Thursday, April 27, 2017
#I 🔫U: Considering the Context of Online Threats
Tomorrow, I'm fortunate to be travelling to the Yale Freedom of Expression Scholars Conference. I love the format of this conference, because you have to present someone else's paper and someone else has to present yours. This format really helps you understand where your draft is lacking and get creative ideas for filling the holes. My paper, written with UF Law/Journalism JD/MA Linda Riedemann Norbut, is called #I 🔫U: Considering the Context of Online Threats and advocates for a context defense to prevent overcriminalization of threats. Here's the abstract, in case you're interested. Email if you'd like to receive a draft. I've already found that having an emoji in one's article title is a hassle, in case you were contemplating using one. The hassle factor may be even worse if one chooses to use a gun emoji.
The U.S. Supreme Court has failed to address a number of fundamental questions regarding its true threats doctrine. Unanswered, for example, are whether lower courts should view threats from the vantage of the speaker, a reasonable recipient, a reasonable reader, or all of the above; what mens rea the First Amendment require before an alleged threat can be subject to criminal punishment; whether a threat must be specific to justify criminal punishment; and whether threatened violence must be imminent. The Court’s failure to provide guidance for the legal decision-makers who investigate, prosecute, and adjudicate threats is especially acute in the social media era: as billions of people have begun using social media for communications, alleged threats have grown massively. Meanwhile, the Court’s failure to clarify true threats doctrine is having real consequences for real people. This article illustrates by close examination of the case of a Texas teenager who made hyperbolic comments about shooting up a school and found out the hard way that legal decision-makers do not always apprehend how Facebook conversations differ from their offline counterparts. Using the Justin Carter case as an analytical springboard, this article proposes richer inclusion of contextual evidence in threats case to ensure that innocent hyperbole is not confused with culpable threats. The article compares social media speech with its offline counterpart, examining facets of social media that can make hateful and even terroristic speech potentially more common and more damaging to victims, as well as facets that can magnify the potential for a speaker’s innocent words to be misunderstood. This analysis suggest that it is impossible to correctly interpret social media speech without reference to contextual factors such as emojis or hashtags as well as the distinct discourse conventions within social media platforms; only by considering these and other contextual clues can legal decision-makers avoid imposing liability on innocent speakers for protected speech. This article therefore advocates creation of a procedural mechanism for raising a “context” defense to a threats prosecution prior to trial. Comparable privileges protect defamation defendants from having opinion misconstrued as defamatory and allow them to have their liability resolved at an early stage of litigation, often before they must undergo the anxiety and expense of trial. This article therefore proposes to give criminal defendants a new defense in threats cases: this defense will permit defendants to produce contextual evidence relevant to the interpretation of alleged threats for consideration by a judge at a pre-trial hearing. In cases where contextual issues cannot be resolved pre-trial, the context defense entitles a defendant to produce evidence of context at trial and have the jury be instructed regarding the critical role of context in separating threats from protected speech. Although the context defense will be especially helpful in social media cases, its use in all threats cases will provide an important safeguard against erroneous convictions of speech protected by the First Amendment.
More on summary judgment and qualified immunity
Following on my post on Monday's cert denial in Salazar-Limon: Justice Sotomayor questioned that denial in light of the Court's recent summary reversals in cases denying qualified immunity. It is notable for the coincidence that on the same day, the Court denied cert in Needham v. Lewis, a case in which a divided Sixth Circuit denied summary judgment in favor of the officer in a case featuring dashcam video. The majority insisted that a reasonable jury could interpret the video in competing ways (in the face of the dissent saying "That is not the video I have reviewed," not realizing that this is not her job on summary judgment) and that general principles clearly establish that fleeing a traffic stop, without more, does not justify deadly force. The denial also is surprising, first because the type of case the Court has been summarily reversing, and second because of the presence of video and the greater leeway the Court has allowed itself in video cases.
One interesting feature in Needham is that the defendant moved for summary judgment prior to discovery, with the video as the only thing in the record. The court declined to treat the video as one-sided. But perhaps officer testimony confirming the video would have placed the case more squarely within Scott and Plumoff.
Wednesday, April 26, 2017
"Gimme My Drugs"
My last post was a little depressing (even for me) so I thought I’d bring my blog stint to a close with another big event in the death penalty world this past week: the FDA’s final decision on 1000 vials of imported sodium thiopental.
To be (in the United States), or not to be? That’s been the question since 2015, when the drugs were confiscated by customs and border protection pursuant to an FDA-requested hold. The FDA issued its answer late last week—not to be—and on Monday, Texas said it would challenge that decision in federal Court. Gimme my drugs, now.
