California's presidential tax return disclosure requirement may not take effect for 2020

On September 19, a federal judge announced from the bench that he would enjoin enforcement of California’s law that requires presidential candidates to disclose their tax returns as a condition of securing ballot access in the presidential primary. He announced he would issue a written order by October 1, which he did (with a later amendment to that order October 2).

California announced it would appeal the ruling, but it has dragged its feet in doing so. The notice of appeal was filed October 8. The matter (five consolidated matters, really) was docketed before the Ninth Circuit on October 10. The clerk of the Ninth Circuit announced its briefing deadline, which extends as late as December 24 for the reply brief. Oral argument would likely be after that, and a ruling issued after that. UPDATE: The California Supreme Court is also hearing oral argument on a state-law claim on November 4.

Presidential candidates who intend to secure ballot access must circulate petitions between November 4 and December 13. The California Secretary of State plans to announce all “generally recognized” presidential primary candidates, pursuant to the state constitution, by December 26.

California moved up its presidential primary to March 3, 2020, which means that it has this exceedingly early ballot access deadline. It has to print ballots to begin delivery to overseas and military voters on January 3, 2020.

There appears to be no urgency or movement to try to resolve this case ahead of the ballot access deadline, in which case the preliminary injunction would remain in effect for the 2020 primary. (Later events might change that, of course.)

To the extent this law is targeting President Donald Trump in particular, the law will have no effect on any effort to secure his tax returns—unless, I suppose, he lost the election in 2020 and ran again in the primaries in 2024, or the Twenty-Second Amendment was repealed to abolish presidential term limits.

It’s also reason why I focus on the broader portrait in Weaponizing the Ballot on states’ power over ballot access rules. Tax return disclosure requirements targeting Mr. Trump in particular may be the primary political lens through which we view the validity of such laws. But these laws, if enacted, would affect a far broader pool of candidates and extend far longer than the 2020 election. It’s worth reflecting upon that if the law is enjoined ahead of the 2020 primaries.

Recent Supreme Court clerk placement into the legal academy

On the heels of my recent annual survey of where Supreme Court clerks end up 10 years after their clerkships, I thought I’d look at the data a different way. I’ve done this survey for seven years and have a good chunk of placement data for Supreme Court clerks. I thought I’d look at the 56 clerks who ended up as law professors 10 years after their clerkships, and where they’d landed in that time. Of course, clerks may have moved on to other schools after 10 years, some may have left the academy by 10 years, or others may enter the academy after 10 years. But looking at the same 10-year window of similarly-situated clerks across several years was of interest (ed.: or more likely serves as a Rorschach to confirm priors…).

I’ve sorted below by justice and then by school, among those who clerked OT 2003 to OT 2009, and where they were 10 years out.

Ginsburg (11): Yale, Harvard, Chicago (x2), Duke, Michigan (x2), Berkeley, Fordham, Wisconsin (x2)*

Stevens (11): Columbia (x3), Michigan, Penn, Duke, Wisconsin, Florida, Cardozo, Georgia State, American

Souter (10): Harvard, NYU (x2), Columbia, Virginia, Michigan, Northwestern, UCLA, William & Mary, Pepperdine

Kennedy (7): Harvard, Washington University in St. Louis, George Washington, Notre Dame (x2), Ohio State, Hastings

Breyer (4): Harvard, Chicago, Columbia (x2)

O’Connor (4): Yale, Chicago, Emory,** BYU

Roberts (3): Chicago, Duke, Missouri

Scalia (3): Columbia, Virginia, Richmond

Sotomayor (2): Georgetown, Wisconsin*

Thomas (2): Notre Dame, George Mason

Alito (1): Emory**

*Clerked for both Ginsburg and Sotomayor in different terms

**Clerked for O’Connor and later Alito in the same term

Columbia (7): Stevens (x3), Breyer (x2), Scalia, Souter

Chicago (5): Ginsburg (x2), Breyer, O’Connor, Roberts

Harvard (4): Breyer, Ginsburg, Kennedy, Souter

Michigan (4): Ginsburg (x2), Souter, Stevens

Duke (3): Ginsburg, Roberts, Stevens

Notre Dame (3): Kennedy (x2), Thomas

Wisconsin (3): Ginsburg, Ginsburg/Sotomayor, Stevens

NYU (2): Souter (x2)

