Wednesday, February 21, 2018

Judging Access to the Court System

A very curious lawsuit is currently playing out in Chicago, involving four different state and federal courts. It should be of interest to anyone who teaches or follows developments in First Amendment law, federal court abstention, or court administration. It’s also a fascinating example of judges being asked to decide what obligations the courts themselves owe to the public.

The case involves a First Amendment challenge to records access in the Cook County court system. Last November, the Courthouse News Service (CNS) filed a lawsuit in federal court against the Cook County clerk’s office and clerk Dorothy Brown, alleging that the clerk’s office was not immediately disclosing certain electronically filed complaints that were a matter of public record. The gist of the allegations is that lawsuits filed in hard copy are immediately accessible to journalists or any member of the public, but e-filed lawsuits must first be administratively processed, which can delay public access for days. CNS sought injunctive and declaratory relief.

The lawsuit came as Cook County was already struggling to bring its civil case filing system into alignment with the rest of the state. The Illinois Supreme Court set a date of January 1, 2018 for the county to make its system fully compatible, but granted a six-month extension at the end of December when it became apparent that the county and its vendor were nowhere close to meeting that deadline. (The county asked for a one-year extension, which was rejected.)  In granting the extension, the state supreme court announced that its own administrative staff would attend future implementation meetings to assure that the project was completed in a timely manner.

Meanwhile, Brown’s office responded to the CNS lawsuit by arguing that it has no First Amendment obligation to make any document public until it is “accepted for filing,” citing a standing order requiring the clerk’s office to remove certain categories of documents from the public domain. That argument was evidently unpersuasive. In early January, the federal district court granted a preliminary injunction to CNS, and gave Brown 30 days to create a system to allow the press to obtain immediate access to e-filed complaints. The district court held that “In the absence of an injunction, CNS will continue to be deprived of its First Amendment right of timely (immediate and contemporaneous) access to e-filed complaints."

From that point, it started to get really interesting.

Over the past several weeks, Dorothy Brown’s work life must have felt positively Shakespearean. In late January, she petitioned the Illinois Supreme Court again, asking for leniency with respect to the deadline for e-filing integration, and explicitly seeking permission to comply with the federal court order by making e-filed documents (including documents filed under seal) immediately available to the public. When the Supreme Court did not respond right away, Brown twice asked the federal district court to stay the injunction. Twice the court rejected her request, the second rejection coming on February 13.

Brown again took the offensive. Moments after the district court’s denial of her second motion, she filed a motion with the Seventh Circuit Court of Appeals, arguing that the district court should have declined to hear the case under the abstention doctrine in Younger v. Harris (1971), and instead should have referred the matter to an Illinois state judge. Brown also argued that her office had been wrongly sued, and that the proper defendants were the Administrative Office of the Illinois Courts and the Office of the Cook County Chief Judge.

The Seventh Circuit has yet to rule on the Brown's motion. But the Illinois Supreme Court weighed in again on February 14, curtly denying Brown’s January petition without further comment.

What to make of this?

In some ways I feel bad for Dorothy Brown, who has portrayed herself (with some success) as a mere bureaucrat who is trying to follow conflicting sets of orders. There seems to be no question that her office is simply incapable of complying with the federal court’s e-filing order at this juncture. And the irony of Cook County’s paper filing system (which is by any account remarkably byzantine and chaotic) being more accessible than its e-filing system should not be lost on the observer.

But we should not pity Ms. Brown and her colleagues too much. While the causes of her office's dysfunction on this matter are not entirely clear, it would come as no surprise if they boiled down to some combination of inadequate resources, poor management, ordinary negligence, and politics. At the same time, if her office had shown expended half the time, energy, money and creativity in implementing a competent e-filing system as it has in defending this lawsuit in multiple courts, the issue probably would have been resolved long ago.

