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Friday, January 19, 2018

Thought on the Oral Argument in Byrd v. United States

After having listened to the oral arguments in Byrd v. United States, I have only a little to add to my prior blog posts (here and here).

First, Justice Gorsuch seems to be filling Justice Scalia’s shoes in advocating for a property-based notion of what constitutes a search.  (This was also pretty clear from his comments at oral argument in Carpenter v. United States, the cell site location information case).  Recall that in Byrd, the question is whether Byrd has standing to challenge the search of the car his girlfriend rented but of which he was not an authorized driver.  Because the police conduct there was clearly a search, the “what is a search” question might seem tangential.  But it is actually at the heart of the case because whether Byrd has standing is just another way of asking whether the police conducted a search as to him.  Justice Gorsuch seemed to be tossing a softball to Byrd’s counsel in asking whether the Court should look to reasonable expectations of privacy (REOP), on the one hand, or to property rights, on the other:

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.

Posted by Michael J.Z. Mannheimer on January 19, 2018 at 05:13 PM in Constitutional thoughts | Permalink | Comments (1)

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. 





Posted by Ann Marie Marciarille on January 19, 2018 at 06:00 AM in Current Affairs | Permalink | Comments (4)

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).

Posted by Howard Wasserman on January 18, 2018 at 06:49 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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.

Posted by Howard Wasserman on January 18, 2018 at 06:35 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

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.

Posted by Howard Wasserman on January 17, 2018 at 05:34 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (13)

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.

Posted by Megan La Belle on January 17, 2018 at 01:58 PM | Permalink | Comments (4)

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!”

Posted by Rick Hills on January 17, 2018 at 01:40 PM | Permalink | Comments (0)

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. 


Electronic submissions should be sent to Rebecca Tushnet at rtushnet@law.harvard.edu, 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 (amatthiessen@law.harvard.edu).

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Matthew Stephenson (mstephen@law.harvard.edu) or Rebecca Tushnet (rtushnet@law.harvard.edu) at Harvard Law School, Richard Ford (rford@stanford.edu) at Stanford Law School, or Christine Jolls (christine.jolls@yale.edu) or Yair Listokin (yair.listokin@yale.edu) at Yale Law School.

Richard Ford

Christine Jolls

Yair Listokin

Matthew Stephenson

Rebecca Tushnet

Posted by Howard Wasserman on January 17, 2018 at 12:26 PM in Teaching Law | Permalink | Comments (0)

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.

Posted by Howard Wasserman on January 17, 2018 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

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):

Implementing Health Reform: Essential Benefits and Medical Loss Ratios (Feb. 18, 2012)

Taking Stock of Health Reform: Where We’ve Been and Where We’re Going (Dec. 6, 2016)

The Tax Bill and the Individual Mandate: What Happened and What Does It Mean   (Dec. 20, 2017)

Tim, you truly are the horse whisperer of ACA regulatory interpretation and policy analysis.  Katie Keith is up and running with quality output, I know.  You will be missed.  

(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.)


Posted by Ann Marie Marciarille on January 16, 2018 at 09:33 PM | Permalink | Comments (0)

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.

Posted by Howard Wasserman on January 16, 2018 at 09:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

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.

Posted by Rick Hills on January 16, 2018 at 11:53 AM | Permalink | Comments (20)

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.

The article (like so many of these discussions) ignores the real issue of universality v. nationwide scope.  It is not the injunction applying everywhere, but applying to everyone—prohibiting enforcement of the challenged laws not only as to the named plaintiffs, but as to every person against whom the law might be enforced. In the sanctuary cities case in the Northern District of Illinois, the injunction barred enforcement not only against the named city (Chicago), but every other sanctuary city. In the travel ban cases, it barred enforcement not only against the named plaintiffs, but all persons from the named countries. That is the real problem, because the general rule is that an injunction should not extend beyond the plaintiffs, absent certification of a plaintiff class or the rare situations in which rights and relief are indivisible as between the plaintiffs and others.
The Supreme Court’s power to issue these beyond-the-plaintiff injunctions is no greater than that of a single district judge (the article includes what I am sure is an out-of-context rhetorical question from Sam about how can a single judge decide a question for the whole country) . If the injunction that the district court can enter should be limited to the plaintiffs, then the Supreme Court’s affirmance of that injunction must be similarly limited. SCOTUS’s decision has nationwide/universal presidential value—so any new enforcement efforts by the government against non-plaintiffs would fail. But that is the effect of precedent (and a degree of non-departmentalism), not the effect of a judgment/injunction.
The article makes this sound new. But we had this conversation during the marriage-equality litigation and its aftermath. There were questions of what SCOTUS’s decision about the Kentucky ban meant for the South Dakota ban, what SCOTUS’s decision about the Kentucky ban meant for the antics of Kim Davis as to new marriage applications, or what the decision of one district court in Alabama meant for the antics of Roy Moore. Again, the answers depended on whether one talked about precedent or judgments/injunctions.

