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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.

Posted by Rick Hills on June 23, 2017 at 05:13 PM | Permalink | Comments (0)

The exodus of high-band LSAT students

This is an extraordinary graph.

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

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

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

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

Posted by Dan Rodriguez on June 23, 2017 at 10:05 AM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (7)

Thursday, June 22, 2017

The Nine Lives of Bivens (SCOTUS Symposium)

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

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

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.  

Posted by Richard M. Re on June 22, 2017 at 08:30 AM | Permalink | Comments (6)

Wednesday, June 21, 2017

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

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

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

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

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

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

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

Beckman v. Chicago Bears

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

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

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

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

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

Tuesday, June 20, 2017

Resolved, not moot

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

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

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

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


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 larr1384@vandals.uidaho.edu, 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.

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

SCOTUS: Partisan gerrymandering case from Wisconsin

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

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

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

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

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

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

We will be watching closely for sure! 



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

Monday, June 19, 2017

SCOTUS Symposium: Happy talk and revolutions of historic proportions

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

A couple of interesting points:

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SCOTUS Symposium: Setting fire to House Bivens

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

 Some thoughts after the jump.

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.

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

SCOTUS symposium: The Freedom of Speech

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

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

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

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

SCOTUS Symposium: Narrowing specific jurisdiction

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

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.

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

SCOTUS Symposium: Busy Day

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

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

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

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

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

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

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

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

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

ABA accreditation regs: proposed adjunct rule rollback

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

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

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

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

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

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

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

Sunday, June 18, 2017

More heckling

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

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

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

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

Saturday, June 17, 2017

Ideological Diversity and Party Affiliation

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

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

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

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.

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

SCOTUS Symposium: Patent Law & Legal Process

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

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

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.

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

Friday, June 16, 2017

JOTWELL: Leong on Mika on gender disparity before SCOTUS

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

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

Asymmetric Geographical State Standing

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

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

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

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.

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

Thursday, June 15, 2017

SCOTUS Symposium: Peña-Rodriguez v. Colorado

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

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

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

In a 5-3 opinion authored by Justice Kennedy,

the Court sent the case back for a retrial before a new jury. The Court’s holding—that such egregious racial bias in the jury room deprived the defendant of his constitutional right to an impartial jury—was 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. 

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

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

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

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

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

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

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.

  1. 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.
  1. 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.)
  1. 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.
  1. 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.

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


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

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

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

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

Remedying Removal: Mueller and the CFPB Case

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

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.

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

Wednesday, June 14, 2017

Remand in Haeger v. Goodyear

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

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

Vehement, caustic, and sometimes unpleasantly sharp

This is correct.

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

The Lower Court Moment

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

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

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

Against Type Briefs

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

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

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

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

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.

Posted by Howard Wasserman on June 13, 2017 at 10:23 AM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS Symposium: Most significant volume of U.S. Reports

Something fun to consider: What volume of United States Reports has the greatest number of canonical or important cases, whether legally or historically?

My nominee: Volume 403 (OT 1970), which contains:

Bivens; Cohen; Lemon; New York Times v. US (Pentagon Papers); Griffin v. Breckenridge (§ 1985(3), part of the KKK Act of 1871, reaches private conspiracies); Palmer v. Thompson (this one is anti-canon: Closing community pool to avoid integration OK); Rosenbloom v. Metromedia (no longer good law, but the high point of the expansion of New York Times v. Sullivan); Clay v. United States; and Coolidge v. New Hampshire.

That is a pretty strong batting lineup.

Defend alternative nominees in the comments.

Posted by Howard Wasserman on June 13, 2017 at 09:31 AM in 2016-17 End of Term, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Morales-Santana's Many Judgments (SCOTUS Symposium)

Yesterday, Morales-Santana held that an individual had been denied citizenship based on a gender-discriminatory law that violated equal protection. Yet the only practical effect appears to be that, in the future, even fewer people will obtain citizenship. That outcome has already prompted a lot of commentary, including from Howard, Ian, and Will. Here, I add two points. First, the Court’s exclusively “prospective” remedy appears not to have fully remedied the asserted discrimination, even on the Court's theory. Second, the Court’s limited grant of relief interestingly blurs the traditional distinction between precedent and judgment.


Here’s a brief account of what happened. Various statutes govern when children born abroad are granted US citizenship. One of these laws created what I will call a “special rule,” granting citizenship to certain people after a relatively brief period of US residence. But in creating that special rule, Congress used a gender-based preference—in particular, a preference for the children of unwed US-citizen mothers. This meant that children of US-citizen fathers could not benefit from the special rule.

Enter Morales-Santana, who is a child of a US-citizen father. When the government sought to deport him, Morales-Santana claimed that he should benefit from the special rule described above. His argument was straightforward: the special rule cannot be offered exclusively to the children of US-citizen mothers, or else it would violate equal protection. To avert that violation, Morales-Santana argued, the special rule must be available to the children of children of US-citizen fathers—including Morales-Santana himself.

Now, there is a lot to say about the merits of Morales-Santana’s equal protection claim. But that is not the part of the case that I am focused on here. Rather, I am currently interested in the remedy that the Court adopted after it concluded that the special rule was unconstitutional. The remedy issue is interesting because, despite agreeing with Morales-Santana on the merits, the Court ended up agreeing that Morales-Santana lacked citizenship and could be removed.

But how could Morales-Santana lose his immigration case, even though he had been denied relief pursuant to a discriminatory law? The answer is that there are two ways of remedying discriminatory treatment. One way is to “level up” by granting better treatment to all, without engaging in discrimination. The other way is to “level down” by granting worse treatment to all, again without engaging in discrimination. Here, the Court leveled down.

The Court’s reasons for leveling down are a bit intricate and merit more scrutiny than I can offer in this post. Basically, the Court decided to imagine what Congress would have done if it had realized that the special rule engaged in forbidden gender discrimination. And the special rule was, well, special. It was an exception to a generally applicable default regime. So, absent the special rule, Congress would presumably want the default rule to apply.

But there’s one more twist. For many years, children of US-citizen mothers had benefited from the special rule. You might expect the Court to revoke those people’s citizenship. After all, they had all benefitted from what the Court has now held to be a gender-discriminatory special rule. But that step proved to be one too far. Instead, the Court held—virtually without explanation—that the leveling down would be “prospective” only.

Justices Thomas wrote separately to point out that the Court’s remedial holding seemed to moot its merits analysis. Joined by Justice Alito, Thomas suggested that the Court could simply have assumed a merits violation arguendo and then explained that the proper remedy would then be to level down. The majority’s footnoted response is interesting:

JUSTICE THOMAS, joined by JUSTICE ALITO, sees our equal protection ruling as “unnecessary,” given our remedial holding. But, “as we have repeatedly emphasized, discrimination itself . . . perpetuat[es] ‘archaic and stereotypic notions’” incompatible with the equal treat­ ment guaranteed by the Constitution.

While not pellucid, this passage appears to say that Thomas would have afforded Morales-Santana only incomplete relief because it would have preserved the gender-based discrimination that he complained of. By contrast, the majority afforded Morales-Santana meaningful relief by eliminating the unlawful discrimination.


At this point, it’s time to start asking some critical questions.

