Wednesday, June 20, 2018

Mootness, enforcement, and particularized injunctions

The mootness analysis in this Eleventh Circuit decision illustrates the importance of focusing on the particularized nature of litigation and remedies, including injunctions. This was an action against Hooter's by Haynes, a visually impaired plaintiff, alleging that the incompatibility of its website with certain software violated the ADA. Hooter's settled a separate lawsuit brought by Gomez and raising similar claims, agreeing to place an accessibility notice on its site and to improve access to the site.

The court held that the settlement in Gomez did not moot Haynes' action, for three reasons. First, whatever Hooters agreed to do had not been done, so Haynes still was suffering a remediable injury. Second, while compliance with the Gomez settlement would provide some of what Haynes sought, it did not provide everything and Haynes sought some unique remedies. Third, and this should be most important, Haynes is not a party to Gomez and so lacks the power or right to enforce that order if Hooters fails to comply or if it should reach a different agreement with Gomez.

That control over enforcement of the judgmentt is essential to party status and to injunctive relief. It is why injunctions are particularized to the parties--binding the defendant as to the plaintiff and allowing the plaintiff to enforce if the defendant fails to comply.

Posted by Howard Wasserman on June 20, 2018 at 10:57 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, June 19, 2018

SCOTUS Term: Chavez-Mesa and Sentencing Appeals

Yesterday, Supreme Court decided another federal sentencing case, Chavez-Meza v. United States. In 2013, the defendant pleaded guilty to possession of methamphetamine with the intent to distribute and he was sentenced to 135 months in prison.  That sentence was at the very bottom of the relevant Federal Sentencing Guideline range.  After the defendant’s sentencing, the U.S. Sentencing Commission reduced the relevant sentencing guideline range from 135-168 months to 108-135 months.  The defendant sought a resentencing under the new, lower range.  The judge agreed to lower his range, but imposed a sentence of 114 months, rather than the 108 month sentence the defendant had requested.  The judge did not provide any explanation for the new sentence.  Instead, the judge merely checked a box granting the motion for a sentencing reduction on a form that stated that the judge had considered the defendant’s motion and taking into account the relevant Guideline’s policy statement and statutory sentencing factors.  (A copy of the form can be found at the end of the opinion.)

The defendant was entitled to appeal his new sentence, and he did.  Sentencing decisions are subject to abuse of discretion review on appeal, and so one might wonder how the appellate court was supposed to review the defendant’s sentence without any explanation for the judge’s decision.  As Judge Posner put this point in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005)

[W]henever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise. A rote statement that the judge considered all relevant factors will not always suffice; the temptation to a busy judge to impose the guidelines sentence and be done with it, without wading into the vague and prolix statutory factors, cannot be ignored.

But in a 5-3 decision, the Supreme Court Justices nonetheless affirmed the sentence in this case.  Writing for the majority, Justice Breyer failed to explain how an appellate court is supposed to conduct abuse of discretion review if there is no explanation of a lower court’s decision.  Instead, he pointed to the Court’s decision in a prior case which had affirmed a sentence that was supported by nothing more than the sentencing judge’s statement that the within-Guidelines sentence it imposed was “appropriate.”

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Posted by Carissa Byrne Hessick on June 19, 2018 at 11:48 AM in 2018 End of Term, Carissa Byrne Hessick, Criminal Law, Judicial Process | Permalink | Comments (0)

Monday, June 18, 2018

Deciding little, deciding few, and competing judicial functions

I had thoughts similar to what Dahlia Lithwick and Eugene Volokh argue. This Court does not want to decide substantive constitutional issues--to make constitutional law--that can guide lower court, other branches and governments, and the public. In addition to the standing punt in Gill (which retains the gerrymandered status quo, so it is not a neutral result), Volokh points to Tuesday's decision in Lozman and last week's decision in Masterpiece as examples of the Court failing to resolve the tricky substantive issues presented in the cases. The acid test will be whether the Court does something similar with the travel ban. (Eugene also mentions Janus, although the outcome in that case is so over-determined, it feels like waiting for the inevitable).