The backstory on all this is that the FDA is required to refuse entry to imports of “unapproved and/or misbranded” drugs (it originally tried to say that its duty in that regard didn’t apply to execution drugs, but a court in 2012 disagreed so here we are) and in 2015, the FDA warned states that importing the drugs from Harris Pharma, an Indian pharmaceutical company (kinda sorta, more on that in a minute) would be illegal.
Yet, they persisted. Arizona, Texas, and Nebraska bought the drugs from Harris Pharma anyway, so when they arrived at the border in 2015, they were confiscated. Each state paid Harris $25,000 for the sale.
My sense is that the FDA hoped that would be the end of the matter, but of course that was wishful thinking. Texas eventually sued, alleging that the FDA couldn’t hold the drugs without making a decision on the legality of their being imported. So the FDA made a decision, which brings us to where we are now.
The FDA has given several bases for its decision. The vials have “no recommended dose and offer no instructions for reconstituting the powder inside the vials” and “its labeling contains no precautions, contraindications, or warnings, or other information required in prescribing information for health professionals.” In short, it’s not just misbranded—it’s not branded at all.
And Harris Pharma is not an FDA-approved supplier of sodium thiopental. The last FDA-approved supplier of sodium thiopental stopped making it in 2011 for the very reason that states were using it for executions.
All that is well and fine—but the most interesting part of the story is the one that neither the FDA nor the states are talking about, and that’s Harris Pharma.
Harris Pharma is just a guy. His name is Chris Harris, and he has no pharmaceutical background whatsoever. Before he was Harris Pharma, he was working with the Mumbai-based Kayem Pharmaceuticals—not working for Kayem (despite showing off business cards that listed himself as Kayem’s “director”) but working with it. Kayem’s CEO says the company was looking to get into e-commerce, and that he was introduced to Harris online. He never met Harris, but they had a “commercial understanding.” That understanding soured when Harris sold 500 vials of Kayem’s sodium thiopental to South Dakota for executions (they expired without ever being used). That year—2011—Kayem and Harris parted ways, and Harris started Harris Pharma.
That’s the sum of Harris’s pharmaceutical experience. Before working with Kayem, Harris worked in a duty-free shop in the Abu Dhabi International Airport, and then held a handful of jobs at various call centers, staying for around a year at each.
Wait, there’s more. The location of Harris Pharma—where this pharmaceutical company’s manufacturing and distribution business is based—is actually just one of 61 offices on the 8th floor of an office complex in Kolkata. The office rental company representative who manages the property says that Harris doesn’t manufacture drugs in the rented office (it’s too small to accommodate the sort of lab equipment to manufacture pharmaceutical drugs) and that he only comes in 2-3 times a month. So where is Harris Pharma doing its business?
Harris Pharma has a second listed business location, the location Harris gave the DEA as an address (Nebraska too)—but that’s a residential apartment and he hasn’t lived there in more than 2 years. Harris’s landlord says he hadn’t paid rent or electricity bills in 7 months, and then just left.
Interestingly, Harris told a former neighbor that his job was manufacturing and selling “sexual feel drugs” on a website. Kayem Pharmaceuticals does sell drugs to “enhance male sexual performance” so perhaps Harris was selling Kayem’s performance drugs on the sly too.
This is Harris Pharma, the overseas supplier of the drugs that Texas, Nebraska, and Arizona claim that they are entitled to. It’s worth noting that both Texas and Arizona have secrecy laws—and Nebraska is debating one as I write—that would keep us from knowing about any of this if it hadn’t been for the FDA border spat and some good investigative reporting that followed.
I would probably find all this amusing if not for the fact that we’re talking about the state taking the life of one of its own citizens—the most serious and solemn task it can possibly have.
Problems of scope and nomenclature in nationwide injunctions
Judge Orrick in the Northern District of California preliminarily enjoined President Trump's Executive Order stripping "sanctuary" cities of federal funds. As per usual in these cases nowadays, Judge Orrick made the injunction "nationwide," rejecting government arguments that it be" issued only with regards to the plaintiffs." The court supported that conclusion by citing Califano v. Yamasaki for the proposition that the "scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff." The problem is that Orrick excludes the important next word in the quoted sentence--"class." Califano was a 23(b)(2) injunctive class action. Thus an injunction that prohibited enforcement of the challenged law as to multiple people was appropriate--because everyone in the class was a plaintiff. And it makes sense that the injunction should follow the plaintiff nationwide--if the government cannot enforce a law against a plaintiff (whether an individual or a municipality), it cannot enforce it regardless of where in the country the plaintiff goes.