Virginia (2): Scalia, Souter

Yale (2): Ginsburg, O’Connor

American (1): Stevens

Berkeley (1): Ginsburg

BYU (1): O’Connor

Cardozo (1): Stevens

Emory (1): O’Connor/Alito

Florida (1): Stevens

Fordham (1): Ginsburg

George Mason (1): Thomas

George Washington (1): Kennedy

Georgetown (1): Sotomayor

Georgia State (1): Stevens

Hastings (1): Kennedy

Missouri (1): Roberts

Northwestern (1): Souter

Ohio State (1): Kennedy

Penn (1): Stevens

Pepperdine (1): Souter

Richmond (1): Scalia

UCLA (1): UCLA

Washington University in St. Louis (1): Kennedy

William & Mary (1): Souter

Where are they now? Supreme Court clerks, OT 2009

Following up on posts on a ten-year retrospective on the Supreme Court clerks from October Term 2003, October Term 2004, October Term 2005, October Term 2006, October Term 2007, and October Term 2008, here's what the clerks from October Term 2009 are doing. This list is probably unreliable and has not been fact-checked in any way, except for the links provided (and these links admittedly often aren't the best source material). Some designations including “recently” are the last-available information. As always, please let me know of any errors or corrections (Twitter DM or email is fine, no need to comment!).

Chief Justice John G. Roberts

Roman Martinez (Yale 2008 / Kavanaugh), partner at Latham & Watkins

James M. McDonald (Virginia 2007 / Sutton), Director of Enforcement, CFTC

Stephen E. Sachs (Yale 2007 / S. Williams), law professor at Duke

Erik R. Zimmerman (Stanford 2007 / Wilkinson), attorney at Robinson Bradshaw

Justice John Paul Stevens

Hyland Hunt (Michigan 2008 / D. Ginsburg), partner at Deutsch Hunt PLLC

Adam C. Jed (Harvard 2008 / Calabresi), DOJ, recently Civil Division and Office of Special Counsel, DOJ

Merritt E. McAlister (Georgia 2007 / R.L. Anderson), professor at Florida

David E. Pozen (Yale 2007 / Garland), professor at Columbia

Justice Antonin Scalia

Jonathan C. Bond (GW 2008 / Sutton), recently partner at Gibson Dunn

Steven P. Lehotsky (Harvard 2002 / D. Ginsburg), Senior Vice President & Chief Counsel, U.S. Chamber Litigation Center

Daniel M. Sullivan (Chicago 2008 / O’Scannlain), partner at Holwell Shuster & Goldberg

Katherine Twomey (Allen) (Virginia 2008 / Wilkinson), DOJ, Civil Division

Justice Anthony Kennedy

Daniel Epps (Harvard 2008 / Wilkinson), law professor at Washington University in St. Louis

Allon Kedem (Yale 2005 / Leval / Kravitz (D. Conn.)), partner at Arnold & Porter

Scott A. Keller (Texas 2007 / Kozinski), partner at Baker Botts

Misha Tseytlin (Georgetown 2006 / Kozinski / J. R. Brown), partner at Troutman Sanders

Justice Clarence Thomas

Tyler Green (Utah 2005 / McConnell / Cassell (D. Utah)), Solicitor General of Utah