Posted by Howard Wasserman on January 15, 2018 at 07:51 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

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.

Posted by Howard Wasserman on January 14, 2018 at 03:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

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?

Posted by Rick Hills on January 13, 2018 at 09:06 PM | Permalink | Comments (19)

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.

Posted by Rick Hills on January 12, 2018 at 11:51 AM | Permalink | Comments (14)

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).

Posted by Rick Hills on January 11, 2018 at 02:51 PM | Permalink | Comments (12)

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.

Posted by Rick Hills on January 10, 2018 at 03:32 PM | Permalink | Comments (6)

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...

Image result for evil twin

Posted by Orly Lobel on January 10, 2018 at 03:12 PM | Permalink | Comments (0)

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.

Posted by Rick Hills on January 10, 2018 at 11:31 AM | Permalink | Comments (2)

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.

Posted by Michael J.Z. Mannheimer on January 10, 2018 at 01:26 AM | Permalink | Comments (14)

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.

Posted by Michael J.Z. Mannheimer on January 9, 2018 at 08:29 PM in Constitutional thoughts | Permalink | Comments (1)

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]

Posted by Howard Wasserman on January 9, 2018 at 11:15 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

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.

Posted by Howard Wasserman on January 9, 2018 at 11:10 AM in Article Spotlight, First Amendment, Howard Wasserman | Permalink | Comments (0)

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."   


Posted by Megan La Belle on January 8, 2018 at 06:50 PM | Permalink | Comments (3)

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.   

Posted by Mark Moller on January 8, 2018 at 02:33 AM | Permalink | Comments (6)

Sunday, January 07, 2018

Legal Theory Selects Top 10 Books of the Year

Larry Solum's list - 

Legal Theory Bookworm: Favorite Books of 2017

Here are ten of the Legal Theory Bookworm selections that I found most interesting in 2017 listed in alphabetical order:

Congress's Constitution: Legislative Authority and the Separation of Powers by Josh Chafetz

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

You Don't Own Me: How Mattel v. MGA Entertainment Exposed Barbie's Dark Side by Orly Lobel


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Posted by Orly Lobel on January 7, 2018 at 08:13 PM | Permalink | Comments (0)

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?


Posted by Cassandra Burke Robertson on January 5, 2018 at 05:07 PM in Law and Politics | Permalink | Comments (9)

"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.

Posted by Howard Wasserman on January 5, 2018 at 05:00 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

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 !

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Posted by Orly Lobel on January 5, 2018 at 11:21 AM | Permalink | Comments (0)

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.






Posted by Ann Marie Marciarille on January 4, 2018 at 12:00 PM | Permalink | Comments (0)

A Few Questions for John Ralston Saul and his Perspective on Academics and, or as, "Official Intellectual Leadership"

I received some excellent comments on my post below about law professors and Twitter. The gist of the post was not to deter legal and other academics from using Twitter, or speaking out on public issues--quite to the contrary, in fact, as I'll note in a second--but to ask whether we need to, or ought to, do so qua academics, with a great show of our academic titles, rather than as citizens, with no special invocation of or appeal to any ostensible "authority" we may (or may not) have as academics or "experts." I suggested that it would be good if we did the latter, speaking and acting as citizens, without attempting to trade (often falsely or questionably) on our ostensible authority. Indeed, perhaps academics should be far more civically involved, and perhaps now more than ever, especially at local levels. But that doesn't mean we need to do so in a way that seems to demand or might result in undue deference, respect for, or attention to our actions or speech. It's not clear that kind of extra attention is warranted, or that it it's good for democracy. And it seems evident to me both that many academics are tempted to invoke their ostensible authority too often and in too many cases where it's unwarranted, or where, even if they are speaking to something within the area of their expertise, the passionate nature of their statements clearly goes beyond anything having to do with their actual expertise or judgment within that field. It also seems evident to me that in many cases this is a strategic move, an attempt to get people to agree with positions they want them to agree with, whether those positions are accurate or "expert" or not--although it may be that they think that as academics, they have and deserve an extra status that demands extra attention from the hoi polloi. (It's been known to happen.) I will leave aside the question of "naming names," which has occasioned some debate elsewhere. It's a valid question, but I think it demands a post of its own. And I don't think anything I've suggested immediately above is so contrary to common experience that it demands evidence especially strongly.     

