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Friday, June 29, 2018

(SCOTUS Term) Departmentalism and Kennedy's Hawaii concurrence

June guests Dan Epps and Leah Litman did a "Good Behaviour" edition of the First Mondays podcast to discuss Justice Kennedy's retirement (both clerked for Kennedy). They talked a bit about Kennedy's concurring opinion in Trump v. Hawaii, trying to make sense of it. Their discussion triggered a thought.

Judicial supremacy (to which Kennedy long has adhered) without judicial enforcement is incoherent. Kennedy argued that, even without judicial oversight, executive officials must "adhere to the Constitution and its meaning and its promise." It is an "urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs." But Trump  and his aides and officials believe they are adhering to the Constitution, as they interpret and understand it. Trump and his administration believe that the Constitution gives the President the broad discretion to enact and enforce the travel ban, because national-security concerns outweigh any disadvantages imposed on persons of a particular faith. And if the judiciary is unwilling to review the President's actions, that presidential interpretation becomes the last and controlling word on this piece of the Constitution.

So it must be that Kennedy was urging the President to adhere to the Constitution as the Court (or just Kennedy) understands it. But this is the key insight of judicial departmentalism--the other branches are bound by the judicial understanding of the Constitution only when that understanding is reduced to a binding judgment in an action to which the executive is a party. Or, short of a judgment, the executive prediction that he will be subject to a judgment unless he follows the judicial understanding. But when the judiciary decides that it cannot intervene, no judgment is possible, therefore the judiciary cannot impose its interpretation on the executive. And we return to the executive having the final constitutional word.

Kennedy was trying to have it both ways in his concurrence--no judicial involvement and so no judgment, but a push towards the judicial constitutional interpretation. But he cannot have it both ways. Either the judiciary gets involved or the judiciary's constitutional interpretation carries no weight.

Posted by Howard Wasserman on June 29, 2018 at 11:15 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Thursday, June 28, 2018

Civility is the new unity

I criticized the demands last fall for "unity" in the face of various protests. The call for unity means speech that "divides"--which is to say all speech critical of the status quo or majority position--is divisive. And that is anathema to free speech.

The same can be said for recent calls for civility, to which Neil Buchanan responds at Dorf on Law, Vann Newkirk responds at The Atlantic, and Osita Nwanevu responds in Slate.  One problem is definitional. It is too easy too define criticism or protest, even measured criticism and protest, as uncivil. Another problem is New York Times v. Sullivan, "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." That means debate and criticism of public official can, will, and should be uncivil, especially when it is the powerless attempting to be heard by the powerful who otherwise have no obligation or opportunity to listen or engage. A requirement of civility means a high-ranking public official can demand silence from those who serve her cheese or who stand near her in the restaurant, It effectively creates a right for public officials to be free from proximate speech that she deems unfriendly or uncomfortable--rather than averting her eyes or ears, she can demand civility, which means demanding silence.

Posted by Howard Wasserman on June 28, 2018 at 11:43 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (17)

(SCOTUS Term) Things Are Every Bit as Bad as They Appear, Part I: The Travel Ban

When I accepted Howard’s invitation to join this June’s Supreme Court symposium almost a year ago, I signed off by hoping for an eventful term. Lesson learned: be careful what you wish for.

In writing about the events of the last few days, it is important not to be hyperbolic. But it is equally important not to just write everything off as business as usual and shift into insider baseball or law geek mode. The decision in Trump v. Hawaii was a momentous one, the kind of bet-the-reputation-of-the-courts opinion that will remain at the center of our debates about the proper role of the courts for generations to come.  And the decision of Justice Anthony Kennedy to retire at this moment in our political and judicial history raises the prospect of the most significant shift in our jurisprudence since at least 1936.

In this blog post, I offer a few thoughts on the former; in my next, I will take on the latter.

Many people have written sharp and appropriately anguished critiques of the Court’s decision to uphold the Trump administration’s infamous travel restrictions in Trump v. Hawaii. Here I want to emphasize two points that have been made by a few commentators but have not been at the heart of the critiques.

First, despite all its citations and its well-written sentences, the majority opinion is incredibly intellectually lazy.  The opinion relies on a small set of generally accepted decisions holding that the President has quite broad powers in the areas of immigration, foreign affairs, and national security; that those powers are at their apex when Congress has set up statutory schemes that grant the President broad discretionary authority; and that judicial review of such decisions is limited and deferential.  Taking those cases as directly on point, the majority of the Court treats this case as an easy one, squarely within the heartland of that rule.

But Trump v. Hawaii wasn’t a case about the existence of deference; it was a case about the limits of deference.  Constitutional law is full of deference doctrines: some extreme, some narrow, some based on substantive separation of powers or federalism concerns, some based on more pragmatic implementation concerns. As a general rule, deference doctrines have limits. They are presumptions about competence or authority or official good will, but they are only presumptions.  They can be rebutted by some fact or factor or combination of circumstances or evidentiary showings.

In most areas of constitutional law, direct evidence that the decisonmaker was biased is one of the primary facts that triggers an end to deference and requires serious judicial inquiry. This rule has particular force when the bias takes the form of religious, racial, or ethnic discrimination, as those forms of bigotry constitute particular affronts to the Constitution’s text and values.

To many of us, it was self-evident that this case was covered by that meta-doctrinal principle, that the deference normally due the President in immigration matters ran out when he put his own biases on the table. I knew that other disagreed and was braced for an opinion that disagreed with me on either the law or the facts (for example, an opinion holding that the Establishment Clause did not apply in this context or that the President’s comments could not be considered or did not establish bias). What I was not prepared for was an opinion that completely failed to engage with the many precedents from all over the Court’s jurisprudence suggesting that deference runs out in the presence of direct evidence of bigotry or to offer a positive account of the boundaries of judicial deference in this crucial area of the law.

Trump v. Hawaii was, thankfully, a case of first impression, because it involved the extremely rare situation in which a President provides substantial direct evidence of his or her bigotry while acting in an area of broad executive authority.  The Court acknowledged that we were operating in this new territory—long a staple of academic hypotheticals—and then completely ducked all of the important normative and doctrinal questions that arise from those sorry facts, simply applying the pre-existing rules that were designed to apply to run-of-the-mill presidential actions.

Second, if taken literally and applied broadly, the doctrinal approach that the majority assumes its way into is staggeringly broad.  (For a heroic attempt to read the opinion's deference more narrowly, see Kate Shaw's reaction.) The majority opinion bristles and huffs at Justice Sotomayor for suggesting that its approach or reasoning has anything in common with the Court’s notorious opinion in Korematsu, despite the many historical and jurisprudential parallels so well-articulated by Fred Korematsu’s descendants, but the truth of the matter is that on doctrinal terms (though obviously not consequentialist ones) the opinion was in some important ways worse than the Court’s opinion in Korematsu.  In Korematsu, the government’s prejudices had to be ferreted out indirectly through circumstantial evidence, critiques of its policy reasoning, and appeals to general social facts.  As Jed Shugerman pointed out in an essay making a similar point, the direct evidence that the government was lying and that its national security concerns were trumped up nonsense wouldn’t come to light until decades later.

Trump v. Hawaii is different.  Here the President has proudly and repeatedly embraced a desire to discriminate against Muslims, has doubled down on his prejudice at every turn, has asked his advisors to draw up a policy to implement that bigotry, and has continued to publicly explain the policy in terms of his antipathy to adherents to a particular religion.  It is as if President Roosevelt had made the desire to lock up Japanese Americans a centerpiece of his election campaign, had used his fireside chats to stoke racial prejudice, and then—in a very Jack Nicholson, A Few Good Men, sort of way—publicly embraced the racist grounding of his own policy.

Korematsu was a horrific decision that smart and honorable folks saw through and denounced at the time.  Its fundamental flaw was that it refused to impute to the executive the prejudice necessary to break deference in the face of an overwhelming circumstantial case that the government was guided by such illicit aims.  In Trump v. Hawaii, no such ferreting out of indirect evidence was necessary. The President said the quiet parts out loud.  And the Supreme Court said there is nothing we can do about it.  That is not deference; it is abdication. It is dangerous and it is wrong.

Posted by Andrew Siegel on June 28, 2018 at 09:41 PM in 2018 End of Term, Constitutional thoughts | Permalink | Comments (9)

(SCOTUS Term) Trying again with First Amendment retaliation

I wrote last week that the narrow and fact-specific decision in Lozman v. Riviera Beach reflected a vehicle failure--the Court wanted to consider the effect of probable cause on First Amendment retaliation claim, but took a case in which retaliatory intent rested with members of the city council, not the arresting officer. The Court on Thursday granted cert in Nieves v. Bartlett, a decision out of the Ninth Circuit (the court most willing to allow plaintiffs to show retaliatory intent even if there was probable cause) that squarely tees-up the issue without possible intervening factual issues.

Posted by Howard Wasserman on June 28, 2018 at 01:17 PM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, June 27, 2018

(SCOTUS Term) What is back in play with Kennedy retiring?

Some random thoughts on Justice Kennedy's retirement:

• I agree with Mike Dorf's argument that it is silly to doubt how this will play out--the Republicans have 51 votes, there is no filibuster, Senate Republicans all are going to be on board, and Mitch McConnell will make sure this happens before the elections. I would add that President Trump announced that his nominee would come from a list of 25 names that the White House posted in November, all of whom no doubt are pre-approved by White House Counsel and the Federalist Society; there is not going to be a Harriet Myers or Harold Carswell to gum up or delay the works. (Some of us at FIU would be fascinated to see Trump nominate Labor Secretary, and our former dean, Alex Acosta, although he is not on the list). And I do not believe the risk of overruling Roe/Casey or Obergefell will cause Collins or Murkowski to defect.

• This is the last chance chance for Eric Segall's eight-person/4-4 partisan Court. In fact, it is the perfect chance, even better than 2016. It would leave two divided camps with no real median Justice between the camps, precisely what Segall has in mind to force some compromise.

• Constitutional protection for reproductive rights is history at some point soon. The only question is what state's outright ban on abortion will reach the Court first. Any other doctrines for which Kennedy was the fifth vote with which his replacement may disagree? Might a state reenact and attempt to enforce a sodomy law or a same-sex marriage ban? What will happen with marriage-equality adjacent issues (custody, adoption, etc.)? Note that under judicial departmentalism, nothing stops a state from enacting and enforcing such laws other than the certainty of a judicial loss. Depending on Kennedy's replacement, that certainty is gone. 

• If Republicans keep the Senate in November and Trump remains unpopular, might Thomas retire next year (there were rumors he might go this year)? That would give Trump the same number of SCOTUS appointments in one term as Reagan had in two and more than Obama, Bush II, or Clinton had in two. The 18-year term limits proposals look increasingly sensible.

Posted by Howard Wasserman on June 27, 2018 at 04:36 PM in 2018 End of Term, Howard Wasserman | Permalink | Comments (17)

(SCOTUS Term) Janus

As I have said, the outcome in Janus was so over-determined, I am surprised it took this long to come out. It was decided--and everyone knew it was decided--on the night of November 8, 2016. I figured Alito and Kagan (who sparred in the two prior cases that set this up) had their respective decisions pre-written eighteen months ago.

My one take-away is that the opinion demonstrates why asking SCOTUS nominees about stare decisis is pointless. And so is looking at their decisions as lower-court judges. Stare decisis is too easy to pay lip-service to in a hearing and too malleable (to use the word that was all the rage in the opinion) to limit Justices determined to overrule precedent. And nothing that someone does as a  lower-court judge predicts what she will do when the only limits are prudence and rhetoric.

Kagan scores an important point by arguing that the only reason that Abood had become a First Amendment "outlier" was Knox and Harris, Alito decisions that included dicta attacking Abood that the majority then used to argue that Abood had been undermined. As Kagan wrote, "relying on them is bootstrapping—and mocking stare decisis. Don’t like a decision? Just throw some gratuitous criticisms into a couple of opinions and a few years later point to them as 'special justifications.'”

