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Thursday, June 21, 2018

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 (0)

(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 (2)

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 (0)

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 harrisonj4@nku.edu.  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 executiveeditorcu@gmail.com. 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 (6)

Friday, June 08, 2018


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 lawfsc@temple.edu. 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)

SCOTUS Term: Hughes v. United States and Federal Sentencing

On June 4, the Supreme Court handed down its decision in Hughes v. United States.  Many law professors were watching Hughes because it promised to revisit the rule from Marks v. United States about how lower courts ought to treat fractured decisions from the Court.  Even though Hughes proved to be a disappointment to those who are interested in Marks and fractured opinions, it is still interesting for those of us who follow federal sentencing.  That is because Hughes marks another episode in the continuing saga about how to treat the Federal Sentencing Guidelines.

As many of you know, Congress adopted the Federal Sentencing Guidelines in the mid-1980s in an effort to make sentencing more uniform and less lenient.  Although called “guidelines,” the Federal Sentencing Guidelines imposed mandatory rules on federal judges about the sentences that they could imposed based on various facts involving particular defendants and their crimes.  This mandatory system endured for decades until 2005, when the Court decided in Booker v. United States that the factfinding in the Federal Sentencing Guidelines violated the Sixth Amendment jury trial right.  Although Booker concluded that the mandatory federal guidelines violated the Sixth Amendment, five members of the Court attempted to retain some role for Guidelines by declaring that they could continue to operate as “advisory Guidelines.”  In the decade since Booker, the Supreme Court has failed to articulate clearly what it means for sentencing law to be “advisory.”  Instead, it has delivered a series of opinions that alternatively venerate the Guidelines as fundamental features of every federal sentencing proceeding, and insist that the Guidelines are nothing more than advice that district courts are free to disregard.

For example, in Peugh v. United States the government had argued that the prohibition on ex post facto laws ought not apply to the advisory federal guidelines.  According to the government, after Booker, federal guidelines “are just one among many persuasive sources a sentencing court can consult, no different from a ‘policy paper.’”  But the Peugh Court rejected this characterization of the guidelines.  It characterized the Guidelines as “framework for sentencing,” and it said that the post-Booker system is “intended to make the Guidelines the lodestone of sentencing” by “impos[ing] a series of requirements on sentencing courts that cabin the exercise of [their sentencing] discretion.”

The Court made a series of pro-Guidelines statements in Molina-Martinez v. United States as well. Specifically it suggested that trial judges need not make an independent judgment about the appropriate sentence, but rather may impose Guideline sentences without reflection.  "District courts, as a matter of course, use the Guidelines range to instruct them regarding the appropriate balance of the relevant federal sentencing factors."  This language seems inconsistent with a 2009 case, Nelson v. United States, the Supreme Court held that a district court may not presume that a Guidelines sentence is reasonable, but instead court must engage in their own independent balancing of the § 3553(a) factors. 

While Peugh and Molina-Martinez suggest that the Federal Sentencing Guidelines are more than merely “advice,” last Term, the Court suggested the opposite.  In Beckles v. United States, the Court addressed whether the post-Booker Guidelines are subject to challenge under the void-for-vagueness doctrine.  In an opinion by Justice Thomas, the Court said they were not, in part because:

The Guidelines thus continue to guide district courts in exercising their discretion by serving as “the framework for sentencing,” Peugh v. United States, 569 U.S. ––––, ––––, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013), but they “do not constrain th[at] discretion,” id., at ––––, 133 S.Ct., at 2089 (THOMAS, J., dissenting).

Because they merely guide the district courts' discretion, the Guidelines are not amenable to a vagueness challenge.

(You’ll note that Justice Thomas had to rely from language in one of his own dissents for the idea that the “advisory” Guidelines don’t constrain judges’ sentencing discretion.)

I had been waiting to see whether the Court would take that language from Beckles seriously.  Hughes answers that question.  This is Justice Kennedy’s majority opinion in Hughes:

[T]his Court's precedents since Freeman have further confirmed that the Guidelines remain the foundation of federal sentencing decisions. In Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), for example, the Court held that the Ex Post Facto Clause prohibits retroactive application of amended Guidelines that increase a defendant's sentencing range. Id., at 544, 133 S.Ct. 2072. The Court reasoned that, Booker notwithstanding, the Guidelines remain “the lodestone of sentencing.” 569 U.S., at 544, 133 S.Ct. 2072. And in Molina–Martinez, the Court held that in the ordinary case a defendant suffers prejudice from a Guidelines error because of “the systemic function of the selected Guidelines range.” 578 U.S., at ––––, 136 S.Ct., at 1346.

Not only did Hughes ignore the inconsistency between Peugh/Molina-Martinez and Beckles, it ignored Beckles altogether.  Beckles isn’t mentioned at all in the majority opinion.

One irony of the opinion in Hughes is that it said the decision was necessary to resolve a split in the circuits.  Because the Guidelines exist in order to promote uniformity, the Court did not want inconsistent circuit court decisions to result in non-uniform treatment of defendants who had pleaded guilty.  But the retreat to Peugh/Molina-Martinez and refusal to acknowledge Beckles are symptoms of a bigger problem that has caused far more sentencing inconsistency across the country.  By failing to explain what “advisory” Guidelines actually are, and by making inconsistent statements about the role of the Guidelines at sentencing, the Court has left sentencing law ambiguous.  As a result, there are some circuits that routinely affirm sentences outside the Guidelines, and others that police them closely.  It is ironic that the Court wants to keep some role for the Federal Sentencing Guidelines in order to promote sentencing uniformity, but in failing to explain what that role is, the Court has created pervasive inconsistencies in sentencing law across the country.

Posted by Carissa Byrne Hessick on June 6, 2018 at 04:00 PM in 2018 End of Term, Carissa Byrne Hessick, Criminal Law | Permalink | Comments (1)

Richard Epstein's Mistakes

Richard Epstein has an op-ed in the Wall Street Journal calling the fiduciary view of Article II "outlandish" and "absurd."  This view was most recently endorsed by a law professor letter here

Unfortunately, Epstein makes two pretty basic mistakes in the column.  First, the command that the President "take Care that the Laws be faithfully executed" should be read to cover the President's powers under the Constitution, which is, rather obviously, part of the Law.  Think about Article VI: "This Constitution . . . shall be the supreme Law of the Land."  So when the President is "faithfully executing," he has got to be faithful to the Constitution as Law. 

But even more basically still, the President's Oath of Office in Article II commands that the President "faithfully execute the Office of President of the United States."  That means that whatever powers come with the office themselves must be "faithfully executed."  Epstein can contest the fiduciary view about what "faithful execution" means -- but he cannot contest that the President's pardon power must itself be "faithfully executed."

The idea that it is too much to ask of a President that he act with reasonable care and in the public interest when he pardons is really the outlandish claim here.

Posted by Ethan Leib on June 6, 2018 at 03:00 PM | Permalink | Comments (0)

SCOTUS Term: Jennings v. Rodriguez, Immigration Sins Of the Past, And The Forced Separation Of Families

This post is part of a series on the Trump administration's policy of separating families at the border.  You can read prior posts in the series here and here.

I’ve written several times about the administration’s policy of separating children from families. In this post, I want to highlight some connections between the administration’s policy of separating children from families and another policy this administration (and the previous one) defended—the indefinite detention, without individualized bond hearings, of persons detained for immigration purposes.

In Jennings v. Rodriguez, the Supreme Court held that immigration statutes did not provide for individualized bond hearings for persons who are detained for immigration reasons for longer than six months. The Court did not, however, address whether the statutes, by allowing indefinite detentions with no individualized bond hearings, are consistent with the due process clause. Although the Supreme Court requested briefing on that question and set the case for re-argument, it ultimately opted not to address it.

Part of the government’s argument in Rodriguez for why the statutes do not offend due process was that some of the persons who are detained (specifically, asylum seekers apprehended at the border) have no due process rights at all. At oral argument in Rodriguez, Justice Kagan highlighted some of the problems with this position:

JUSTICE KAGAN: Mr. Stewart, is – is your argument about the new admits, the people who are coming to the border, premised on the idea that they simply have no constitutional rights at all?

