Tuesday, June 27, 2017

Same-sex marriage after Obergefell (SCOTUS symposium)

Yesterday the Supreme Court took action in two different cases about same-sex marriage. In one, Pavan v. Smith, the court summarily reversed an Arkansas Supreme Court decision about Arkansas's birth-certificate regime, concluding that because "Arkansas law makes birth certificates about more than just genetics" and sometimes allows spouses who are not biological parents to be listed on the birth certificate, it must extend the same recognition to same-sex couples.

Justice Neil M. Gorsuch dissented (joined by Justices Clarence Thomas and Samuel A. Alito Jr.). Interestingly, Gorsuch did not quarrel with the correctness of Obergefell, but rather suggested that the case did not meet the standards for summary reversal, which he said is "usually reserved for cases 'where the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.'" (As an aside, I take it that these criteria are supposed to be necessary, but not sufficient, conditions for summary reversal -- the court certainly does not summarily reverse every case that is a clear error in the application of settled law. And as I've written extensively in "The Supreme Court's Shadow Docket," it is actually quite a parlor game to figure out what, in practice, the criteria for summary reversal really are.)

In the other case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court granted certiorari to consider whether the Constitution exempts a "cake artist" from a law requiring him to make cakes for same-sex marriages and opposite-sex marriages alike. I should eat a little crow on this one, because for weeks I have been confidently predicting to my colleagues that the court was not going to grant cert in this case (even though I thought that it should). But after a record-setting 14 times being relisted for conference, the case is now on the merits docket.

The underlying legal issues in both cases are quite different, but I see them as sharing a fundamental theme -- the question of what and how much is supposed to be settled by the Supreme Court's decision in Obergefell. Was the decision supposed to basically end national debates about the status and rights of same-sex couples, or does it still leave space to debate the narrowing or extension of these rights? To be clear, I am not talking about the fundamental holding of Obergefell, which I suspect is already more secure than the holding in Roe v. Wade, but about the broader message to society -- the music, not the words.

Indeed, this theme makes me wonder if the court's actions in these two cases were actually causally related. As noted above, Masterpiece Cakeshop was relisted over and over and over again, which usually means that a case is not going to be granted. Rather, it looks like somebody was writing a dissent from the denial or cert. that changed a mind or two at the final moment. (If there were four votes to grant once Gorsuch joined the court, it could have been granted as early as April, at least eight relists ago.) I wonder -- and this is rank speculation -- if one of the justices became concerned with the possible maximalist implications of the Pavan summary reversal, and changed his vote to "grant" in Masterpiece Cakeshop.

[Cross-posted at the Volokh Conspiracy.]

Posted by Will Baude on June 27, 2017 at 01:03 PM in 2016-17 End of Term | Permalink | Comments (2)

Sponsored Post: Critical Reading Instruction for Law School Success

The following post is by Jane Bloom Grise, Director of Academic Enhancement and Assistant Professor of Legal Writing at University of Kentucky College of Law, and is sponsored by West Academic.

Scott Turow, the best-selling author of One L, compared reading cases to “stirring concrete with my eyelashes.” Students report getting lost in cases and feeling like “idiots” when they read cases. While reading cases may be difficult for students and even practitioners, critical reading skills are important for success in law school and legal practice. Furthermore, empirical research shows that top law students consistently use different reading strategies than lower performing students.

However, there are two pieces of good news for law professors and law students. First, it is possible to identify the reading strategies of high performing legal readers. While expert legal readers read cases to solve client problems, novices often just memorize case information. While experts read headings and summaries in order to understand the subject of a case before even beginning to read a case, novices start reading without any information about the case topic. Experts understand that cases are structured in predictable ways, while novices sometimes assume that every case is organized differently. Experts understand the significance of procedural references in cases while novices tend to ignore these terms because they simply have not been introduced to procedural concepts.

Continue reading "Sponsored Post: Critical Reading Instruction for Law School Success"

Posted by Howard Wasserman on June 27, 2017 at 09:31 AM in Sponsored Announcements | Permalink | Comments (0)

Monday, June 26, 2017

OT 2016 Symposium: On The Travel Ban The Supreme Court Says: Stay Tuned

Today the Supreme Court resolved the government’s petitions for certiorari and motions to stay the lower courts’ injunctions in the travel ban litigation.  The Court granted the government’s petitions for certiorari, so that the case will be heard on the merits in October Term 2017 (specifically, in October). The Court also granted in part the government’s motions to stay the lower courts’ injunctions against the travel ban.  How the Court disposed of the stay requests may affect what the Court has before it when it actually hears the case in October.

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Posted by Leah Litman on June 26, 2017 at 07:07 PM in 2016-17 End of Term | Permalink | Comments (0)

The travel ban endgame (SCOTUS Symposium)

Among its other interesting end-of-term work today, the Court issued a per curiam cert. grant/stay in Trump v. IRAP, the travel ban case. As Steve discusses below, the Court stayed the injunctions in part but left them in place "with respect to parties similarly situated" to the plaintiffs. The Court also ordered "a briefing schedule that will permit the cases to be heard during the first session of October Term 2017," noting that "(The Government has not requested that we expedite consideration of the merits to a greater extent.)"

Now here is where I get a little puzzled.

Continue reading "The travel ban endgame (SCOTUS Symposium)"

Posted by Will Baude on June 26, 2017 at 07:00 PM in 2016-17 End of Term | Permalink | Comments (3)

SCOTUS OT16 Symposium: Does the Status-Conduct Distinction in Trinity Lutheran Church lend support to the baker in Masterpiece Cakeshop?

Trinity Lutheran Church v. Comer, decided today, rests on a status-conduct distinction that bears an uncanny resemblance to a similar distinction in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case for which the SCOTUS today granted cert. Could this distinction, which favored the Church in TLC, also favor Masterpiece Bakeshop's free exercise claim?

Being a federalism-inclined law prof when it comes to religious freedom (and most other topics as well), I would deplore such a move. But I could see a reasonable justice's inferring that, if Missouri is constitutionally entitled to discriminate on the basis of religion to avoid being dragooned into supporting the "conduct" of religious education with tax dollars, the Masterpiece Bakeshop ought to be entitled to avoid being conscripted into supporting the "conduct" of same-sex weddings with cakes. Put another way, if facial neutrality of a school voucher program does not suffice to protect a state's taxpayers from the "appearance" of supporting religious education, then then why should the facial neutrality of an anti-discrimination law suffice to save the bakeshop from the analogous appearance of supporting a same-sex wedding ceremony? Calls for "federalism all the way down" invite such analogies between the powers of states and the rights of private organizations, suggesting the devolution of powers enjoyed by the former to the latter in the name of decentralization writ large.

Of course, the SCOTUS might just reiterate that Smith allows all facially neutral laws to be enforced against any employer, at least if the hiring of "ministers" or Yoder-style hybrid rights are not at stake. There is an analogous and equally obvious argument based on Rumsfeld v. FAIR for freedom of speech claims. But suppose that there are five votes to narrow Smith and FAIR. If so, TLC's status-conduct distinction provides coordinates for a surgical strike on facially neutral anti-discrimination laws that could leave standing these laws' prohibition on "status"-based discrimination. To the extent that five justices worry that these sorts of "complicity-based" claims could gut anti-discrimination laws, the status-conduct distinction provides a tempting way to limit the damage but even the score for religious believers.

Continue reading "SCOTUS OT16 Symposium: Does the Status-Conduct Distinction in Trinity Lutheran Church lend support to the baker in Masterpiece Cakeshop?"

