Here are ten of the Legal Theory Bookworm selections that I found most interesting in 2017 listed in alphabetical order:
Evidence of the Law: Proving Legal Claims by Gary Lawson
Impeachment by Cass Sunstein
Imposing Risk: A Normative Framework by John Oberdiek
The Internationalists: How a Radical Plan to Outlaw War Remade the World by Oona A. Hathaway & Scott J. Shapiro
Law and Order in Ancient Athens by Adriaan Lanni
Locking Up Our Own: Crime and Punishment in Black America by James Forman, Jr.
Misreading Law, Misreading Democracy by Victoria Nourse
One Another’s Equals: The Basis of Human Equality by Jeremy Waldron
Settled Versus Right: A Theory of Precedent by Randy J. Kozel
Wednesday, January 31, 2018
Burger King, Net Neutrality, and Commercial Speech
Last week, Burger King (BK) released a pro-net neutrality video that quickly went viral. In short, BK used a Whopper analogy to try to explain the debate surrounding the FCC’s recent repeal of the net neutrality rules. This is interesting, first, because it adds a new and unexpected voice to the net neutrality discussion. Tech companies, of course, are going to weigh in on the net neutrality debate, although the major players will apparently be less affected by the change than some might expect. But the fast food industry’s interest in net neutrality is not as clear.
That brings me to the second reason why BK’s video caught my attention. When I first watched it I wondered, is this commercial speech? BK’s video is a form of corporate image advertising, a topic I am writing about in a current work-in-progress. Specifically, it’s what’s known as cause-related marketing, meaning for-profit entities affiliate themselves with a particular cause—here, net neutrality—to promote their image and products. And it looks like BK’s strategy is working. Yesterday, FCC Commissioner Mignon Clayburn, who opposed the net neutrality repeal, tweeted a photo of herself with a BK mug and said: “Had a craving for @BurgerKing during today's @FCC Open Meeting. #NetNeutrality”
The U.S. Supreme Court was poised to decide the question whether corporate image advertising is commercial speech in Nike, Inc. v. Kasky, 539 U.S. 654 (2003). In that case, the California Supreme Court had held, in a split decision, that Nike’s advertisements, press releases, and newspaper editorials addressing various “sweatshop” allegations were commercial speech. Ultimately, however, the Supreme Court dismissed the writ as improvidently granted because there was no Article III standing, and then the case settled. One the one hand, BK’s ad looks commercial in that it’s motivated by a desire to increase profits. On the other hand, BK is commenting on an important matter of public policy, making this look like core speech. In light of the Court’s more recent decisions on commercial speech (e.g., Sorrell v. IMS Health Inc.), I believe BK’s ad would be treated as noncommercial, but I would love to hear what others think.
Sponsored Post: The New Sheriff in Town Threatens to Crack Down on Cannabis
The following post is by Mark V. Osbeck (Clinical Professor of Law at the University of Michigan Law School and is coauthor of Marijuana Law in a Nutshell (West Academic Publishing 2017)) and sponsored by West Academic.
No one has ever accused Attorney General Jeff Sessions of being a friend of the cannabis industry. Even so, his announcement on January 4th that the Justice Department was retracting the Obama Administration’s so-called Cole Memo came as a surprise to many of us. And it certainly came as unwelcome news to the cannabis industry in legalization states.
The new “Sessions Memo” threatens to reverse the Obama Administration’s hands-off policy toward the states, whereby the Administration had effectively assured actors in the cannabis industry that they would not face federal prosecution so long as they complied with state law and met the 8 policy priorities that were set out in the Cole Memo. (Those priorities included such things as preventing the distribution of marijuana to minors, preventing its diversion to non-legalization states, preventing drugged driving, etc.) In place of those assurances, the Justice Department has now instituted a policy that stresses the illegal nature of cannabis possession and distribution under federal law but leaves enforcement decisions to the discretion of individual United States Attorneys.
The net effect of this change is to create considerable uncertainty among industry actors as to what they can expect in terms of a possible federal crackdown, and to leave open the very real prospect of patchwork federal enforcement across the legalization states. The latter seems particularly problematic in states such as California that have more than one federal judicial district; in these states, similarly situated industry actors located in different parts of the state (e.g., Los Angeles versus San Francisco) may be subject to radically disparate treatment.
Thus far, the various U.S. Attorneys in legalization states have been fairly non-committal about their intentions, although some have signaled a less aggressive approach than others. The U.S. Attorneys in Colorado and the Western District of Washington, for example, have indicated that they intend to continue enforcing the Controlled Substances Act in the same manner they did under the Obama Administration: focusing enforcement efforts on marijuana-related crimes that threaten public safety. But other U.S. Attorneys, such as Andrew Lelling of Massachusetts, have created fear in the cannabis industry by refusing to provide assurances that industry actors will be spared from federal prosecution. It seems likely that if different U.S. Attorneys do start enforcing the Controlled Substances Act in disparate ways, this will lead to an increased sense of urgency among cannabis-friendly members of Congress to find a legislative fix at the federal level to ensure uniform federal treatment.
Stay tuned; this could get interesting!
Tuesday, January 30, 2018
The Amazon Threat to Kill the Hungry Tapeworm
Health industry stock analysts and observers have been wondering for some time about Amazon's potential to enter the marketplace for health care goods and services. It was not until it became widely known last fall that Amazon had obtained wholesale pharmaceutical distribution licenses in twelve states that discussion reached a fever pitch. Pharmacy Benefit Managers ("PBMs"), those giant intermediaries between pharmaceutical producers and health insurers seemed particularly nervous. This could be big.
It may be that we were all just thinking too small. Now that Amazon, Berkshire Hathaway, and JP Morgan have announced their intention to create a multi-employer not for profit health insurance plan/health care provider, it is not only the pharmaceutical sector that is speculating on what all this could mean. This could be even bigger.
The joint announcement implies health care delivery as well as employer sponsored health insurance is contemplated. This has sparked a New York Times comment feud for the ages where readers debate whether any proposal tied to employer sponsored health insurance, even multi-employer sponsored health insurance, could be seen as genuinely disruptive. Clayton Christensen's vision of disruptive innovation, after all, might not be the right model if true disruptive innovation requires that it be advanced by an industry outsider who is interested in breaking all the rules.
Still, we do have a significant historic example of a business person inexperienced in health care delivery and health insurance taking these industries by storm. That is what Henry Kaiser did, beginning in the Richmond Kaiser shipyards of the 1930's on site and opened for public enrollment in the 1940's. Henry Kaiser had clear goals: bind his employees to his shipyards with an attractive plan at a time when war time frozen wages could not perform this function and offer better workplace injury care in order to keep wartime production moving. It is no accident Henry Kaiser first developed a better workers comp system and then moved to employer sponsored health insurance. Finally, Henry Kaiser had an interest in redeeming his mother Mary Kaiser's death at the age of 52 from untreated kidney disease, what we now call chronic nephritis. Her kidney disease was untreated because she could not afford the care required and Henry, a teenager at the time, could not afford it for her.
We may be at the beginning of a "I can do it better myself" time in health care and health system innovation. It was only weeks ago that a number of hospitals announced their intention to found a pharmaceutical company, after all.
One collaborative press release does not an integrated health care delivery/health insurance company make. Even a collaborative press release as wonderful as today's quoting Warren Buffet vowing to help attack the health care costs that are a hungry tapeworm on American business and the American economy raises more questions than it answers. Yet, the disruption may already have begun with Wall Street's acknowledgement that the received wisdom on investing in health care related industries such as HMOs and pharmaceutical distribution companies may no longer be such a sure thing.
Thank you, Howard, and everyone at PrawfsBlawg for allowing me to visit here this past month. You can follow me at my own blog.
Monday, January 29, 2018
CFP: 4th Annual Civil Procedure Workshop (Nov. 9-10, 2018)
The following announcement comes from Brooke Coleman (Seattle), David Marcus (Arizona), and Liz Porter (Washington), now joined by Norman Spaulding and the Civ Pro people at Stanford.
We are excited to announce the fourth annual Civil Procedure Workshop, to be held Stanford Law School in Palo Alto, California on November 9-10, 2018.
The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience.
Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.Confirmed participants for 2018 include the Hon. Diane Wood, Janet Alexander, Elizabeth Burch, Margaret Lemos, David Engstrom, Myriam Gilles, and Deborah Hensler. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 23, 2018. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years.
We will select papers to be presented by May 4, 2018. Please send all submissions or related questions to Norman Spaulding.
The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.
The Story of Goodyear v. Haeger
This Jalopnik piece tells the story of the Goodyear G-159 tire, its problems, and Goodyear's efforts to avoid disclosure of those problems. This was the tire and litigation efforts underlying the OT 2016 decision in Goodyear Tire v. Haeger, in which the district court sanctioned Goodyear for its attorney's discovery abuses.
The Nursing Shortage That Doesn't Necessarily Come Up Short
You may have seen a few of the high profile newspaper and magazine articles highlighting a growing nursing shortage in the United States. But, as with so many things in health care, the shortage of nurses is not evenly distributed across the states or even within a state. Seen from this perspective, we may have more of a distribution problem than a shortage. In health care, geography is destiny.
When I look at Missouri and note that the communities in greatest need of more registered nurses are disproportionately rural and low income, I am not surprised. Rural and low income communities often experience shortages of many different kinds of licensed health practitioners, which can then produce shortages of local delivery of certain kinds of health care services. For example, lack of adequate nursing staff for an obstetric unit may mean that a hospital closes that unit or some beds in that unit.
Just how stark is the labor supply differential for nurses in Missouri? One study reports that " Missouri’s nursing shortage reached a record high in 2017, with almost 16 percent - or 5,700 - of positions vacant, up from 8 percent last year. Thirty-four percent of Missouri registered nurses are 55 or older." So, yes, we have a shortage of nurses in Missouri as many baby boomers age out of a career that may have been one of the few professional careers open to women and we also have a shortage of nursing professors, whose formation has a longer lead time. All of this is happening along with a great push to move all registered nurses to qualifications including a four year degree, no longer sufficing with a two year degree.
To complicate things more, it is reported that for every small rural hospital struggling to fill RN ranks, there is a larger more urban facility that increasingly prefers to hire an advanced practice nurse with a masters or a doctorate. Unless a career in the service of a rural area or the historically under-served is the goal, some prospective nursing students may feel concerned about an inability to tell which way all of this is going to break.
Might you be both today's hot commodity and tomorrow's anticipated leftovers, simultaneously?
Saturday, January 27, 2018
Congress makes procedure
S.1757 — 115th Congress (2017-2018)Building America's Trust ActSponsor: Sen. Cornyn, John [R-TX] (Introduced 08/03/2017) Cosponsors: (8)CosponsorsSen. Barrasso, John [R-WY]* 08/03/2017Sen. Johnson, Ron [R-WI]* 08/03/2017Sen. Tillis, Thom [R-NC]* 08/03/2017Sen. Heller, Dean [R-NV]* 08/03/2017Sen. Scott, Tim [R-SC]* 08/03/2017Sen. Inhofe, James M. [R-OK]* 08/03/2017Sen. Wicker, Roger F. [R-MS] 09/18/2017Sen. Lankford, James [R-OK] 10/04/2017SEC. 564. APPROPRIATE REMEDIES FOR IMMIGRATION LITIGATION.(a) Limitation On Class ActionS.—No court may certify a class under rule 23 of the Federal Rules of Civil Procedure in any civil action that—(1) is filed after the date of enactment of this Act; and(2) pertains to the administration or enforcement of the immigration laws.
Critics of universal injunctions (myself included) have argued that FRCP 23(b)(2) class actions provide the basis for non-particularized injunctions and offer a reason that courts should not grant non-particularized injunctions in non-class cases. Allowing courts to issue broader injunctions in individual cases undermines 23(b)(2) (which, David Marcus has shown, was enacted precisely to allow broader relief in school-desegregation cases)--if a court can issue a universal injunction as a matter of course, the injunctive class action is superfluous. And having 23(b)(2) suggests that universal injunctions generally should not issue outside of a properly certified class.
This bill (which is unlikely to pass, so it will not matter) would cut-off that option, by limiting all constitutional cases to individual challenges of the plaintiffs before the court and thus individualized injunctions protecting those parties. On the other hand, perhaps it would make the court more likely to issue a universal injunction in individual cases, where the court believes the equities demand broader relief and a class is not an option.
Symbolic Anthropology as Cure for Our Tribal Outrage?
The now notorious interview of Jordan Peterson by Cathy Newman has gone viral because of Peterson’s calm rebuttal of Newman’s suggestion that one’s right not to be offended trumps another’s right to free expression. (In response to Newman, Peterson notes that, throughout the interview, Newman had been quite willing to offend Peterson, and a good thing too — an observation that left Peterson, by her own concession, speechless with confusion)
As Conor Friedersdorf notes in the Atlantic, the more notable aspect of the interview, however, is Newman’s incessant distortions of what Peterson actually said by re-characterizing it in manifestly inaccurate and more offensive terms. You do not have to watch the entire interview to get the gist: Friedersdorf provides lengthy block quotes in his article. But watch at least a few minutes to get a sense of the stark contrast between Newman’s outrageous and yet transparent mischaracterizations and Peterson’s repeatedly, patiently and eventually wearily amused corrections. (My own national stereotypes about Peterson’s Canadian accent might reinforce my sense of his unflaggingly polite manner). Friedersdorf complains that Newman’s deliberate distortions represent a more general tendency in our culture to distort one’s opponents’ views, a tendency that stokes internet outrage and, more generally, needless animosity in the Culture Wars. We need to “get better at accurately characterizing the views of folks with differing opinions,” Friedersdorf concludes, “rather than … distorting their words so that existing divisions seem more intractable or impossible to tolerate than they are.”
Good advice — but I think that Friedersdorf might mistake cause and effect here. We are not outraged because we mischaracterize: We mischaracterize because we are outraged. Tribalism means that certain opinions, phrases, micro-gestures are shibboleths in the literal biblical sense — markers of whether or not one’s interlocutor is a member of one’s tribe. When those markers are missing, our sense of identity threat rises. We narrow our eyes, and think, “Oh you’re one of those, are you?” Then everything we hear is colored by our pre-existing narrative about what the other team must really think or want — the actual evil intent that must necessarily lie behind the innocent words. You say you want end-of-life counseling? Well, you must really believe in euthanasia and “death panels.” You say you want same-sex couple to have the right to marry? Then you must also endorse incest and pedophilia. In the world of competing tribes, every statement is a step on to a slippery slope sliding to perdition, because any failure to endorse all of one’s own team’s cheers and jeers is evidence that one is on the other team.