This illustrates that the proper term for what the court did here is "universal injunction"--an injunction that covers the defendant's conduct (here, prohibiting enforcement of the EO) with respect to everyone, party or non-party. A "nationwide injunction," on the other hand, is an injunction that protects the appropriately protected persons (the plaintiffs) nationwide. The former, which is what courts have been issuing, is inconsistent with general principles of equity and the law of judgments, which limit the binding effect of a judgment to the parties. And Califano does not establish the contrary, because that was a class action, so the parties who could be protected by the injunction (consistent with the law of judgments) included everyone in the class. In other words, Califano involved a nationwide injunction for a nationwide class. It did not involve a universal injunction protecting everyone in the universe, even non-parties.
And this does not seem a situation in which the injunction must protect non-parties to be given its full scope. To protect Santa Clara and San Francisco from enforcement of this unconstitutional order, it is not necessary that the court also protect other sanctuary cities from enforcement. Those cities can bring (and some have brought) constitutional challenges prohibiting enforcement as to them, now with the benefit of Santa Clara v. Trump as persuasive precedent. Other than a desire for simplicity, there is no reason that the first decision on a legal issue should also be the last on the way to SCOTUS. Rather, it runs contrary to the assumption that multiple lower courts and multiple lower-court judges are going to take passes at legal issue before those issues reach SCOTUS.
The less said about the White House statements, which drips not only with contempt for the judiciary (a well-established theme), but a misunderstanding of how the federal judiciary and constitutional litigation operate (one listserv member wondered whether a competent lawyer came anywhere near these press releases. But one notable point: The statement uses some form of the phrase "single unelected district judge" three times. I know the White House is engaging in demagoguery and not series legal argument there.
But let's take it at its word--the problem is the injunction being issued by the single district judge. What would the WH like to do about that? Return to the old system of 3-judge district courts for all actions seeking to enjoin enforcement of federal laws? Amend Article III to give SCOTUS original jurisdiction of actions challenging the constitutionality of federal law? Always have the government win because everything the government does is constitutionally valid? (actually, that is the preferred option). Always have the government win in the lower courts? This may be what disturbs me the most about the administration's statements towards the judiciary--they reflect not substantive disagreement, but disregard (or lack of understanding) of the judicial processes that produce constitutional decisionmaking.
Better Call Saul does professional responsibility
If Season 1 of Better Call Saul brought us impact civil litigation, and Season 2 brought us competition for clients, Season 3 is poised to bring us the attorney-disciplinary process. As things stand entering Episode 3-04, Chuck baited Jimmy into first confessing to tampering with some documents, then to committing a series of crimes, including felony breaking-and-entering. And the plea deal the prosecution offers Jimmy (at Chuck's manipulative suggestion) is pretrial diversion in exchange for a confession, which will be presented to the State Ba. The premise is that confession of a felony would mean disbarment. So we seem to be gearing up to see Jimmy litigating an attorney-disciplinary proceeding in the coming weeks.
Is confession to a felony per se, unaccompanied by jail time, grounds for disbarment (as opposed to suspension or reprimand)? And if the goal is to get Jimmy disbarred, wouldn't tampering with documents in a legal proceeding be stronger grounds than criminal charges resulting from a dispute between two brothers?
I look forward to seeing it play out, although we know the outcome--Jimmy will continue practicing law, just not as Jimmy McGill.
A Bipartisan Federalism Alternative?
I am late to the conversation, but at the end of last year and early this year there was a discussion about progressive interest in federalism during the Trump Administration. The dialogue was rich and substantial, and some good posts to consult as part of that discussion were those by Rick Hills here, Heather Gerken here, and Ilya Somin here. One of the topics of contention was whether federalism had or could attract bipartisan support in hyper-polarized times.
I want to present an alternative institutional arrangement that has attracted bipartisan support: decentralizing federal power. I have written about this previously, and blogged about it last month here, here and here. Several Republicans in Congress have introduced legislation to address this issue, and last week prominent Democratic Representative Tim Ryan from Ohio introduced related legislation (even though previous votes on this issue had been along party lines).
The Republican proposal—unfortunately called the “Drain the Swamp Act of 2017”—suggests that 90 percent of federal officials in Washington D.C. be relocated and relatively soon. This is a very bad idea. While I have argued that too many federal officials are in Washington, moving this many this fast is a very bad idea. The Ryan proposal seems more sensible, asking for a commission to consider the issue and make suggestions.