The wisdom of so-called minimalism or reliance on "passive virtues" or what Dahlia derides as the Chief fearing political criticism must be measured against the Court's shrinking docket. The Court will decide fewer than 70 cases this Term. And the cases it decides will not have the long-term prospective effects that we expect from a Court of last resort working with an almost-entirely discretionary docket. The nature of that docket focuses the Court on its rulemaking, as opposed to its error correction, function. So what is the Court doing and how does it see its role?

On the rulemaking/error-correction line: We might think of Lozman and Masterpiece as failures of discretionary case selection, creating confusion between those competing roles of the Court. In both cases, the Court realized it had the wrong vehicle for resolving the core constitutional issue. Neither case presented the paradigm case for the supposed legal issue. And both had unique features that allowed for narrow resolution of the case at hand (in other words, correcting lower-court error) while providing little general guidance (rulemaking).

Posted by Howard Wasserman on June 18, 2018 at 09:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

(SCOTUS Term): Behold the passive virtues

The Court had not one but two shots at partisan gerrymandering this term. And those chances included limiting (if not avoiding) charges of political bias, because both sides oxen were being gored--one case was Republican gerrymandering to screw Democrats and one case was Democratic gerrymandering to screw Republicans. Alas, the Court punted in both.

Gill v. Whitford, the Republicans-screwing-Democrats case from Wisconsin, was the higher-profile. The Court unanimously rejected the case on standing grounds. The Chief's opinion (joined by everyone at least in part) emphasized the individual nature of the standing inquiry in a vote-dilution case--each plaintiff must show the injury she suffered to her vote in her gerrymandered district, without regard to the makeup of any other district or the statewide balance of partisan power. The Court remanded to give the plaintiffs an opportunity to plead and offer evidence of standing, although Justices Thomas and Gorsuch did not join this part. Justice Kagan, joined by Ginsburg, Breyer, and Sotomayor (but not Kennedy), concurred to provide a roadmap for how plaintiffs can establish standing on a vote-dilution theory. This may include statewide evidence of harm to plaintiffs in districts throughout the state warranting a statewide remedy to relieve the injury to plaintiffs in multiple districts (on the assumption that the case include plaintiffs from all or most districts). Kagan also mapped how plaintiffs, including a political party, could establish standing on a First Amendment association theory, which by definition focuses on statewide harms.

Benisek v. Lamone was the Democrats-screwing-Republicans case from Maryland and was framed as lower stakes, focusing only on vote dilution in one district and not seeking to combat systemic statewide gerrymandering. Standing was not an issue. But the Court in a per curiam held that the  non-merits elements of the preliminary-injunction analysis were not satisfied, including the public interest and balance of equities.  The Court emphasized plaintiffs' delay in seeking an injunction and the impossibility, if the current map cannot be used, of drawing a new map that could be used in 2018.

Hasen points out that a third partisan gerrymandering case awaits the Court decision on whether to assert jurisdiction that includes a free-association challenge to explicit statewide partisan districting. But the case has similar standing concerns. We will see on remand how much mileage plaintiffs can get from Kagan's concurrence.

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Posted by Howard Wasserman on June 18, 2018 at 02:47 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

SCOTUS Term: Beckles v. United States As Anti-Canon

A little more than a week ago, Carissa Hessick wrote a PrawfsBlawg post about the Supreme Court’s decision in Hughes v. United States.  Hughes decided whether a defendant who entered a “Type C” plea agreement could have his or her sentence reduced after the U.S. Sentencing Commission retroactively reduced the defendant’s Sentencing Guidelines range under the federal Sentencing Guidelines.  Hughes answered that question in the affirmative because “a sentence imposed pursuant to a Type-C agreement is ‘based on’ the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.”

In her post, Carissa noted that Hughes largely ignored the Supreme Court’s earlier decision in Beckles v. United States, which held that the Sentencing Guidelines are not subject to vagueness challenges.  Beckles reached that conclusion on the ground that defendants’ sentences are not really affected by the Sentencing Guidelines, since district courts are not required to sentence defendants within the ranges provided for by the Sentencing Guidelines.  In other words, defendants’ sentences are not really dictated by (or, one could say, based on) the Guidelines after all.

joked that Carissa’s post should have actually been titled “Beckles v. United States As Anti-Canon.”  After today’s sentencing opinions, I decided to write that post up myself.