Is there any cure for tribally induced mischaracterization? Here’s a thought. When encountering someone who fails to repeat one of your beloved shibboleths (about same-sex marriage, property rights, global warming, etc.), put on your pith helmet and talk as an anthropologist might talk to members of a completely alien culture with the ultimate aim, Clifford Geertz-style, of using thick description to translate their cosmology. Do not offer any opinions at all. Do not “repeat” what they say in your own words. Be very careful about how your unconscious biases might distort your capacity to hear. Treat that tribe as a subject of study, not an opponent. Listen to their words as charitably as you would listen to, say, a ritual incantation to summon rain from a faraway group of farmers about which you had to write a dissertation. Maybe you could even become an observer-participant in this alien tribe’s rites and ceremonies. If you are a secular liberal, then hang out at an evangelical church. If you are a fraternity bro who loves Limbaugh and Hannity, then spend some time at the Park Slope Food-Co-Op bagging veggies.
Wherever you go, whatever you do, just listen and literally repeat: Don’t summarize, characterize, or paraphrase. Watch the Rain Dance and learn the steps. You might learn something.
Thursday, January 25, 2018
Judicial Impartiality at Sentencing
The internet is awash in disagreement over some comments made by Michigan Judge Rosemarie Aquilina, who presided over the Larry Nassar case. Nassar, a doctor who treated gymnasts for the U.S. Olympic team and at Michigan State University, pleaded guilty to sexually assaulting seven young gymnasts, and it is apparent that he assaulted many more. The judge ultimately imposed a 175-year sentence on Nassar, who had already been sentenced to 60 years on federal child pornography charges.
Judge Aquilina made some very strong statements about Nassar when she announced his sentence. But it is a comment that she made on a previous day—one of the days when Nassar’s many victims spoke at his sentencing hearing—that has led to a heated debate:
“Our Constitution does not allow for cruel and unusual punishment," she said. "If it did, I have to say, I might allow what he did to all of these beautiful souls -- these young women in their childhood -- I would allow someone or many people to do to him what he did to others."
This is a remarkable statement by a judge, but this is also a remarkable case. And so a number of people are saying that the judge should not have made this statement, while others are saying they are glad the judge said this.
First, let me say that I haven't seen a transcript of the judge's entire remarks, and so I can't say whether the comment might seem to have a different meaning in context. But, at least out of context, the judge is suggesting that prison is not a severe enough penalty for Nassar, and that the judge would be tempted, if she could, to sentence Nassar to be sexually assaulted. I both understand the feeling that a prison sentence doesn't seem to acknowledge the enormity of what Nassar did (especially given how cavalierly those sentences are handed out nowadays) and think that the judge should not have given voice to her personal revulsion here.
To illustrate why, let me tell you about another judge. My friend used to be a criminal defense attorney in Tennessee. One Tennessee judge he practiced in front of used to always give the maximum sentences in drug cases. When imposing those sentences, the judge would also give a speech saying that he would give the death penalty for drug dealers if he could. My friend used to tell the story as a colorful anecdote about Tennessee that would outrage his new Northeaster friends. We were all outraged by that speech because of course drug dealers shouldn't get the death penalty. And the judge's speech suggests that the maximum sentences he was imposing were based on his idiosyncratically harsh views about drugs.
Now, the difference between that judge and the judge in Nassar's case is that many people actually agree with the idea that prison is too light of a sentence for those who molest kids. In fact, not too long ago, there was a movement in this country to make child rape a capital crime--a popular movement that was succeeding until the Supreme Court declared it unconstitutional in Kennedy v. Louisiana (2008).
But even though we, as members of the public are free to indulge our disgust and anger at Nassar for the awful things he did, his sentencing judge isn't. She is supposed to be a neutral arbiter who can weigh the awful things Nassar did against any mitigating evidence. This comment suggests Judge Aquilina can't be that neutral arbiter. And that's a problem in every case, including the cases where we couldn't imagine being such an arbiter ourselves.
Now, I’ve made this point about being a “neutral arbiter” on Twitter (in fact, this blog post is drawn from a number of tweets from earlier today), and a number of people disagree. They’ve noted that, when announcing a sentence, a judge’s role is different than her role at trial; and that at sentencing, a judge is supposed to explain the reasons for her sentence, and that it is completely appropriate for that explanation of sentence to reflect the magnitude and awfulness of a defendant’s crime. Both of these statements are true, but they don’t necessarily justify Judge Aquilina’s statements here. Just because judges can act differently at sentencing than at trial does not mean that there are no constraints on their sentencing behavior. This statement happened before all of the sentencing evidence had been submitted, and it goes beyond merely explaining a harsh sentence.
Some have gone even further to say judges are not expected to be impartial overseers at sentencing; instead the judge represents “the people” at sentencing, and it is appropriate for the judge to give voice to “the people’s outrage.” I disagree. The judge never represents the people in a criminal case; the prosecutor does. A judge’s duty to act fairly and impartially applies to “all duties of judicial office.” And, at least taken out of context, I think that Judge Aquilina’s statement fails to be sufficiently impartial.
So, assuming that Judge Aquilina’s statements were insufficiently impartial, what does that mean? It probably does not mean that Nassar will have his sentence reversed on appeal. Michigan courts have not been particularly hospitable to such claims in the past. And appellate courts are generally loathe to overturn trial judges’ sentencing decisions unless they violated a relevant statute, imposed a sentence based on materially false information, or if the judge based the sentence on the defendant’s race or gender.
It *could* mean that Judge Aquilina will be subject to professional discipline for violating her duty of impartiality. There are several examples of judge being disciplined on that basis when their sentencing comments were critical of victims or minimized the harm victims suffered. But I’m not sure that judicial disciplinary committees will have the stomach to impose discipline where the judge’s impartiality favored victims and disadvantaged the defendant. Our current moment seems to be one where judicial leniency prompts backlash, but judicial harshness does not. And I think that asymmetry is troubling. Impartiality requires fair treatment for both sides, not merely for victims—even victims in a case as horrifying as this one.
An old solution that misses the problem
On the Harvard Law Review Blog, Fifth Circuit Judge Gregg Costa proposes that cases seeking "nationwide" injunctions should be heard by three-judge district courts with direct and mandatory review to SCOTUS. Including multiple judges gives the decision greater gravitas, speeds ultimate resolution of the issue, and eliminates forum shopping.
But like most of the arguments, Costa's solution conflates geographic scope with party scope. The problem is not geographic limitations on the injunction or on the court issuing the injunction (in geographic terms, all injunctions are nationwide in protecting the protected person everywhere she is or goes). The problem is these injunctions protecting beyond the named plaintiffs by prohibiting enforcement of the challenged law to all persons--what I have been calling universality. That is not an issue about the number of judges deciding the case or the court's geographic reach. SCOTUS cannot issue an injunction prohibiting (on pain of contempt) enforcement of the challenged law against anyone beyond the named plaintiffs. And a three-judge court has no more power to do that than a single-judge district court.
Judge's Costa's solution does guarantee binding precedent and more quickly. SCOTUS's decision binds all courts to issue similar injunction to new lawsuits by new plaintiffs. And it prompts (although does not require) the federal government to stop enforcing the law. But that is as a matter of precedent, not injunction or judgment. It also suggests that we should return to the pre-1976 regime of three-judge courts for all challenges to all federal laws.
We could recast Judge Costa's argument to require three-judge courts for those rare cases in which a universal injunction is warranted--truly indivisible rights and relief or 23(b)(2) injunctive class actions. That may offer a more direct solution to the real problem of the party scope of the injunctions--when the injunction must be broad, the case can be fast-tracked in this way. But it disconnects from the concern for the "importance" of the federal issues. For example, the sanctuary-city-funding regulations (which are the subject of two universla injunctions) are important, but the right and relief is not indivisible.
Wednesday, January 24, 2018
Obamacare Made Me Do It?
As someone with an interest in healthcare antitrust, I have become somewhat inured to the "Obamacare made me do it" defense to healthcare industry merger challenges, particularly hospital and health insurer mergers. The Affordable Care Act does have both reimbursement mechanisms and quality enhancement mechanisms that may fairly be seen as promoting consolidation, though these goals may often be met through joint ventures and other business arrangements that are short of full merger. In addition, consolidation promotion may represent the acceleration of a trend toward consolidation already underway. This doesn't mean that the "Obamacare made me do it" defense doesn't get raised in merger review. Indeed, a 2016 Health Affairs Blog symposium on The New Health Care spilled considerable ink on the question of whether the drive to consolidation should be a viable defense to a merger challenge. Tim Greaney calls this "the government made me do it" defense, but you get the idea.
You may also recall AOL's CEO and Chairman Tim Armstrong's 2014 assertion that AOL's 401(k) program required re-organization in light of two expensive AOL-covered medically complex births in the preceding year. As AOL is self-insured, the claim that "Obamacare made me do it" was a little ambiguous. Obamacare made AOL offer family based coverage to its employees? I think not. Obamacare constrained AOL from not offering maternity coverage? I think not. You see, as AOL is self-insured, many of the ACA's rules, applicable to fully insured products sold through the exchanges, do not apply to AOL's self-insured health care coverage.
Tim Armstrong got a fair amount of blow back from those who know something about the self-insured employer world and from those concerned that such health care need naming might actually be an attempt at public shaming of those who, as one of the mothers with one of the medically complex births stated, may have had no advance warning of the sudden movement from low risk pregnancy to high risk birth. Still, the impression that the expensive families had done something that wronged other AOL employees and their employer by either somehow not preventing the high risk births or by not somehow removing themselves from the AOL risk pool as soon as the situation became high risk, lingered on. Apparently, two different visions of the goals of the plan are in tension there. There are risks to employers who self-insure, of course, which is why a robust market in stop loss insurance exists.
Even though "Obamacare made me do it" has become something of a meme, however, I did pause at a headline where Congressman Pat Meehan was reported to have asserted that his recently publicized settlement of a sexual harassment claim was not a concession of having engaged in sexual harassment but, if it was, his conduct was amenable to the "Obamacare made me do it" defense. Conceding extraordinary stress induced by a party-bucking health care reform vote, the implication is that political stress may induce sexual harassment. No doubt stress may induce many things.
The idea that stress excuses arguably unlawful behavior in the workplace is an interesting one. After all, was it Obamacare or its potential repeal and replacement that really induced the workplace stress referenced? And isn't the capacity to monitor and cope with significant stress one of the job requirements of being in the United States Congress? Was Congressman Meehan attempting to raise, if necessary, a mental health defense or a defense based on a personality defect, one or both of these exacerbated by workplace stress? It was he who volunteered that he is a volatile person and tends to direct his volatility toward his most valued employees.
Long an advocate for better mental health care for returning veterans, Congressman Meehan, may be staking a different position now. If so, what a powerful advocate for strengthened mental health benefits for all the Congressman has become.
Venue in Patent Cases
Last term, the Supreme Court decided in TC Heartland v. Kraft Foods that the term “resides” in the patent venue statute (28 U.S.C. § 1400) should be interpreted more narrowly than in the general venue statute (28 U.S.C. § 1391). Specifically, the Court held that corporations only “reside” where they are incorporated for purposes of the patent venue statute, whereas corporations “reside” wherever they are subject to personal jurisdiction for purposes of the general venue statute. I firmly believe the Supreme Court got it wrong in TC Heartland, as I argued in this article, amicus brief, and blog post. That said, there are still a number of questions about forum choice in patent cases left to be resolved post-TC Heartland.
In addition to the “resides” provision, the patent venue statute also permits infringement suits to be filed where the defendant has infringed and has a “regular and established place of business.” So now the question is: when does a defendant have a “regular and established place of business” in a particular judicial district? Initially, it looked like this might be interpreted broadly when a judge in the Eastern District of Texas (ED Texas) held in Ratheon Co. v. Cray, Inc. that physical presence was not required. Instead, the district judge reasoned, courts should consider various factors, such as the extent to which the defendant derives benefits from presence in the district, including sales revenue. The lower court then concluded that venue was proper in ED Texas, and Cray petitioned for a writ of mandamus. The Federal Circuit granted the writ and reversed the lower court. The Federal Circuit held that, for venue to be proper, there must be a “physical place in the district,” meaning a “physical, geographical location in the district from which the business of the defendant is carried out.”
Of course, a defendant with a formal office or store will have a “regular and established place of business” under the Federal Circuit’s decision in Cray. This means that companies like Apple that have stores all over the country can still be sued in most districts. But what else will count as a “physical place”? Will maintaining a server in the district be enough? One court said no, but the server in that case was not being used, so it was not “regular and established.” Different facts might very well lead to a different result. These venue questions are particularly difficult in pharmaceutical cases where parties sue under the Hatch-Waxman Act, a specialized statutory scheme that allows branded companies to sue before the generic has actually started distributing the allegedly infringing product. Currently, district courts are struggling to decide what constitutes a “regular and established place of business” in Hatch-Waxman cases. Thus, the only thing that is clear at this point is that it is going to take time--and in some cases discovery--to resolve the many questions that remain in the wake of TC Heartland.
Tuesday, January 23, 2018
JOTWELL: Bookman on Effron on privatized procedure
The new Courts Law essay comes from new JOTWELL contributor Pamela Bookman (Temple), reviewing Robin Effron, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion (B.U. L. Rev. forthcoming), which describes how private procedure and judicial control come together.
Monday, January 22, 2018
A Crack in the Whren Wall?
Earlier today, the Supreme Court decided District of Columbia v. Wesby, a case about whether police had probable cause to arrest some D.C. partygoers who were in a vacant house without permission of the owner. It was clear that the plaintiffs manifested the actus reus of the crime of trespassing and the case centered around whether police had probable cause to believe the partygoers knew or should have known that they did not have the owner’s consent to be there. The case involves some, um, interesting facts. The partygoers were invited to the house by a woman known only as “Peaches” or “Tasty,” and the police found in the house “a makeshift strip club” where “[s]everal women were wearing only bras and thongs, with cash tucked into their garter belts.” (Well, make up your mind, Justice Thomas; were they “wearing only bras and thongs” or were they also wearing garter belts?) I was not surprised, particularly after listening to the oral argument, that the Court held that the officers had probable cause and, separately, that they were protected by qualified immunity in believing that they had probable cause.
The surprise came at the end. Justice Ginsburg wrote a two-page opinion concurring in the judgment in part. She concluded that the officers were protected by qualified immunity, given that the arrests of the partygoers were supported by probable cause under current law. However, Justice Ginsburg wrote separately to “to question whether th[e] Court, in assessing probable cause, should continue to ignore why police in fact acted.” Those steeped in Criminal Procedure likely read this with a raised eyebrow, for Justice Ginsburg was referring to the Court’s unanimous 1996 opinion in Whren v. United States. Whren rejected the argument that police officer motives were relevant to determining whether there was probable cause. Instead, the Court held, probable cause is a wholly objective standard, and the motives of a police officer in acting upon probable cause are irrelevant.Here is the relevant passage from Justice Ginsburg’s opinion today:
The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. A number of commentators have criticized the path we charted in Whren v. United States, 517 U. S. 806 (1996), and follow-on opinions, holding that “an arresting officer’s state of mind . . . is irrelevant to the existence of probable cause,” Devenpeck v. Alford, 543 U. S. 146, 153 (2004). See, e.g., 1 W. LaFave, Search and Seizure §1.4(f), p. 186 (5th ed. 2012) (“The apparent assumption of the Court in Whren, that no significant problem of police arbitrariness can exist as to actions taken with probable cause, blinks at reality.”). I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.