One of the issues I have addressed in past writings and am addressing in current writings is how decentralizing federal power is both a compliment and substitute to federalism. The comparison is particularly instructive now, given that decentralizing federal power could attract bipartisan support in a way that federalism might not be.
Still The People's Justice?
A few years ago I wrote an essay labeling Justice Sonia Sotomayor "The People's Justice" for her interest in and capacity to communicate to and with larger public audiences. While I was primarily talking about her communications with the public outside of her judicial opinions, her dissent from the Court's denial of cert in Salazar-Limon v. City of Houston is notable for its expressive effect. It has received a lot of media coverage already, including from places not normally known for their coverage of Court opinions.
Tuesday, April 25, 2017
Salazar-Limon and the expansion of summary judgment
On Monday, SCOTUS denied cert in Salazar-Limon v. City of Houston, a § 1983 action arising from an officer-involved shooting of an unarmed person. The Fifth Circuit granted summary judgment in favor of the officer, seeming to credit the officer's version of events over the plaintiff's version, even without video. It also touched on the "he was reaching for his waistband" defense that has become a mainstay in these cases. The case was carried over six times before cert was denied--apparently, because Justice Sotomayor was writing a dissent from denial of cert for herself and Justice Ginsburg, which prompted a concurrence in denial of cert by Justice Alito, joined by Justice Thomas. I am quoted in an Atlantic piece on the case.
Of bar passage, opportunity, and collective effort: a perspective on a very difficult issue of great importance (and about which reasonable people can and do differ)
In an effort to turn heat into some light, let me try my best to clarify my thinking on an issue that has engaged many well-meaning law profs (which is not to say that all law profs so engaged are well-meaning; I'll leave it at that). No special knowledge or authority from me of course, but just one law prof's opinion:
1. I remain convinced that the effort on the part of the ABA Section on Legal Education to strengthen standards for, and thus the accountability of, law schools is on the whole a good thing. Indeed, it is the responsible thing to do, given what it is a very difficult, and often quite tragic, predicament facing law students with unconscionable debt, thin employment prospects at least in the short term, and not the credential necessary to enter into the legal profession as a lawyer. So, the effort is an important one;
2. Furthermore, this effort is not a racist one, regardless of occasional, irresponsible comments along those lines. Does it have a disparate impact on racial minorities? Acknowledging the pertinence of the question, that would seem a rather severe stretch. Ask yourself: If the bar exam itself is not a violation of the Civil Rights Act because members of racial groups pass in much lower numbers (itself a matter of serious, pressing concern and unacceptable in a profession that rightly aspires to be inclusive in all aspects), then how is it that a standard for bar passage that applies across all law schools would be such a violation?
3. To be sure, one doesn't have to reach disparate impact law to still worry about the effect of this heightened standard on opportunities for members of minority groups. I, too, worry about that. On a professional level. On a personal level. From the perspective of someone who would not be where I am today without structures of access, commitment to inclusion at my law school and large, access-focused public university in southern California and, yes, affirmative action. But I worry equally, as I wrote with Dean Craig Boise from Syracuse several months ago, about the deep predicament and often dire circumstance of disadvantaged students coming to law school with a promise of success, only to find themselves without adequate support, deep in debt, and essentially forgotten by law profs and administrators whose interests are shaped by other considerations and demands. Regulation is surely no panacea, but the well-meaning effort to hold accountable law schools through the imperfect, but best available, mechanisms of the current bar exam is an important one. And legal educators would do well, in my view, to engage in constructive, data-driven, appropriately humble conversations about how best to achieve the fundamentally congruent goals of opportunity and educational adequacy;
3. Thanks to the efforts of many educators and associations, there is progress in this direction. And we should both note it and applaud it. For example, the California bar examiners should be commended for heeding the call of California law deans and others to look anew at the bar cut score and to the ways in which the current structure is inhibiting access and opportunity. This is not just a "California problem," but is a problem more generally for our professional nationally;
4. The continuing expansion of the UBE (along with attention to a more consistent cut score nationally) promises to help law students, this by broadening opportunity to look at many more law schools across the country, those who are able to provide a comprehensive curriculum without the barriers of entry that come from "teaching to the bar;"
5. The AALS, under Judy Areen's wise leadership, has undertaken a remarkable "Before the JD" project, to gather information about why, other than the powerful impact of cost and debt, law school has eroded so significantly in popularity. I hope and expect that we will learn much useful from this study, including how to think about outreach and inclusion for pre-law students of color;
6. Arizona and Harvard's decision to offer the GRE as an alternative test to the LSAT is intriguing, and it would seem promising at least on a preliminary glance. Both law schools maintain that this broadening criteria for admission will help with access. Moreover, if it destabilizes to some degree the large impact of USNews insofar as the LSAT becomes less of a barometer, that could and should help with diversity as well.
