Stadium!

Monday, May 16, 2011

BREAKING: 8th Circuit Grants Stay Pending Appeal; Owners "Likely to Succeed"

About an hour ago, the Eighth Circuit issued its long-awaited decision regarding the NFL Lockout. The owners have won their stay pending appeal -- in a 2-1 decision -- and it's a big win. I will parse the decision and fill in some details shortly.

UPDATE: The NFL -- as I discussed previously -- raised four points in its brief. The first of these arguments was that the Norris-LaGuardia Act divested the federal courts of jurisdiction to hear the case at all. Judge Nelson rejected this argument, but it looks like the League will find a more receptive audience on appeal. The Court wrote today, "In sum, we have serious doubts that the district court had jurisdiction to enjoin the League’s lockout, and accordingly conclude that the League has made a strong showing that it is likely to succeed on the merits."

So what does this mean for football? In the short term, nothing. The lockout will continue; free agent signings will not begin; hundreds of undrafted rookies languish in a gray area between college and the pros. However, we will see a significant shift of leverage away from the owners. The Appeals Court has said that the owners are likely to prevail on their appeal. The question now for the players is whether they want to roll the dice in court in June, or if they are willing to settle on what they see as unfavorable terms. If the players are willing to give up ground, we may see a pretty swift resolution of the entire case. However, if they are going to dig in their heels, then we may be in for a long ride.

What does this mean as a legal matter? The Eighth Circuit's decision is notable because it focuses the scope of the argument on appeal. To grant the stay, the Court had to find that the League was likely to prevail -- but it only had to be likely to prevail on one of its claims, not necessarily all of its claims. As a result, the Court (having found that the League was likely to prevail on the Norris-LaGuardia Act theory) did not discuss any of the other theories. The players will have to convince the Court on June 3 that the Act does not apply.

The next step for the Court was considering "irreparable harm" to the two sides. The Court concluded that both sides face serious harm, whether the lockout is in place or not, and thus the scales do not tip clearly in favor of the players, as the District Court wrote. Although it is not entirely clear from the discussion, the Court suggests that, because it is a "close call", it will allow the status quo to remain in place.

Judge Bye dissented, as he did before (with regard to the temporary stay). He wrote that the harm to the players was much more significant, and reiterated what he wrote earlier -- that a stay pending appeal is an extraordinary remedy and should not be granted absent special circumstances. Presumably Judge Bye will vote in favor of the players on June 3. But the players' attorneys will have their work cut out for them with the other two judges.

What is the next step? The appeal will be argued on June 3. Normally, an opinion might take months to issue, but the Court implied that it would decide the appeal during the off-season. And with the legal issues pretty well briefed and reviewed by now, we could see a decision within weeks of argument.

Sunday, May 15, 2011

Do we all really have to be lawyers?

I recently received an interesting question from one of my 2L colleagues: "Do I really want or need to practice law?" Naturally, the first thing that came out of my mouth, "Why on earth would you have spent so much time going through the essential motions only to end up doing something else?" But, upon further reflection, I realize that I may have been slightly narrow-minded. Maybe law students, particularly those who come into law school just because it is the "next best thing to do," need a greater amount of guidance from career counseling offices to navigate the ever-changing and dramatically complex job landscape. Let me explain.

First, there are other "career options" that are quite obvious--eg, public service, non-legal advocacy work, etc. It is obviously not uncommon for politicians to be lawyers, for example (our president is one). But there are many non-obvious career paths for someone who has gone through the intellectual quest that is law school, and in my mind, career services offices ought to expand their knowledge of these areas in order to help students. For instance, one might consider business or entrepreneurship. I did a fairly quick google search for what appears to be dozens of available positions in this field, many of which do not require any special degree other than "some graduate level work." Why aren't students looking at these jobs?

I understand the position of others (including some who write for this blog) who opine that law schools should attempt to narrow the field of applicants, and tailor curriculum in a manner sufficient to more adequately prepare students for legal practice. All other things equal, I would agree. But legal education is a business (a big business) that is expanding and not going away any time soon. It is driven by rankings, and powered by the federal government's continual willingness to foot the bill for thousands of students who have about as much a chance of paying it back within three decades as Gigli does of becoming a cult classic.

So why not change the approach? A J.D. should be a general degree like an MBA, and schools should try to incorporate a wider cross-disclipinary focus into the basic curriculum. Good idea? Mabye, maybe not? Let's hear your thoughts.

Tuesday, May 10, 2011

NFL Lockout, Day 59: What's New?

Today we're in the middle of Day 59 of the NFL Lockout, which started on March 12. So where do things stand today? The short answer: the status quo continues, as the Eighth Circuit has not yet ruled. (There is a minor, non-stay-related, update below)

As I explained last week, both the owners and players share the responsibility for the current state of affairs. And because things are in limbo right now, I don't expect a resolution in the next couple of days -- I think next week is the best hope for us fans -- as the legal process continues to wind on.