Justice Ginsburg had joined the Whren opinion without comment so the fact that she is beginning to have qualms about it over twenty years later is big news. And the fact that perhaps the biggest fan of Whren, its author Justice Scalia, is no longer on the Court might give the Justices more freedom to re-visit the issue. On the other hand, no other Justice, not even the usual suspects, joined Justice Ginsburg’s opinion today. Time will tell but Justice Ginsburg’s separate opinion today might be the first crack in the Whren wall.
One easy fix in Artis
A 5-4 Court held in Artis v. District of Columbia that the filing of a state-law claim on supplemental jurisdiction tolls the limitations period; where the court declines to exercise supplemental jurisdiction over the state claim under § 1367(c), the plaintiff has whatever time remained on the limitations period at the time of filing plus 30 days under § 1367(d). Justice Ginburg wrote for the Chief and Breyer, Sotomayor, and Kagan; Gorsuch wrote the dissent.
Gorsuch's dissent emphasized a concern that arose during arguments--that state courts may now have to deal with claims that were untimely by many years. This assumes that a claim might have been filed with, say, two years remaining on the limitations clock, would sit in federal court for several years, then would be filed in state court many years after it otherwise could have been. That was the case in miniature here--Artis was fired in November 2010 (facing a three-year limitations period on the state claims that gave her until November 2013), filed suit in December 2011, had her federal claims resolved on summary judgment in June 2014, and had the court decline supplemental jurisdiction over her state claim at that time. As the Court resolved the case, Artis could have filed in July 2016, more than 2 1/2 years after she would have had to file had she not gone to federal court.
Such timing should not be a significant concern in the mine run of cases. A district court should be able to decide early in the litigation whether declination is warranted. It should be obvious near the outset of the case whether the state-law issues substantially predominate or raise novel or complex issues of state law--if not from the complaint then from the responsive pleadings that raise additional state-law claims.
The problematic case is this one under § 1367(c)(3)--where the district court "has dismissed all claims over which it has original jurisdiction," meaning the federal claims. But this problem arises only because of how courts have interpreted "dismissed" in (c)(3). The word seems to contemplate a 12(b)(6) dismissal,* a decision typically made in the early weeks or months of an action.
[*] It cannot include a 12(b)(1) dismissal. If the court lacks subject-matter jurisdiction over the federal claims, it never could have had supplemental jurisdiction over the state claims. The court would be dismissing the state claims for lack of jurisdiction, not declining supplemental jurisdiction. Refiling would depend on the state's savings statute.
But courts have interpreted dismissed to include resolved on summary judgment, including in Aris. That adds the additional months and years that concerned Justice Gorsuch, as summary judgment often must await discovery and the lengthy exchange of information. As Brad Shannon (Florida Coastal) argued a decade ago, however, summary judgment is not a dismissal. If courts limited (c)(3) to dismissals, such time lags would be less likely to occur. A district court could not decline supplemental jurisdiction following a grant of summary judgment, so a case such as Artis (declination 2 1/2 years after the suit was filed) will not result in a declination or the need to refile in state court after the period has run. Declination, and thus tolling, would arise only where the court dismissed federal claims, which typically happens early in the process and much closer to the limitations clock.
Another Federal Death Case in a Non-Death State
For the second time this month, the federal government has filed a notice of intent to seek the death penalty for a murder committed in a non-death State. This particular case is a good example of just how broadly federal jurisdiction extends, permitting the federal government to seek the death penalty in cases where there is little national interest.
Brendt Christensen is accused of kidnapping Yingying Zhang from a bus stop in Champaign, Illinois and later sexually assaulting, torturing, and killing her. There is no allegation that Christensen ever crossed state lines during this crime. Thus, prior to 2006 this would not have been a federal offense. But the Federal Kidnapping Act was amended that year to cover kidnappings where the actor “uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense.” The instrumentalities of interstate commerce that Christensen used during the kidnapping were (1) his cell phone and (2) his car.
It is unclear whether an automobile is an instrumentality of interstate commerce, although at least two federal circuit courts have written that it is. Unfortunately, the reasoning of the courts leaves something to be desired. See United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005) (“Instrumentalities of interstate commerce . . . are the people and things themselves moving in commerce, including automobiles . . . .”); United States v. Bishop, 66 F.3d 569, 588 (3d Cir.1995) (agreeing with Government’s position that “motor vehicles are the quintessential instrumentalities of modern interstate commerce” (internal quotation marks omitted)). I imagine that an automobile could be considered an instrumentality of interstate commerce on at least two theories. First, the car itself most likely traveled in interstate commerce when it was sold to its original owner. And second, the car could be used to cross state lines.
Notice, though, that if an automobile is considered an instrumentality of interstate commerce, a good many mine-run kidnappings are now federal crimes. Where death results, and where the crime takes place entirely within a non-death-penalty State, the feds can prosecute such offenses in order to seek the death penalty.
Sunday, January 21, 2018
Speech Regulation and the University-as-Active-Speaker
One path that a complicated religiously-affiliated institution might follow when attempting reconcile speech and other mission values is what might be called the university-as-active-speaker model, whose outlines are reflected in my university’s new speech policy, adopted earlier this year.
That policy, entitled the Guiding Principles of Speech and Expression (the “Principles), acknowledges that “the Vincentian ideal of universal dignity” depends “in no small measure upon an individual's freedom to give voice to [her] beliefs.” The policy, accordingly, protects individuals’ right to speak, “even at the risk of controversy.” (Principles 4, 6). And it includes an interpretive canon that directs the university to resolve ambiguities in existing “policies and procedures” in favor of freedom of expression. (Principle 7).
Some free speech watchdogs have focused on Principle 3, which affirms DePaul’s mission “to amplify marginalized voices” and “create opportunities for conversations that advance social justice.” According to Adam Goldstein, a fellow at FIRE, this language (which parallels some language from the mission statement of the University of Chicago’s Center for Identity + Inclusion) signals that DePaul wants to (this is a paraphrase) “subordinate free speech to [DePaul’s] social justice values.”
This reading, though, misreads the policy. (And here, of course, I speak for myself, not the university).
The Principles, rather, affirm that DePaul’s social justice mission has both equity and autonomy-based components. And it expresses an equal commitment to each cluster of values by distinguishing between two different categories of speech.
The first is speech by DePaul “as a university”—that is, DePaul acting as a corporate religious and educational institution, whether by funding campus activities, inviting commencement speakers, or sponsoring official university programming. The second category is speech by “individuals”— students and faculty.
Guiding Principle 3, in turn, governs university speech.
It takes as a starting point that DePaul has a viewpoint. It is a mission-based religious university with a special concern for the marginalized.
But, by borrowing from mission statement of the U of C Center for Identity + Inclusion, Principle 3 underscores DePaul’s intent to promote the equity-based aspect of its mission in the speech-protective way the University of Chicago promotes its secular commitment to “a more equitable society”: by providing resources that “amplify” the voices of the marginalized.
This includes university sponsored mission-and-values programming; support for affinity centers; an admissions system that has special regard for first-generation college students; special subsidies for mission-aligned student service groups; and a strong commitment to diversity in hiring. DePaul is so deeply committed to these goals that it puts that commitment front and center in the principles that guide DePaul-as-speaker.
When the university turns to “individual" speech in Principle 4, it respects the dignitary interest in expression by drawing at a line at censorship. There, the university commits instead to broad student speech rights, “even at the risk of controversy,” subject only to restrictions contained in Principles 5 and 6.
What are these restrictions? First, DePaul, like other universities, reserves the right to regulate the time, place, and manner of speech to ensure the university functions without disruption. (Principle 6).
Second, the university is also obligated to prohibit some speech under federal and state law and applicable accreditation rules. Because the Guiding Principles are not legal or contractual provisions, the university’s Speech and Expression Task Force did not enumerate the different legal prohibitions on speech that apply to DePaul. But given troubling episodes involving external speakers here and at other campuses, the Principles emphasize that “threat[s] or intimidat[ion]” are among these prohibited categories. (Principle 6).
Could our Guiding Principles be even clearer? Sure. But disagreements can be resolved by Principle 7’s express pro-speech interpretive canon—against which the Principles themselves should be interpreted.
This “university as an active speaker” model is one roadmap, anyway, for schools that are committed to expressive autonomy but also, at the same time, understand aspects of their mission in ways that, in some instances, differ from the viewpoint of speakers that some student organizations invite to campus.
Complicated and Uncomplicated Religious Universities
In a previous post on speech issues at religiously affiliated universities, I made a distinction between uncomplicated and complicated religiously affiliated universities. Uncomplicated universities have institutional policies that subordinate speech to its religious mission, while complicated religious universities try to accommodate speech values and that mission in complex ways.
I do want to emphasize that, in making this distinction, I didn’t mean to say that free expression is a different category of value than “religious” values, although the post could be read that way. (I invoke the infrequent blogger’s privilege to fire off some late-night distinctions that need a bit of refinement!)
The complicated-uncomplicated distinction is maybe better stated as a distinction between (1) universities that lexically rank a privileged set of religious mission values over respect for expression when these two values come into perceived conflict, thereby taking an uncomplicated view of speech’s role in its institutional culture and (2) religious universities that either (a) respect freedom of expression as a side-constraint on the promotion of its institutional mission or (b) otherwise treat expression as one of a plurality of mission-based values that have a roughly coequal ranking, thereby taking a richer or more complicated view of the value of expression in its institutional culture.
This latter type of religiously affiliated institution includes schools where the status of speech in relation to other mission values is internally contested, leading to speech and expression policies that make equally strong commitments to speech and competing mission-based values without specifying how to accommodate these values when they come into perceived conflict. At past junctures in its institutional history, my own university fit into this category.
But this category can also include religiously affiliated schools that incorporate speech protections into their mission through crisp speech-protective policies. One stab at the latter type of policy by a religiously affiliated university is in fact my own school’s new speech policy, properly interpreted, which I’ll talk about in the next post.
Saturday, January 20, 2018
Cert granted in travel ban case
SCOTUS granted cert in the Ninth Circuit case, out of Hawaii, challenging the third travel ban. Included in the questions presented is "whether the district court’s order applies too broadly," meaning the Court may address head-on the propriety of universal injunctions (unless, as I somewhat suspect, the Court declares the ban constitutionally valid, in which case it may never reach the remedy question).
Friday, January 19, 2018
Thought on the Oral Argument in Byrd v. United States
Do we look at what the reasonable expectations of privacy are by social science data, get my law clerks to go do that, or do we just announce normatively what we think it ought to be? Should it depend on regional and cultural norms across the country? Gosh, it's very complicated. * * * Professors Baude and Stern, among many others, suggest maybe we ought to look back at that property test again. What do you think?
Counsel for Byrd, in essence, agreed with Justice Gorsuch that the Court should look to property interests, which provide, as counsel put it, “a very clear and simple rule.”
The problem is that this clean dichotomy between a “clear and simple” property-based rule and an insolubly complex REOP test is an illusion. As I argue in my recent piece, “A Unified Approach to Fourth Amendment Search Doctrine,” a trespass-centered test, in close cases, is no simpler than the REOP standard. Take, for instance, Florida v. Jardines, where police took a drug dog up to the front door of Jardines’s house and had it sniff around the porch for a minute or two, after which it alerted to the presence of drugs in the house. In holding this to be a search, the Court, speaking through Justice Scalia, reasoned that, although there is an implicit license to come up to the front door of a house and knock, there is no implicit license to come up to the front door of a house, refrain from knocking, and instead snoop around the porch.
I’m not so sure that’s correct. But regardless of whether it is, it is at least an arguable point, and it depends upon what people expect others to do, based upon custom and social norms. Thus, the supposedly clear property-based right to not have others trespass upon one’s land hinges in Jardines on a very close question of whether there was an implicit license, which devolves into a question of custom and norms, which is exactly the question we have to confront under the REOP standard!
This close kinship between a trespass-based approach and a REOP approach is no accident. After all, our positive law comes, ultimately, from social norms and customs, which sometimes blossom into enforceable legal rights and interests. Indeed, the common law was, according to Coke and Blackstone, the law of long usage and custom. As I argue in my piece, a trespass-based Fourth Amendment search test and a REOP-based Fourth Amendment search test are really one and the same. The REOP approach simply looks to social norms before they have gelled into positive law. But law is still law if it is recognized as such, even if there is no statute or case on point.
Which leads to a second observation about the Byrd oral argument. Following Justice Gorsuch’s question, counsel for Byrd argued that his simple possession of the car gave him some legal rights in it: “[P]ossession is nine-tenths of the law, and . . . that has roots in the common law going back to the 1600s and 1700s.” Just after this comment, Justice Alito expressed his concern that the common law really could not provide answers because there simply was no case law addressing this precise question:
[T]he problem with going down this property route is that we go off in search of a type of case that almost never arose, if it ever did . . . arise at common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. * * * When would that ever have happened in 18th-century America? Never.
There are two flaws in Justice Alito’s reasoning here, the first of which counsel for Byrd attempted to correct and the second of which he did not. First, the question is not what right “an unauthorized sub-bailee” would have against “a law enforcement officer.” The question is what right “an unauthorized sub-bailee” would have against anyone committing a trespass to chattels. The point of the Fourth Amendment search baseline is to separate those acts that we expect private persons to be able to perform and those we don’t expect private persons to be able to perform. When the police commit an act that falls into the latter category, the police need special dispensation to do so in the form of a warrant or a warrant-substitute. That is the touchstone of the search inquiry. When counsel for Byrd raised this point, Justice Alito responded that this case involved no “private-party stranger” but “a party who has lawful rights that no private party had, which was to stop this vehicle.” But that is a non-sequitur. The challenge here is not to the stop but to the search. Looking at the sequence of events step-by-step, we can essentially disregard the stop, because Byrd does not contest that it was lawful. Instead, the focus is on the entry into the stationary car which, of course, any private person might have undertaken.
The second flaw in Justice Alito’s argument repeats a flaw from his dissent in Jardines. He assumes that because there is no case law, there is no law. But the types of conduct involved in the Court’s cases – e.g., a trespass to a chattel possessed by “an unauthorized sub-bailee” (Byrd); a trespass to land by approaching a front door and looking about the porch for evidence instead of knocking (Jardines); a trespass to chattel by placing a small item surreptitiously on its underside (Jones); a trespass to chattel by physically manipulating an opaque soft-sided bag (Bond) – are very unlikely to result in litigation, for fairly obvious reasons. But that does not mean that there is no law. If, for example, I see a fellow bus passenger manhandling my soft-sided luggage to determine its contents, and I tell him to stop, but he persists, I would like to think I am privileged to use whatever ordinary physical force is necessary in order to prevent my knapsack from being fondled, without being guilty of, or liable for, a battery. I may be right about that and I may be wrong. Either way, that such a case may have arisen only rarely if ever does not mean that I do not have enforceable rights and interests to protect my chattel should the need arise. It means only that I am unlikely to sue this person, or to be charged with a crime or sued in tort if I engage in self-help. It is even more unlikely that such a case would result in a reported opinion. It is only because of our fetishistic obsession with reported appellate decisions that we equate case reports with the law.