I responded to most of the comments, which, again, I thought were excellent and certainly provide some good counterpoints to and questions about my position. My response is surely imperfect, although I think it makes a few reasonable points. After that, however, Paul Gowder, whose writing I respect and enjoy and who is a Facebook "friend," offered a comment composed of a fine passage from a speech by John Ralston Saul, a Canadian writer and, if I may, public intellectual. I think the quote offers a fine counter-perspective to mine, although I ultimately think it is much more wrong than right. In part because I think it's worth giving Saul (and Gowder) their innings, and in part because my response to it became long and perhaps post-worthy, I'm taking both from the comments and providing them here, again with stylistic failings intact.

Here's Paul's comment and the extended quote from Saul's speech:

Funnily enough, I saw a link to the below speech, which contains the below wonderful passage... on twitter (source: https://twitter.com/daniellewenner/status/948639223166402561 ):

Let me finish this argument by making a few comments on the obligations of the universities inside this debate; particularly the professors in the universities. In our system, we have something ­called tenure for our professors. Tenure has only one purpose. That is to guarantee the full and unbridled use of freedom of expression to our academics without the threat of losing their jobs. That is the purpose of tenure. There is no other purpose.

And therefore, I think it would be reasonable to expect that professors should daily ask themselves whether they are making full use of their tenure. It is not supposed to be about having a nice house or looking after your family or even being able to go off and research whatever you want. That is not its purpose. And so have one group in society which is actually designated to provide official intellectual leadership. The members of that group are supposed to use that intellectual leadership to go out into the public place – inside the universities and outside of the universities – to be heard. To be heard about what? To be heard about what they really think on the issues facing society. It is their job to be as annoying as possible. Nobody else in society has a contract which says to them that they are being paid in order to be annoying; they are being given a guarantee of employment structured precisely in order to encourage them to be annoying. It's called tenure.

Instead of that, the effect of the chimney, the specialization chimney so beloved in our universities, has been the exact opposite. It has increasingly suggested to the academic world that the purpose of tenure is to give you the time to work as a quiet and closed-in person; as an increasingly isolated specialist in your area – someone who doesn't speak out in public because you're only a specialist in an area which does not have natural public links to other areas; an area which is not broad enough to permit you to speak out on great – or even small- public issues, because they are broader than your specialist expertise.

Now, the Dean is sitting on stage with me, and I know that he speaks out. I've actually been on some public panels with him. There are a few professors who do speak out at this university and in other universities. But let's face it, it's a pretty small group. I'm not even sure it's a double-digit group in most universities. If you actually started making the list of how many of our tenured professors are publicly known for their opinions, I'm sure you'd find it's a pretty low number. In other words, tenure is not being used for its real purpose.

Perhaps the Chancellor will be very unhappy to hear me saying this. I don't know, sir, but I think that it is very healthy in a democracy to have spirited and disorderly debate. And if there are any natural and in fact identified leaders for such a debate, it is the tenured professors. I can see from the smile on your face that you at least partly agree with me.

Because this is not what is happening among the tenured professors, I would encourage them to get out there, into society, outside of their silos and chimneys, and to speak as broadly as they wish and can on the subjects that interest them. I would encourage them to think of their specializations, yes in the habitual vertical terms, but also in unhabitual horizontal terms. Their presence is needed in the public debate. They must not allow the checks and balance system of current intellectual examination to make them feel that they need to be careful about what they say. To imprison their minds in chimneys. It is not actually a central characteristic of intellectual integrity to spend one's time being careful.

I think Socrates made that point pretty clearly. Now maybe you are not interested in drinking a potion that will put ­you out of business. Nevertheless, he made the point. The very fact that we're still talking about his point 2,500 years later suggests that he may have been making a very relevant point. Speak out and take risks.

From a 2003 lecture by John Ralston Saul at the University of Calgary. http://archive.gg.ca/media/doc.asp?lang=e&DocID=4026

I must confess I think he has a point or two.

Thanks again, Paul! And here's my response:

1) Of course he has a point or two! Or five. Although I take certain positions on the academy, academic duty, the purposes of scholarship, and extramural speech by academics that prominently features or trades on one's academic status, I do not think either that my positions are absolutes or that they are immune to counter-argument.

2) I tend to be an institutionalist, in the sense that I think institutions are important and deserve our attention and respect, and that I worry about too much erosion of trust in them. (I do think we shouldn't worship them and that skepticism about institutions is not only valid but necessary. I also think that some of the erosion of trust is not just a matter of external forces--the neoliberal assault on this, the fetishization of autonomy and individualism of that, etc.--but a consequence of things done within and by members of those institutions that have earned a drop-off in trust.)