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Posted by Leah Litman on June 18, 2018 at 11:53 AM in 2018 End of Term | Permalink | Comments (2)

(SCOTUS Term): Municipal gadflies on a busy day at SCOTUS

SCOTUS resolved five cases on Monday. This included the partisan-gerrymandering cases (about which, more later), while leaving unresolved many critical doctrinal questions.

Monday's haul included Lozman v. Riviera Beach, a victory of sorts for a local gadfly. Lozman was arrested (on later-dropped charges) in November 2006 while attempting to speak at the public-comment portion of a City Council meeting. The case was briefed and argued on the proper standard for First Amendment retaliatory arrest claims: Whether probable cause to arrest on some charge defeats the claim or whether courts must consider whether the officer would have arrested the plaintiff even absent his speech.

An 8-Justice majority resolved the case on different terms, as an unusual and narrow retaliation case. Lozman had not sued the arresting officer and he did not claim a First Amendment violation from the officer stopping him from speaking at the November 2006 meeting. Lozman sued the city, alleging that council members (one in particular) enacted a policy to retaliate against him for his pre-November 2006 expressive activity, including critical public statements and filing a state open-records action; the arrest effected that policy. That made this case unique and uniquely problematic. Retaliatory policies, as opposed to ill-motivated officers making ad hoc decisions, are a "particularly troubling and potent form of retaliation" for which a First Amendment claim is the only remedy (whereas a plaintiff could have an individual disciplined or fired--although neither happens). Probable cause plays no role in such a case, because the arresting officer's immediate concerns at the time of arrest are unrelated to the policy targeting past speech. Finally, the policy targeting high-value petition activity.

Lozman's road remains difficult, as he must show that the Council members established a policy, that the policy was retaliatory (that it would not have been established but-for his expression), and that the arrest was pursuant to that policy--all issues on which courts are notoriously stingy. The road for similarly situated future plaintiffs to take advantage of this decision remains more difficult. Lozman had the advantage of a transcript of a closed-door Council meeting at which members spoke in retaliatory terms; most plaintiffs will not be so fortunate. In essence, the court traded a difficult-to-prove issues on the effect of probable cause on individual retaliation for a different set of difficult-to-prove issues surrounding the establishment of municipal liability.

Posted by Howard Wasserman on June 18, 2018 at 11:52 AM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

"The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath"

A commenter here recently observed that one of the key functions of a legal academic blog like this is to promote one's articles. Right they are. I've been very slowly working, on and off for the past ten years or so, on what I hope will eventually be a book on oaths and the Constitution. Since an oath means little without the underlying values and incentives to undergird it, it is necessarily and maybe primarily a book about the role of honor in American political culture and constitutional law: both a historical examination and an effort at reconstruction and revision of the concept. To shine the spotlight half away from myself for a brief moment, I wrote recently that a growing number of people have concentrated on issues connected to honor, oaths, office, and similar concepts:

General arguments of this sort have been popular at least since Douglass Adair’s famous essay on fame and the founding fathers. The result of such a worldview, then as now, is not neat, but it is important, especially for its focus on ideas—such as duty, honor, virtue, and character—that have faded in public usage and even been described as obsolete. Renewed interest in these ideas in recent (and pre-Trump) years has birthed a number of approaches taken to constitutional thought, such as arguments for an aretaic turn in constitutional law, a fiduciary vision of office-holding, renewed attention to constitutional oaths, and a focus on judicial duty. These authors have varied politics and draw varied conclusions. But they share the belief that in our constitutional ethos, character matters. It is interesting, if unsurprising, that such arguments have recently drawn new advocates.

Here is a new piece that is a small part of that project, titled "The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath." It's a contribution to a wonderful roundtable that was held recently to discuss Randy Kozel's recent book, Settled Versus Right: A Theory of Precedent.  The contributions include pieces by Alli Orr Larsen, Jason Mazzone, Stephen Sachs, Larry Solum, and Fred Schauer, among others, with a response by Randy. The roundtable was hosted by the University of Richmond's law school and coordinated by Kurt Lash and Jason Mazzone. The contributions will appear in Constitutional Commentary. They are short, which in my case makes the piece unusual and, I hope, less tedious than usual, although it does mean my piece is largely and merely an introduction to some of the concepts that interest me in this area rather than a full explanation or defense. (I have a longer piece on honor, oaths, and the rule of law that, after much delay on my part and extraordinary patience on the editors' part, should appear in the Canadian Journal of Law and Jurisprudence in time.) Here's the abstract. Enjoy.