Uberizing Nonemergency Medical Transportation
I suppose you know you are well on your way to becoming a cultural icon when others invoke your brand as the avatar of a kind of disruptive force needed in other industries, hence all the declarations of the need for an Uber for health care. At this point, I think health care services that connect patients/consumers via gig-economy style apps for the provision of on-demand health care are interesting but not as immediately interesting as the development and application of Uber's transportation revolution principals to non-emergency health care transportation. Actually, it is Lyft that has been more fashion forward in this area, though I've yet to find the assertion that we need to "Lyftize" non-emergency health care transportation.
What is NEMT? Well, it is a roughly $2.7 billion a year industry. Historically, this has meant the ride share van or voucherized taxi ride for the government funded health insurance beneficiary who needs, for example, periodic and regular transportation to a dialysis clinic or an infusion center. Eligibility for this program was targeted toward those without a driver's license or a car or access to a family member or friend who might provide this service and who was deemed too low income to buy needed nonemergency medical transportation in the open market. This targets a demographic that is older, low income, and chronically ill. The system was famously creaky for the same reason all taxi services, before the scramble to try to adopt Uber-Style booking, were so creaky. A fair number of rides booked in advance never occurred. Wait times in excess of an hour at both ends of the transport were not uncommon. Missed dialysis or infusion appointments, as a result, were also not uncommon for NEMT eligible patients.
Interestingly, it was provider restlessness with the status quo ante as much as patient/consumer activation that prompted attempts to Uberize nonemergency medical transportation. A missed medical appointment represents lost reimbursement for a provider and, essentially, dead time in a daily appointment calendar. The provider desire to wean its NEMT population away from van and taxi vouchers required acknowledging that the targeted patient/consumer population was not overwhelmed with smart phone access or use. Making the Uber/Lyft business model work for this population required modifying the business model: organizing ways that individuals could call for a ride; setting up a system for third parties to schedule rides; developing highly visible placards for the summoned cars; training drivers to offer assistance in and out of the vehicle, etc.
Lyft's precedent setting contract to provide medical appointment transportation to CareMore Health System, in two locations including one in California, was a natural fit. CareMore's target demographic is older individuals. Uber has not been far behind with its partnership with Boston-based Circulation. Interestingly, Uber is also piloting transportation for older individuals to Gainesville Florida's senior centers under a program called Freedom in Motion. This might also be seen as health care transportation Uberization, given what we are learning about some of the health care implications of social isolation.
All of this is so interesting and potentially so promising for improving health care access and outcomes for low income non-drivers going to nonemergency medical appointments, I have to wonder if it might also help to relieve some of the financial pressure on older individuals who, desiring urgent care for something like a sprained or broken finger, and not understanding Medicare's stringent general emergency medical care reimbursement rules, call 911 and are whisked away for that care in an ambulance that may be overkill for their needs. They will think about it more at their leisure when, weeks or months later, Medicare denies emergency medical transport coverage and they are presented with an out of pocket bill for anywhere from several hundred to several thousand dollars. Surprise ambulance bills, at present, are endemic to Medicare.
Thursday, January 18, 2018
National injunctions on NPR
Earlier Thursday, I appeared on AirTalk on KPCC (Southern California Public Radio) with Amanda Frost (American) to debate universal/national/nationwide injunctions. (I was filling in as the extremely poor-man's Sam Bray).
Speaking truth to power v. exercising actual power
I appreciate Sen. Flake's words about Donald Trump and the rhetorical threat he poses to free-speech and republican values. But it is difficult not to see it as 1) something that hundreds of people have been saying for two years in the media, blogs, and other places and 2) empty words.
On the second point: Free speech is important because of its power to persuade. But a democratic theory of free speech recognizes that speech is a form of influence for those who lack formal political or governing power or influence. Words alone therefore ring hollow when unaccompanied by action by a person in a position of power. That is what I see with respect to Flake--he has repeatedly criticized the President, but like most other congressional Republicans has fallen in line with what he wants when (as in most situations) it aligns with Republican policy preferences. So the words are nice. But they do not achieve much when Flake's own voting conduct undermines them.
Wednesday, January 17, 2018
Universal, Not Nationwide, and Never Appropriate
The first draft of my article on universal injunctions is now on SSRN: Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation. I wrote this for a symposium at Lewis & Clark, which gave me a chance to get my thoughts on the subject on paper. And while this is an early draft, I wanted to get it out there, as this has become a hot topic both in the scholarly literature and the press. Comments welcome.
Moving forward, I will combine this piece with a discussion of judicial departmentalism to create a larger model of incremental constitutional litigation.
Big Banks, Blockchain, and Patents
A recent study conducted by Envision IP reviewed patenting activity in the U.S. for the blockchain industry and determined that Bank of America was the single most active player in this space. Specifically, the study identified 1,045 U.S. patents and patent applications (which are generally made public 18 months after filing) related to blockchain, and found that B of A topped the list with 43, followed by MasterCard International and IBM, each with 27. Overall, financial services firms own 20% of the U.S. patents and published applications related to blockchain, second only to start-ups and other companies focused on blockchain technology who own close to 60%. Coming in third, somewhat surprisingly, are traditional technology companies with only about 13% (IBM, which has been the largest U.S. patent owner for 25 years, is an outlier here). Of course, the blockchain industry is still young and the patent landscape could certainly change. But these early findings, especially about the financial industry's patenting activity, are notable.
As my colleague, Heidi Mandanis Schooner, and I wrote about in Big Banks and Business Method Patents, the financial industry was reluctant in the past to protect its innovation with patents and relied on other means (e.g., trade secrets). Indeed, in the years leading up to the America Invents Act—comprehensive patent reform legislation passed in 2011— the financial lobby persuaded Congress to include a special carve out that made it easier to invalidate financial patents because the big banks were being sued by so-called “patent trolls.” At the same time, however, we began to see an uptick in banks seeking patents of their own, and we wondered what the future might look like if financial institutions became major players in the patent system, much like the pharmaceutical and technology industries are today. Because the use of blockchain and other financial technologies (known as FinTech) have expanded rapidly over the past few years, Professor Schooner and I are now working on a follow-up article that explores the current relationship between the financial industry and the patent system and the potential implications for innovation.
Tim Wu on Unconventional “Private” Threats to Freedom of Speech
Tim Wu has circulated an important and insightful article asking whether the First Amendment is obsolete. I want to highlight here one of Wu’s arguments, because he says much better what I attempted to argue in a recent post: Freedom of speech is threatened by attacks that the First Amendment does not address, such as the “unleashing ‘troll armies’ to abuse the press and other critics.” As Tim notes, “[s]ome suppression of speech is disturbing enough to make one wonder if the First Amendment and its state action doctrine (which holds that the Amendment applies only to actions by the state, not by private parties) are hopelessly limited in an era when harassment is so easy.”
Tim has some interesting suggestions about how the “state action” doctrine might be tweaked to address these new threats. Although he offers a couple of arguments for expanding the concept of “state action” to treat ostensibly private persons who suppress speech as state actors, I take these suggestions to be doctrinal and political non-starters and bad ideas: We do not need constitutional centralization in this fraught area. His more interesting (to me) suggestion is that the First Amendment get out of the way, so that state and federal law can protect us from private threats to freedom of speech. As an example, Tim flags United States v. Moreland, in which a district court upheld against a First Amendment challenge liability under the federal anti-cyberstalking statute for trolling harassment of a journalist. My only caveat is that I prefer state over federal law as a way to manage these new “private” threats to freedom of speech. Our disputes about the scope of the right to harass is a reasonable and deep disagreement requiring decentralized accommodation. I’d urge that SCOTUS read various First Amendment concepts capaciously (for instance, “reckless disregard for truth” in Gertz) to accommodate these subnational experiments.
In any case, the article is short and important, written by someone writing with exceptional authority about the governance of the internet. As Larry Solum likes to say, “download it while it’s hot!”
Call for Submissions: Yale/Stanford/Harvard Junior Faculty Forum
The following is from the Yale/Stanford/Harvard Junior Faculty Forum, to be held at Harvard on June 13-14.
Yale, Stanford, and Harvard Law Schools are soliciting submissions for the 19th session of the Yale/Stanford/Harvard Junior Faculty Forum, to be held at Harvard Law School on June 13-14, 2018. Twelve to twenty junior scholars (with one to seven years in teaching) will be chosen, through a blind selection process, to present their work at the Forum. One or more senior scholars will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. The goal of the Forum is to promote in-depth discussion about particular papers and more general reflections on broader methodological issues, as well as to foster a stronger sense of community among American legal scholars, particularly by strengthening ties between new and veteran professors.TOPICS: Each year the Forum invites submissions on selected topics in public and private law, legal theory, and law and humanities topics, alternating loosely between public law and humanities subjects in one year, and private law and dispute resolution in the next. For the upcoming 2018 meeting, the topics will cover these areas of the law:
- Administrative Law
- Constitutional Law—theoretical foundations
- Constitutional Law—historical foundations
- Criminal Law
- Critical Legal Studies
- Environmental Law
- Family Law
- Jurisprudence and Philosophy
- Law and Humanities
- Legislation and Statutory Interpretation
- Public International Law
- Race/Gender Studies/Antidiscrimination
- Workplace Law and Social Welfare Policy
A jury of accomplished scholars, not necessarily from Yale, Stanford, or Harvard, will choose the papers to be presented. There is no publication commitment. Yale, Stanford, or Harvard will pay presenters' and commentators' travel expenses, though international flights may be only partially reimbursed.
QUALIFICATIONS: Authors who teach at a U.S. law school in a tenured or tenure-track position and have not have been teaching at either of those ranks for a total of more than seven years are eligible to submit their work. American citizens or permanent residents teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for fewer than seven years and that they earned their last degree after 2008. International scholars are not eligible for this forum, but are invited to submit to the Stanford International Junior Faculty Forum. We accept co-authored submissions, but each of the coauthors must be individually eligible to participate in the JFF. Papers that will be published prior to the Forum are not eligible. There is no limit on the number of submissions by any individual author. Junior faculty from Yale, Stanford, and Harvard are not eligible.
PAPER SUBMISSION PROCEDURE:
Electronic submissions should be sent to Rebecca Tushnet at [email protected], with the subject line “Junior Faculty Forum.” The deadline for submissions is March 1, 2018. Remove all references to the author(s) in the paper. Please include in the text of the email and also as a separate attachment a cover letter listing your name, the title of your paper, your contact email and address through June 2018, and which topic your paper falls under. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed both to Rebecca Tushnet and her assistant, Andrew Matthiesen ([email protected]).
FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Matthew Stephenson ([email protected]) or Rebecca Tushnet ([email protected]) at Harvard Law School, Richard Ford ([email protected]) at Stanford Law School, or Christine Jolls ([email protected]) or Yair Listokin ([email protected]) at Yale Law School.
A competing voice on laptop bans
Ruth Colker (Ohio State) in Cardozo Law Review. Colker comes at the question from the standpoint of working with students with a range of disabilities and learning styles, as well as an impromptu empirical study comparing performance of laptop users and non-laptop users in her Con Law class. She argues that these results may tell us more than the leading empirical studies, which took place in an artificial setting and did not account for real law students reading and preparing in advance or for real law students having a strong motive to prepare and learn, regardless of which group they were in.
Worth a read.
Tuesday, January 16, 2018
Say It Isn’t So, Tim
Sarah Kliff once noted that Tim Jost was “scary fast/good” with his health law and policy analysis. I could not agree more. Tim Jost’s consistently stellar blogging on all things health law and health regulation-related has been a tremendous resource for me and for my students as we work to keep up in a fast-developing area.
I wish Tim well in all the spare time he will surely have now that he has decided to end his Health Affairs ACA-blogging, close to nine years and over 600 blog posts later.
I wonder if some of Tim’s more remarkable posts might not make a fine book of collected essays on health care reform, how the sausage was made.
Some of my favorites, for those of you who have not dabbled in this area, include (in no particular order):
(Oh, and I give no credence to the vicious rumor that you stepped back just before the association health plan regulation was issued. You never balked at a challenging assignment.)
Argument recap in Hall v. Hall (Updated)
My SCOTUSBlog recap of the argument in Hall v. Hall is available. I think it will be the rout I expected. Petitioner's counsel did well and the Justices asked pointed questions and seemed dubious about aspects of both sides. But I think the respondent has the better of this because consolidation must mean something unique.
Update: Two additional thoughts.
Petitioner's counsel suggested a rule that reflects how I sometimes teach this material: Cases can be consolidated for all purposes only if the parties could have joined them in one action at the outset; if so, they become a single case requiring one final judgment. Otherwise, joinder is for limited purposes, the cases are not merged, and remain separate for finality. I teach this is how some courts approach consolidation, since 42(a) should not be allowed to override party choice in framing a case. Respondent's argument is that this may not help petitioner because the consolidation was for all purposes and petitioner waived the argument by not challenging or appealing the consolidation.
This case offers a good hypothetical on the various forms of joinder and their limits, an issue Ginsburg probed a bit at argument. The original lawsuit was brought by Ethlyn, their mother, against Samuel; when Ethlyn died, Elsa became plaintiff as executrix of the Ethlyn's estate. Samuel tried to bring his alienation-of-affection claim against Elsa as a counterclaim, but could not because Elsa in her individual capacity was not the plaintiff, so they were not opposing parties. Samuel likely considered impleading Elsa in her individual capacity, but could not, because the alienation claim was not contingent on the estate claims. All that was left was a separate lawsuit.
The Ansari Incident and Preposterous Role of “Consent” in Liberal Political Theory
The controversy over the Ansari Incident (see Caitlin Flanagan in the Atlantic and Bari Weiss in the Times) seems to me a good example of the preposterous role played by the concept of “consent” in many versions of liberal political theory. I mean “preposterous” in the original and literal sense of the word: Putting that first which ought to come second. Consent-obsessed liberal theory makes the practical and moral significance of an action hinge on consent. In reality, however, the meaning and proof of “consent” depend on the practical and moral significance of the action for which consent is required. The wildly divergent responses to the Ansari Incident show that we have zero consensus on the significance of sex and, therefore, zero consensus about the presence or absence of real consent.