3) I also tend to be an institutional pluralist, in that I think that even within institutions (such as the press or the academy) there are multiple ways for such institutions to function, and multiple competing views about their purpose, and that we shouldn't stick so hard to a particular position that we fail to recognize the reality, and sometimes the plausibility or possibilities, of these alternative approaches. It is difficult to maintain one's own sense of what these institutions should do as a general rule, as I do, and speak out against what I think are bad or dangerous practices, while still trying to respect and listen to those alternative visions and acknowledge that there is room within a large institution for more than one vision--for, say, different universities with different senses of their core mission. I'm not positive that it's a sustainable position, and people I respect have suggested it's not. That worries me intellectually, and I keep working at this question, but it doesn't worry me much on a daily basis. So I can read and think about Saul's vision without either rejecting it absolutely or accepting it. The paper I mentioned at the top of my previous post discusses some of this. I'll post it one of these days on SSRN. I should note in fairness that it addresses and explores these criticisms and concerns about being an institutional pluralist while still holding one's own views about how academics and universities should act, but I can't say it resolves them.  

4) With that brief preface, I think there is also much to worry about or disagree with in Saul's statement--more, perhaps, than there is to agree with or applaud. We might, at a minimum, consider the following observations and questions.

1) Tenure, as Saul notes, protects academics from job consequences due to extramural statements. Does that really mean that our extramural statements are valuable, or that they are part of our job as academics? Or does it just mean that we are free to engage in the civic sphere, as citizens, without that coming back to haunt us and prevent us from carrying out our key intramural job as scholars and teachers?

2) "Designated to provide official intellectual leadership?" Really? I think that is both an inaccurate description and a very dangerous one. God knows no shortage of academics see themselves that way. I think they're both wrong and tremendously hubristic, even arrogant, to view themselves as such. And the consequences for academics and the academy, and perhaps the broader society, have often been bad ones.

3) Tenured professors are "supposed to go out into the public places?" Is that our job or duty, as opposed to something we are free to do?

4) "To be heard about"...--what, exactly? Is there any reason, other than the possession of a decent SAT score and a doctorate, that I should give special attention or deference to a molecular biologist's views on tax policy? Or even a tax lawyer's view on the law of impeachment? No one who spends sufficient time in a university comes away convinced that a doctorate (or a JD) confers or signals wisdom, good judgment, common sense, or general as opposed to specific intelligence. I have met some very foolish doctorate holders, at least outside their fields. Surely if we have any such duty, which I doubt, it is to speak on "the issues facing society" about which we know something. When we speak on other issues, is it not both dangerous and anti-democratic to purport to do so as an intellectual leadership class, or as academics at all?

5) Is it actually our job to "be as annoying as possible?" As much as that appeals to me personally as a contrarian, it is true? An alternative view, and one that I prefer, is that it is our job to search for the truth, at least within our field, as best as we are able, and not care if stating the truth as we understand it annoys someone. I note incidentally that whether on Saul's version or mine, either description of this job precludes caring too much whether one is speaking truth to power or to the powerless, whether one is afflicting the comfortable and comforting the afflicted or vice versa, whether one is "punching up" or "punching down," and so on. Or, if one cares about it as a person, on either version, one's job should not ultimately be deterred or one's voice silenced by any of those concerns. I think an increasing number of academics, let alone students, today reject both views.

6) Those disciplinary silos he mocks--that we all mock from time to time--should indeed be questioned. But they don't come from nothing and for no reason, and along with their dangers they also bring much value. Just mocking or rejecting them won't do.

7) Again, the fact that many tenured professors are not "publicly known for their opinions" only means "tenure is not being used for its real purpose" if you think the purpose of tenure is not to protect our intramural work from blowback for extramural statements, but to make extramural statements in the first place. I think that's questionable, if not outright incorrect.

8) Is it really true that "[i]t is not actually a central characteristic of integrity to spend one's time being careful?" "Careful" in what sense? As a broad statement, I find this highly questionable.

9) Is Socrates an accurate or appropriate model for the modern academic? On this point, one might want to read Posner's Problematics of Moral and Legal Theory and its discussion of academics and moral entrepreneurs. Perhaps people who aspire to the status of thought leaders speaking out on public issues should seek to be unaffiliated public intellectuals, not tenured academics. Maybe being a tenured academic makes it harder to be a Socrates, for various reasons. And maybe some--or many?--academics who want to speak out on public issues seek a tenured academic position not because it is related to the desire to speak out on public issues, as an academic or otherwise, but because it's a pretty good damn job. A comfortable, highly job-secure bourgeois existence is not necessarily an ideal position from which to be a Socrates. (Of course that doesn't describe the existence of many academics any longer, but Saul himself is talking about the tenured elite, not part-time academics, adjuncts, etc.)