First off, was the majority right that it had to reach the merits in order to afford Morales-Santana adequate relief? After all, it’s unsettling to think that Morales-Santana obtained relief by preventing other people from obtaining citizenship. Ian expressed a version of this intuition, arguing: “There is not a single human being whose life will be made better because of this opinion.” Yet the idea that discrimination is inherently harmful underlies many of the Court's doctrines. And the majority redressed that injury, thereby plausibly improving someone’s life.

Or did it? Again, the Court’s leveling-down remedy was only “prospective.” So there are many people who have obtained citizenship based on an assertedly discriminatory law, and they will continue to enjoy the benefits of that discrimination. Morales-Santana knows this. So perhaps the discrimination he suffered is ongoing, in which case he would have been denied complete relief even under the majority’s approach. If that’s right, how could the Court justify making its remedy merely prospective?

Instead of directly answering that question, the Court cited briefs filed by the United States. The relevant passages are likewise spare, but they seem to make two points. First, people who have benefitted from the special rule have engendered reliance interests—an understatement if there ever was one. Second, offering only a prospective remedy would minimize disruption and so leave Congress greater freedom to fashion its own solution.

These arguments are the kind of points made to justify a stay of the Court’s mandate or limitations on a grant of injunctive relief. But the Court did not purport to impose a stay or injunction. Rather, the Court’s analysis is merely precedent within the context of Morales-Santana’s petition for review of his removal. So the Court is blurring categories when it says its decision has a “remedy” component. In effect, the Court is viewing its reasoning as akin to a declaratory judgment that adjudicates the rights of non-parties.

What’s more, the Court itself appears to have blurred the boundary between judgments for injunctive relief and merely precedential opinions. In a kind of catch-all decretal sentence, the Court indicated that the decision below was affirmed in part, reversed in part, and remanded. As Will has pointed out, however, this disposition is surprising, for the lower court had ruled in favor of Morales-Santana’s citizenship and granted his requested relief. So, what part of the lower court’s judgment was affirmed?

The Court’s decretal language may simply have been imprecise. Or perhaps the Court wanted to affirm out of a sense of courtesy to the lower court. In a couple places, it seems that the majority opinion (authored by Justice Ginsburg) goes out of its way to be respectful of the Second Circuit panel decision, such as by pointing out that the lower court "correctly" ruled on the merits. Granting a symbolic partial affirmance might have been part of that effort.

But it seems more likely that the Court meant to affirm the lower court insofar as it had found an equal protection violation, thereby establishing a binding precedential rule. An analogy might be drawn to Camreta v. Greene, which vacated “part of the Ninth Circuit's opinion,” thereby treating a precedential ruling as though it were a judgment. So in both its reasoning and its decretal sentence, Morales-Santana seems to have conflated its treatment of judgments and of precedent.

It’s also worth noting two other considerations that may have informed the Court’s choice of remedy, even though they weren’t discussed. First, Justice Scalia helped propound the idea that courts lack authority to extend citizenship as a remedy—a position canvassed and ultimately rejected by the Second Circuit below. Second, if the Court had made the level-down remedy retroactive, the result might have violated the constitutional rights of the people induced to rely on the government’s promise of citizenship.

With so many controversial considerations swirling around, the Court may have deliberately curtailed its reasoning, hoping to do rough justice today while enjoying wiggle room tomorrow. At that, at least, the Court likely succeeded.

Posted by Richard M. Re on June 13, 2017 at 08:14 AM | Permalink | Comments (1)

The Judgment in Morales-Santana (SCOTUS Symposium)

Howard and Ian have both posted about today's opinion in Sessions v. Morales-Santana, in which the Court held Section 309(c) of the INA unconstitutionally discriminatory, but then held that the remedy was to apply the stricter rule across the board ("leveling down," or what Ian calls "the mean remedy") rather than the more lenient rule ("leveling up"). (And here's Asher Steinberg with thoughts on implications for the travel ban.) I have given some thought to the leveling down/leveling up problem, and once tried to write an article about it, but I ended up shelving it in part because the problem was too hard.

For now, though, I have a more basic question about the judgment in the case. Justice Ginsburg's opinion ends "The judgment of the Court of Appeals for the Second Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion." The Second Circuit, for its part, had concluded that "Morales-Santana is a citizen as of his birth," and reversed and remanded the Bureau of Immigration Appeals. But what part of the Second Circuit's judgment, exactly, did the Supreme Court actually affirm?

Normally the Supreme Court affirms in part and reverses in part when the lower court's judgment extended to two separate claims, and got one of them right. Here, so far as I can tell, there is only one bottom-line claim -- whether Morales-Santana is a citizen or not -- though there are two different legal questions on the way to answering it.

To be sure, the Supreme Court agreed with part of the Second Circuit's opinion (the part holding the statute unconstitutional) but it seems to disagree entirely with its judgment. The Second Circuit reversed the BIA. The Supreme Court held that the Second Circuit should have affirmed the BIA on alternate grounds. (And as the Supreme Court sometimes says, it reviews "judgments, not opinions.") So shouldn't the Supreme Court have just reversed the Second Circuit, and if not, what part of its judgment (as opposed to its opinion) did the Court affirm?

One possibility is Mark Tushnet's suggestion that the Court is actually requiring the executive branch to exercise prosecutorial discretion in favor of Mr. Morales-Santana if possible, but nobody else seems to share that reading of the opinion and I don't think I do either.

Another possibility is that the Court thinks that "holding a statute unconstitutional" is somehow a separate part of the judgment, something that can be affirmed separate and apart from any actual constitutional claim or remedy that is sought in the case. I don't think that's how federal courts work, but it is a conception of judicial power I see floating around sometimes.

A third possibility is that the opinion was forged in compromise, and it was important to some members of the Court to get "affirmed" somewhere into the judgment line, even if it wasn't clear why.

The fourth, and most likely, possibility is that I am missing something.


Posted by Will Baude on June 13, 2017 at 12:51 AM in 2016-17 End of Term | Permalink | Comments (4)

Monday, June 12, 2017

SCOTUS Symposium: Morales-Santana and the "Mean Remedy"

Today, the Court decided Sessions v. Morales-Santana, which is a case about who exactly is a citizen of the United States at birth. More specifically: If you are born abroad, and your parents are unmarried, and one of them is a citizen of the United States and one is not, are you a citizen? Until today, the law treated you differently depending on the sex of your citizen parent. If your father was a citizen, then (among other things) he had to be resident in the United States for five years before you were born for you to be a citizen; if it was your mother, it was a shorter period, just one year. The question presented in the case is whether this sex classification was constitutional. 

Because of the opinion assignments from November, it had been reasonably clear for some time that Justice Ginsburg had been assigned this opinion, and indeed on the merits she wrote for the Court an opinion that is perfectly consonant with what you might predict. No, said the Court, you cannot treat people differently depending on whether their citizen parent was a man or woman. Fair enough, and certainly seems right to me.

But! As Howard wrote about earlier today, the further question then arises: what do you do about this? Do you treat the children of citizen women worse, or the children of citizen men better? On First Mondays, back in November, co-symposiast Dan Epps and I referred to these as "the nice remedy" and "the mean remedy." Surprisingly, at least to me, today the Court elected the "mean remedy": children born to citizen mothers will, henceforth (more on that in a second), be worse off. A child born abroad to a non-citizen father and a citizen mother will not be a citizen unless that mother satisfied the longer residence requirements. The upshot is that Morales-Santana loses, and will be removed from the United States, because his father was a few days short of the required residence requirements.

There is a lot to dislike about the remedy portion of this opinion, which I think is an early contender for the worst thing Justice Ginsburg has ever written for the Court. Let me just pick out a couple of things.