MR. STEWART: It is premised on that….

JUSTICE KAGAN: Okay. If it is premised on that, I mean, Justice Scalia in one of his opinions talked about, surely, that -­that can't be right; could we torture those people, could we put those people into forced labor? Surely, the answer to that is no. Is that right?

MR. STEWART: Yeah, I should have been more precise in saying they have no constitutional rights with respect to the determination whether they will be allowed to enter the country.

JUSTICE KAGAN: Okay. So -- but they do have some constitutional rights, not to be tortured, not to be placed in hard labor...

In other words, if individuals who are apprehended at the border have no due process rights at all, then the government could apparently subject the individuals to medical experimentation, among other things. The rejoinder to that line of argument has occasionally been that there is no reason to fear that would occur; the government would never be so cruel. The fact that the administration is purposefully separating children from their families—families who are fleeing persecution and violence—without any apparent plan for their reunification should make us hesitant to dismiss the possibility of government cruelty so lightly.

Even beyond that concern, however, the government’s position in Rodriguez shares some other things in common with its policy of separating families: In Rodriguez, the government is arguing that persons apprehended at the border are not “persons” for purposes of the due process clause. And with respect to family separation, the government is arguably treating them that way, potentially in violation of international law—acting as if persons apprehended at the border are not people who are entitled to decide, for themselves, whether family detention would be better for their families.

Another point of overlap is the propriety of litigating certain claims as class actions. Rodriguez, for some reason, went out of its way to include in dicta the suggestion that the challenges to the administration’s detention policies should not be litigated as a class action. As commentators notedRodriguez’s language was quite broad, and in tension with other cases in which the Court has permitted class-wide litigation. The government is (unsurprisingly) seizing on the language from Rodriguez in opposing class certification in Ms. L.

Another potential point of overlap is that DOJ is relying on Rodriguez to justify not only its authority to detain children and their families as it sees fit, but also to argue that courts cannot even review questions related to the AG’s detention decisions. From DOJ’s opposition to the plaintiffs’ motion for a permanent injunction in Ms. L:

“The Supreme Court recently explained that there is no judicial review of ICE’s custody decisions regarding arriving aliens: ‘As we have previously explained, 1226(e) precludes an alien from ‘challenging a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.’”

The Supreme Court decision that DOJ is referring to is Rodriguez. Of course, Rodriguez ultimately concluded the plaintiffs’ challenges were reviewable. Rodriguez’s statement also concerned the AG’s authority to detain persons apprehended at the border, not challenges to the conditions in which persons are detained. It is one thing to say the pertinent statutes prohibit challenges to the AG’s decision about whether to detain an individual; it is another to say they prohibit challenges to the AG’s decision to detain someone without food or water, for example. Even the two Justices who would have held that “no court has jurisdiction” to review whether the pertinent statutes allow for indefinite detentions without bond hearings carved out an exception for claims pertaining to the conditions of detention. From Justice Thomas’s concurrence (joined by Justice Gorsuch):

The plurality dismisses my “expansive interpretation” because it would lead to “staggering results,” supposedly barring claims that are far afield from removal. See ante, at 9 (describing lawsuits challenging inhumane conditions of confinement, assaults, and negligent driving). But that is not the case. Unlike detention during removal proceedings, those actions are neither congressionally authorized nor meant to ensure that an alien can be removed. Thus, my conclusion that §1252(b)(9) covers an alien’s challenge to the fact of his detention (an action taken in pursuit of the lawful objective of removal) says nothing about whether it also covers claims about inhumane treatment, assaults, or negligently inflicted injuries suffered during detention (actions that go beyond the Government’s lawful pursuit of its removal objective). Cf. Bell v. Wolfish, 441 U. S. 520, 536–539 (1979) (drawing a similar distinction).


The overlap between Rodriguez and the administration’s forced separation of children is striking. But it also underscores two important points—one is how prior administrations, in arguing for expansive authority over immigration and immigration detentions, created environments that were ripe for abuse, and have enabled some of this administration’s abuses. Take Rodriguez, which sought to impose bond hearings for immigration-detentions that lasted more than six months. (Many detentions during the Obama administration lasted that long, with some lasting several years.) As I wrote last spring, the Trump administration, under then-DHS Secretary John Kelly, promulgated several executive orders announcing its intention to detain many more people for immigration-related reasons. And, in doing so, it was going to prolong detentions even further:

[T]he Trump administration’s policies will cause even more delays and more backlog as ICE seeks to both remove more persons, and detain more persons who are removable or inadmissible.  As ICE attempts to effectuate these policies, the number of cases pending before immigration courts will rise.  So too will the length of detentions.

Rodriguez will address whether the deficiencies in the current system require the government to offer bond hearings every six months to justify prolonged immigration-related detentions. Trump’s executive orders make that question, and the Court’s resolution of it, even more significant.  

One implication of the Trump administration’s policies was gutting many of the existing protections that immigration law affords. As Britany Riley and I noted:

The administration’s position on the “solution” to lengthy immigration detentions—go home— offers another way to think about the separation of powers issues in the case. Their position illustrates how the structure of immigration law allows an aggressive executive branch to render meaningless the few protections that immigration law affords, simply by overwhelming the immigration system and making it too painful and difficult for noncitizens to avail themselves of the protections contained in immigration law.

The other point that Rodriguez drives home is that courts, and the Supreme Court in particular, have played a part in enabling an abusive and excessive immigration system. Courts signed off on gross expanses of power, even when there were indications that that power was being abused, or at least that there were risks that the power would be abused. The government has long said to courts, in the immigration context, “trust us; it won’t be that bad.” The Obama administration initially argued Rodriguez, and its position was that indefinite detentions of persons for immigration-related reasons are consistent with both statutes and the Constitution. Their argument, like so many arguments of prior administration, have traded on the implicit promise that they would exercise their powers responsibly and humanely, which laid the groundwork for those powers to be abused by administrations without those qualities. If the Trump administration accomplishes one thing, it should be that courts take more seriously the possibility that deferring to the executive branch on immigration, or expanding the executive branch’s power over immigration without sufficient checks, will lead to worst case scenarios. It arguably already has.

Cross-posted at Take Care.

Posted by Leah Litman on June 6, 2018 at 09:52 AM in 2018 End of Term | Permalink | Comments (2)

The White House defines free speech

When asked how President Trump reconciled his belief that a baker has a free-speech right not to sell a cake for a same-sex wedding with his insistence that there is no free-speech right to kneel (or just stay in a different location), Sarah Huckabee Sanders said: "The president doesn’t think this is an issue simply of free speech. He thinks it’s about respecting the men and women of our military; it’s about respecting our national anthem.”

Someone opposed to the position of the baker in Masterpiece could say something similar: "It isn't simply an issue of the baker's free speech. It's about respecting same-sex couples who wish to get married and to shop in the marketplace on the same terms as everyone else; it's about respecting equality." Sanders, on behalf of the President, is really saying there is no such thing as free speech. Speech should be stopped when the President agrees with the message being criticized (the flag and the power of police to use whatever force they deem necessary), while speech should be allowed when the President disagrees with the message being criticized (equal rights for same-sex couples).

That one's position on free speech depends on what is on the other side is not surprising; many people approach the First Amendment this way. It is disturbing when it becomes the official position of the White House, as opposed to the position of a bunch of college students.

Next Thursday, June 14, marks the 75th anniversary of West Virginia Bd. v. Barnette. It is ironic and troubling that the principle that a person cannot be compelled to utter patriotic tropes or engage in patriotic rituals is again up for grabs, as the rhetoric around this heats up and makes this into a significant free-speech controversy.

Posted by Howard Wasserman on June 6, 2018 at 08:11 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (8)

Tuesday, June 05, 2018

Another voice against replay

I could not make this argument better than Will Leitch does at New York Mag. I only would add that the failure of replay in sports to produce Objective Truth reflects the general failure of all video (say, from body cameras) to produce Objective Truth for all things.

Posted by Howard Wasserman on June 5, 2018 at 11:00 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

SCOTUS Term: (When) Should Lower Courts Try to Predict Supreme Court Rulings?