Posted by Rick Hills on June 26, 2017 at 05:07 PM | Permalink | Comments (1)

A Small But Important Aspect of OT16: Resisting "Brilliant" First Amendment Arguments

Allow me to offer one discrete and fairly mundane observation about the Court's treatment of the First Amendment this Term. Last week, I thought the most important sentence in the Slants case, Matal v. Tam, was this one: "This brings us to the case on which the Government relies most heavily, Walker [v. Texas Div., Sons of Confederate Veterans, Inc.], which likely marks the outer bounds of the government-speech doctrine" (emphasis added). To that I would add a passage from today's decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, in which the Court distinguishes its earlier decision in Locke v. Davey. Neither of these moves is extraordinary, dazzling, innovative, or anything of the sort. Both are very much the stuff of standard case-crunching. But I think they're both noteworthy moves, in two respects.

1) Both of those cases, and especially Walker, are the subject or basis of efforts by some First Amendment scholars, particularly those of an expressivist and/or strongly egalitarian bent, to find brilliant new ways to apply and extend (their understanding of) the First Amendment. On this reading of the legal issues raised in cases like Walker, government would have an enhanced regulatory ability to avoid perceived "endorsement" of various values, or even a constitutional obligation to avoid "endorsing" or being seen as endorsing various values seen as anathema to particular social/constitutional values. One might see Locke as the basis of similar expansive efforts in the Establishment Clause area. On this reading, Locke gives ammunition for a broader argument that government can, or even must, regulate more aggressively, despite claims of equal access to funding or programs by religious individuals or groups, in order to avoid being seen as in any way "endorsing" religion or religious values. As my friend Marc DeGirolami summarizes this line of argument, "government conduct that is motivated by even the possibility that somebody might perceive religious endorsement (even if nobody actually has) is itself justified and validated by the Establishment Clause." Both cases are thus tools for creative, even brilliant, readings of existing First Amendment law and principles in a way that would give government considerable discretion, or even a positive obligation, to avoid "endorsement" of values that are actually or purportedly contrary to the (actual or aspirational) Constitution.

Of course I mean "brilliant" as both a sincere compliment and an expression of concern. The skill of some of this scholarship is great and it makes for thought-provoking reading. But there is now a long post-Daniel Farber tradition of recognizing the limits, dangers, and sometimes hubris and overreaching quality of "brilliant" arguments in constitutional law. However I might feel about it in scholarship, on the whole I would just as soon not have courts go in for "brilliant" extensions of First Amendment doctrine and "values." There is no particular reason to think judges or law clerks have the wisdom or skill or forethought about consequences to engage in these brilliant extensions wisely or well. There is little reason to think government will be wise in its use of such "nonendorsement" principles either; but at least those applications are subject to some political control and capacity for revision. Constitutionalizing the principles and turning them, more or less, into judicial mandates would eliminate that safeguard. I am not defending current doctrine; and for that and other reasons, I find much to think about, and therefore admire if for no other reason, in some of these brilliant arguments. But I think we would on the whole be better off if judges did not pay too much attention to them. Both Tam and Trinity Lutheran show little interest in these kinds of brilliant extensions, and some interest in foreclosing them. That, I think, is noteworthy in and of itself.

(On the other hand, I am perfectly amenable to smart and provocative scholarly arguments for fairly radical revision of constitutional doctrine in this and other areas. But I prefer such suggestions to be put explicitly as radical revisions, which are harder to put over quietly and thus require more debate and discussion before doing so. That is better than the strategic approach of treating clever or brilliant arguments for radical revisions as if they are implicit in existing doctrine, and thus are either already required or need just a little modest judicial work to achieve. The latter approach is much more elitist and anti-democratic than the former.)

2) These signals from the Court (if that's what they are) are also important for the Supreme Court's relationship with lower courts. In some of these areas, in my view, the lower courts have been much more receptive to brilliant arguments of this sort, and much more willing to apply them, despite and sometimes in fairly obvious if implicit disregard of the Court's own opinions and direction. The passages that I've identified in Tam and Trinity Lutheran show that these kinds of innovations won't find a Court that is eager to adopt them. I don't expect the lower courts to stop pushing their own visions just because the Court sends signals like this, or even stronger ones. The Supreme Court only takes so many cases; it only decides them so clearly and leaves lots of room for clever readings and exploitation of open spaces; there are many smart, driven, and politically committed lower court judges; and courts and judges, like the rest of the nation, reflect political and societal fissures. Lower courts do not have to read tea leaves if they do not want to, and sometimes it suits them not to do so. So I don't mean to overemphasize the importance of the signals here. But I do think both passages make clear that the Supreme Court won't give a friendly reception to lower court innovations in these areas.     

 

Posted by Paul Horwitz on June 26, 2017 at 12:07 PM in Paul Horwitz | Permalink | Comments (1)

SCOTUS OT16 Symposium: The Travel Ban Injunctions and 23(b)(2)

Today's ruling in the travel ban cases highlights some of the procedural questions that Howard, Sam Bray, and others have raised. The Court narrowed the existing injunctions, but not all the way: it left them in place "with respect to parties similarly situated" to the plaintiffs.

That "similarly situated" phrase echoes the language often used in class actions. But, as Justice Thomas pointed out, these suits have not been certified as class actions: they're on behalf of particular named plaintiffs, though the remedies sought are more typical of a class.

That's why the Court, in framing this "similarly situated" group, was itself forced to work through some of the issues ordinarily handled by class action doctrines:

The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

(Edit: As Justice Thomas also points out, the defendants will have to work out the same reasoning, "on peril of contempt.")

Here's my question. Suppose that none of these cases had ever been brought. Instead, one of the named parties had brought a class action under 23(b)(2), seeking only injunctive relief, and defined the class as containing "all foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." Would such a class be certified?

Class action practice isn't my area of expertise, so I can't really be sure (though my suspicion is no). What I'm more sure of is that the district court would have had to analyze a number of questions at length: Is this class definition proper? Are the named plaintiffs were typical of the class and adequate to represent them? Does the class contain members with interests adverse to the named plaintiffs, or to each other? Would a judgment describing such a class be sufficiently precise under 23(c)(3)(A) to determine its preclusive effect on individual litigants in future cases? And so on.

And it also strikes me that these inquiries have been short-circuited by the plaintiffs' obtaining an injunction that covers more people than are actually parties to the case. Why does Rule 23 impose so many barriers to making absent people into parties, if we can get the same ruling without those people before the court? Why have the judge appoint class counsel under 23(g), if any old lawyer can walk into court and get an order with exactly the same breadth?

Others have made this point before -- and again, class actions aren't my specialty, so I'm happy to be corrected. But it strikes me that this sort of injunction is at the very least in tension with the existing framework of Rule 23. And if they're good ideas nonetheless, then we should recognize that formally: by proposing new amendments to Rule 23, to tell us when the Rule's requirements should and shouldn't be relaxed.

Posted by Stephen Sachs on June 26, 2017 at 11:34 AM in 2016-17 End of Term, Civil Procedure | Permalink | Comments (4)

Religious Status versus Religious Conduct: Free Exercise Federalism survives by a hair in Trinity Lutheran Church

Although I was disappointed by the result in Trinity Lutheran Church v. Comer, I was hardly surprised. After oral argument, it seemed pretty obvious that Missouri was going to lose and that federalism for free exercise doctrine was going to take a hit. The interesting question was whether Locke v. Davey was going to survive or be shaved into oblivion. Locke v. Davey, I am relieved to say, survives by a hair.