1. Statelessness. One of the government's major justifications for the difference in treatment was the avoidance of statelessness for children—that is, to avoid a situation where a child would not be a citizen of any country. The government argued without contradiction that there were many states that "put the child of the U. S.-citizen mother at risk of statelessness" because they did not provide "for the child to acquire the father’s citizenship at birth." Yes, says the Court: but there are also "formidable impediments placed by foreign laws on an unwed mother’s transmission of citizenship to her child."

In many countries, for example, a woman cannot "assign nationality to a nonmarital child born outside the subject country with a foreign father." In others, women who are citizens of such countries cannot even  "transmit their citizenship to nonmarital children born within the mother’s country." (Emphasis mine.) True—but the Court's remedy then makes this problem even worse by making it harder for children of U.S.-citizen mothers to be citizens. There is no evident appreciation in the Court's opinion for this fact. The practical consequence of the decision will absolutely be to worsen the problem of statelessness, something that is nowhere acknowledged in Justice Ginsburg's opinion.

2. Prospectivity. When the decision was handed down, I was immediately alarmed for the fate of the many, many people who have enjoyed citizenship at birth through their mothers, and whether their citizenship would be in jeopardy. What happens to the person whose mother was resident in the United States for 2 years when they were born (perhaps a long time ago), and who has lived their life as a citizen ever since? Deportation? This was an especial worry because the BIA recently decided Matter of Faldoun, in which the agency concluded that a person born outside the United States—even one who has been treated as a citizen—must always prove his citizenship in deportation proceedings, even if they have valid documentation of citizenship, and is vulnerable to later collateral challenges based on the facts or law.

The Court's opinion, however, addresses this worry in what is literally the last operative sentence of the opinion. Until Congress proscribes a different rule, the Court says, the "five-year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers." (Emphasis mine.) Now, why would that be? Prospectively, that is? The usual rule is that a court opinion construing the meaning or validity of a civil statute is "retroactive," in the sense that the court is simply announcing what the law has always been; there are a variety of exceptions to this principle, some more sensible than others, and perhaps they ought to apply here. Yet the Court says not one word about why the remedy is to be prospective—I suspect because it is a pure kludge, a price exacted by members of the Court who could not live with the cruelty of retroactivity but not elaborated upon because other members of the majority did not want the point labored.

It is not as clean a solution as it seems. What does "prospectively" mean, for one thing? Does the Court mean the rule is to be applied to children who are born after today? To people who have not yet been adjudged citizens in some final-ish court or agency proceeding? What of a person who was born 25 years ago to a citizen mother who cannot satisfy the new rule, and who has held a passport his entire life, but who commits an offense in 2018 that would render an immigrant removable. Is his removal a "prospective" application of Morales-Santana? I can see arguments both ways, and there is absolutely nothing in the Court's opinion to help sort the matter out.

3. The Gentler World of Thomas and Alito. In concurrence, Justice Thomas writes (joined by Justice Alito) that he agrees the Court cannot afford the relief Morales-Santana wants, and so would decide nothing more than that—he would skip, in other words, the merits holding. In a strange way, this would leave many immigrants better off: because Justice Thomas does not want to reach the merits, and because it is hard to imagine who would have standing to challenge the (now-unlawful) grant of citizenship to a person on the basis of his mother's citizenship, there are a lot of people who will be deported from the United States in the years to come who would have remained if Justice Thomas had his way.

On the whole, the opinion left me (as might be clear) with a bad taste in my mouth. It is a symbolic victory, and perhaps a principled one, but an unmitigated material rout. There is not a single human being whose life will be made better because of this opinion, and many people whose lives will be worse. Its crucial operative portion is utterly unexplained and will spawn a great deal more litigation; it is, through and through, a disappointment.

Posted by Ian Samuel on June 12, 2017 at 05:04 PM in 2016-17 End of Term | Permalink | Comments (5)

SCOTUS Symposium: Remedies and constitutional litigation (updated)

I do not teach or write in Remedies, except to the extent that basic remedial principles arise in more general Civ Pro or § 1983 work. Even in that context, I had not considered the special problems of ensuring equality through an injunction. In the First Amendment context, it is easy: Stop enforcing the prohibition on nude dancing or leafletting on the sidewalk and let the plaintiff have nude dancing in his bar or leaflet on the sidewalk. When the claim is that the laws are treating one group differently than the other, there are two choices: Extend the advantageous treatment to the disadvantaged group or extend the disadvantage to everyone. And that depends on statutory design.

This was the problem for the Court in today's decision in Sessions v. Morales-Santana. Federal law must provide rules for when to accord citizenship at birth to children born outside the U.S. where one parent is a citizen. The law imposes on the citizen parent a five-year (two years since age 14) pre-birth residency requirement in order for the citizen parent to transmit citizenship at birth to the child. And that rule controls three situations: Married parents where the father is the citizen; married parents where the mother is the citizen; and unmarried parents where the father is the citizen. The statute then frames an exception to that rule for unmarried parents where the mother is the citizen, who only must have lived in the U.S. for one year pre-birth. The majority held that this less-favorable treatment for unmarried fathers violated equal protection.

But then what?

Morales-Santana was born in the Dominican Republic to a U.S. citizen father and a Dominican mother; the father was 20 days short of satisfying the statutory requirement for transmitting citizenship at birth. What Morales-Santana wanted from the Court was to apply the unmarried-mother rule to unmarried fathers, which his father satisfied, and which would make him a citizen at birth.* He would get that relief if the Court followed its ordinary equal-protection approach of extending the benefit (one-year residency) to the disadvantaged person. But the Court could remedy the equal protection violation a different way: Eliminate the favorable treatment to the differentially treated group (unmarried-mother citizens) and subject everyone to the five-year/two-year rule. That eliminates the equal protection problem, but does not make Morales-Santana a citizen at birth or entitle him to a suspension of removal.

[*] Morales-Santana was trying to avoid deportation as a result of some state criminal convictions.

The Court chose the latter, because the former would be inconsistent with congressional intent and the structure of the law and would disrupt the statute. The rule for unmarried-mother citizens is framed as an exception to the general rule, suggesting that Congress saw the five/two residency rule as the norm. And if the Court extended the one-year rule to unmarried-father citizens (Morales-Santana's preference), it would have produced a system in which married parents were treated less favorably than unmarried parents, itself raising constitutional problems. And the Court believed that Congress would not have wanted all parents (married and unmarried, mother or father) subject to the one-year rule, otherwise Congress would have made one year the rule, not a one-provision exception.

But does the Court ordinarily look to groups not before the Court in creating remedies? The provisions for married parents are in 8 U.S.C. § 1401, while the provisions for unmarried parents are in § 1409. So the Court could have said the equal protection problem is in § 1409, extended the favorable rule to all, then worried about the equal protection problems as between § 1401 and § 1409 in a later case. But that still left the problem within § 1409, in which the provision for unmarried-father citizens was in (a) and for unmarried-mother citizens was in (c) and written as an exception to (a) ("Notwithstanding the provision of subsection (a) of this section . . .").

