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.

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Posted by Rick Hills on June 23, 2017 at 05:13 PM | Permalink | Comments (2)

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 (7)

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 | 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 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 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)

Friday, June 16, 2017

JOTWELL: Leong on Mika on gender disparity before SCOTUS

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court (Am. U. J. of Gender, Soc. Pol'y & Law 2017), which measures the gender disparities among SCOTUS advocates.

Posted by Howard Wasserman on June 16, 2017 at 09:50 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Asymmetric Geographical State Standing

Maryland and the District of Columbia have sued President Trump for failing properly to address many of his business connections.  The standing of state governments to challenge federal actions in federal courts has become an active and controversial area of constitutional law.  Texas sued the Obama Administration about its deferred action order regarding undocumented immigrants.  Hawaii, Oregon and Washington have sued the Trump Administration over the travel ban.  The scholarship on these issues has started to emerge and consider the nuances of these issues.  The question I want to consider ever so briefly in this post is whether state standing to challenge federal action has a geographical dimension.

Not every state will be injured at all, or the same amount, by federal action.  The Fifth Circuit’s decision in Texas v. United States noted that “at least in Texas . . .  the causal chain” between federal action and state harm was particularly significant.  Because the actions of the Obama Administration “would enable at least 500,000 illegal aliens in Texas” to prove lawful residence and potentially receive a license, Texas had standing.  In Massachusetts v. EPA, the Supreme Court mentioned the “Massachusetts coastal land” that would be affected by “global sea levels.”

One of the reasons why state standing could be asymmetric is geographical.  A state’s location can affect whether and how much federal action affects its interests.  If Texas was not a big, border state, the number of driver’s licenses it would be forced to issue could be dramatically less.  If Massachusetts was landlocked, it would not have “coastal land” affected by global sea levels.  If the State of Washington in Washington v. Trump did not have internationally oriented universities (particularly because of their ties to Asia), then state interests derived from “assert[ing] the rights of their students” could be less compelling because there would be fewer international students.

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Posted by David Fontana on June 16, 2017 at 09:42 AM | Permalink | Comments (0)

Thursday, June 15, 2017

SCOTUS Symposium: Peña-Rodriguez v. Colorado

Even in what David has rightly called “not a particularly important term,” there are some cases that stand out. One case that I suspect will have long-lasting influence is Peña-Rodriguez v. Colorado, decided earlier this spring on March 6.

The case dealt with extreme racial bias in the jury room—what Justice Kagan referred to as “the best smoking-gun evidence you’re ever going to see about race bias in the jury room.” The jury had struggled with in reaching a verdict in a sexual assault case. One juror stated that he believed the defendant was guilty because “Mexican men” have “a sense of entitlement” and a “bravado” that makes them think they can “do whatever they want” with women.

But because that evidence dealt with confidential juror deliberations and was not disclosed until after the jury had reached its verdict, the Colorado courts held that this statement could not be used to impeach the jury’s verdict under CRE 606(b), and the defendant’s conviction should stand.

In a 5-3 opinion authored by Justice Kennedy,

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Posted by Cassandra Burke Robertson on June 15, 2017 at 10:57 PM in 2016-17 End of Term | Permalink | Comments (2)

SCOTUS Symposium: Is it unethical to ghost-write a brief in opposition?

As we await the release of more opinions and orders next week, I wanted to write out an argument I've been developing for some time about the practice of ghost-writing briefs in opposition to certiorari. In short: although it is widespread, I think the practice is harder to defend than many think, and raises serious issues that I do not regularly hear acknowledged.

For the unfamiliar, the basic issue is this. Oftentimes a client will want to retain expert Supreme Court counsel at the petition stage, but would like to keep this a secret. In particular, the client wants the brief in opposition to be written by an expert, but doesn't want to "tip off" the Court that they've retained that expert—the theory being that the Court will be more likely to grant cert if they know an expert has been retained on the opposing side. So they have their expert write the brief in opposition, but deliberately omit her name from the filings, to try and trick the Court into believing (falsely) that the expert was not involved. The ideal outcome, from the client's point of view, is that the Court wrongly believes the expert was not involved and so denies cert when it would otherwise have granted, allowing the client to preserve a victory that would otherwise have been at risk had the Court been made aware of the facts.