Time will tell if this decision hurts public-sector unions as much as advocates (and the dissenters) fear. I do not know labor law well enough to know. The majority says the union could charge nonmembers for representing them in arbitration or grievance procedures, although I do not know if that would be sufficient. Meanwhile, Aaron Tang offers a legislative solution to provide unions with sufficient resources (as have others). But Kagan is correct that there is now an enormous gap in the degree to which government can control employee expression when it comes to unions versus individual speech activities. It cannot compel non-members to pay for work-related speech (which the majority defines as being of public concern), but it can fire workers for making the same speech in and around the workplace. Kagan argues that this will prove to be a "unions-only" protection for government employees objecting to unions, who will otherwise find their at-work speech rights quite limited.

Posted by Howard Wasserman on June 27, 2018 at 01:24 PM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Enjoining family separation

A judge in the Southern District of California certified a Rule 23(b)(2) class of "[a]ll adult parents who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child" and issuing a classwide preliminary injunction  prohibiting DHS from "detaining Class Members in DHS custody without and apart from their minor children," to release minor children from detention, and to take steps to reunite parents and children within 30 days. The court found that plaintiffs are likely to succeed on a substantive due process claim, as the zero-tolerance policies and their effects "shock the conscience.

The court followed appropriate procedures. It created a class that is a unique party to the case, then issuing an injunction that protects that party. This is not the sort of universal injunction Justice Thomas and others are criticizing, because it protects only parties and the parties are defined. The class is broad, but it is manageable and seems consistent with the nationwide class and classwide injunction allowed in Califano.

I would guess that the court (or the Ninth Circuit) is going to stay the injunction, at least the mandatory portions that give the government 30 days to release detained children.

Posted by Howard Wasserman on June 27, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

(SCOTUS Term): Justice Kennedy is not a centrist (Several Updates)

For personal and political reasons, I hope Justice Kennedy does not retire. I care deeply about reproductive freedom and a Trump-appointed/Fed Soc-approved replacement would be a fifth vote to eliminate constitutional protections for reproductive freedom as early as fall 2019.

But this rests on a fundamental misconception: Justice Kennedy is not a centrist and never has been. He is a conservative  (although not an Originalist) who follows the conservative judicial line on virtually everything. And this did not begin with the rise of Donald Trump. Kennedy has followed the conservative judicial on just about everything except reproductive rights (and not always) and free speech (which is increasingly becoming a conservative preference)[Update: I forgot LGBTQ rights, of course--although I would bet against Kennedy concluding that sexual-orientation discrimination is sex discrimination under Title VII]. And there are the stray votes to uphold race-based affirmative action in education or in the military-commission cases [Update: And some death-penalty stuff]. Otherwise, he has repeatedly been in the five-Justice conservative majority on most issues--expanding state sovereign immunity, narrowing congressional legislative power, expanding qualified immunity, narrowing Bivens, narrowing habeas, narrowing standing, allowing expanded government support for religion, expanding state power to limit voting. We could go on. And his almost-certain vote in Janus should not be surprising, as Kennedy has been consistent in his dislike for Abood.

It is not that his vote is not in play anymore. It is that this Term's cases did not present the rare issues on which he departs the conservative position.

Update: Dahlia changed her mind following Kennedy's announcement, beginning the piece with:

It was always more fan fiction than reality that Justice Anthony Kennedy was a moderate centrist. Democrats liked to soothe themselves with the story that Kennedy was a moderate because he’d provided the fifth vote to support continued affirmative action, reproductive rights, and gay rights and had strung the left along with the tantalizing promise of someday finding an unconstitutional political gerrymander. But we always knew that Kennedy was a conservative, indeed a very conservative conservative.

That was a quick reversal. But I obviously agree with where she landed.

Second Update: Eric Citron at SCOTUSBlog identifies five areas, covering 11 cases, in which Kennedy's conclusions or approaches departed from the rest of the conservative Justices.

Posted by Howard Wasserman on June 27, 2018 at 08:56 AM in 2018 End of Term, Constitutional thoughts, Howard Wasserman | Permalink | Comments (16)

Tuesday, June 26, 2018

(SCOTUS Term) Korematsu and the Court of History

In declaring valid the travel ban, the Chief did not cite or discuss Korematsu. He raised it at the end of the opinion, in response to the dissents' "rhetorical" trick of raising that case. But the Court took the "opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and--to be clear--'has no place in law under the Constitution.'" (quoting Jackson's dissent). Joey Fishkin questions how Korematsu is different than this case or what makes Korematsu wrong and the current decision upholding the restriction right, rejecting the distinction based on facial neutrality. The post is worth a read.

I was struck by the Court's reference to the "court of history" in announcing that Korematsu did not reflect a valid interpretation of equal protection. This language hearkens to New York Times v. Sullivan, which declared that "the attack on the validity" of the Alien and Sedition Acts had "carried the day in the court of history."

Posted by Howard Wasserman on June 26, 2018 at 08:32 PM in 2018 End of Term | Permalink | Comments (0)

SCOTUS Term: Justice Kennedy’s Imprint on Masterpiece Cakeshop and Becerra

The Court today in Becerra held invalid California’s laws requiring pro-life “crisis pregnancy centers” to alert customers that (1) the state provides low cost family planning services, including abortion services, in the case of licensed pregnancy-care facilities, or (2) that the facility is unlicensed, in the case of unlicensed facilities. Becerra is a speech case, and Masterpiece Cakeshop, decided earlier this month, was predicated on religious animus grounds (although really should be thought of as a speech case).  However, the two cases seem greatly influenced by Justice Kennedy’s antipathy towards the state’s deciding, in a heavy-handed (perhaps arrogant) way, what is best for its citizens to think. 

In Becerra, Justice Kennedy’s concurrence chides California for enacting what the state describes as a “forward thinking” piece of legislation.  Kennedy notes that, “it is not forward thinking to force individuals” to unhappily be the instrument of the state’s favored position.   In Masterpiece Cakeshop, Justice Kennedy’s majority opinion takes the Colorado Civil Rights Commission to task for denouncing religion in its desire to create a more progressive civil rights regime.  Tolerance of the perceived intolerant seems to be Justice Kennedy’s approach, an approach that bodes well for robust First Amendment protections.

But perhaps too well?  Scholars and advocates argue that the First Amendment has become “the new Lochner,” a sword to invalidate economic legislation.  This is especially true in an age of soft paternalism, where speech-implicating disclosure requirements have replaced outright prohibitions.  Masterpiece Cakeshop,, in future form, has the potential to undermine decades of civil rights progress applying anti-discrimination provisions to businesses.  Becerra, the dissent fears, has the potential to disturb a wide swath of disclosure requirements -- so long as they are deemed controversial and not simply factual.     

More than Lochner, I think both cases echo the spirit of West Virginia Board of Education v. Barnette, the case deciding that public school students cannot be forced to salute the flag.  I’ll be participating in a symposium on the 75th anniversary of Barnette in the Fall. I will be writing about how courts should treat what I call “good orthodoxy” cases, where a claimant challenges the constitutionality of a law or policy that was designed to remedy the harms committed against historically marginalized groups.  The key to avoiding Lochner-like concerns will be deciding when the law at issue compels speech, and when it regulates something more akin to conduct.

(Cross posted at In a Crowded Theater.)

 

Posted by Erica Goldberg on June 26, 2018 at 07:13 PM in 2018 End of Term | Permalink | Comments (2)

(SCOTUS Term) Preliminary Adjudication

Perhaps recognizing how many constitutional cases are coming to it on immediate interlocutory review of the grant or denial of preliminary injunctions, the Court has been couching its constitutional holdings in that preliminary posture. In NIFLA, the majority held that "petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment." In Hawaii, the majority concluded that "plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim."

In both, the Court writes as if its constitutional decision was only for purposes of deciding whether to halt enforcement of the challenged law pendente lite. And in both the Court remands for further proceedings, seeming to suggest that this is not the final word on the constitutional validity of the challenged laws and that there may be further arguments to be made during further proceedings on remand.

This seems like something new. Significant constitutional cases have come to the Court on review of preliminary injunctions, at least where issued following a full and detailed hearing (if not a full "trial"). The Court's determination of constitutional invalidity, as part of the likelihood-of-success prong, was seen as the last word on the constitutional merits in that case, requiring only an after-notice conversion to a permanent injunction on remand. And maybe that is what the Court understands as further proceedings for these cases. But putting this in the language of the preliminary-injunction standard hints at a more interlocutory decision and the expectation that more detailed proceedings, including a full trial on the merits, may be required.

Posted by Howard Wasserman on June 26, 2018 at 06:05 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

(SCOTUS Term) The goose is sauced, but the gander is not

On Tuesday, the Court in NIFLA v. Becerra declared invalid, at least preliminarily, California laws requiring crisis pregnancy centers to disclose and advertise certain information about the procedures and services (specifically related to abortion) that can be had for free at state-run facilities. I do not know how much this will hurt the state, because there should be other ways for the state to get this information out--including posting signs outside the clinics themselves.

The problem is that the Court's analysis suggests that the goose and the gander will not be sauced in the same way. The counterpart to California's compelling facilities to provide information about abortion services is states compelling doctors to inform patients about about the development of the fetus, alternatives to terminating the pregnancy, and (often false) information about the risks and effects of abortion, as well to show the patient the ultrasound and play the fetal heartbeat. The Court declared valid one such law valid in Planned Parenthood v. Casey and others have been challenged unsuccessfully in the lower courts. The majority's explanation is that Casey dealt with informed consent surrounding a "medical procedure," analysis that also applies to other abortion script laws. On the other hand, these clinics are not performing "medical procedures," so the state cannot compel providers to say things as part of informed consent. But that gives the game away--terminating the pregnancy always requires a procedure, whereas not terminating the pregnancy does not require a procedure. (Well, other than ultrasounds, prenatal tests, C-sections, and other things related to birth itself). So this decision likely will be used to declare valid speech compulsions imposed by legislatures seeking to eliminate abortion, while barring compulsions by legislatures seeking to protect women who might seek abortions.

If the "medical procedure" line does not show the one-sidedness, Justice Kennedy's short concurring opinion, emphasizing the viewpoint-discrimination in these regulations (a point Justice Thomas avoided), clinches the point. The challenged law "compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these." Medical providers opposed to abortion can point to such precepts. Medical providers willing to perform abortions will not be able to identify a similar philosophical, ethical, or religious precept against having to read to a patient a script containing false medical information.

Finally, a question about that concurring opinion. Kennedy wrote it for himself, the Chief, Alito, and Gorsuch--in other words, four of the five Justices in the majority, other than the author. Can anyone recall this happening--four out of a five-Justice majority join one separate opinion? What went on internally that Thomas would not include something about viewpoint discrimination, even in a footnote, when every Justice joining his opinion wanted to talk about it? And why did the four remain with Thomas as author? Surely there was nothing in the two-page concurrence with which Thomas disagrees.

Posted by Howard Wasserman on June 26, 2018 at 05:20 PM in 2018 End of Term, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

SCOTUS Term: Free Thoughts on Trump v. Hawaii

1. I was wrong. I predicted at a conference last month that the Court would uphold the proclamation either 7-2 or 6-3, but it was 5-4. Everybody else on the panel was wise enough not to make such a concrete prediction. And though the Court never says so, I'm still not so sure that the Court would have upheld the first version of the travel ban.

2. Donald Trump is mentioned by name only twice in the 39-page majority opinion, once as "President Trump" in the very first sentence of Part I.A, and once as "then-candidate Trump." Every other reference is to "the President." By contrast, Justice Sotomayor's dissent contains repeated references to "President Trump," mentions the "Trump administration," etc. I doubt that either is an accident.

3. The majority's declaration that Korematsu is overruled is an important statement. I confess I had not predicted that the Court might repudiate Korematsu and uphold the proclamation at the same time, but it is a clever move. Few people are going to want to complain that the Court went out of its way to repudiate a case that we all agree deserves repudiation.