Update: From Mark Tushnet at Balkinization:

[M]y initial reaction is that that argument is incomplete, because it doesn't take account of the Court's statement that, pending a statutory revision, the "Government must ensure that the laws in question are administered in a manner free from gender-based discrimination." What could that mean? My (relatively uninformed) take is this: Where (a) the gender-based provision would have immediate legal consequences (as in triggering Morales-Santana's eligibility for removal), and (b) the law gives the government discretion in administering the law (for example, discretion to suspend removal), that discretion should be exercised in a way that would eliminate the legal effects of the gender-based discrimination. So, in short, if there's discretion to suspend Morales-Santana's removal, he should get to stay in the United States.
Mark quotes from p.2 of the slip op., the end of the Introduction. But at the end of the body of the opinion (p.28 of the slip op.), the Court says "[i]n the interim, as the Government suggests, § 1401(a)(7)'s now five-year requirement should apply prospectively to children born to unwed U.S.-citizen mothers." It seems to me that means the government is free to remove Morales-Santana, because he is not a citizen-at-birth under the applicable provision. And that provision is no longer discriminatory; the discrimination was removed by the order/agreement not to treat as citizens at birth those born to unmarried-mother citizens. The Court did not order the government to suspend Morales-Santana's removal or order the lower court to consider that. And the provisions at issue do not allow of executive discretion.

Posted by Howard Wasserman on June 12, 2017 at 02:26 PM in 2016-17 End of Term, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Call for Papers for the Inaugural Northeast Privacy Scholars Workshop

October 20, 2017 at New York Law School

Abstracts/Applications due August 20, 2017

Papers due September 20, 2017


We invite submissions on a variety of privacy-related topics and from a wide range of disciplines, including, but not limited to, law, social science, computer science, engineering, communications, and public policy.

The Workshop format is designed to facilitate discussion and commentary on early stage papers and will give preference to papers that are sufficiently developed to be read and critiqued, but not yet submitted for publication. There will be no presentations at the Workshop; only brief commentary and feedback from participants. All participants and attendees are asked to read the papers ahead of time and stay for the entire workshop. 

The Program Committee, which will select from among the submitted abstracts, includes, in alphabetical order: Arvind Narayanan, Princeton University; Helen Nissenbaum, NYU Steinhardt/Cornell Tech; Frank Pasquale, University of Maryland Carey School of Law; Joel Reidenberg, Fordham Law School; Katherine Strandburg, NYU School of Law; Joseph Turow, University of Pennsylvania; Ari Waldman, New York Law School

For more information, please see the Workshop webpage.

Selections will be made no later than September 3, 2017. And papers will be due by September 20, 2017 at 5 PM Eastern.

We look forward to your submission and expect a stimulating conversation. If you have any questions, please email Ari Waldman at ari.waldman@nyls.edu.

Posted by Ethan Leib on June 12, 2017 at 01:44 PM | Permalink | Comments (0)

SCOTUS Symposium: Class certification, death knells, and finality

The Court at long last* decided Microsoft Corp. v. Baker. The Court was unanimous that plaintiffs, having been denied class certification, cannot seek review of that denial by voluntarily dismissing their individual claims.

[*] The Court granted cert. in in early 2016, before Justice Scalia died. It was held to this and argument delayed following Scalia's death, although argued in March, before the 8-person Court.

In Coopers & Lybrand v. Livesay in 1978, the Court held that denial of certification was not a final order for § 1291 purposes (it was "inherently interlocutory") and not reviewable under the Collateral Order Doctrine. The Court rejected the "death knell" doctrine, under which review would be allowed where the denial of cert was the death knell for litigation, because it would be financially untenable for plaintiffs to pursue small-value individual claims. Twenty years later, the Court responded with FRCP 23(f), which allowed for immediate review of cert orders (grants or denials), if the court of appeals agreed in its discretion to hear the issue. Plaintiffs  developed an additional strategy in the lower courts--voluntarily dismiss their individual claims to create a final judgment, appeal that final judgment while getting review of the cert order, then reinstate the individual claims if the court of appeals reversed on the cert decision.

Justice Ginsburg, writing for Justices Kennedy, Breyer, Sotomayor, and Kagan, held that there was no final decision to appeal. The decision was entirely purposivist--tied to the way this strategy would undermine the efficiency purposes of the Final Judgment Rule, the "careful calibration" reflected by FRCP 23(f), and the one-sidedness of a mechanism that allows plaintiffs but not defendants to seek review. Justice Thomas, joined by the Chief and Justice Alito, concurred in the judgment. In their view, the voluntary dismissal did produce a final judgment, because the claims in the case were gone. But it is not a final judgment that can be appealed under Article III, because any adversity was destroyed by the voluntariness of the dismissal. And the disputed issue of class certification is not a case or controversy that can support Article III adverseness, but only a means of taking advantage of a procedural mechanism.

It seems to me that both parts of the Court get this wrong. The majority did not respond to the real strategy at work here--creating a final judgment in the order dismissing the individual, which should be final, then raising the class cert as an interlocutory order merged into that final judgment and subject to review as part of review of the final judgment. The majority was right that the cert order was not final, but that was not what the order that the plaintiffs were trying to appeal. On the other hand, if the concurrence was right about Article III, what does that do to conditional pleas, which seem analogous to what the plaintiffs did here: Concede the merits, subject to being able to raise an underlying interlocutory issue on appeal. If adverseness is gone as to one, why not the other? I suppose the answer might be that a constitutional right is at stake in conditional appeals. But some conditional appeals are keyed to, for example, evidentiary rulings that do not implicate constitutional concerns.

A better solution might have been that there is a final judgment in the dismissal order, but that there are prudential limits on a court reviewing a voluntary dismissal, just as there are prudential limits on a court taking appeals from the winners below. The majority's concern for the interaction with FRCP 23(f) and the policies of finality fit better with a prudential analysis might properly have led the Court to the same result, but in a way that fits better than using purpose to define finality. At the same time, if Article III does not categorically bar winners' appeals, it should not categorically bar appeals from voluntary dismissals.

Posted by Howard Wasserman on June 12, 2017 at 12:46 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (4)

SCOTUS Symposium: Is Patent Agency Adjudication Unconstitutional?

This morning the Supreme Court granted review in just one case, and limited its review to one question (three were presented in the petition): Oil States Energy Services LLC v. Greene’s Energy Group, LLC. It's yet another patent law case from the Federal Circuit, but it is no ordinary question presented--at least for patent and administrative law scholars (and constitutional law and federal courts scholars):

Whether inter partes review—an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents—violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.

The argument, which is marshaled by Allyson Ho and her team at Morgan Lewis, is nicely summarized at the outset of the petition:

Patents create property rights, protected by the Constitution. Once a patent is granted, it “is not subject to be revoked or canceled by the president, or any other officer of the Government” because “[i]t has become the property of the patentee, and as such is entitled to the same legal protection as other property.” McCormick Harvesting Mach. Co. v. C. Aultman & Co., 169 U.S. 606, 608-09 (1898).

In 2011, Congress passed the America Invents Act to combat what it perceived as inefficiencies in patent litigation. The Act allows the PTO’s Patent Trial and Appeal Board (the Board) to review existing patents and extinguish those rights in an adversarial process. See 35 U.S.C. §§ 311(a) & 318(a); Google Inc. v. Jongerius Panoramic Techs., LLC, No. IPR 2013-00191, Paper No. 50, at 4 (PTAB, Feb. 13, 2014). This is known as inter partes review. 37 C.F.R. § 42.100(a); H.R. REP. NO. 112-98, pt. 1, at 46-47 (2011). Inter partes review commences when a party—often an alleged patent infringer—asks the Board to reconsider the PTO’s issuance of an existing patent and invalidate it on the ground that it was anticipated by prior art or obvious. 35 U.S.C. § 311(b).

