Friday, June 30, 2017
Leave the SCOTUS ghostwriters alone (SCOTUS Symposium)
Rumor has it that when a victorious party is trying to convince the Supreme Court not to grant cert. in their case, they will sometimes hire experienced specialists in Supreme Court practice to write the brief in opposition, but then keep their names off the papers, so it looks as if the case remains unexceptional from the respondent's point of view. I've been giving this practice some thought ever since reading Ian's very smart post earlier this month, arguing that this ghostwriting practice is unethical. (Ian and Dan discuss this at length in the subscribers-only "Patreon" episode of their excellent podcast, First Mondays, but Ian's post and the ensuing comment thread contain the core arguments.)
Ian's argument is simple and powerful, which is that the practice is unethical because it is a form of deceptive concealment from the Court of a material fact. As I understand Dan's position, it's that the Court's rules probably do not reach so broadly, but he would be open to seeing them reformed. Similarly, even some of the skeptical comments on Ian's post profess agnosticism on whether it would be good to reform the rules and forbid ghostwriting.
So I thought somebody should lay out the basic case against regulating legal ghostwriting, and it may as well be me.
First, I take it is common ground that this is a question on which the Supreme Court's rules could ultimately come down either way. If the Court's rules required those opposing certiorari to list all counsel involved, or not to have a deceptive motive when deciding which counsel to list, that would be the rule; similarly, if the Court's rules required only the counsel of record to be listed and left everything else up to the parties. We may have a dispute about what the current rules actually do require, but that seems like the least interesting part of the dispute. The more interesting question is whether the rule should be clarified, and if so in which direction.
Second, I think it is important to consider the different possible reasons that a counsel opposing cert. might want to conceal the fact that they've retained top-tier Supreme Court counsel already. Ian writes as if the major reason that this fact is relevant to the Court is that it is an indication that the case will be well-lawyered, a fact which makes the Court somewhat more interested in the case. I think that consideration is overstated -- absent certain positional conflicts, the respondents side of a granted case is likely to be swarmed by good lawyering, or at least likely enough that it would be foolish for the Court to turn down a case because the respondent's brief is bad.
Rather, I think the salient issue is often this: The fact that respondent has already started spending money on top-tier Supreme Court counsel is a sign that respondent itself recognizes the likelihood of the case being granted. They may have various arguments that the case shouldn't be granted, they may even believe them, but they wouldn't spend money hiring new lawyers specializing in Supreme Court practice unless they thought the threat of a cert. grant was high enough to justify the expenditure. Knowing that even respondent thinks a grant is plausible is like an admission against interest that gives the Court more confidence in granting cert.
But once we see the issue this way, we might be more sympathetic to a system that didn't want to force that private information to be disclosed. Or imagine a proposed Supreme Court rule that required the respondent to disclose how many dollars or billable hours were spent on a brief in opposition so that the Court could decide how seriously they should take it. The rule seems unduly intrusive and a little unfair. We don't usually make parties price themselves out of a good litigating position. (We sometimes privilege offers made in settlement negotiations, for instance.) Indeed, the law is full of exclusionary rules that sometimes allow parties to shield information from a decision-maker where we think that shield serves a public purpose.
Third, this brings us to the likelihood that the no-ghostwriting rule would have unfortunate side effects. If respondents have to disclose that they have hired top-tier Supreme Court counsel to write the brief in opposition, and if that disclosure does indeed make the Court more likely to grant the case, then surely on the margins a lot of respondents will stop hiring such counsel at the opposition stage. That means worse briefs, or at least briefs less likely to be directly responsive to the Court's subtle concerns about shallow/stale splits, minor vehicle problems, and the like. That in turn increases the chance of bad grants and hurts the Court, possibly more than the current ghostwriting regime.
Indeed, the brief in opposition may be one of the documents whose quality matters most to the Supreme Court as an institution -- this is the stage at which it is easy to miss a technical vehicle problem, to misunderstand the practical importance of a circuit split, and thus to waste a substantial amount of court and party time if the case is granted and becomes a wild goose chase. Moreover, the sheer volume of cert-stage cases makes it much harder for the Court's independent research to make up for the party's deficiencies, though of course the very smart law clerks in the cert. pool will do their best.
So the Court ought to be falling over backwards to encourage respondents to hire counsel who are knowledgeable about the certiorari process and really understand the criteria. One good way to do that is to not require disclosure, so that parties don't worry that they will have to pay a high price for taking efficient precautions. (To use another evidence analogy, think of the rule making subsequent remedial measures inadmissible to prove negligence or culpability). We can't impose a disclosure regime without recognizing that it will also change behavior -- maybe in ways that we don't want.
Fourth and finally, I worry that attempts to ban the practice of ghostwriting would either be vague or overbroad. For instance, we can imagine a rule requiring all attorneys who worked on a brief to be listed (perhaps beyond a de minimis threshold). But that rule sweeps in the many attorneys who might have other, more sympathetic, reasons for wishing to be excluded. For instance, what about the attorney who is willing to lend aid to an unpopular cause, but wishes to avoid private retaliation or harassment? What about the moonlighter who doesn't want his employer to control his extracurricular activities? Or what about the attorney who wishes to help with a discrete issue in the brief, but doesn't want his name associated with the whole thing because other portions of the brief are beneath his standards? I'm not convinced that the ghostwriting practice is so nefarious that it is worth sweeping these folks in.
One could try to write a narrower rule, one that only applied to non-disclosure whose purpose was to conceal from the Court the certworthiness of the case, but it's hard to imagine that rule being administered in a fair, or even predictable, fashion.
I can see why Ian is troubled by ghostwriting; but it may be better to just let it be.
Thursday, June 29, 2017
Treat the Disease or Treat the Symptoms?
I have blogged previously about how interdisciplinary developments in legal scholarship have affected the types of law review articles that are being published. One of the dimensions of this that I did not address previously is something I want to expand on in this post.
Consider the traditional law review article: the underlying legal problem to be fixed is identified, with all of the attention of the article then turning to the normative prescriptions. A different type of article has started to become much more common. Before turning to normative prescriptions, there is an account of how new, underlying mechanisms have generated the new legal problem. That new legal problem is then addressed as presenting normative problems undermining generally shared institutional design goals. While the past article simply identified a problematic situation, the new article also engages with the triggers for that situation as well.What does this new step (not just problem and solution, but cause for problem, then problem, then solution) mean for the forms of legal scholarship? This new style of article identifies an underlying, structural problem (the “disease”) and the problematic manifestations of the problem (the “symptoms”). This style therefore poses the question of whether to treat the disease or treat the symptoms. If you treat the disease, the article must address how the underlying mechanisms causing the problem can be changed. This requires a causal counterfactual. If underlying mechanism x became underlying mechanism not x, then the new, normatively problematic situation does not exist anymore. It could be that the normatively problematic situation always existed, so that the underlying mechanism has always existed as well. The normatively desirable alternative situation is more hypothetical than ever actually having existed. Given the power of past and precedent as modes of argument legal scholarship, though, the argument is usually that there was a period of time in which the normatively problematic situation did not exist, until the underlying mechanism intervened. Let’s call this the approach of treating the disease the “Make Law Great Again” solution.
Alternatively, if you treat the symptoms, you do not target the underlying mechanism. The goal instead is to mitigate the normative problems generated by the underlying mechanism. Eric Posner and Adrian Vermeule point out in their article from a few years ago—to rephrase their claim—that treating the symptoms must involve some discussion of how to avoid the disease generating the symptoms in the first place. Perhaps there are areas of law that are or could be less affected by the underlying mechanism, and these areas of law can be made more significant to treat the symptoms. If some new feature of tort law is causing some problems, for instance, maybe something in contract law can help instead rather than trying to fix tort law
Normative scholarship does have a methodology, just like the rest of legal scholarship does. You might not like the methodology, but it has one. One way of categorizing that methodology is what I suggest in that post: normative scholarship that treats the disease and normative scholarship that treats the symptoms.
R. Kozel, "Settled Versus Right: A Theory of Precedent"
I'm pleased to share the news that the new book by my friend and colleague, Randy Kozel -- Settled Versus Right: A Theory of Precedent -- is available now from Cambridge University Press. (Among other things, the cover is great!). Here's the blurb:
In this timely book, Randy J. Kozel develops a theory of precedent designed to enhance the stability and impersonality of constitutional law. Kozel contends that the prevailing approach to precedent in American law is undermined by principled disagreements among judges over the proper means and ends of constitutional interpretation. The structure and composition of the doctrine all but guarantee that conclusions about the durability of precedent will track individual views about whether decisions are right or wrong, and whether mistakes are harmful or benign. This is a serious challenge, but it also reveals a path toward maintaining legal continuity even as judges come and go. Kozel's account of precedent should be read by anyone interested in the nature of the judicial role and the trajectory of constitutional law.
It's been a real treat talking with and learning from Randy about these matters over the past few years. Congratulations!
Wednesday, June 28, 2017
N.D. Ill. Pilot Program on Discovery Changes
The following was posted by past guest Robin Effron (Brooklyn) at the Civ Pro & Fed Courts Blog, on a pilot program in the Northern District of Illinois requiring parties to engage in mandatory discovery requests and production (beyond FRCP 26(a) disclosure). Here is the Standing Order and here is a "Users' Manual". Thoughts, comments, or predictions?
The Northern District of Illinois launched a mandatory pilot program last month that requires parties to engage in a series of mandatory discovery requests and disclosures. The FJC reports that this will help them study "whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery reduces the cost and delay of civil litigation."
This pilot program could also have an effect on pleading and Twombly-style 12(b)(6) fact motions: Under the program, parties are required to file answers simultaneously with 12(b) motions unless they show good cause that the court is considering a jurisdictional dismissal.
A few interesting highlights from the discovery order:
Paragraph 1: "State the names and, if known, the addresses and telephone numbers of all persons who you believe are likely to have discoverable information relevant to any party’s claims or defenses, and provide a fair description of the nature of the information each such person is believed to possess." Compare this to Federal Rule 26(a)(1)(A)(i): "the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment."
Paragraph 2: "State the names and, if known, the addresses and telephone numbers of all persons who you believe have given written or recorded statements relevant to any party’s claims or defenses. Unless you assert a privilege or work product protection against disclosure under applicable law, attach a copy of each such statement if it is in your possession, custody, or control. If not in your possession, custody, or control, state the name and, if known, the address and telephone number of each person who you believe has custody of a copy."
Paragraph 4: "For each of your claims or defenses, state the facts relevant to it and the legal theories upon which it is based."
This program will be interesting to watch, and I'm looking forward to seeing what the FJC (and perhaps other scholars) produce. More info here.
SCOTUS OT16 Symposium (Sort Of): Call for Papers on Amending the Constitution
"Everybody talks about the weather, but nobody does anything about it." This term may not have been a blockbuster, but there have been plenty of constitutional cases that people disagreed with—sometimes strongly. One way to change them is to change the Court's membership; another way, and often a better one, is to change the Constitution.
With our organizer's kind permission, here's the call-for-papers for a conference on amending the Constitution, to be held at Duke on February 2, 2018. If you have ideas for how to make it better, send them in!
Duke Journal of Constitutional Law & Public Policy
DJCLPP Annual Spring Symposium: Call for Proposals
The Duke Journal of Constitutional Law and Public Policy (DJCLPP) seeks submissions for a Symposium on amending the Constitution to be held at Duke University School of Law on February 2, 2018.
This year, our Symposium will be organized with the assistance of Professor Stephen Sachs.
The Founders recognized that the Constitution was an imperfect document. Over the past 230 years, however, Article V’s amendment procedure has been used only rarely. The topic for the 2018 Spring Symposium will be An Even More Perfect Union: Proposed Amendments to the Constitution. Each article will propose a different amendment to the Constitution. Articles will offer enactment-ready language for these amendments, defend the need for their adoption, explain the choices made in their drafting, and describe possible routes to enactment.
Invited participants will receive assistance with travel and lodging expenses. Practitioners and others working in the field are welcome to attend.
How to Submit Your Proposal
Proposals should be sent with the subject line “Symposium Proposal” to [email protected] by July 14, 2017. Please attach a copy of your CV to your proposal. Inquiries via this email address should be directed to DJCLPP ’s Special Projects Editor, Wendy Becker.
Proposals should include the following:
- A proposed title for your article
- Draft text for your proposed amendment
- An abstract or brief description (no more than 500 words) explaining and defending your proposal
- July 14, 2017: Deadline to submit proposals
- July 28, 2017: Proposals selected on or before this date
- August 4, 2017: Deadline for commitments received from authors
- January 5, 2018: Draft articles due
- February 2, 2018: Symposium held at Duke University School of Law
- Spring 2018: DJCLPP’s Volume 13 published
For questions, comments, or information about the Journal, please feel free to email the above address.
Thank you, and we look forward to your proposal.
Special Projects Editor
Duke Journal of Constitutional Law and Public Policy, Volume 13
Tuesday, June 27, 2017
Same-sex marriage after Obergefell (SCOTUS symposium)
Yesterday the Supreme Court took action in two different cases about same-sex marriage. In one, Pavan v. Smith, the court summarily reversed an Arkansas Supreme Court decision about Arkansas's birth-certificate regime, concluding that because "Arkansas law makes birth certificates about more than just genetics" and sometimes allows spouses who are not biological parents to be listed on the birth certificate, it must extend the same recognition to same-sex couples.
Justice Neil M. Gorsuch dissented (joined by Justices Clarence Thomas and Samuel A. Alito Jr.). Interestingly, Gorsuch did not quarrel with the correctness of Obergefell, but rather suggested that the case did not meet the standards for summary reversal, which he said is "usually reserved for cases 'where the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.'" (As an aside, I take it that these criteria are supposed to be necessary, but not sufficient, conditions for summary reversal -- the court certainly does not summarily reverse every case that is a clear error in the application of settled law. And as I've written extensively in "The Supreme Court's Shadow Docket," it is actually quite a parlor game to figure out what, in practice, the criteria for summary reversal really are.)
In the other case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court granted certiorari to consider whether the Constitution exempts a "cake artist" from a law requiring him to make cakes for same-sex marriages and opposite-sex marriages alike. I should eat a little crow on this one, because for weeks I have been confidently predicting to my colleagues that the court was not going to grant cert in this case (even though I thought that it should). But after a record-setting 14 times being relisted for conference, the case is now on the merits docket.
The underlying legal issues in both cases are quite different, but I see them as sharing a fundamental theme -- the question of what and how much is supposed to be settled by the Supreme Court's decision in Obergefell. Was the decision supposed to basically end national debates about the status and rights of same-sex couples, or does it still leave space to debate the narrowing or extension of these rights? To be clear, I am not talking about the fundamental holding of Obergefell, which I suspect is already more secure than the holding in Roe v. Wade, but about the broader message to society -- the music, not the words.