The Court distinguished Locke with the good old' status-conduct distinction. "Davey was not denied a scholarship because of who he was," Roberts wrote, but "was denied a scholarship because of what he proposed to do —- use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is -- a church." States, therefore, still remain free to carve church schools out of voucher programs that pay for (among other things) religious education. As if to reassure federalists, Roberts dropped a footnote that Justices Thomas and Gorsuch refused to join: "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." Justices Thomas and Gorsuch, concurring in everything but footnote 3, plainly would overrule Locke and institute simple strict scrutiny across the board for all classifications that single out religious organizations for any disabilities.

What follows is my federalist's plea to Gorsuch and Thomas (or, at least, encouragement to Roberts, Kennedy, Alito, and Kagan) to stick with the federalist course of Locke. You might ideally want strict scrutiny for anti-religious classifications, just to bring the Free Exercise clause into line with the Equal Protection clause's simple framework for suspect classifications. But are you willing to strictly scrutinize all pro-religious accommodations?

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Posted by Rick Hills on June 26, 2017 at 11:13 AM | Permalink | Comments (1)

SCOTUS Symposium: Packingham and Fact-Checking the Supreme Court

Last week’s decision in Packingham v. North Carolina is getting a lot of attention in part because of this fact checker column in the Washington Post.  Packingham involved a challenge to a North Carolina law that severely restricted the ability of registered sex offenders to access various websites, including Facebook, LinkedIn, and Twitter.  All eight participating Justices agreed that the law violated the First Amendment because it was unable to satisfy intermediate scrutiny.  Although the Court acknowledged that protecting children from sex offenders was a legitimate government interest, the law burdened more speech than was necessary to further that legitimate interest.  

Justice Alito wrote separately to criticize the majority for including “undisciplined dicta” in its opinion.  Justice Alito’s concurrence included the following paragraph:

Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” McKune, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op., at 8–9).

The paragraph appeared in the portion of his opinion that concluded the North Carolina law “easily satisfies” the legitimate government interest prong.  It was this paragraph that the Washington Post decided to fact check.  Interestingly, the Post did so after first noting that it does not normally fact check the Supreme Court, but then explaining: “the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.”

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Posted by Carissa Byrne Hessick on June 26, 2017 at 10:10 AM in 2016-17 End of Term | Permalink | Comments (6)

SCOTUS Symposium: Lee v. United States and Ineffective Assistance of Counsel

As we wait for today’s decisions, I wanted to make a few quick comments about last week’s decision in Lee v. United States. Lee involved an ineffective assistance of counsel challenge.  Petitioner was a lawful permanent resident who had been indicted on drug charges.  His defense attorney negotiated a plea bargain for him that would have permitted Petitioner to serve less jail time.  Petitioner sought reassurance from defense counsel on multiple occasions that the plea deal would not result in deportation.  Despite defense counsel’s repeated reassurances to the contrary, the charges that Petitioner pleaded guilty to triggered mandatory deportation.

The question presented in Lee was whether Petitioner could get relief for his defense attorney’s ineffective assistance.  There was no dispute that defense counsel failed to provide constitutionally adequate assistance—misunderstanding relevant law and failing to investigate are basically the only attorney errors that satisfy the “deficient performance” prong of the ineffective assistance test. The other prong of the test is whether the defendant was prejudiced—namely whether, but for counsel’s deficient performance, the outcome of the proceeding would have been different.  Here, the Sixth Circuit concluded that Petitioner could not satisfy the prejudice prong because the evidence against him was overwhelming.  If the Petitioner would have been convicted at trial, the court reasoned, then the outcome would not have been “different”—Petitioner would have been convicted, imprisoned, and then deported.

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Posted by Carissa Byrne Hessick on June 26, 2017 at 09:47 AM in 2016-17 End of Term, Criminal Law | Permalink | Comments (0)

SCOTUS Symposium: Perry v. MSPB

I wrote an analysis for SCOTUSBlog of Friday's opinion in Perry v. Merit Systems Protection Board. My post-argument prediction that Justice Gorsuch would dissent was correct, although I predicted a solo dissent and he got Justice Thomas to come along. I describe the opinion as Gorsuch announcing his presence with authority on statutory interpretation. This is a minor case, but it portends some sharp divisions in the coming years.

Posted by Howard Wasserman on June 26, 2017 at 07:49 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Federalists do not know how to party: Why Federalism is a Boring but Vital Idea

Stephen Marche complains in yesterday's Sunday NY Times that "Canada doesn't know how to party," because Canadians are unenthusiastic about celebrating the British North America Act of 1867, the statute that created the modern Canadian state. It is not that Canadians dislike the BNA. It is just that the BNA is boring -- "the single most boring object ever produced by human consciousness," in Marche's words. It is a long, technical document largely designed to accommodate Anglophones' and Francophones' mutual desire to be left alone. Since 1982, when the BNA was "repatriated" to become Canada's Constitution, it has been gussied up with a Charter of Rights and Freedoms, but even this addition is qualified by section 33's "notwithstanding" clause allowing provinces to opt out of Canada's bill of rights.

As a mere federal framework for mutual non-interference, Canada's Constitution has a whiff of the dull drudgery of a good-enough marriage. (The BNA begins with this soporific preamble: "Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion...."). And yet, as Marche notes, the absence of celebration is a pity, because Canada's success as an extraordinarily peaceful, prosperous, multi-national state owes a lot to this dull, "go along to get along" document.

Marche's piece could be generalized as posing the essential dilemma faced by the idea of federalism. Because it is a boring and merely territorial compromise, federalism can be effective at defusing otherwise intractable partisan or ethnocultural disputes that resist resolution through national theories about the Good and the Just. But precisely because it is boring, the federal idea is hard to enforce when it conflicts with one's more passionate commitments. The result is that each side is tempted to bail from a federal commitment when disputed rights are at stake, causing the entire system to unravel. Of course, one might rationally realize that one's passionately felt right is one's opponent's passionately felt wrong and that winner-take-all nationalism might leave one with nothing when that opponent controls the national government. But such dry, rational argument is easily brushed aside when one has the reins of national power in one's own hands and can end, once and for all, [fill in your own pet cause]. Against the cautious federalist who wonders whether the policy in question really is a necessarily national policy about which reasonable people cannot disagree, the nationalist brusquely offers the Reductio ad Brownum ("So would you safeguard Jim Crow with federalism?"). It turns out that, when one has a congressional majority, every policy with which one disagrees, from Sanctuary Cities to Clear & Convincing Proof standards for college campus sexual assault hearings, looks as bad as Jim Crow.

The problem with federalism is, in short, that we Federalists do not know how to party -- which is a shame, because there is actually a lot to celebrate in a robust federal regime.

Posted by Rick Hills on June 26, 2017 at 06:30 AM | Permalink | Comments (0)

Sunday, June 25, 2017

SCOTUS Symposium: The final week

We enter the final week of June and the final week of the Term. Six cases remain, with Monday the final scheduled opinion day, so expect a flurry. I am most interested in Hernandez v. Mesa, which could produce either further contraction of Bivens or further expansion of qualified immunity. Plus, the Court  has full briefing on the travel ban cases. Plus, rumors of Justice Kennedy's retirement are heating up. Or maybe it is Justice Thomas.