Historically, though, suits to invalidate patents would have been tried before a jury in a court of law. The Constitution thus provides patent owners with a right to a jury and an Article III forum. Inter partes review violates these rights. 

Unsurprisingly, the Solicitor General sided with the Respondent in filing a brief in opposition, arguing that the statutory scheme is constitutional as "[p]atents are quintessential public rights" and the process Congress has designed for agency review of its own decisions to issue patents is proper for the administration of a public-rights scheme. I can't wait for all the amicus briefs on both sides of the public-private rights debate, and I wonder if we'll see a full Hamburger assault on the modern administrative state, accompanied by witty (perhaps one-word) responses. 

The stakes are high here. This agency patent adjudication procedure has become extremely popular among those parties seeking to challenge patents, arguably because it is faster and cheaper than district court litigation--and also, perhaps, because the two paths under the statute are not mutually exclusive, such that patent challengers can pursue both options (with some limitations) to invalidate patents.

The numbers speak for themselves. As of last fall, the Patent Trial and Appeal Board (the agency that adjudicates these claims) had received over 5,000 petitions for inter partes review since starting to hear such claims in 2012 (shortly after the American Invents Act was enacted in 2011 to provide this adjudicatory authority to the agency). Indeed, the Federal Circuit, the court of appeals that has near-exclusive jurisdiction over patent appeals, now hears more patent appeals from the PTAB than from the district courts. 

I would expect this agency adjudication path to become even more popular after the Supreme Court's decision this Term in TC Heartland LLC v. Kraft Foods Group Brands LLC, which interpreted the patent venue statute to require that lawsuits only be brought in districts where the defendant corporation resides--i.e., its State of incorporation. In other words, we should see far fewer patent lawsuits being litigated in a small town in East Texas (a venue patent plaintiffs have found to be very favorable) and more cases being filed in federal district court in Delaware and arguably even more patent challengers opting for agency adjudication.

Selfishly, this cert grant could not have come at a better time. Last year the Duke Law Journal held a terrific symposium on the intersection of patent law and administrative law, which I had the opportunity to attend and pen a short response regarding Chevron deference to PTAB statutory interpretations. I write a fair amount about agency adjudication, including the annual ABA administrative law developments chapter on agency adjudication with ACUS Executive Director Matt Wiener, and I've become just fascinated by the PTAB's adjudicatory procedures. In fact, Melissa Wasserman and I are currently working on a project--tentatively entitled The Lost World of Agency Adjudication (yes, this is a nod to Dan Farber and Anne O'Connell's fabulous article The Lost World of Administrative Law)--that takes a closer look at the PTAB. In this paper, we will draw substantially from Michael Asimow and the Administrative Conference of the United States' terrific work on the rise of agency adjudication outside of the Administrative Procedure Act and will situate the PTAB adjudicatory process within administrative law’s larger movement away from APA-governed formal adjudication and toward formal-like adjudication outside of the APA. 

In all events, I hope to blog more about the merits of this case later this month. For now, I'd  flag Part III of Justice Thomas's 2015 dissent in B&B Hardware v. Hargis Industries, in which he expresses constitutional concerns about a somewhat similar agency adjudication institution (the Trademark and Trial Appeal Board). Note that he is the only member on the current Court who expressed such concerns then, with only Justice Scalia joining him. Yet with today's grant we have at least four Justices who are interested in this related constitutional question.

Posted by Chris Walker on June 12, 2017 at 11:38 AM | Permalink | Comments (0)

SCOTUS Symposium: Summary Reversal in Virginia v. LeBlanc

The Supreme Court released a new batch of opinions today, and these are a bit more interesting than the ones last week.  We have Justice Gorsuch's first opinion in Henson v. Santander, about the FDCPA; a big case about class actions in Microsoft v. Baker (one of the cases that kept being put off after Justice Scalia's death); a significant equal protection decision in Sessions v. Morales-Santana; and Sandoz v. Amgen, a case involving some complicated FDA issues.  Particularly interesting to me, though, was a summary reversal in Virginia v. LeBlanc, which involves an interesting follow-on question from Graham v. Florida. Basically, Graham held that juvenile defendants who didn't commit homicide can't receive life without parole; instead, they are entitled to "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." But the Court didn't decide in Graham what that "meaningful opportunity" looks like exactly, and it hasn't provided further clarification (yet). So lower courts have been working that through in Graham challenges brought by juvenile non-homicide offenders.

LeBlanc is one of those follow-on cases. The defendant, a Virginia prisoner, was serving a life without parole sentence for a rape he committed at age 16. He challenged his sentence under Graham, and lost in the state courts; a state trial court concluded that he had a "meaningful opportunity" for release: though Virginia had abolished parole for offenders like LeBlanc, it has a geriatric release program that enables older inmates to get out of prison if certain conditions apply, and the state court found that this program satisfied Graham. On federal habeas review, the Fourth Circuit concluded that the state courts erred, and that the geriatric release program wasn't enough to satisfy Graham. Today, the Supreme Court unanimously reversed that decision. My thoughts after the jump.

The opinion is pretty straightforward, and in my view right. Not because it's totally clear that Virginia's geriatric release program is an acceptable procedure under Graham, but because of the significant restrictions on federal habeas review for state prisoners. Under AEDPA, federal courts aren't supposed to contradict state court decisions denying relief unless those decisions unreasonably apply clearly established federal law. Here, it's at least a hard and open question whether Virginia's procedure satisfies Graham; even if the best answer is that it doesn't, it's not unreasonable for a state court to conclude otherwise. 

I think there is one fair criticism of LeBlanc, although it's not exactly a criticism on the merits. LeBlanc was a summary reversal, where the Court just decides the case on the basis of the certiorari filings. The Court does a handful of these a year, probably no more than a dozen. While I have no problem with the Court using its power to summarily reverse when appropriate, the Court seems to prioritize certain issues over others. As symposium co-participant Will Baude has shown, the Court has been eager to summarily reverse in cases where lower courts misapplied AEDPA by granting habeas relief. The Court has also been pretty eager to reverse in cases that denied qualified immunity to police-officer defendants. While there are potentially good reasons for the Justices to use their energies in this way, the problem is that the Court, as Will explains, doesn't explain why it is using its resources as it does. And that creates a possible inference that the Justices aren't applying an evenhanded standard ("summarily reverse if the decision below is really really wrong") but instead just think errors in one direction are more important than others. Justice Sotomayor herself recently accused her colleagues of being inconsistent in the qualified immunity context, noting the "disturbing trend regarding the use of this Court’s resources" that it has "not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force" while it "rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases." 

The objection, to be clear, doesn't go to the merits of the Court's decisions summarily reversing; most of them seem right on the law and perhaps even uncontroversially so. The objection is that by only summarily reversing for certain kinds of errors but not others, the Court subtly pushes the law in one direction without explaining what it's doing. I don't think LeBlanc makes that problem worse. But it is yet another state-on-top AEDPA reversal.  So it may signal that, with Justice Gorsuch aboard, the Court's summary reversal practices aren't changing anytime soon. 