Towards the end of his post this morning, Richard brings up an interesting  issue that arose during arguments in Hughes v. United States, which is the extent to which lower courts ought to follow "the 'predictive model' of precedent, whereby lower courts strive to predict the decisions of their judicial superiors." As Richard notes, Chief Justice Roberts forcefully asserted this model, which "was eyebrow-raising at the time" given the Supreme Court's own statements. And I think enlightened opinion has generally suggested that there is something problematic about substituting "what the Supreme Court will do" for lower courts' duty to apply the law as it stands.

Still, it seems to me that we need to think more carefully about what the "predictive model" actually is and whether we might be able to refine it into something that makes sense. I can think of at least four different propositions that the model might entail:

  1. Lower courts should be free to engage in "anticipatory overruling" of Supreme Court decisions. The Court itself has been most forceful about rejecting this point, saying that: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." And even if that precedent rests on "increasingly wobbly, motheaten foundations ... it is this Court's prerogative alone to overrule one of its precedents."
  2. Lower courts should apply Supreme Court precedent differently just because the Court's personnel has changed. For instance, the day that Justice Alito assumed Justice O'Connor's seat, one could look at a law professor's list of 5-4 decisions that seemed likely to be overturned; even if one does not accept (1) above, one could imagine lower-court judges approaching decisions in those areas (abortion, campaign finance, affirmative action, the Establishment Clause, and the Fourteenth Amendment enforcement power) with a new thumb on the scale.
  3. Lower courts should apply Supreme Court precedent differently (or not at all) in cases where no Supreme Court review is possible. This may frequently be more hypothetical than real, but is a frequent ingredient in debates about limiting federal jurisdiction. A frequent assumption of those who wanted to restrict the Supreme Court's review over certain issues or courts is that freed of Supreme Court review, the tribunal would be freed of the obligation to follow Supreme Court precedent as well. There is at least some historical support for this view.
  4. Lower courts should try to follow the general drift of an area of law, not only the specific holdings and dicta of Supreme Court opinions. For instance, in qualified immunity, or AEDPA habeas review, or arbitration, the Court takes a string of cases, generally to reverse the lower courts, and generally in the same direction. Sometimes these reversals are summary, and sometimes the Court remands other cases on the same topic for review in light of the most recent reversal. Perhaps at some point lower courts are supposed to get the message.

Referring to the "predictive model" generally suggests that these four things should all travel together. But that is not so clear to me. For instance, the Court's explicit rejection of (1) does not necessarily entail a rejection of (2)-(4). For my own part, I strongly favor (1), generally favor (3), and am more open to (4) than to (2).

Another possible refinement is to imagine a "predictive model" that might sit alongside another more fundamental theory of lower court decision. For instance, a predictivist might plausibly argue that a lower court judge really has two legal duties. First, to get the law right as a matter of first principles (meaning to rule in the way that would be correct absent any precedents that misstate the law); and second, to avoid wasting the litigants' time and money with decisions that will likely be reversed. Under this theory, prediction might be a constraint on a theory of independent judgment, rather than a source of law itself. It might also suggest that in cases where predictions are the most unclear, judges should focus on the underlying principles of law rather than trying to read tea leaves. On that view, Hughes may not have been a good case to use the predictive model, but that doesn't necessarily mean there's no good case for it.

[Cross-posted, with modifications, from the Volokh Conspiracy.]

Posted by Will Baude on June 5, 2018 at 03:57 PM in 2018 End of Term | Permalink | Comments (7)

Law Professor Letter to Flood and McGahn

Several law professors from across the political spectrum jointly drafted a letter to Flood and McGahn in an effort to illuminate some dimensions of Article II that do not comport with the more aggressive assertions about executive authority the current administration has made and continues to make.  A copy of that letter is here.  Some of the intellectual foundations for the letter can be found in a forthcoming paper I drafted with Jed Shugerman here.

Posted by Ethan Leib on June 5, 2018 at 11:06 AM | Permalink | Comments (0)

The Marks Rule’s Fate After Hughes 

Hughes v. United States is out, and it’s a disappointment for those of us following the law of fragmented decisions. Though the Hughes oral argument featured by far the Court’s most thorough discussion of the Marks rule, the justices ultimately chose not to address the precedential significance of 4-1-4 decisions like Freeman v. United States. Instead, the Court revisited the merits and set a new majority rule, much as the Court has done in some past decisions that posed Marks questions. Interestingly, however, the Court’s ruling still managed to undermine one of the main defenses of the Marks rule.

Regular readers know that I oppose the Marks rule, as explained in a forthcoming article and an amicus brief in Hughes. And there were several reasons to think that, if the Court was ever going to address the Marks rule’s problems, this case would be the time to do so. The parties and amici had identified numerous circuit splits on how to apply the rule. The Court had granted review on not one but two Marks questions. And the US Solicitor General had specifically requested that the Court issue a Marks ruling to end the confusion. Yet the Court said not a word to alleviate the problem. 

Oddly, the Court did not explain why it was free to avoid deciding the Marks question, even though a Marks holding in Freeman would arguably have bound the justices. In past cases, however, the Court had set Marks aside in part because its application had badly divided lower courts, and that factor was present in Hughes as well. The decision to take a hard pass on Marks probably also resulted in part from a combination of end-of-term time pressure and an inability to form a majority on just what to do with Marks. Needless to say, it would have been awkward if the Court had issued a fragmented decision on the meaning of fragmented decisions. 

Perhaps the justices plan to take some other corrective action now that they are so well aware of the confusion that the Marks rule is causing.

One option would be to seek out another, even better vehicle to provide clarity in this area. But, again, the Court has consistently declined to clarify the meaning of Marks, and lower courts have long been left to struggle and generate circuit splits. After Hughes, I am not optimistic that the justices will do better in the years ahead. As a result, the fate of the Marks rule could ultimately be worked out in the courts of appeals. Notably, some circuits, most particularly the DC Circuit and the Ninth Circuit, have already taken steps to narrow the Marks rule, gently ushering it off the stage. Hughes rewarded those courts. 

Another corrective option would be for the justices to work harder to avoid issuing fragmented decisions with unclear precedential implications. It will be interesting to see if we can glean evidence that the justices are taking action along those lines. For example, if Justice Sotomayor were again in the position of being the solo justice in a 4-1-4 decision, she might be more inclined to cast her lot with one side right away, rather than waiting several years for the Marks rule to generate a circuit split. In other words, Hughes might mean that we will see greater reliance on the “Screws rule” (discussed here) rather than the Marks rule.  

In the meantime, Hughes offers some new fodder for thinking about Marks. Perhaps most interestingly, Hughes is something of an embarrassment for one of the main defenses of Marks. Under that view, the Marks rule is desirable because it aligns with the “predictive model” of precedent, whereby lower courts strive to predict the decisions of their judicial superiors. At the Hughes oral argument, Chief Justice Roberts forcefully asserted this view: 

CHIEF JUSTICE ROBERTS:  The first question we posed was how to apply Marks in this situation, and I wonder if I'm a court of appeals judge, it seems to me the most important thing in deciding the case is to make sure that I'm not reversed.  And it seems to me the best way to do that is through the - whatever you want to call it, the walking through, sort of counting out what would happen if you count where the different votes are. And it seems to me if you take any other approach, you're -- you're subject to reversal because, by definition, a majority of the Court here would -- would reach a different result.  

The Chief’s attempt to defend the Marks rule was eyebrow-raising at the time, given the Court’s frequent efforts to discourage lower courts from engaging in predictions when construing Court precedent. But Hughes shows why the Chief’s predictive approach to Marks is problematic on its own terms.  

If a lower court had relied on Freeman to predict how the Court would rule, it would have concluded that a case like Hughes would come out in favor of the government by a vote of 5-4. But, in fact, the vote in Hughes was 6-3 in favor of the defendant. That’s because of two developments, each of which was independently sufficient to negate the predictive value of the Freeman opinions. First, Justice Sotomayor changed her vote from Freeman. Second, a Hughes justice (Gorsuch) voted differently from his predecessor in Freeman (Scalia). So even though the precedent at issue was only seven years old, its opinions turned out to offer a very poor basis for predicting how the justices would rule. 