This short piece is written for a symposium on Randy J. Kozel’s 2017 book Settled Versus Right: A Theory of Precedent. It is part of a larger project on honor, oaths, and the Constitution. One key element of Kozel’s book is its identification of “impersonality” as a central good served by precedent. Assuming impersonality to be such a good, one can recognize that it is a hard goal to achieve in the face of contrary pressures. A source of motivation, energy, and agency is needed to fuel the judge’s efforts to achieve impersonality.

In our constitutional culture, a troika of three interrelated concepts or institutions provides this motivation: The office, honor, and the oath. Together, they provide a sense of duty and constraint in filling a specific office; a sense of honor that encourages the office-holder to fulfill that duty, by creating both a desire to be well-regarded by one’s peers and an internalized sense that one ought to behave in a way that merits high regard; and, through the oath, a connection between the individual and the office, and between the office-holder and the commitment to act honorably in office. In short, this troika provides a deeply personal wellspring for the commitment to “impersonality” in judicial office.

The argument here should be seen as part of a larger set of recent efforts in public law to focus on the nature and duties of the office-holder him- or herself, and not just on an impersonal system in which the office-holder and his or her duties and character are incidental. Some of this work focuses on the oath; some of it focuses on the fiduciary nature of public office; and some focuses on the character and virtue of public officials. This work is not confined to American scholarship and, although it has been given a push by recent events, substantially predates the current administration. It deserves attention as a stream of public law scholarship with varied approaches but, speaking in broad terms, a common focus. 

 

 

Posted by Paul Horwitz on June 18, 2018 at 09:42 AM in Paul Horwitz | Permalink

Saturday, June 16, 2018

The "Faithful Execution" Conversation on Self-Pardons, Continued

Take a look at the Kent/Leib/Shugerman defense of the fiduciary theory of Article II, replying to critiques by McConnell and Epstein.  Stay tuned for our deep dive that will produce the first comprehensive effort to trace where the language of "faithful execution" came from and what it is doing in Article II, twice.

Posted by Ethan Leib on June 16, 2018 at 12:35 PM | Permalink | Comments (0)

Dean Search: Northern Kentucky University Salmon P. Chase College of Law

From Northern Kentucky University Salmon P. Chase College of Law:

Founded in 1893, the Salmon P. Chase College of Law has for 125 years provided service to students and the legal community throughout the Commonwealth of Kentucky and across the Ohio River to Cincinnati and its environs.  Chase is a jewel in the crown of Northern Kentucky University, with a history that predates that of the University.  Long known as the “The Lawyer’s School.”  Chase has served both traditional and non-traditional students throughout its history and in recent years has gained a strong reputation for the quality of its clinical and other experiential learning programs.

NKU and the Chase College of Law now seek a Dean to continue this tradition of success and service.  The Dean is the chief executive of the law school and serves on the leadership team of the University.  Leading a committed faculty and staff in service to a dedicated and hard-working student body, the Dean will be in a position to make significant contributions to the future of the institution.

Continue reading "Dean Search: Northern Kentucky University Salmon P. Chase College of Law"

Posted by Howard Wasserman on June 16, 2018 at 10:31 AM in Teaching Law | Permalink | Comments (0)

Friday, June 15, 2018

JOTWELL: Singer on Rosen on Taft

The new Courts Law essay comes from guest contributor (and former guest Prawf) Jordan Singer (New England), reviewing Jeffrey Rosen's biography of William Howard Taft.

Posted by Howard Wasserman on June 15, 2018 at 11:21 AM in Article Spotlight, Books | Permalink | Comments (0)

Book Recommendation: Bisom-Rapp & Sargeant’s Lifetime Disadvantage, Discrimination and the Gendered Workforce

Susan Bisom-Rapp (Thomas Jefferson, USA) and Malcolm Sargeant (Middlesex University, London, UK) wrote a fabulous book, Lifetime Disadvantage, Discrimination and the Gendered Workforce (Cambridge Press) and just in time to add to your summer reading, it is released in paperback. The book looks in a systematic way at the patterns of gap expansion and the accumulation of disadvantage that women face over the course of their careers and into retirement. The book takes the approach of looking at the work life cycle in a comprehensive sequential way and offering ways to connect  questions such as education, skills and training, stereotyping and gender discrimination, caregiving and family/work balance, glass ceilings, occupational segregation and non-standard working - and into pensions and life after work. I highly recommend the book and I loved its comparative lens. 