Posted by Daniel Epps on June 12, 2017 at 11:35 AM in 2016-17 End of Term | Permalink | Comments (4)

SCOTUS Symposium: Gorsuch's first opinion

My tentative prediction that Justice Gorsuch would write Perry v. MSPB was dealt a non-fatal blow today when Gorsuch wrote Henson v. Santander, a case involving the scope of the Fair Debt Collections Practice Act. As per tradition, it was a short (11 pages), easy, unanimous decision. Gorsuch may still write Perry--he almost certainly will have multiple opinions from the fourteen-case April sitting. But the chances went down a bit.

[Update on further consideration: During Perry arguments, Gorsuch seemed to question Kloeckner v. Solis, a unanimous 2012 decision (authored by Justice Kagan) holding that some MSPB decisions should be challenged in district court. Might he have convinced four Justices to overrule Kloeckner? Or at least to reject its application to a slightly different context? And might the Court be divided on the point, triggering a dissent from Kagan? If so, it might explain why Henson came out first--not only because it got done more quickly because he did not have to await a dissent, but because the practice is to release the easy, unanimous case first.]

Posted by Howard Wasserman on June 12, 2017 at 11:02 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Sunday, June 11, 2017

@realDonaldTrump as public forum and state action

Last week, the Knight First Amendment Institute at Columbia University has written an open letter to President Trump on behalf of two people blocked from Trump's Twitter account, apparently for posts criticizing or mocking the President. The letter argues that the account is a designated public forum, from which people cannot be excluded for viewpoint-discriminatory reasons. Eugene Volokh questions the conclusion, doubting that Trump is using the account as a government official rather than as an individual who holds public office although admitting it is an unexplored border area, and narrowing the concept of the speech restricted to the opportunity to engage in comment threads. Noah Feldman rejects the entire premise of the Knight Institute's letter because Twitter, a private actor, banned the users.

I disagree with Feldman's conclusions, although it raises some interesting state action/under color of law questions. The relevant fact is that Trump commanded Twitter to ban block these speakers. And the claim is that Trump violated the First Amendment; Knight is not suggesting that Twitter violated the First Amendment. In any action against Trump, the challenge would be to his under-color decision to block them; it would be irrelevant that the block was carried out by a private actor following Trump's command. By analogy, if the President rented a private space for a public event and ordered private security to keep certain people out based on their viewpoint, the violative act is the order to keep them out, regardless of who carried it out.

And it gets kind of interesting if Knight were to go after Twitter. A private actor may be under color when it performs a traditional and exclusive government function and when it acts under government compulsion to perform a violative act. If Trump is acting as President in managing @realDonaldTrump, the violative act of blocking the users is done under Trump's command or compulsion. And the President arguably has delegated control and management of a public forum--a government function--to private actors. Both of those facts should make Twitter under color of (federal) law.

Posted by Howard Wasserman on June 11, 2017 at 06:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

A different scope-of-injunction question

The Texas Department of Health and Human Services enacted a regulation requiring clinics to bury or cremate fetal remains; a district court enjoined enforcement of the regs. The Texas legislature then passed (and the governor signed) a comprehensive statute imposing new abortion limitations, including requirements that clinics bury or cremate fetal and embryonic remains (§ 697.004). Slate's Mark Joseph Stern argues that this move is "treading dangerously close to a conflict with a federal court order." He explains:

Technically, SB8 does not directly conflict with Sparks’ injunction, which only prevents the state from implementing the Health and Human Services rule. In practice, though, the law looks a lot like defiance of a federal court order. By way of analogy, imagine if a court struck down Texas’ constitutional amendment outlawing same-sex marriage and the legislature simply replaced it with an identical statute. That game of whack-a-mole might be hypothetically legal, but it would also be constitutionally indefensible.

Stern interviewed a lawyer from the Center for Reproductive Right who said the district court's decision would "seem to clearly proscribe this law," but declined to discuss their litigation strategy for responding to the new law.

Is this right?

In a judicial-departmentalist world, a state government can disregard judicial precedent but cannot disregard a court order. A court order halts "this conduct" by "this defendant" (and those working with this defendant)  as to "this plaintiff." The question is what is "this conduct" when talking about attempts to restrict reproductive choice and an action seeking to enjoin that restriction. The answer depends on whose perspective we adopt. From the plaintiff's standpoint, it is the state seeking to require it to do something (dispose of fetal remains) in a way that injures its business and deprives its female patients of their Fourteenth Amendment rights. From the defendant's standpoint, each involves different forms of government conduct and the enforcement of different legal rules that must be scrutinized and analyzed separately in determining constitutional validity. We can do the same with Stern's same-sex marriage hypothetical. From the defendant's standpoint, these are distinct legal enactments and enforcement of distinct rules that must be scrutinized and analyzed separately in determining constitutional validity. From the plaintiff's standpoint, the state is prohibiting her from doing something (marry a same-sex partner) in a way that deprives her of her Fourteenth Amendment rights.

My inclination is that we look from the government's perspective and that this does not implicate the existing injunction. The government acts through grants of authority to enforce legal rules. And enforcement of a different legal rule from a different source is a different action, even if the rules are identical, even if they injure the same people in the same way, and even if they share the same constitutional defects. HHS enforcing a regulation is a different official action than HHS enforcing a statute. There also is the possibility that the government would argue that a statute should get greater deference or leeway than an administrative regulation. I would reject the argument in this context--if it imposes an undue burden, it does not matter who in the state enacted the ruel--but it is something Texas could argue. And that makes the statute different than the reg and thus not a violation of the injunction.

The difference is largely procedural--how, in an ongoing litigation (the parties are under preliminary injunction but no final judgment has been entered), to challenge the constitutional validity of the new law. If enforcing the statute represents the same governmental conduct as enforcing the reg, the plaintiff can proceed via a motion to enforce the injunction, perhaps along with a motion for contempt. If this is different government conduct, the plaintiffs must proceed via a motion to "extend" the injunction, likely in conjunction with an amended complaint adding a new constitutional claim against enforcement of the new legislation.

So I believe the answer is straightforward. But it presents a different issue for how we determine the scope of an injunction in constitutional cases--looking not only to the parties,  but also the legal rule challenged.

Posted by Howard Wasserman on June 11, 2017 at 03:47 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Saturday, June 10, 2017

Ranking Beatles songs (a non-law post)

In honor of the 50th anniversary of Sgt. Pepper's come two lists ranking all the Beatles songs: From Bill Wyman in New York Magazine and from Charles Curtis in USA Today. Both put A Day in the Life at the top. Otherwise, they are all over the map in interesting ways (that may say more about making lists than about the Beatles).

After the jump, I list each author's Top 20; in parens is where the other author placed that song. Draw your own conclusions and decide which list you prefer.