Indeed, this theme makes me wonder if the court's actions in these two cases were actually causally related. As noted above, Masterpiece Cakeshop was relisted over and over and over again, which usually means that a case is not going to be granted. Rather, it looks like somebody was writing a dissent from the denial or cert. that changed a mind or two at the final moment. (If there were four votes to grant once Gorsuch joined the court, it could have been granted as early as April, at least eight relists ago.) I wonder -- and this is rank speculation -- if one of the justices became concerned with the possible maximalist implications of the Pavan summary reversal, and changed his vote to "grant" in Masterpiece Cakeshop.
[Cross-posted at the Volokh Conspiracy.]
Sponsored Post: Critical Reading Instruction for Law School Success
The following post is by Jane Bloom Grise, Director of Academic Enhancement and Assistant Professor of Legal Writing at University of Kentucky College of Law, and is sponsored by West Academic.
Scott Turow, the best-selling author of One L, compared reading cases to “stirring concrete with my eyelashes.” Students report getting lost in cases and feeling like “idiots” when they read cases. While reading cases may be difficult for students and even practitioners, critical reading skills are important for success in law school and legal practice. Furthermore, empirical research shows that top law students consistently use different reading strategies than lower performing students.
However, there are two pieces of good news for law professors and law students. First, it is possible to identify the reading strategies of high performing legal readers. While expert legal readers read cases to solve client problems, novices often just memorize case information. While experts read headings and summaries in order to understand the subject of a case before even beginning to read a case, novices start reading without any information about the case topic. Experts understand that cases are structured in predictable ways, while novices sometimes assume that every case is organized differently. Experts understand the significance of procedural references in cases while novices tend to ignore these terms because they simply have not been introduced to procedural concepts.
Experts carefully examine the facts while novices may assume that the facts are not important and not even read them. Experts vary their reading speed while novices read everything at the same pace. Experts look up new terms while novices may skip over unfamiliar words. While experts understand that cases can be interpreted in different ways, novices often look for the “correct” interpretation. Finally, experts master important skills such as analogical reasoning, case evaluation and case synthesis. Experts also use many of these same skills when they read statutes. They read statutes in relationship to other statutes, examine definitional sections, and understand basic principles of statutory construction.
The second piece of good news is that all students can learn the strategies of high performing law students and become effective legal readers. After teaching legal writing for fifteen years, I decided to explore whether critical reading instruction could impact legal writing performance. It appeared that some writing problems were impacted by students’ failure to comprehend the underlying cases they were reading. In 2014, as the recipient of a Lexis/ALWD/LWI Scholarship Grant, I created a reading curriculum tailored to law students and conducted an empirical experiment. Could critical reading instruction improve students’ legal writing? In fact, I found that critical reading instruction did positively impact student writing. Critical Reading for Success in Law School and Beyond is the culmination of this research. It introduces students and new lawyers to the critical reading strategies used by expert legal readers to solve legal problems and represent clients.
Critical reading instruction is an important part of any orientation program, doctrinal course, legal writing course, or bar prep course. It is not enough to orient students with an hour of instruction on reading cases and expect students to master the strategies and information needed to read critically. A systematic approach is needed so that students are equipped to read like the legal experts. While we often feel that we do not have time to teach skills and strategies, it is clear that students may struggle if they have not been exposed to important background information about cases such as the purpose for reading cases, the structure of cases, and procedure. Furthermore, students will attain higher levels of comprehension if they master strategies for analyzing language in cases as well as basic concepts such as analogical reasoning and case synthesis. Critical Reading for Success in Law School and Beyond is designed to introduce these concepts in a systematic manner so that all students can become expert legal readers. If we incorporate critical reading instruction into courses, student learning will be enhanced and students will be more prepared to meet the rigors of law school and the practice of law.
Monday, June 26, 2017
OT 2016 Symposium: On The Travel Ban The Supreme Court Says: Stay Tuned
Today the Supreme Court resolved the government’s petitions for certiorari and motions to stay the lower courts’ injunctions in the travel ban litigation. The Court granted the government’s petitions for certiorari, so that the case will be heard on the merits in October Term 2017 (specifically, in October). The Court also granted in part the government’s motions to stay the lower courts’ injunctions against the travel ban. How the Court disposed of the stay requests may affect what the Court has before it when it actually hears the case in October.
First, the easy part: The Court granted the petitions for certiorari in both the Fourth Circuit and Ninth Circuit cases. Thus, when the Court reconvenes in October, it will have before it cases that involve a challenge to the 90-day entry ban, the 120-day suspension of the refugee program, and the refugee cap (not really this last part, for reasons I’ll get into).
Now, the hard part: The Court granted, in part, the government’s motions to stay the lower courts’ injunctions against the entry ban, the suspension of the refugee program, and the refugee cap. The lower courts had enjoined those provisions entirely—the government could not implement them against anyone, not just the plaintiffs in the cases. The government had asked the Supreme Court to stay the injunctions in their entirety, so that the government could implement them with no caveats, or, in the alternative, to stay them except with respect to the specific plaintiffs in the cases (Mr. Doe, Dr. Elshikh, and the State of Hawaii). The plaintiffs had asked the Court to deny the stay requests in their entirety.
The Court didn’t do either of those things. Instead it granted the government’s motion “in part.” It kept the injunctions “in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii,” which it said “means that [the entry ban] may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
What does that mean? The Court offered this take on what kind of “bona fide relationship” must exist:
For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admit- ted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
In plain English: The injunction against the entry ban remains in force for persons with a “close familial relationship” to someone in the United States. The injunction against the entry ban also remains for persons with a “formal, documented, and formed in the ordinary course” relationship with an entity in the United States, such as a University. The Court lists as examples someone who has been admitted to a university, or accepted an offer of employment. It’s not clear whether the injunction against the entry ban extends to someone who has applied to a university or a job, but not yet heard about whether they were accepted. As for individuals with connections to a “nonprofit group”; there, the injunction against the entry ban does not extend to individuals who were contacted by the nonprofit group.
What does all of this mean for October? A few quick thoughts:
(1)Mootness And The Prospect of A Full Merits Review. As many contributors to this blog, particularly Marty Lederman, have written, the entry ban is written to last for only 90 days. And the President’s June 14 clarifying memorandum states that the ban lasts for 90 days “after all applicable injunctions are lifted or stayed with respect to that provision.” Thus, the entry ban and suspension of the refugee program will go into effect now, for 90 days, at least as applied to persons who do not have a bona fide connection with the United States. And the entry ban will expire 90 days from now, again at least as applied to persons who do not have a bona fide connection with the United States (and the suspension of the refugee program 120 days from now, again as so limited).
It’s not clear exactly what that means for what the Supreme Court will hear come October. By the time the Court hears the case, the government will have completed its review of existing entry procedures and existing refugee program procedures (“the internal review process”). Under the terms of the executive order that establishes the entry ban and internal review process, the government is to prepare reports about possible reforms to those procedures within the 90-day window of the entry ban. So when the Court convenes for arguments in October, the government may have reformed entry procedures and the refugee program.
But at that point, the ban will still be enjoined as it applies to persons with a bona fide connection to the United States. So if the Court were to reverse the Ninth Circuit and Fourth Circuit injunctions after hearing the case on the merits, that could mean a 90-day entry ban (and 120-day suspension of the refugee program) goes into effect for persons who have a bona fide connection to the United States.
That possibility is both odd and disturbing—why allow an entry ban on persons who have connections to the United States to go into effect after the internal review process has been completed, and months after the relevant “determinations” by the Attorney General and Secretary of Homeland Security that a “temporary pause” to allow the government to review its existing procedures was needed? The prospect of allowing that kind of weird, semi entry ban may affect the Court’s review of the merits.
There’s also a chance that the government would take the position (and/or that the Court would read the President’s clarifying memorandum and underlying order to mean) that the ban lasts for only one 90-day period. That is, because the 9th Circuit and 4th Circuit injunctions have been lifted in some respects, the government or Court could say that the entry ban went into effect today and expired September 27, and that the order does not allow some applications of the entry ban to go into effect later, even if the full scope of the entry ban never went into effect. I think that’s a perfectly reasonable reading of the order and clarifying memorandum. It also means the case will be moot by the time the court hears it.
(On timing, the suspension of the refugee program lasts for 120 days, through the last week of October; the refugee cap applies only to fiscal year 2017, which ends at the beginning of October.)
(2) Marty casts the stay as huge victory for the plaintiffs, noting that the Court “denied the motions to stay the injunctions not only as applied to aliens with particular relationships to the (U.S. person) plaintiffs in these cases, but also as to other aliens who have analogous relationships with other U.S. persons–‘foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States’–even if those U.S. persons are not plaintiffs in either of the two cases!”
I think that is a reason to celebrate, but I’m a bit more skeptical of what the Court did. The scope of the Court’s stay creates some serious administrability hurdles, which complicates the merits review as I explain below. The limitation the Court creates (a "bona fide" connection to the United States) is also open-ended and susceptible to a ton of interpretation. The discretion that's built in to that limitation will be exercised by officers on the ground, and the "bona fide connection" could be interpreted narrowly or broadly. The discretion-laden standard could also be administered in discriminatory ways (whether subconsciously or otherwise).
The Court's limitation on the stay also makes it so there is no link between the 90-day entry ban (as applied to persons who have some connection to the United States) and the internal review process. The Court's stay disposition also let the ban go into effect in some (perhaps small?) respects, but not others, with nary a word about the merits, even though the case will likely be moot before the Court is able to hear argument on the merits. Thus, the ban will (kind of, sort of, but not really) go into (some) effect, and all the Court will likely be able to do in October is dismiss the case as moot, or vacate the underlying opinions on the ground that the case has since become moot. It is a little odd to grant a petition and accompanying stay requests in a case, knowing it will become moot before argument is heard.
(3) Two quick thoughts on the merits. One, to the extent the Court hears and disposes of the case on the merits next term (which I do not think it will), the government’s position will be considerably weaker by then in two respects. The Court’s refusal to stay the injunctions as they are applied to persons with bona fide connections to the United States means that the government is obligated to carry out existing entry/vetting procedures and admission into the refugee programs for persons with connections to the United States while simultaneously conducting its internal review of entry procedures and the refugee program. The government’s argument for the entry ban and suspension of the refugee program, however, has been that that is impossible to do—that it cannot simultaneously review existing entry procedures while carrying out those very procedures. The claim has always been dubious, and the stay indicates the Court doesn’t really buy it either. Moreover, to the extent the Court does hear a challenge to the entry ban on its merits in October, by that point the “internal review” of entry procedures will have been completed. Thus, the government’s stated rationale for the entry ban (to allow it to review existing entry procedures) would not justify an entry ban as applied to persons with connections to the United States going into effect much later.
The second quick thought is from the dissent. Justices Thomas, Alito, and Gorsuch dissented in part from the Court’s disposition of the stay requests. They would have allowed the entry ban and suspension of the refugee cap to go into effect in their entirety. They wrote: “And I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.” That is not how I read the Court’s opinion (I also don’t think it’s how Marty reads it, based on his post). But that statement does make clear where Justices Thomas, Alito, and Gorsuch stand on the merits—with the government. (That’s not especially surprising, but still notable.)
One final quick thought: Both sides will probably take the Court’s action today as something of a victory. Maybe that’s a good thing, maybe it’s bad. I think that the Court was right not to allow the ban or refugee suspension to go into effect with respect to persons who have a connection with the United States. That said, I would have preferred if that decision (and the decision to allow some of the ban and suspension to go into effect) had been made with more explanation than the Court’s disposition offered. (The lack of explanation is understandable given the timing, but still.) The Court's only explanation is to gesture in the direction of equity and discretion, and essentially just declare that the balance of equities differs for persons who do not have a connection to the United States. True enough, but does the balance of equities differ enough such that the ban and suspension should have gone into effect for those persons, but not others? Or, from the other side, why did the Court conclude that the government has not made the requisite showing (of irreparable harm, or that the lower court’s decisions were wrong) to allow the entire ban and suspension to go into effect? If I’m right, we will never really know, since I don’t expect the Court to issue a decision on the merits.
Cross posted from Take Care
The travel ban endgame (SCOTUS Symposium)
Among its other interesting end-of-term work today, the Court issued a per curiam cert. grant/stay in Trump v. IRAP, the travel ban case. As Steve discusses below, the Court stayed the injunctions in part but left them in place "with respect to parties similarly situated" to the plaintiffs. The Court also ordered "a briefing schedule that will permit the cases to be heard during the first session of October Term 2017," noting that "(The Government has not requested that we expedite consideration of the merits to a greater extent.)"
Now here is where I get a little puzzled.
Constant readers will recall a disagreement that Marty Lederman and I had about whether the challenges to the executive order were going to become moot on June 14. On June 14, the President issued a memorandum clarifying (or amending, if necessary) "the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision." This was supposed to stop the mootness problem, and the Court today also ordered the parties to brief "Whether the challenges to Section 2(c) became moot on June 14, 2017."
But is there going to be a new mootness problem? After all, 90 days from today is September 24th, which is before the Court will hear argument and decide the cases. Marty Lederman says yes:
[T]he case will be moot for two ... reasons: For one thing, the 90-day entry ban goes into effect 72 hours from now, at least as to some aliens (see below), and thus it will expire by its terms on September 27. Moreover, as the Court explains, by October the Section 2 “internal review” should be completed (“[W]e fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).”), and therefore the predicate for the entry ban will be kaput by then, too.
What is weird is that the Court doesn't come out and say this exactly. It says:
In light of the June 12 decision of the Ninth Circuit vacating the injunction as to §2(a), the executive review directed by that subsection may proceed promptly, if it is not already underway. EO–2 instructs the Secretary of Homeland Security to complete this review within 20 days, after which time foreign governments will be given 50 days further to bring their practices into line with the Secretary’s directives. §§2(a)–(b), (d). Given the Government’s representations in this litigation concerning the resources required to complete the 20-day review, we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).
A few questions for now:
1. When does Section 2(c) currently expire? The Court refers to "the 90-day life of §2(c)," without explicitly spelling out when that is. The Presidential memorandum, mentioned above, says that "the effective date of each enjoined provision" is "the date and time at which the referenced injunctions are lifted or stayed with respect to that provision." But what if the injunction is stayed in part, as happened today? Does that trigger the effective date? Or does it trigger it only "in part," so that each provision of the ban will now have two effective dates, one for the plaintiffs and other beneficiaries of the injunction and the other for the rest of the world?