10) There is a distinctly mandarin-ish aspect to Saul's description. It is, perhaps, no accident that it is being spoken by a Canadian, from a country that had and has a substantial mandarinate and mandarin culture, and who served as a vice-regal consort.

11) That leads to my penultimate point, which is that none of what Saul says demands that if and when we speak out in public on "the issues facing society," we are obliged to do so with a flourishing of our academic titles and ostensible authority as "intellectual leaders." We could do so simply as Paul Horwitz or Paul Gowder or Jane Doe or Joe Blow. And, of course, we could act rather than speak, again as citizens rather than in (or with much pomp and show of) our official capacity as tenured professors. I'm not sure why we don't or what is so terribly wrong with or unthinkable about doing so.

12) My final point is less important than the last one, but perhaps not irrelevant to the general discussion. Note that Saul himself, although he holds a doctorate and--as befitting a fully-fledged member of the Canadian establishment and mandarinate--has held all sorts of academic sinecures, has almost never, if ever, lived the life of a tenure-track or tenured academic.      


Posted by Paul Horwitz on January 4, 2018 at 11:56 AM | Permalink | Comments (4)

(Guest Post): Prosecute the First Order for War Crimes

The following is by Jill Goldenziel (Marine Corps University and other affiliations), former GuestPrawf and friend of Dan. I have not see "Last Jedi," so I could not have written this if I had wanted to.

The Jedi order is gone. The Resistance has been decimated. Given their military weakness, the Resistance needs innovative tools to fight and win against the brutal, genocidal First Order. Skilled use of Lawfare, law as a weapon of war, can bolster the Resistance and bring the First Order to its knees. The Resistance must call for the Interplanetary Criminal Court (ICC) to issue immediate arrest warrants for Supreme Leader Kylo Ren and General Armitage Hux for their heinous war crimes against the creatures of the galaxy.

While the Geneva Conventions did not exist a long time ago, in a galaxy far, far away, both parties are bound by customary international law (CIL). CIL developed according to the practices of respected planets over the centuries, most notably the Old Republic. It is unclear whether the current conflict qualifies as an Interplanetary Armed Conflict (IAC) or a Non-Interplanetary Armed Conflict (NIAC). The First Order rose from the ashes of the Empire, and the Resistance fights to defend the Republic, although it is never identified as the Republic’s military. However, whether this particular conflict involves state actors or counterinsurgents, the same principles of the Law of Armed Conflict apply—and the First Order has flagrantly violated them.

Whether state or non-state actors, the First Order and the Resistance both qualify as combatants under customary international law, and are therefore entitled to combatant’s privilege and protections as prisoners of war (POWs). Both groups wear distinctive insignia recognizable from a distance and known throughout the galaxy, even to small children. Both parties have a continuous combat function and carry arms openly. Both are organized groups that participate in a command structure responsible for its actions toward belligerents. This holds true even given confusion within their commands. The First Order’s Stormtroopers report alternately to General Hux and Supreme Leader Kylo Ren, depending on whose voice sounds eviler at the time. The command structure of the Resistance makes no apparent sense. For example, a vice-admiral reports to a general, and few others seem to hold a rank. Unlike the First Order, however, the Resistance appears to follow customary Laws of Armed Conflict. Indeed, the Resistance is so concerned with minimizing casualties that they recently sent a single ship to distract the entire First Order space fleet, and a single man with a laser sword to confront the entire First Order ground force. Somehow, this crazy plan ensured that no civilian lives were lost in the Battle of Crait.

The First Order has repeatedly committed genocide against the creatures of the Republic. Starkiller Base destroyed the entire Republic Capital Star System, extinguishing entire humanoid and alien species in the process. The First Order’s wanton destruction also violated the four core principles of the Law of Armed Conflict: Necessity, Proportionality, Distinction and Humanity. Its actions were not necessary to achieve a lawful military objective. They were excessive in proportion to the concrete and direct military advantage gained, showed complete disregard for civilian life, and caused tremendous human suffering. The First Order again attempted genocide when it aimed to destroy the entire planet of D’Qar to defeat the Resistance. The First Order must be brought to justice for these unspeakable war crimes.

The First Order also committed egregious offenses against POWs. After then-Special Operator Kylo Ren captured the target known simply as “Rey,” he strapped her down and tortured her using mind tricks. When Captain Phasma captured Rose Tico and Finn, she was in complete control of the Stormtroopers who announced their intention to “make this hurt” and began to torture the prisoners with electric forks. Torture of prisoners is a flagrant violation of the customary Law of Armed Conflict that warrants immediate prosecution.  