Alongside these very constructive reforms, danger looms large. The potential defunding of the Legal Services Corporation to opportunity is a serious threat on a more global level. So too is the threat to the Interest Based Repayment program which has helped public interest grads in meaningful ways.
But not to meander to far from the point: The energy and momentum behind regulation and oversight of law schools whose track record in assisting their graduates of color with their academic and employment efforts is troubling is a positive development. I joined a letter from the AALS deans steering committee asking the ABA Section to take some more time to look closely at the data and join in a conversation that might yield a regulatory outcome that would be even better and would garner more support. That is not inconsistent with the position in favor of more accountability. And, indeed, the revised standard on the table is to me clearly better than the status quo.
The important problems of access and opportunity by students of color -- including first generation college students like myself and many of my students, here at Northwestern and at other law schools at which I have had the privilege of teaching -- cannot be escaped or evaded by resisting efforts at regulation and accountability. Such evasions are fundamentally unfair to the individuals whose lives and careers are at stake and often in peril.
Getting Civ Pro mileage out of Trump
For my in-semester essays in Civ Pro, I got a lot of mileage out of Zervos v. Trump, the defamation lawsuit filed by the former Apprentice contestant who alleges Trump sexually assaulted her (the allegation is that when Zervos went public with her allegations and Trump denied them, he called Zervos a liar, constituting defamation per se).
I got four essays out of the basic lawsuit, with only a little bit of elaboration beyond the Complaint itself and only a few made-up or altered facts, as necessary: 1) Whether another of Trump's sexual-assault accusers (I used Natasha Stoynoff, the People Magazine journalist) could join as a plaintiff; 2) How Trump could raise a defense of presidential immunity (that is, the difference between 12(b)(6) and 12(c) for affirmative defenses--I moved the case to federal court); 3) Whether Trump could remove to federal court in New York (a test of the Forum Defendant Rule--I tweaked the facts and had the lawsuit filed on January 23); and 4) Whether Zervos could have filed the lawsuit in her home state of California rather than New York (a test of the Effects Test for personal jurisdiction, with some internet thrown in).
All-in-all, a helpful teaching case, in a framework that students would be interested in and with which they would be somewhat familiar. And, at least so far, no complaints from students about asking them to write about Donald Trump and his misdeeds, even having to answer one question as Trump's counsel.
I will leave with a question for the Civ Pro types: What would your conclusion be on the P/J-in-California question? Based on the allegations in the Complaint, Zervos is from California and one of the sexual assaults that Trump denies occurred there (the other occurred in New York). But Trump's denials of the assault accusations (i.e., the defamatory statements) were made either via Twitter directed at the world or at campaign rallies in states other than California, with no indication the statements made it into California through his efforts. And what makes Trump's denials defamatory is that he is denying Zervos' statements about the assaults, which were not made in California, not the California-based assault itself. My initial thought was that there would be no jurisdiction in California. But when I sat down to write the sample answer reaching that conclusion, I moved in the other direction (I ended up writing two sample answers, one going each way). Thoughts?
If my initial conclusion was wrong and California would have jurisdiction over Trump, it raises some interesting questions and ties personal jurisdiction to other, strategic issues for the plaintiff. If there is jurisdiction in California, why did the plaintiff go to New York, especially New York state court? Trump is certainly no less popular in New York City than in California (although perhaps not Orange County, where Zervos lives). One answer may be that she wanted to keep the case in state court--because of the Forum Defendant Rule, Trump (almost certainly a New Yorker) could not remove to federal court in New York, although he could remove to federal court in California. But to the extent any temporal presidential immunity exists, it would be in state court (an issue the Court in Clinton v. Jones left open), while it is clear that no such immunity exists in federal court. That being so, why would Zervos pick state court over federal court?
Monday, April 24, 2017
JOTWELL: Thornburg on Hoffman on plausibility pleading
The new Courts Law essay is from Elizabeth Thornburg (SMU), reviewing Lonny Hoffman, Plausible Theory, Implausible Conclusions (U. Chi. L. Rev. Online), in which Hoffman responds to William H.J. Hubbard, A Fresh Look at Plausibility Pleading, (U. Chi. L. Rev.).
As Arkansas Doubles Down on Death, a Look at the First Four
Assuming all goes according to plan, Arkansas will conduct 2 executions tonight—the nation’s first double-execution in over 15 years.
For those just catching up, tonight’s events follow what was originally the state’s plan to execute 8 people over the course of 11 days.