2. Even if Section 2(c) doesn't technically expire, what happens to it once review is complete? I think Marty is right that the travel ban will be much harder to justify at that point. Will the government realize this, and stop enforcing the ban? And if not, isn't the government giving the Court the worst possible vehicle for its claims?
3. Why didn't the Court say more about the endgame it seems to have deliberately set up? It does rather seem as if the effect of today's ruling is to schedule the case for an argument date that it will never reach, and to order the parties to brief a mootness question that will itself be moot, while ignoring the mootness question that will be more relevant in October. So if the Court means "that earlier talk of briefing schedules and additional questions was just for show," this is a funny way to say it.
4. What is the President's next move?
SCOTUS OT16 Symposium: Does the Status-Conduct Distinction in Trinity Lutheran Church lend support to the baker in Masterpiece Cakeshop?
Trinity Lutheran Church v. Comer, decided today, rests on a status-conduct distinction that bears an uncanny resemblance to a similar distinction in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case for which the SCOTUS today granted cert. Could this distinction, which favored the Church in TLC, also favor Masterpiece Bakeshop's free exercise claim?
Being a federalism-inclined law prof when it comes to religious freedom (and most other topics as well), I would deplore such a move. But I could see a reasonable justice's inferring that, if Missouri is constitutionally entitled to discriminate on the basis of religion to avoid being dragooned into supporting the "conduct" of religious education with tax dollars, the Masterpiece Bakeshop ought to be entitled to avoid being conscripted into supporting the "conduct" of same-sex weddings with cakes. Put another way, if facial neutrality of a school voucher program does not suffice to protect a state's taxpayers from the "appearance" of supporting religious education, then then why should the facial neutrality of an anti-discrimination law suffice to save the bakeshop from the analogous appearance of supporting a same-sex wedding ceremony? Calls for "federalism all the way down" invite such analogies between the powers of states and the rights of private organizations, suggesting the devolution of powers enjoyed by the former to the latter in the name of decentralization writ large.
Of course, the SCOTUS might just reiterate that Smith allows all facially neutral laws to be enforced against any employer, at least if the hiring of "ministers" or Yoder-style hybrid rights are not at stake. There is an analogous and equally obvious argument based on Rumsfeld v. FAIR for freedom of speech claims. But suppose that there are five votes to narrow Smith and FAIR. If so, TLC's status-conduct distinction provides coordinates for a surgical strike on facially neutral anti-discrimination laws that could leave standing these laws' prohibition on "status"-based discrimination. To the extent that five justices worry that these sorts of "complicity-based" claims could gut anti-discrimination laws, the status-conduct distinction provides a tempting way to limit the damage but even the score for religious believers.
1. The analogy between status-conduct distinctions in MLC and Masterpiece Bakeshop
First, let's start with the easy analogy. Here's how the status-conduct distinction could migrate from one case (as a delineation of Tenth Amendment powers of the states) to the other (as a delineation of some sort of private free expression/free exercise right). In TLC, the Court distinguished Locke v. Davey by observing that, because Missouri discriminated on the basis of religious "status" rather than "conduct," Missouri had no powerful interest in depriving the church school of ground-up tires for its playground. After all, Missouri had no anti-establishment objection to kids not skinning their knees on pea gravel beyond the fact that they attended a school with a religious "status." By contrast, four votes in the TLC majority (Roberts, Alito, Kennedy, and Kagan) saved a bit of Locke by noting that Missouri might possibly have a stronger interest in withholding money destined to subsidize religious activities (say, religious education or, perhaps, even math education with a spiritual bent). Put another way, despite a constitutional principle ordinarily barring discrimination based on religion, Missouri might be entitled by the Tenth Amendment to draw religion-based distinctions in order to insure that its taxpayers are not coerced into subsidizing religious actions with which those taxpayers disagree.
Compare Masterpiece Bakeshop's claim for a constitutional entitlement to discriminate on the basis of its customers' "actions" in entering into a same-sex marriage rather than their "status" of being gay or lesbian. The bakeshop insists that it is happy to serve same-sex couples or LGBT individuals and, indeed, claims to have done so in the past. The bakeshop simply does not want to support a particular sort of "conduct" -- a wedding ceremony to which the bakeshop objects on religious grounds -- by supplying a cake that allegedly communicates a message of celebration and support.
Could Masterpiece analogize its free exercise interest in avoiding the appearance of supporting particular expressive wedding conduct to Missouri's analogous interest in avoiding the appearance of subsidizing the "conduct" of religious studies? Missouri has (apparently) some sort of powerful interest in not having its taxpayers be dragooned into supporting religious education to which those taxpayers might object. Why does the bakeshop not have an analogous interest in avoiding being dragooned into supporting a wedding message to which it objects?
2. What about precedents like Smith and FAIR v Rumsfeld?
Of course, one could cite the usual precedents (Smith, FAIR, etc.) for the proposition that states have broad authority to enforce religiously neutral or speech-content-neutral laws even when such laws impose "incidental" burdens on religion or speech. Plenty of scholars have applied these sorts of precedents to claims like Masterpiece Bakeshop's to conclude that such claims lack merit. But such reliance on precedent sounds a bit like scholars' rebutting the case against ACA's individual mandate by citing Wickard. For those who want to narrow Smith, the major obstacle is not words on the page of some earlier volume of U.S. Reports but rather the worry that the SCOTUS would face an endless parade of increasingly offensive claims for exemptions from anti-discrimination laws, claims that could either cause major portions of the states' police powers to crumble or place the SCOTUS in the embarrassing position of making purely political and ad hoc distinctions between levels of burdens.
The status-conduct distinction of TLC might conceivably provide a simple way to limit the damage to the states' police powers in a way analogous to the action-inaction distinction's limit on the Court's incursion on the Congress' commerce power in NFIB v. Sebelius. The Court might hold that, by forcing (certain) businesses (sole proprietorships?) to supply "expressive" services supporting "conduct" to which the business owner has religious or even ideological objections, state or local laws violate the First Amendment's free speech or free exercise clause. Cakes, flowers, and photos might sufficiently qualify as "expressive" along the lines of Hurley. By emphasizing that businesses could not use the First Amendment to exempt themselves from laws forbidding discrimination based on racial, religious, or gender "status," a SCOTUS majority might try to cut short a parade of horribles in which anti-discrimination laws generally bite the dust to complicity-based free exercise claims.
3. Why might such a "conduct"-based theory be tempting, if not persuasive?
As I noted above, I would deplore such an incursion into the states' Tenth Amendment powers, and I tend to doubt that a status-conduct distinction would sufficiently minimize the damage. But I could see why some justices might be tempted to limit Smith and FAIR to even the score between religious and secular interests. After all, so long as Lemon stands, those who object to states' providing aid to religious "conduct" can bring an Establishment clause claim insisting that states carve out special exceptions to such laws, even when such laws are facially neutral w.r.t religion. If a taxpayer can be coerced into complicity with religion by a voucher formally extended to all schools, religious and secular, then why cannot a small business be coerced into complicity with non-religion by a facially neutral anti-discrimination law?
The solution, a federalist like myself would say, is to strengthen Smith by eliminating the last vestiges of Lemon. Zelman went a good way towards such elimination. Even Zelman, however, focuses on the actual, practical freedom of parents to make non-religious choices with facially neutral vouchers, while Smith, by contrast, ignores the actual, practical freedom of religious believers to escape generally applicable burdens. Until this asymmetry is remedied, some justices will feel a justifiable temptation to narrow Smith with something like the status-conduct distinction in TLC.
A Small But Important Aspect of OT16: Resisting "Brilliant" First Amendment Arguments
Allow me to offer one discrete and fairly mundane observation about the Court's treatment of the First Amendment this Term. Last week, I thought the most important sentence in the Slants case, Matal v. Tam, was this one: "This brings us to the case on which the Government relies most heavily, Walker [v. Texas Div., Sons of Confederate Veterans, Inc.], which likely marks the outer bounds of the government-speech doctrine" (emphasis added). To that I would add a passage from today's decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, in which the Court distinguishes its earlier decision in Locke v. Davey. Neither of these moves is extraordinary, dazzling, innovative, or anything of the sort. Both are very much the stuff of standard case-crunching. But I think they're both noteworthy moves, in two respects.
1) Both of those cases, and especially Walker, are the subject or basis of efforts by some First Amendment scholars, particularly those of an expressivist and/or strongly egalitarian bent, to find brilliant new ways to apply and extend (their understanding of) the First Amendment. On this reading of the legal issues raised in cases like Walker, government would have an enhanced regulatory ability to avoid perceived "endorsement" of various values, or even a constitutional obligation to avoid "endorsing" or being seen as endorsing various values seen as anathema to particular social/constitutional values. One might see Locke as the basis of similar expansive efforts in the Establishment Clause area. On this reading, Locke gives ammunition for a broader argument that government can, or even must, regulate more aggressively, despite claims of equal access to funding or programs by religious individuals or groups, in order to avoid being seen as in any way "endorsing" religion or religious values. As my friend Marc DeGirolami summarizes this line of argument, "government conduct that is motivated by even the possibility that somebody might perceive religious endorsement (even if nobody actually has) is itself justified and validated by the Establishment Clause." Both cases are thus tools for creative, even brilliant, readings of existing First Amendment law and principles in a way that would give government considerable discretion, or even a positive obligation, to avoid "endorsement" of values that are actually or purportedly contrary to the (actual or aspirational) Constitution.
Of course I mean "brilliant" as both a sincere compliment and an expression of concern. The skill of some of this scholarship is great and it makes for thought-provoking reading. But there is now a long post-Daniel Farber tradition of recognizing the limits, dangers, and sometimes hubris and overreaching quality of "brilliant" arguments in constitutional law. However I might feel about it in scholarship, on the whole I would just as soon not have courts go in for "brilliant" extensions of First Amendment doctrine and "values." There is no particular reason to think judges or law clerks have the wisdom or skill or forethought about consequences to engage in these brilliant extensions wisely or well. There is little reason to think government will be wise in its use of such "nonendorsement" principles either; but at least those applications are subject to some political control and capacity for revision. Constitutionalizing the principles and turning them, more or less, into judicial mandates would eliminate that safeguard. I am not defending current doctrine; and for that and other reasons, I find much to think about, and therefore admire if for no other reason, in some of these brilliant arguments. But I think we would on the whole be better off if judges did not pay too much attention to them. Both Tam and Trinity Lutheran show little interest in these kinds of brilliant extensions, and some interest in foreclosing them. That, I think, is noteworthy in and of itself.
(On the other hand, I am perfectly amenable to smart and provocative scholarly arguments for fairly radical revision of constitutional doctrine in this and other areas. But I prefer such suggestions to be put explicitly as radical revisions, which are harder to put over quietly and thus require more debate and discussion before doing so. That is better than the strategic approach of treating clever or brilliant arguments for radical revisions as if they are implicit in existing doctrine, and thus are either already required or need just a little modest judicial work to achieve. The latter approach is much more elitist and anti-democratic than the former.)
2) These signals from the Court (if that's what they are) are also important for the Supreme Court's relationship with lower courts. In some of these areas, in my view, the lower courts have been much more receptive to brilliant arguments of this sort, and much more willing to apply them, despite and sometimes in fairly obvious if implicit disregard of the Court's own opinions and direction. The passages that I've identified in Tam and Trinity Lutheran show that these kinds of innovations won't find a Court that is eager to adopt them. I don't expect the lower courts to stop pushing their own visions just because the Court sends signals like this, or even stronger ones. The Supreme Court only takes so many cases; it only decides them so clearly and leaves lots of room for clever readings and exploitation of open spaces; there are many smart, driven, and politically committed lower court judges; and courts and judges, like the rest of the nation, reflect political and societal fissures. Lower courts do not have to read tea leaves if they do not want to, and sometimes it suits them not to do so. So I don't mean to overemphasize the importance of the signals here. But I do think both passages make clear that the Supreme Court won't give a friendly reception to lower court innovations in these areas.
SCOTUS OT16 Symposium: The Travel Ban Injunctions and 23(b)(2)
Today's ruling in the travel ban cases highlights some of the procedural questions that Howard, Sam Bray, and others have raised. The Court narrowed the existing injunctions, but not all the way: it left them in place "with respect to parties similarly situated" to the plaintiffs.
That "similarly situated" phrase echoes the language often used in class actions. But, as Justice Thomas pointed out, these suits have not been certified as class actions: they're on behalf of particular named plaintiffs, though the remedies sought are more typical of a class.
That's why the Court, in framing this "similarly situated" group, was itself forced to work through some of the issues ordinarily handled by class action doctrines:
The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
(Edit: As Justice Thomas also points out, the defendants will have to work out the same reasoning, "on peril of contempt.")
Here's my question. Suppose that none of these cases had ever been brought. Instead, one of the named parties had brought a class action under 23(b)(2), seeking only injunctive relief, and defined the class as containing "all foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." Would such a class be certified?
Class action practice isn't my area of expertise, so I can't really be sure (though my suspicion is no). What I'm more sure of is that the district court would have had to analyze a number of questions at length: Is this class definition proper? Are the named plaintiffs were typical of the class and adequate to represent them? Does the class contain members with interests adverse to the named plaintiffs, or to each other? Would a judgment describing such a class be sufficiently precise under 23(c)(3)(A) to determine its preclusive effect on individual litigants in future cases? And so on.
And it also strikes me that these inquiries have been short-circuited by the plaintiffs' obtaining an injunction that covers more people than are actually parties to the case. Why does Rule 23 impose so many barriers to making absent people into parties, if we can get the same ruling without those people before the court? Why have the judge appoint class counsel under 23(g), if any old lawyer can walk into court and get an order with exactly the same breadth?
Others have made this point before -- and again, class actions aren't my specialty, so I'm happy to be corrected. But it strikes me that this sort of injunction is at the very least in tension with the existing framework of Rule 23. And if they're good ideas nonetheless, then we should recognize that formally: by proposing new amendments to Rule 23, to tell us when the Rule's requirements should and shouldn't be relaxed.
Religious Status versus Religious Conduct: Free Exercise Federalism survives by a hair in Trinity Lutheran Church
Although I was disappointed by the result in Trinity Lutheran Church v. Comer, I was hardly surprised. After oral argument, it seemed pretty obvious that Missouri was going to lose and that federalism for free exercise doctrine was going to take a hit. The interesting question was whether Locke v. Davey was going to survive or be shaved into oblivion. Locke v. Davey, I am relieved to say, survives by a hair.