I have a problem with this practice, because I have a problem with lawyers lying to courts. To be sure, this practice does not involve any outright misrepresentation, but of course it can also be a lie to deliberately omit information when the purpose is to cause a person to misunderstand the truth. That is why, for example, the ABA's model rules of professional conduct provide that "there are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation." And the stated purpose for omitting the name of the expert is precisely because the client does not want the Court to know the truth—indeed, the client's entire object is to create a false impression and so to influence the Court's decision-making process.

But fishermen worship sea gods, and the business of ghostwriting pays a lot of people's mortgages. As a result, my argument has not met with universal agreement. I have heard several genres of responses, which I will catalog and answer after the jump.

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Posted by Ian Samuel on June 15, 2017 at 07:05 PM in 2016-17 End of Term | Permalink | Comments (21)

Responses

A response to two unrelated things, thrown into one post.

1) David discusses the "lower-court moment," in which lower courts are flexing their muscles and writing "aggressive opinions garnering public attention." Two responses. First, we saw the hints of this in the marriage-equality litigation, particularly with respect to decisions to stay (or usually not stay) injunctions, as Josh Blackman and I described. SCOTUS backed away from its typical role as "traffic cop" on constitutional issues and many lower courts ran with that. Second, the media environment contributes to this--there are so many more and different media outlets, some of which are dedicated to discussing high-profile political litigation from its earliest stages, leading to more coverage and more public awareness of what happens in the lower courts.

2) Gerard Magliocca considers that we lack a quick way to repopulate the House in the event of a mass-death event (UA 93 making it to the Capitol or an extreme version of yesterday's shooting). Proposals after 9/11 to amend the Constitution to allow for temporary House appointments in some circumstances never went anywhere; Gerard wonders whether it was because election of House members is sacrosanct or because the urgency was missing because the event was too far-fetched. I had the fortune to participate in some of these conversations, in my scholarship and in work the AEI's Continuity of Government Commission. Jim Sensenbrenner, who in the early 00's chaired the House Judiciary Committee, was steadfast that House members must be elected. And he was immovable on that point. The House did at least add a special quorum rule, which would allow a Rump House to conduct business until enough elections can be held. It does not get at the democratic problems of such a small body enacting emergency legislation, but at least there is a body to act.

Posted by Howard Wasserman on June 15, 2017 at 10:36 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Remedying Removal: Mueller and the CFPB Case

Many commentators have discussed whether President Trump could lawfully fire Special Counsel Mueller, despite a DOJ regulation providing that the special counsel may be removed only for cause by the Attorney General. But even if the president lacked lawful authority to remove Mueller, would any meaningful judicial remedy follow? Remarkably, the DC Circuit recently discussed this general issue during the en banc oral argument in the CFPB removal case.

Continue reading "Remedying Removal: Mueller and the CFPB Case"

Posted by Richard M. Re on June 15, 2017 at 08:32 AM | Permalink | Comments (4)

Wednesday, June 14, 2017

Remand in Haeger v. Goodyear

I covered Goodyearv. Haeger for SCOTUSBlog earlier in the Term, when the Court held that bad-faith attorney's fee sanctions must satisfy a but-for causation requirement. SCOTUS vacated the award (of $ 2.7 million) and remanded to the Ninth Circuit to decide whether Goodyear had waived its challenge to anything beyond $ 700,000 of the award. Last week, the Ninth Circuit remanded to the district court to redo the sanctions analysis, explicitly applying a but-for cause standard. Judge Smith dissented from the remand. He argued that the record as to waiver was complete and that the court of appeals could decide the issue. He suggested that there was a waiver. And he opined on why the $ 2 million award satisfies the but-for standard SCOTUS introduced.