I'm going to start by discussing the football implications of where we stand. Further on, I'll go into a little more depth on the legal posture of the case. Law nerds can jump ahead.

One minor update from when this was first posted: Late this afternoon, the "NFL Players' Reserve", an entity purporting to represent entering rookies, filed a motion to intervene in the appeal as a defendant, i.e., on the owners' side. Although this may seem significant at first blush, I wouldn't read too much into it. First of all, I can't find any reference to the NFLPR on the Internet. Secondly, the brief is, well, brief -- only 7 pages -- it never explains exactly what players the "pro se attorney" claims to represent. Finally, the complaint in Brady v. NFL includes Von Miller, an entering rookie, as a plaintiff, specifically so the suit could be on behalf of incoming rookies. The complaint explicitly mentions a "Rookie Subclass". (See, e.g., para. 25.) So, while the "NFLPR"'s motion to intervene sounds like a big deal, it probably won't change the landscape in any meaningful way.

Football Implications
  1. Football is still going on. The owners' lockout means that the NFL's "league year" has not started. As a result, free agency has not begun; teams are not making trades, and so on. But that doesn't mean there is nothing going on. Several players are taking it upon themselves to organize workouts so that they can stay in football shape (although there is a question of exactly how useful these workouts are).

  2. That doesn't mean it's business as usual. Perhaps those hardest hit are newly-drafted rookies, who have not been able to meet with team personnel, get into film study, access teams' medical and exercise facilities, etc. Particularly if the lockout stretches into the summer, I will be interested to see how this year's rookie class does. Each year, there are several rookies that are selected to the Pro Bowl. It wouldn't be surprising to me if there were few or no rookies selected this year.

  3. There is a lot of litigation still in store. Who knows if it will all actually happen -- a settlement could wipe them all out -- but they are at least on the radar for now. On May 12, Judge Doty will hear arguments in a dispute involving TV revenues. Judge Doty has said that the owners are liable for damages; the question on Thursday will be exactly how much. A decision in that case could take a few weeks. Then, on Monday, the two sides will sit down for a mediation session in Minnesota -- the first time they will negotiate face to face since talks broke down on April 20. The players' brief in the Eighth Circuit appeal is due on May 20. The NHL filed a friend of the court brief on Monday in support of the owners. It will be interesting to see if the players have people in their corner as well.
Legal Posture
  1. First, some procedural wrangling. On Monday, the owners filed their opening brief in the Eighth Circuit as to the merits of the underlying appeal. Remember, Judge Nelson issued a preliminary injunction, lifting the lockout, two weeks ago. The Eighth Circuit granted a "temporary stay" of that order on April 29, and that "temporary stay" is still in place. At the time, I wrote that the order would reinstate the lockout "only for a few days", while the Court decided whether to issue an actual "stay pending appeal" (which would last through the pendency of the appeal, and could potentially last for months). Clearly, I was wrong (though not alone in thinking as I did); no decision on the stay pending appeal has been issued and it is now almost two weeks after the temporary stay went into place.

  2. The owners' brief says what you would expect. The owners make four main points in their appeal, and three of them would dismiss the case without reaching the merits. I find this to be an interesting tactic. Obviously, good lawyers raise all meritorious arguments. But of the 61-page brief, only the last nine or so pages address the preliminary injunction standard. The bulk of the owners' brief argues that the injunction should be vacated because (1) the Norris-LaGuardia Act, which prohibits injunctions against lockouts, applies here; (2) the Court should have deferred to the NLRB under the doctrine of "primary jurisdiction", because the owners have a pending complaint against the (now-disbanded) union before that agency; and (3) the nonstatutory labor exemption, which is a judicially-created doctrine that essentially prohibits antitrust actions by a union against an employer, applies. Note that all three of these arguments hinge on the union's decertification in March: if the decertification was valid, (1) and (3) are resolved in the players' favor. Point (2) turns on who has jurisdiction, but the owners' complaint before the agency is that the union's decertification is a sham, so that point hinges on the decertification issue as well. The owners -- who have suffered a string of legal defeats -- have pinned most of their hopes on this one aspect of the dispute. But it is not irrational; if the decertification was, in fact, a sham, the players' strategy falls apart.

  3. Both sides were gearing up for litigation. The owners filed a complaint before the NLRB in March, arguing that the union was not negotiating in good faith, because it was making to disband and bring an antitrust action (which it did). But the owners had more at stake than just an ideal of good faith negotiation. The owners' complaint is what sets up Point (2) in their argument now -- that the federal courts should defer to the NLRB. Thus, just as the union was preparing to decertify so it could sue, the owners, I'm sure, filed this NLRB complaint to set up a future argument that the federal courts should stay out of the issue altogether.