The Court distinguished Locke with the good old' status-conduct distinction. "Davey was not denied a scholarship because of who he was," Roberts wrote, but "was denied a scholarship because of what he proposed to do —- use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is -- a church." States, therefore, still remain free to carve church schools out of voucher programs that pay for (among other things) religious education. As if to reassure federalists, Roberts dropped a footnote that Justices Thomas and Gorsuch refused to join: "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." Justices Thomas and Gorsuch, concurring in everything but footnote 3, plainly would overrule Locke and institute simple strict scrutiny across the board for all classifications that single out religious organizations for any disabilities.
What follows is my federalist's plea to Gorsuch and Thomas (or, at least, encouragement to Roberts, Kennedy, Alito, and Kagan) to stick with the federalist course of Locke. You might ideally want strict scrutiny for anti-religious classifications, just to bring the Free Exercise clause into line with the Equal Protection clause's simple framework for suspect classifications. But are you willing to strictly scrutinize all pro-religious accommodations?
There is, of course, no necessary logical connection between tolerance for states' religious accommodations and accommodation for their "no-aid" limits on the financing of religious organizations. The Religion clauses single out religion for special protection: As a logical matter, what is wrong with a little extra protection, above and beyond that afforded by Smith, from Congress and state and local legislatures? Maybe strict scrutiny only runs one way.
There is, however, a practical and emotional connection between the rhetoric of strict scrutiny for burdens on and benefits for religious believers. The more that religious believers demand special carve-outs from regulatory burdens like the contraception mandate or anti-discrimination laws, the more unreasonable it will seem to give them the best of both worlds -- formal neutrality when it comes to benefits but special treatment when it comes to burdens. As Abner Greene noted decades ago, the practical case for special accommodations is practically strengthened by the practical limits that religious believers face in taking advantage of secular programs.
If the religious organizations succeed in their demand for simple formal neutrality with the benefits of government, then the rhetoric of strict scrutiny can hardly fail to touch special religious exemptions from burdens that everyone else has to endure. The intuition that one must take the bitter with the sweet, after all, while little more than an occasional slogan in the doctrine is a powerful mood nonetheless. If the collateral consequence of overruling Locke is that Hobby Lobby-style accommodations are viewed more skeptically, then, from the point of religious believers, MLC will be a Pyrrhic victory and a lousy bargain for religion.
SCOTUS Symposium: Packingham and Fact-Checking the Supreme Court
Last week’s decision in Packingham v. North Carolina is getting a lot of attention in part because of this fact checker column in the Washington Post. Packingham involved a challenge to a North Carolina law that severely restricted the ability of registered sex offenders to access various websites, including Facebook, LinkedIn, and Twitter. All eight participating Justices agreed that the law violated the First Amendment because it was unable to satisfy intermediate scrutiny. Although the Court acknowledged that protecting children from sex offenders was a legitimate government interest, the law burdened more speech than was necessary to further that legitimate interest.
Justice Alito wrote separately to criticize the majority for including “undisciplined dicta” in its opinion. Justice Alito’s concurrence included the following paragraph:
Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” McKune, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op., at 8–9).
The paragraph appeared in the portion of his opinion that concluded the North Carolina law “easily satisfies” the legitimate government interest prong. It was this paragraph that the Washington Post decided to fact check. Interestingly, the Post did so after first noting that it does not normally fact check the Supreme Court, but then explaining: “the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.”
Oddly, the fact check does not show that this factual claim by Alito is false. Rather the article claims that it is misleading. Specifically, the article states:
The reference to sex offender rearrest trends in Alito’s opinion is quite misleading. It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release. This makes it seem like recidivism among sex offenders to be [sic] a uniquely bad problem, but it is an apples-to-oranges comparison.
As Ed Whelan notes in the National Review, the Washington Post article is quite strange because it refutes a factual claim that Alito didn’t make. The article notes that sex offenders are arrested at the lowest rate for the same crime as compared to people convicted of other crimes. And it notes that of all previously incarcerated offenders arrested for sex crimes, only 13% were previous sex offenders. But these facts do not refute the narrow factual claims Alito makes in his concurrence.
The real problem that the Post has identified (though expressed poorly) is that Alito’s opinion could be read to endorse an oft-repeated claim that sex offenders pose a unique recidivism risk, making sex offender registries and a host of other post-conviction restrictions justified. Indeed, in a 2002 opinion, the Supreme Court stated that “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” and referred to the recidivism rate of sex offenders as “frightening and high.” The Washington Post takes pains to debunk this factual claim, even though it was not included in the Packingham opinion.
I partially share Ed Whelan’s criticism of the Washington Post fact check. Justice Alito’s statement about the relative re-arrest rates for different offenders is factually accurate. And although the Washington Post tells us that there are other facts that appear better calculated to assessing how dangerous sex offenders are, that does not make Alito’s statement inaccurate.
Where Whelan and I part ways is that I nonetheless think this paragraph from Justice Alito’s opinion is misleading, if not false. The problem with this paragraph is not, as the Washington Post claims, that it cherry picks particular statistics and leaves out other statistics. It is instead the topic sentence of the paragraph. The paragraph begins with the claim “Repeat sex offenders pose an especially grave risk to children.” But the facts that are contained in the rest of the paragraph do not support this claim, and there are other statistics indicating that this factual claim is false.
The topic sentence is quite clear—it claims that repeat sex offenders pose a particularly serious risk to children. But the only fact offered in support of this claim is that previously convicted sex offenders are more likely to be arrested for another sex offense than are individuals who had previously been convicted of a non-sex offense. But how often prior sex offenders are arrested for subsequent sex offenses tells us next to nothing about the risk that repeat sex offenders pose to children. The data Alito cites on re-arrests tell us nothing about the age of the victims. Nor does information about re-arrests tell us how likely it is that a person who victimizes children was previously convicted of a sex crime.
But there is data that Alito didn’t cite on both of these questions, and they do not support Justice Alito’s claim. When we look at recidivism data broken down by age of the victim, we do not see a large group of people repeatedly targeting children. This federal study, for example, shows that although more than 50% of individuals convicted of a sex crime against children had a prior conviction, only 7.3% had a prior conviction for a sex offense against a child. (Look at Table 6.) This is consistent with recent reporting from Joshua Vaughn of the Carlisle Sentinel. He reports that in some Pennsylvania counties, 95-100% of all sex crime arrests are for people who are not on the registry, even though police devote as much as 60% of their resources to enforcing registry laws. These figures flatly contradict Justice Alito’s claim that “Repeat sex offenders pose an especially grave risk to children.” The serious risk to children appears to be coming from groups other than repeat sex offenders.
Of course, one could argue that Alito limited his claim of “grave risk” to repeat sex offenders. If we read his claim excluding those previously convicted sex offenders who do not reoffend, then Justice Alito has limited his factual claim in a way that ensures it is accurate—those who have or will reoffend by definition pose a risk of reoffending. But that seems like a bizarre way to read Justice Alito’s opinion. The North Carolina law regulated the behavior of all previously convicted sex offenders, not simply those who have or will reoffend. And if we were supposed to read Justice Alito’s opinion in this tautological way, then I would expect to see this mentioned in the portion of his opinion that discusses whether the law burdens substantially more speech than is necessary” to achieve the government interest. But that section of his opinion is devoted entirely to the types of websites that the statute covers.
In sum, I think that it is fair to say that Justice Alito makes a misleading, if not false, factual claim in his Packingham concurrence. But it is not the claim that the Washington Post identifies.
SCOTUS Symposium: Lee v. United States and Ineffective Assistance of Counsel
As we wait for today’s decisions, I wanted to make a few quick comments about last week’s decision in Lee v. United States. Lee involved an ineffective assistance of counsel challenge. Petitioner was a lawful permanent resident who had been indicted on drug charges. His defense attorney negotiated a plea bargain for him that would have permitted Petitioner to serve less jail time. Petitioner sought reassurance from defense counsel on multiple occasions that the plea deal would not result in deportation. Despite defense counsel’s repeated reassurances to the contrary, the charges that Petitioner pleaded guilty to triggered mandatory deportation.
The question presented in Lee was whether Petitioner could get relief for his defense attorney’s ineffective assistance. There was no dispute that defense counsel failed to provide constitutionally adequate assistance—misunderstanding relevant law and failing to investigate are basically the only attorney errors that satisfy the “deficient performance” prong of the ineffective assistance test. The other prong of the test is whether the defendant was prejudiced—namely whether, but for counsel’s deficient performance, the outcome of the proceeding would have been different. Here, the Sixth Circuit concluded that Petitioner could not satisfy the prejudice prong because the evidence against him was overwhelming. If the Petitioner would have been convicted at trial, the court reasoned, then the outcome would not have been “different”—Petitioner would have been convicted, imprisoned, and then deported.
In a 6-2 decision, the Supreme Court reversed. In the majority opinion, Chief Justice Roberts explained that the prejudice here was the Petitioner’s forfeiture of the right to trial by pleading guilty. In his dissent, Justice Thomas (joined by Justice Alito) argued that prejudice requires not only a showing that the defendant would have proceeded to trial, but also that the defendant would have been better off going to trial. Both the majority and the dissent supported their positions with language from the Court’s previous ineffective assistance cases, none of which clearly settled this issue.
Although I don’t think that the Court’s previous opinions necessarily settled this question, I do think the majority was nonetheless correct. First, there are good reasons not to make the prejudice standard any more difficult to satisfy than it already is. As many others have noted, the prejudice prong of ineffective assistance of counsel is notoriously difficult to satisfy. And there is a reasonable argument to be made that it unfairly limits Sixth Amendment rights to the innocent.
Second, the dissent’s prejudice standard would have been impossible for most defendants to satisfy. A defendant who is deciding whether to plead guilty often does so without access to information that may have helped her assess her likelihood of success at trial. As a result, a defendant who seeks to challenge the effectiveness of plea bargain counsel is unlikely to have access to information that would indicate that she might have prevailed at trial.
Finally, and most importantly, the majority opinion (at least implicitly) acknowledges the importance of the right to a jury trial. Our criminal justice system is essentially a system of pleas, rather than a system of trials. Substantive criminal law and criminal procedure are currently designed to ensure that the vast majority of defendants accept a guilty plea rather than insist upon their right to trial. Implicit in our system of pleas is the idea that ours has become an administrative criminal justice system, more concerned about processing large numbers of defendants rather than ensuring justice through adversarial testing. I happen to believe that the process of trial has its own value, not only to defendants, but also to society as a whole. In saying that the deprivation of the proceeding of a jury trial is itself prejudice, the majority lends some support to that view---a view that used to be considered a bedrock principle in this country.
SCOTUS Symposium: Perry v. MSPB
I wrote an analysis for SCOTUSBlog of Friday's opinion in Perry v. Merit Systems Protection Board. My post-argument prediction that Justice Gorsuch would dissent was correct, although I predicted a solo dissent and he got Justice Thomas to come along. I describe the opinion as Gorsuch announcing his presence with authority on statutory interpretation. This is a minor case, but it portends some sharp divisions in the coming years.
Federalists do not know how to party: Why Federalism is a Boring but Vital Idea
Stephen Marche complains in yesterday's Sunday NY Times that "Canada doesn't know how to party," because Canadians are unenthusiastic about celebrating the British North America Act of 1867, the statute that created the modern Canadian state. It is not that Canadians dislike the BNA. It is just that the BNA is boring -- "the single most boring object ever produced by human consciousness," in Marche's words. It is a long, technical document largely designed to accommodate Anglophones' and Francophones' mutual desire to be left alone. Since 1982, when the BNA was "repatriated" to become Canada's Constitution, it has been gussied up with a Charter of Rights and Freedoms, but even this addition is qualified by section 33's "notwithstanding" clause allowing provinces to opt out of Canada's bill of rights.
As a mere federal framework for mutual non-interference, Canada's Constitution has a whiff of the dull drudgery of a good-enough marriage. (The BNA begins with this soporific preamble: "Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion...."). And yet, as Marche notes, the absence of celebration is a pity, because Canada's success as an extraordinarily peaceful, prosperous, multi-national state owes a lot to this dull, "go along to get along" document.
Marche's piece could be generalized as posing the essential dilemma faced by the idea of federalism. Because it is a boring and merely territorial compromise, federalism can be effective at defusing otherwise intractable partisan or ethnocultural disputes that resist resolution through national theories about the Good and the Just. But precisely because it is boring, the federal idea is hard to enforce when it conflicts with one's more passionate commitments. The result is that each side is tempted to bail from a federal commitment when disputed rights are at stake, causing the entire system to unravel. Of course, one might rationally realize that one's passionately felt right is one's opponent's passionately felt wrong and that winner-take-all nationalism might leave one with nothing when that opponent controls the national government. But such dry, rational argument is easily brushed aside when one has the reins of national power in one's own hands and can end, once and for all, [fill in your own pet cause]. Against the cautious federalist who wonders whether the policy in question really is a necessarily national policy about which reasonable people cannot disagree, the nationalist brusquely offers the Reductio ad Brownum ("So would you safeguard Jim Crow with federalism?"). It turns out that, when one has a congressional majority, every policy with which one disagrees, from Sanctuary Cities to Clear & Convincing Proof standards for college campus sexual assault hearings, looks as bad as Jim Crow.
The problem with federalism is, in short, that we Federalists do not know how to party -- which is a shame, because there is actually a lot to celebrate in a robust federal regime.
Sunday, June 25, 2017
SCOTUS Symposium: The final week
We enter the final week of June and the final week of the Term. Six cases remain, with Monday the final scheduled opinion day, so expect a flurry. I am most interested in Hernandez v. Mesa, which could produce either further contraction of Bivens or further expansion of qualified immunity. Plus, the Court has full briefing on the travel ban cases. Plus, rumors of Justice Kennedy's retirement are heating up. Or maybe it is Justice Thomas.
So as we enter the final week and the wrap-up to our End-of-Term Symposium, let's talk about everything that happens on Monday, as well as some broader lessons, conclusions, criticisms, praise, and perspectives from the Term as a whole, and some predictions about what might happen in OT 2017.
Does Article VII's Up-or-Down Process Weaken the Case for Constitutional Textualism (i.e., New Originalism")??
In constitutional interpretation, the "New Originalism" (nicely described by Larry Solum, among other places, here) bears an uncanny resemblance to the old statutory textualism of the mid-1990s and early 2000s. The focus of New Originalists on the original public meaning" of the Constitution's text is essentially (at least so far as I can tell) just constitutional version of the idea that the law is to be found not in the law-makers' intentions or even the law's apparent Big Purpose but instead in those textual details that reflect the compromises necessary to enact the law.