“Yes means yes” is an empty slogan until we first define what sorts of evidence signifies “yes.” Must it be written words, or merely spoken? Witnessed and notarized by third parties, or shared only by the parties to the transaction? Can actions, subtle or obvious, substitute for words? What evidentiary burdens should govern proof that the expression of consent actually occurred? As every lawyer knows, the formalities required to manifest consent depend on the significance and risk of an action for which consent is required. Wills Act formalities demand not merely written consent but writing witnessed in an exceptionally formal way, because wills are very important and because the risk of fraud or undue influence is very high. Shrink-wrap contracts to buy software demand mere mouse clicks on computer screens. Section 2-206 of the Uniform Commercial Code states that consent to make an offer can be implied “in any manner and by any medium reasonable in the circumstances.” What is “reasonable in the circumstances”? It depends on the stakes — that is, the importance and risk of the transaction.
Consent-based theories of sexual morality, therefore, need an account of the significance of sex. Should sex be as easy as drinking a glass of vodka, as Bolshevik Alexandra Kollantai’s character Zhenya in the short story “Three Generations” asserted to the shock of Lenin and other early 20th century leftists? Or should it be as difficult as buying a house, with its own statute of frauds and TILA statements? If one believes that human mating is as morally empty as conjugation by paramecia, then it is hard to see why one would require any special indicia of consent for sexual intercourse. A wink at an auction appropriately can buy you an expensive and ugly painting. Why cannot a wink properly get you an orgasm from a friendly stranger? If you think that sex is a big deal because it is linked to our need for love and self-esteem and (therefore?) often leads to imputations of implied violent threats and resigned submission, then you might presume that some minimum ritual of courtship should precede those expressions allegedly conveying consent, in order to insure that those expressions really mean “yes.”
For instance, I tend to think that a normal person approaches the possibility of sex with the expectation that it will be preceded with some indication of esteem — flowers, a few dates, strolling and hand-holding — so I tend to be skeptical about the existence of “consent” from a person’s merely verbal “yes” when she is alone in an apartment with a would-be lover whom she met in person once or twice before and who might be half a head taller and a good deal stronger than his would-be partner. But I courted my wife back in ‘86 when dinosaurs roamed the earth and humans wrote love letters (sent by snail mail!), and long, earnest conversations preceded that first kiss by months. Katie Roiphe would likely say that I am just a male conservative foisting “archaic” (“cardboard”) gender stereotypes. (Oddly, my conservative views on this question coincide more with the views of people often deemed to be younger and more “radical” feminists not only back in the ‘90s but also today, a quarter-century later. I think it sometimes drives them nuts that they get enthusiastic nods of agreement from this fifty-something Republican reactionary). Those “sex-positive” feminists with a higher regard for casual couplings might be satisfied with more casual evidence of “consent”: For them, a single, isolated, and merely verbal “yes” — or perhaps even non-verbal signal, such as swiping right on a cell phone’s shrink-wrap form? — suffices. With expectations of courtship so low, evidence of “coercion” must be correspondingly high: Glengarry Glen Ross-style “Always Be Closing” sales tactics need not vitiate that “yes,” and no waiting period is needed to consummate the transaction. You dislike those hard-sell tactics? Don’t be such a wimp: That’s just a “denial of female sexual agency that threatens to propel us backward,” as Roiphe said 25 years ago.
One’s normative ideas about what one should expect from sexual interactions, in short, defines consent, not vice versa. Disagreement about those ideas makes agreement about “consent” even more difficult when the issue is not whether or not to enforce criminal sanctions but rather social stigma. If one believes that people ought to expect more than a “joyless, exploitative encounter” (Rebecca Traister’s words), then one will tend to treat as a pariah someone who presses for such an encounter even if their entreaties do not meet the requirements for a rape conviction. If one believes that all of that is just too much freight for sex to carry, then one will be more inclined to dismiss complaints about joyless sex with “caveat emptor.” These difficulties are compounded, of course, when prevailing norms are challenged as unjust. The U.C.C. fills gaps in under-specified agreements by appeals to customs of the relevant industry, If, however, one believes that those default rules or customs are rigged against one class or party to a type of transaction, then how does one fill in those vague terms? How does one draw any inferences from data showing the “customs of the industry” — that is, people’s normal expectations in a sexual situation — when those expectations might diverge wildly based on gender, religion, social background, celebrity status, self-esteem?
Rebecca Traister’s article reduces the problem of bad sex to “a misogynistic culture” in which men get the sense of entitlement to orgasms and women, the high and conflicting expectations about their availability and their looks. I tend to to think that this focus on gender hierarchies futilely attempts to put the cart of consent and coercion before the horse of sexual meaning. Even after the Revolution when total equality is achieved in some hypothetical future paradise of gender equality, people will vary in their looks, charisma, charm, brains, and everything else that makes for an attractive mate. People will still treat sex as a mirror in which they anxiously stare for validation of their own looks, brains, or personality from those they admire. The famous, the good-looking, the charismatic will still be able to exploit those anxieties.
Should we demand that the meaning or meaninglessness of a sexual encounter be disclosed explicitly up front, because we regard as normal one party’s expectations of being cherished when they have sex? Should we stigmatize the other party’s merely itch-scratching sexual transactions as presumptively exploitative? Or should we brusquely regard expectations of love in all sexual encounters as needlessly needy and put the onus on the complainant who uttered some magic syllable to show that they were coerced by some fraudulent misrepresentations or wheedling pressure?
I am inclined to agree with David French when he argues in a National Review essay that the concept of consent will not help us answer this question. I would go just one step further to argue that this question of sex’s significance is instead the question we need to answer to define the concept of “consent.”
That might be hard for liberals to accept, because liberalism of a certain brand attempts to sidestep controversial value judgments about what constitutes a good life (including good sex) with the idea of consent. Justice in sexual matters is easy: “yes” (with the precise form and proof of “yes” conveniently left unspecified) means yes. I appreciate the desire for a simple, crisp theory of justice that avoids controversial value judgments. Consent, however, is not a path around these value judgments: Here in sexual matters (as elsewhere), consent is a circular road that just doubles back on the cross-roads of value that liberals seek to evade.
Monday, January 15, 2018
NY Times on (improperly named) nationwide injunctions
In the wake of a decision enjoining the DACA-repeal regulations, the Times has an article on recent nationwide/universal injunctions, especially in immigration cases. The article includes comments from Sam Bray (who wrote the definitive piece on the subject). (I have been writing about this at Prawfs for a while and my own effort in the debate, for a symposium at Lewis & Clark later this year, will be on SSRN in a few days).
A few thoughts on the article (much of which I have talked about and will hit in the forthcoming paper) after the jump.
Sunday, January 14, 2018
Judging balls and strikes in Husted
I am a few days late on this from the oral argument in Husted v. A Philip Randolph Institute, on whether an Ohio process of removing voters from voting rolls based, in part, on failure to vote violated federal law. (I listened to the audio rather than reading the transcript, but could not to so until this weekend).
On a substantive point, it is interesting to hear Paul Smith, the respondent's attorney, the Chief, and Justice Alito repeatedly talk past one another. Ohio's program goes as follows--if a voter fails to vote in a two-year period, a notice is sent to the voter's listed address; if the voter fails to return the notice card and does not vote in the next four-year period, she is removed from the rolls. The Chief and Alito repeatedly pushed Smith as to whether failure to vote could be used to confirm other evidence that a person had moved or died, in this case, the non-return of the card; Smith argued that the program relied on failure to vote (in violation of federal law), because the non-return of the card was not reliable evidence of moving and the state had no other evidence of the voter having moved other than the failure to vote. The Justices never seemed to catch that argument or how it differed from what they were saying.
On a fun point, Smith and Justice Kagan showed that judging really is about balls and strikes with the following exchange, on proximate cause:
MR. SMITH: * * * And calling the non-return of the notice the proximate cause is like saying when you strike out, the only proximate cause is strike two. It just doesn't -- it doesn't really make sense.
* * *
JUSTICE KAGAN: I don't understand why it's just -- it is proximate cause, but both - strike one, strike two, strike three. They're all proximate causes of the strikeout.
MR. SMITH: Well, I agree with that, Your Honor, as well.
Saturday, January 13, 2018
Baseline Hell, Mob Rule, and the First Amendment: Are Gossip, Doxxing, and Other Private Sanctions Exercises of, or Attacks on, Freedom of Speech?
As (both of) my readers know, I am an enthusiastic collector of constitutional disputes that end up in baseline hell. Baseline hell occurs wherever social norms about entitlement are so contested that any change in the status quo can be painted as either the exercise or invasion of private rights. One can discover zero-sum games in a variety of constitutional contexts -- for instance, in the doctrine of regulatory takings and zoning, in anti-commandeering/state autonomy doctrine, in the conflict between religious free exercise and anti-establishment rights, and in campaign finance law.
The various reactions to Moira Donegan's outing herself as the creator of the "Shitty Media Men" list suggest another addition to my diabolical collection. In the "Shitty Media Men" Saga, four sets of private speakers claim some sort of moral or legal right either to be free from, or to engage in, anonymous speech. First, as Andrew Sullivan notes, those allegedly shitty media men who allegedly sent "creepy" texts complain about anonymous accusations that do not let them confront their accuser, see the evidence against them, or proffer any rebuttal. Second, Harper's was threatened with Twitter mobs trying to scare the magazine away from publishing the identity of the person who accused these men. Third, as Sophie Gilbert and Robyn Pennacchia note, women cannot easily protect themselves from shitty conduct by media men except by anonymously pooling alleged information about the men's alleged shittiness, because public accusations expose the women to horrific alt-right harassment (to which Donegan is now exposed). Finally, judging by the First Amendment defense raised by Andrew Angelin, the neo-Nazi blogger who doxxed a woman for criticizing a fellow white supremacist thereby exposing her to hundreds of harassing messages, those alt-right harassers will certainly claim a freedom to harass anonymously. Everyone's right to anonymous communication, in sum, seems to threaten everyone else's right of anonymous communication: It is baseline hell with an infernal vengeance.
Does anyone have a persuasive way to negotiate these rival claims to engage in anonymous speech? I do not mean to ask whether you can produce a brief persuasive by the usual standards of the usual cases (Snyder, Gertz, etc.). Of course, you can, O Law Prawf (or even smart 3L). (For a good example of this sort of case-jockeying, see Eugene Volokh's amicus brief in Walker v. Maryland). Instead, I am asking whether anyone has created what existing doctrine patently has failed to provide -- a framework that genuinely protects freedom of speech not only from content-based "state action" but also from private mobs like those in "Gamergate".
My hypothesis: Since New York Times v. Sullivan, First Amendment doctrine has obsessed about content-based common law rules but ignored content-based mob rule, because First Amendment speech doctrine has no intelligible theory of state action. If internet Night Riders don their hoods and gallop off to lynch someone on Twitter, email, or voice mail, it is no concern of SCOTUS, because the vigilantes are not "state actors." The cure for doxxing is apparently more doxxing. Yet everyone knows that such "private" action chills speech as a practical matter: Just ask Donegan, the men she outed, or the magazine that attempted to out her.
Has SCOTUS, in short, relegated us all to a Hobbesian baseline hell in which, in the name of free speech and an utterly undefended theory of state action, everyone is terrified of speaking, because everyone is entitled to terrorize everyone else's speech with one or another sort of mob rule?
Friday, January 12, 2018
Adrian Vermeule’s Deliberately Distorted Understanding of “Liberalism”: Why Liberalism and Secular Rationalism are, historically speaking, more antonyms than synonyms.
Adrian Vermeule is writing about liberalism again. (For some earlier forays, just follow his twitter feed or read his excellent polemic on strategic Catholicism). Or, I should say, “liberalism,” because, for Vermeule's “liberalism” is a term of art with an idiosyncratic meaning. Vermeulean liberalism is synonymous with the late 18th Century French (not Scottish) Enlightenment and the French Revolution. These movements, according to Vermeule, created a religious passion play in which Reason repeatedly defeats Superstition by liberating individuals from mental as well as political loyalties to rival institutions or beliefs — Christianity or other religions aside from Reason itself, family ties, national cultural traditions, etc. Instead, the individual must follow Reason alone, meaning something fairly abstract like some sort of inductive method, some system of deductive logic, and perhaps some sort of utilitarian ethics. The achievement of such Enlightenment requires that a clerisy of enlightened elites shame superstitious boors, from bakers to florists, into a ruthlessly enforced conformity with whatever is currently deemed to be required by Reason or forbidden as Superstition. Contrary to the libertarian rhetoric of liberalism, this religion of liberalism’s Reason, therefore, is brutally centralizing, intolerant of dissent, and, well, illiberal.
If I had to choose between Vermeule’s version of “liberalism” and whatever Vermeule takes to be its more palatable opposite, then sign me up for Vermueleanism, as-is and sight unseen (and Vermeuleanism is indeed a mystery -- some sort of integralist Catholic Monarchy? A de Maistre-style re-interpretation of our Constitution? Search me). But the choice is a false one -- a rigged agenda designed to produce a Vermeule-friendly outcome. Here, for my fellow conservatives, is a quick reminder of two rival accounts of the meaning of “liberalism” or “liberty” that have nothing to do with Reason’s reign over Superstition and that work just fine for us conservatives who are only occasional readers of First Things.
First, recall that Scot sociologists and philosophers like John Robertson and Adam Smith used the term “liberal” in a political sense a decade before the French Revolution. Far from using “liberal” to denote any universal reign of reason, the Scots generally regarded “reason” as such to be mere deductive logic, devoid of content. (Remember that scotsman David Hume’s aphorism about reason being the salve of the passions? Or his friend Adam Smith's famously derision for systematizing intellectuals?). “Liberal” institutions were not intended to enforce the rule of Reason over Superstition but instead preserve the natural liberties of individuals from both. We call these Scots “classical liberals” today.
Second, recall that, more than a century before that Festival of Reason that Vermeule takes to be the origin of “liberalism,” the noun “liberty” was common usage for 17th century English revolutionaries. (For an exceptional collection of their tracts, see Joyce Malcom's collection). For these polemicists, our “liberties” were both institutional (e.g., Parliamentary, judicial, municipal) and individual bulwarks against the centralizing force of the New Monarchs like Louis XIV and Charles I. Far from being champions of Reason, these “liberals” were avid advocates of tradition (Edward Coke's and John Selden’s “ancient constitution”), religion (Milton’s and Henry Vane’s godly republicanism), or local political charters (James Harrington’s parishes, hundreds, and "tribes"). Against these revolutionary advocates of "libertye" were arrayed advocates of the new science like Thomas Hobbes and Sir Francis Bacon who cheered on the reign of one all-powerful sovereign King and one sovereign scientific method, ridiculing the “idols” of superstition and atavistic loyalty to mediating institutions. (If one balks at the anachronism of referring to commonwealth “libertyes” as “liberal,” then one should really bridle at Vermeule's using the term to describe the “liberté” of Robespierre).