Brian Morrissey (Notre Dame 2007 / O’Scannlain), DAAG, DOJ

Elizabeth P. Papez (Harvard 1999 / Boggs), partner at Gibson Dunn

Marah Stith McLeod (Yale 2006 / O’Scannlain), professor at Notre Dame

Justice Ruth Bader Ginsburg

Elizabeth B. Prelogar (Harvard 2008 / Garland), recently Solicitor General’s Office and Office of Special Counsel, DOJ

Pamela Bookman (Virginia 2006 / Sack), professor at Fordham

Vincent G. Levy (Columbia 2007 / D. Ginsburg), partner at Holwell Shuster & Goldberg

John Rappaport (Harvard 2006 / Reinhardt), professor at Chicago

Justice Stephen Breyer

Andrew Manuel Crespo (Harvard 2008 / Reinhardt), professor at Harvard

Bessie Dewar (Yale 2006 / W. Fletcher / L. Pollak (E.D. Pa.)), State Solicitor of Massachusetts

Chris C. Fonzone (Harvard 2007 / Wilkinson), partner at Sidley

Jennifer Nou (Yale 2008 / Posner), professor at Chicago

Justice Samuel Alito

Amit Agarwal (Georgetown 2004 / Kavanaugh), Solicitor General of Florida

K. Winn Allen (Virginia 2008 / Sutton), partner at Kirkland & Ellis

Jaynie Lilley (Yale 2006 / Cabranes / M. Patel (N.D. Cal.)), Civil Division, DOJ

Lucas C. Townsend (Seton Hall 2004 / Barry / Ackerman (D.N.J.)), partner at Gibson Dunn

Justice Sonia Sotomayor

Jeremy C. Marwell (NYU 2006 / S. Williams), partner at Vinson & Elkins

Eloise Pasachoff (Harvard 2004 / Katzmann / Rakoff (S.D.N.Y.)), law professor at Georgetown

Lindsey E. Powell (Stanford 2007 / Stevens / Garland), civil division, DOJ

Robert Yablon (Yale 2006 / R. B. Ginsburg / W. Fletcher), law professor at Wisconsin

Justice Sandra Day O'Connor

Joshua Deahl (Michigan 2006 / Benavides, shared with Kennedy), appellate division, Public Defender Service

Justice David H. Souter

Thomas Pulham (Yale 2004 / Katzmann / Cote (S.D.N.Y.), shared with Breyer), Civil Division, DOJ

As usual, there’s a mix of government attorneys (DOJ and state SG most common), law professors, and law firm partners, with scattered other positions. Of note, two from this class served on Robert Mueller’s investigation team.

One more note: as I perused those were partners at law firms, I was struck by the number who’re heading or a part of the “appellate” teams at these firms. I know, this is a popular reason to hire or pursue Supreme Court clerks. But I’ve been looking at 10-year profiles for several years, and it struck me that there were disproportionately more in this field this year.

By that I mean, in previous years, I’d commonly find partners doing “real law” (okay, I don’t mean to be pejorative here)—tax law, white collar criminal defense, complex litigation, and so on. Appellate might have been a part of the portfolio, but it wasn’t the defining area. Now, it seems that more are specifically in appellate work without other defined practice areas.

Maybe I’m just misremembering (possibly) or observing selectively (probably). But it’s worth considering whether Supreme Court clerk trajectories are changing among those who remain in private practice.

A few Microsoft Word keyboard shortcuts for legal writing

On the heels of a fairly popular tweet, I thought I’d dig into a few of my favorite Microsoft Word keyboard shortcuts that may be particularly useful for legal wrigin.

Small caps: Ctrl + Shift + K

Most Word users know Ctrl + B (bold), Ctrl + I (italics), and Ctrl + U (underline). But for small caps—those journal titles or book titles—Ctrl + Shift + K can be a real time saver.

Insert footnote: Alt + Ctrl + F

No more raising the mouse to the ribbon, finding References, then Insert Footnote. The Alt then Ctrl function can be a little counterintuitive, but Alt + Ctrl + F inserts a footnote right in place—and moves your cursor down to that newly-created footnote. (If you want to move immediately back to the body of the document, try Shift + F5—this moves you among the last four places your cursor was, so it only works immediately and won’t work the same way if you start typing in the footnote.)