  4. The NHL has jumped in. The NHL's amicus brief is an interesting read (or skim). The NHL says, in effect, "If you let the District Court decision stand, all players' unions will decertify, or threaten to decertify, to extract concessions from owners". Now, enlisting allies to file amicus briefs is nothing new. But I was struck by the unusual positions people are taking in this case. Usually, we have employees alleging that employers are not negotiating in good faith. Usually, we have employers seeking to disband a union while employees fight to keep it in place. Usually, people representing employees think unions are a good thing. Here, the usual positions are exactly flipped.
Well that's where we stand today. A decision on the stay pending appeal could come at any time, so stay tuned.

Monday, May 9, 2011

Does Congress need law clerks?

Larry Kramer says yes after a conference on the proposition in April. I question the reasoning somewhat--doesn't Congress already have hundreds of attorneys employed by committees? Still, more clerks could give Congress bright "young lawyers [who] would spend a year researching and drafting laws before moving on to other legal endeavors." In a way, new law students offer a unique perspective to the drafting process. From
"The legal profession as such is extremely court-centered," Kramer said. "One of the reasons for that, I think, is that court clerkships are the first job out the door for many graduates of the best law schools in the country. They move on and become leaders in the profession, and it's incredible the extent to which that first job shapes their thinking and understanding about the profession."

Advocates of congressional clerkships are dreaming big, but starting small. The Daniel Webster Congressional Clerkship Act of 2011, a bill introduced in April by U.S. Rep. Dan Lungren, R-Calif., and co-sponsored by U.S. Rep. Zoe Lofgren, D-Calif., would create a pilot program with 12 clerks. The Committee on Rules and Administration of the Senate and the House Committee on House Administration would select clerks from a centralized pool. Each chamber would get six clerks, to be divided between the parties.
The article further elaborates on the proposed pilot program:
Legislators and committee would compete for the clerks by offering the most attractive type of work. The clerks would choose where they want to spend their year.

Keeping the pilot program small will help ensure that competition for clerk spots is stiff, said Yale Law School professor Bill Eskridge, a leading authority on the legislative process. The plan will have succeeded, he said, if the congressional clerkships carry prestige equal to that accorded to federal court clerkships. The long-term plans calls for the program to expand after the pilot phase.

Supporters acknowledge that getting the bill passed during this legislative session may be difficult, given that Congress is in budget-cutting mode. The cost of the pilot program is relatively small -- about $1 million per year, with clerks earning the same salary as clerks in the U.S. District Court for the District of Columbia -- but the cost has been a hurdle in the past.
Senator Chuck Schumer has sponsored a sister bill in the Senate on the measure. It will be interesting to see how this shakes out.

Saturday, May 7, 2011

Legal Scholarship for 100k

Given the high cost, one may well question whether the price is justified by the output. Personally, I appreciate legal scholarship for its own sake. Most people seem to have different expectations. Professor Neumann at Hofstra University School of Law, for example, seems to assess legal scholarship's worth by reference to citations:
Neumann also pointed to research suggesting that 43% of law review articles are never cited by anyone. "At least a third of these things have no value," he said. "Who is paying for that? Students who will graduate with six figures of debt."
While counting citations strikes me as an imperfect measure of "value," there can be little doubt that legal scholarship is failing to the extent its goal is to effectuate change in the law.

Thursday, May 5, 2011

Speaking of football and antitrust...

The Blog of Legal Times reports that the Department of Justice has sent NCAA President Mark Emmert a letter asking him "to provide information about why college football does not use a playoff system to determine a national champion". The theory -- propounded most forcefully by Utah Attorney General Mark Shurtleff -- is that the BCS system is set up to favor large conferences at the expense of smaller and midlevel schools. Stay tuned to see how this plays out; after all, the BCS system has critics from President Obama on down. That being said, don't assume that the BCS setup is illegal; Michael McCann has written than an antitrust challenge will probably fail and that the BCS actually may enhance competition in several ways. In any case, I'll keep an eye on things and let you know how things develop.

Tuesday, May 3, 2011

BREAKING: Eighth Circuit Grants Expedited Appeal; No Word on Stay Pending Appeal

The Eighth Circuit this afternoon granted the NFL's motion for an expedited appeal, as expected. The NFL's brief is due May 9, the players' response is due May 20, and the NFL's reply is due May 26. The case will be argued before Judges Bye, Colloton and Benton June 3.

Much of this is not new or particularly earth-shattering. The one interesting point to note is that the three judges who will decide the appeal are the same ones who decided the temporary stay request. Although the panel granted the stay, 2-1, Judge Bye (the Democratic appointee) dissented, writing that the owners would suffer no irreparable harm if the lockout were lifted. It will be interesting to see how this plays out; the other two judges did not opine on the merits of the stay, writing simply that they were granting the stay so that they could study the papers more closely.