The analogy between the New (Constitutional) Originalists and the old statutory textualists, however, breaks down in one possibly important respect. In the context of statutory interpretation, statutory textualists justified textual primacy with the idea of the Statutory Compromise: The little details of text reflect a the vector of forces in the legislature both for and against a statute. To quote John Manning, "courts risk upsetting a complex bargain among legislative stakeholders if judges rewrite a clear but messy statute to make it more congruent with some asserted background purpose." Choosing between series qualifiers and last antecedents, fly-specking contemporary dictionaries (or now, for the cognoscenti, "corpus linguistics"), arguing about the application of Latinate "intrinsic aids" are all just ways to decipher the legislative bargain, because the various interests in the legislature allegedly talk to each other through such arcana. By respecting the text, you respect the deal hammered out between equals, thereby protecting best evidence of what We the People, in our quarrelsome, squabbling collective soul, really want (and don't want).
None of this reasoning about statutory bargains, however, applies very well to the "take-it-or-leave-it" constitutional text presented by the Federalist-dominated Philadelphia convention to state ratifying conventions. The state conventions had to approve or disapprove that text through seriatim up-or-down votes without any chance to amend the proposal. As Romer and Rosenthal noted almost 40 years ago, monopoly power to set the agenda with an unamendable proposal allows the agenda-setter to press through measures that the voters might actually dislike much more than many plausible alternative taken off the table. The Anti-Federalists understood Romer's and Rosenthal's insight without needing any graphs and equations: They repeatedly and bitterly complained that they had no chance to fine-tune the proposal by modifying powers, craft compromises, or multiply rights.
Why, then should anyone take the textual details of this take-it-or-leave-it text to reflect some normatively attractive vector of interests? At the very least, the normative argument routinely deployed on behalf of statutory textualism -- textual details reflect a fair compromise among legislation's supporters and opponents -- seems out of place with the New Originalism. "Purposivism" rather than textualism, therefore, might, therefore, be the most appropriate interpretative stance for our Constitution. With such a Constitution as opposed to statutes, we ought to be skeptical about textual certainty and willing to find ambiguity justifying non-semantic "constitutional construction. To paraphrase McCulloch, we must never forget that it is a take-it-or-leave-it text that we are expounding.
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.
1. How might SCOTUS's protection for private property legally erode property rights? The problem is that the SCOTUS invites subnational officials to evade takings doctrine by manipulating whatever narrow aspect of state law the federal courts decide to federalize. Take Murr as a case in point. The Murrs owned two contiguous lots that they had received from their parents. Wisconsin's rules protecting the St. Croix River, however, barred the Murrs from building a house on each of the lots, because neither met the State's minimum lot size. Since the two lots together had sufficient combined acreage for a structure, the Murrs could maintain or refurbish their existing house already located on one of the lots.
Does the prohibition on the construction of one structure per lot deprive the Murrs of 100% of the economically beneficial uses of one lot? Or should SCOTUS treat the two lots as a single unit of property for which the Murrs already had a reasonable beneficial use? Chief Justice Roberts in dissent urged a position powerfully argued by Ilya's amicus brief on behalf of nine state governments: Roberts asserted "[s]tate laws defin[ing] the boundaries of distinct units of land ... should, in all but the most exceptional circumstances, determine the parcel at issue" for the purposes of federal takings doctrine. As I have noted in an earlier post, however, such a stance just invites states to slow-walk all efforts to subdivide parcels. If the federally protected aspect of state law is the lot line, then one can predict that counties will be loathe to allow farmers to split their farms up, multiplying lots lines and, thus federally protected property.
Ilya responded that such a worry is merely theoretical, because "[m]ost subdivisions are done for purpose of transferring part of the previously unified lot to a new owner," and such transfers "would increase the risk of takings liability even if the state wins Murr (which deals with situations where contiguous lots are owned by the same person or organization)." Ilya's response, however, overlooks how subdivision plats are really approved nowadays. Typically, a farmer or other large landowner sells an option to a developer to buy the land for subdivision and development contingent on approvals for subdivision from the local government (typically the county). At the time that the subdivision plat is submitted, there are usually no buyers of the lots to be split: Transfer of those individual lots is usually anticipated far down the road, once roads are graded, utility lines dug, and a few model homes constructed. By announcing a doctrine that subdivision freezes into place federally protected property rights, the SCOTUS would simply give counties more incentives to demand larger up-front payments from the developer -- a bigger letter of credit, a more ironclad assurance that the necessary exactions would be forthcoming.
In short, Ilya's position in Murr would force developers and farmers to pay for perhaps unwanted "takings insurance," guaranteeing them buildable lots if the split is approved -- but only at the price demanded by the authority approving the split. If you think that it is a bad idea to force citizens to buy health insurance, then why would you force them to buy takings insurance? (Okay, that was admittedly a cheap shot). More seriously, why would anyone think that a federal takings doctrine so easy for local governments to evade would do anything but add to the legal transaction costs of transferring title, by making local governments more wary of routinely approving lot splits?
2. How might SCOTUS's expansion of takings doctrine politically endanger property rights (or SCOTUS)? The problem with a vigorous federal takings doctrine goes deeper than the technicalities of Lucas' total takings rule and lot splits. More fundamentally, the SCOTUS just does not have the political clout to face down landowners -- and ultimately any federally protected theory of property rights will face opposition from precisely this potent source.
The gravest attack on property rights is excessively stringent zoning that is now strangling our nation's housing supply. Landowners -- especially homeowners -- are, however, devoted to the preservation of zoning. For them, zoning is not the contradiction but rather the instantiation of property values. Such "homevoters" (Bill Fischel's telling phrase and concept) vigorously defend such zoning rules through local politics that unite urban liberal Democratic "brownstoners" in Brooklyn with suburban Republicans in Westchester County. No politician will dare to tackle this interest group, and SCOTUS would be fools to think that they could significantly unravel the regulations with which these voters have swaddled their biggest investment. The SCOTUS that tried to tackle zoning would, I predict, face a backlash that would make the ire at Roe v. Wade look like a minor partisan snit. Environmentalists, historic preservationists, suburbanites invested in their exclusionary zoning, local officials invested in their most important governmental function, would all rise as one and smite the Senate that allowed any justices to be confirmed who would encroach on their sacred "zoning fee simple absolute."
The SCOTUS is well-aware that that the sacred cow of zoning is immune from any knife that the federal judiciary is capable of wielding: They would beat a hasty retreat faster than you can say Euclid. Indeed, there is no need to retreat: Even the Rehnquist Court never advanced into such a perilous quagmire: They essentially withdrew the federal courts from the business of takings doctrine in San Remo Hotel.
3. So where should we look for property rights protection? Mostly state law, I believe. the Oregon legislature is considering a bill to cut back on zoning. The California legislature has enacted a raft of laws like the Density Bonus Law and Housing Accountability Act that place serious limits on local power to destroy property rights. Only the state legislatures and state courts have the electoral legitimacy, experience, and fine-grained tools necessary to contest the hegemony of zoning. Such a contest is a grueling slog through the minutiae of how land-use regulation actually operates, in thousands of tedious administrative hearings and millions of pages of environmental impact statements and the like.
The pretense that the federal courts will ever provide a serious counterweight to zoning is, I think, a fantasy fostered by the sheer academic fun of takings doctrine and the theatrical drama of Supreme Court set pieces like Lucas and Murr. Like the solemn drama of a regal coronation in England, however, such theatrics are not really where the practical power lies. Cases like Murr merely ratify what we already really know: When it comes to property in land, the states are inevitably in charge, and it is there that we libertarians ought to direct our energies.
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.
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.
By way of background, Abbasi declined to recognize a cause of action for damages against federal officials in the context of the plaintiffs’ case. However, Abbasi clearly and emphatically asserted that Bivens remains “settled law." To wit:
[I]t must be understood that this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere.
So Bivens abides as a “fixed principle” in the “common and recurrent sphere of law enforcement.”
But consider the following tweet from a characteristically insightful thread by Steve Vladeck:
Unless Hernández walks some of this back (it probably would've come down today if so), #SCOTUS has all-but limited Bivens to its facts.
If Abbasi had really “limited Bivens to its facts,” then the outcome in Hernandez would be foreordained. Yet the tweet acknowledges that Hernandez might yet give Bivens new life.
Writing at Take Care, Mike Dorf is to similar effect in a learned post that substantially concurs with Steve’s analysis:
The Abbasi decision now all but overrules Bivens. Although the Court preserves Bivens "in the search-and-seizure context in which it arose," Justice Kennedy's decision for a 4-2 Court (minus Justices Sotomayor, Kagan, and Gorsuch) severely cuts back on Bivens in just about every other context.
But if Abbasi “all but overrules Bivens,” can it really be true that Abbasi also “preserves Bivens” for a large category of cases?
Or consider this: if the Court eventually rules against a Bivens remedy in the search-and-seizure context, would Bivens have been “all but overruled” or “all-but limited … to its facts” for a second time?
Or perhaps for the third time. Back in 2010, Steve wrote an article in which he noted (and dissented from) “the consensus view … that Iqbal is an unremarkable addition to a long line of Supreme Court decisions over the past quarter-century in which the Court has effectively limited Bivens to its facts—just another nail in a coffin long-since sealed."
And before that, in 2008, Natalie Banta’s student note argued that “Bivens has effectively been limited to its facts and after Wilkie is very close to a complete demise."
And before that, the Court declared in Malesko (2001): “Since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants.” Wasn’t that just as much a precedential foreboding of Bivens’s impending demise?
Yet Bivens lives on, even if only to be killed off again. Similar stories could be told about Miranda, Flast, and other cases.
What can we learn from this zombie tale? Here are three quick points.
First, saying that Bivens has been “narrowed” lacks the rhetorical force of saying that it’s been “all but overruled” or “limited to its facts.” But the vocabulary of narrowing has the advantage of being more accurate. Abbasi narrowed Bivens by adopting a reading of that case that is narrower than the best available reading. And a precedent that is narrowed (as opposed to overruled) is still good law and has a chance of growing yet again. (Think of Lemon, which Justice Scalia famously compared with a "ghoul" that is "repeatedly killed and buried," only to emerge once more.) Further, we should assess narrowing differently from overruling. To evaluate Abbasi, we need to know how much the relevant precedent has been narrowed, how much value the precedent has lost, and whether the narrowing was supported by legitimate reasons. The stare decisis factors for overruling shouldn't apply.
Second, in arguing that the Court has effectively overruled Bivens or limited it to its facts, commentators implicitly privilege Bivens over the more recent cases cutting back on it. But all these cases are precedential, and the Court’s precedential duties accordingly point in different directions. In fact, the long line of cases narrowing Bivens may in themselves support a precedential argument in favor of further limitations on Bivens.
Justice Kennedy’s majority opinion in Abbasi underscores that point. For example, the Court quotes Iqbal in reasoning that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” And the Court includes a long string cite of controversial cases that declined to find Bivens applicable. Perhaps Abbasi alters Bivens in a qualitatively greater way than prior decisions; but even if so, that added step may itself find precedential support in the foundations laid in cases like Malesko, Wilkie, and Iqbal.
Justice Breyer’s excellent dissent in Abbasi recognizes this aspect of the Court’s reasoning and responds as follows:
Thus the Court, as the majority opinion says, repeatedly wrote that it was not “expanding” the scope of the Bivens remedy. But the Court nowhere suggested that it would narrow Bivens’ existing scope.
However, the Court often says that it is “not extending” when it is narrowing. (That is a statement of fact, not an excuse.) Abbasi itself supplies an example, as the Court yet again says it’s simply choosing not to extend. But, as the Abbasi dissent recognizes, narrowing is the order of the day.
Finally, the regularly renewed lamentations over Bivens’s demise raise the question of whether it is “easier” or less costly for the Court to narrow a disfavored precedent gradually, as opposed to overruling it immediately. There may not be one general answer to this question. When overruling occurs in a salient case, as in Citizens United, it can garner enormous critical attention. But overruling often occurs more discreetly. And narrowing over time allows for waves of criticism. The Court may be able to kill a case by a thousand cuts, but it too could end up scarred. Abbasi illustrates this possibility, as the Court controversially narrowed in a high-profile case.
Of course, the fact that Bivens has been narrowed over time doesn’t mean that it will ever be overruled, effectively overruled, or limited to its facts. Perhaps the Court meant it when it said that there are “powerful reasons to retain” Bivens, if only within a certain “sphere.” We should hardly be surprised if a case with nine lives outlives us all.
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...
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?
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.
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.
The symposium will explore the impact that Terry and its endorsement of stop-and-frisk has had on communities of color, policing, and even national politics. We welcome a variety of proposals, including those that provide a narrative account of Terry and its aftermath, as well as those related to civil rights litigation, how stop-and-frisk is understood or misunderstood, Terry’s doctrinal importance, and its use in practice. At least one panel featured at the symposium will highlight how Terry impacts policing in Idaho. Additional issues that may be addressed include:
· What was the result of the Court’s decision to downplay racial profiling in Terry?
· Does the public believe that stop-and-frisk is unconstitutional? If so, why?
· How do outstanding arrest warrants affect the use of stop-and-frisk?
· What was the impact of the Section 1983 litigation regarding the NYPD’s use of stop-and-frisk?
· Should Terry be overruled?
Symposium papers or presentations addressing the topics above—or others proposed—will be presented at the conference, with publications appearing in the Symposium volume in Spring, 2018. We will also consider proposals for presentations without written contributions.
Draft abstracts of no more than one page and queries may be addressed to Patxi Larrocea-Phillips, Chief Symposium Editor, at [email protected], as soon as possible and no later than July 31, 2017.
Travel expenses will be paid for presenters of accepted papers or presentations.
This is an exciting year for the University of Idaho College of Law. Our dual location model comes full circle this fall as we welcome our first Boise 1L section. Students now have the option of completing their legal education at either our Moscow or Boise locations. Learn more about the dual location model here.
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!
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:1) Justice Kennedy and Justice Alito in some kind of tit-for-tat? Alito wrote the Opinion for the Court in Tam, but Justice Kennedy did not join pieces addressing government subsidies, government programs, or commercial speech. He wanted to hang his analysis on viewpoint discrimination, which rendered unnecessary discussion of those other issues; even commercial speech cannot be restricted on viewpoint-discriminatory bases. Kennedy at least tried to praise the pieces of the Alito opinion that he joined, especially on viewpoint. Meanwhile, Justice Kennedy wrote the Opinion for the Court in Packingham, but Justice Alito did not join the opinion (he concurred only in the judgment) because of its "undisciplined dicta," "loose rhetoric," and failure to "heed its own admonition of caution" regarding the internet.