In short, Hughes doesn’t decide the Marks rule’s fate, but it may play some part in contributing to the rule’s abandonment.

Posted by Richard M. Re on June 5, 2018 at 08:45 AM in 2018 End of Term | Permalink | Comments (6)

Another day, another NFL protest

Two new items for today. President Trump canceled the Philadelphia Eagles White House visit, amid reports that fewer than ten players were going to show. Nikolas Bowie (about to begin teaching at Harvard) argues at Slate that NFL rules banning player protests violate several state constitutions.

On the Eagles visit. I found it interesting that the press release said that the Eagles "disagree with their President" (emphasis mine) about anthem protests. I know it is folly to parse White Statements, but "their" hints to me of some Dear Leader stuff--I am your President and how dare you disagree with your President (whatever that disagreement may be). The team visit is being replaced with a rally at which the anthem (the words of which Trump almost certainly does not know) will be proudly played for the 1000 fans who planned to attend. The question is how many of those 1000 will still show if the team--the reason most of them wanted to attend--will not be there. Congressional Democrats invited the team to the Capitol, with promises of Wawa coffee.

The President later tweeted, in response to the new NFL protest policy that has not been implemented yet (and had nothing to do with the Eagles visit) that "[s]taying in the Locker Room for the playing of our National Anthem is as disrespectful to our country as kneeling." This supports my point that players wishing to protest can make a statement by staying off the field, if in sufficient numbers or with sufficient coverage. This also should drive home to the league and the teams that appeasement does not work and only makes them look worse. The league forced through a compromise that the players (and some owners) hated and that did not achieve the one thing they wanted to achieve, pacifying the President.

By the way, at SEALS on Thursday, August 9, I will be moderating a discussion group on the NFL protests.

Posted by Howard Wasserman on June 5, 2018 at 08:18 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1)

Monday, June 04, 2018

Book Recommendation: The Law of Good People

Hot off the press, Yuval Feldman's new book The Law of Good People: Challenging State's Ability to Regulate Human Behavior (Cambridge Press) landed on my desk. This is a must-read for anyone who is interested in behavioral law and economics, regulation, and compliance.

I am not objective: Yuval is my frequent co-author on a series of experimental and theoretical articles on incentives, decentralized enforcement, designing reporting systems, and law and psychology. But no need to only take my word for it: Yuval is an extremely prolific and original leader in the field and I join the praise of the book with others including Cass Sunstein who writes "A fascinating comprehensive exploration of the complexities of human motivation and of how to get good people to do really good things. Opens up new vistas in behavioral science and also in public policy." Robert Cooter says Yuval "provides a fresh perspective...his creativity and knowledge o law, economics and psychology will make readers rethink the incentive effects of laws and current theories of law and economics." Henry Smith calls the book "pioneering" and writes "This book is the first to introduce the large and heterogeneous body of work on behavioral ethics to the world of law and legal policy" and Jeff Rachlinsky calls it "exciting". This should definitely get on your summer reading list! Also a must-have for every law library. It was released this week and is the #1 release on Amazon in the business law category.

More about the book from the publisher:

Currently, the dominant enforcement paradigm is based on the idea that states deal with 'bad people' - or those pursuing their own self-interests - with laws that exact a price for misbehavior through sanctions and punishment. At the same time, by contrast, behavioral ethics posits that 'good people' are guided by cognitive processes and biases that enable them to bend the laws within the confines of their conscience. In this illuminating book, Yuval Feldman analyzes these paradigms and provides a broad theoretical and empirical comparison of traditional and non-traditional enforcement mechanisms to advance our understanding of how states can better deal with misdeeds committed by normative citizens blinded by cognitive biases regarding their own ethicality. By bridging the gap between new findings of behavioral ethics and traditional methods used to modify behavior, Feldman proposes a 'law of good people' that should be read by scholars and policymakers around the world.

Image result for yuval feldman the law of good people sunstein

Posted by Orly Lobel on June 4, 2018 at 08:44 PM | Permalink | Comments (0)

SCOTUS Term: Does Masterpiece Cakeshop’s Easy Inference of Hostile Intent Overturn Employment Division v Smith?

From a liberal’s perspective, Justice Kennedy’s Lukumi “hostility” theory in Masterpiece Cakeshop seems like the ideal opinion: It seems too narrowly fact-based to endanger anti-discrimination laws yet almost custom-tailored (or -baked?) to undermine President Trump’s travel ban. SCOTUS inferred hostility to religion from a statement by a single member of the Colorado Human Rights Commission that “it is one of the most despicable pieces of rhetoric that people can use — to use their religion to hurt others.” Perhaps future legislators and administrators will be able to dodge Masterpiece Cakeshop simply by keeping their mouthes shut about religion. Moreover, if someone on a law-making body makes an ill-advised comment about religious reasons being especially despicable, then Masterpiece Cakeshop seems to provide an easy escape, by emphasizing that none of the Colorado commissioners “disavowed” their colleague’s errant statement: Policymakers merely need to sensitize the record with emphatic disavowal. While the opinion seems easy to sidestep in the future, it also seems exquisitely well-aimed, as Leah Litman notes, at Trump’s Travel Ban and his defiant refusal to disavow any of his past anti-Muslim statements suggesting Lukumi-style hostility to Islam rather than terrorism.

So what’s not to like —- assuming, that is, that you, like me, dislike the Travel Ban and like federalism on religious matters?

And yet I wonder if Masterpiece Cakeshop might have longer legs than appearances suggest. In particular, the easy inference of hostility to religion from a single commissioner’s remark and a difference in treatment between different types of cases strike me as oddly inconsistent with Mt. Healthy v. Doyle and Employment Division v. Smith. After the jump, some thoughts on why Matsrepiece Cakeshop might pose more of a threat to anti-discirmination law than at first meets the eye.

First, what ever happened to the Mt. Healthy School District v. Doyle framework for dealing with evidence of bad intent? Ordinarily, if a member of a multi-member body makes a statement suggesting an unconstitutional purpose, then the proper remedy is to shift the burden of proof to that multi-member body to prove that the member’s errant statement was not the cause of the decision. Why did not the SCOTUS give the Colorado Human Rights Commission a chance to “disavow” their colleague’s statement on remand?

Second, Justice Kennedy’s inferring hostility to religious reasons from the state’s refusal to forbid action motivated by analogous secular reasons suggests a very broad definition of “anti-religious discrimination” — one going far beyond Lukumi and arguably threatening Employment Division v. Smith.

Aside from that “despicable” comment, Justice Kennedy inferred hostility to Jack Phillips’ religion from “the difference in treatment between Phillips’ case and other cases of bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.” The Commission allowed those other bakers to refuse to write anti-gay messages on cakes, because the Commission deemed the bakers’ objections to be merely aversion to the messages’ “offensiveness” that was not specifically directed against customers’ religious motivations. By contrast, the Commission rejected Jack Phillips’ analogous argument that he was not hostile to gay and lesbian customers as such but only to same-sex wedding ceremonies. By being less deferential to the latter religious arguments than the former secular arguments, the Commission, according to SCOTUS, showed bias against religion.

Such an inference of hostile intent from an apparent disparate treatment in different types of cases might be a sensible view of the Free Exercise clause. (Sager and Eisgruber’s “Equal Liberty” theory, for instance, urged such an approach). This is not, however, the approach that the Court has taken in cases like Employment Division v Smith. Moreover, there is a reason why apparent disparities in treatment are not automatically bases for inferring hostility in motivation: It might be that the disparities between two types of cases are more apparent than real, because the cases are not truly analogous to each other. For instance, it might be perfectly plausible, given the facts, for the Commission to infer that bakers’ offense at anti-gay messages had nothing to do with the religious motivation of such messages and yet also infer that Jack Phillips’ objections to same-sex wedding ceremonies cannot be disentangled from an underlying disapproval of same-sex sexual orientation.