Some scholars had suggested that Justice Thomas's prior opinions might provide some support for Korematsu, but Justice Thomas fully joins the majority opinion, including the repudiation.

Technically, the Court does not overrule Korematsu, but says that it has already "been overruled in the court of history," and was "gravely wrong the day it was decided." (Those are two different things -- on the Court's view Korematsu was wrong but precedential on December 18, 1944, and on some other day before today, but we are not told when, Korematsu ceased to be precedential.)

4. As Eugene Volokh notes, Justice Thomas's critique of the issuance of national/universal injunctions makes extensive reference to Sam Bray's excellent article on the subject. And as Steve notes, there is a pending stay application in City of Chicago v. Sessions that looks like a good vehicle for the rest of the Court to decide what it thinks about the practice. (Two of the dissenters argue that a nationwide injunction was appropriate here, but on reasoning that might not extend to the sanctuary cities litigation.)

5. After this opinion, suppose President Trump used his Section 1182 authority to impose a unilateral ban on the entry of all aliens of any kind, perhaps with a stringent waiver process, and called the policy "I'm sorry you can't come in." Would that be legal? I very much hope not, but I am not sure.

[Cross-posted from Volokh.]

Posted by Will Baude on June 26, 2018 at 02:54 PM in 2018 End of Term | Permalink | Comments (1)

Call for Papers: Midwestern Law & Economics Association Annual Meeting, September 2018

My colleagues Shahar Dillbary and Yonathan Arbel have asked me to post the following announcement, which I'm proud to do:

Call for Papers: Midwestern Law & Economics Association Annual Meeting – New Deadline: July 20, 2018
The University of Alabama School of Law
September 14-15, 2018
 
Dear colleagues,
 
Please note that the deadline for submitting papers to the Midwestern Law & Economics Association has been extended to July 20, 2018. 
The University of Alabama School of Law (UASL) is pleased to host the Eighteenth Annual Meeting of the Midwestern Law & Economics Association (MLEA) September 14-15, 2018 in Tuscaloosa, Alabama. This year’s meeting will be co-sponsored by the UASL and the UASL¹s Cross Disciplinary Legal Studies Program.
 
We invite participants from across the nation (not just the Midwest) and abroad. There are no registration or membership fees. Participants will finance their own travel and hotel costs.
 
Papers can be on any topic that touches on law and economics. This includes, for example, papers with empirical analysis and economic modeling, as well as papers that address legal doctrine or theory that have been informed by economic thought.
 
To apply, submit a paper or abstract to Shahar Dillbary ([email protected]) and Yonathan Arbel ([email protected] ) no later than Friday, July 20th. 
 
A block of rooms at Hotel Indigo has been reserved for conference participants at a rate of $119 (excluding tax). You can book by calling the hotel directly at 205.469.1660 or via the website at Hotel Indigo Reservations. Use Group ID Bama Law to receive the special conference rate.  You will need to reserve your room by September 3, 2017 to receive this conference rate.
 
Contact Shahar Dillbary ([email protected]) and Yonathan Arbel ([email protected]) with any questions.
 
I acknowledge that Alabama is technically not located in the Midwest, but I gave up fighting that battle when it came to SEALS member school requirements a number of years ago. I will also note that Shahar and Yonathan are superb colleagues and will be great hosts, the Hotel Indigo is lovely, and the quantity and quality of barbecue is fairly high in Tuscaloosa compared to that of most Midwestern college towns.   
 
 

 

Posted by Paul Horwitz on June 26, 2018 at 02:49 PM | Permalink | Comments (0)

(SCOTUS Term) More on universal injunctions (Updated)

I agree with Stephen's post about Gill's foreshadowing of the demise of the universal injunction. Several additional points.

First, the standing analysis in Gill was tied to the nature of the right and the theory of the violation. We see that not only in the Chief's majority opinion, but in Kagan's concurring opinion guiding these and future plaintiffs on how to frame this as a First Amendment claim for which an all-state injunction may be appropriate. But this emphasizes the unavoidable and inherent connection between standing and merits, because the nature of the injury (and thus the permissible scope of the remedy) depends on the substantive right asserted. It is about time we follow Willie Fletcher on this.

Second, an all-state injunction ordering redistricting in a case such as Gill would not be universal, at least not as a formal matter. The injunction would have an unavoidable spillover effect to the benefit of non-parties--the government cannot redristrict to protect only the plaintiff. But the injunction still would protect only the plaintiffs in the case and only the plaintiffs would be able to enforce the injunction.

Third, if Stephen is correct that the next chance to consider universal injunctions is the stay request in Chicago v. Sessions, the result on the issue will be obvious because the universal injunction cannot be justified in Chicago. There are arguments that a universal injunction could be appropriate for the travel ban, given the large number of affected persons, their geographic dispersal, how easily they can move, and the use of third-party standing that made it impossible to identify specific injured persons (for example, Hawaii could not identify which people from the affected countries might want to travel to Hawaii to study or teach). But no such remedy is necessary in Chicago, because each city suffers its own injury by the denial of funding to it and each can bring its own lawsuit.

Update: A good post from Michael Dorf arguing that Thomas' critique of universal injunction is "ridiculous" because it focuses on antiquarian ideas of historic equity. It does not grapple with genuine arguments in favor of universality (conservation of resources) or the obvious solutions, such as Rule 23(b)(2) class actions.

Posted by Howard Wasserman on June 26, 2018 at 02:26 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

SCOTUS Term: Bad News for the Universal Injunction

To follow up on Howard's post: one understated result of this morning’s travel-ban decision may be to hasten the demise of the universal injunction.

Ordinary injunctions protect the parties who obtain them. That can include class members, if the case involves a plaintiff class. But in recent years,  district courts have started to regularly award what Howard describes as "universal injunctions" (sometimes called "nationwide injunctions," or even "cosmic injunctions"). These binding orders regulate a defendant’s conduct even as to people who’ve never appeared in court—and, more importantly, who aren’t legally represented by those who did appear.

The travel-ban case involved just such an injunction. But because of the way it was brought, with the State of Hawaii able to advocate for the interests of various other persons, it would have made for a messy analysis. By disposing of the case on the merits, the Court ended up avoiding any detailed discussion of the injunction or its scope. (Justice Thomas discussed it at length in his concurrence—citing excellent work on the topic by Sam Bray, among others. And Justices Sotomayor and Ginsburg would have upheld the injunction, though I agree with Howard that the relevant footnote doesn't really explain why.)

So the next opportunity for the Court to reach the issue may be the government’s stay application in the sanctuary-city case. There, the City of Chicago sought and obtained an order forbidding the policy’s application to every locality in the United States. But without an order certifying a class, Chicago ordinarily doesn’t have the right to act as a legal representative for other cities—some of which might like the policy, or which simply might be indifferent. Chicago can sue to protect its own interests, but not to vindicate an abstract position on whether a policy is lawful, much less to obtain binding court orders about (say) the conditions on federal funding for Tampa. So the government has pressed the issue, asking the Court to stay only that portion of the sanctuary-city order which applies to other cities.

Which the Court might well do. As others have noted, the Chief Justice's opinion for the Court in the Gill v. Whitford redistricting case sounded plenty of relevant notes, in explaining why the Gill plaintiffs couldn't sue to reshape the state's legislative districts as a whole:

The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. In those malapportionment cases, the only way to vindicate an individual plaintiff ’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.” Reynolds, 377 U. S., at 561; see, e.g., Moss v. Burkhart, 220 F. Supp. 149, 156–160 (WD Okla. 1963) (directing the county-by-county reapportionment of the Oklahoma Legislature), aff ’d sub nom. Williams v. Moss, 378 U. S. 558 (1964) (per curiam).

Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted. That harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district. Remedying the individual voter’s harm, therefore, does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district—so that the voter may be unpacked or uncracked, as the case may be. Cf. Alabama Legislative Black Caucus, 575 U. S., at ___ (slip op., at 7). This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis, 518 U. S., at 357.

The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III standing. On the facts of this case, the plaintiffs may not rely on “the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” Lance, 549 U. S., at 442. A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. And the citizen’s abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable “general interest common to all members of the public.” Ex parte Lévitt, 302 U. S. 633, 634 (1937) (per curiam).

What's more, the Court rested this discussion on constitutional grounds:

Our power as judges to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff ’s particular claim of legal right.

If the Court really is committed to resolving particular claims of legal right, with remedies targeted at the plaintiff's own injuries, then it's hard to see it upholding the universal injunction.

[UPDATE 6/27: Sam Bray summarizes new developments on the universal-injunction front. Among them, the Seventh Circuit has granted the government's stay request in the Chicago case, meaning that the stay application to the Supreme Court is now moot. (He also notes that the Seventh Circuit "refers to the injunction as 'STAYED as to geographic areas in the United States beyond the City of Chicago' [emphasis added]; footnote 1 of Justice Thomas's opinion is more precise, distinguishing places and parties.") ]

Posted by Stephen Sachs on June 26, 2018 at 01:34 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Scholarship in the Courts | Permalink | Comments (1)

(SCOTUS Term) Thomas adopts universality, rejects injunctions

I may have more to say about Trump v. Hawaii later, but I wanted to start with Justice Thomas' concurring concurring opinion on scope-of-injunction. (The majority, having rejected the merits of the plaintiffs' argument, says it is unnecessary to reach that issue).

Thomas begins with a footnote adopting "universal" as the "more precise" term because the injunctions are distinctive because thet "prohibit the government from enforcing a policy with respect to anyone, including non-parties--not because they have wide geographic breadth." (Unfortunately, Thomas does not cite me for the nomenclature point). Instead, he relies heavily on Sam Bray's discussion of the history of equity and universal injunctions. He then rejects scholarly counter-arguments--protecting non-parties and constraining the executive--as not justified by historical limits on equitable and judicial power. He closes with "[U]niversal injunctions are legall and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so."

[Update: I should have included Justice Sotomayor's brief, conclusory discussion. She argues that given the nature of the Establishment Clause violation, a universal injunction was necessary to accord complete relief to the plaintiffs and was dictated by the extent of the violation established.]

Posted by Howard Wasserman on June 26, 2018 at 12:07 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Sunday, June 24, 2018

SCOTUS Term: Extraterritorial remedies: How Far Will WesternGeco Go?

On Friday, the Supreme Court issued its opinion in WesternGeco v. Ion Geophysical Corp. The case involved a patent infringement claim. WesternGeco alleged that Ion Geophysical Corp. had manufactured component parts which it shipped overseas intending that they be integrated into a product for which WesternGeco held a US patent. The question before the Court was whether WesternGeco could recover damages for lost profits arising from sales of the product outside the United States, given the presumption against the extraterritorial application of U.S. statutes

                  In a 7-2 decision authored by Justice Thomas, the Court held that WesternGeco could indeed recover for the loss of profits from overseas sales. The Court held that it need not decide whether the presumption against extraterritoriality had been overcome (a difficult question that the Court acknowledged could have far-reaching effects) because “conduct relevant to the statutory focus in this case is domestic”—that is, the production of the component parts took place in the United States. Because the wrongful conduct took place within the US, the statute was not being applied extraterritorially.

                  Justice Gorsuch, joined by Justice Breyer, issued a dissenting opinion arguing that WesternGeco should not be allowed to recover for lost sales outside the US. The dissent pointed out that damages were being recovered for the foreign sales of the product—and those foreign sales did not themselves violate the U.S. Patent Act: “No doubt WesternGeco thinks it unfair that its invention was used to compete against it overseas. But that’s simply not the kind of harm for which our patent laws provide compensation because a U. S. patent does not protect its owner from competition beyond our borders.”