It is not surprising that Kennedy would take a broader approach to free speech than Alito or that Alito might bristle at Kennedy's speech-protective rhetoric. What is somewhat surprising is how the rest of the Court divided. In Tam, Ginsburg, Sotomayor, and Kagan went with Kennedy; in Packingham, the Chief and Thomas went with Alito.
This brought to mind one similarly divided free-speech case in United States v. Alvarez; there, the Chief, Ginsburg, and Sotomayor followed Kennedy's broader and looser approach, while Kagan (with Breyer) followed a narrower course (Alito and Thomas dissented). So we see in these cases a slight shift in who is willing to pursue the broadest free-speech approach. I am not trying to overread anything, because every case is different. But these were interesting lineups.
2) I want to highlight Rick's argument (an idea I have seen reflected elsewhere) that the paeans to viewpoint neutrality in both Tam opinions signal where the Court would come out on public controversies over offensive or outrageous speech--racist speech on campus, hate speech, severed heads, productions of Julius Caesar, etc. And it seems everyone on the Court is on a similar page as to offensiveness and viewpoint discrimination.
3) On that point, note how broadly both opinions in Tam define viewpoint discrimination. It is not enough to allow "both sides to speak;" the First Amendment requires that both sides be allowed to utter the full range of views in the manner of their choosing. As Justice Kennedy put it, "a subject that is first defined by content and then regulated or censored by mandating only on sort of comment is not viewpoint neutral;"[m]andating positivity"--allowing every side to say nice things about everything but not say mean things about everything--still is viewpoint discriminatory. In other words, it is viewpoint discrimination to prohibit critical speech, even if both Republicans and Democrats are prohibited from criticizing. Or as Justice Alito explained, the challenged provision "is not an anti-discrimination clause; it is a happy-talk clause." And mandating happy talk is viewpoint discriminatory.
4) Justice Kennedy's Packingham opinion is about the communicative "revolution of historic proportions" that is the internet--the "forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow." Justice Alito's Packingham opinion is about the "dark internet" in which bad people are lurking on web sites.
5) Part II of the Alito opinion in Tam addressed and rejected Tam's argument that the disparagement clause did not apply to disparagement of groups of persons as opposed to individual real or juridical persons. It considered this despite Tam not raising it below and despite the Court declining to grant cert on it when presented in the opposition to cert. The Court justified this on avoidance grounds. But does that mean that even an unpreserved statutory argument is always subsumed in a grant on a constitutional issue? Justice Thomas did not join this piece of the opinion.
SCOTUS OT16 Symposium: Bristol-Meyers Squibb and More Work for Lawyers
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.
"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.
The Civil Rights Act of 1871, of which § 1985(3) and the more frequently litigated § 1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law. See §§ 1, 2, . 13. Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Malley v. Briggs, 475 U.S. 335, 339 (1986) (internal quotation marks omitted). We have done so because “[c]ertain immunities were so well established in 1871 . . . that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) ; accord, Briscoe v. LaHue, 460 U.S. 325, 330 (1983). Immunity is thus available under the statute if it was “historically accorded the relevant official” in an analogous situation “at common law,” Imbler v. Pachtman, 424 U.S. 409, 421 (1976), unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover, 467 U.S. 914, 920 (1984).
In some contexts, we have conducted the common-law inquiry that the statute requires. See Wyatt v. Cole, 504 U. S. 158, 170 (1992) (Kennedy, J., concurring). For example, we have concluded that legislators and judges are absolutely immune from liability under §1983 for their official acts because that immunity was well established at common law in 1871. See Tenney v. Brandhove, 341 U.S. 367–376 (1951) (legislators); Pierson v. Ray, 386 U.S. 547–555 (1967) (judges). We have similarly looked to the common law in holding that a prosecutor is immune from suits relating to the “judicial phase of the criminal process,” Imbler, supra, at 430; Burns v. Reed, 500 U.S. 478–492 (1991); but see Kalina v. Fletcher, 522 U. S. 118–134 (1997) (Scalia, J., joined by Thomas, J., concurring) (arguing that the Court in Imbler misunderstood 1871 common-law rules), although not from suits relating to the prosecutor’s advice to police officers, Burns, supra, at 493.
In developing immunity doctrine for other executive officers, we also started off by applying common-law rules. In Pierson, we held that police officers are not absolutely immune from a § 1983 claim arising from an arrest made pursuant to an unconstitutional statute because the common law never granted arresting officers that sort of immunity. 386 U.S., at 555. Rather, we concluded that police officers could assert “the defense of good faith and probable cause” against the claim for an unconstitutional arrest because that defense was available against the analogous torts of “false arrest and imprisonment” at common law. Id., at 557.
In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute. See Wyatt, supra, at 170 (Kennedy, J., concurring); accord, Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J.,joined by Thomas, J., dissenting). In the decisions following Pierson, we have “completely reformulated qualified immunity along principles not at all embodied in the common law.” Anderson v. Creighton, 483 U.S. 635, 645 (1987) (discussing Harlow v. Fitzgerald, 457 U. S. 800 (1982)). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under § 1983, we instead grant immunity to any officer whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, 577 U.S. ___, ___–___ (2015) ( per curiam) (slip op., at 4–5) (internal quotation marks omitted); Taylor v. Barkes, 575 U.S. ___, ___ (2015) (slip op., at 4) (a Government official is liable under the 1871 Act only if “ ‘existing precedent . . . placed the statutory or constitutional question beyond debate’ ” (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011))). We apply this “clearly established” standard “across the board” and without regard to “the precise nature of the various officials’ duties or the precise character of the particular rights alleged to have been violated.” Anderson, supra, at 641–643 (internal quotation marks omitted). We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017).
Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Malley, supra, at 342; see Burns, supra, at 493. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U.S. 356, 363 (2012) (internal quotation marks omitted); see also Tower, supra, at 922–923 (“We do not have a license to establish immunities from” suits brought under the Act “in the interests of what we judge to be sound public policy”). We have acknowledged, in fact, that the “clearly established” standard is designed to “protec[t] the balance between vindication of constitutional rights and government officials’ effective performance of their duties.” Reichle v. Howards, 566 U. S. 658, 664 (2012) (internal quotation marks omitted); Harlow, supra, at 807 (explaining that “the recognition of a qualified immunity defense . . . reflected an attempt to balance competing values”). The Constitution assigns this kind of balancing to Congress, not the Courts.
In today’s decision, we continue down the path our precedents have marked. We ask “whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted,” ante, at 29 (internal quotation marks omitted), rather than whether officers in petitioners’ positions would have been accorded immunity at common law in 1871 from claims analogous to respondents’. Even if we ultimately reach a conclusion consistent with the common-law rules prevailing in 1871, it is mere fortuity. Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.
Now, of course, Justice Thomas is writing only for himself, but I am glad to see somebody on the Court asking whether the doctrine of qualified immunity is legally justified in its current form. I have suggested that the answer is probably "no," but even if the Court disagrees and ultimately concludes that the answer is "yes," I think it would be good for the Justices to give some attention to the issue, and explain why exactly they think it is justified. (As I discuss in the paper, different members of the Court have at times subscribed to three different justifications, though I think each of them is somewhat wanting.)
In an interesting coincidence, just last week I came across this certiorari petition in the case of Surratt v. McClaran, which asks the Court, among other things, to discontinue or modify the doctrine of qualified immunity. I haven't finished digging into the Surratt case itself -- it appears that police officers choked a woman to death in the back of a squad car while trying to get a baggie of drugs out of her mouth, but the Fifth Circuit found immunity anyway, noting that "previous law has provided no guidance regarding what is precisely reasonable and what is unreasonable regarding the use of force to an individual's throat where the individual appears to be concealing something in their mouth."
Perhaps the "appropriate case" will be before Justice Thomas and the rest of the Court in just a few months.
[Cross-posted at The Volokh Conspiracy.]
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.
- 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.)
- 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.)
- 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?
- 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.
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.1) This was a 4-2 decision, with Justice Kennedy writing for a majority of the Chief, Thomas, and Alito, and Justice Breyer dissenting with Justice Ginsburg. Justice Sotomayor recused because she was on the Second Circuit when earlier iterations of this case were heard, Justice Kagan recused (because she was SG when earlier iterations of the case arose), and Justice Gorsuch did not participate (he was not on the Court). It remains to be seen how much weight a decision from such a small Court will gain. Everyone likely assumes that the judgment would have been the same with a full Court, with Gorsuch joining the majority and Sotomayor and Kagan joining the dissent.
2) Two themes have been floating around the recent Bivens cases. One is the idea of "extending" Bivens to new contexts beyond the three cases in which SCOTUS recognized a claim and how the Court should hesitate to do so. The other is the connection between Bivens and implied statutory rights of action and the Thomas/Scalia position that Bivens was a "relic of the heady days in which this Court assumed common-law powers to create causes of action. Both ideas came home to roost today.
3) As for the second theme, Justice Kennedy timed the creation of Bivens to the rise of the implied right of action doctrine, noting that Justice Harlan relied on those cases in identifying an implied constitutional claim. It followed that the Court's narrowing of implied statutory rights makes "expanding" Bivens a "disfavored" activity. Both rest on separation-of-powers principles under which Congress, not the courts, should decide whether a damages remedy exists. If the Court is not implying rights of action, then it should not recognize "new" Bivens claims.
4) As for the first theme, this led the Court to crystalize a three-part test for whether a Bivens claim is available (both the majority and dissent agree on this test):
a) If the case is different in a "meaningful way" from previous cases decided by SCOTUS, then the context is new. Factors that suggest meaningful differences include the rank of the officers, the constitutional rights involved, the generality or specificity of the right involved, the extent of judicial guidance of how the officer should respond, the statute under which the officer operated, the risk of disruption of other branches, or the presence of new special factors not considered in past cases. As to the high-level executive officers, this was a new context, involving high-level policy following a terrorist attack; as to the warden, this case involved a new right (Fifth Amendment rather than Eighth), less guidance as to constitutional obligations, and congressional action suggesting intent not to provide a remedy--all small differences, but "even a modest extension is still an extension."
b) There is consideration of alternative remedies, although it is unclear how. The majority several times emphasized the availability of alternative remedies for the constitutional violations here, namely habeas and injunctive relief. Breyer treated this as its own second step. [Update: I will link to Steve's post at Just Security pointing out that habeas likely is not available to challenge conditions (as opposed to fact) of confinement and Kennedy himself hedged on whether habeas was available in this kind of case]
c) Special factors counseling hesitation. Here, these include the national-security context, that this case entails challenges to and inquiry into federal policy discussions and decisions, that the claims go beyond ordinary law enforcement, that Congress has done nothing in its post-9/11 litigation to provide any remedies for detainees challenging their mistreatment, and that injunctive and habeas remedies are available (again, it is not clear where this belongs in the analysis). To the extent there is a balance to be struck between these special factors and the needs for deterrence of executive misconduct, it is for Congress to strike that balance. The Court did remand for the Second Circuit to do the special factors analysis as to the warden.
5) Justice Breyer was explicit that the above is the three-step test, but he saw the factors going the other way. He did not see this as a new context, or, if it was, the claim survived steps two and three.
6) Breyer calls the majority on what I believe has been a problem in the recent Bivens cases: the confounding of the constitutional merits, qualified immunity, and cause of action. Breyer works through the list of factors that the majority identifies for defining when a context is new, insisting that some go to whether a constitutional right was violated, some go to whether that right was clearly established so the officer enjoys qualified immunity, and some are better case as special factors for step three. But none should go to the cause of action. The majority makes this worse with its consideration of alternative remedies, which hangs around the analysis throughout the case, not belonging in any clear place. The majority seems to be in a hurry to get rid of cases such as this, but it does so by focusing so much on the cause of action rather than the substantive merits and substantive defenses. Or consider how the majority uses national security as a special factor counseling hesitation before recognizing the cause of action. That factor can be taken into account at other points--in pleading requirements, on the merits, in assessing immunity, and in shaping discovery. Given these existing safeguards, there is no need to double-count it at the threshold--that is setting the house on fire.
7) That last point gives rise to another problem Breyer addresses: The "anomaly" of different analysis for claims against state/local officers as opposed to federal officers (we might also call this a lack of parallelism between claims against the former compared with the latter). A plaintiff can pursue a § 1983 claim against a mayor or governor but not a Bivens claim against a high-level DOJ official, for the same conduct violating the same right. And even if claims fail, they fail for different reasons: The claim against the federal officer fails because there is no cause of action, while the claim against the state/local official fails because the right was not violated or because it was not clearly established. That distinction makes no sense.
8) Breyer closes his opinion with a point he made during argument about the special need for damages actions in the national-security context. Damages claims can be resolved after the emergency has passed, with more information about the situation and a cooler eye towards the facts. And courts may be less likely to to issue injunctive or habeas relief in the middle of an emergency. It therefore makes no sense to rely on those remedies to preclude the later damages remedy--damages play a special role, with courts able to consider after passions have died down. The majority's approach reflects the general favoritism towards injunctive rather than damages relief in the constitutional context.
9) Justice Breyer cites Jim Pfander's new book on Bivens and GWOT, at one point seeming to adopt Jim's view that Congress' decision not to immunize individual officers under the FTCA for constitutional violations reflects an intent to leave Bivens in tact as the means for remedying constitutional violations, while putting non-constitutional torts through the FTCA.
10) Steve Vladeck had a Twitter thread on this case, pointing out that Hernandez v. Mesa, another Bivens case, remains undecided and could pull back on some of what the majority did here. But he suspects if that were to happen, the opinions would have issued at the same time. I wonder if Hernandez will be resolved on qualified-immunity rather than Bivens grounds.
11) As I said in my earlier post, I now have to rewrite my Bivens chapter. Oh well.
Thanks for wading through a long post.
Thanks for sitting through a long post.
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.
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."For the majority, there was no purposeful availment as to the non-California plaintiffs because they were not prescribed, did not purchase, did not ingest, and did not experience injury from Plavix in California; that other plaintiffs were injured in California was beside the point. There must be a connection between the forum and each specific claim, with "claim" meaning one plaintiff, one defendant, and one right. Keeton v. Hustler did not help, because defamation hatmed the people of the state even as to an outsider plaintiff and because the issue there was whether one plaintiff could pursue a full claim against one defendant. The majority closed by rejecting the "parade of horribles" that plaintiffs raised, insisting that there were lots of other forums plaintiffs could go: New York and Delaware (where BSM is essentially at home and subject to general jurisdiction), "probably" in other states with lots of injured plaintiffs (there were dozens of plaintiffs from Texas who all could sue there), and maybe federal court (an open question, but probably not at the moment, because there is no statutory authorization for such jurisdiction).