So as we enter the final week and the wrap-up to our End-of-Term Symposium, let's talk about everything that happens on Monday, as well as some broader lessons, conclusions, criticisms, praise, and perspectives from the Term as a whole, and some predictions about what might happen in OT 2017.

Posted by Howard Wasserman on June 25, 2017 at 10:28 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (2)

Does Article VII's Up-or-Down Process Weaken the Case for Constitutional Textualism (i.e., New Originalism")??

In constitutional interpretation, the "New Originalism" (nicely described by Larry Solum, among other places, here) bears an uncanny resemblance to the old statutory textualism of the mid-1990s and early 2000s. The focus of New Originalists on the original public meaning" of the Constitution's text is essentially (at least so far as I can tell) just constitutional version of the idea that the law is to be found not in the law-makers' intentions or even the law's apparent Big Purpose but instead in those textual details that reflect the compromises necessary to enact the law.

The analogy between the New (Constitutional) Originalists and the old statutory textualists, however, breaks down in one possibly important respect. In the context of statutory interpretation, statutory textualists justified textual primacy with the idea of the Statutory Compromise: The little details of text reflect a the vector of forces in the legislature both for and against a statute. To quote John Manning, "courts risk upsetting a complex bargain among legislative stakeholders if judges rewrite a clear but messy statute to make it more congruent with some asserted background purpose." Choosing between series qualifiers and last antecedents, fly-specking contemporary dictionaries (or now, for the cognoscenti, "corpus linguistics"), arguing about the application of Latinate "intrinsic aids" are all just ways to decipher the legislative bargain, because the various interests in the legislature allegedly talk to each other through such arcana. By respecting the text, you respect the deal hammered out between equals, thereby protecting best evidence of what We the People, in our quarrelsome, squabbling collective soul, really want (and don't want).

None of this reasoning about statutory bargains, however, applies very well to the "take-it-or-leave-it" constitutional text presented by the Federalist-dominated Philadelphia convention to state ratifying conventions. The state conventions had to approve or disapprove that text through seriatim up-or-down votes without any chance to amend the proposal. As Romer and Rosenthal noted almost 40 years ago, monopoly power to set the agenda with an unamendable proposal allows the agenda-setter to press through measures that the voters might actually dislike much more than many plausible alternative taken off the table. The Anti-Federalists understood Romer's and Rosenthal's insight without needing any graphs and equations: They repeatedly and bitterly complained that they had no chance to fine-tune the proposal by modifying powers, craft compromises, or multiply rights.

Why, then should anyone take the textual details of this take-it-or-leave-it text to reflect some normatively attractive vector of interests? At the very least, the normative argument routinely deployed on behalf of statutory textualism -- textual details reflect a fair compromise among legislation's supporters and opponents -- seems out of place with the New Originalism. "Purposivism" rather than textualism, therefore, might, therefore, be the most appropriate interpretative stance for our Constitution. With such a Constitution as opposed to statutes, we ought to be skeptical about textual certainty and willing to find ambiguity justifying non-semantic "constitutional construction. To paraphrase McCulloch, we must never forget that it is a take-it-or-leave-it text that we are expounding.

Posted by Rick Hills on June 25, 2017 at 06:14 PM | Permalink | Comments (8)

Friday, June 23, 2017

A Half-Hearted Two Cheers for the Victory of Federalism over Property Rights in Murr v. Wisconsin

Legal scholars like Ilya Somin who share my own libertarian inclinations are mourning the defeat of federally protected property rights in Murr v. Wisconsin. I am not ready to don black. While I agree with Ilya that there should be more robust protection for property rights, I am also pretty sure that the SCOTUS's interpretation of the federal Constitution's Fifth Amendment is the wrong institution to deliver such protection. The problem with relying on the federal judiciary to define "property" is that the federal courts are neither able nor willing to derive a comprehensive system of federal property rights from the dozen words of the Fifth Amendment "just compensation" clause. Instead, SCOTUS's takings doctrine tends gingerly to elevate particular aspects of state property law to constitutionally protected status, using these privileged parts of state law to trump other state regulations by declaring that the latter "takes" property by negating the former.

This enterprise of federalizing discrete parts of state law to safeguard "property" is, I think, a doomed enterprise. I prefer that state courts and state legislatures pull the laboring oar in defining and protecting private property. So, despite my fondness for private property, I offer a couple half-hearted cheers for Murr as the SCOTUS's wisely choosing the better part of valor. More vigorous efforts by the federal courts are likely to backfire either legally or politically, to the detriment of lasting protection of private property.

Continue reading "A Half-Hearted Two Cheers for the Victory of Federalism over Property Rights in Murr v. Wisconsin"

Posted by Rick Hills on June 23, 2017 at 05:13 PM in 2016-17 End of Term | Permalink | Comments (3)

The exodus of high-band LSAT students

This is an extraordinary graph.

It describes the big decline in applicants in the high band of LSAT scores.  Of course, these are the students who would be admitted to top law schools and/or strong performing law schools with significant merit scholarships.  In short, the most sought after students are saying "no thanks" to law school.  

This is one of the two big, and often neglected, stories in contemporary law student enrollment & recruitment.  (The other is the spiraling discount rate resulting from the increasing arms race among reasonably well-resourced law schools for a smaller pool of students).

The AALS has embarked on an ambitious "before the JD" study to explore how college students and graduates are thinking about law school and the prospects for success (on many relevant measures) in the profession.  Presumably other investigations, some empirical, some more speculative, are underway.  Without claiming that the high band exodus is more important to consider than other phenomena at work in applicant and enrollment patterns, it is an interesting question nonetheless.  How do students who would, ceteris paribus, come to law school with less debt and/or more professional choice still move away from law school toward other options, educationally, professionally, or otherwise?  It his a story about obstinate law schools? About the success of greater transparency or, if you want to see it this way, anti-law school invective?  Or about the state of the legal profession?  

These are questions which obviously loom large for those leading and working in law schools.  Yet they are also relevant if and insofar as one believes that a robust legal profession and a continuing commitment to the rule of law and access to justice depends upon very accomplished college graduates seriously considering legal education.  Even if one is highly critical of students choosing law school, we should better understand why students do or do not make this choice.  Plenty of folks have a dog in this fight and so we need not feign pure objectivity.  But we can agree that data and empirical analysis is warranted and timely so ask to illuminate these important issues.

Posted by Dan Rodriguez on June 23, 2017 at 10:05 AM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (9)

Thursday, June 22, 2017

The Nine Lives of Bivens (SCOTUS Symposium)

In Ziglar v. Abbasi, the Court ruled against plaintiffs seeking relief from allegedly unconstitutional discrimination and abuse in the wake of 9/11. Perhaps the largest flashpoint in the case concerned the Court’s treatment of Bivens, a landmark ruling from 1971 that created a cause of action for damages for Fourth Amendment violations by federal officers.

Over the pasts few days, critics of Abbasi have argued that Bivens is now “all but overruled” and “all-but limited … to its facts.” But similar claims have been made before—and will likely be made yet again. If Bivens has nine lives, it seems to have two or three left to go.

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Posted by Richard M. Re on June 22, 2017 at 08:30 AM in 2016-17 End of Term | Permalink | Comments (6)

Wednesday, June 21, 2017

SCOTUS Symposium: A Pair of Posts on Abbasi's Flawed Historical, Analytical, and Theoretical Foundations

I'm embarrassingly late to the non-stop party that is the Prawfs end-of-Term symposium, but thought I should at least flag here a pair of posts I've written elsewhere about Monday's decision in Ziglar v. Abbasi, why I think it's the clubhouse leader for most important ruling of the Term, and why that—and it—should bother all of us (a lot).