                  The Court’s decision is an interesting departure from its recent trend toward limiting litigation with foreign dimensions--a trend that Professor Pamela Bookman has called “Litigation Isolationism.” This decision potentially opens the door—at least a crack—to an increase in transnational cases. In allowing recovery based on foreign sales, Justice Thomas’s majority opinion criticizes the restrictive view held by Justices Gorsuch and Breyer, stating that the dissent’s “position wrongly conflates legal injury with the damages arising from that injury.” But of course, much litigation is driven by the possibility of damages—and this is doubly or triply true in transnational litigation, where the possibility of higher damages is a big part of what draws litigants to U.S. courts in the first place, “like a moth to the light.”

                  Going forward, the question will be how far the WesternGeco decision extends beyond its facts. Intellectual property lawyer Ronald Abramson has suggested that the logic of the decision is not “necessarily limited to patent damages,” and that it appears “to open up some more room for a full remedy for infringement (or other violation or tort), which addresses foreign consequences.” It remains to be seen whether the Court will in fact extend the decision in such a manner. Plaintiffs seeking a remedy for foreign harms caused by domestic action, however, will likely rely on WesternGeco’s rationale.  

Posted by Cassandra Burke Robertson on June 24, 2018 at 11:46 PM in 2018 End of Term | Permalink | Comments (2)

Universal injunctions in other countries

An alert reader emailed this photo, taken at a construction site in London.

Image1

I found the court order. I cannot find details about the case or the separate injunction referenced in the order. [Update: The referenced order is here] The "Seventh Defendant" mentioned is "PERSONS UNKNOWN entering or remaining on the Claimants' property without the Claimants' license or consent." The posted notice constitutes notice of the order and the injunction itself. I think that category was intended either to create a defendant class (only one named defendant was represented) or to constitute a group of John Doe defendants. So it is not quite universal, as there seems to be an attempt to expand the scope of the case to expand the injunction.

Either way, I am not sure it would fly in the U.S. to subject a broad number of unknown people to contempt without being named or well-represented in the action.

Posted by Howard Wasserman on June 24, 2018 at 11:27 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (5)

Saturday, June 23, 2018

When the Nazis became "The Nazis" (Updated)

That question occurs to me reading historian Deborah Lipstadt's argument against comparing family separation and the detention of children and families to Nazis and concentration camps. She argues that the analogy is historically inaccurate, rhetorically self-defeating, and unnecessary, because "something can be horrific without being a genocide or a Holocaust."

One problem with both Nazi comparisons and criticisms of Nazi comparisons is that they assume a singularity to what the Nazis did and were. But, as one Holocaust scholar argues, the Nazi campaign against the Jews did not begin with murder or even intend towards murder. Hitler and the Nazi Party came to power in 1933 seeking to strip Jews of civil rights rights, to "degrade, segregate, and diminish" Jews--precisely how Lipstadt describes the purpose of apartheid. The plan was to keep new Jews from entering Germany and expel those present. The turn to mass murder did not begin until 1941, when officials realized they had both the need and the means.* There were concentration camps for political and other prisoners (including Jews) from the beginning of the regime and conditions in the camps were poor. But gas chambers were not installed at the camps until 1941 and construction of "death camps" designed only for murder began the same year.

[*] Some scholars argue that the Nazi turn to murder grew from a conflict between two Nazi goals--conquering nations and creating a Greater Reich and getting rid of the Jews within the Reich. Millions of Jews lived in the areas Germany invaded, so as German territory grew, so did the number of Jews in German territory.

In other words, the Nazis had between five and eight years of harassing, intimidating, isolating, and dispossessing Jews, marked with dehumanizing metaphors and language, but without resort to genocide. That is, between five and eight years of pursuing discriminatory policies that are not, in degree or kind, so different from what many other regimes (South Africa, Jim Crow South) have pursued. So focused, the analogy between German policies and some aspects of U.S. treatment of  immigrants is not entirely inaccurate.

Lipstadt's assumption is that "The Nazis" is shorthand for what Nazi Germany became from 1941-45, not what they started out as or the discriminatory policies they implemented from the beginning. And that is probably true. The power of the analogy comes from what made the Nazis different--the ultimate horrors everyone knows.

[Update: Andrea Pitzer has written a book called One Long Night: A Global History of Concentration Camps, tracing their origins (and name) to Cuba during the revolt against Spanish rule and their acceptance through the early days of Nazi rule. In this interview and this op-ed, she explains how the term and its implications changed under the Nazis and argues how and why the term applies to the current situation in the U.S.]

Posted by Howard Wasserman on June 23, 2018 at 11:05 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, June 22, 2018

SCOTUS Term: Teaching Carpenter v. United States

Because I teach criminal procedure but write mostly about the First Amendment (I do have some Fourth Amendment pieces), I read Fourth Amendment cases differently from First Amendment cases.  The Supreme Court's decision in Carpenter v. United States is exciting because it holds that government use of cell site data to determine a defendant’s location over a period of seven days is a search, requiring probable cause and a warrant.  Perhaps even more exciting, Carpenter promises to be a joy to teach.

There are so many reasons why Carpenter will be a great teaching case.  Skeptical (and anxious) students prefer precise answers to thorny legal questions, but also need to be pushed to recognize a case’s inherent ambiguities and open questions.  The majority and dissenting opinions give the reader snippets of clarity but also plenty of work to do to find coherence with underlying principles for future application.  The case also straddles the line between “third-party doctrine” cases, so it recruits line-drawing and analogical reasoning skills.   Plus, fundamentals of the doctrine are challenged by several Justices.  The different opinions grapple with the relationship between property and privacy, and the Court also wades into confused areas like the connection between the Fourth Amendment and the subpoena power.  This case has everything, even a lesson in cell phone technology!

Some of the most pedagogically interesting aspects of Carpenter:

  1. The framework: Chief Justice Roberts rightly sticks to the Fourth Amendment framework of (1) is this a search and (2) is it reasonable. Plus, he affirms that Fourth Amendment searches generally require probable cause and a warrant to be reasonable.  His majority opinion even chides Justice Kennedy’s dissent for conflating the two questions (something students new to the Fourth Amendment also tend to do).  Kennedy believes that because the cell site data was obtained based on a subpoena of phone companies’ records, subject to judicial authorization, the probable cause standard need not govern this case.  But, if obtaining a defendant’s locations using cell site data is a search, invading a legitimate expectation of privacy, there’s little reason why the probable cause standard would not be required to render the search reasonable.     
  1. The third-party doctrine: Most of the previous cases hold that information given to a third party is no longer private, and thus not a search protected by the Fourth Amendment.  (Your garbage on the curb is not even private, since children can rummage through it.)  Carpenter needed to be placed somewhere on the spectrum between Miller – which held that subpoenas of bank records are not a search because defendant had no legitimate expectation of privacy in information given to a third party (the bank) - and the notion that the government cannot subpoena Google for access to our email without probable cause.  The basis for The Chief’s majority holding here is not entirely clear, and neither is his distinction between location information and credit card transactions, which are not protected by the Fourth Amendment against subpoenas of credit card companies.  The majority seems to (1) find important that full-scale surveillance was disfavored during the Founding Era, (2) display a deep concern for the police’s increased ability to leverage technology to intrude upon people’s privacy (notice the multiple citations to Kyllo), and (3) rely on the fact that the location information subpoenaed was not part of a business transaction, unlike bank records and credit card information.  Under the majority’s explicit reasoning, the fact that information is given to a third-party affects whether a defendant has a legitimate expectation of privacy, but does not overcome serious privacy interests. 
  1. The relationship between privacy and property: The majority opinion entirely decouples the privacy-based and property-based rules determining when something is a search.  Students can continue using either Katz (a search occurs when a legitimate expectation of privacy is invaded) or Jones (a search occurs when the government trespasses upon your property - you home, your stuff, your car).  These tests do not interact with each other under the majority’s reasoning.  Justice Kennedy’s dissent would have property-based rules inspire the Katz test, allowing for more interconnectedness between the two tests.  Justice Thomas, radically, would undo Katz’s hold on the doctrine entirely.  He lodges valid criticisms against Katz’s privacy framework.  Justice Gorsuch would relegate Katz to the margins and mostly use a Jones property-based theory (one he believes in actually rooted in “law”) and might also undo the entire third-party doctrine.
  1. The subpoena power: The interaction between the subpoena power and the Fourth Amendment has been messy since the Court began undermining Boyd.  A subpoena is a “constructive search,” in that the police are not wading through a defendant’s home or effects, but that does not diminish a suspect’s Fourth Amendment privacy rights if those privacy rights exist (Justice Alito’s dissent takes issue with this).  Subpoenas of businesses generally need not comply with the probable cause standard because corporations have diminished privacy interests under the Fourth Amendment.  However, the subpoena of a business to obtain the private aspects of a person’s life requires probable cause and a warrant.  Justice Roberts’s majority opinion ensures that the administrative state’s increasing use of the subpoena power to bypass Fourth Amendment standards will not continue unchecked.  Justice Alito’s dissent, quite concerned with this opinion’s effect on the subpoena power, offers a nice history of compulsory process.
  1. The major open question: What if the government had sought less than seven days’ worth of location information?  The Chief was not inclined to answer this question.

There is so much more to say about this case, but that’s exactly why it will be pedagogically rich.

(Cross posted on In a Crowded Theater.)

Posted by Erica Goldberg on June 22, 2018 at 11:37 PM in 2018 End of Term | Permalink | Comments (1)

ACLU's competing values and principles (Multiple Updates)

On Thursday, a memo leaked showing the national* ACLU's new policies on undertaking representation where the litigated issue conflicts with the organization's other values and principles, notably equality and the rights of historically disadvantaged groups. The memo lists general case-selection criteria. It then identifies five considerations specific to free-speech cases--whether the speaker seeks to engage in or promote violence, whether the speaker seeks to carry weapons, the impact of the proposed speech and its suppression (including how the speech advances white supremacy or negatively affects oppressed communities or historic social inequalities), the extent to which the ACLU can represent the speaker while publicly denouncing the speech, and the extent to which it can mitigate the conflict (such as by earmarking recovered attorney's fees to groups the speaker attacks).

[*] The memo states that the policy binds the national office, but does not and cannot bind local affiliates.

The memo is being read and garnering attention as the ACLU backing away from its historic protection for free speech, especially its paradigmatic protection of Nazis marching past a village full of Shoah survivors. It seems to make unlikely (if not outright preclude) that the national office will represent Nazis or white supremacists in the future. The memo purports to demand a balance--how much the speech will attack certain groups compared with how much the speech restriction, left unchallenged, will harm free speech generally (presumably by also being used against pro-equality speakers). This tries to read as a balancing test, a "stop-and-think" policy that requires the group to "make every effort to consider the consequences of our actions" before taking or declining representation. But it is hard to envision a case in which that balance is going to weigh towards representing a racist, sexist, anti-Semitic, anti-whatever group, when that representation is certain in every case to anger those oppressed groups that the ACLU wants to maintain as allies.

Like any vesting of discretion, we must await application. But it does not bode well.

[Update: CoOp publishes remarks by ACLU President Legal Director David Cole responding to some criticisms of the policy, insisting these are guidelines and that the organization will continue to represent "even the most repugnant speakers."]

[Further Update: CoOp followed with statements from two former ACLU Presidents: One from Ira Glasser arguing that the ACLU has never before required that the content of speech be considered as part of the representation decision and two statement Nadine Strossen taking a more sanguine approach to the effect the guidelines are likely to have, arguing that the ACLU has always considered the potential harm of speech in deciding how to undertake representation, distinct from whether to undertake representation.]

Posted by Howard Wasserman on June 22, 2018 at 04:24 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Gorsuch’s “Clear Enough” & Kennedy’s Anti-“Reflexive Deference”: Two Potential Limits on Chevron Deference (SCOTUS Term)

The headline administrative law opinion coming out of the Supreme Court yesterday was no doubt Justice Kagan's opinion for the Court in Lucia v. SEC, which held that administrative law judges at the SEC are [at least inferior] officers under the Appointments Clause and thus unconstitutionally appointed by agency officials who are not the head of the agency. SCOTUSblog is running a symposium on the case, including a great post by my colleague Peter Shane in which he coins the term "constitutional dodgeball" to describe the judicial minimalism at play in a number of decisions this Term.