Posted by Jordan Singer on February 21, 2018 at 04:10 PM in Civil Procedure, First Amendment, Information and Technology, Judicial Process | Permalink | Comments (1)

Thursday, February 01, 2018

Universal injunctions at the state level (Updated)

Judge Crabtree of the District of Kansas preliminarily enjoined, as violative of the First Amendment, a Kansas law requiring those who enter into contracts with the state to certify that they are not engaged in boycotts of Israel. The court enjoined the Commissioner of Education from enforcing any statute, law, policy, or practice that requires independent contractors to certify that they are not participating in a boycott of Israel. And the court enjoined "defendant from requiring any independent contractor" to sign a certification that they are not participating in a boycott of Israel as a condition of contracting with the state.

In other words, the court entered a universal injunction. The decision shows that judges are issuing these orders unthinkingly and automatically. And it shows that the problematic phenomenon is not limited to challenges to federal law. It also shows why universal better describes these injunctions. The non-particularized scope of the injunction's "who" remains whether the challenged law is a federal law applying to people across the nation  or a state law applying to people in one state--the injunction purports to protect the universe of people who might be subject to the law's reach, whatever that law's reach. The court again saw itself not as resolving a challenge by one plaintiff to threatened enforcement of a constitutionally suspect law against him, but as resolving the status of the law itself.* Even if universal injunctions are sometimes warranted, this does not appear to be an appropriate case--it is difficult to see how this plaintiff is denied complete relief if the state can enforce the certification requirement against other independent contractors.

[*] This vision affected the mootness analysis. The state had given the plaintiff a waiver from the certification requirement. But the court held that the waiver did not moot the case because the state could deny the same waiver to others. If the court properly understood the issue as the validity of enforcement as to the plaintiff, enforcement against others should not matter.

Update: Josh Blackman emailed to remind me that Judge Crabtree issued a similarly worded universal injunction barring enforcement of the Kansas same-sex marriage ban as to any and all couples seeking licenses.

Posted by Howard Wasserman on February 1, 2018 at 11:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

State-created danger in the Nassar case?

Two stories from Deadspin describe the mistakes by the police department in Meridian, Michigan, who received a sexual-abuse complaint against Larry Nassar in 2004, but dropped it (without referring it to prosecutors). Apparently, detectives were convinced by a PowerPoint presentation from Nassar about how what he was doing was a legitimate medical procedure to deal with Scoliosis. No one in the police department conferred with a medical expert to confirm what Nassar told them.

So, could one of Nassar's post-2004 victims make out a due process claim against the Meridian PD and these detectives? Perhaps on a state-created danger, that the police increased the danger to other athletes by not doing a competent investigation and perhaps implicitly suggesting to Nassar that he can get away with this. Or perhaps on an equal protection theory, that they did an incompetent investigation because they did not take sexual-assault against teenage girls seriously.

Posted by Howard Wasserman on February 1, 2018 at 06:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

A competing voice on universal injunctions

Amanda Frost on SCOTUSBlog. Amanda has been Sam Bray's designated interlocutor, on the AALS panel and in the Judiciary Committee. She and I shared the stage on a recent NPR segment.

Posted by Howard Wasserman on February 1, 2018 at 10:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, January 29, 2018

CFP: 4th Annual Civil Procedure Workshop (Nov. 9-10, 2018)

The following announcement comes from Brooke Coleman (Seattle), David Marcus (Arizona), and Liz Porter (Washington), now joined by Norman Spaulding and the Civ Pro people at Stanford.

We are excited to announce the fourth annual Civil Procedure Workshop, to be held Stanford Law School in Palo Alto, California on November 9-10, 2018.

The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience.

Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2018 include the Hon. Diane Wood, Janet Alexander, Elizabeth Burch, Margaret Lemos, David Engstrom, Myriam Gilles, and Deborah Hensler. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 23, 2018. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years.

We will select papers to be presented by May 4, 2018. Please send all submissions or related questions to Norman Spaulding.

The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.