Masterpiece Cakeshop, in short, seems to adopt a new and much more aggressive approach to inferring hostility to religion from mere “difference in treatment” than the Court’s approach in Employment Division v. Smith. by inferring anti-religious animus from any failure to extend to religious objections the benefits of exemptions for arguably “analogous” non-religious activity. One can imagine that this new and more aggressive approach to inferring “hostility” could be deployed against anti-discrimination laws. Imagine, for instance, that an anti-discrimination law grants exemptions to businesses on some secular basis like size or number of employees. Citing Masterpiece Cakeshop, it would be easy for a court to argue that failure to grant an “analogous” exemption for religiously motivated employers is a “difference in treatment” suggesting hostility to religion.

Of course, Masterpiece Cakeshop also heavily relies on specific anti-religious remarks by actual lawmakers. One might, therefore, distinguish future cases that lack such specific legislative history. As smoking guns go, however, the Commissioner’s “despicable” comment did not emit all that much smoke. The Commissioner did not say, after all, that religious motivations were, in general, despicable. Instead, the Commissioner said that it was despicable “to use their religion to hurt others” through discrimination. It is not obvious that this statement shows much animus against religion at all: It more naturally suggests animus towards discrimination, whatever the motivation. Presumably, the same speaker would think it equally despicable to use some secular ideology — say, a Stalinist objection to bourgeois sexual decadence — to discriminate against LGBT people. That the speaker only mentioned religious motivations seem best explained by context: religious exemptions, not secular ones, were the topic under discussion. Such comments rejecting religious exemptions will likely crop up whenever such exemptions are debated and rejected in agencies or legislatures. I suppose that well-counseled lawmakers will steer clear of the “despicable” word, but it seems silly to think that a different result should follow from a milder adjective (e.g., “ill-advised,” “bad idea,” “unjust,” etc.)

In short, Masterpiece Cakeshop might overturn more than Trump’s Travel Ban: It might also mark the fraying of Smith and the overturning of a lot of laws that took shelter under Smith’s deferential attitude towards inferences about governmental purpose.

Posted by Rick Hills on June 4, 2018 at 04:43 PM | Permalink | Comments (10)

SCOTUS Term: The Scope of the Masterpiece Cakeshop Decision Will Be Determined by the Concurrences

Justice Kennedy’s majority opinion in Masterpiece Cakeshop is based on the religious animus of the Colorado Civil Rights Commission, and thus appears, at first blush, to be a narrow ruling.  However, the evidence Justice Kennedy cites for religious animus could mean that the effects of this opinion extend far beyond the parties at issue.  The scope of Matserpiece Cakeshop will depend on whether lower courts take the view of the Kagan/Breyer concurrence or of the Gorsuch/Alito concurrence.

The majority opinion in Masterpiece Cakeshop holds that Jack Phillips did not receive a neutral and fair adjudication of his First Amendment challenge to Colorado’s application of its public accommodations law.  The Colorado Commission found illegal under its public accommodations law Phillips's refusal to make a custom-made wedding cake for a same-sex wedding.  In addition to some possibly hostile comments made by the Commissioners about how religious rationales are used to justify discrimination, Justice Kennedy’s 7-2 majority opinion notes that “[t]he Commission’s disparate consideration of Phillips’s case compared to the cases of the other bakers suggests” that the Commission’s ruling was inconsistent with the free exercise clause. Colorado’s public accommodations law prohibits both religious discrimination in the sale of goods and services and discrimination on the basis of sexual orientation.  Justice Kennedy’s comment about “disparate consideration” refers to the fact that the Colorado Commission has explicitly not required bakers to create cakes for religious customers seeking cakes that disparaged same-sex relationships. 

Thus, the broad reading of Masterpiece Cakeshop is that a civil rights agency cannot allow bakers to refuse to sell cakes to religious customers with religious messages they find “offensive” if it punishes Jack Phillips and Masterpiece Cakeshop for refusing to sell wedding cakes to same-sex couples.  This position is articulated by Justices Gorsuch and Alito in concurrence – that if some bakers are permitted to refuse to sell cakes offensive to their sensibilities, even if that affects customers protected by Colorado’s civil rights law, then all bakers must be permitted to do so.  Inconsistent treatment of Phillips is evidence of religious animus.

The narrower reading of Masterpiece Cakeshop, a position taken by Justices Kagan and Breyer in concurrence, reads Justice Kennedy’s comment about disparate consideration to be about the Commission’s reasoning, not the ultimate result.  Justice Kagan’s concurrence posits that the Commission should not have allowed its views about which messages on a cake are “offensive” (those denigrating or celebrating same-sex marriage) to infect its application of its public accommodations statute.  State actors cannot determine whether expressive content is protected based on their own considerations of offensiveness without violating the First Amendment and without, as here, impermissibly evaluating Phillips’s sincerely held beliefs.  However, according to Justices Kagan and Breyer, there is a principled way of distinguishing Phillips’s case from the other bakers – Phillips refused to sell a blank cake, solely on the basis of the identity of the customers.  According to Justice Kagan’s concurrence, the other bakers would not have sold cakes disparaging same-sex unions to any customers.

Although, as Howard notes, Justice Kennedy’s opinion is fairly incoherent, he successfully achieves a sizeable majority despite profound differences among the Justices.  He also makes clear that clergy cannot be required to perform same-sex weddings, but that businesses must generally respect public accommodations laws.  Justice Kennedy articulates – without much elaboration – significant principles to guide future cases.  The concurrences, however, are better reasoned, more coherent, and more straightforward about grappling with the issues.  Justices Gorsuch and Alito, and Justice Thomas, who also wrote separately, appear to believe that even a blank wedding cake is expressive and entitled to First Amendment protection.  Justices Kagan and Breyer do not appear to share this view.  Justice Kennedy has not tipped his hand either way, even with his “disparate consideration” comment.  We must await further adjudication to resolve the scope of a state’s power to enact particular anti-discrimination laws that may compel expression. 

One other note:  Although I believe this case could have been decided using an O’Brien expressive conduct rationale, Justice Kennedy’s balancing style is not well suited to First Amendment jurisprudence.  Justice Kennedy worries (justifiably) about the stigma to the LGBT community if sellers can refuse service for same-sex weddings.  Stigma, however, is an impermissible consideration in First Amendment jurisprudence, just as offensiveness is.  The real question is not how to balance the rights of different groups, but where the state’s power ends and our First Amendment rights begin.  I currently find the concurrence of Justices Kagan and Breyer more convincing – but I would be interested to see how they might decide a case with actual writing on a cake.

(Cross posted at In a Crowded Theater.)

Posted by Erica Goldberg on June 4, 2018 at 03:54 PM in 2018 End of Term | Permalink | Comments (2)

SCOTUS Term: Masterpiece Cakeshop, The Dictapedia Edition

Thanks so much to Howard and the Prawfs crew for inviting me back this month!

As Howard points out, the logic of Masterpiece Cakeshop does not hang together particularly well, probably as a result of trying to make the holding as narrow as possible. But many of the statements in the case (especially those Leah quotes, which may have relevance to the travel ban case) seem to be written specifically with an eye toward getting quoted in future cases. Over on Twitter, Professor David Noll asks: "What's a good name for a court opinion whose primary purpose is to generate quotations for future briefs?" My favorite suggestion so far is "Dictapedia," though I also like "bench bite" as a close second. I might also add "brief bait." Other suggestions?

Posted by Cassandra Burke Robertson on June 4, 2018 at 02:38 PM in 2018 End of Term | Permalink | Comments (1)

From the PrawfsBlawg Archives: Junior Law Prawfs FAQs Series

With the AALS new law professors' workshop later this week, I thought I'd re-up the Junior Law Prawfs FAQs Series I guest-blogged here a couple years ago. Most of this information has aged well, I think. Here's the full list of posts:

1. How Do I Become a Voice in My Field? (See Also: D Merritt, Going Meta on the Jr. Law Prawfs FAQ Series)

2. How Does My Research Fit Within the Types of Legal Scholarship?

3. Should I Write a Response to a Law Review Article (or Allow the Law Review to Solicit Responses to Mine)?

4. Is Publishing a Book Review in a Law Review Still a Worthwhile Pretenure Endeavor? (See Also: P Horwitz, Yes (With Caveats), Publishing a Book Review is Still a Worthwhile Endeavor for Untenured Law Professors)

5. How Do I Make Sense of Online Law Reviews?

6. How Do I Increase the Chance My Scholarship Will Be Read?

7. How Should I Respond to Requests to Read Draft Articles in My Field?

8. How Can I Increase In-Person Scholarly Interaction with Limited Resources?

9. Is Blogging Worth It? (See Also: M Froomkin, The Plural of Anecdote is "Blog"; O Kerr, Legal Academic Blogging and Influence vs. Credit)

10. Is There Any Reason Not To Be on Twitter?

11. What About Podcasts? What About Media Consultations? (See Also: C Turner, Podcasts; C Walker, Rethinking Law Review Podcasts)

12. Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work?