Justice Sotomayor viewed the case as easy under the three-part Shoe analysis: 1) BSM purposefully availed given its massive sales and marketing in California; 2) the non-resident claims "related to" the forum because they have a "connection with" California, in that all plaintiffs in all states were injured by "the same essential acts" or "materially identical acts" to BSM's marketing and sales in California; 3) it was not unreasonable to make BSM defend the non-resident claims in California, since it already was defending the resident claims. Sotomayor also threw in an aside that she would measure jurisdiction first and foremost by fair play and substantial justice, elevating the third prong of the analysis to the first prong. She also pointed out, correctly, that the majority hasd no response to the "relate to" prong; it cited only Walden v. Fiore, a case that dealt with lack of minimum contacts, not whether those contacts gave rise or related to the claim. She also was correct as to Keeton--there is no meaningful distinction between a defendant haled into court by one non-resident plaintiff over nationwide conduct and haled into court by many non-resident plaintiffs over nationwide conduct. Sotomayor closed with her concerns about what this does to mass-tort litigation and the insufficiency of the alternative forums the majority suggests remain.
Some last thoughts:
1) I wrote after BNSF that BSM was the important personal-jurisdiction case for the Term. If general jurisdiction has narrowed, the solution is to broaden specific jurisdiction by broadening when a claim arises out of or relates to the contacts. But the majority did not go there, nor did it offer a good answer or guidance as to what arise out of/relate to means. Instead, it let the first prong--purposeful availment--do all the work by holding that BSM did not purposefully avail as to the non-resident defendants. But that is the problem. There should be no doubt that BSM purposefully availed, given its massive sales and advertising in the state (constituting both stream-of-commerce and seek-to-serve) and the fact that it is a nationwide corporation doing nationwide business; the question should have been whether those contacts gave rise to the non-res claims. But the majority did not frame the case in those terms. As in Nicastro (especially Justice Breyer's concurring opinion), the Justices seem unwilling to let the other two prongs of the analysis do any work.
2) What is Justice Ginsburg thinking? She wrote a sharp dissent in Nicastro. Otherwise, she wrote the three opinions narrowing general jurisdiction and joined the majority in the decisions narrowing specific jurisdiction. Sotomayor cited Ginsburg's Nicastro dissent in FN 3 in rejecting BSM's proferred narrow interpretation of relate to.
Update: A third point: The effect of this is to give large corporate defendants forum advantages over plaintiffs. A large group of plaintiffs wanting to pursue a corporate defendant must go to the defendant's home turn. Or they must go to federal court (maybe), which has shown itself to be more defendant-friendly in recent years. For many plaintiffs, neither is an enticing option.
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.
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.
Sunday, June 18, 2017
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.
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.
For example, I think it is a good idea for each faculty to have at least one faculty member who takes the law and economics methodology seriously. And conventional wisdom tells us that L&E folks tend to be politically conservative. But not all Republicans are L&E devotees, and not all L&E folks are Republican. And while ensuring that a faculty has an L&E faculty member is (in my opinion) important for ideological diversity, if the L&E professor that a law school hires doesn’t self-identify as a Republican or donate to Republican candidates, then the school won’t get “credit” for increasing ideological diversity.
Or let’s take a different example. Imagine that a law school faculty takes seriously the need to increase ideological diversity, and it decides to hire a criminal law professor who self-identifies as Republican and who donates only to Republican candidates. This hypothetical Republican criminal law professor is a devout Catholic who is morally opposed to the death penalty, and she spends her career writing about how capital punishment cannot be morally justified. Given the state of criminal law scholarship today, that hypothetical law professor would not increase the ideological diversity of the field, but rather would add to an already-overwhelming imbalance. And yet the school would get “credit” for increasing ideological diversity.
I also think that it is important to distinguish someone’s personal policy preferences from their legal views. I can, for example, think that juvenile criminal defendants should be treated differently than adult defendants as a matter of policy. I can donate money to political candidates who agree with that policy view. And at the same time, I can think that there is no credible constitutional argument that juveniles must be treated differently, and I can criticize the Supreme Court decisions that say otherwise. For ideological diversity purposes, the second set of views ought to matter, not the first. It is my views on law that form the backbone of my discussions with colleagues and my scholarship.
Now, you might say that ideological diversity matters for things other than legal scholarship. Some have said that they think ideological diversity matters so that conservative students feel as though they have someone that they can talk to who shares their political views or to help them secure jobs with conservative groups or politicians. I’m highly skeptical of these arguments. The “feeling comfortable” argument assumes not only that our students know our party affiliations, but also that we have created an environment that is only open and welcoming to those who share our politics. I know that not all faculty agree with me that it is inappropriate to share your political views with students. But I hope that we can all agree that it is incumbent on us to make sure that students don’t feel as though they can’t talk to us because of our political views. As for the jobs point, again I think that party affiliation is a poor proxy for these sorts of professional connections. Some conservatives don’t have any good job connections for students, and some liberals have great Republican connections. So if it is these connections that we care about for hiring, then that should be the criteria, rather than party affiliation. (And we should, in my view, all try to cultivate relationships with people on both sides of the political spectrum so that we can help our students make these connections.)
Some might also say that something is lost at faculty meetings or in personal interactions among faculty if there are no faculty that take the other side of controversial issues. If all faculty members are Democrats, for example, then the faculty might adopt an affirmative action policy without considering arguments on the other side. Even assuming that affirmative action breaks down along party lines (in my experience, it doesn’t), the idea that a faculty can’t or won’t consider views that conflict with their own policy preferences strikes me as wrong. To the contrary, I find many faculty members eager to play devil’s advocate on faculty governance issues at faculty meetings. Being a contrarian skeptic is one trait that crosses party lines on law faculties.
Not only do I think that party affiliation is a poor proxy for ideological diversity, but I also think that there are serious downsides in equating the two. When we say that we can have ideological diversity only by hiring people who belong to different political parties, then we are implicitly endorsing the view that law and politics are equivalent. Law is not politics. When law and politics are seen as indistinguishable, then the legal arguments of law professors can be dismissed as nothing more than fig leaves for preferred political outcomes. I’ve seen far too much of that recently, and I think law professors should do all that they can to resist that view.
Different people are obviously free to use terms in whatever way that they see fit. But I hope that I’ve convinced at least some of you that ideological diversity should not be defined in terms of party affiliation.
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.”
The October 2016 Term parallels, in these respects, the October 2013 Term, in which the Supreme Court heard six other patent law cases on review from the Federal Circuit. None of those case drew a dissent, and only one (Alice Corp v. CLS Bank) drew a concurrence (and a brief one at that, comprising a single 3-sentence paragraph plus citations). The Supreme Court reversed, 9-0, in five of the six cases; it affirmed, 9-0, in the sixth.
I began looking at the Supreme Court’s post-1993 patent law decisions more systematically after the 2013 Term. There are 46 such cases, starting with Asgrow Seed v. Winterboer, 513 US 179 (1995), and ending with Sandoz v. Amgen. The 5-year running average of patent cases per Term, now at 4, is at a level not seen since the early 1940s (as I read Fig. 2 in Duffy’s 2010 paper). Below is a graph of the running average. For comparison, I include the 5-year running average for the sum of the copyright and trademark cases, which—even together—run well behind.
There are many things to say about this run of patent cases. But I think it’s fair to summarize the overall pattern as follows: 2/3rds of the Supreme Court’s patent law decisions in this period are unanimous (and 91% are 9/0, 8/1, or 7/2); 2/3rds of them are flat reversals of the Federal Circuit; and authorship of the opinions is spread across the Court’s full ideological spectrum. Justice Thomas has written 11 of the majority opinions, and Justices Breyer and Sotomayor have each written 5 of the majority opinions. In short, there is full Court agreement on largely unanimous rejection of Federal Circuit patent law decisions, even as it reviews those decisions more often.
What’s happening? It’s not just boredom, which would explain unanimity but not an increase in cases. It’s not an “IP is important!” vibe, which would show an uptick not only in patent but in copyright and trademark cases too (not seen) and would not explain the unanimity or the reversals. It’s not even a “patent law is important!” vibe, which—again—would explain neither the high unanimity rate nor the high reversal rate. There’s a growing literature that explores the issue, and I’m working on a draft paper myself. The full answer must wait. But, my short answer is, the Legal Process—i.e., Hart & Sack’s The Legal Process (1958). The strongest tell, in this vein, is this Term’s decision on the patent venue statute, TC Heartland v. Kraft Foods Group. The opinion, 8-0, is an exemplar of Legal Process reasoning ~ heavy reliance on stare decisis, and a keen appreciation for the different institutional roles that Congress and the courts play in providing settled ‘rules of the road.’ And this is so even though it makes patent law very much unlike other federal cases, which are controlled by the general federal venue statute. (The June 12 episode of the First Mondays podcast astutely notes this facet of TC Heartland.)
Perhaps the Supreme Court has found, in patent law (which is exclusively federal, and which has a weak agency and a governing statute that includes at least some text dating back to 1793), a domain in which it can express core Legal Process values that all the justices endorse, and that all can equally well articulate for a frequently unanimous court. In many areas, the justices go at each other hammer and tong, with many 5-4 and 6-3 decisions. In patent law, by contrast, the justices calmly reflect the whole Court’s commitment to Legal Process norms (weathered a bit, of course, by law & econ critiques from the right and CLS critiques from the left). The Court’s citation patterns in these case are certainly consistent with a prominent role for stare decisis. I’ve been tallying, from these 46 Supreme Court patent cases, all the other Supreme Court cases cited at least once in a given case, as well as the Courts of Appeals cases cited (from both the Federal Circuit and the regional circuits).
A few observations about the citations, across all 46 cases . . .
The Court cited a total of 669 other Supreme Court cases, 326 patent cases and 343 nonpatent cases. The median number of other S. Ct. cases cited, in any given case, is 12.0 (and the average is 14.5). The Court cited a total of 216 Court of Appeals cases (less than a third as many as S. Ct. cases), 98 from the Federal Circuit and 118 from the regional circuits. (Of the 118 cites to regional circuit cases, 25 were to the 2nd Circuit and 20 were to the 7th. The next highest was the 3rd Circuit, with 12.) The median number of Courts of Appeals cases cited, in any given case, is 2.5 (and the average is 4.7)—about 1/5th the median number of S. Ct. cases cited per decision.
The age range of the other S. Ct. cases the Court cites (in the 46 patent cases) is large, stretching from 1803 to 2016. And though more recent cases are cited more frequently, the cites to older cases are by no means infrequent. The first graph below groups cited cases by decade, marking frequency of citation to cases in that decade and the cumulative percentage of the 669 cases contributed by that decade. Nearly 50% of the cases cited are from before 1977. The second graph below groups cases by how old they were when cited, again showing frequency and cumulative percentage. Nearly 50% of the cases were 50 or more years old when cited.
If one separates the 326 cited S. Ct. patent cases from the 343 nonpatent cases, the greater age of the cited patent precedents is even more apparent. Among the cited S. Ct. patent cases, the median year of decision is 1942 and the median age of the cases when cited is 65 years. By contrast, among the cited S. Ct. nonpatent cases, the median year of decision is 1986 and the median age of the cases when cited is 25 years.
Of course, as is common in studies of citation rates, a smaller number of cases garners a larger share of the citations. Among the cited S. Ct. nonpatent cases, only one—Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 US 1 (1983)—is cited in three different cases; the remainder are cited in two cases or, far more often, in only one case. Among the cited S. Ct. patent cases, 34 cases are cited in 3 or more cases. One (Bonito Boats v. Thunder Craft Boats, 489 US 141 (1989)) is cited in 10 of the 46 decisions, one (Diamond v. Chakrabarty (1980)) is cited in 6 of the 46, 7 are cited in 5 of the 46, 13 are cited in 4 of the 46, 12 are cited in 3 of the 46, and the remaining are cited in two or one. Among these same 34 cases, although 8 (23.5%) were decided after 2000, 7 (20.5%) were decided in the 1800s.
The challenge for patent litigators is even greater, perhaps, than Professor Duffy suggests. In the Supreme Court’s opinions explaining its approach to patent law, a 19th-century precedent is as likely to prove germane as a 21st-century precedent. This is certainly consistent with strong-form stare decisis, and the Legal Process jurisprudence that underwrites it. But is it the felt sense of most patent litigators about how to handle the legal infrastructure of their cases? I doubt it.
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.
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.The new Emoluments Clause lawsuits inevitably presents a version of this argument: can Maryland and the District of Columbia claim unique standing to challenge actions of the federal government because their location means the federal government affects them so much more? The concentration of important federal officials in the Washington metropolitan area is something I have written about previously and presently.
Maryland and D.C.’s theory in this case is that the unfair competition they face from the Trump Organization confers standing on them. The complaint mentions geographical dimensions of this claim at least implicitly. The financial harms to private and state business interests in both places is greater because the Trump Organization has tried to leverage the status of the President more in Maryland and D.C. The District of Columbia, for instance, mentions the business that D.C. receives from working with foreign embassies, and how the Trump International Hotel in D.C. has unfairly undermined that business. The fear that Maryland and D.C. face from competing too aggressively with the Trump Organization is more significant because both jurisdictions have economies heavily reliant on federal financial support and so fear retribution even more. For all of the claims of the importance of horizontal federalism, the Founders themselves knew that jurisdictions more proximate to federal power would have a different relationship with federal power. James Madison talked often, for instance, of “the diffusion of wealth” from federal monies that would accrue to proximate jurisdictions, and theorized ways that proximate jurisdictions would be different.
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.not surprising. And hopefully cases with such clear jury bias will be few and far between.
Nevertheless, the case will likely have significant ramifications. The Court was clear to limit its holding to cases of racial bias only, and not to other types of jury bias or misconduct. The Court distinguished past cases in which it had refused to allow inquiry into a jury’s improper compromise verdict or a juror’s pro-defendant bias. Justice Kennedy’s opinion noted that while “[a]ll forms of improper bias pose challenges to the trial process,” racial bias raises “unique historical, constitutional, and institutional concerns” and “if left unaddressed, would risk systemic injury to the administration of justice.”
Justice Alito, joined by Chief Justice Roberts and Justice Thomas, dissented. The dissenters pointed out that it is very difficult to remedy some types of juror impartiality and not others, noting that “What the Sixth Amendment protects is the right to an ‘impartial jury.’ Nothing in the text or history of the Amendment or in the inherent nature of the jury trial right suggests that the extent of the protection provided by the Amendment depends on the nature of a jury’s partiality or bias.” They express concern that the “ruling will also prompt losing parties and their friends, supporters, and attorneys to contact and seek to question jurors, and this pestering may erode citizens’ willingness to serve on juries.”