It's also worth checking out Justice Thomas's concurrence, which cites extensively my Yale JREG co-blogger Jenn Mascott's Stanford Law Review article on the definition of "Officers of the United States." I like how Dave Hoffman put it on Twitter:

In this post, however, I want to briefly flag two other decisions from yesterday that illustrate distinct, albeit not new, approaches to limiting the reach of Chevron deference.

First, we have Justice Gorsuch's "clear enough" approach. In Wisconsin Central Ltd. v. United States, a divided 5-4 Court held that employee stock options are not taxable “compensation” under the Railroad Retirement Tax Act because they are not “money remuneration.” In his dissent, Justice Breyer argued that the federal government had the better interpretation; if that interpretation wasn't the conclusive one, it should at least receive Chevron deference.

Justice Gorsuch, writing for the Court, found the statute unambiguous and contrary to the federal government's interpretation. To reach that conclusion, Justice Gorsuch had to look beyond the plain text of the statute, as the statutory text does not expressly say whether "for services rendered" includes stock options. Instead, Justice Gorsuch looked to the whole text, structure, and design of the statute. Or as he put it in rejecting Chevron deference, "in light of all the textual and  structural clues before us, we think it’s clear enough that the term 'money' excludes 'stock,' leaving no ambiguity for the agency to fill."

Justice Gorsuch's more muscular Chevron step one inquiry is not new. This was Justice Scalia's approach, and it has been adopted by a number of other textualist judges who seldom find statutes ambiguous. Most recently, Judge Kethledge (a SCOTUS shortlisterdeclared in the pages of the online companion to the Vanderbilt Law Review that in almost a decade on the Sixth Circuit he "personally [has] never had occasion to reach Chevron’s step two in any of my cases, there have been plenty of cases where the agency wanted us to." For the Scalia-Gorsuch-Kethledge textualists, it is par for the course to find statutes unambiguous at step one and thus not defer to an agency statutory interpretation.

Justice Gorsuch's framing of the step one inquiry as "clear enough" in Wisconsin Central may well affect how lower courts approach Chevron. This language reminds me a bit of Justice Ginsburg's "scant sense" exception to Chevron deference expressed in her 2015 opinion for the Court in Mellouli v. Lynch. Perhaps lower courts will interpret "clear enough" as more searching than "clear" or "unambiguous," thus narrowing the scope of Chevron deference in the circuit courts.

Justice Gorsuch's approach also reminds me of an observation by Judge Kavanaugh (another SCOTUS shortlister) in his Harvard Law Review book review about how different judges set different thresholds for finding clarity (at 2137-38, footnotes omitted):

I tend to be a judge who finds clarity more readily than some of my colleagues but perhaps a little less readily than others. In practice, I probably apply something approaching a 65-35 rule. In other words, if the interpretation is at least 65-35 clear, then I will call it clear and reject reliance on ambiguity-dependent canons. I think a few of my colleagues apply more of a 90-10 rule, at least in certain cases. Only if the proffered interpretation is at least 90-10 clear will they call it clear. By contrast, I have other colleagues who appear to apply a 55-45 rule. If the statute is at least 55-45 clear, that’s good enough to call it clear.

Perhaps the "clear enough" standard will encourage circuit and district judges to lower their thresholds for finding clarity closer to the 50-50 range, thus narrowing the scope of Chevron deference at step one.

Second, we have Justice Kennedy's concerns against "reflexive deference." In Pereira v. Sessions, the Court held that a notice to appear that does not include the time or place of the removal proceedings is not a statutory notice to appeal that would trigger the stop-time rule in the Immigration and Nationality Act. The Court refused to apply Chevron deference because it found the statute unambiguous.

Justice Alito was the sole dissenter, arguing that the case should be decided in the federal government's favor based on "an important, frequently invoked, once celebrated, and now increasingly maligned precedent, namely, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984)." Justice Alito concluded that this is a run-of-the-mill Chevron deference case, where the statute is ambiguous and the agency's interpretation is reasonable. The only way to reach a contrary conclusion, Justice Alito concluded, is if "the Court has overruled Chevron in a secret decision that has somehow escaped my attention."

The headline-grabbing opinion from Pereira, however, was Justice Kennedy's solo concurrence, in which he added his voice to the judicial chorus for reconsidering Chevron deference. Justice Kennedy's concern is with how the doctrine "has come to be understood and applied," with "[t]he type of reflexive deference exhibited in some of these cases." Reconsideration of Chevron deference, for Justice Kennedy, would involve analyzing "the premises that underlie Chevron and how courts have implemented that decision." "The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers," Justice Kennedy explained, "should accord with constitutional separation-of-powers principles and the function and province of the Judiciary."

As my quotations from Justice Kennedy's concurrence hopefully underscore, I do not agree with those, like Joshua Matz, who believe Justice Kennedy is calling for Chevron's demise. Instead, I find myself agreeing more with Jonathan Adler and Jeff Pojanoswki, who view this call for reconsideration to be more about narrowing Chevron deference.

What would that narrowing look like? As opposed to Justice Gorsuch's more searching, "clear enough" step one, I'd expect Justice Kennedy to continue Chief Justice Roberts's narrowing project at Chevron step zero, first articulated in the Chief's dissent in City of Arlington v. FCC and further developed in the Chief's opinion for the Court in King v. Burwell. I view this as a context-specific Chevron deference, in which the reviewing court would focus more on the particular statutory ambiguity at issue and ask itself whether Congress would have really intended for that particular issue to be delegated to the agency for decision. To determine congressional intent to delegate by ambiguity, the court would consider the agency's expertise on the precise issue as well the issue's economic and political significance, among other factors.

As I have detailed elsewhere, this context-specific approach to Chevron deference finds some support in the empirical realities of how folks in Congress draft statutes and how officials at federal agencies draft regulations that interpret statutes. Such a narrowing also likely has the support five or maybe even six justices on the Court today.

In sum, yesterday's decisions in Wisconsin Central and Pereira articulate two different, though not mutually exclusive, avenues for narrowing Chevron deference. Justice Gorsuch's "clear enough" approach would encourage courts to engage in a more-searching inquiry at step one. Justice Kennedy's anti-"reflective deference" approach would likely lead to narrowing Chevron's domain at step zero. Neither would entail eliminating Chevron deference entirely.

Whether such narrowing of Chevron deference is a good thing is a discussion I'll save for another day.

Posted by Chris Walker on June 22, 2018 at 03:12 PM in 2018 End of Term | Permalink | Comments (5)

(SCOTUS Term): Marbury and appellate jurisdiction

Marbury v. Madison made quite the appearance in Friday's decision in Ortiz v. United States, where the Court held that there was no statutory or constitutional violation in having a military officer serve as a judge on a service's Court of Criminal Appeals (which reviews courts martial decisions) while also holding a position as a presidentially-appointed-Senate-confirmed judge on the Court of Military Commission Review.* But the Court split over whether it had Article III jurisdiction to review decisions from the non-Article III Court of Appeals for the Armed Forces (the top court in the military-justice system), an issue on which the Court granted argument time to Aditya Bamzai (U Va.) as amicus.

[*] Ortiz was consolidated with Cox v. United States and Dalmazzi v. United States the latter and argued by our own Steve Vladeck. The Court DIG'd both cases, which also raised statutory issues the Court believed were unnecessary to reach.

Justice Kagan wrote for seven that the Court had jurisdiction; Justice Thomas joined that opinion but added a typically idiosyncratic concurrence; and Justice Alito dissented for himself and Justice Gorsuch. And it was all about Marbury, which both the majority and dissent discuss at length (while dropping comments that, of course, everyone knows the details of that case). Marbury establishes that SCOTUS' original jurisdiction is limited to the cases enumerated in Article III and that its appellate jurisdiction is limited to reviewing, revising, and correcting proceedings initiated in a another court, not to creating a judicial case.  Everyone agreed this was not (and could not be) an exercise of original jurisdiction. The point of departure is whether SCOTUS could exercise appellate jurisdiction over a decision of CAAF and the military-justice system.

The majority held that it could. The military-justice system, including CAAF, was judicial in character, even though located in the executive branch not Article III. Each level in that system decides cases in accordance with the Constitution and a body of federal law, wields jurisdiction that overlaps with that of state and federal courts, accords procedural protections, and produces judgments that read the same as a judgment from any tribunal. SCOTUS was not limited to reviewing decisions of Article III courts, as shown by its appellate jurisdiction over decisions of state courts, territorial courts, and District of Columbia courts; the latter two judicial systems have been grouped with military tribunals, all as resting on unique congressional powers. And CAAF's location in Article II did not make it executive, because a decision by a judicial tribunal located in the executive branch was different than the individual executive decision of James Madison not to serve Marbury's commission.

Justice Alito, largely adopting Bamzai's position, begins by arguing that the executive (non-judicial) nature of Madison's actions would not have changed if he had held a formal hearing or established procedural protections prior to deciding not to issue the commission. A decision by an executive is an executive decision, no matter its form. Only an Article III body with Article III judges can exercise federal judicial power; executive-branch officers cannot do so, so they cannot create and decide cases that can be reviewed in an exercise of SCOTUS' appellate jurisdiction. Alito distinguished territorial and D.C. courts, because they exercise the judicial authority of that territory or D.C.; this is different than exercising the judicial authority of the United States, which only can be done by an Article III court.

The dispute leaves open whether SCOTUS could review decisions by modern administrative agencies (something Congress has never purported to do). The majority disclaimed this decision speaking in any way to that issue, emphasizing its foundation on the unique constitutional and historic foundations of courts martial and of the connection to territorial and D.C. courts. Alito rejects this as "halfhearted," insisting there is no relevant distinction  for purposes of SCOTUS' appellate jurisdiction between the military-justice system and civilian agencies. In Alito's view, all are executive and cannot exercise judicial power. But if one can somehow be judicial to allow for SCOTUS review, so can the other.

All the opinions are good reads; Kagan is her breezy self, with references to General Burnside's "notorious facial hair." I am going to add this discussion to Fed Courts--I just have to decide whether to include it at the top with my discussion of SCOTUS jurisdiction or later with discussion of non-Article III jurisdiction.

Posted by Howard Wasserman on June 22, 2018 at 02:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 21, 2018

SCOTUS Term: Stare Decisis and Judge-Made Law

One of this morning's more consequential Supreme Court decisions was South Dakota v. Wayfair, where the Supreme Court overruled its 51-year-old and 26-year-old decisions in Bellas Hess and Quill to hold that states may require out-of-state retailers to collect and remit sales tax. The decision was 5-4 (and as Jonathan Adler notes, with an unusual lineup), but interestingly all nine justices agreed that the original decision in Bellas Hess was wrongly decided. What they disagreed about was stare decisis -- should the prior decision stand? -- especially given the context of the Court's jurisprudence under the so-called "dormant" Commerce Clause.

Normally the Court adheres more strongly to precedent in cases of statutory interpretation than in constitutional cases because Congress can fix the Court's mistakes of statutory interpretation but can't fix the Court's constitutional mistakes. The dormant Commerce Clause -- under which the courts strike down state laws that improperly burden interstate commerce, unless Congress authorizes those laws -- is somewhere in between. It purports to be an interpretation of the Constitution, but it is still subject to revision by Congress. So what form of stare decisis should apply?

From the majority opinion by Justice Kennedy:

"Although we approach the reconsideration of our decisions with the utmost caution, stare decisis is not an inexorable command." Pearson v. Callahan, 555 U. S. 223, 233 (2009) (quoting State Oil Co. v. Khan, 522 U. S. 3, 20 (1997); alterations and internal quotation marks omitted). Here, stare decisis can no longer support the Court's prohibition of a valid exercise of the States' sovereign power.