Of the 4 men scheduled for execution last week, 2 had their executions stayed—one is a schizophrenic, the other has organic brain damage and is intellectually disabled—and a third man’s death sentence was recommended for commutation to life without parole by the state’s parole board. This was the first time that the Arkansas parole board has recommended commutation since 1990, a decision made in part because this man was one of several people who participated in an attack on a teenager—described as “the tragic result of a group dynamic gone wrong”—and he was the only one to receive the death penalty. He was 20 years old at the time. The (now retired) judge from the man’s trial wrote to the parole board that his death sentence was “excessive punishment” in light of the facts and the distinctly cruel environment in which he was raised.
That leaves the fourth man, Ledell Lee, who was executed last Thursday night—Arkansas’s first execution since 2005. Lee had protested his innocence from the day he was arrested until the night he was executed, 24 years later. The Innocence Project had taken his case and fought for DNA testing, which the State of Arkansas fought tooth and nail to deny and which he never did receive. In a dissent to the Arkansas Supreme Court’s decision denying his stay last week, one judge wrote that DNA testing was a “modest request” in light of the fact that the hair evidence used against Lee at trial “tilted in the State’s favor a very weak case based entirely on circumstantial evidence.” For his last meal, Lee chose Holy Communion.
Both of the men who Arkansas is planning to execute tonight have admitted their guilt and taken responsibility for their crime. Maybe tonight Arkansas will finally give supporters of the death penalty executions they can feel good about. That’s hard to say of the first Arkansas four.
Counter-speech or heckler's veto?
There are some troubling aspects to this edition of FIRE's So to Speak podcast on the Manhattan Institute's Heather MacDonald being a victim of a heckler's veto. MacDonald was shouted down at Claremont-McKenna College, where she had been invited to give a talk on her new book on policing. In the interview, she describes speaking to an empty room, because student protesters outside had blockaded the entrance, and the talk ending early because the university refused to let police disperse the protesters. MacDonald wrote about her experiences.
My free-speech positions generally align with FIRE's, so I was surprised by the problems I found with the discussion:
1) It does not appear they have grappled with the protected nature of some of the protesters' activities (MacDonald allowed at one point that they were "arguably" within First Amendment protection). All heckling seems to constitute a heckler's veto in their telling. Except heckling a speaker is constitutionally protected, including to the point of trying to shout down or drown out that speaker, with the hope that she will give up and go away. (I like to point to the scene in Casablanca with the competing songs). So is asking snarky questions during the Q&A. So is pounding on drums and chanting. There is a line to be drawn somewhere and I admit to not knowing precisely where that is. Blockading the entrance or pounding on the glass is over the line. So is invading the speaker's space or trying to grab the microphone. But shouting from across the way must be protected. And there is an ocean between those.
The undercurrent to the interview is that the First Amendment (as opposed to civility or a Platonic ideal of polite exchange of ideas) requires those who oppose ideas to allow those ideas a polite hearing. But this privileges the position of the invited speaker (MacDonald) to say what she wants and she wants to, imposing on others to give her a polite listen and only engage in counter-speech (supposedly the remedy to be applied) on her terms. Rather, counter-speech, no less than "original" speech, may be vehement, caustic, and unpleasantly sharp. Counter-speech, no less than "original" speech, can produce the verbal tumult, discord, and dverbal cacophony that is not a sign of weakness but of strength.
Again, do not hear me as saying that the protesters were entirely in the right. Only that there is a First Amendment element that went almost entirely unacknowledged throughout the interview and MacDonald' narrative.
Sunday, April 23, 2017
The hubris of the unknowing
Whittier is closing its law school, as all of us in our corner of the academic and profession universe now know.
I do not work, and have never worked, at the Whittier Law School, whether as a faculty member, a senior administrator, or in any other role. I am not an alumnus, nor am I affiliated in any way with the university. Therefore, whatever I might think about the law school's capacity to survive or even thrive in this difficult climate, I would not presume to know nearly enough to opine about this issue in any public fashion.
But this does not appear to deter various pundits -- Prof. Stephen Diamond most recently.
What makes knowledgeable professionals so confident that they would quickly rush to judgment? Whittier's sudden closing is obviously a tough thing for current students and faculty. Perhaps the decision will be unraveled in the face of public pressure or via littigation. Yet there seems precious little basis to jump into a matter whose complex issues are essentially private, despite the efforts of many in and around the school to make this into a public spectacle. Perhaps bloggers should neither aid nor abet these efforts.
The hubris of the unknowing.