Find & replace: Ctrl + H

I often use “Find” as the somewhat intuitive Ctrl + F, but I often want to replace apostrophes and quotation marks to ensure that whatever I’ve cut and pasted end up as serifs. Ctrl + H allows you jump right to the find and replace function.

En-dash: Ctrl + Minus sign (on numeric keypad)

Em-dash: Alt + Ctrl + Minus sign (on numeric keypad)

Not the best option for a laptop, but a convenient tool if you’re at your desktop. Rather than trying to autocorrect en-dashes and em-dashes, this inserts those symbols immediately.

§: 00A7, then Alt + X

Okay, not a great shortcut…. Word lets you insert any Unicode character by typing that four-digit code, then Alt + X: 00A7 being the section symbol. But other users had better ideas. Professor Leandra Lederman notes that Alt + 21 on the numeric keypad gives you the section symbol. (and Alt + 20 for the paragraph symbol). Several users (and I’m among them) created a keyboard shortcut of Alt + S. (I also created Alt + P for the paragraph symbol.)

Judge Jennifer Perkins added that the non-breaking space is Ctrl + Shift + Space, which is particularly valuable in conjunction with the section symbol to ensure that the number doesn’t break from the section symbol in the event they move from one line to the next in the document.

I’m sure there are others, but these are a few I’ve found most valuable.

Federal judge finds tax return disclosure requirement for ballot access cases violates Elections Clause, First Amendment, and Equal Protection Clause

A federal court in California issued its order (PDF) after enjoining California’s tax disclosure requirement for presidential candidates. Earlier, I noted the court suggested that California’s statute was preempted by the Ethics in Government Act. The court did make that finding. But the court also found it unconstitutional on three other bases.

First, the statute runs afoul of the Elections Clause, meaning California lacked the power to add this rule as a condition of ballot access. (This is the argument I make in Weaponizing the Ballot.) It relies on Term Limits v. Thornton and Cook v. Gralike, in addition to a Ninth Circuit opinion Schaefer v. Townsend that struck down a voter registration requirement as a condition of ballot access.

Second, the court concluded it burdened the associational interests of candidates, voters, and political parties under the First Amendment. The court concluded the burden was “severe” because it was a “functional bar” on candidates who refused to disclose tax returns, a “severe” burden that the state failed to justify.

Third, the court held that it violated the Equal Protection Clause by “distinguishing among constitutionally eligible candidates,”—that’s because general-election independent candidates would not need to disclose their tax returns, but primary candidates would.

In short, the court found four separate reasons why the law failed. We’ll see what happens as this case proceeds to the Ninth Circuit—given that time is precious as the ballot petition period begins in a matter of weeks, and given that the California Supreme Court is considering an independent challenge, we’ll see what choices the parties and the courts make moving forward.

A few thoughts on open-source or free legal casebooks

Professor Brian Frye is a tireless advocate (among others) for open-source legal casebooks. Casebooks are costly for students—even rented or used casebooks can run students into the thousands of dollars over three years.

To this day, I feel ashamed to say I haven’t taken advantage of open-source casebooks or developed my own materials. I thought about some of the barriers to entry.

Obviously, the decision to assign a casebook shifts the costs to students, and the costs of work or developing my own materials to others. In my earliest years, I thought I was too busy figuring out the materials to be using my own, and I just wasn’t satisfied with the open source casebooks I saw. Later, I was switching to new preps, and it was too much work again. In still other areas, there haven’t been open source casebooks.

A few sole authored casebooks I really like—Professor George Fisher’s Evidence and Professor Gary Lawson’s Administrative Law come to mind. It would be a cost to give them up.