20) Hey Jude (4)

19) Lovely Rita (78)

18) Ticket to Ride (19)

17) Nowhere Man (36)

16) Here Comes the Sun (9)

15) Let It Be (10)

14) Money (That's What I Want) (unranked)

13) Something (3)

12) Tomorrow Never Knows (7)

11) She Said, She Said (44)

10) Rain (75)

9) Eleanor Rigby (12)

8) Norwegian Wood (11)

7) Here, There, and Everywhere (54)

6) Dear Prudence (50)

5) Please Please Me (28)

4) She Loves You (60)

3) Penny Lane (23)

2) Strawberry Fields Forever (22)

1) A Day in the Life (1)



20) The End (mid-20s. Wyman ranks Abbey Road medley at 22-29, songs listed in order)

19) Ticket to Ride (18)

18) I Want to Hold Your Hand (49)

17) I Saw Her Standing There (21)

16) Blackbird (31)

15) A Hard Day's Night (41)

14) Can’t Buy Me Love (55)

13) While My Guitar Gently Weeps (32)

12) Eleanor Rigby (9)

11) Norwegian Wood (8)

10) Let It Be (15)

9) Here Comes the Sun (16)

8) Help! (36)

7) Tomorrow  Never Knows(12)

6) Yesterday (39)

5) Revolution (56)

4) Hey, Jude (20)

3) Something (13)

2) In My Life (42)

1) A Day in the Life (1)

They agree on nine songs, but there is huge variance within that agreement, other than Day in the Life. No other song makes both Top-10s, although Rigby and Norwegian are close (9/8 for Wyman, justt outside it for Curtis at 12/11). Four of Wyman's Top-5 did not make Curtis' Top-20, while three of Curtis's Top-5 did not make Wyman's Top-20 (Hey Jude, which Wyman had at 20).

And just to show that they do not agree on the lower end, here is each one's bottom five:


Good Day Sunshine

Dig It

Little Child

Tell Me What You See

Dig A Pony


You Know My Name (Look Up the Number)

Good Night


Blue Jay Way

Octopus's Garden

For broad disagreement, Wyman had She's Leaving Home at 204 (10th-worst); Curtis had it at 61.

One other bit of Beatles trivia: The most recent Hit Parade Podcast explores the story of the week in April 1964 when the Beatles held the entire Billboard Top-5, a tale of how many people in the music industry whiffed on the Beatles. Worth a listen.

Okay, now back to SCOTUS and non-impeachment.

Posted by Howard Wasserman on June 10, 2017 at 06:41 AM in Culture, Howard Wasserman | Permalink | Comments (6)

Friday, June 09, 2017

Yahoo! and Marissa Mayer

Verizon is purchasing Yahoo! and after five years of CEO in a very challenging position, Marissa Mayer will be off to do other things. I was interviewed about her exit (with a very nice golden parachute) on The Street / The Deal. I think she will do well, whether as a VC or the leader of a company and  I look forward to watching the next steps in her meteoric career. 

Posted by Orly Lobel on June 9, 2017 at 03:44 PM | Permalink | Comments (2)

Take the Talent, Leave the Secrets: The Race to Self-Driving Cars and the Google-Uber Lawsuit

Sharing the piece I published today in the Harvard Business Review about the race to autonomous cars. Talent Wants to be Free, but leave the secrets behind:

A star employee leaves a company to join, or become, a competitor, and the former employer sues both the departing employee and the company who hired him for stealing its secrets. Legal battles like that are pervasive across all industries, but one of these high profile, high-stakes lawsuits is at the center of the race to self-driving cars: the dispute between Google and Uber. The suit will do more than determine the future of an important industry — it is a window into the rising number of disputes over talent mobility and trade secrets.

The case is complicated, but in this piece I’ll lay out the facts as we know them, and explain what’s at stake. Ultimately, it’s people more than information that should be free. Hiring employees from another company should be easy — and protected by law — but employers need to emphasize that those hires come with know-how and skills, but not with trade secrets.


continue reading the article on HBR. Happy to get your reactions.

Posted by Orly Lobel on June 9, 2017 at 03:37 PM | Permalink | Comments (9)

Thursday, June 08, 2017

Constitutional Powers and Crimes

For obvious reasons, people have been talking recently about whether it can ever be a crime for the President to instruct a subordinate to end a criminal investigation.  The possible crime here is obstruction of justice.  And the major argument why it cannot be a crime is that the power to enforce laws is assigned to the Executive by the Constitution.  Because deciding whether to investigate and prosecute individuals is solely within the purview of the Executive, and because there are no limits on the reasons why a President can decline to prosecute, some argue that it can never be a crime for a President to end an investigation. 

Without offering any thoughts on whether certain actions actually rise to the level of obstruction of justice, I want to offer a brief explanation why I don’t think this constitutional powers argument is particularly persuasive. 

It is well established that government actors can be convicted for inappropriately exercising their governmental powers.  Any government official who performs an official act in exchange for money, for example, has committed bribery, even if it would have been perfectly legal for her to have taken the same official act under other circumstances.

Unlike bribery, an obstruction of justice charge doesn’t require a separate criminal act; there is no quid pro quo.  And so some might think that, because Presidents are allowed to make non-prosecution decisions for any reason, the simple decision not to prosecution can’t be criminal, no matter what the reason.  But this argument goes too far. 

In a number of situations, the courts have recognized that otherwise unlimited discretion can’t be exercised for certain, forbidden reasons.  That is why, for example, the courts are willing to reverse sentences in discretionary sentencing systems if the sentence is based on race or national origin.  The Supreme Court has also repeatedly said that executive decisions whether to prosecute cannot be made for discriminatory reasons, even if charges are otherwise supported by probable cause.

Now, one might respond that obstruction of justice is different than these other examples because it is a legislative limit on executive power, rather than a constitutional limit.  But I’m not sure that’s a particularly good response.  For one thing, no one disputes that Congress has the most obvious constraint on executive power to prosecute: the power to define crimes.  For another, obstruction of justice is one of many laws that place limits on what the President may or may not do.  Bribery is also a legislative limitation, rather than a constitutional limitation.  Maybe there is some clever constitutional argument to be made about limits on Congress’s ability to restrict the executive’s prosecutorial power.  But obstruction of justice isn’t that sort of limit; it is a generally applicable law that forbids all individuals from taking certain actions for certain reasons.

In short, the simple fact that the Constitution assigns a particular power to an individual does not mean that power is unlimited.  To be clear, I am not saying that a sitting President can be prosecuted (though I may offer thoughts on another day on the weaknesses of that OLC memo on the topic).  Nor am I making a statutory claim about whether this President has obstructed justice.  I am simply saying that otherwise unfettered discretion may not be exercised for particular reasons, which leads me to conclude that a sitting President, like any other individual, can obstruct justice.

Posted by Carissa Byrne Hessick on June 8, 2017 at 09:33 AM in Constitutional thoughts, Criminal Law, Current Affairs | Permalink | Comments (5)

Expressive legislation, legitimacy, and judicial departmentalism

Sherry Colb discusses pending Texas legislation that would ban Dilation-and-Extraction (D&E), the most common method of second-trimester abortions. If enacted, the law would restrict second-trimester abortion to a degree that it almost certainly would constitute an invalid undue burden on reproductive freedom under current Fourteenth Amendment doctrine and almost certainly will be declared invalid and unenforceable by the courts. Colb wonders why Texas would enact legislation so obviously likely to lose in court (noting how common it is for states to do this with abortion legislation) and argues that such legislation is a form of expression for the legislators. She  labels such practices "potentially legitimate but generating discomfort and possible problems;” it depends on how long the law would be in effect and how likely it is to have a chilling effect on Fourteenth Amendment liberties in the lag between enactment and injunction. Legislation-as-expression is better than violence, but inferior to other forms of anti-choice speech that would not have the same practical effect on doctors and women in Texas.

Colb does not mention or consider that the Texas legislators and governor (presumably) believe such legislation is constitutionally valid. This is where the model of "judicial departmentalism" I have been urging comes into play. Because the judicial interpretation or understanding of the Fourteenth Amendment does not bind any other branches, Texas lawmakers  remain free (and act consistent with their oaths) to act on their own constitutional views and understandings, even if those views run contrary to those of the judiciary. What they are doing here is in no way illegitimate and should not be regarded as such. It instead is what coordinate constitutional actors are entitled, and expected, to do--change the law of Texas to match their policy preferences (and, presumably, those of their constituents) and their constitutional vision.