Finally, the First Order used disproportionate force on Luke Skywalker. Supreme Leader Kylo Ren ordered every one of the First Order’s weapons to be fired on Skywalker—force that was clearly disproportionate to the desired military objective of killing a single human target. Even General Hux was appalled by the amount of force applied. After Skywalker refused to use his lightsaber and effectively surrendered, Ren struck him down, in violation of customary Law of Armed Conflict.  Although the target was actually an astral projection, Ren’s actions undeniably contributed to Skywalker’s untimely death, and must be punished by law.

Critics will argue that prosecuting Supreme Leader Kylo Ren and General Hux could put the ICC in immense danger of destruction by the First Order. However, the ICC’s failure to prosecute First Order leaders would be suicide. The ICC is facing a crisis of legitimacy, with several planets recently having withdrawn from the Coruscant Statute that created it. If the ICC fails to act in the face of genocide and obvious war crimes, the entire galaxy will lose faith in the institution, destroying its legitimacy forever. Moreover, at a time of little hope for the Resistance, the ICC’s action is vital for keeping the movement alive. ICC prosecution of the First Order would be a clarion call of “Never Again” that would rally allies to join the Resistance. “Never Again” is even easier to pronounce than “Luke Skywalker,” “and is a cry that even small children can understand.

Posted by Howard Wasserman on January 4, 2018 at 11:08 AM in Culture | Permalink | Comments (3)

Wednesday, January 03, 2018

Common theme: Insanity swirls around this administration

About the only basis I could think of for one short post touching three disparate issues wafting from this administration:

1) Paul Manafort sued Rod Rosenstein and Bob Mueller, seeking a declaratory judgment and injunction invalidating Rosenstein's appointment of Mueller and the actions Mueller has taken in investigating and bringing charges against Manafort. Steve Vladeck is quoted in this Slate article arguing that the district may abstain on Younger/equitable grounds. I think Steve is right. Although not challenging the constitutionality of the statute of conviction (the typical Younger case), the action challenges the legal basis for a criminal prosecution and seeks an order that would require dismissal of the pending prosecution. The Slate piece is right--this lawsuit looks more political than legally sound.

2) Acting ICE Director Thomas Homan has asked DOJ to examine whether California Governor Jerry Brown and other officials in sanctuary jurisdictions are violating the federal law prohibiting harboring of aliens. This is far from my area. But it seems to me the statute requires a defendant to conceal or harbor a specific person; it is not enough to know that many aliens are present and not to do something to help the government some or all of them. It also seems that a state or local official should be able to assert a Tenth Amendment limitation on a statute that would criminalize officials for making state policy. If federal law cannot impress state or local governments to enforce federal law, it cannot allow for the arrest and prosecution of state and local officials who control those governments and who make and enforce those policies refusing to enforce federal law.

3) Does a news organization that receives one of the President's media awards wear it as a badge of First Amendment honor? As a Bizarro Pulitzer Prize?

Posted by Howard Wasserman on January 3, 2018 at 07:00 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, January 02, 2018

MarkelFest AALS 2018 - Friday Jan 5, 9pm at the Marriott Bar

PrawfsBlawg is calling all readers, bloggers, law professor friends for drinks at the annual MarkelFest - Happy Hour at AALS. It will be at 9 p.m. on Friday, January 5, at the main bar of the Marriott Marquis San Diego
(the conference headquarters - 333 W. Harbor Drive). Hope to see many old and new friends of Prawfsblawg there!


 Image result for san diego


Posted by Orly Lobel on January 2, 2018 at 07:35 PM | Permalink | Comments (0)

Indiana tries to stop NFL kneeling--and would fail

An Indiana legislator has introduced legislation that would require the Indianapolis Colts to grant fans a refund if players kneel during the national anthem. Fans would have to demand the refund during the first quarter. The article does not say whether the fan would be permitted to stay at the game upon receipt of the refund.* The sponsor insists the law is constitutionally valid, because it does not stop anyone from kneeling. But it seems to me the law suffers from three obvious problems. 

[*] Otherwise, think of the perverse incentives. I am not offended by players kneeling. But I might claim to be if I could get my $ 200 back, still watch the game, and screw one of the worst organizations in the NFL

As the ACLU said in the article, the law infringes the Colts' First Amendment rights by sanctioning them (or setting them up for sanction) if they do not prohibit their players from kneeling. If we understand the team as exercising its First Amendment rights when it decides what its players can do, the law abridges that right and for reasons of disagreement with the team's speech in allowing its players to kneel.