But this spring, in an election law seminar, I hope to develop my own materials—and I hope to continue to use and modify them for election law courses (seminar and survey) for years to come. It’s simply getting over that hurdle of doing it the first time.

But I thought about a few other barriers to free legal materials for students, or underexamined costs.

It’s interesting to me that law schools don’t recognize the student loan aspect of casebooks. Students can take out loans based upon the estimated cost of attendance. Many simply take whatever is the maximum figure estimated by the school. And that, of course, can be an onerous cost for them down the road. Even if the casebooks may not cost $1000 per year, if that’s the estimated figure, students may well simply take out that amount—which they may use on casebooks, or on other personal expenditures, then have to pay back after graduation. So $3000 in casebook loans becomes and extra ~$35/mo for 10 years (with more than $1000 in compounded interest!). Maybe it’s not a lot, but it’s a good monthly chunk.

And worse for law schools, it’s $3000 in loans that isn’t even revenue to the law school! Much like loans for off-campus living expenses or travel to study abroad locations, the loans don’t even benefit the institution! Schools ought to think critically about such loans in particular, because the costs are often attributable to the law school—“Oh these are my law school loans,” even if the law school didn’t get all the revenue from them.

Another curiosity is the notion that law professors, particularly in first-year or required or “big” classes, have a lone wolf mentality for curriculum. In most universities that I’m aware of, undergraduate curriculum is decided by the department, including what books to use. Sometimes the university develops a reader, at other times they agree to a consensus anthology or workbook or whatnot. But the department usually settles on a curriculum, and everyone adopts (sometimes begrudgingly).

If law schools did this, it would open up significant opportunities to reduce the work associated with developing materials, too. For instance, the Contracts professors could agree to create a batch of case materials together, and supplement with their own personal preferences of additional cases to add. But if it occurs collectively, it cuts the costs for the entire class regardless of the professor, it distributes the work across the faculty, and it’s easily used and adapted from different professor or for different years in the future. (In many of the first-year “common law” classes, with relatively little “updates” to the material, this is particularly beneficial.) It might be that the law school has to incentivize the faculty with some kind of modest stipend the first time they do this. But it would pale in comparison to the long-term costs to students for casebooks.

Of course, one could bypass all this by adopting an open-source casebook. But I’m thinking creatively, particularly for those courses where (1) the faculty cannot agree on one of those open-source casebooks or (2) the course simply lacks such a casebook.

In any case, I hope to move toward free alternatives in the years ahead—my own excuses have held me back over these years. But institutionally, I believe law schools can be more cognizant of the costs shifted to students and how some school-centered decisionmaking can improve the situation all around.

Federal judge blocks enforcement of tax return disclosure requirement in presidential primaries

Earlier this year, California enacted SB 27, which requires presidential candidates to disclose 5 years’ tax returns as a condition of appearing on the state’s presidential preference primary ballot. For reasons I outline in Weaponizing the Ballot, I think such a law exceeds the state’s authority to regulate the “manner” of holding elections.

There are many alternative reasons, of course, why such a law might fail. A federal judge enjoined the law today and announced his decision from the bench in a set of five consolidated challenges to the law. The reasons will come by October 1. But it’s worth noting a take from early news reports:

Morrison spent much of the court proceeding on the question of whether a longstanding federal financial disclosure law preempts any additional rules that a state could impose.

The federal law, known as the Ethics In Government Act, or EIGA, was originally passed in 1978 and applies to a range of top federal officials. Trump has filed the annual report, most recently in May, which provides an overview of his finances.

“Do we even need to get here if EIGA preempts [the new California law]?,” England asked attorneys for the state. “Is that it?”

That is, rather than address the tough constitutional questions, the judge may well avoid them (at least, as best he can!) and conclude that California’s law is preempted by federal statute.