If it becomes apparent that the Court's Commerce Clause decisions prohibit the States from exercising their lawful sovereign powers in our federal system, the Court should be vigilant in correcting the error. While it can be conceded that Congress has the authority to change the physical presence rule, Congress cannot change the constitutional default rule. It is inconsistent with the Court's proper role to ask Congress to address a false constitutional premise of this Court's own creation. Courts have acted as the front line of review in this limited sphere; and hence it is important that their principles be accurate and logical, whether or not Congress can or will act in response. It is currently the Court, and not Congress, that is limiting the lawful prerogatives of the States.

And from Chief Justice Roberts's dissent:

I agree that Bellas Hess was wrongly decided, for many of the reasons given by the Court. The Court argues in favor of overturning that decision because the "Internet's prevalence and power have changed the dynamics of the national economy." Ante, at 18. But that is the very reason I oppose discarding the physical-presence rule. Ecommerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical-presence rule. Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress. The Court should not act on this important question of current economic policy, solely to expiate a mistake it made over 50 years ago. ...

This Court "does not overturn its precedents lightly." Michigan v. Bay Mills Indian Community, 572 U. S. ___, ___ (2014) (slip op., at 15). Departing from the doctrine of stare decisis is an "exceptional action" demanding "special justification." Arizona v. Rumsey, 467 U. S. 203, 212 (1984). The bar is even higher in fields in which Congress "exercises primary authority" and can, if it wishes, override this Court's decisions with contrary legislation. Bay Mills, 572 U. S., at ___ (slip op., at 16) (tribal sovereign immunity); see, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 8) (statutory interpretation); Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. ___, ___ (2014) (slip op., at 12) (judicially created doctrine implementing a judicially created cause of action). In such cases, we have said that "the burden borne by the party advocating the abandonment of an established precedent" is "greater" than usual. Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989). That is so "even where the error is a matter of serious concern, provided correction can be had by legislation." Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409, 424 (1986) (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting)).

We have applied this heightened form of stare decisis in the dormant Commerce Clause context. Under our dormant Commerce Clause precedents, when Congress has not yet legislated on a matter of interstate commerce, it is the province of "the courts to formulate the rules." Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 770 (1945). But because Congress "has plenary power to regulate commerce among the States," Quill, 504 U. S., at 305, it may at any time replace such judicial rules with legislation of its own, see Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 424–425 (1946).

I found this debate interesting in its own right, but also because I wondered what it implies about other judge-made doctrines that might hit the Court's docket in the future. For instance, some scholars (including Joanna Schwartz, and me) have critcized the Court's doctrine of qualified immunity from suits for constitutional violations, a doctrine created by the Court in the second half of the twentieth century. Others, such as co-participants Aaron Nielson and Chris Walker have defended that doctrine on stare decisis grounds, and argued that the Court should leave any correction of the doctrine to Congress.

A few recent cert. petitions have asked the Court to reconsider the doctrine, and the Court has called for a response in at least two of them, Spencer v. Abbott and Allah v. Milling. It struck me that this same debate might play out again in that context. Perhaps members of the Wayfair majority will be more likely to be willing to reconsider qualified immunity if they agree that it is a "false ... premise of th[e] Court's own creation" and one in an area where "[c]ourts have acted as the front line of review." (Indeed, one member of the majority, Justice Thomas, has already expressed his interest in reconsidering the doctrine.) By contrast, perhaps members of the Wayfair dissent will be more likely to insist that the Court should not be the one "to expiate a mistake it made over 50 years ago." (Though one member of the dissent, Justice Sotomayor, signalled at least some concerns about the doctrine in a recent dissent.)

And now that I think about it, some of the same analogies could be made in the debate about whether to limit Chevron ...

[Cross-posted with a few edits from Volokh.]

Posted by Will Baude on June 21, 2018 at 07:57 PM in 2018 End of Term | Permalink | Comments (4)

SCOTUS Term: Finding the Law, Abroad and at Home

Thanks to Howard for the invitation to blog! Amid the morning’s excitement over new opinions, I’d like to add a few thoughts to Cassandra Burke Robertson’s excellent post last week on Animal Science Products v. Heibei Welcome Pharmaceuticals. Animal Science is a sleepy case in a mostly sleepy Term, but it brings up some deep issues, much deeper than the Supreme Court usually faces: what is the law, and how do judges find it?

Animal Science involved a price-fixing claim about Chinese exports of Vitamin C. The defendants said they’d been legally required to fix their prices, and China’s Ministry of Commerce agreed. To the Second Circuit, this was enough: so long as the Ministry’s position was reasonable, it was conclusive. (How could an American court instruct China’s government about Chinese law?) But to a unanimous Court, per Justice Ginsburg, the Ministry’s statement deserved only “respectful consideration”: it wasn’t binding, and U.S. courts would have to make their own judgments.

That all makes sense on the surface, but it raises at least three more fundamental concerns. Are legal questions like these all that different from ordinary questions of fact? Who do we trust to answer them? And what actually makes the answers right? When it comes to foreign law, issues like these aren’t always obvious—suggesting that the answers may not be so easy closer to home.


1. Legal questions and questions of fact. As the Court points out in Animal Science, foreign laws used to be treated as facts—they had to be pleaded and “proved as facts,” subject to rules of evidence and based on expert testimony or authenticated documents. As it turns out, these same rules applied to U.S. states—which were just as foreign to one another, except when the Constitution or Congress intervened, and which therefore needed proof of each other’s laws. (As I’ve argued before, the Full Faith and Credit Clause was mostly about these evidentiary questions: it helped establish what a particular state had said, and left it up to Congress to decide when other states should listen.) Sometimes even a state’s own laws got the factual treatment: courts could take judicial notice of public laws, but private bills were again matters for pleading and proof, as Chief Justice Marshall described:

“The public laws of a state may without question be read in this court; and the exercise of any authority which they contain, may be deduced historically from them: but private laws, and special proceedings of the character spoken of, are governed by a different rule. They are matters of fact, to be proved as such in the ordinary manner.”

Today we do things very differently. Federal and state courts take judicial notice of all kinds of American laws, and FRCP 44.1 and various state equivalents let them do the same for foreign ones. But we haven’t eliminated the basic problem of proving the law. Knowing that judges should answer these questions on their own—without simply outsourcing to juries, rules of evidence, or Ministry statements—doesn’t help us find any particular answers. If we need to know, say, whether French law allows extrinsic evidence of the contracting parties’ intent, should we look to translations of the statute book? To treatises and journal articles? To testimony by experts? And which translations, treatises, or experts should we trust?

2. Who do we trust? Giving only “respectful consideration” to the Ministry suggests that we should be sparing with our trust—making an all-things-considered judgment, looking at all the potential legal sources at once. But according to the Court, at least one kind of source gets special treatment. When a U.S. state court rules on an issue of state law, that ruling doesn’t just get “respectful consideration”; it’s considered as “binding on the federal courts.”

Why so? It’s easy to explain why federal courts might defer to Ohio courts on Ohio law, just as the Second Circuit would usually defer to the Sixth—they see more Ohio cases, so they probably know what they’re doing. But that doesn’t explain why the decisions would be binding, as opposed to just getting  extra-respectful consideration.

Maybe there’s something special about common-law courts. Maybe we might say, with Hale, that the decisions of our courts might be “less than a Law, yet they are a greater Evidence thereof than the Opinion of any private Persons, as such, whatsoever.” (When it came to the construction of “local statutes or local usages,” Justice Story in Swift v. Tyson would have agreed.) But that’s very different from claiming, as Justice Holmes later did, that whenever a state creates a supreme court it’s really creating a junior-varsity legislature, “as clearly as if it had said it in express words.” Some states might want their courts to establish the law of the state, but others might not. Georgia might want its courts to do general common law; Louisiana might want its courts to do its own civil-law thing; Canada, were it admitted as a state (as the Articles of Confederation once offered), might have its own apologetically polite take on the separation of powers. And if a legal system turns out to be very different from ours—say, with a complex network of informal councils and regional magistracies—we might have no idea which entities even count as its courts, let alone how much “respectful consideration” they’re supposed to be getting.

As I note in a draft paper on Finding Law, that’s one of the core problems with the Court’s notorious decision in Erie Railroad Co. v. Tompkins. Instead of looking to a state’s law to learn about its courts, Justice Brandeis did precisely the opposite—assuming, for bad theoretical reasons, that the law of a state is what the state courts say it is, because that’s just what courts get to do. But American courts don’t establish Chinese law when they decide cases like Animal Science. And they don’t necessarily establish American law when they decide their other cases, either. The powers of courts aren’t facts of nature, but society-specific questions on which different legal systems can disagree.

3. What makes the answers right? If courts can sometimes get the law wrong, what does it mean to get it right? How can we disbelieve the Chinese government about Chinese law, if Chinese law is just whatever the Chinese government actually does?

As Asher Steinberg points out in the comments, in some societies (like Venezuela or the former Soviet Union), government officials don’t always adhere to formal legal sources. Maybe these particular defendants’ hands were forced by Chinese law; but maybe the Ministry officials just issued them orders, the statute-books be damned. If that’s what the officials did, and if law depends on what officials do, then maybe their secret commands really were the law. (Here Steinberg invokes a great paper by Mikołaj Barczentewicz, to which Will Baude and I are currently at work on a reply.)

But law is more than what legal officials do. If the defense in the case were just ordinary duress, it wouldn’t matter whether the threats were backed by legal force (or whether, say, Al Capone had told them to fix prices for Vitamin C). Instead, the defense cited “principles of international comity,” which we usually extend to foreign governments as they’re legally constituted, and not to rogue officials on a frolic of their own. If the officials were supposed to be able to order price-fixing, under some applicable statute or common-law doctrine, then it wouldn’t matter so much if their order were secret or open. But if not—if the officials were departing from what everyone else in the Chinese system (judges, experts, law schools, and so on) would describe as Chinese law—then it’s hard to say that what they were doing was really lawful. That’s why we speak of places like the USSR as having had problems with the rule of law: because in those societies, the law wasn’t always what ruled. As far as diplomacy goes, we might want to respect official actions merely under color of law, just to avoid annoying the officials with whose governments we negotiate. Yet we still shouldn’t confuse official actions with the law—either abroad or at home.

Posted by Stephen Sachs on June 21, 2018 at 12:38 PM in 2018 End of Term, Civil Procedure, International Law, Legal Theory | Permalink | Comments (4)

(SCOTUS Term): Trusting adjudicators on remand

The Court on Thursday decided in Lucia v. SEC (link corrected) that SEC ALJs were officers of the United States rather than employees and that the appointment of ALJ's by SEC staff (rather than the SEC itself) violated the Appointments Clause. Justice Kagan wrote for herself, the Chief, Kennedy, Thomas, Alito, and Gorsuch. Thomas concurred, with Gorsuch. Breyer concurred in the judgment in part, agreeing that the ALJ in this case was not properly appointed, but for statutory rather than constitutional reasons. Sotomayor dissented on the constitutional question, joined by Ginsburg.

I want to focus on the issue of remedy in the case. The Court remands for a new hearing on the charges against Lucia (involving alleged deception of prospective clients). But it insists that the new hearing cannot be before the same ALJ; it must be before a different (properly appointed) ALJ or the SEC itself. The original ALJ "has already both heard Lucia's case and issued an initial decision on the merits. He cannot be expected to consider the matter as though he had not adjudicated it before." Appointments Clause remedies are intended to incentivize parties to bring Appointments Clause challenges; a party has no incentive to bring the challenge if the remedy is a new hearing before the same adjudicator, properly appointed. Because there was no suggestion the ALJ erred on the merits, he can be expected to reach the same result from hearing the same case. Breyer dissented on this point (and Ginsburg and Sotomayor joined that portion of his opinion). He compared reversal on appeal, where the same judge typically rehears the case on remand. And because this reversal was on a "technical constitutional question, and the reversal implies no criticism at all of the original judge or his ability to conduct the new proceedings," neither due process nor the structural purposes of the Appointments Clause would be violated by the same ALJ rehearing the case.