It seems likely that the dissenters are right that the holding will increase lawyers’ post-trial efforts to question jurors about what happened in the jury room. And it also seems likely that, in many cases, lawyers will hear stories of juror bias and misconduct. This may create a no-win situation; Justice Kennedy is surely right that refusing to remedy such egregious racial bias would diminish trust in the justice system. But regular inquiry into the jury’s deliberations might have a similar effect.
I’m not sure that there’s a good solution to that dilemma. One possible answer is a greater use of the trial judge’s ability to order a new trial on the weight of the evidence, which might preclude the need to inquire into the jury’s deliberation in cases where bias seems probable. I have written elsewhere that I think the Peña-Rodriguez case could have been a good vehicle for such a remedy—and if the judge had granted a new trial on the weight of the evidence, then the defendant’s remedy would not have depended on the jurors’ testimony.
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.
In general, the responses can be broken down into several species: (1) doing this helps one's client; (2) the Court does not care who the lawyers on a case are, so it does not matter if they are omitted; (3) the Court ought not care who the lawyers are, so it does not matter if they are omitted; (4) the rules do not require disclosure of this information, so it cannot possibly be unethical to omit it. I'll address each of these in order.
- But it's in the client's best interest. Least persuasive of all, to me, is the response that omitting this information is in the client's interest, and so it is acceptable. For the purposes of this argument, I will not dispute the premise: if one's client wants cert denied, it may well be in the client's best interest to conceal the fact that they have retained expert counsel. That, at least, is the premise for this particular ruse, and I am willing to grant that premise is believed in good faith.
(As it happens, I am not entirely convinced that the premise is true. The Justices and their law clerks are not stupid, and if an expertly done BIO is said to be written by a first-time Supreme Court litigator who specializes in slips-and-falls in central Florida, no one is going to be fooled into thinking that he didn't have help. But: whatever. Let us assume that the client really will be served by this tactic.)
The problem is that this proves absolutely nothing because lawyers are never permitted to deliberately mislead a court just because it would help their client. It would often help one's client to lie to a court. But the traditional understanding of a lawyer's obligations is that they do not simply run to the client, but to the court of which that lawyer is admitted to the bar: that is why, when Supreme Court lawyers are sworn in by the Clerk of Court, the Chief Justice extends to them a warm welcome as "officers of the court," not merely mercenaries who are given a certificate in exchange for two hundred bucks.
In other words, if one agrees with my premise (that this is a deliberately misleading omission), then it is utterly insufficient to reply that it is one that is in the client's interest. Either one must deny the premise and argue that this is not a deliberately misleading omission or one must argue this is a circumstance in which a lawyer is permitted to mislead the court for some reason other than client interest.
- The court doesn't care who the lawyers are, so it's fine to omit this information. A more promising but still ultimately insufficient response is that this is not a material omission because the Supreme Court does not care who the lawyers are. After all, "quality of counsel" is not listed in Supreme Court Rule 10 as one of the considerations governing certiorari. The problem with this argument is twofold.
First, the Supreme Court's rules explicitly provide that certiorari is a matter "of judicial discretion," and the factors listed in Rule 10 are not "controlling," nor do they "fully [measure] the Court's discretion." (I first saw this point made on Twitter by our co-symposiast Dan Epps.) To take another example, so-called "vehicle problems" (such as the presence of serious questions going to standing, or preservation of the issue below, or whatever) are also not listed in Rule 10, and yet it is understood perfectly well that the Court cares about such matters. Stern & Gressman have many, many pages on considerations going well beyond Rule 10.
Second, and more important, the entire reason that lawyers conceal the presence of expert counsel is because they think the Court does care. The tactic would make no sense otherwise. I do not doubt that there may be reasons to omit a lawyer's name that are immaterial to the Court: perhaps, for example, the lawyer simply does not want herself associated with the client in public for professional reasons that the Court has no interest in. Fine. That is a different circumstance. I am arguing here only about a situation in which a lawyer is omitted because the client does not want to "draw the Court's attention" to the petition, in the hopes that it will be denied where it would otherwise have been granted. There, it is impossible to argue for immateriality.
(A species of this argument is that it is routine not to list every lawyer who works on a filing—a junior associate, for example. I think such lawyers should be listed more often than they are, but at any rate, their omission is not deceptive because it is immaterial, and is not done to mislead the Court.)
- The court shouldn't care who the lawyers are, so it's fine to omit this information. A refined version of the argument above is that the Court ought not care who the lawyers in a given case are. On this view, the Court's preference for quality lawyering is simply illegitimate—and so concealment of this information is justified on that ground. This argument makes headway by at least acknowledging that there is deception afoot, and attempting to justify it.
I have no doubt that there are circumstances in which it is acceptable to lie to someone, and for lawyers to lie to a court. An example that I have heard several times: imagine the Court had members who were thoroughly anti-Semitic, and who did not want to grant cases on which Jewish lawyers had worked. Surely, it would be acceptable to lie about the presence of (say) a young Justice Ginsburg on the filings then. As to that, I agree. But again, there are two problems with this argument.
First, it is far from obvious that a preference for experienced counsel is illegitimate. The nature of the Court's work is that if an issue is significant, the Court will have many chances to address it—so it is not obvious to me that having high-quality lawyering on both sides is prima facie illegitimate as an object. Certainly the structure of the United States government suggests otherwise: the Office of the Solicitor General specializes precisely because it is believed it will help the Court to have very good lawyers in the many cases in which the government is a party. Many states have made the same decision. Anyone maintaining this argument with an analogy like the one above would therefore carry a very heavy burden, and moreover would have to accept that they were lying for a justified reason. I would hope that the bar for acceptable reasons for a lawyer to lie to a court would be very, very high.
Second and again more important, there is a one-sidedness to this argument that gives away the game. If it is unacceptable for the Court to consider the identity of the advocates when reading a brief in opposition, it must be equally so when reading a cert petition. Yet I have not heard anyone argue that it is unethical for prominent or expert Supreme Court advocates to include their names on a cert petition. (I am grateful to Jason Steed for raising this point.) That, however, is exactly what this argument would require—unless it is for some reason unacceptable for the Justices to consider the identity of counsel in a BIO but not on a petition, a strange position indeed.
- The rules don't require it. One final objection. Rule 34.1 provides that "the name of the attorney who is counsel of record" must be included on each filing, and there may only be one such person. The names of other attorneys "may be added." The argument goes that this explicitly permits the omission of anyone other than the person who is to be "counsel of record," which person need only be admitted to the bar.
But although Rule 34.1 affords a measure of discretion on who to include, that discretion—like all such grants—can be abused. A classic way to abuse one's discretion to disclose information would be to exercise it in a way calculated to mislead. At most, all this argument establishes is that Rule 34.1 does not forbid ghostwriting, but I have never claimed that it does. Rule 34.1, like all rules, must be understood against a background requirement of good faith and honesty by lawyers practicing before the Court.
I am well aware that the practice of ghost-writing BIOs is common. But my argument is not that it is uncommon, but that it is calculated to mislead the Supreme Court, and that it is—for that reason—unethical. It may well be a form of deception that aids one's clients, but it is not a practice I think members of the bar should engage in, and it is something that I hope the Court will one day explicitly forbid.
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.
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.
Last month, the en banc DC Circuit heard argument in PHH v. CFPB, an important case on the president’s power to remove the head of the CFPB. Most of the discussion focused on the CFPB’s structure and the statutory guarantee that its head can be removed only for cause. Near the end of the CFPB’s argument, however, the judges zeroed in on the ever-critical question of remedy: when the president unlawfully fires an executive official, what follows?
While I wasn’t at the argument myself, two attendees have confirmed that the main questioner on this point was Judge Wilkins. Here is my edited transcript of the most focused exchange, which starts around 1:24:30 of the court recording.
Court: I’ve seen law review articles and other commentary that say that even though there is the for cause protection under Humphrey’s Executor, basically the only remedy that’s available is back pay. And they’re saying that there’s never been a case where a court has enjoined a president. And lots of commentators believe that no court would have jurisdiction to enjoin a president. So, how does that cut in our analysis? Does that mean that really this is a toothless protection? ...
CFPB: I don’t think that it’s toothless. … He may not be able to remove the official simply for policy disagreements. ….
Court: My point is that even though that’s what the Court held in Humphrey’s Executor—now, there was Humphrey’s Executor because Humphrey died. But let’s suppose he was still alive when the Court made its decision. He wasn’t going to get his job back. So I guess what I’m saying is: as long as the President is willing to cut a check for pay for the rest of the term, even if a court disagrees with him later, he can still get rid of the person, even with the Humphrey’s Executor protection, right?
CFPB: That may be, your honor. I just don’t know how that would play out.
The basic idea here is that a money damages award for back pay may be the only judicially available remedy when the president removes a subordinate without lawful cause.
It’s not entirely clear whether that conclusion would bear on the merits of the CFPB case. Could a removal restriction's constitutionality depend in part on how courts would enforce it? A truly “toothless” removal restriction might pose a lesser threat to executive power—but only because of its practical irrelevance. By comparison, courts might view relatively enforceable restrictions as more severe intrusions on the president’s power.
The DC Circuit’s discussion of removal remedies is directly relevant to the practical consequences of removing Special Counsel Mueller. If injunctive remedies are categorically unavailable to removed officials, then even the strongest statutory for-cause removal restrictions might not pose a serious real-world constraint on presidential power. Ditto for the regs protecting special counsels like Mueller.
True, the president would still have taken an oath to abide by the law, including both removal restrictions and relevant Supreme Court precedents. The Take Care Clause and the nature of the president’s office would also call for lawfulness. For these reasons, many presidents surely feel bound to adhere to law.
But the president’s own sense of duty is only so constraining. Presidents might be much more likely than the courts to believe that there is legally adequate cause to remove. Good-faith disagreements on what qualifies as cause are especially likely given the shortage of case law on the subject. Alternatively, the president might be a departmentalist who feels unbound by Humphrey’s Executor and takes a broad view of his own removal authority. In these situations, a president might feel that he is abiding by his duty to adhere to law, even when deviating from judicial views on lawful removal.
And what about a cynical president? Someone prepared to violate the law might use various legalistic arguments as a smokescreen for willfully unlawful conduct. For example, a president could raise bogus allegations of cause while asserting compliance with a removal provision. In time, the courts would presumably reject the bogus allegations, but by then the removed officer would be out of power—and without any way to return.
A sufficiently dramatic instance of unlawful removal could catalyze political checks, up to and including impeachment of the president. But while a judicial decree that the president violated the law could certainly play an important role, political checks are usually driven by, well, politics. Whether a court formally finds a violation would therefore be less important than whether the public feels that an abuse of power is afoot. What’s more, a damages-only approach could alter the way that the public views judicial decisions on removal. An order directing reinstatement could seem like a dramatic stand over deep legal principle. By comparison, a judgment for back pay might look more like a fee than a fine. Just another price of doing business.
The obvious alternative view is that removal restrictions are at least sometimes judicially enforceable through more than just back-pay awards. Officials who believed that they were unlawfully fired could then immediately seek judicial relief and perhaps obtain a stay, preliminary injunction, or writ of mandamus to remain in their jobs. Of course, viewing removal restrictions as judicially enforceable is fraught in various ways, as indicated by the scholarship that Judge Wilkins alluded to. Aditya Bamzai’s November post on the CFPB case touches on some of the relevant work, including papers by Cass Sunstein and Aziz Huq.
My goal here is not to say which side of this debate is correct, or even that the debate is key to the CFPB case. But it is remarkable that at least some members of the DC Circuit are already thinking about these questions—and could choose to opine on them soon.
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.
Vehement, caustic, and sometimes unpleasantly sharp
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.
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.
Tuesday, June 13, 2017
SCOTUS Symposium: A departmentalist take on Morales-Santana
Richard's post about the Morales-Santana Court conflating judgment and precedent prompts a question: What if Congress and the Executive decide, in a fit of departmentalism, that the current differential treatment of unmarried-mother citizens is constitutionally valid? Congress refuses to amend the statute (or the President vetoes the proposed amendment) and the Executive continues removing people situated as is Morales-Santana by treating them as non-citizens, even while continuing to treat a comparable child of an unmarried-mother citizen as a citizen.
There is no judgment or order compelling Congress to change the law, something a court could not do in any event. There is no judgment compelling the executive to treat anyone other than Morales-Santana a certain way or declaring the rights of anyone other than Morales-Santana. A court cannot, through a declaratory judgment, adjudicate the rights of non-parties (I agree with Richard that this might be what the majority saw itself as doing). Departmentalism does not result in a constitutional stalemate (or devolves into judicial supremacy in practice) because at some point the judiciary has a final card in the form of a judgment in a particular case as to a particular person that government must follow on pain of contempt and that makes the Court's constitutional vision applicable to a person. The problem in this case, and in the cases likely to follow from it, is getting to that enforceable judgment that benefits some person in a way adverse to the government.
So let's play this out:
X is the child of unmarried-father citizen who lived in the US for 4 years and 364 days, 1 year and 364 days after age 14, where the parents. The government seeks to remove. X cannot argue that removal is prohibited by a court order, because there is no judgment affecting him in place. So he goes into the BIA process, arguing that removing him as a non-citizen violates equal protection because unmarried-mother citizens (and their children) continue to be treated differently. The BIA accepts his argument, following Morales-Santana (are BIA proceedings subject to the same rules of precedent as lower federal courts?). Or the BIA rejects his claim, but the court of appeals reverses, as it is unquestionably bound by Morales-Santana to hold that the differential treatment is unconstitutional. But now we are in the same place we are this morning--the statutory scheme is unconstitutional, but the court of appeals will be similarly reluctant to remedy by leveling up, meaning X remains subject to § 1409(a) (the 5/2 residency rule) and remains removable. And Congress and the executive remain free to ignore the precedential piece of the decision in X v. Sessions when it then seeks to remove Y, another child of an unmarried-father citizen.
How do we get out of this loop? One possibility is Mark Tushnet's suggestion that the court could/did order the government to exercise its discretion not to remove because the basis for removal was unconstitutional. If the government starts losing these cases and being unable to remove, it will amend the statute or change its enforcement mechanisms. A second possibility is that at some point the Court, tired of congressional or executive intransigence, remedies the violation in X's case by leveling up, requiring the government to subject X to the one-year exception and prohibiting removal. That will get Congress and the executive moving, to the extent they do not want one year to be the residency requirement for everyone.
This is all moot, because the government has agreed to level down for everyone going forward. But it shows the extent to which judicial supremacy has carried the day. The court can get away with an "order" such as the one in Morales-Santana because it knows that Congress and the executive will follow its declarations of constitutional law.