On Monday, over at Just Security, I wrote a post about "the four key analytical moves Justice Kennedy makes in laying the groundwork for the holding that courts shouldn’t recognize such 'Bivens' claims here (or in most other contexts), and break down why each of the moves is independently problematic." In a nutshell, the Abbasi opinion (1) ignored the rich history of common-law damages remedies against federal officers; (2) refused to grapple with the (potentially constitutional) implications of the Westfall Act, which has been read to foreclose previously available state-law remedies for federal constitutional violations; (3) accepted the deeply problematic analogy to the role of courts in implying statutory causes of action; and (4) held out habeas petitions as a meaningful alternative remedy for the constitutional violations alleged by the plaintiffs.

Today, I have a post up at Lawfare that more directly confronts the normative claim at the heart of Justice Kennedy's opinion—that judge-made remedies for constitutional violations, especially in national security cases, represent an undue intrusion into the prerogatives of the political branches (and more so than claims for prospective relief). As today's post suggests, 

[T]here are three different defects in his normative case against Bivens: First, it rests on a view of the intrusive effect of Bivens that is not just wholly unsubstantiated but also internally inconsistent as a logical matter. Second, it incorporates into Bivens concerns about undue intrusion that other doctrines already account for in more nuanced, sophisticated ways. Third, and most importantly, it assumes that damages actions represent a greater intrusion into the function of the political branches in general (and in national security cases, specifically) than does prospective relief (like injunctions, habeas, etc). That’s a theory of the separation of powers that, frankly, makes no sense. Certainly one can reasonably be opposed to an aggressive judicial role in national security cases in general, or in cases seeking prospective relief, specifically. But the idea that judicial recognition of an after-the-fact damages suit represents a greater threat to the separation of powers than judicial imposition of an injunction against ongoing national security policies (ranging from the 1973 bombing of Cambodia to military detention at Guantánamo to the travel ban) is, for lack of a better word, nuts.

Anyway, since neither Just Security nor Lawfare allows comments (directly, at least), I thought I'd flag these contributions here in case they provoke further discussion...

Posted by Steve Vladeck on June 21, 2017 at 04:32 PM in 2016-17 End of Term, Constitutional thoughts, Steve Vladeck | Permalink | Comments (4)

Beckman v. Chicago Bears

Russell Beckman is a Green Bay Packers fan who holds season tickets with the Chicago Bears only so he can attend the Bears-Packers game. Season-ticket holders earn points allowing them to purchase "experiences," including going onto the field during pre-game warmups. But the Bears prohibit these fans from going onto the field in the opposing team's gear; they would not let Beckman participate during the Bears-Packers game last season, and, he alleges, will not let him do it at the game next season. Beckman has sued the Bears, alleging that the no-opposing-team-gear rule violates the First Amendment and seeking an injunction against enforcement of the policy. Beckman is appearing pro se (he and I exchanged emails about the situation a few weeks ago).

The Bears play at Soldier Field, which is owned by the Chicago Parks District and rented to the team for its use. That, I believe, raises the possibility the Bears act under color. If the case involved the Bears stopping fans from wearing opposing-team gear in the stands, this would be an easy case, with the Bears subject to Burton's symbiotic relationship test, just as the New York Yankees were at the old Stadium. But I have been reluctant to say that teams playing in publicly owned arenas act under color for all purposes, as opposed to for the limited purposes of operating expressive fora (the stands, press access, etc.). A team should retain leeway in its organization and operations, including its interactions with customers. Playing at a publicly owned arena would not stop the Bears from being viewpoint-discriminatory in, for example, deciding what people could wear or who could attend a Lake Michigan cruise for ticket holders. The question is where the playing field (ordinarily not part of the expressive forum) falls on the spectrum. I am not sure I know the answer to that question.

Interestingly, the Yankee Stadium lawsuit was brought by the NYCLU in conjunction with NYU's Civil Rights Clinic. It is surprising (telling?) that neither the Illinois ACLU nor a Chicago-based clinic would take this on. Did Beckman never ask around? Does it say something about how that state-action question will be resolved when we move from the stands to the field?

Or are Green Bay Packers fans less popular in Chicagoland than Nazis?

Posted by Howard Wasserman on June 21, 2017 at 11:58 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, June 20, 2017

Resolved, not moot

In Campbell-Ewald v. Gomez, SCOTUS held that a case does not become moot when the defendant makes an unaccepted offer of judgment. The Court expressly did not decide "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount." In Fulton Dental v. Bisco, the Seventh Circuit said the result is not different, that a defendant can no more force a settlement by putting money in the court under FRCP 67, unaccepted by the plaintiff and with no judgment from the court, than offering the money and having the plaintiff reject the offer under FRCP 68. (H/T: Alert reader Asher Steinberg).

The Seventh Circuit tried to push back against characterizing this as mootness, saying it was more like the affirmative defenses of payment or accord and satisfaction. But the court was limited because SCOTUS discussed Campbell-Ewald as a mootness concern, rather than following the position urged by the S.G. that this is a merits concern. Like Campbell-Ewald, Fulton involved an action for damages for past harm incurred; such a case cannot become moot because the past injury remains and never goes away. Mootness should be limited to claims for prospective relief, where the plaintiff's injury is ongoing and something stops the injury.  The payment and acceptance of money as settlement of a case over a past injury means there should not be further litigation between these parties over this transaction-or-occurrence. But that is because the case was resolved, not because it became moot.

Posted by Howard Wasserman on June 20, 2017 at 03:10 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

CFP: Idaho Law Review Symposium: Terry v. Ohio at 50

CALL FOR PAPERS OR PRESENTATIONS

The University of Idaho College of Law’s 2018 Idaho Law Review symposium issue will study the impact of Terry v. Ohio, a decision nearly 50 years old.  The symposium will be held on April 6, 2018 at the Idaho Law & Justice Learning Center, the College of Law’s Boise location. We invite original paper submissions for presentation at the symposium, as well as panel proposals.

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Posted by Howard Wasserman on June 20, 2017 at 12:31 PM in Article Spotlight | Permalink | Comments (0)

SCOTUS: Partisan gerrymandering case from Wisconsin

Two cheers for the Court's decision to hear this closely watched case.

First in Davis v. Bandemer in the 80's, and later in Vieth, the Court has flirted significantly with a big ruling limiting the power of state legislatures to engage in reapportionment for what is plainly partisan political motivations.  The caution has stemmed, broadly speaking, from two concerns:   First, the meta-question of whether a political motivation, one which generates results that lock in partisan results is inconsistent with our constitutional democracy, and in a way that can be located in a responsible interpretation of the Constitution's text and judicial precedent; second, the question which loomed so large for the Court before Baker v. Carr and articulated so memorably by Justice Harlan's remark in Colegrove about this "political thicket," and that is the matter of remedy and redress.

A slender majority of the Court, and surely a much larger majority of academic commentators, view the first question as answerable in the affirmative.  The line of cases from Baker and Reynolds summarizes the basic theoretical underpinnings of this reasoning.  It is tempting to see this, sharpened eloquently by influential scholars such as Rick Pildes, Sam Issacharoff, Pam Karlan, and so many others, as a salutary antidote to partisan lock-ups and what I would call, clumsily, bad partisanship and deleterious polarization.  Yet, what seems to drive the Court's cautious foray into this thicket is not a comprehensive, or even coherent, view of partisanship and democracy, but a borrowing from the Court's Voting Rights Act jurisprudence and, in particular, a sharp focus on dilution and the fundamental right to have one's vote adequately influential.