Image result for lifetime disadvantage discrimination and the gendered workforce

Posted by Orly Lobel on June 15, 2018 at 02:13 AM | Permalink | Comments (0)

Thursday, June 14, 2018

Legal ethics in Hulk Hogan v. Gawker

Steve Lubet reviewed the new book by Ryan Holiday, Conspiracy: Peter Thiel, Hulk Hogan, Gawker, and the Anatomy of Intrigue. Lubet focuses on the book's revelation that neither Hogan nor his lawyers knew until after the verdict that Thiel was funding the litigation (communications and payments were anonymous and through an anonymous intermediary), which violates Florida ethics rules in several respects. This also sheds a different light on Hogan declining a $ 10 million settlement offer. I argued that Hogan's decision not to settle was beside the point to any free-speech concerns, regardless of Thiel's funding efforts. Lubet offers a legal-ethics twist on this. Whilee it is not clear whether or how much Thiel influenced the decision not to settle, it is not clear Hogan's lawyers counter-offered with Hogan's drop-dead figure of $ 20 million or shared with Hogan the risks of declining the offer and proceeding to trial (namely more of the video, including Hogan's racist comments, becoming public).

Steve's review is worth a read and Holiday's book sounds interesting and detailed. I still need to watch the Netflix documentary on the case.

Posted by Howard Wasserman on June 14, 2018 at 06:49 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Colorado Law Review-Exclusive Submission

The Colorado Law Review is excited to announce its exclusive submission track for Volume 90. We welcome innovative and thoughtful submissions on any topic of legal interest and look forward to reading scholarship that presents solutions to today’s most challenging legal questions.

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Posted by Howard Wasserman on June 14, 2018 at 04:51 PM in Teaching Law | Permalink | Comments (0)

SCOTUS Term: Figuring Out Foreign Law

Today’s Supreme Court decision in Animal Science Products v. Hebei Welcome Pharmaceuticals holds that federal courts need not give conclusive deference to a foreign government’s amicus filing explaining its own law. Although the Court concludes that federal courts should “carefully consider a foreign state’s views about the meaning of its own laws,” it also states that courts should consider “other relevant materials,” and should consider the foreign sovereign’s statements in light of “the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.”

The Court’s unanimous opinion is a rare win for class-action plaintiffs, who had filed suit an antitrust action against Chinese exporters of Vitamin C, alleging that the exporters engaged in price-fixing. The defendants had argued that they were shielded from liability because their pricing arrangements were mandated under Chinese law, a position that the Chinese government confirmed in an amicus filing. The plaintiffs argued that the defendants’ (and Chinese government’s) position was contradicted by statements that China had made to the WTO. The district court agreed, but the Second Circuit held that the court erred by failing to give conclusive deference to the Chinese government’s statement of its own law.

The Supreme Court’s decision that a foreign government’s statements should be given respectful consideration but not conclusive deference seems quite clearly right to me. An amicus brief from professors of conflict of laws and civil procedure points out that the Supreme Court’s holding comports with the expectations of most countries; most nations do not give conclusive deference to foreign statements in filed cases, and leading international agreements expressly allow courts to consider foreign sovereign government’s statements about their own law without being bound by such statements.

But even if the decision is right in the abstract, I believe it should be a rare case in which a court’s “respectful consideration” of a foreign sovereign’s statement of its own law reaches a different decision. In this case, the district court concluded that the Chinese government’s statement was inconsistent with its earlier actions. An amicus brief filed in the Supreme Court by the Chinese Ministry of Commerce attempts to reconcile the seeming inconsistencies, bolstering the defendants’ argument that they lacked independent pricing power. On remand, the Second Circuit can certainly consider these arguments. As the Supreme Court pointed out in its opinion, questions of foreign law have been recognized as questions of law rather than fact ever since the adoption of FRCP 44.1 in 1966. As a result, the Second Circuit is not bound by the district court’s conclusion about the defendants’ ability to set their own prices. If the Second Circuit on remand agrees that the defendants' pricing strategies were required by Chinese law (a question explicitly left open by the Supreme Court), then the class-action plaintiffs' victory may be short-lived.

