Vice President Joe Biden, Rich Rodriguez and West Virginia

As a native West Virginian, I was heartbroken by the coal mining tragedy that occurred a few weeks ago. Yesterday, President Obama and Vice President Biden were gracious enough to attend the miners' memorial service at the Beckley-Raleigh Convention Center. I have provided the Vice President's speech below.

A funny tidbit: at around 2:26, he mentions the long and nasty divorce between the WVU football program and now-Michigan head coach Rich Rodriguez, and how the deceased miners--like many others in the state--hated the way that it happened. Over the past few days, many people have intimated that this comment may have been slightly inappropriate and insensitive, but I believe the Vice President was simply trying to convey the extent to which everyone in the state is family. It's difficult for outsiders to understand the bond that exists between West Virginians. This comment nicely demonstrates it.

Goldman Sachs: Evil or Genius?

In the midst of this struggling economy, you can always count on Goldman Sachs to make some money. From the New York Times:

[Email] messages appear to connect some of the dots at a crucial moment of Goldman history. They show that in 2007, as most other banks hemorrhaged money from plummeting mortgage holdings, Goldman prospered....In the third quarter of 2007, the investment bank reported publicly that it had made big profits on its negative bet on mortgages. By the end of 2007, the firm curtailed its disclosures about its mortgage trading results.

While Goldman vigorously denies claims about its significant profit, it will be interesting to see how the debate over the financial reform bill plays out in the Senate on Monday. Many Republicans are opposed to provisions such as the one requiring banks like Goldman to spin off their derivatives-trading operations into subsidiaries. As a result, they are threatening a filibuster, and the Democrats seem worried that it just might work.

What Do SEC Lawyers Do?

Look at porn apparently. From Yahoo News:

A senior attorney at the SEC's Washington headquarters spent up to eight hours a day looking at and downloading pornography. When he ran out of hard drive space, he burned the files to CDs or DVDs, which he kept in boxes around his office. He agreed to resign, an earlier watchdog report said.

As Rome burned, the taxpayers funded the SEC's porn habit; to the tune of over $200,000 a year.

New Rules on Derivative Trading?

From the New York Times:

The Senate Agriculture Committee on Wednesday approved legislation to tighten regulation of derivatives trading, with a single Republican, Senator Charles E. Grassley of Iowa, joining Democrats in supporting the measure. The vote was 13 to 8.

The bill to tighten regulation of derivatives is a crucial component of a larger effort to revamp regulation of the nation’s financial system. The Senate banking committee approved a broader bill last month on a party-line vote of 13 to 10, with Republicans unanimously opposed.

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Law School Transparency

We urge all of our readers to check out Lawschooltransparency.com. Their goal?

Law School Transparency’s goal is to provide open access to ABA-approved law school employment data and information. Many journalists, legal scholars, law school professors, graduates, and current students have discussed the need for a more comprehensive look at job prospects for recent law school graduates. When schools do go above the minimum standards set by the ABA or prominent third parties like U.S. News, they present the additional employment information in ways that often make it impossible to compare job prospects across law schools and determine the actual range of opportunities available at each school. Accordingly, our mission is to establish a new standard for employment reporting and to assist ABA-approved law schools in improving their reporting methods.

This website aims to become a clearinghouse for employment data from ABA-approved law schools. Additionally, we provide a closer look at how career services and admissions offices work together at ABA-approved law schools to develop relationships with employers and assist students in finding work. We believe that publishing employment lists will supplement, rather than replace, the many job placement summaries already provided by schools, publications, and legal scholars.

Hopefully law schools will embrace this idea. Many already hope for fundamental changes to the system as it is now constituted.

Dr. Brian Leiter on Why Obama's Choice is Janet Napolitano

Dr. Leiter makes a convincing case for why President Obama's choice to replace Justice Stevens will be Janet Napolitano, the current Secretary of Homeland Security. His reasons from Brian Leiter's Law School Reports:

1. She's a she.

2. She's a Protestant, replacing the last remaining Protestant on the court.

3. She's not yet another Yale/Harvard, "inside the Beltway" nominee, who has done nothing but be a judge or DC lawyer or law professor. She has political experience, as well as prosecutorial experience.

4. She's not an East Coast insider either--she's a "real" Westerner. Geographic diversity!

5. Like Kagan, but unlike Wood (and Garland), she could easily serve 25 or more years on the court given her current age.

6. She has the strong support of the two Republican Senators from Arizona, which will help neutralize Republican opposition.

7. She was confirmed without opposition to her current post--and that wasn't long ago.

8. She's a solid Democrat, but not obviously a liberal--there's little ammunition for the crazy right. She even put people to death as a prosectur in Arizona!

9. She's politically skilled, and, esp. with the support of the Arizona Senators, could likely win over other Republicans.

10. She doesn't have the baggage of Kagan or Wood. In the case of Wood, a long judicial record creates lots of fodder for the right-wing kooks. In the case of Kagan, she has limited experience (she is no John Roberts), a somewhat odd academic career (tenured at Chicago, but then unable to get hired back to the faculty after leaving the Clinton Administration; a visiting stint at Harvard led to an appointment, which was then followed by a successful Deanship, but she's had a relatively limited scholarly output); and even her nomination as Solicitor General produced more than 30 'no' votes in the Senate.

Like Dr. Leiter, I cannot imagine that President Obama would waste a substantial amount of political capital on a nominee whom Republicans will simply not accept. Secretary Napolitano seems to be a safe pick.