Into this conceptual lacuna comes the shrewd and timely contribution of Nick Stephanopoulos and Eric McGhee in the development of the "efficiency gap" measure for unacceptable partisanship, the details of which are nicely summarized by the Brennan Center here.  

What remains incomplete, however, despite a generation's worth of important scholarship on this complex subject is the big picture of how partisan gerrymandering's vote dilution is the same threat to equal protection as articulated in the "one-person-one-vote" cases.  We know well from the "efficiency gap" argument that there is dilution and it can be measured effectively; but we need to know why this kind of dilution is objectionable on a rationale which sounds in equal protection, and as articulated by Justice Brennan and the Warren Court in the heyday of this jurisprudence.  True, the analogy between dilution here and in the VRA context is a strong one; yet, the VRA has a different history.  Racial spoils and Jim Crow undergirds its history; political spoils and strategic partisanship has a different history, and it takes a stretch to connect the two by anything other than an analogy.

And, of course, the matter of the remedy looms especially large -- indeed, perhaps too large to sway Justice Kennedy in the end.  We knew what to do in Reynolds; and the VRA gives us a template for how to think about remedying unacceptable discrimination.  But can we truly get our arms around a constitutional jurisprudence that sorts and separates good from bad politics?  Can this coexist with our system of federalism in which the fundamental choices are made locally and by elected politicians who are, for better or worse, ambassadors of partisan advantage and party leadership?

We will be watching closely for sure! 

 

 

Posted by Dan Rodriguez on June 20, 2017 at 11:22 AM in 2016-17 End of Term, Constitutional thoughts, Daniel Rodriguez | Permalink | Comments (8)

Monday, June 19, 2017

SCOTUS Symposium: Happy talk and revolutions of historic proportions

I am going to discuss the two free speech cases--Matai v. Tam and Packingham v. North Carolina--together as unanimous, broad reaffirmations of a libertarian, highly protective model of free expression.

A couple of interesting points:

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Posted by Howard Wasserman on June 19, 2017 at 07:59 PM in 2016-17 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

SCOTUS OT16 Symposium: Bristol-Meyers Squibb and More Work for Lawyers

Following up on Howard’s and Stephen’s posts about Bristol-Myers, I think the best thing that can be said about the case is that it creates work for more lawyers in more cases.

It’s not so great, on the other hand, for plaintiffs--or for judicial efficiency.  The Court tells us that class actions plaintiffs will have two options. They can sue in the defendant’s home state--which may work well in a single-defendant case, but will be problematic in a multi-defendant case and especially problematic when the defendant is a foreign corporation. Or the plaintiffs residing in a single state can file a class action where the plaintiffs live and/or suffered harm. The economics of class actions might make this difficult for plaintiffs. I would think that it would also make it difficult for defendants, who would presumably not want to face 50 separate class actions. However, at least the bloggers at the Drug and Device Law Blog don’t seem to be too worried about that, but instead conclude that the case made for “[a] very good day for the right side of the “v.” – and not very good for those on the wrong side.”

MDL practice may also provide another possibility for consolidating litigation nationwide. But the Court left open the same question that Stephen Sachs pointed out was not decided in BNSF—“whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.” I suspect this question will be the topic of a great deal of litigation in the near future.

This case also didn't raise the question of whether states can require that companies registering to do business consent to jurisdiction in their courts. I think this question will also continue to be litigated, and I think it depends on what is most important to the Court. Is it the effect (narrowing jurisdiction)? If so, then perhaps such a requirement would be struck down.  But the Court also gave significant lip service to the concepts of state sovereignty and respect for territorial boundaries—which might suggest that, as a matter of federalism, states should be allowed to be make such a requirement—at least in those cases where there is a clear state interest in hearing the case.

As Professor Rocky Rhodes and I discuss in a recent piece, the Court’s focus on a narrow conception of jurisdiction makes the problem of jurisdictional discovery much more salient. Unfortunately, however, the recent amendments to the discovery rules make the jurisdictional discovery process harder. But the more the Court narrows the grounds for jurisdiction, the more important such jurisdictional discovery will become.

And finally, a note in response to Stephen’s point about “what's ‘fair’ or ‘unfair’ about jurisdiction is whether a particular government is fairly empowered to decide the case.” I would offer a friendly amendment to substitute “claim” for “case.” I think it matters in this context.  I would have preferred to think in terms of “cases,” which I think gets to the question about the court’s power of the defendant in general—can this court hale this defendant before it?  But the Court’s opinion today offered a narrowed conception, focusing on individual claims rather than cases. Can this court hale this defendant before it as to this particular claim by this particular plaintiff? This narrower view seems to move away from what I see as the importance of personal jurisdiction (haling an unwilling defendant into court at all), and moves toward something that looks more like venue—except with a constitutional dimension. I suspect that this means the Court will not be particularly sympathetic to the idea of pendent personal jurisdiction. But the question, like so many others left open, will still need to be litigated.

Posted by Cassandra Burke Robertson on June 19, 2017 at 04:54 PM in 2016-17 End of Term | Permalink | Comments (1)

"In an appropriate case, we should reconsider our qualified immunity jurisprudence." (SCOTUS Symposium)

Today was a busy and newsworthy day in constitutional law at the Supreme Court, and one reason was the Court's constitutional remedies decision in Ziglar v. Abbasi. In Ziglar, a short-handed, six-Justice Court blocked a set of constitutional claims brought against government officials arising out of harsh detentions in the wake of 9/11. The Court's ruling implicated several different procedural doctrines, and may prove to be the ultimate cap on almost all "Bivens" suits for damages against federal officials (as Steve Vladeck discusses in this thread and as Howard posted here earlier).

But along the way, the decision provoked some promising skepticism from Justice Thomas about the doctrine of qualified immunity (A doctrine which protects government officials from liability for unconstitutional conduct, and which I've previously posted about here and here). Here is Justice Thomas, writing separately:

As for respondents’ claims under 42 U.S.C. § 1985(3), I join Part V of the Court’s opinion, which holds that respondents are entitled to qualified immunity. The Court correctly applies our precedents, which no party has asked us to reconsider. I write separately, however, to note my growing concern with our qualified immunity jurisprudence.

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Posted by Will Baude on June 19, 2017 at 04:35 PM in 2016-17 End of Term, Constitutional thoughts, Judicial Process | Permalink | Comments (1)

SCOTUS OT16 Symposium: Jurisdiction and Power in Bristol-Meyers Squibb

I read the Court's opinion in Bristol-Meyers Squibb somewhat differently than Howard does. This doesn't strike me as a purposeful availment case; neither "purposive" nor "avail" (nor derivatives thereof) even show up until Justice Sotomayor's dissent. The majority accepts that BMS has various contacts with California, but denies that those contacts are related to the claims at issue, or that there's "any adequate link between the State and the nonresidents' claims." That looks like an argument devoted to the second prong of the specific jurisdiction test, not the first. (Though he's critical of the Court's holding, Adam Zimmerman apparently agrees on this point.)

Given that the modern three-prong test is largely of the Court's own invention, and not part of the preexisting law of personal jurisdiction, it's hard to say that one concept of "related to" is self-evidently correct. But there are four points on which I think the Court's opinion got it right.