To summarize from my piece Weaponizing the Ballot, here’s what federal law currently requires (footnote omitted):

Prominently, Congress passed the Ethics in Government Act of 1978, which requires disclosures of financial information of certain government officials to the public. Within thirty days of assuming office, the President and Vice-President must file financial disclosures about their sources of income, payments to charitable organizations, property they hold, debts they owe, and more. The President and Vice-President continue to file these reports annually, including identifying gifts, reimbursements, sale of property and stocks, the cash value of any blind trust, and other disclosures for spouses and dependent children. In 2012, Congress added to some of these disclosures and required that these disclosures must be made available on the Internet. While disclosures are published for the President and Vice-President, reports for most other government official require a specific request. Certain information might be kept confidential for lower level officials or if the information might compromise the national interest of the United States.

Presidential and congressional candidates also must file similar statements within thirty days of declaring as a candidate. Federal law also requires disclosure of certain activities of campaigns, including disclosure of contributions to the campaign and expenditures from the campaign.

You can view current disclosures of the president and vice president here.

UPDATE: I’m told the express preemption language from the original EIGA has been repealed in 1989, so I’ve removed that block quotation.

UPDATE: Current law provides, “The provisions of this title requiring the reporting of information shall supersede any general requirement under any other provision of law or regulation with respect to the reporting of information required for purposes of preventing conflicts of interest or apparent conflicts of interest,” but this provision does not expressly mention state law.

It’ll be worth seeing all the reasons the court articulates for enjoining the law, and, of course, what happens on appeal. But it’s also worth noting that while it avoids the constitutional questions, it also avoids answering questions in the event states require other disclosures—say, medical records or school transcripts—as a condition of ballot access.

What happens to a summer associate class at a large law firm after a decade?

Back in the summer of 2006, I was a summer associate at Kirkland & Ellis LLP in Chicago. We had 70 summer associates that year, and we received a facebook of everyone across the firm. Most returned in 2007, but I returned after my clerkship in 2008 to work at the firm until 2010—I worked with phenomenally talented attorneys and learned an incredible amount, particularly through participating in a long jury trial. I was given extraordinary responsibility fairly quickly. (I made my share of mistakes attributable to my youth and inexperience, too.) I came out of the experience all the better.

In 2011, I looked through the facebook at who was at the firm and who’d left—of course, some never came back after that summer (I know a few who took jobs elsewhere even after receiving an offer), and the financial crisis exerted significant pressure on many of my colleagues. But by March 2011, there were just 26 associates from that summer class who were working at the firm. By November 2015, that number had dwindled to 8. Four still remain 13 years after that summer (or 12 years after most of them graduated and began)—and two just became share partners (congrats!).

Once or twice a year from 2011 onward, I’d check to see the updates. Those check-ins are charted below. The dotted line from 2006 to 2011 reflects the fact that not all summer associates returned to the firm. But it provides some perspective for those who are participating in OCI this year to think about what life in a decade (or 12 or 13 years…) might look like. It's probably typical of many law firms: there’s simply a lot of movement these days.

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Patent bar exam results have been declining alongside state bar exam pass rates

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Bar exam pass rates have fallen and remained relatively low for several years. The National Conference of Bar Examiners noted long ago that Multistate Professional Responsibility Exam scores had been declining, which hinted at a future slide in state bar exam pass rates in the future—even though the MPRE is independent of the state bar exam.

I recently discovered that the United States Patent and Trademark Office publishes patent bar pass rates. From my understanding, this bar is most commonly taken by law students or recent graduates. Test-takers are those who intend to do certain patent legal practice before the USPTO. Test-takers have declined in recent years, consistent with the decline in overall law school enrollment.

I noted that patent bar pass rates have declined in recent years alongside state bar pass rates. I took the first-time overall state bar pass rates against the patent bar pass rates.

It’s another indication of an overall concern about the ability of law school graduates, regardless of the form of the test or the area of examination, to pass—and an indication that law schools need to consider solutions apart from content-specific or state bar exam-specific concerns.