The competing approaches reflect a paradox. For Kagan, the fact that the judge was not criticized or corrected on the merits shows that he cannot be trusted to hear the case anew, because his views on the merits will not have changed and no new or different evidence or arguments on the merits cause him to change those views. Implicitly, a decision criticizing the original decision or requiring something new forces him to reconsider those merits, whether to correct the original error or because the new information is convincing. Breyer's approach, on the other hand, presumes that a judge criticized on the merits might be put-off by the reversal (lower-court judges do not believe they were "wrong" even though a reviewing court disagreed with their decision) and more dug-in to his original position. If we trust that judge rehear that case on remand, we should trust a judge in this situation.*

[*] Marcus, Redish, Sherman, and Pfander, the Civ Pro book I previously used, included in the Discovery chapter a defamation action against Diana Ross by a former employee. The district court had dismissed the case on 12(b)(6), but the Second Circuit had reversed. The case back before the same district judge in discovery, every discovery decision went against the plaintiff and in favor of Ross, which can be seen as at least influenced by the judge's previously established views on the merits.

Kagan's approach raises the question of what other "structural" errors might be similar to an appointments problem as to require rehearing by a different judge. Denial of counsel comes to mind, although the assumption is that proper counsel will present evidence and arguments that the pro se party failed to present, changing what is available on the merits and requiring the judge to think about the merits differently. Another possibility is routine shackling in Sanchez-Gomez; if the reviewing court says this defendant should not have been shackled, it does not criticize the trial judge on the merits of any decision she made against the defendant, so that judge would be expected to reach all the same judgments.

Posted by Howard Wasserman on June 21, 2018 at 12:11 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, June 20, 2018

Mootness, enforcement, and particularized injunctions

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

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

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

Posted by Howard Wasserman on June 20, 2018 at 10:57 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, June 19, 2018

SCOTUS Term: Chavez-Mesa and Sentencing Appeals

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

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

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

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

I have no doubt that if this sentence had been outside of the Guidelines, then a majority of the Court would have said that an explanation was absolutely required. But instead we see this from the majority:

[T]he Guidelines ranges reflect to some degree what many, perhaps most, judges believed in the pre-Guidelines era was a proper sentence based upon the criminal behavior at issue and the characteristics of the offender. Thus, a judge's choice among points on a range will often simply reflect the judge's belief that the chosen sentence is the “right” sentence (or as close as possible to the “right” sentence) based on various factors, including those found in § 3553(a). Insofar as that is so, it is unsurprising that changing the applicable range may lead a judge to choose a nonproportional point on the new range. We see nothing that favors the one or the other. So, as is true of most Guidelines sentences, the judge need not provide a lengthy explanation if the “context and the record” make clear that the judge had “a reasoned basis” for reducing the defendant's sentence.

I think this may be the most blatant statement from the Court that we need only subject non-Guidelines sentences to appellate review.  Previous decisions had been more circumspect about the idea that within-Guidelines sentences ought to receive essentially no appellate scrutiny.  The Court’s decision to overtly embrace the idea in Chavez-Meza was not accompanied by any real attempt to reconcile differential appellate review with the holding in United States v. Booker, which rendered the Federal Sentencing Guidelines “advisory” in order to protect them from Sixth Amendment challenge.

What is more, the idea that the Federal Sentencing Guidelines represent what most judges think is an appropriate sentence is demonstrably false.  (See pages 1490-91 of this article and pages 6-14 of this article for thorough explanations of why that statement is false.)  As one of the original members of the U.S. Sentencing Commission, Justice Breyer knows that this statement is false.  And he knows that the statement is especially untrue when it comes to sentencing ranges for drug crimes.

Chavez-Meza v. United States is yet another demonstration that the Supreme Court has utterly abandoned appellate review principles in its post-Booker sentencing cases. 

Posted by Carissa Byrne Hessick on June 19, 2018 at 11:48 AM in 2018 End of Term, Carissa Byrne Hessick, Criminal Law, Judicial Process | Permalink | Comments (1)

Monday, June 18, 2018

(SCOTUS Term): Deciding little, deciding few, and competing judicial functions

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

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

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

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

(SCOTUS Term): Behold the passive virtues

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

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

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

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

The analysis in Gill shows how inextricable standing is from the merits in constitutional litigation, especially seeking systemic mandatory injunctive relief. So inextricable that it confirms William Fletcher's view that standing is merits and lack of standing the failure of a claim. Gill shows this in two respects. First, it shows that the separation of injury and right makes no sense, because the injury depends on the right and the theory of right asserted. Second, the problem as to several plaintiffs was not the early allegations of injury but the failure to provide evidence at trial of that injury. But standing is supposed to be a jurisdictional threshold issue. If we are still arguing about it at trial, we are passed the threshold, so we should consider this as part of the substantive merits at trial.

The other point of note is the Chief's efforts to limit the prospective effect of Kagan's concurrence. On p. 17, he writes: "[T]he opinion of the Court rests on the understanding that we lack jurisdiction to decide this case, much less to draw speculative and advisory conclusions regarding others . . . The reasoning of this Court with respect to the disposition of this case is set forth in this opinion and none other."

 

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

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

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

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

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

Today’s first sentencing opinion is Chavez-Mesa v. United States.  In Chavez-Mesa, the Court determined whether a district court’s form order in a sentence reduction proceeding was sufficient to allow for meaningful appellate review of a defendant’s sentence.  The Court basically said that it was.  Importantly, the Court rejected the government’s suggestion that district courts have no obligation in sentence reduction proceedings to explain their chosen sentences, as they do in original sentencing proceedings.  Rather, the Court held that, assuming district courts have  the same obligation, the district court’s explanation on this record was sufficient to allow for meaningful appellate review.

The Court then said the following:

[T]he Guidelines ranges reflect to some degree what many, perhaps most, judges believed in the pre-Guidelines era was a proper sentence based upon the criminal behavior at issue and the characteristics of the offender.  Thus, a judge’s choice among points on a range will often simply reflect the judge’s belief that the chosen sentence is the “right” sentence (or as close as possible to the “right” sentence) based on various factors, including those found in §3553(a).

In other words, the mere fact that a defendant’s sentence is within the guidelines range suggests the district court considered the sentencing factors under section 3553(a).  That proposition makes within-Guideline sentences more difficult to challenge on appeal than outside-Guideline sentences.  It thus solidifies the role of the Guidelines in federal sentencing and also gives district courts an incentive to sentence within the guidelines range, since those sentences would be harder to disturb on appeal. It provides another procedural mechanism that will make defendants’ sentences “based on” the Sentencing Guidelines, which Beckles said they were not, thus undermining Beckles in the process. (The Court in Chavez-Mesa also pointed to the district court’s original explanation in the original sentencing proceeding, and the court’s statement that he had considered the pertinent factors in the sentencing reduction proceeding.)

Today’s second sentencing opinion is Rosales-Mireles v. United States.  In Rosales-Mireles, the Court rejected the Fifth Circuit’s standard that a defendant must demonstrate that an error “shock[s] the conscience” in order to establish that an error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” (A defendant must show that an error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,” in order to obtain relief under the “plain error” standard, which applies to errors on appeal the defendant did not previously raise.) Instead, the Court held that “A plain Guidelines error that affects a defendant’s substantial rights is precisely the type of error that ordinarily warrants relief under Rule 52(b).”

Why is a “plain Guidelines error … precisely the type of error that ordinarily warrants relief under Rule 52(b)”? The Court said it is because “an error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence that is more than ‘necessary’ to fulfill the purposes of incarceration.” In plain English: Guidelines ranges affect defendant’s sentences, and an error in the length of a sentence affects the fairness of judicial proceedings.  Here too, the Court is underscoring that Guidelines shape, if not dictate, defendant’s sentences, further undermining Beckles in the process. 

The dissent underscores that tension even further. The dissent would have held that an error in a defendant’s guidelines range does not affect the fairness or integrity of the judicial proceedings because the guidelines do not control defendants’ sentences.   To support that proposition, the dissent said this:

But the Guidelines are not “law.” They neither “define criminal offenses” nor “fix the permissible sentences for criminal offenses.”  Beckles v. United States.

(The author of the dissent was also the author in Beckles.)

The whiplash in the Court’s federal sentencing cases is wild.  You have Peugh v. United States, which held that the Guidelines are subject to the Ex Post Facto Clause because they have such substantial force over a defendant’s sentence.  Then you have Molina-Martinez v. United States, which held that a Guidelines error will almost always affect a defendant’s substantial rights, again because the Guidelines have such substantial force over a defendant’s sentence.  Then you have Beckles v. United States, which held that Guidelines are not amenable to vagueness challenges because they do not really establish defendants’ sentences. And today you have Chavez-Mesa, which made it more likely that the Guidelines would substantially affect defendant’s sentences, and Rosales-Mireles, which recognized that they already do.

One of these things is not like the others. That thing is Beckles v. United States.  A purely advisory Sentencing Guidelines system might very well not be subject to vagueness challenges.  But that’s not the Sentencing Guidelines system that we have, as the Court reminded us today (and reminds us most days).

Cross-posted at Take Care.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

Saturday, June 16, 2018

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

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

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

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

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

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

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

The academic experience at Chase extends beyond the classroom and provides Chase students with the tools they need to be successful members of the bar.  Students have the opportunity for hands-on learning experiences in Chase’s clinics and numerous externship programs.  These placements provide students with first-hand, practical understanding of the law by trying real cases and working alongside local practitioners.  The knowledge and experience they gain supplements lessons learned from the casebook and the classroom.  Chase is optimally poised to build upon these offerings and thus to position itself and its graduates for the changing legal and business environment.

To lead Chase to a new and exciting future, its Dean must be an outstanding and inspiring leader of people and programs.  She or he will possess a J.D. degree and must demonstrate achievements in legal teaching and scholarship, or in legal practice and leadership commensurate with appointment as a professor in the College of Law.  Above all, he or she must express and uphold the strongest belief in academic values and the finest tradition of legal education, including a collaborative approach to leadership, a transparent and accessible personal style, and unquestioned personal and professional ethics.

The Dean must possess outstanding communications and relationship-building skills.  Previous experience as a successful fundraiser will be a decided advantage, as the Dean will provide leadership in developing financial support for the College of Law in order to ameliorate budgetary challenges.  The Dean will work with the faculty of the College of Law and the administration of the University to develop a plan to attract well-credentialed students from a shrinking applicant pool and to increase the bar passage success of recent graduates from the College of Law.  The College of Law is committed to increasing the diversity of the campus community and the curriculum.  Candidates who can contribute to these goals are encouraged to apply and to identify their strengths and experiences in this area.      

Chase’s new Dean will join the institution at a time of great opportunity for change and growth.  The University has a new President committed to student success and community engagement.  Chase’s new Dean will have the opportunity to make a significant impact on this historic institution.

Review of applications will begin July 1, 2018, and recruitment will continue until the position is filled.  Confidential nominations and expressions of interest can be submitted to Professor Jack B. Harrison at [email protected].  Applications (including a cover letter and C.V.) should be submitted at http://jobs.nku.edu/postings/6884.  For best consideration, applications and nominations should be provided by August 15, 2018.

Confidential inquiries and questions concerning this search may be directed to Professor Jack B. Harrison.

It is Northern Kentucky University’s policy to ensure equal employment opportunity for all persons and to take the necessary actions needed to recruit, employ, train, promote, and retain qualified faculty and staff, including members of protected groups.  Discrimination against any individual based upon protected status, which is defined as age, color, disability, gender, national origin, race, religion, sexual orientation, or genetic or veteran status, is prohibited. 

Any candidate offered this position will be required to complete a thorough pre-employment criminal background check as mandated by state law.

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

Friday, June 15, 2018

JOTWELL: Singer on Rosen on Taft

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

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

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

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

Image result for lifetime disadvantage discrimination and the gendered workforce

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

Thursday, June 14, 2018

Legal ethics in Hulk Hogan v. Gawker

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

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

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

Colorado Law Review-Exclusive Submission

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

This exclusive submission track will remain open from Monday, July 9 to Sunday, July 15, 2018. All pieces submitted will then be reviewed by the Colorado Law Review’s complete article selection committee and publication decisions will be issued by Sunday, July 22, 2018.