  1. In Part II-B, the Court correctly reiterates that jurisdiction is about power, not fairness. Or, to put it another way, what's "fair" or "unfair" about jurisdiction is whether a particular government is fairly empowered to decide the case. What matters isn't the geography of the courthouse or the expense of putting lawyers and witnesses on a plane; a case might be properly heard in Manhattan but thrown out of court right across the bridge in New Jersey. What matters is who gets to decide. (So the majority properly, albeit silently, throws the contrary language in Insurance Corp. of Ireland under the bus.)

  2. On this view of jurisdiction, the ultimate outcome makes some sense. BMS makes allegedly defective pills in New Jersey and sells them in California and Kansas. Let's grant that California can determine whether those California sales were lawful. But where do its officials get power to make the same decision about the Kansas ones? Who put them in charge? Why should BMS have to obey the pronouncements of a California judge, appointed by California officials and retained by California voters, using California rules on procedure, discovery, evidence, or jury trial? Maybe what BMS did in Kansas was okay, maybe not. But why do Californians get to decide? "Why not Bill Gates, or the Pope?"

    The plaintiffs note that BMS sold the same pills in both places, so it's already made itself subject to the liability determinations of California courts. But in an adversary system like ours, the California courts aren't deciding what really happened; they're deciding who made the better showing in a particular legal proceeding, conducted according to particular rules. (That's why our preclusion doctrines have a variety of internal conditions or exceptions; even a favorable California judgment doesn't mean the Kansans would automatically win in Kansas.) So the power to decide whether BMS injured California plaintiffs doesn't automatically confer a power to make the same decision as to Kansans.

    (Note, by the way, that the Court has never really reconciled its holding on out-of-state damages in Keeton, or for that matter its relaxed standard for choice of law in Allstate, with the state-by-state restrictions it came up with in BMW v. Gore. I'm not sure how it would do that if it wanted to, or what the right answer would be.)

  3. The Court is also probably right that its ruling doesn't sound a death-knell for nationwide small-dollar actions. Plaintiffs could have sued BMS where it actually designed and manufactured the pills, or wherever it's incorporated or headquartered. True, they may not be able to sue all of the relevant defendants there. And there'll be many cases that of necessity are spread across multiple states. But that's not really a criticism of the Court's view of sovereign authority. If modern economic relations are so spread among the states that no one state has authority to determine the whole, isn't that an argument for, rather than against, dividing up the cases?

  4. Importantly, the Court explicitly reserves the question of how to handle these cases in federal court. I've argued before that most hard personal jurisdiction cases really belong in federal court; the United States government has undoubted authority to tell the parties what to do, and Article III enables jurisdiction over diversity cases for a reason. This doesn't happen today because Rule 4(k)(1)(A) unwisely forces federal courts to pretend that they're state courts for personal-jurisdiction purposes. As cross-border transactions grow ever more extensive, it'd be better if the energy now focused on the law of state personal jurisdiction were instead focused on reforming the rules for federal courts.

Posted by Stephen Sachs on June 19, 2017 at 03:38 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts | Permalink | Comments (1)

SCOTUS Symposium: Setting fire to House Bivens

"If you're cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not  set fire to the house." So said Justice Breyer in dissent in Ziglar v. Abbasi, in which the Court rejected Bivens claims against high-level executive officials brought by mistreated post-9/11 detainees (although left a small glimmer of hope for a claim against the warden), and in the process may have limited Bivens to claims against line officers for immediate violations of a small group of rights. In other words, the majority may have set fire to the House of Bivens.

 Some thoughts after the jump.

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Posted by Howard Wasserman on June 19, 2017 at 03:04 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS symposium: The Freedom of Speech

It's a "Captain Obvious"-level obvious point, but the Court handed down two cases today -- Matal v. Tam and Packingham v. North Carolina -- that seem entirely consistent with the Justice-Kennedy-era Court's highly libertarian, regulation-skeptical approach to the First Amendment's Freedom of Speech.  Although there were some concurring opinions, it's striking that, at the end of the day, the free-speech claimant won in both cases unanimously. It strikes me as plausible that the justices are sending signal to those who have been suggesting recently that the First Amendment does not protect offensive, hurtful, divisive, or "hateful" speech and, perhaps, mean to shape the debate about speakers, speech, protests, etc., on public-university campuses.   Justice Kennedy wrote, in his concurring opinion (joined by three of the Democratic appointees):

The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. An initial reaction may prompt further reflection, leading to a more reasoned, more tolerant position. Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive. 

As many Prawfs readers will know, groups of law professors weighed in on both sides of the case (see, e.g., here and here).

Posted by Rick Garnett on June 19, 2017 at 02:47 PM | Permalink | Comments (1)

SCOTUS Symposium: Narrowing specific jurisdiction

The post-2010 revival of personal jurisdiction in SCOTUS (after a two-decade absence) has been defined in part by narrowing general jurisdiction, including last month in BNSF. In Bristol-Meyers Squibb v. Superior Court, an 8-1 Court (per Justice Alito) turned the screws on specific jurisdiction. The Court held that there was no jurisdiction in California over claims by non-residents for non-forum injuries, even when caused by the same nationwide conduct. Justice Sotomayor again dissented alone, as she has been in the general-jurisdiction cases, continuing to play the Justice Brennan role of finding personal jurisdiction in almost every case. She criticized the decision as the "first step toward a similar contraction of specific jurisdiction." 

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Posted by Howard Wasserman on June 19, 2017 at 12:39 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

SCOTUS Symposium: Busy Day

SCOTUS came into today with seventeen remaining cases and two weeks to do. The Court cut a big chunk of that out on Monday, with five opinions, four of which were on cases I have been trying to follow:

Matal v. Tam: Declaring invalid under the First Amendment the disparagement provision in the trademark laws.

Packingham v. NC: Declaring invalid under the First Amendment a North Carolina statute prohibiting convicted sex offenders from using social media.

Bristol-Myers Squibb v. Superior Court: Rejecting an assertion of personal jurisdiction in a mass-tort action.

Ziglar v. Abbasi: Severely limiting Bivens, certainly in the national-security context and perhaps for everything beyond claims against line police officers. This one forces me to rewrite the Bivens chapter in my civil rights book.

McWilliams v. Dunn: Granting habeas relief and overturning a death sentence for failure to provide mental-health experts to the defense.

Our team of bloggers will be weighing in throughout the week. I will try to hit the procedure cases today and the speech cases tomorrow.

In addition, the Court announced that Thursday will be an opinion day.

Posted by Howard Wasserman on June 19, 2017 at 11:20 AM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (0)

ABA accreditation regs: proposed adjunct rule rollback

The Council on Legal Education has out for public comment a significant proposed change to its regulation on the amount of teaching non-full-time faculty a law school can do.  Under current rules, there is a significant cap -- no more than one-third of all student contact hours (credits) -- on teaching by adjuncts.  This rule has been a longstanding thorn in the side of law schools which might otherwise increase the number of lawyers, judges, and other qualified professionals teaching their law students.