Posted by Cassandra Burke Robertson on June 14, 2018 at 04:31 PM in 2018 End of Term | Permalink | Comments (10)

(SCOTUS Term): Court rejects ban on political apparel in polling places

Although it did not deal with compelled speech on the anniversary of Barnette, the Court did knock out one of its free-speech cases--Minnesota Voters Alliance v. Mansky. The Chief wrote for seven Justices, declaring invalid a state law prohibiting "political badge, political button, or other political insignia" being worn "at or about the polling place."

The polling place is a nonpublic forum and the statute was viewpoint neutral. But it was not reasonable. The word "political" is undefined. It is broader than "campaign" (a category dealt with in a different, unchallenged provision), but its scope remains uncertain and is not clarified by various administrative-guidance policies, which offer examples that appear contradictory. Roberts argued this "poses riddles that even the State's top lawyers struggle to solve," citing to the extensive, inconsistent hypotheticals the Court peppered counsel with during argument. That uncertainty also vested too much discretion in the election-day judges, who cannot know all the "issues" that might be reflected by a piece of apparel.

The sort of parsing for over- or under-inclusiveness that the Court does here typically is part of strict or intermediate scrutiny, rather than reasonableness. But the result makes sense, as a word like political is seemingly boundless. And the Court remained at least nominally deferential of the state's interest in making the polling place a space of calm reflection and cited approvingly to narrower laws in other states (Red and Blue) aimed at the same goal.

Justice Sotomayor dissented for herself and Justice Breyer, arguing that the Court should certify to the question of the statute's precise meaning to the Minnesota Supreme Court. The Chief dropped a footnote to reject certification, emphasizing the discretionary nature of certification, the lateness of the state's suggestion of certification in the litigation, that the state had offered an interpretation for the Court to use in the case, and that there is no obvious alternative interpretation that the state court might adopt.

This is the second time in two Terms that Sotomayor has argued for certification to avoid a First Amendment decision (Justice Alito joined her prior attempt). It is interesting that Court has stated that certification (like Pullman abstention, the doctrine it arguably supersedes) should be used sparingly in First Amendment cases, given the chilling effect caused by delays in the certification process.

Posted by Howard Wasserman on June 14, 2018 at 11:00 AM in 2018 End of Term, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

(SCOTUS Term): Barnette at 75

Today marks the 75th anniversary of W. Va. Bd. of Educ. v. Barnette, which John Q. Barrett commemorates at his blog on all things Justice Jackson. Barnette must be among the Top 5 most important SCOTUS First Amendment decisions and one of the first to combine soaring free-speech rhetoric with a victory for the free-speech claimants. The decision remains relevant to modern free-speech controversies, between controversies over flag-related speech and new concerns over compelled expression. Two cases from OT17 implicated Barnette and compelled speech--Masterpiece Cakeshop although only Justice Thomas, citing Barnette, took the free speech route, and NIFLA v. Becerra, a pure compelled speech case that will certainly rely on Barntte. NIFLA is still out, although it would be ironic if the Court issued that case today.

The anniversary also gives me a chance to publicize the FIU Law Review Symposium, Barnette at 75, hosted at FIU on October 5, 2018. Panelists include John Q. Barrett (St. Johns), Ronald Collins (Washington), Erica Goldberg (Dayton), Abner Greene (Fordham), Paul Horwitz (Alabama), John Inazu (Wash U.), Leslie Kendrick (Virginia), Genevieve Lakier (Chicago), Aaron Saiger (Fordham), Seana Shiffrin (UCLA), Steven Smith (San Diego), and Brad Snyder (Georgetown).