In short, Vermeule has the etymology of the word “liberal” exactly backwards. Our rationalistic elites today, annoying to both Vermeule and myself, descend from Hobbesian and Baconian rationalistic centralisers. Those who first coined the word “liberal” or made “liberty” their central organizing principle of politics resisted the religion of Reason for a humanely traditionalist and, yes, even superstitious pluralism. Vermeule would likely cheerfully acknowledge that he is deliberately hijacking the term “liberalism” in order to crash it. I merely suggest to everyone else that they refrain from purchasing a ticket on that particular flight of fancy. You can be a proud anti-Jacobin conservative with a conservative Christian theology and, like G.K. Chesterton and William Gladstone, among, many, many others) claim the term of "liberalism" as your own.
Thursday, January 11, 2018
The Legality of Rescinding DACA With Minimal Reason-Giving: When are incomplete legal arguments "Arbitrary and Capricious"?
Adam Cox, Marty Lederman, and Cristina Rodriguez have offered four paragraphs over at Balkinization on why Secretary Duke's rescission of DACA might be illegal because Duke's reasons for the decision were "arbitrary and capricious" under APA section 706. (To be clear, the post is much longer than four paragraphs, but most of it is devoted to a primer on the legal meaning of DACA; only the last four paragraphs discuss the legality of rescission). Judge Alsup relied on such a theory in his opinion preliminarily enjoining this rescission. The indefatigable Josh Blackman wrote up a quick legal analysis for the the National Review in which he characterized Judge Alsup's opinion as "ludicrous," an analysis that I endorsed over Twitter.
An itchy twitter finger can lead one hastily to endorse views that one later regrets, but, even after reading Adam's, Marty's, and Cristina's typically measured and careful argument, I stand by my initial view that the DACA rescission is not arbitrary and capricious. The gist of the Cox-Lederman-Rodriguez (CLR) "substantive" (as opposed to Daniel Hemel's "procedural") argument against Duke's DACA rescission is that the Secretary relied exclusively on a legally insufficient reason contained in a one-page letter from Attorney General Sessions. Sessions, in turn, essentially relied on a simple syllogism that piggy-backed off of Judge Smith's opinion for the Fifth Circuit in United States v. Texas striking down the analogous deferred action program for parents of U.S. citizens ("DAPA"): (1) As per Judge Smith, DAPA was unauthorized by the Immigration and Naturalization Act ("INA"), (2) DACA is not legally distinguishable from DAPA, so (3) DACA is also unauthorized by the INA. CLR argue that this argument is legally insufficient, because DACA is, in fact, authorized by an obscure definitional provision of IRCA (8 U.S.C. section 1324h(a)(3)) allegedly giving the Secretary of DHS blanket authority to confer work authorization on any alien who is the beneficiary of deferred action, even if that deferred action stems entirely from an exercise of the Secretary's own enforcement discretion.
After the jump, I will take a deepish dive into the murky waters of section 1324h(a)(3) to offer my own assessment of this argument for statutory authorization. There is, however, a larger and more interesting point floating in this swamp of statutory detail: When an official rescinds an informal guidance of its predecessor on the grounds of wanting more fully to enforce a statute, how thorough must that official's reasons be? I am inclined to say, "not thorough at all." Cursory reference to roughly correct legal authority is good enough for government work here. My general reason -- more below -- is that an official's decision ought not to be vacated and remanded for more reason-giving when that official's reasons provided adequate notice to everyone about a legally sufficient basis for the decision. Where popular feelings run as high as they do in this area of deferred action, judges should not stall controversial policies with gratuitous demands for extra-precise reason-giving that, in substance, add nothing to the quality of the decision.. That sort of stalling tactic creates too great a risk of the judge's appearing to join #LegalResistance rather than writing a principled opinion.
1. Is DACA illegal?
I am not sure. The critical question is whether the Secretary of DHS is statutorily authorized to extend work authorization to anyone on whom she grants deferred action. CLR argue that section 1324h(a)(3) "expressly provides that the [Secretary of DHS] may 'authorize' aliens to be eligible for employment, even in cases where the statute itself does not directly authorize them to be employed." Well, maybe -- but keep in mind that 1324h(a)(3) merely uses seven words to define "unauthorized alien." One might respond that treating this seven-word definition as an "express" grant of authority to grant work authorization to anyone whatsoever just so long as the Secretary is entitled to defer deportation against them is hiding an elephant in a mouse hole. One might even go so far as Judge Smith to argue that, because such a delegation of power is unconfined by any intelligible principle, it transforms the Secretary into a mini-legislature under Indus. Union Dept. v. Amer. Petroleum Inst. and FDA v. Brown & Williamson Tobacco Corp. (See Texas v. United States at page 59 and note 178).
I do not wish to endorse Judge Smith's opinion or a narrow reading of section 1324h(a)(3), mostly because other people have already provided pretty thorough arguments for a narrower reading of section 1324h(a)(3). I recommend Peter Margulies' The Boundaries of Executive Discretion. CLR can respond that the broad reading of section 1324h(a)(3) is further supported by 8 CFR 274a.12, a 1987 rule that has been used to confer work authorization by several Presidents on classes of unlawfully present aliens not eligible for such authorization directly under the statute. As Marty has argued, this long pattern of administrative interpretation constitutes a gloss on the statute entitled to some deference from the courts. As Margulies notes, however, both DAPA and DACA cover more people for a more extensive period of time than prior exercises of discretion like the 1990 Family Fairness Program.
Of course, even if one endorses Texas v. United States's attack on DAPA, it does not automatically follow that narrower grant of deferred action and accompanying work authorization in DACA is also illegal. DACA covers fewer people: Perhaps this distinction places DACA closer to, say, the Family Fairness precedent than an open-ended dispensation from the INA. But once one goes down the path of counting beneficiaries and measuring length of authorization, one is outside the bounds of any "express" statutory authorization. Glossed with non-delegation canons, the authorization contained in section 1324h(a)(3) and 8 CFR section 274a.12 is at least ambiguous. As I noted in an earlier post), the opponents of Trump's various "travel bans" tend to read the President's authority under section 1182(f) narrowly, out of respect for canons like Brown v. Williamson's non-delegation principle. It is a little incongruous to take the position that the much more obscure authorization in section 1324h(a)(3) is somehow an "express" delegation of power.
I should be plain about my own views here. Far from endorsing either United States v. Texas or Margulies' argument for a narrow reading of section 1324h(a)(3), I am inclined to support the view that, if the Secretary as executive discretion to defer deportation, then she must have a corollary implied power to provide work authorization for those covered by the deferral. IMHO, as I have suggested elsewhere, it is ridiculous to allow the Secretary to refrain from deporting someone yet deny businesses the right to employ them: That practically requires the people who have been given a reprieve from deportation to violate the law on their employment. I am inclined, therefore, to read the ambiguous statutory power of the Secretary broadly to avoid such an odd policy consequence. The argument, however, that section 1324h(a)(3) is plain on this point strikes me as underwhelming. (BTW Marty and I tangled over this issue a bit earlier in the comments to the post just cited).
2. When is a minimal legal justification good enough for government work?
Suppose, however, that one agreed with CLR's reading of the law. After wading through this swamp of an ambiguous definitional phrase in IRCA, executive precedents under a 1987 rule, and a bunch of murky canons like Brown & Williamson, one finally concludes that the Secretary actually did have the legal power to confer work authorization on DREAMers contrary to General Session's letter opinion.
What then? Would such a conclusion entail the further conclusion that the Secretary's rescission is "arbitrary and capricious"? I do not think so.
Here's my defense. The point of reason-giving is to aid judicial review and improve the political process by informing judges and citizens of the basis for a decision so that they can challenge that basis either in an opinion or at the polls. Demanding that agencies give more detailed reasons for their decisions when those extra details will not perform either of these judicial or political functions is an admin law version of "Mother May I?" in which players who inadvertently omit some magic words get sent back to the start for no reason beyond the amusement of lawyers.
Secretary Duke's rescission is a case in point. Yes, she relied on a very spare letter that could have done a much better job of jockeying the legal sources and acknowledging rival arguments. Yes, General Sessions' argument would have been more persuasive had he argued that the legal basis for DACA was merely uncertain rather than unquestionably non-existent. Such a new, improved letter would cite the sorts of considerations canvassed above and discussed by Margulies, Judge Smith, and others -- murky statutory language, murky agency precedents, murky canons -- and would conclude that, because DACA is a controversial program with uncertain statutory justification, the Department should rescind the program and revert to "case-by-case" decisions about DREAMers. Note that such an argument rooted in legal uncertainty would run exactly parallel to the reason actually given by Duke/Sessions: It would declare that (1) the DHS should not offer a broad dispensation from statutory requirements unless the statutory basis for such dispensation is plain and (2) the statutory basis here is not plain here. Substitute the words "exists" and "does not exist" for "is plain" and "is not plain," and you have precisely the reasons actually offered by Duke/Sessions.
What possible practical function is served by forcing Sessions to produce such a new, improved letter? Does anyone have any doubt that, with a few rather modest amendments in the reasons, DACA's rescission should be upheld? Does anyone suffer from any uncertainty right now about what those modest amendments should be? Does not Sessions' actual letter pretty much suggest the gist of the revised letter that Duke/Sessions could provide that would adequately justify the rescission? If the answer to these three questions is "no," then it seems to me that forcing General Sessions or Secretary Duke to add a few sentences to the reasons they actually gave would be an empty exercise in Admin Law "Mother May I?"
Yes, I know that Chenery I seems to impose such a "Mother May I?" duty on agencies to specify precisely the legal grounds of the agency's decision. In Chenery I, however, one could make the argument that the SEC was hiding behind prior judicial decisions about corporate law rather than taking full responsibility for its own policy on the meaning of "fiduciary duties" under the Public Utility Companies Holding Act. Here, there is no doubt that Duke/Sessions are staking out the position that their statutory authority to grant blanket work authorization is constrained. Whether they stake out that position with unwarranted confidence or a more becoming diffidence surely makes no practical difference insofar as political or judicial accountability is concerned.
3. The political dangers of gratuitous demands for better legal reasons in polarized times
There is a deeper danger to demanding extra-precise legal justifications for repeals of guidance documents when popular feelings run as high as they do regarding DACA. Inevitably, these demands lead to accusations that the judge is throwing up technical speed bumps to an agency action that the judge knows should and will ultimately be upheld, simply because the judge dislikes the agency's action for policy reasons. If an agency's failure to give reasons leads to genuine uncertainty about why the agency acted or whether the agency's decision ultimately should be upheld, then, of course, by all means, vacate and remand for clarification. If the judge, however, can easily infer a sufficient legal basis for an agency's decision from the actual reasons submitted by that agency, then the judge's demanding more precise reason-giving looks suspiciously like the judge is running down the clock in hopes that, by stalling, the politics will shift and prevent the agency's action.
I am afraid that Judge Alsup's opinion reads a bit like such a stalling tactic. At page 32, Judge Alsup asks (rhetorically) "what exactly is the part of DACA that oversteps the authority of the agency?" and then proceeds to ask an answer a series of rhetorical questions about DACA's legality that has the sound of an orator's ringing peroration rather than a measured opinion resolving a close case. Judge Alsup's answers to one of his own questions has a question-begging quality that could lead an observer to wonder whether he had ideological priors. "Is [the illegality in DACA's] granting work authorizations coextensive with the two-year period of deferred action?" he asks. "No, aliens receiving deferred action have been able to apply for work authorization for decades." Well, yes, they have -- but, as Peter Margulies notes, there really has not been a program that covered such a large number of people for such a certain period of time. Why not at least acknowledge the uncertainty here rather than adopt a soap-box orator's indignant tone? Along with what sound to my ear like Judge Alsup's snide digs at the Trump Administration's ambivalence over repealing the DACA, this sort of rhetoric lends aid and comfort to the belief by conservatives that judges are simply inveterate opponents of Trump's hostility to immigrants rather than honest judicial brokers.
I should conclude this over-long post with my own admission of inveterate opposition to Trump's immigration policies. I am an immigration libertarian who believes that the repeal of both DAPA and DACA is a colossal mistake. I would go further to say that the entire Trump immigration agenda, from the various travel bans to his apparent limits on H1B visas, is IMHO destructive to our nation's best interests and rooted in economically obtuse predictions about the wage and productivity effect of foreign labor. But I also believe that we anti-Trumpistas should fight fair. To say that the DHS Secretary cannot disclaim discretion based on doubts about her statutory authority simply because she described such doubts as certainties rather than doubts looks like pointless pettifoggery to me -- a pettifoggery explicable only by Judge Alsup's hostility to the policy outcome reached, not the sufficiency of the legal reasons given.
(Just for the record, the "arbitrary and capricious" argument is much stronger, IMHO, than the procedural argument advanced by Daniel Hemel that DACA may be rescinded only through notice-and-comment procedure: To my mind, Hemel's procedural argument creates an indefensible one-way ratchet in which a guidance document can be promulgated without N&C yet only repealed through section 553 procedures. My confidence in my intuition that such a one-way ratchet cannot be the law is strengthened by William Funk's analysis, quoted by Jonathan Adler here).
Wednesday, January 10, 2018
Federalism & Marijuana: Externalities vs. Minority Protection as Justifications for Federal Law
Mike Dorf has posted an article criticizing federalism-based attacks, like that offered by Ilya Somin, against General Sessions’ rescission of the Cole Memo, the DOJ enforcement policy that previously limited federal enforcement of the Controlled Substances Act against marijuana use. According to Dorf, respect for “local sentiment and opinion” is not generally a sound reason to relax or eliminate uniform national standards, because, “[i]f a problem truly calls for a vigorous national response, then federal prosecutors should be prepared to override local sentiment and opinion.” Dorf offers the example of local sentiment against the criminal prosecution of white people for committing crimes, including lynchings, against African Americans: Federal anti-lynching laws should be enforced precisely because such local sentiments violate national rights.
Of course, Dorf is perfectly right that the very purpose of federal law sometimes is to protect us from local sentiments. But Dorf’s Analogy is misplaced here, because the Controlled Substance Act is not such a federal law. Enacted as a regulation of commerce among the several states rather than as a guarantee of equal protection, the CSA has nothing whatsoever to do with protecting discrete and insular minorities from oppressive majorities. Instead, the function of the CSA (and the Commerce Power more generally) is to protect interstate commerce from any individual state’s under- or over-regulation that affects that state’s neighbors. In this context, where local sentiment offends no national rights, respect for local sentiment is a powerful reason to abstain from imposing or enforcing national law. Unless the CSA has a good-faith federal externality-suppressing purpose — that is, a purpose to prevent drugs from leaking across Colorado’s border or from lowering the price of drugs Wickard v. Filburn-style in drug-prohibiting states — the CSA serves no genuine national purpose.