Colb is right that a court, bound to follow the judicial understanding of the Fourteenth Amendment, will declare this law invalid and enjoin its enforcement. And she therefore is right that the practical effect of such legislation at the moment is symbolic and expressive, except to the extent that it sets-up an opportunity to argue for a change in judicial doctrine. In fact, laws such as this represent the only way to change judicial doctrine, making them not only legitimate, but necessary to the development of constitutional law. So judicial departmentalism recasts Colb's argument--in practice it is symbolic, in theory it should not be derogated as only contingently legitimate. It is not that Texas is ignoring the courts, but that Texas' constitutional vision conflicts with that of the federal courts. Neither party acts illegitimately in following its vision.

Posted by Howard Wasserman on June 8, 2017 at 07:02 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, June 07, 2017

SCOTUS Symposium: Even More on Assignments

I'm enjoying the recent posts on the assignment power by Howard and Ian, as well as Steve's interesting post about the purpose of majority opinions. I confess to not being as troubled by the current arrangement as Ian is, though.  Ian asks a number of skeptical questions about the current system for assignments, in which the senior-most Justice has the assignment power; he wonders why it works that way, and whether the system could be designed differently.  I very much agree with Ian that the assignment system is "a product of choices, and we should at least ask whether the choices that have been made are the right ones." But here I think there isn't a huge amount to be gained by changing the rules. A few thoughts after the break.

  1. Why Assign Opinions? Ian asks why there should be an "assignment" at all. Why not just let the majority figure that out on their own on a case-by-case basis? I agree with Ian that such a system would probably work fine. But I don't see any argument that it would be better. You'd have to have additional discussion with each case about who would write (which means less time debating the merits). But figuring out how to spread the workload among the Justices can be a bit of a complicated LSAT logic puzzle, given that not everyone is in the majority for not every case. Having a rule about who gets to assign helps reduce the administrative burden of this complex coordination game.

    In many cases, it's just easier to arbitrarily let somebody decide rather than having to debate the decision from first principles. Anyone who has tried to arrange dinner with a group of friends should know this well. Rather than having an endless about which Sichuan place is the best, or whatever, the best strategy is usually to just declare that you'll defer to X person's choice and leave it at that. Maybe that person won't make the choice you would have made, but you avoid all the wrangling and intense debate about Yelp reviews and all that. 

    Now, I might be more troubled about giving one person the assignment power more or less arbitrarily if I thought the ability to assign was a big deal.  If it's a really significant power, then why should the Justices agree to let that power be distributed based on a somewhat arbitrary rule? Maybe the administrative complexity of debating assignments would be worth it. But Ian's fourth question—about how majority opinions can be "lost" or "stolen"—reveals why I don't think the assignment power is ultimately that consequential. "Assigning" an opinion to Justice X just means that Justice X gets to draft something for other Justices to read; if it's broader or narrower than what was discussed at conference, the other Justices can demand changes, refuse to sign on, and/or draft opinions concurring in the judgment.

    To be sure, the assignment power does matter—sometimes there are Justices who would have signed either a broad or narrow opinion, and so the person who has the power to decide who'll write the first draft gets to shape what the opinion of the Court looks like. In the past, some Chief Justices have been seen as abusing the assignment power; there are some stories in The Brethren about how Chief Justice Burger would play games that frustrated the Associate Justices. But the other Justices have weapons; they can, as noted, refuse to cooperate if the opinion gets assigned to someone who isn't going to write something that really captures the views of the Conference.

  2. Why Seniority?  Ian also wonders why the assignment power is a privilege of seniority.  Here, too, I'm mostly fine with the current system—with one rather significant exception. In general, I think on a court where all the Justices sit for life, distributing privileges by seniority is sensible. By providing a decision rule, it avoids ego-brusing fights that could damage collegiality in an institution where everyone has to work together in relatively close quarters for the rest of their professional lives. And as decision rules go, seniority is pretty fair and neutral: every Justice will eventually earn more seniority, and so every Justice (except for, say, one appointed unusually late in life) can expect to enjoy the privilege at some point in his or her career. If, as I believe, it's simplest to let one person decide these things, deferring to the most senior person seems a defensible method. That justice might not make the best decision, but the more junior justices will get their chance in turn.

    Of course, there are some situations where things work out a little unfairly: where two justices who are ideologically aligned and are also appointed very close in time, the slightly more senior of the two will end up getting a lot more assignment power than the junior one. As Howard notes, in a world where Hillary Clinton won, Justice Sotomayor would have ended up with a lot of power to assign liberal majority opinions; Justice Kagan, despite being appointed only a year later, would have missed out. But that isn't a problem I'm particularly worried about, even if it might be annoying to the more junior Justice in question. 

    I said, however, that I think there is one big exception to my view that the current seniority-based system works well: The Chief Justice. By tradition, the Chief Justice is senior to the rest of the Justices, even if he joined the Court more recently than any of them. And so the vagaries of when the Chief Justice happens to die ends up mattering more than it should. There hasn't been a Chief Justice appointed by a Democratic President in more than 60 years. I don't see a good argument for letting Justices appointed by one party have a monopoly on the assignment power for that long—even if I think that power isn't a huge deal, it still matters. 

    There are lots of ways to solve that problem. One would be to say that the Chief Justice doesn't have seniority over the Associate Justices in terms of opinion assignments. A more radical solution would be to change how the Chief Justice gets designated. Although Article III requires life tenure, and though Article I presupposes the existence of a Chief Justice, I don't see anything in the text of the Constitution that requires that the title "Chief Justice of the United States" stay with one justice for life. Is there any reason to think that Congress couldn't say that Justices sit for life, but that the Chief Justice will be chief for only a set period?  That's how it works on the courts of appeals--the Chief Judge is the senior-most active circuit judge under 65, who then sits for a 7-year term.  Is there any reason to think that system wouldn't be constitutional at the Supreme Court?  I don't see a good defense for having one person be the head of the whole judicial branch for life, especially given the problem of strategic retirements (If another Democrat will get to appoint the Chief Justice in the next half century, it will likely only be because of an unexpected death). I'm sure there is scholarship on this question, though, which I haven't read. 

  3. Assignment of Dissents. Ian wonders why dissents aren't formally assigned like majorities. Here, my sense of the facts on the ground is different: my memory is that the senior-most Justice in the minority does assign dissents, though not through a formal memo. Dissents are a little different because often more people write just for themselves, but my sense is that seniority still matters, at least in situations where there is a big dissent meant to capture the views of three or four justices. 

Posted by Daniel Epps on June 7, 2017 at 12:27 PM in 2016-17 End of Term | Permalink | Comments (3)

Bleg: Course/Credit Releases

I am reposting an earlier request:

I am looking for information on how other law schools handle periodic/sporadic/special release from the regular number of courses and credits (whether from 4 to 3 or 3 to 2). I am looking for information about one-year/one-time reduction--how often they happen, who decides, what criteria are applied, etc.? Is it a one-time special release, to be requested and approved when big projects arise? Do you use an hour-banking system, with a release every third or fourth year? Something else entirely?

You can comment below or email me at howard.wasserman@fiu.edu.



Posted by Howard Wasserman on June 7, 2017 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)