In exchange for this expedited full board review, authors agree to withhold their work from submission to competing publications until decisions are released.  Additionally, authors agree to accept a binding publication offer if an offer is extended. All articles selected for publication will be published in the spring of 2019.

For consideration, please send all submissions in PDF format, including manuscript, CV, and cover letter, to Marisa Hazell, Executive Editor of the Colorado Law Review, at [email protected]. If you have already submitted your manuscript via Scholastica, we ask that you please resubmit your materials to the above email address before the July 15 deadline.

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

SCOTUS Term: Figuring Out Foreign Law

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

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

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

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

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

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

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

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

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

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

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

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

(SCOTUS Term): Barnette at 75

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

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

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

Monday, June 11, 2018

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

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

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

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

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

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

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

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

For example, let’s say Justice Sotomayor believed that the “narrowest opinion” is the one proffered by the largest number of Justices concurring in the judgment.  Then, if Justice Sotomayor’s holding about the meaning of Marks is considered the narrowest opinion, her holding is not considered the narrowest opinion – and we would look to how the 4 reasoned through Marks.  Further, if Justices Kagan, Breyer, Ginsburg, and the Chief wrote the plurality holding that the Marks narrowest opinion is the one that commands the most Justices of the Court, including dissents, that reasoning could lead to not accepting their rationale, if one initially accepts their rationale.  It’s just Marks all the way down.

In writing this blog, I pondered whether we should continue to spend much time ruminating on these excellent conceptual legal puzzles, in an era where asylum seekers are being separated from their families, school shootings dominate the news, and the real, practical stakes of our political strife are significant and pressing.  I continue to believe that rule of law requires formal, abstract thinking about cases, divorced from the result.  These sort of puzzles remind us to keep reasoning markedly distinct from result, and they help hone our analytical skills so we can develop a coherent body of law that enhances legal legitimacy.  I’d be interested to hear other thoughts on this issue.

(Cross posted at In a Crowded Theater.)

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

Two thoughts on the recall of Judge Persky

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

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

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

Posted by Howard Wasserman on June 11, 2018 at 12:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Friday, June 08, 2018

Ali/Trump

Before leaving for Canada, the President made statements at the White House that he is "very seriously" thinking about issuing a pardon for Muhammad Ali and that protesting NFL players should let him know about "people that they think were unfairly treated by the justice system" or of "friends of theirs or people they know about." I know this was Trump speaking off the cuff, which is not something he is good at (at least if we are looking for things that make sense). And it is on a silly subject, compared with other behavior by him and his administration. But there is a lot here that illustrates how the President understands (or misunderstands) the world, politics, the Constitution, his power, and law.

• Ali's conviction for refusing induction was reversed on appeal, the United States never reprosecuted him, and DOJ conceded that Ali's objections to induction were religiously based and that his beliefs were sincerely held. As Ali's lawyer stated in response to the President's offer, there is nothing for which Ali must be pardoned, as he has no existing conviction and is not under threat of future prosecution for his past actions. Is Trump aware of that?

• In Trump's world, someone who declines to engage in a patriotic ritual derogates and insults the military and should be deported; someone who refuses to join the military and fight in time of war does not, such that a conviction for disregarding his legal obligation to fight reflects an unfair sentence warranting a pardon. Such disparate understanding of symbolic patriotism compared with fighting for the cause is striking and incoherent. But it is consistent with the NFL's symbolic patriotism. And it is consistent with the President's symbolic patriotism, as he similarly went out of his way to avoid service in Vietnam, without having to justify his reasons for not going or losing four years of his career to his efforts.

• All politics is personal. The NFL players must be speaking out about injustices done to their friends or specific people they know and want to help, just as the President uses the pardon power to help his friends or individuals he knows and wants to help. He does not conceive of systemic problems that affect thousands of people, who need help not by the individual remedy of a pardon but by systemic reform. Nor does he appear to understand why players would protest for a cause disconnected to individuals that they know and care about.

• The players are protesting systemic racism, violence, and differential treatment in the criminal-justice system This includes police killing unarmed or non-threatening persons of color with impunity. How does a pardon affect that? Walter Scott is dead, so a pardon does not do him much good. Of course, one of the President's pardons was granted to Joe Arpaio, who was convicted of contempt of court for refusing court orders to stop discriminating and using unjustified violence in his role as a police officer.This President is more likely to pardon Michael Slager, the officer who shot and killed Scott and is serving a federal prison sentence on a civil rights charge.

• Most law enforcement, and so most of what the players are protesting, involves state and local police and the state criminal-justice system. The President can pardon federal crimes, not state crimes. So even if Colin Kaepernick had ten friends wrongfully convicted, Trump could not do a thing about it. So this is demagoguery--an empty and impossible gesture, used to fool the unaware into siding with him against a group and message to which he is opposed. Or the President is unaware of the limits of his pardon power.

Posted by Howard Wasserman on June 8, 2018 at 04:05 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (15)

Thursday, June 07, 2018

Active Job Searches at Temple

Temple University Beasley School of Law is seeking to fill two faculty positions beginning in fall 2019. The first is in constitutional law.  For this position, we are particularly seeking an established, tenured expert in the field.  The Clifford Scott Green Chair may be available in respect of this hire.  The second is an entry-level or junior lateral position in criminal law and criminal procedure. Potential candidates for either position may contact Jane Baron at [email protected]. Temple University is an equal opportunity/affirmative action employer, and we strongly encourage veterans, women, minorities, individuals with disabilities, LGBTQ individuals, and members of other groups that traditionally have been underrepresented in law teaching to apply.

Posted by Ethan Leib on June 7, 2018 at 04:53 PM | Permalink | Comments (0)

SCOTUS Term: Slightly Belated Reactions to Masterpiece Cakeshop

I was on the road when Masterpiece Cakeshop came down on Monday and had time for a Twitter reaction but not for a blog post. Suffice it to say, I wasn’t impressed. Even by the Court’s own standards in high profile, culture war cases, the result and reasoning seemed slapped together and unconvincing. There has been a ton of excellent commentary pointing out why—including Howard's insta-reaction and Rick's post at this site—but one of the advantages of waiting a few days is that you need not cover everything but simply get to fill in the gaps. So, here are three angles I don’t think are getting enough attention:

  1. The proper places for respectful consideration of religious scruples. There is no doubt that the recurrent fact pattern at the heart of the case involves a conflict of constitutional values and that our constitutional culture cannot resolve these disputes without weighing the cost to religious conscience of denying religious exemptions to civil rights laws (and other laws of general applicability) against the constitutional obligations to pursue civic equality and govern even-handedly. What strikes me as strange is the opinion’s assumption that such weighing should take place in individual civil rights enforcement actions.  Maybe the Court’s opinion is, at Howard suggests, simply a “happy talk” requirement, but to the extent that it requires something more substantive, I think it is making a category mistake. Our existing jurisprudence envisions two places where that kind of weighing should take place. The first, as Howard points out, is at the level of constitutional doctrine. In cases both specific to civil rights (for example, the famed Piggie Park litigation) and more general (notably Employment Division v. Smith), the courts have already undertaken that balancing and determined that the Constitution does not require states provide such exemptions. However, nothing prevents states from according them either, which brings us to the second place in which respectful consideration of religious scruples ought to take place, the legislative chamber.  The federal government and many states have disagreed with Justice Scalia’s balancing in Smith and provided statutory rights to religious exemptions that go beyond what the Constitution requires. While many on both sides object to the scope of particular state laws, few would argue that there has not been true democratic engagement on these questions.  In the context of that debate and the institutional design decision made in Smith, Colorado’s decision to broadly protect civic equality without according an individualized assessment of the baker’s religious scruples should have resolved the case. To allow state regulators to deny an exemption but only if they provide a sympathetic hearing and words of apology is not only a silly rule but also one that misunderstands what respectful consideration of religious scruples would actually look like.
  2. The content of the Commissioners’ comments. On a related point, I think that the emergent consensus that the Commissioners’ comments about religion were, at a minimum, intemperate and disrespectful is a bit too convenient and fails to acknowledge the serious substantive point they were (inartfully) attempting to articulate.  When participants in the debate about religious exemptions reference religious support for slavery or the Holocaust, they are not making ad hominem attacks on religious belief but are instead pointing out the historical and anthropological truth that religious belief is a species of culture that often adapts to, borrows from, and incorporates other prevailing social attitudes. Not all religions or religious believers supported those outrages, but some did, and those that did often incorporated their support into their theological world view.  The likelihood that some religious groups will endorse any sufficiently popular set of cultural arrangements or social attitudes is one of the most potent arguments against allowing religious exemptions for all laws of general applicability, as legislators must remain free at minimum to identify certain nominally religious practices as sufficiently violative of human dignity to be outside the bounds of acceptable conduct. It is because outrages are sometimes perpetrated in the name of religion that we don’t let a sincere claim of religious conviction be a trump card but instead engage in complicated line-drawing to determine whether particular legal obligations ought be imposed even on those with religious objections. Given the substance of the argument, references to slavery and the Holocaust are especially pertinent examples, not cheap shots that evince hostility to religion.
  3. Justice Breyer’s legacy. Masterpiece Cakeshop now joins Bush v. Gore and the Affordable Care Act cases as the third major culture war case in which Justice Breyer voted with (and likely facilitated) a seven-Justice consensus reaching a politically conservative result on a hotly contested issue for which his prior record suggested little sympathy. Perhaps these are votes of true conviction, but in my heart of hearts I remain skeptical that he would have provided a fifth vote to find an equal protection violation in Bush v. Gore, a Spending Clause violation in the ACA cases, or a Free Exercise violation in this case.  If my speculation is correct, I find it absolutely fascinating that Justice Breyer has willingly made these votes such a central part of his legacy. (And, let's be clear, we are talking about first paragraph of the obituary stuff here.)  A lot of the commentary speculates about the strategic aspect of his (and Justice Kagan’s) decision to join the opinion and that is likely an aspect of his decision making.  To that, I would add that Justice Breyer has always articulated a longterm perspective on the institutional authority of the courts and the need to maintain public trust in the process that pushes him to look for middle ground and to avoid creating the appearance of political schisms, particularly in hot button or high profile cases.  Whether the reasons for his votes in these cases are strategic or institutional, and whether his reasoning is intentional or inchoate, his behavior in these cases raises fascinating questions about the role of the appellate judge and proper decision making procedures on a multi-member court that have now become a central part of his legacy. 

Posted by Andrew Siegel on June 7, 2018 at 01:01 PM in 2018 End of Term, Article Spotlight, Constitutional thoughts | Permalink | Comments (6)

Wednesday, June 06, 2018

Clifford v. Davidson & Cohen

Stephanie Clifford (a/k/a Stormy Daniels) has filed a breach of fiduciary duty action against her former attorney, Keith Davidson. Michael Cohen and Does 1-10 are also defendants. The complaint is available here, with text messages between Davidson and Cohen attached as an appendix. Actions similar to those alleged here have led to disbarment in other other cases--if these allegations can be substantiated, I wouldn't be surprised to see a subsequent disciplinary action. According to Davidson's spokesperson, however, "Attorney Davidson is very happy that he has filed this lawsuit because he strongly believes that the filing constitutes a full and complete waiver of the attorney-client privilege." Even if the complaint waived privilege to some degree, however, Davidson might want to hold on there. It's not entirely clear that waiving privilege would also waive the attorney's duty of confidentiality--certainly, under the Model Rules, it would not. California law is less clear, but even there authorities have held that attorneys' revelation of confidential information "must be narrowly tailored to respond only to the specific issues raised by the client." 

Posted by Cassandra Burke Robertson on June 6, 2018 at 05:30 PM | Permalink | Comments (4)