The problem with the CSA is that the War on Drugs had nothing whatsoever to do with suppressing such “externalities” — that is, burdens imposed on people living outside an under- or over-regulating state inflicted by that state’s over- or under-regulation. Nixon pressed for the CSA to whip up his “Silent Majority’s” ire at various national minorities (hippies, the “counterculture, and, perhaps, racial minorities). That minority-suppressing purpose is not a “legitimate end” under McCulloch, because the right to be free from weed-toking neighbors is not a national freedom under the Civil War Amendments. In invoking a sort of reductio ad Jim Crow to justify laws like the CSA with strained analogies to lynching, Dorf suggests how our rhetoric of federalism has been debased by paranoia about majority factionalism dating from Madison’s Federalist #10. Those fears are legitimate in particular contexts, but they are not a standing invitation for national regulation that itself can constitute a suppression of minority rights to self-government — minority rights protected not by the Fourteenth but rather by the Tenth Amendment.
Is the Defend Trade Secret Act Defensible? Watch the IP Evil Twin Debate
My evil twin and I debated last week the DTSA passed in 2016, with Chris Cotropia as our moderator. Here is the video of the debate, in case you missed it, or were there and want to watch it again.
A highlight: per the tradition of the evil twin debate, Michael and I each wrote the other's bio. Find out how I set the Wonder Woman franchise back a few years by not auditioning and going to law school instead...
Meme-ocracy and Prison Rape: How Our Slogan-Based Politics Destroys Reality-Based Government
As Natasha Lennard noted last month in an excellent Intercept piece, inmates of prisons and jails have not had their "Harvey Weinstein" moment. Only a couple of states have met their obligations under the federal Prison Rape Elimination Act (“PREA”), and some governors, like Texas' Abbott, have defiantly forfeited federal revenue rather than spend that federal money on rape prevention. #Metoo outrage just does not extend to raped prison inmates, including raped children, because prisoners never crafted a catchy hashtag or found themselves a charismatic celebrity spokesperson.
Our politics of hashtags and memes does not merely ignore prisoners but actually endangers their safety. The problem is that largely symbolic Culture War debates, when translated into the context of prisons, can have deadly practical consequences. Take, for instance, the Bathroom Wars. States laws that require transgender persons to use bathrooms of their biological sex rather than gender identity are pointless and insulting, but their material consequences are relatively small: It is unlikely that any state will create a bathroom police force to check anyone’s birth sex before entering the loo. When such Culture War symbolism invades prisons, however, it leads to trans-gendered inmates’ being assigned to male housing or “protective” segregation, where they are, at worst, raped and, at best, deprived of the prisons’ educational and exercise programs.
There is a non-trivial chance that the Trump Administration might endanger prisoners in reality for the sake of these vacuous Culture War memes. The ADF, an outfit devoted to defending religious freedom brought a lawsuit alleging that PREA rules protecting trans-gendered inmates from sexual violence constitutes cruel and unusual punishment of female inmates. Everything about the lawsuit reeks of right-wing meme, more worthy of Jerry Springer than a federal courtroom. ADF has no experience in litigating to protect prisoners’ safety. The lead plaintiff is, according to the Dallas News, an “ardent Trump supporter” who filed lawsuits alleging persecution based on her political beliefs and has alleged no specific threat from trans-gendered inmates. In Texas, in fact, trans inmates are the victims, not the perpetrators, of rape. In any case, the PREA rules allow specific worries about about particular inmates’ proclivity to sexual exploitation to be addressed through case-by-case measures. Yet ADF’s attorney reports that the DOJ might try to rescind PREA rules as settlement for this apparently frivolous lawsuit.
The case, in short, looks like a PR effort by a religious defense outfit to secure a symbolic opinion about the “real” sexual identity of trans-gendered prisoners in blithe disregard to the sober realities faced by actual inmates. Show biz is gradually what we have come to expect from the Trump Administration. I am nevertheless hoping that General Sessions, an early supporter of PREA as a Senator, will resist lurid meme-worthy fantasies, however appealing to “the base,” and choose fact-based government over Reality TV politics.
Federalism and the Death Penalty in the Trump Era
As this Washington Post article notes, Attorney General Sessions has now authorized two federal capital prosecutions, one in the Eastern District of Michigan. As I wrote in this recent symposium piece, the federal government has a particularly bad record in seeking the death penalty in that district: 0 for 16. Michigan, of course, does not authorize the death penalty and has not (except for treason) since 1846, which may help explain why juries in the relatively liberal eastern district are especially reluctant to impose the death penalty.
I would also be surprised if the federal government does not seek the death penalty in the case against Sayfullo Saipov, who, inspired by ISIS, mowed down about a couple of dozen people in his car last Halloween in Manhattan, killing eight of them. There would be little reason for the federal government to engage in verbal gymnastics to get the case into federal court at all (more on that in a later post) other than to obtain a death sentence in another non-death-penalty State.
It might not surprise anyone to know that more federal capital prosecutions in non-death-penalty States were brought during the eight years of the Bush II presidency (39) than during the sixteen combined years of the Clinton and Obama presidencies (30). Given that Sessions’s “tough on crime” rhetoric precedes him, I would expect that a Trump presidency will see more such cases brought than under the Obama administration.
Tuesday, January 09, 2018
Collins v. Virginia and the Remnants of Coolidge v. New Hampshire
Today, the Supreme Court heard argument in Collins v. Virginia, which addresses what limits, if any, remain on the “automobile exception” to the Fourth Amendment’s warrant requirement. I have not yet had a chance to take a look at the transcript, and I may have further thoughts on this after I do. But for those whose memory of criminal procedure is hazy, the Court has held in a long series of cases that police can generally search an automobile or other motor vehicle without a warrant as long as they have probable cause to think there is seizable evidence within. The exception began as a sub-species of the “exigency” exception, the theory being that if police could not immediately search a vehicle, it could be easily driven away and out of the jurisdiction or, at least, would be much more difficult to later locate. But the exception has morphed into a self-standing justification for dispensing with the warrant requirement such that the Court has applied it in cases where the car has already been impounded and there was no real danger of its being driven away. The Court has also added a distinct justification to the exception: the reduced expectation of privacy people have in their cars.
In Collins, Virginia police observed a motorcycle parked on Collins’s property within the curtilage of his house, and they had probable cause to believe that it had been used in a crime. An officer entered the property, removed the motorcycle’s cover, and searched for and obtained the motorcycle’s VIN. When he ran the VIN, he learned that the motorcycle had been stolen and Collins was later arrested for and convicted of receiving stolen property.
The Virginia Supreme Court affirmed his conviction, holding that the warrantless search of the motorcycle for its VIN was a reasonable Fourth Amendment search pursuant to the automobile exception. In the U.S. Supreme Court, Collins challenges this determination given that the motorcycle was on his property, unlike the more typical case in which the automobile exception would apply, where the automobile is being driven on the highway when the police form probable cause to search it. (Collins does not seem to challenge the removal of the motorcycle cover as a separate search, perhaps because there was obviously a motorcycle beneath it.)Virginia relies heavily on two cases in which the Court approved warrantless searches of automobiles located on private property. In Pennsylvania v. Kilgore (a companion case of Pennsylvania v. Labron), police searched a farmhouse with the consent of its owner and also searched Kilgore’s truck, which was parked in the driveway, finding cocaine. The Pennsylvania Supreme Court held that the automobile exception did not apply because there were no exigent circumstances to justify dispensing with the warrant requirement. The U.S. Supreme Court reversed per curiam, putting the final nail in the coffin of the idea that the automobile exception was somehow tied to the existence of an actual exigency. But this case does not help Virginia very much, in part because the police already had consent to be on the premises (more on that below) but mostly because the U.S. Supreme Court simply did not address the issue whether and to what extent the automobile exception applies on private property; it addressed only the question of whether exigency is a separate and independent requirement to trigger the exception.
Virginia also relies on Scher v. United States, a Prohibition-era case in which federal agents followed Scher’s car from a public highway into Scher’s garage after having been informed that the car contained bootleg alcohol. When an officer approached and questioned Scher in the garage, Scher admitted he had alcohol in the trunk. The agent searched the trunk, found the alcohol, and arrested Scher. The Court upheld the search but its reasoning is rather opaque. Citing Carroll v. United States, the progenitor of the automobile exception, the Court first wrote “it seems plain enough that just before he entered the garage the following officers properly could have stopped [Scher’s] car, made search and put him under arrest. * * * Passage of the car into the open garage closely followed by the observing officer did not destroy this right.” The Court then pointed out that “[n]o search was made of the garage.” The Court then observed: “Examination of the automobile accompanied an arrest, without objection and upon admission of probable guilt.” Finally, the Court concluded: “The officers did nothing unreasonable or oppressive,” citing Agnello v. United States, a search-incident-to-arrest case.
Scher’s mash-up of the automobile exception, hot pursuit, consent, and search-incident-to-arrest is worthy of a student’s C-minus test answer, and just as difficult to untangle. But let’s try. Reading the case most favorably for Virginia, it seems to say that the automobile exception applied in the moment before Scher entered his garage (by the way, the opinion does not make clear whether this was his garage, or just a garage, perhaps one he shared with others, but we’ll assume it was his). Given that no warrant was needed to search the car at that moment, a hot-pursuit-type extension of the automobile exception is warranted given that probable cause was formed while the car was on the highway. This is consistent with Chambers v. Maroney, in which the Court held that, because police had probable cause to search a vehicle at the time they stopped it, the automobile exception also encompassed a search that took place later after the car had been towed to an impound lot. If that’s what Scher really means, it hardly helps Virginia, given that probable cause in Collins was formed after the motorcycle was already on Collins’s property within the curtilage of his house.
The most helpful precedent for Collins, as the title of this post suggests, is Coolidge v. New Hampshire. There, after Coolidge’s arrest, state police, acting without a valid warrant, took custody of two cars that were parked on his driveway. Incriminating evidence found within was used against Coolidge at trial. The Court assumed that police had probable cause to search but held that the police needed a warrant, rejecting the State’s contention that the automobile exception applied. The Court famously wrote: “The word `automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” One problem for Collins is that Part II.B. of the opinion in Coolidge, rejecting applicability of the automobile exception, was joined by only four Justices. Another problem for Collins is that this portion of the opinion rejects the applicability of the automobile exception because there was no exigency. But, again, the Court has subsequently and definitively, in cases such as Labron/Kilgore, rejected such a limitation on the exception.
Still, one can read Coolidge as rendering the automobile exception inapplicable when the automobile is located on private property. Part II.D. of that opinion, joined by a majority of the Court, consisted of a broadside against the reasoning of Justice White’s dissent, which would have upheld the search of car under both the “plain view” and the automobile exceptions. The majority in Part II.D. attacked this position on the ground that Justice White had ignored a basic distinction in Fourth Amendment law between searches that take place on a person’s own premises and those that take place elsewhere. Thus, while only a plurality in Coolidge supported the now-discredited view that the automobile exception applies only where is some exigency that excuses the failure to get a warrant, a majority seems to have held that the exception does not apply where the automobile is located on private premises. This also distinguishes Kilgore: although the automobile search there took place on private property, it does not appear that it was Kilgore’s property, and the police had the consent of the landowner to be there.
It seems to me that this is the basic problem with Virginia’s position: it treats the entry onto Collins’s land and search of his motorcycle essentially as a single, continuous intrusion. But it is not. We are taught that when evaluating police actions against the constraints of the Fourth Amendment, we should take a piecemeal approach and analyze each separate intrusion separately. And here there were two intrusions: the entry onto Collins’s land and then the search of the motorcycle. The Court’s recent re-invigoration of the so-called “trespass” test in Florida v. Jardines suggests why that is important. If the police conducted a search simply by entering the property and approaching the covered motorcycle in order to obtain information, then the automobile exception does not even come into play. To put it another way, to borrow from the Court’s “plain view” jurisprudence, the automobile exception should not apply unless the police have lawful access to the automobile in the first place. And that ought to depend on where exactly on the property the motorcycle was. If it was where any member of the public might have encountered it on the way to the front door, one could say that the police had lawful access to it, and a search then conducted with probable cause might well fall within the automobile exception. But if not, then the police breached the Fourth Amendment before they even searched for the motorcycle’s VIN and the automobile exception could not repair that breach.
Argument preview: Hall v. Hall (Updated)
I have a SCOTUSBlog preview of next Tuesday's oral argument in Hall v. Hall, addressing when a judgment dismissing one action is final and appealable when multiple actions were consolidated for all purposes under FRCP 42.
On the papers at least, this one has the makings of a rout. The petitioner (who sought to appeal dismissal of one claim while another remained pending and who argues that consolidated cases remain separate for finality purposes) is represented by her trial counsel from the Virgin Islands, who does not appear to have argued before the Court; the respondent (who argues that there is no final judgment until all claims in the consolidated case are resolved) is represented by Neal Katyal. A group of retired federal district judges filed an amicus in support of the respondent.
Worse, the petitioner never engages on the critical issue in the case--how to treat actions consolidated for all purposes compared with actions consolidated for limited purposes, such as discovery or trial. The petitioner insists that consolidated actions retain their separate identities and that the case is controlled by the spare finality language of § 1291. There is no difference in the scope or nature of a consolidation,. But that position may be inconsistent with footnotes in Gelboim v. Bank of America (which involved a discovery-only MDL consolidation) that consolidation may be for all purposes and may require a different rule for finality and appealability. Rule 42(a)(2) contemplates consolidation as distinct from joining some issues for some purposes. And Gelboim seems to contemplate different types of consolidation. The question in Hall is how different types of consolidation affect finality. But the petitioner's lawyer never engages that question.
[Update: The petitioner's reply brief (which was filed after I submitted my piece) points to the trial court issuing separate Judgments in each case as evidence that the consolidation was for trial, not for "all purposes." It therefore does not matter how finality may be affected by consolidation for all purposes, because this consolidation was not for all purposes. As I noted in the preview, the nature of the consolidation is in dispute and something the Court may have to resolve. Given how loosely trial courts label orders as judgments or not, I am not sure this has as much explanatory power as petitioner hopes]
JOTWELL: Campos on Shapira and Zingales on DuPont and discovery costs
The new Courts Law essay comes from Sergio Campos (Miami), reviewing Roy Shapira and Luigi Zingales, Is Pollution Value-Maximizing? The DuPont Case, which Campos uses to show the problem with focusing on discovery costs to the exclusion of the benefits discovery provides in revealing wrongdoing.
Monday, January 08, 2018
Litigation Finance, Technology, and Access to Justice
Thanks to Howard and the Prawfs community for having me back as a guest this month. Like many readers, I just returned from the AALS annual meeting where I spoke on a panel titled Procedure as Technology/Technology as Procedure. Panelists--Frank Pasquale (Maryland), Thomas Main (UNLV), Simona Grossi & Aaron Ghirardelli (Loyola--LA), Alan Trammell (Arkansas), and Ira Nathenson (St. Thomas-FL)--discussed some really interesting topics, and I encourage readers to listen to the podcast that AALS will make available soon here. My talk addressed the topic of litigation financing--specifically, how some firms are using algorithms to decide whether to fund lawsuits and the impact that might have on access to justice, which was the theme of this year's meeting.