Justice Alito, funny man
Well, perhaps Justice Alito is looking to fill-in the gap. Alito was, relatively speaking, a laugh riot last Monday. During the argument in Perry v. MSTB, Alito got laughs for asking who had written the CSRA, whether it was someone who enjoyed pulling wings off flies. And in the subsequent argument in Town of Chester v. Laroe Estates, Alito got laughs with an extended riff on how defendant standing makes no sense, that a defendant would be perfectly happy for the court to tell it that it must leave the case for lack of standing.
Thursday, April 20, 2017
No Simple Algorithm
In his article Libertarian Separation of Powers, Aziz Huq asks whether a libertarian should prefer one instantiation of interbranch structure over another. His answer is no: What institutional arrangements maximize liberty is deeply contingent. “Confident prediction and prescription require a high degree of historical and circumstantial tailoring. There is no facile algorithm.”
In this post, I’ll flesh out the point further by turning to the current version of the Fairness in Class Action Litigation Act ("FICALA"), Congress's latest attempt at class action regulation. To blog-simplify, I’ll assess the Act from the standpoint a crude libertarian—someone whose strong preference for private ordering leads him to embrace very crude constraints on state intervention in the marketplace.
The virtue of this heuristic is not that it tells us whether reforms in the Act are good, bad, or indifferent, but that it makes the following claim at least colorable: Even confined to a single category of Rule 23 class action, Rule 23(b)(3), it’s not clear that there’s one set of optimal libertarian class certification rules.
I’m going to focus on one portion of the FICALA: its provisions on partial certification or “issue classing.” Partial certification, grounded in Rule 23(c)(4), involves slicing class claims into their component issues and then certifying discrete common issues (most often, issues related to primary conduct or general causation), leaving individualized issues relating to specific causation and damages calculation to later proceedings brought by individual class members.
FICALA, following circuits like the Fifth, forbids partial certification—class certification, it provides, should hinge on the certifiability of the class claims considered as a whole. This turns Rule 23(c)(4) into the most banal of housekeeping provisions—one that allows the court to segment and hold separate trials on a series of common issues in a thoroughly cohesive class.
How might the crude libertarian think about FICALA's partial certification ban?
Wednesday, April 19, 2017
Judge John T. Noonan, Jr., RIP
My Mirror of Justice colleague and Villanova prawf Patrick Brennan posted over there that Judge John T. Noonan, Jr., of the Court of Appeals for the Ninth Circuit, has passed away at the age of 90. I was blessed with the chance to learn from him, and to get to know him reasonably well. (He visited my law school, during my first year, to speak about the then-current-and-controversial proceedings surrounding and leading to the execution of Robert Alton Harris.) He was not only a thoughtful and conscientious judge, and a prolific and prominent scholar; he was a really and inspiringly good and faithful person. If you've never read Persons and Masks of the Law (here), check it out. Requiescat in pace.
In honor of national haiku poetry day
Problems to be solved
New legal education
Windows not boxes
Law's creeping mission
Turning lawyers inside out
Changing the frameworks
Must meet our changing landscape
Modern modes prevail
Knowledge so diverse
Law as just one part
Demanding change in our time
Teaching law for real
Scholars in situ
Researchers ever searching
New wisdom at hand
Tuesday, April 18, 2017
SCOTUS on inherent powers
I have a piece at SCOTUSBlog on Tuesday's unanimous decision (8-0, as Justice Gorsuch was not on the bench when the case was argued in January) in Goodyear Tire & Rubber v. Haeger, holding that there must be a but-for connection for an award of attorney's fees for bad-faith conduct under a federal court's inherent powers. The court remanded to determine whether Goodyear waived its challenge to a base award of $ 2 million or whether the district court must redo the entire fee calculation. I am a bit surprised by the outcome, although the Court announced a legal standard broad enough to support a similarly large award, if the court makes appropriate findings.
Notes on Monday's SCOTUS arguments
I covered two of yesterday's arguments for SCOTUSBlog--in Perry v. MSPB (considering where review is had for MSPB decisions) and Town of Chester v. Laroe Estates (considering whether intervenors must have standing). Some additional thoughts below.
First, the story for many commentators about Perry was how engaged Justice Gorsuch was with both sides in the first case on his first argument day (it is not clear from the transcript, but reports are he asked his first question about ten minutes in). What has been discussed less is that Gorsuch seemed poised to rejected everything the Court had said previously about mixed cases. While the Court as recently as five years ago in Kloeckner v. Solis had stated that mixed cases go entirely to a district court, Gorsuch pushed both sides to the conclusion that the CSRA does not authorize district courts to review MSPB decisions and that mixed cases must be split up, with discrimination issues going to the district court and CSRA issues to the Federal Circuit. It is not clear where and whether he will follow that position. I previously, mainly jokingly, predicted that Gorsuch would write Perry, because it seemed the kind of case assigned to the junior-most Justice and I expected it to be unanimous, in light of Kloeckner. I may prove partially correct about him writing--but it may be a solo dissent.