Posted by Howard Wasserman on June 14, 2018 at 06:08 AM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, June 11, 2018

SCOTUS Term: The Disappearing Class Action, But a Nod to Legal Scholarship

In today's decision in China Agritech v. Resh, the Supreme Court ruled that the filing of a class-action suit that is later dismissed on non-merits grounds does not equitably toll the statute of limitations for future class actions. Thus, when the class action fails--whether for lack of adequate representation or some other reason-- individual litigants may file their suits after the putative class action is dismissed, but a successive class action may not be filed when the statute of limitations has run. As Ronald Mann mentions over at SCOTUSBlog, the result in this case was not surprising. The Court has been highly skeptical of class-action practice in general, and extending an equitable-tolling rule to protect future class actions was always going to be a long shot.

However, it is nice to see that Justice Ginsberg's majority opinion and Justice Sotomayor's concurrence very thoughtfully engage with legal scholarship from civil procedure scholars. Both opinions discuss Rhonda Wasserman's influential article Dueling Class Actions, 80 B. U. L. Rev. 461 (2000), and the majority also cites to Tanya Pierce's excellent article, Improving Predictability and Consistency in Class Action Tolling, 23 Geo. Mason L. Rev. 339 (2016). The Court also relied on empirical work by Emery Lee and Thomas Willging at the Federal Judicial Center  and cited to Elizabeth Cabraser & Samuel Issacharoff, The Participatory Class Action, 92 N. Y. U. L. Rev. 846 (2017).  Although I am persuaded that Tanya's recommended approach would have been preferable to the one ultimately adopted by the Court, I appreciate seeing the Court engage with work of civil procedure scholars.

Posted by Cassandra Burke Robertson on June 11, 2018 at 05:54 PM in 2018 End of Term | Permalink | Comments (0)

SCOTUS Term: Marks All the Way Down, and the Importance of Conceptual Legal Puzzles

I want to say a few things about a cool, conceptual legal puzzle left open by the Supreme Court’s decision last week in Hughes, but also about why pondering cool, conceptual legal puzzles is important – as abstract and inhuman as they are.

I have previously written (on my own blog) about the meta logic of Hughes v. United States.  In Hughes, the Court had an opportunity to decide how lower courts should interpret fractured Supreme Court opinions where no majority agrees on the rationale behind a decision(Here’s an example of the 4-1-4 prior opinion at issue in Hughes.)  According to Marks v. United States, the governing rationale of a case where no majority can agree on the basis for the decision “is the position taken by those Members who concurred in the judgments on the narrowest grounds.”  Of course, the meaning of “narrowest grounds” is unclear, but in Hughes, the Court dodged the meta question of how to interpret “narrowest grounds” by simply garnering a majority for the decision’s reasoning. 

Richard Re and the hosts of First Mondays both noted an interesting possibility if the Court does decide to confront the Marks question head on.  What if the Court fractures on how to interpret Marks, such that there is a 4-1-4 opinion on what to do about 4-1-4 opinions?  This could lead to an interesting paradox where accepting one Justice’s opinion as the controlling one would lead to accepting a different Justice’s opinion as the controlling one.

Continue reading " SCOTUS Term: Marks All the Way Down, and the Importance of Conceptual Legal Puzzles"

Posted by Erica Goldberg on June 11, 2018 at 01:17 PM in 2018 End of Term | Permalink | Comments (5)

Two thoughts on the recall of Judge Persky

Having listened and read various discussions about last week's recall of California trial judge Aaron Persky, I was struck by two points lost in some of the coverage.

First, there is a lot of focus on Persky being recalled and this being the first time in 100 years that has happened. But the issue should be less about recall than about any procedure to remove judges from the bench in response to unpopular rulings. While there had not been a successful recall of a judge in California, critics have successfully targeted judges for removal through other processes. Most famously, three members of the Supreme Court lost retention elections in 1986 following a campaign targeting their decisions in capital-punishment cases. And the anti-Persky movement would have been as problematic had critics found and supported someone to run against him for the seat when it next was up in 2022, when similarly based on disagreement with the Brock Turner decision.

Second, this drives home that the issue for judicial independence is not how judges are initially selected (election, political appointment, judicial commission, some combination), but whether and how they can be removed once on the bench. It does not matter whether Persky reached the bench via election (as he tried, but failed to do) or appointment (as he did). The issue is that, once on the bench, he could be recalled (or not retained or not re-elected) because of his rulings.

Posted by Howard Wasserman on June 11, 2018 at 12:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)