13. Am I Asking the Right Questions? (See Also: M Rich, Hard Prawf Choices)

If you click on the tag for the series, it looks like other bloggers have added a few more posts to the series.

Posted by Chris Walker on June 4, 2018 at 01:32 PM | Permalink | Comments (0)

SCOTUS Term: Free Exercise "Happy talk" (Two Updates)

The Court decided Masterpiece Cake on the narrowest, least generally applicable grounds it could find--that some Colorado Civil Rights Commissioners made anti-religion statements in deciding the case, thereby failing to decide the case with the "religious neutrality that the Constitution requires"  or the "neutral and respectful considerations to which the baker was entitled. But the Court did not recognize Free-Exercise exception to public-accommodation laws and seemed to accept that religious beliefs do not provide an out to public-accommodations laws. That is, the problem was not the decision the Commission made (and the state courts affirmed), but the statements made in the course of making that decision.

• The majority's basic rationale is incoherent. It criticizes the "lack of due consideration for Phillips' free exercise rights and the dilemma he faced" and the failure to consider his religious objection "with the neutrality" required by the First Amendment. But the point of Smith is that there is no dilemma. Religious preferences, no matter how deeply held, yield to laws of general applicability. The required neutrality is in the law's application--the law cannot treat conduct performed for religious reasons less favorably than identical conduct performed for non-religious reasons. The majority here imposes some sort of neutrality of consideration. But what it really imposes is a "happy-talk" requirement--officials must speak respectfully and kindly and happily about religion religious objections to neutral laws, even while rejecting those objections. Because allowing those objections would eviscerate public accommodations laws.

• I have not seen this argued anywhere, but why wasn't this case moot? I believe I read that Phillips closed his bakery. So the sanctions imposed on him--cease-and-desist discriminating, comprehensive staff training, and quarterly compliance reports--no longer have any effect. [Update: In light of comments and further thought, the mootness point seems clear--the possibility of reopening the business renders the case not moot. I was incorrectly recalling a case in which the Court held that closing a nude bar did not render moot the challenge to an anti-nude-dancing ordinance. Apologies for raising an unnecessary issue]

[Second Update: So what happens next. The case came to SCOTUS on direct review from the state court, which was reviewing the Commission decision. The state court of appeals decision affirming the commission is reversed and so, therefore, is the Commission decision and order. One commentator to the Civ Pro listserv described this as an "implicit remand"--the Colorado court now can remand to the Commission to do the case over in a "neutral" manner. Then the question is whether the Commission wants to pursue the case anew, which may get us back into the question of whether Phillips is still running the bakery and/or whether he intends to do so in the future.

Posted by Howard Wasserman on June 4, 2018 at 01:18 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (17)

SCOTUS Term: Masterpiece Cakeshop And The Entry Ban

This morning, the Supreme Court handed down Masterpiece Cakeshop v. Colorado Civil Rights Commission. Justice Kennedy’s majority opinion held that the particular application of the Colorado Anti-Discrimination Act to the baker in that case violated the First Amendment’s Free Exercise Clause because “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.”

In this post, I wanted to highlight several aspects of the Court’s opinion in Masterpiece Cakeshop that, if taken seriously, would dispose of several of the government’s arguments in the entry ban litigation (Trump v. Hawaii).  Of course the Court is not always consistent in what it says or what it does. But if it is serious about the reasoning and principles it articulated in Masterpiece Cakeshop, and it should be, then it should reject several of the arguments that have been used to defend the entry ban.

Claim Number One:  A law cannot violate the First Amendment if the law could have been enacted or applied without animus or religious hostility. 

Trump v. Hawaii:  In the entry ban, the government (and the administration’s defenders) are arguing that the entry ban would be lawful absent consideration of the President’s statements or intent and that an official action cannot be unconstitutional solely on the basis of an official’s statements or intent.  This argument has also sometimes appears under banner of  “the entry ban would be lawful if President Obama had enacted it” (since President Obama hasn’t said terrible things about Muslims and Islam and banning Muslims from the United States).

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop: Not true. 

Here are his longer excerpts making that point clear:

  • “Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.”
  • "[W]hile those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."  (And yet the Court invalidated this particular application of such a law.)
  • "The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection."

  • “IChurch of Lukumi Babalu Aye, the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion."

  • "The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires."

  • noting the separate question of whether "the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach"

In sum:  A law, or application of a law, might be valid if it does not rest on religious animus.  But it would be invalid if it does rest on religious animus.


Claim Number Two: Words do not matter.

Trump v. Hawaii:  In the entry ban, the government (and the administration’s defenders) are arguing that courts shouldn’t parse officials’ words in order to determine their intent and the constitutionality of their official actions.

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop:  Wrong. 

Here are his longer excerpts making that point clear:

  • “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
  • “The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires.”

In sum:  When determining if an official act rests on hostility or religious animus, courts assess government official’s words.


Claim Number Three: When assessing animus, courts should indulge fantasies and engage in interpretive jujitsu and bend over backward to conclude there is no animus.

Trump v. Hawaii:  In the entry ban, the administration’s defenders are arguing that the President’s words don’t really rise to the level of animus or religious hostility, and people are failing to give the “charitable interpretation” to the President’s words.  (The government didn’t really press this argument because it’s frankly absurd.)

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop:  Doubtful. 

More specifically, here is what Justice Kennedy said evidenced the Colorado Civil Rights Commission’s animus in the case before the Court:

  • "One commissioner suggested that Phillips can believe 'what he wants to believe,' but cannot act on his religious beliefs 'if he decides to do business in the state.'  A few moments later, the commissioner restated the same position: '[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.'”

 And Justice Kennedy’s assessment of those statement:

Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.

Here is that other statement Justice Kennedy said revealed animus:

  • “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

And here is Justice Kennedy’s assessment of that statement:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law.

 For evidence of the President’s animus on the entry ban, I would encourage you to reach this amicus brief by the Macarthur Justice Center.  Some key highlights:

  • “I think Islam hates us.”  
  • “You’re going to have to watch and study the mosques, because a lot of talk is going on at the mosques.”
  • “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”

In sum:  The evidence of animus in Masterpiece Cakeshop was not any stronger than evidence of animus in the entry ban.  If saying "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history," and using religion to justify discrimination is "despicable" qualifies as animus, I would think saying "I think Islam hates us" and "calling for a total and complete shutdown of Muslims entering the United States" would qualify too.


Claim Number Four:  It doesn’t matter if there hasn’t been a specific disavowal of particular animus-laden statements.

Trump v. Hawaii: In the entry ban, the government is arguing that somehowsomewherethe President disavowed the entry ban without mentioning the specific statements he made about Muslims, the proposal to ban all Muslims, or apologizing for any of it.

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop:  No.  More specifically, here is what Justice Kennedy said about Colorado’s failure to disavow the preceding statements:

 "The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court."


I could continue on.  For example, Justice Kennedy notes in Masterpiece Cakeshop that Colorado seemingly treated the baker’s case different than others.  Does anyone remember the first entry ban, and how that was announced with … no advance notice to any of the relevant department heads?

Instead, I will just say this:  Masterpiece Cakeshop reiterated a point basic to our constitutional system—the government cannot act on the basis of animus or hostility toward a particular religion.  To effectuate that principles, courts look to circumstantial evidence, including officials’ words, to determine whether the government acted with animus.  While there are ways to distinguish Masterpiece from the entry ban litigation (including some snippets in the opinion itself), those principles do a lot to resolve the merits of the First Amendment challenge in the entry ban.  Time will tell whether the Court will stick to them.