Litigation finance, as I'm sure most readers are aware, is the practice whereby third parties who have no involvement in a lawsuit provide capital to one of the parties (usually plaintiff) in exchange for a portion of any settlement or damages. Though litigation finance is not new, it has expanded significantly in recent years. Advocates of the practice argue that it levels the playing field for plaintiffs litigating against deep-pocketed defendants, while critics like the Chamber of Commerce claim it encourages spurious lawsuits and potentially creates ethical problems. Indeed, the Chamber and others have called for an amendment to Federal Rule of Civil Procedure 26 that would require the disclosure of such litigation financing arrangements.
Until recently, litigation finance firms have relied primarily on lawyers and other experts (e.g., by having them review documents, interview plaintiffs/witnesses, etc.) to decide whether to invest in a case. That is beginning to change, however, at least for start-up Legalist. According to its website, Legalist uses "cutting-edge technology, data science, and court records to help plaintiffs get funded faster." Specifically, based on data that it culled from 15 million state and federal cases, Legalist has developed a 58-variable algorithm that it uses to predict the outcome of litigation so it can decide relatively quickly and easily whether or not to fund a particular case. According to co-founder Eva Shang, this technology allows Legalist to keep costs down so it can fund smaller cases than more traditional financing firms. In short, Shang explains, Legalist provides access to justice much like contingency fee lawyers "but for commercial cases, where contingency fees aren't usually an option."
Free Speech Rankings and Religiously Affiliated Universities
I had the fun task, recently, of serving on my university’s speech and expression task force, which revised our university’s speech policy. In conjunction with this work, I began to follow the Foundation for Individual Rights of Education’s (FIRE’s) criticism of my school –Chicago’s own DePaul University.
I was surprised by what I found. FIRE’s treatment of religiously affiliated universities, like mine, to be, to say the least, perplexing!
There are at least two kinds of religiously affiliated universities.
First, some religiously affiliated universities prioritize religious values above campus pluralism, free speech, and viewpoint diversity. Let’s call these uncomplicated religious universities.
Then there are religiously affiliated schools that are, let’s say, more conflicted about how to square speech values with their own religious identity. Below, I’ll call these complicated religious universities.
My fair school is a perfect example of a school in the latter, complicated category. On the one hand, DePaul, across its various policy statements over the years, consistently acknowledges the value of student expression. DePaul, though, is also a Catholic university, affiliated with the Vincentians, a religious order committed to inculcating Catholic social justice values.
And the university struggles to square these commitments. This has led it, in past years, to promulgate speech policies that gesture to both speech values and the university’s Vincentian mission without offering administrators much guidance about how to reconcile the two when they come into apparent conflict.
One way for a free speech rating organization to approach these two types of religious universities is to hold them to the same standard as other, secular institutions. In other words, treat all institutions alike. Criticize complicated and uncomplicated and religious mission schools equally when they put their distinctive religious values ahead of speech values.
If FIRE had done something like this, DePaul, I suspect, would end up looking okay from a speech protection perspective, relative to some universities and not very good relative to others—in other words, somewhere in the broad middle of the pack.
But FIRE did something quite different. It exempted schools with uncomplicated religious identities from its rating system. (You can see this old rating system in this 2015 report). “Exempt” schools, in turn, mostly escaped its often quite pointed public criticism.
Yet, FIRE classified schools like DePaul—those that take speech seriously enough to include at least vague pro-speech statements in their speech policies—as non-exempt. As a result, the DePauls of the world were judged not against the baseline set by traditional religious schools but, instead, by the baseline set by secular universities with stronger public and institutional commitment to speech values.
The ensuing rankings were perverse: FIRE perennially bashes DePaul as one of the “worst” school for free speech in the country--but only because FIRE has used a skewed set of comparators that exclude other religiously affiliated schools with, arguably, worse speech records.
This created strange incentives, from FIRE’s standpoint. (If you want to avoid FIRE’s ire, one way is to just adopt a policy that completely subordinates speech to religious values!)
It also, it seems to me, gave ammunition to critics who characterize FIRE as a crypto-partisan organization more interested in supplying talking points for the right wing culture wars than fighting for speech rights in a truly nonpartisan fashion. The exempt schools that it insulated from its rating system, and attendant criticism, tended to be pretty conservative. By contrast, religious schools with complicated identities, like DePaul, that its rating system set up for attack tend to have more progressive institutional cultures.
Thankfully, FIRE seems to be rethinking its approach—in the last couple of years, it added a new blue “warning” label for schools that forthrightly prioritize other values over speech.
But at the same time, it continues to treat conservative religious schools with a light touch. (Liberty University, which actually is among the worst schools for speech in America, has yet to make FIRE's annual "worst of" lists, for example.)
I share FIRE’s commitment to campus speech. But I’d urge it to continue to reassess how it treats schools with meaningful religious identities. In a subsequent post, I’ll offer some thoughts about how to do so.
Sunday, January 07, 2018
Legal Theory Selects Top 10 Books of the Year
Legal Theory Bookworm: Favorite Books of 2017
Friday, January 05, 2018
First principles of lawyering: don't lie to your client.
Howard noted the swirl of insanity in recent news about the Trump administration. One of the things that is becoming increasingly clear is just how hard it is for the lawyers to do their jobs in this administration, where even the lawyers need lawyers and good legal advice is routinely disregarded.
Many sources are now openly questioning the President's mental fitness. Not being a physician (and never having spoken to President Trump), I don't know what his mental state is or isn't. But even the hypothetical question raises an interesting issue: how should White House attorneys treat a President that they believe may lack the capacity to make decisions in the interest of the office?
A recent New York Times article stated that one White House attorney felt obligated to "mislead the president about his authority to fire the F.B.I. director," because he "was convinced that if Mr. Comey was fired, the Trump presidency could be imperiled." The NYT reporter talked to Professor Stephen Vladeck, who concluded that the action "shows that the president’s lawyers don’t trust giving him all the facts because they fear he will make a decision that is not best suited for him."
Assuming the facts as reported are true, I would agree with Professor Vladeck's conclusion. But I would also note that the rules of legal ethics do not permit lawyers to manage their clients by intentionally misleading them--even when lawyers believe that doing so is in the client's best interest.
The Model Rules of Professional Conduct specify that when dealing with a client believed to have "diminished capacity," (that is, "when a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason"), then "the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client."
The rules acknowledge that a lawyer may have modify the attorney-client relationship in some ways. For example, if the client is at substantial risk of harm and unable to act in his or her own best interest, the lawyer may take protective action by seeking to appoint a guardian ad litem or other person to act in the client's best interest. The lawyer may do so even if it means disclosing otherwise confidential information, though "only to the extent reasonably necessary to protect the client's interests." And the lawyer may also delay sharing information with the client in some cases; a comment to Model Rule 1.4, "Communication," provides that "[i]n some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client." But even this exception is narrow in time and does not take precedence over the lawyer's duty to avoid engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation."
A lawyer cannot ethically make a unilateral decision about what is in the client's best interest or mislead the client about what the law allows. It may be that the NYT reporter misunderstood what had happened. And certainly, even though the article asserts that the lawyer "never corrected the record" after his legal research concluded that Trump did have the authority to fire to the FBI director, Trump exercised that authority anyway--either advised by other lawyers or on his own initiative.
But of course, representing the president is not an ordinary attorney-client relationship, and the situation as presented by the NYT article raises very difficult questions. If a lawyer for the president believes that he is incapable of making decisions in his own best interest--and perhaps incapable of acting prudently on information about his own legal options--what is the lawyer's ethical obligation? Is it possible to maintain a normal client-lawyer relationship? Is it wise to do so?
And if the lawyer cannot maintain a normal client-lawyer relationship, then what would cause less harm--trying to unilaterally manage the information the president is given and making decisions on his behalf, or going public with concerns about the president's fitness?
"Fire and Fury" is not The Pentagon Papers
There is a tendency (to which I have been susceptible) to treat Donald Trump's norm-breaking as a constitutional crisis. The latest is the response to the cease-and-desist letter that Trump's private attorneys sent to the publishers of the forthcoming Fire and Fury: Inside the Trump White House. Ed Kilgore at New York Magazine paints the letter as the next step on the road to book banning and book burning, as reminiscent of the Nixon Administration's actions as to The Pentagon Papers (which are on everyone's mind).
That reaction seems overstated, even allowing that the President is a uniquely powerful figure. A cease-and-desist letter has no legal force; it is an act of bluster, allowing the lawyer to flash his fangs and sound smart. The show of "force" behind it is not connected to Trump being President or wielding state authority, but to being a wealthy individual who can afford a high-priced blustering private lawyer and who has made a career out of this very tactic. There is no show of government force here. As Mike Dorf points out, the letter does not threaten to seek an injunction to halt publication of the book, so there is no explicit legal risk of prior restraint. It does float the possibility of suit for defamation or other torts.* But that suit could be based on excerpts already published (the demands retraction and apology for what has gotten out). And the letter reserves the right to even if the publisher caves to the threat and halts publication.
[*] Dorf shows the flaw in the threatened claim of tortious interference by inducing Steve Bannon to breaking his non-disclosure agreement.
So comparing this to DOJ obtaining an injunction barring publication, on pain of contempt of court, is way over the top. I do not see the difference between this letter and the letter Trump's lawyers sent during the 2016 campaign threatening to sue The New York Times for its reporting on the sexual-assault allegations against Trump. Both sought to make speech go away by the pressuring the speaker to retract and apologize for what already was out and refrain from publishing anything further, in addition to threatening a suit for damages. And even if the express demand to stop publication of a book constitutes a unique "prior restraint," the doctrinal treatment of prior restraint as categorically worse than post-publication liability has been questioned--the chill on speech and the threat to First Amendment values is no different, although there may be some procedural and proof differences.
In writing about the exchange with The Times during the campaign, I argued that threatening to sue critics in the press was another norm Trump was destroying--public officials do not threaten to sue their critics because it is legally difficult-to-impossible under Sullivan and politically weak. But I do not think it poses a greater First Amendment threat than any other powerful public person threatening to sue his critics.
Reminder - Today AALS MarkelFest, and other events #AALS2018
Have you been to the beach yet? There are a lot of great spots to choose from. Reminder that today at the Marriott Marquis indoor bar - there is only one bar - near the Starbucks - at 9pm, we continue the traditional happy hour that our beloved friend and founder of Prawfblawg Dan Markel started over a decade ago. Everyone is invited - bring your friends, make new friends, please introduce yourselves (even if we've met before, I am terrible with names), and we can celebrate the end of a terrific conference.
Also today, open to all - at 430 is the annual IP Evil Twin Debate, at the beautiful downtown high-rise of Thomas Jefferson. At 530 is a book party for You Don't Own Me (this morning I woke up to a review by the Financial Times that calls the book a compelling, persuasive and a page turner!) on our stunning USD law campus, with food and drinks. no need to rsvp, Uber or take the continuous shuttle from the Marriott to our campus.
Looking forward !
Thursday, January 04, 2018
The 340B Storm Has Arrived
Thank you to prawfsblawg for allowing me to visit this month.
Billy Wynne's May of 2014 prediction of "The Coming Storm Over the 340B Prescription Drug Discount Program" was certainly correct. Even if the challenges to the 340B Prescription Drug Discount Program have been slow growing, we are now in what may be the health care finance version of the meteorological "bomb cyclone" phenomenon. The Administration's decision to implement a plan involving a 28.5 percent cut in all reimbursement for prescription drugs under this program is certainly rocking hospital land, as well it should, as an estimated 45 percent of all hospitals in the United States participate in this program.
Section 340B of the Public Health Service Act has been in place since 1992 as a way to help safety net providers with prescription drug acquisition costs. A program designed to offer acute care hospitals that disproportionately serve Medicaid and low-income Medicare beneficiaries by offering a highly reduced acquisition price for certain prescription drugs used at these facilities has morphed somewhat since its 1992 introduction, however. More and more hospitals and affiliated health care facilities came to participate -- driven by both the changing nature of health care delivery from in-patient to out-patient settings and by the Affordable Care Act's expansive reading of eligible covered entities. No wonder health care facilities, including some of those serving more affluent communities, have been seemingly magnetized to the program, the discounts could be very significant (sometimes bringing participating entity acquisition cost below the actual co-insurance amount the entity would charge the patient), enforcement was predominantly on a honor system, and the participating facility could acquire prescription drugs at the 340B discounted price but bill the patient/insurer at the non-discounted price or co-insurance amount, using the spread for any purpose the facility sought fit. It has been noted that the 340B program generates quite a subsidy for safety net providers but one that is not directly derived from taxpayer funds.
Any major shock to hospital finance is interesting but the 340B program is also an important illustration of the crudeness of cross-subsidization in American health care. The subsidy inherent in the 340B program goes to the "covered entity" and does not attach to the patient, hence no requirement for the facilities to dedicate the funds pocketed from the spread to low income income populations. Even more sobering, as not every prescription drug is a 340B prescription drug, the program appears to have created incentives for participating facilities to steer pharmaceutical choices in treatment practices and clinics towards those prescription drugs that offer the highest spread or net gain for the facility. Rena Conti's important research on how this works out for infusion therapies in cancer treatment is instructive. 340B participant facilities appear to treat Medicare beneficiary patients with the same cancer diagnoses far more expensively and considerably more intensively than non-340B participant facilities, for example.
The reach of 340B prescription drug discounts in cancer treatment, in addition, appears to have provided a mechanism for hospital-based oncology programs using these heavily subsidized prescription drugs to drive community oncology practices from the marketplace. We are seeing the delivery of this kind of care being increasingly driven back to the hospital out-patient clinic or hospital affiliate, the higher priced venues for much of this treatment, as a result. Those of us concerned about increasing hospital concentration of ownership over may different parts of the health care system and its implication for health care pricing should be concerned.
Seen from this perspective, the hospitals' challenge to the proposed plan was doomed to failure. A few days ago, Judge Rudolph Contreras declined to prevent the January 1, 2018 implementation of the new reimbursement rule. The dispute, of course, might still be decided differently on the merits but the Court acknowledged that it would be challenging to reverse the powerful forces of hospital and clinic finance that will re-align with the implementation of the Administration's plan.
It is possible to see this decision as a blow for transparency and accountability. It is also possible to see it as a striking attack on a whole system of inter-connected subsidies and cross-subsidies that are the hallmark of our jury-rigged health care system where we so often use sleight of hand to subsidize those we would not like to be publicly identified as subsidizing. If the new plans works as projected, some important expensive prescription drugs could become less expensive (lower co-insurance) for the insured. And, it might make some important expensive prescription drugs less expensive for the uninsured by focusing the program on this population. Whatever was cross-subsidized by the 340 spread, however, is quite likely to increase in cost and, in some cases, cease to be an offered service. You see, in hospital land, infusion-based therapies in oncology can be a real money maker but some other services in desperate under-supply for the low income -- mental health services, infectious disease treatment, etc. -- are notorious money losers. The great reckoning of the new plan will be to uncover where the 340B spread funds have been spent.