Posted by Howard Wasserman on June 14, 2017 at 11:24 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Vehement, caustic, and sometimes unpleasantly sharp

This is correct.

Posted by Howard Wasserman on June 14, 2017 at 05:50 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

The Lower Court Moment

The first months of the Trump Administration have been marked by lower federal courts receiving as much attention as they have ever received.  The Supreme Court takes longer to hear cases from a new administration than do lower courts as these cases work their way through the judicial pipeline.  The media has tried to gesture at Supreme Court cases related to what the Trump Administration is doing, but the relationship is purely indirect at this point.  Even if the Court had wanted to be involved last year and this year, the untimely death of Justice Antonin Scalia and the refusal to consider Merrick Garland meant the Court was not hearing cases and/or not deciding cases because it was deadlocked.  As this blog considers what this Supreme Court term means, the answer is likely to be that this is not a particularly important term, particularly given how little it means to what is happening in the other branches.

That leaves the lower federal courts to enter the judicial void.  District courts and courts of appeals have decided landmark cases related to the travel ban and to sanctuary cities.  Prominent lower court judges like Alex Kozinski and Stephen Reinhardt have used the occasion of their decisions related to actions by the Trump Administration to write aggressive opinions garnering public attention.  President Trump has been critical of the “political” nature of the courts, but so far he mostly means the Ninth Circuit.  One implication of this is that potential threats against judicial power are not peer-to-peer.  President Trump heads the executive branch but is not attacking the apex part of the judicial branch.

Posted by David Fontana on June 14, 2017 at 02:56 PM | Permalink | Comments (3)

Against Type Briefs

One of the more powerful and unusual tactics in litigation against the Trump Administration could become the “against type” amicus brief.  Filing an amicus brief joined by Republicans critical of the Trump Administration and with some claim of expert knowledge made by these Republicans related to the constitutional issues can be a powerful tactic to use in courts.  As an initial signal that this is correct, notice the role that amicus briefs questioning the national security rationale played in debates surrounding the opinions and even sometimes in the opinions themselves in the cases that worked their way through the Fourth and Ninth Circuits.

When a speaker expected to argue one side argues the opposite side, it can be an effective argument.  The media will devote more attention to the argument.  Consider, for instance, all of the attention paid to the argument made by former Republican Representative Bob Inglis, who led impeachment efforts against President Bill Clinton, that Trump has committed more problematic actions than Clinton.  Citizens looking for “source cues” about what the Republican Party position is on this issue will not just be looking to the Trump Administration as guidance as to what to think about the issue being litigated.  There is plenty of evidence that citizens use this mechanism to decide how to react to legal matters just like any other matter.  If Justice Clarence Thomas argues something, for instance, the reaction will be different to his argument than it would be to the exact same argument made by Justice Ruth Bader Ginsburg simply because the argument was made by Justice Thomas.  Judges who are particularly persuaded by lawyers with their same inclinations can be persuaded by seeing an amicus brief filed on behalf of a lawyer with whom they agreed in prior matters.  Within the legal community, there are certainly many conservative lawyers and judges who were and remain very skeptical of Trump, and for that audience amicus briefs filed by conservatives against Trump could be powerful signals that there are conservative concerns based in the Constitution with the actions of the Trump Administration.

This suggests a litigation strategy for other organizations challenging actions by the Trump Administration: find Republicans who agree that the actions by the Trump Administration pose constitutional problems and have them sign on to legal efforts to challenge those actions.  If it passes, find conservative federalists to agree to challenge problematic portions of the repeal of the Affordable Care and Patient Protection Act.  Find conservative federalists devotees to agree to join challenges to the Trump Administration’s sanctuary city actions.

Posted by David Fontana on June 14, 2017 at 04:55 AM | Permalink | Comments (1)