Cross-posted at Take Care.

Posted by Leah Litman on June 4, 2018 at 11:55 AM in 2018 End of Term | Permalink | Comments (2)

Saturday, June 02, 2018

The Civ Pro case that was and could have been

This decision from the District of Maryland granting in part and denying in part a 12(b)(6) motion is a nice Civ Pro problem, both for what it addresses and what it doesn't address--and how. This is a tort action by journalist Kurt Eichenwald, who brought tort claims against John Rivello (known as "@jew_goldstein), a Maryland citizen who sent a GIF containing an animated strobe image designed to cause Eichenwald, who has Epilepsy, to suffer a seizure. The defendant moved to dismiss two of the claims for failure to state a claim, arguing that Texas does not recognize the civil claim of battery (only assault), that there cannot be batter without physical contact, and that Texas does not recognize the tort of purposeful infliction of bodily harm as a prima facie tort. The court analyzed Texas law and the allegations of the complaint to reject the first two arguments.

The court dismissed the count of purposeful infliction, without prejudice. The court recognized this as a "developing area of the law," but that "[i]t is not the place of a federal court, particularly one in Maryland, to interfere with a developing body of state tort law in Texas." But it dismissed without prejudice, "with an eye alert to avoiding disregard of State law" and not preventing plaintiff "from trying his hand in a different court, or at a different time." This does not seem quite right. The uncertainty of state law is not a basis for the court to find that the pleading fails to state a claim for relief. Rule 12(b)(6) dismissal, even without prejudice, is not a form of discretionary abstention. No recognized abstention doctrine fits this situation; the closest might be Burson Burford, although that usually involves complex state administrative law, not individual torts. The court had two appropriate options. One was to certify the issue to the Texas Supreme Court (assuming Texas allows for certification). The other was to make an Erie Prediction of what the Texas Supreme Court would do if presented with this case. And those options are appropriate for any federal court, including one located in a state other than the one whose laws are at issue.

The Civ Pro issue that could have been is about personal jurisdiction. Eichenwald, who is from Texas, went to the home of the defendant, who is from Maryland. But there is a fun question of whether Eichenwald could have sued in Texas. Rivello directed the GIF at a Texas citizen intending to cause a Texas citizen harm. But did he intend that it be seen or cause that harm in Texas? By sending it online, it went everywhere and could have been seen wherever Eichenwald happened to be when he saw the file, not necessarily in Texas. The counter-factual combines the recent narrowing of Calder with the problem of establishing purposeful availment through online conduct.

Posted by Howard Wasserman on June 2, 2018 at 02:40 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (7)

Friday, June 01, 2018

Professors and political correctness

Neil Buchanan has an excellent post at Dorf on Law on how changing expectations around matters of race, sex, etc., affect how we teach, drawing connection to comedians on campus and on Roseanne's self-immolation. I will add a few points.

As professors, our focus is not on what we discuss in class but how we discuss it. While changing expectations require us to alter the tone we adopt on some subjects, addressing a touchy subject is unavoidable, either because students must learn the touchy material or because students must be able to see the material within sensitive or disturbing contexts. Neil's example is (I believe) a 1991 tax case from the Seventh Circuit, involving tax-evasion charges against twin sisters who accepted gifts from a wealthy older man. (I used the case as my Evidence final several years ago). The opinion delights in the salaciousness of the underlying facts and gets punny at times ("the relative scantiness of the record"). And Neil says that over the years he has pulled back from the sniggering tone the case allows, giving our better understanding of the possibly exploitative nature of the relationship involved in the case.

Importantly and appropriately, Neil does not argue that it is improper to teach the case (for the distinction between gift and income). Nor would I agree that it is improper to use the facts for an exam (for hearsay and the distinction between statements of intent of not-hearsay statements inferring consent).  This is the what, as opposed to the how. It is a good teaching case  and a good set of facts, even if dealt with in a sophomoric tone. It remains important for students to learn to deal with general issues and principles in troubling factual contexts.

To use another example. Several years ago, one assigned essay in Civ Pro involved an employment-discrimination case in which the plaintiff sought to compel the defendant to submit to having his genitals photographed to compare with the sext he allegedly sent the plaintiff. One students, who wanted to go into employment work, said she appreciated how the question pushed her out of her comfort zone. I did criticize one student for using the phrase "dick pic" in what was supposed to be a judicial opinion, which I thought reflected a lack of seriousness.

Even if we as professors change our presentation, the question remains whether the presentation in the assigned case becomes problematic over time and thus no loner usable. Is the relationship described in that Seventh Circuit case so toxic or presented in such a sniggering way that it should not be used, if some other vehicle is available to teach the gift/income distinction? This can be about a court's tone or language. Plyler v. Doe uses the phrase "illegal alien," which has drawn complaints in Con Law.

Posted by Howard Wasserman on June 1, 2018 at 05:59 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Kolber Signs Off

Thanks to Howard and company for having me these past two months, and thanks to commenters for the lively discussion. May you all have a great summer! Next academic year, I'll be a visiting fellow at NYU School of Law's Center for Research in Crime and Justice.

Here's a recap:

Posted by Adam Kolber on June 1, 2018 at 05:14 PM | Permalink | Comments (2)

JOTWELL: Kalajdzic on several authors on funding and compensating class actions

The new Courts Law essay comes from new contributor Jasminka Kalajdzic (Windsor), reviewing Eizabeth Chamblee Burch, Publicly Funded Objectors and Brian Fitzpatrick, Can and Should the New Third-Party Litigation Financing Come to Class Actions?, considering the "thorny question" of funding and compensating class actions. Both were published in a new volume of Theoretical Inquires in Law devoted to the 50th anniversary of class actions.

Posted by Howard Wasserman on June 1, 2018 at 03:47 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Defending Qualified Immunity (SCOTUS Term)

Thanks Howard for inviting me back to blog this month on the end of the Supreme Court's OT 2017 Term. There are a number of big administrative law (my field) cases on the docket, including the constitutional challenge to the appointment of administrative law judges at the SEC. (If I have time, I also hope to blog a bit about the narrative(s) scholars and commentators have attempted to craft regarding Justice Gorsuch and his first full year on the Court.)

In my first post, however, I wanted to flag a draft of a new essay Aaron Nielson and I just posted to SSRN entitled A Qualified Defense of Qualified Immunity. This essay is part of a terrific annual federal courts issue on qualified immunity that the Notre Dame Law Review will be publishing later this year.

In this essay, we respond to some of the recent attacks on qualified immunity—the doctrine that shields a government actor from civil suit for monetary damages unless the government official violates “clearly established law.” In particular, we respond to Will Baude’s argument that qualified immunity finds no support in positive law and Joanna Schwartz’s important empirical work that has been marshaled to question qualified immunity’s effectiveness as a matter of policy. (Howard also has a nice Jotwell review of Schwartz's latest article.) We conclude with some suggestions for reform that draw on our prior empirical work on qualified immunity in the circuit courts.

The draft of our paper is available here, and comments are definitely welcome. Qualified immunity is a large part of the Supreme Court's docket (or at least its shadow docket), and it will be interesting to see whether the Court entertains these invitations to rethink the doctrine in the near future. As Aaron and I explain in our article, we largely see these reform efforts as better addressed to Congress than the Court in light of statutory stare decisis.

Posted by Chris Walker on June 1, 2018 at 01:40 PM in 2018 End of Term | Permalink | Comments (3)

More From the Duplass Brothers: "Evil Genius: The True Story of America's Most Diabolical Bank Heist"

A few weeks ago, I posted about the Duplass Brothers and a documentary series they produced called Wild Wild Country. It seems to have gone somewhat mainstream, at least if this not-so-funny SNL sketch is an indication. After you've seen Wild Wild Country, you might find this article interesting: 9 Rajneeshpuram Residents on What Wild Wild Country Got Wrong.