From Jotwell: "What Will the Federal Government's Resistance to President Trump Look Like?"
My latest contribution to the Constitutional Law section of Jotwell is this piece, titled "What Will the Federal Government's Resistance to President Trump Look Like?" It follows in some senses from my earlier Prawfs post titled "Will the Civil Service Revolt, or Work to Rule, in a Trump Presidency?" It also emphasizes why I think Prof. Jennifer Nou has been doing great and useful work on this subject, and why I think the earlier article by Jessica Bulman-Pozen and David Pozen on Uncivil Obedience is useful and newly timely, even if I also spend a good deal of time in the jot on that article's critics. Some excerpts:
How should one respond to injustice, illegitimacy, or broader threats posed by a democratic governmental regime? Although readers may lump these items together, the commas and “or” matter here, for they are not all the same and the proper response to each may differ. One common answer to some or all of them is civil disobedience. Another, rendered more problematic by the democratic nature of the regime and perhaps by the relative lack of courage of the professional-managerial class, is open rebellion. A third possible response, Jessica Bulman-Pozen and David E. Pozen argued in a valuable, important, and still under-examined 2015 article, is uncivil obedience: a conscientious, communicative, reformist act of strict “conformity with . . . positive law,” “in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied.” . . .
Behind all this, obviously, is President Donald Trump: that extraordinary figure whose extraordinary actions have called forth—demanded, many would insist—extraordinary responses from citizens and scholars alike. Many of the most prominent responses to the new regime have come from citizens, albeit often fairly elite ones: marches, “days without [X],” lawsuits, and the usual collection of group letters, petitions, and op-eds. In that context, it is clearer that thinking about modes of response and resistance to this administration, including resistance within the executive branch, has a strong constitutional law component. (Anyway, as Adrian Vermeule recently observed, administrative law “is sublimated constitutional law just as constitutional law is sublimated theology.”)
Invoking Trump as a justification will no doubt win instant forgiveness for skirting or breaking various “rules,” both in the real world and in academia. As these thoughtful articles—two of them fortunately written before a sense of Trump-derived urgency began shaping and distorting public and academic discourse—demonstrate, however, it is unclear when, whether, and how such behavior should be treated forgivingly. Strategies of resistance shaped in response to exigent circumstances do not necessarily disappear when those circumstances do, and in the meantime they encourage retaliatory counter-strategies. And many citizens’—and academics’—passionate dislike of the administration may lead them to accentuate the positive aspects of these rule-breaking strategies while minimizing or ignoring the negative. This is thus simultaneously a good, bad, and necessary time to think both about both how resistance forms not only to but within the very organs of a constitutional regime, and about the potential dangers of those strategies. . . .
[T]hese resistance practices demand wide-ranging academic analysis, of a sort that neither ignores nor is driven solely by present exigencies . . . [W]e should be grateful that the study (and critique) of uncivil obedience came along when it did—“BT,” as it were—and that Nou continues the job in a calm fashion “AT.” We need much more of this.
On the Execution Saga in Arkansas
Honk if you think what’s happening in Arkansas is just plain weird.
Two drug companies filed suit, they want their drugs back.
Arkansas says it’s not telling whether it even has them. It’s a secret.
A state trial court in Arkansas issued an order to prevent Arkansas from using the drug companies’ drugs (if they are).
Then the judge joined an anti-death penalty demonstration in front of the governor’s mansion, lying on a cot that was supposed to be a gurney while people with picket signs smiled in the background.
Then a federal judge issued an order staying all executions because the state’s viewing policy allowed only one lawyer to be present for an execution, and if a lawyer had to rush out to file an emergency petition, the inmate wouldn’t have a lawyer to witness his execution. And also, the court said the inmates may well prevail on a challenge to Arkansas’s lethal injection protocol.
Then the Eighth Circuit said that was wrong, on both counts, but with a dissent.
Meanwhile, the drug companies say they don’t need the temporary restraining order from the state trial court because of the stay in federal court.
But oops, that’s gone—and so is the state trial court judge. He was taken off the case for joining in the demonstrations.
I’m exhausted just trying to catch up with it all. And I haven't a clue as to what’s going to happen with Arkansas’s executions, but I'm betting it's going to be weird.