A law also can violate a person's rights even if it does not prohibit some actions, by empowering or obligating private persons to take certain steps that harm that person. For example, courts have declared invalid ordinances that fine landlords for 911 calls to their properties; the laws have been found to violate the rights of (usually female) tenants who are deterred from seeking police protection from domestic violence out of fear that a 911 call leads to a fine on the landlord which leads to the landlord evicting the tenant to avoid future fines. (And these are the second generation of such ordinances--the first generation required licensed landlords to evict or prohibited them from renting to individuals who had made multiple 911 calls). The same logic is at work with this statute--the Colts are essentially being fined for not stopping the players from kneeling and so will prohibit kneeling to avoid the fine.

A different version of that scenario might set the Colts up to be sued for a First Amendment violation by players prohibited from kneeling, by causing the Colts to act under color of law. A private entity acts under color when it engages in some conduct under the "overwhelming coercion" of the government. Here, the Colts would bar players from kneeling on pain of having to offer refunds to fans that ask, which the team would be required to do by state law. Although it is less direct than a law requiring the team to stop the players from kneeling, the loss of money could constitute the necessary coercion.

This is probably moot because the law will not be passed and/or the NFL is going to force the NFLPA to accept a rule requiring players to stand (as the NBA now has). But it gives me a chance to link to this article describing the letters written by citizens to USOC and IOC head Avery Brundage* about Tommie Smith and John Carlos following their protest at the 1968 Olympics, which sound identical to the complaints being made about Colin Kaepernick and his NFL brethren.

[*] One of history's truly despicable sporteuacrats.

Posted by Howard Wasserman on January 2, 2018 at 03:36 PM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

On Passion: An Addendum on "Law Professors and Twitter"

Carissa's post below discusses her new draft paper on law professors and Twitter. Although, with no little measure of hypocrisy, I dislike Twitter and seize every opportunity to say so (while occasionally posting on it and, worse, reading and commenting on it), her paper is highly relevant these days and adds to the conversation about how law professors should write and behave on Twitter and other public or social media. This is a subset of the question how academics in general should behave on social media. But it may have some added importance with respect to law professors, by virtue of 1) the American tendency to turn political issues into legal issues and vice versa, and 2) the assumption, often shared by law professors and the public alike, that law professors may be particularly well qualified to opine on a wide range of issues. There have also been some interesting (and some less interesting, or less coherent) comments on Carissa's paper and her post here, both on Twitter and on legal blogs. I recommend both her post and her paper. Given that Carissa was one of the co-organizers, I would like to add that her contribution is part of a larger symposium on the ethics of legal scholarship that will appear later this year in the Marquette Law Review, and I recommend it almost in full. (I should have a contribution there as well.)  

I added a comment to Carissa's post but, for varied reasons, I'm going to reprint that comment below, lightly edited but with most of its stylistic imperfections left untouched. I also wanted to add two more notes to what I wrote there. First, the comment:

Although I am on Twitter, a little, I can’t help but sympathize with [commenter] Brad’s view. Fans of Twitter insist that it has value. Maybe so. But I find that more than very brief exposure to it induces a state of nausea. Sometimes it feels like the nausea that might be the first stage in taking an addictive and pleasure-enhancing drug, but it’s nausea nonetheless. A worthwhile question is not whether it has value, but whether its downsides outweigh its upsides. We might also ask whether the addictive nature of the medium, its incentives (to shout, to be too emphatic, etc.), and its capacity to change the person who reads or uses it are themselves factors to be considered.

As another comment on Carissa's commenters, I can’t stress enough the importance of academics, legal and otherwise, recognizing the importance of engaging in the world of politics and public argument, at least some of the time, as citizens, not as academics. It’s not just that many issues on which they opine on Twitter and elsewhere are beyond their actual academic expertise, or involve questions or types of argument as to which even their expertise is not especially helpful. Engaging as a citizen is a good in itself. Declining to assert one’s “authority” in every public debate is respectful of both democratic equality and the limits of the academic function. It may help stanch the erosion of public trust in institutions, including universities, and in expertise itself. And the very fact of engaging as a citizen rather than an academic may change one’s perspective, perhaps for the better. Academics who want to be “engaged,” active, or committed to various political issues ought to consider doing so more often in a way that omits their titles and affiliations and is clearly strictly in their civic capacities. (Many do this on a local level, to be sure: They may do volunteer work or get involved in local political issues without constantly invoking their professorial status. I’m referring specifically to the world of public discussion and argument about current issues, where invocations of status and ostensible expertise or authority are common.) The worst that might happen is that their pronouncements and arguments will be treated by readers as less persuasive and paid less attention, and thus be less “effective.” That’s not necessarily a bad thing.