I recently watched another Duplass Brothers Netflix documentary: Evil Genius: The True Story of America's Most Diabolical Bank Heist. The series concerns the so-called "pizza bomber" case from 2003. A man handed a bank teller a note demanding money while he had a bomb strapped to him. When the police caught and surrounded him, he claimed that he was just delivering pizza when some people involuntarily locked the bomb around his neck and ordered him to rob the bank. They told him the bomb could only be removed by a key that would be revealed if he robbed the bank and then solved a scavenger hunt under extraordinarily tight time pressure. The documentary has many twists and turns but a central question is whether the pizza deliveryman was, in some way, part of the plot or just an innocent victim.

As with Wild Wild Country, Evil Genius offers food for thought for legal scholars. Not surprisingly, the issues are more exclusively directed toward criminal law, including defense strategy and mental illness.  It makes for pretty gripping television, but it felt a little repetitive at times and probably could have been squeezed into fewer than four parts. And while it's not so radically differently than other "true crime" stories you'll find on network television, it's well above average and you'll be glad that there are no commercials to deal with.

Posted by Adam Kolber on June 1, 2018 at 12:49 PM | Permalink | Comments (0)

Farewell! (Derek Muller)

Thanks to Howard and the crew here at Prawfs for indulging me for nearly two months. I deeply appreciate the conversation and hope I provided some content prawfs found valuable!

If you'd like to read more of my work, I blog at Excess of Democracy, which I launched five years ago and named after a phrase used by Elbridge Gerry during the constitutional convention. It has some election law content, but it includes a variety of topics, especially on legal education. You can also find me on Twitter.

Finally, I'll highlight a few of my articles in the event any piques your interest! (More drafts to be posted this summer....)

  • Hot off the press is Legal Quandaries in the Alabama Senate Election of 2017, 69 Ala. L. Rev. 983 (2018), examining the many complexities of the Seventeenth Amendment, special elections generally, and Alabama state law specifically that arose with the controversy surrounding Roy Moore.
  • The High Cost of Lowering the Bar is a work in progress with my colleague Rob Anderson. Through a study of bar discipline rates in California, we conclude that lower bar exam scores are correlated with higher discipline rates, and that lowering the passing score would result in higher discipline rates. We acknowledge we lack a causal relationship, and we offer different ways of thinking through the costs and benefits in a more holistic way when it comes to evaluating bar exam cut scores. (Feedback welcome as this remains a work in progress!)
  • 'Natural Born' Disputes in the 2016 Presidential Election, 85 Fordham L. Rev. 1097 (2016), notes the many problems, mostly jurisdictional, that arose during questions surrounding the eligibility of Ted Cruz and other candidates in the 2016 election. It calls for a constitutional amendment to quash future disputes. (For a much more robust treatment of the constitutional amendment question, check out Kevin Walsh's forthcoming piece in the Duke Journal of Constitutional Law & Public Policy, The 'Irish Born' One American Citizenship Amendment.)
  • Ballot Speech, 58 Ariz. L. Rev. 693 (2016), identifies the ballot itself--the names of candidates, their party affiliation, descriptive terms--as an essential resource for candidates to speak to voters and offers a framework that would better protect that forum.
  • Finally, as the Connecticut legislature recently passed the National Popular Vote Compact, I thought I'd share a couple of older pieces on why I think such a compact requires congressional consent under the Compact Clause, and a piece on the practical difficulties of a national presidential election while administration of the Electoral College and the right to vote remains largely left to the states.

Posted by Derek Muller on June 1, 2018 at 10:24 AM in Blogging | Permalink | Comments (1)

Op-Ed on "Calling Judicial Bullsh*t"

I wrote an op-ed for the Los Angeles Daily Journal that they titled "Calling Judicial Bullsh*t." It's behind a paywall, but I was given permission to reprint it here (it's right after the jump). Since it largely overlaps with my two posts on the subject on Prawfs, I'll turn off comments to this post.

When I was a federal judicial clerk, I was struck by the majesty of the courtrooms I entered. Dressed in exotic garb, judges preside physically and hierarchically high above the crowd. They are seated so royally in part to hide their fallibility and ordinariness. The theater of the courtroom doesn’t lie about judging but it creates an impression that may or may not reflect the truth.

Similarly, judges sometimes write with limited regard for the truth. Philosopher Harry Frankfurt used the term “bullshit” to describe statements unconcerned or insufficiently concerned with the truth. The bullshitter’s speech “is grounded neither in a belief that it is true nor, as a lie must be, in a belief that it is not true. It is just this lack of connection to a concern with truth — this indifference to how things really are” that Frankfurt takes to be the “essence of bullshit.”

In Planned Parenthood v. Casey, for example, a joint opinion of the U.S. Supreme Court reaffirmed the fundamental constitutional right to abortion stating: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

On close reading, this passage makes little sense. It claims that the most important aspect of liberty is the “right to define [a] concept.” But a right to define a concept, while a kind of liberty, is certainly not “at the heart of liberty.” Inside your own head, you can define concepts however you’d like. Liberty is more centrally concerned not with our freedom to define concepts but with the sorts of actions we are permitted to take without interference from others. If Casey were merely about rights to define concepts, it would be of greater interest to metaphysicians than actual physicians.

And what does it mean to have a right to define one’s own concept of the mystery of human life? People are far more likely to debate the mystery of human life than the concept of the mystery of human life. Perhaps the justices meant that we should be free to reach our own conclusions about deep life questions, but they could have stated that straightforwardly.

So what, you might say, if the justices would fail their Philosophy 101 exams? Maybe the quoted passage isn’t meant to be picked apart for putative philosophical content; maybe it’s only meant to set the ambience for the opinion. But that’s precisely my point. The joint opinion is cloaked in philosophical language, but the authors often seem unconcerned with the truth or falsity of their statements in just the way that Frankfurt famously characterized bullshit. The quoted passage references lofty ideas without wrestling in any careful way with those ideas.

Consider too this famous passage from the Supreme Court’s decision in Washington v. Glucksberg which declined to find a constitutional right to physician-assisted suicide: “[T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’”

This test of fundamental rights, if taken seriously, is absurdly overdemanding. As important as our fundamental right to use contraceptives is, for example, one cannot believe that liberty and justice would not exist without it. Requiring that liberty and justice be incapable of existing to anoint something a fundamental right sets the bar preposterously high. Rather than admitting that the court has no good theory for identifying fundamental rights, the court opts instead for the bullshit approach, laying out a path to declaring a fundamental right that is so implausible that it’s hard to believe the authors of the passage cared about its truth. And the bullshit may affect how justices vote. Justice Roberts, for example, cited the lofty standard in Glucksberg when he dissented from the view that same-sex marriage is constitutionally protected.

How tragic that justices would get a failing grade in philosophy in two of the most philosophically rich and important cases in the nation’s history. But while it’s possible the joint opinion authors simply lacked the acumen to evaluate what they wrote or failed to carefully craft their prose, these cases are so important and closely-scrutinized that the failure to make clear, precise statements might have been exactly what was intended.

In a recent law review article, I argue that, among many reasons, judges bullshit to keep precedents malleable, avoid line drawing, hide the arbitrariness of line drawing, sound important, be memorable, gloss over inconvenient facts, sound poetic, seem as though their hands are tied, and seem principled rather than strategic.

Some of these may actually be good reasons to bullshit. Bullshit can build consensus, allowing judges that would otherwise disagree to converge on language with multiple interpretations. Bullshit can also bolster confidence in judicial decisions. We sometimes mistake hard-to-understand prose for deep and meaningful prose. The boost in confidence may be illusory but perhaps some illusions are valuable nonetheless.

At the same time, bullshit lacks transparency, and we should avoid it absent good reason. The passages above are quoted in numerous court opinions and law review articles. Rather than recognizing bullshit for what it is, most take these passages to have concrete meaning with genuine legal implications. Indeed, if judges believe these passages have legal implications, then in fact they do. But given bullshit’s lack of transparency, lawyers, scholars, and judges should be on the lookout for it to see what may be hiding behind it.

Adam Kolber is a professor at Brooklyn Law School. This essay was adapted from his Arizona State Law Journal Article, “Supreme Judicial Bullshit,” vol. 50, p.141-77 (2018).

Posted by Adam Kolber on June 1, 2018 at 08:17 AM | Permalink | Comments (0)