Insurance Companies and Fast Food

So large health and life insurance companies have substantial holdings in . . . fast food? CBS

Visualizing the U.S. News Rankings

Visualize Law provides a pretty cool graphical representation of the overall scores of the 2011 U.S. News Rankings. Click the small image above to see it.

Because Who Wants to Wait? USN Rankings Leaked @ TLS

Every year, as the tax man comes to take his share from his loyal citizens, law students from around the country eagerly anticipate the release of the latest U.S. News rankings. And every year, someone always claims to have the elusive list before it is officially released.

We may just have it, thanks to the diligent law students on the Top-law-schools message board.

Click the picture to the right and enjoy.

Disclaimer: This may not be the real deal - but it's always fun to speculate!

Linda Greenhouse on Justice Stevens

Can justices still learn on the job, or are they confined to strict party lines? Linda Greenhouse examines how Justice Stevens began his career with a somewhat conservative lean, even voting against government funding for abortions. Now, as liberals lament his retirement, his initial views on affirmative action and the death penalty seem to be disregarded.

Greenhouse ends her op-ed implying that we've exited the era in which a Supreme Court Justice can afford to change his mind. People want to know exactly how a potential justice will decide major issues, and I can't say I'm an exception. Maybe it's because the role of the Supreme Court is far too powerful to leave up to chance or indecision. Then again, maybe it's just a further reflection of our exceedingly binary political system.

The End of an Era: Justice Stevens Retires

As many had predicted, this term will be Justice Stevens's last on the Court.  The New York Times reports:

In a brief letter to President Obama, whom he addressed as “my dear Mr. President,” Justice Stevens said he was announcing his retirement now because he had “concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term” in October.

Justice Stevens's early announcement will hopefully quell expressed concerns that the Senate would not be able to confirm a replacement Justice in time. But who will that Justice be? We leave that question to the comments...

Steve Wynn Plans Casino in Philadelphia

It was not long after Pennsylvania legalized table games that UPenn alum, and Las Vegas tycoon, Steve Wynn expressed his desire to get a piece of the action. My question: why couldn't this have happened while I was still in law school? The Philadelphia Inquirer

Stay on the Court, Justice Stevens

Senator Specter urges Justice Stevens to stay on the Court for the remainder of this term because he feels that the Senate will not be able to confirm a replacement this year. Washington Post

Pearson-Iqbal: Responding to Comments

Thanks all for the helpful comments, and thanks especially to the DUI attorneys who seem so interested in the intersection between qualified immunity and pleading standard. (Joke.)

Before I wrap up discussing this article, I thought I’d respond to some comments I got throughout this series.

An early commenter posed the question of whether constitutional rights could be established by means other than § 1983 litigation, for example on habeas review or criminal appeals. The answer to this question is obviously yes — but only with regard to criminal law. And even then, many cases (for that matter, Saucier itself) arise out of underlying criminal cases. So at a minimum, this affects all civil rights claims that don’t arise out of underlying criminal cases, and those criminal cases that would otherwise be litigated by way of § 1983. (In subsequent posts, I discussed the race discrimination example. There are others: employment discrimination, free speech/press/religion claims, for example, and virtually all sorts of litigation that seeks injunctive relief, particularly structural injunctive relief. Probably none of these could be litigated if the only means of “clearly establishing” the law was by way of criminal appeals or habeas.)

The first commenter also raised Article III issues, namely, whether Saucier sequencing raises the problem of advisory opinions. Judge Leval on the Second Circuit has discussed this issue recently, essentially agreeing that there is a problem. Shortly before Pearson was decided, Sam Kamin wrote a persuasive article responding to the Article III concerns. I don't focus on those issues here; his article is a good one on that point.

Another, more "from-the-trenches" view, supporting Iqbal, came from a district court intern, who pointed out that Iqbal simply facilitates the dismissal of "claims that do not have merit". Let's just stipulate that frivolous lawsuits ("The president is spying on me and thus violating my constitutional rights") will be dismissed under any standard. Once those claims are bracketed, the point becomes question-begging. Recall that Rule 12(b)(6) motions are to be granted when the plaintiff fails to state a claim on which relief can be granted. Let’s say you experience some really invidious racial discrimination. If you come into court with a lawsuit that says “I suffered really invidious racial discrimination”, you will lose on a motion to dismiss even though your claim “has merit”. The work that Iqbal does is to tell you how much detail you need to plead so as not to get thrown out of the courthouse, not whether your claim, as such, is meritorious.

And, as another commenter pointed out: yes, a lot of these criticisms apply to Twombly as well. The real issue with Iqbal, though, is that there was some confusion pre-Iqbal as to the applicability of Twombly. And, because Iqbal arose in the civil rights context, it is reasonable to expect it to have its greatest impact there.

4:43 on 3/16 and Craig’s exchange is a good one as well. It really illustrates the problem of identifying “clearly established” law. 4:43 suggests that, in the school discrimination context I cited, perhaps race and sex discrimination are different, and the problem I identify is illusory. But as Craig points out, the very fact that we don’t really know makes the law “not clearly established”, so the claim could easily get kicked. The only way to avoid that is to plead more generally, which leads to the interaction (Iqbal) problem.

Finally, in response to a commenter — no, I don’t know of any courts so far that have caught on to this. But I hope they do soon!

In my next post, and my last post on this article, I’ll wrap up with a few thoughts on “procedural judicial activism”.