This regulatory rollback is an idea whose time has come.  The rollback would be a meaningful improvement in legal education.  This is so in three ways:

First, this revision is another step in what has been a salutary, and frankly rather unexpected, shift in focus on the part of the Council from input measures to a focus on outcomes.  The empirical basis for the idea that student learning is improved by a heavy-handed cap on the number of courses taught by part-time teachers is thin -- indeed, I am not aware of any law school-specific study that tests the claim that full-time residential faculty are superior to adjuncts upon criteria that matter to student learning and professional training.  By looking at outcomes (as does the other proposal before the Council this round, that dealing with bar passage), the ABA is looking at the right question -- what is the connection between teaching staff and educational outcomes?  To be sure, a career as a full-time residential faculty on the tenure track has given me confidence (perhaps, candidly, a bias) that students benefit from close quarters mentoring by legal educators who have made a professional investment in learning and improving our craft.  Moreover, I would expect that many, if not most, law schools would continue after this revision to staff their faculty with residential faculty (whether or not on the tenure-track) in order to create a learning community and to engage in serious legal scholarship with individuals who have the skills, inclination, incentives, and time to do exactly that.  However, law schools who look to the bench and bar to provide valuable courses, especially but not limited to experiential learning/skills-based education should be given that latitude. This is what a growing number of students say they want; this is what the profession is demanding.

Second, the issue of law school cost looms large.  Creating the space in which law schools can make economically sensible choices by allocating teaching credits to adjuncts whose professional circumstances allow them to teach for very little is a move in the direction of reducing the fixed costs of law schools and thereby passing the benefit onto students.  Notice that this rollback does not implicate the separate and difficult question of whether and to what extent law schools should hive off tenure-line faculty, replacing them with full-time residential faculty who come cheaper.  The capacious definition of full time residential faculty in 403 makes this issue orthogonal to the question of adjunct teaching; in other words, you can satisfy the existing 403 with tenure-track or non-tenure-track faculty.  But what an expansion of the adjunct curricular space does is to give law schools room to make an economic decision which is significant and potentially beneficial to students whose financial predicament is severe.  Once again, the shift from inputs to outputs portends a meaningful shift in the direction of law school efficiency.  Whether and to what extent this efficiency is purchased at the price of sound pedagogy is ultimately a question for the marketplace, that is, for the law schools who consider carefully this tradeoff.  

Finally, there are good reasons to believe that removing the mechanical shackles on adjunct teaching will encourage innovation.  In a world in which traditional lawyering bumps up against the dynamic shift toward more synergistic, de-siloid professional training, and in which lawyers will need and want to work at the intersection of law, business, and technology, it could make sense for an innovative law school to decide that professionals deeply embedded in this brave new world might have much to offer for their law students.  We should note the fine print in the 403 rollback:  The foundational first-year courses remain subject to the rule that full-time faculty provide the bulk of the instruction, this acknowledging (sensibly, in my view) that the curricular core should be taught by faculty members who are immersed in the serious study of law as a coherent discipline and will invest themselves in students' foundational learning.  What relaxing the adjunct rule does is to create potentially exciting opportunities for law schools to benefit in the second and (especially) the third year.  New courses in, say, law & technology, business planning, entrepreneurship, law firm organization, applied legal ethics, judicial decisionamking, etc.,  would likely profit from an experienced cadre of practicing lawyers, judges, and even folks outside the law altogether.  At the very least, wouldn't we want to see this as a natural experiment?

The ABA Council has heeded the call toward more innovation and, likewise, for revisiting command-and-control regulation.  This call should be applauded, here in the context of 403's adjunct rule rollback.

Posted by Dan Rodriguez on June 19, 2017 at 10:18 AM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (25)

Sunday, June 18, 2017

More heckling

Great essay in The Atlantic by Thomas Healy (Seton Hall) arguing that some of the non-violent "intense pushback and protest" against right-wing speech on campus is itself constitutionally protected counter-speech, the Brandeisian remedy to be applied. Healy consider heckling as part of this:

Heckling raises trickier questions. Occasional boos or interruptions are acceptable since they don’t prevent speakers from communicating their ideas. But heckling that is so loud and continuous a speaker literally cannot be heard is little different from putting a hand over a speaker’s mouth and should be viewed as antithetical to the values free speech.

I have argued that some heckling is protected expression and where we draw that line raises an important First Amendment question. I have not yet figured out where that is, although I do not believe it is loud and continuous heckling, at least without knowing more--such as where the heckler is viz a vizt the speaker and the nature of the spaces in which both speech and counter-speech are occurring. But it is good to see someone stake out the basic position that protesters shouting over an objectionable speaker are not censors but themselves participants in a messy debate.

Posted by Howard Wasserman on June 18, 2017 at 11:19 PM in First Amendment, Law and Politics | Permalink | Comments (10)

Saturday, June 17, 2017

Ideological Diversity and Party Affiliation

Like many law professors that I know, I have long sought to advance ideological diversity in law faculty hiring.  I think that law schools flourish when academics come at problems from different vantage points.  Law professors improve our thinking and our work product when we have to contend with smart people who disagree with us.

In discussions about ideological diversity, I sometimes see people equate ideological diversity with political party affiliation.  Law schools cannot achieve ideological diversity, so the argument goes, unless there are a certain number of law professors who are members of each major political party.  And given that most (though certainly not all) law schools have more Democratic than Republican professors, the only way to achieve ideological diversity is to hire more Republican faculty.

I do not think that party affiliation is a useful metric for ideological diversity.  In order to explain why, let me first clarify what I mean when I use the term “ideological diversity.”  I use that term to mean people who approach legal problems differently.  Ideally, colleagues should use different methodologies, they should not always think that the same arguments are persuasive, and they should not necessarily think that the same outcomes are desirable.  In such environments, I think faculty are most likely to question their own assumptions, push themselves to consider different points of view, and as a result produce better scholarship.  Party affiliation is, at best, an imperfect proxy for these traits.

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Posted by Carissa Byrne Hessick on June 17, 2017 at 04:11 PM in Culture, Law and Politics, Life of Law Schools | Permalink | Comments (11)

SCOTUS Symposium: Patent Law & Legal Process

This past Monday (6/12/17), the Supreme Court issued its sixth (!) patent case of the term, Sandoz v. Amgen. The lone copyright case for the Term, Star Athletica v. Varsity Brands, came down in late March. The lone trademark case for the term, Lee v. Tam, has yet to issue. The Court in Sandoz reversed the Federal Circuit in part, and affirmed it in part (though on a different rationale). Relative to the other five cases, that’s an improvement for the Federal Circuit; in those other five, the Court simply reversed the Federal Circuit outright. Across all six cases, there were dissents in only two (Impression Products, and SCA Hygiene), and both were lone dissents. The Court largely agrees that the Federal Circuit is largely wrong.

Professor John Duffy, an especially astute observer of the Supreme Court’s return to patent law in the mid-1990s (see, e.g., The Federal Circuit in the Shadow of the Solicitor General, 78 Geo. Wash. L. Rev. 518 (2010)), has—at SCOTUSblog—summarized the Court’s decision in Sandoz with his customary clarity. That’s no small feat, given the complexity of the biologics/biosimilars statute at issue in the case. More important than the summary, though, are Professor Duffy’s observations about the broader relationship between the Supreme Court and the Federal Circuit’s patent law decisions. First, observes Duffy, the Court is deciding more patent cases: “Now the court has been averaging over three cases per term for several years, and two more are already slated for argument next term. The lesson to patent lawyers is clear: Every significant issue in patent law could end up at the Supreme Court.” Second, the two courts are at odds in patent law: “the justices have not—to put it mildly—provided a ringing endorsement of the Federal Circuit’s patent jurisprudence. That provides an especially hard lesson for lawyers: They constantly face the challenge of preparing their patent cases for two audiences of appellate judges who often see the law in systematically different ways.”

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Posted by Joe Miller on June 17, 2017 at 02:50 PM in 2016-17 End of Term | Permalink | Comments (0)