If (legal) academics persist in both being “engaged” and trying to intervene in public discussion, and doing so in a way that invokes their titles and affiliations and ostensible academic and/or expert status, then yes: Even if the medium is not academic and the discussion is public and not limited to the academic sphere, it makes sense to think about norms or practices that should guide and constrain them when they do so. They will almost certainly be different from the norms and practices of scholarship or the classroom. But they will still be constraining norms reflecting their academic status and function.

Two additional notes: I certainly second her observation that Twitter often incentivizes or liberates people to be coarse and uncivil, and I agree with her that we should expect better, from ourselves if not others. (It is, of course, possible to be blunt, or to disagree sharply, or what have you while being civil.) I don't think, however, that that recommendation is unique to law professors or academics in general. I don't take her to be suggesting otherwise. But it's a broader recommendation that doesn't apply solely to law or other professors.

Second, there is one situation I didn't mention in my comment, which was quite long enough, that is relevant in considering the "problem," if it is one (I think it is), of law professors' behavior on Twitter. I talked about cases where the academic asserts or trades on her authority as an academic, even on issues that are outside her actual expertise, or on questions within their field that don't benefit much from their actual expertise. There is yet another way or instance in which (legal) academics trade on their status and ostensible authority in cases in which that status has little to do with the substance or argumentative style of what they write. That is when they write not in a merely "engaged" fashion, but one that is driven largely if not solely by passion. I say "driven" rather than motivated. There's a difference, for my purposes. One can be motivated by passion to write, while still writing in a way that is not consumed by that passion. But plenty of academics' posts are so driven by the writer's passion that most of their actual expertise and, especially, their critical judgment contribute little or nothing to the post. Such posts, when tied to the academic title, status, prestige, or ostensible expertise and authority of the writer, do great damage not only to the individual writer's credibility but more broadly to the ideas of academic authority and expertise themselves. There is plenty of room for healthy skepticism about authority and status and about the scope and limits of academic expertise. I have no wish to discourage that. But this goes beyond that, to erosion of even the sometimes deserved trust in institutions, in expertise, and in the value of those whose primary job is to think and rethink rather than to blurt or emote. It is most definitely possible for someone to be a genuine expert, and to tweet on a subject that is within their area of expertise, and yet to do so in a way that is so consumed by passion that any expertise or expert judgment on the part of the writer is essentially absent. 

Although I dislike that kind of writing, I'm not making any strong claim that people shouldn't write passionately on current events or anything of the sort. But I think those writers should admit to themselves that such posts have nothing to do with their academic authority and tend if anything to diminish it, and should write those posts expressly and clearly as citizens, with just their names and no fancy titles or academics affiliations mentioned. If they are aware that these posts have little to do with their academic authority or actual expertise and persist in invoking that status, precisely because they think people are more likely to follow them and give greater weight to those opinions if they do, then they won't much like this recommendation. Good. That would be a textbook case of trading illegitimately on their academic status. If that's not what they're up to, then they should agree that the worst that can happen is that fewer people will either read them credulously or read them at all. As I wrote above, that's not necessarily a bad thing, and to me it seems like a good thing: more respectful of the reader and of democratic equality, healthier for public discourse, and probably healthier for them as individuals and citizens too.     


Posted by Paul Horwitz on January 2, 2018 at 11:56 AM | Permalink | Comments (8)

Monday, January 01, 2018

Sokal Hoax at 20

The Chronicle of Higher Education has an oral history of the Sokal Hoax, which is now twenty years old. Some of those interviewed discuss this incident in light of recent attacks on the academy, science, and the idea of "truth." An interesting read.

Posted by Howard Wasserman on January 1, 2018 at 04:12 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Thanks for Having Me, and New Year's Resolutions

*Tap, Tap*   Is this thing on?  It's probably been... well, an eon (in cyberyears) since I was last blogging.  Thanks for having me back and for the warm Prawfsblawg welcome.  Here's my Jan. 1st resolution.  Do any of you have new year's resolutions about scholarship?Resolution


Posted by Miriam A. Cherry on January 1, 2018 at 02:55 PM in Blogging | Permalink | Comments (21)


Happy 2018 from everyone at Prawfs. And welcome to the new year with our January returning guests--Miriam Cherry (SLU), Megan LaBelle (Catholic), Ann Marie Marciarille (UMKC), and Mark Moller (DePaul). Our December visitors may stick around for a few weeks.

We look forward to another great year at Prawfs.

Posted by Howard Wasserman on January 1, 2018 at 09:31 AM in Blogging | Permalink | Comments (0)