Norman Spaulding (Stanford), nspaulding@law.stanford.edu
Dave Marcus (Arizona), dmarcus@email.arizona.edu
Liz Porter (UW), egporter@uw.edu
Brooke Coleman (Seattle U), colemanb@seattleu.edu

Posted by Howard Wasserman on January 29, 2018 at 01:41 PM in Civil Procedure, Teaching Law | Permalink | Comments (0)

The Story of Goodyear v. Haeger

This Jalopnik piece tells the story of the Goodyear G-159 tire, its problems, and Goodyear's efforts to avoid disclosure of those problems. This was the tire and litigation efforts underlying the OT 2016 decision in Goodyear Tire v. Haeger, in which the district court sanctioned Goodyear for its attorney's discovery abuses.

Posted by Howard Wasserman on January 29, 2018 at 01:27 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, January 27, 2018

Congress makes procedure

The following was introduced in the Senate back in August:
S.1757 — 115th Congress (2017-2018)            
Building America's Trust Act
Sponsor: Sen. Cornyn, John [R-TX] (Introduced 08/03/2017) Cosponsors: (8)
 Cosponsors 
Sen. Barrasso, John [R-WY]*          08/03/2017
Sen. Johnson, Ron [R-WI]*  08/03/2017
Sen. Tillis, Thom [R-NC]*    08/03/2017
Sen. Heller, Dean [R-NV]*  08/03/2017
Sen. Scott, Tim [R-SC]*       08/03/2017
Sen. Inhofe, James M. [R-OK]*       08/03/2017
Sen. Wicker, Roger F. [R-MS]         09/18/2017
Sen. Lankford, James [R-OK]          10/04/2017
SEC. 564. APPROPRIATE REMEDIES FOR IMMIGRATION LITIGATION.
(a) Limitation On Class ActionS.—No court may certify a class under rule 23 of the Federal Rules of Civil Procedure in any civil action that—
        (1) is filed after the date of enactment of this Act; and
(2) pertains to the administration or enforcement of the immigration laws.
 

 

Critics of universal injunctions (myself included) have argued that FRCP 23(b)(2) class actions provide the basis for non-particularized injunctions and offer a reason that courts should not grant non-particularized injunctions in non-class cases. Allowing courts to issue broader injunctions in individual cases undermines 23(b)(2) (which, David Marcus has shown, was enacted precisely to allow broader relief in school-desegregation cases)--if a court can issue a universal injunction as a matter of course, the injunctive class action is superfluous. And having 23(b)(2) suggests that universal injunctions generally should not issue outside of a properly certified class.

 

This bill (which is unlikely to pass, so it will not matter) would cut-off that option, by limiting all constitutional cases to individual challenges of the plaintiffs before the court and thus individualized injunctions protecting those parties. On the other hand, perhaps it would make the court more likely to issue a universal injunction in individual cases, where the court believes the equities demand broader relief and a class is not an option.

Posted by Howard Wasserman on January 27, 2018 at 02:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 25, 2018

An old solution that misses the problem

On the Harvard Law Review Blog, Fifth Circuit Judge Gregg Costa proposes that cases seeking "nationwide" injunctions should be heard by three-judge district courts with direct and mandatory review to SCOTUS. Including multiple judges gives the decision greater gravitas, speeds ultimate resolution of the issue, and eliminates forum shopping.

But like most of the arguments, Costa's solution conflates geographic scope with party scope. The problem is not geographic limitations on the injunction or on the court issuing the injunction (in geographic terms, all injunctions are nationwide in protecting the protected person everywhere she is or goes). The problem is these injunctions protecting beyond the named plaintiffs by prohibiting enforcement of the challenged law to all persons--what I have been calling universality. That is not an issue about the number of judges deciding the case or the court's geographic reach. SCOTUS cannot issue an injunction prohibiting (on pain of contempt) enforcement of the challenged law against anyone beyond the named plaintiffs. And a three-judge court has no more power to do that than a single-judge district court.

Judge's Costa's solution does guarantee binding precedent and more quickly. SCOTUS's decision binds all courts to issue similar injunction to new lawsuits by new plaintiffs. And it prompts (although does not require) the federal government to stop enforcing the law. But that is as a matter of precedent,  not injunction or judgment. It also suggests that we should return to the pre-1976 regime of three-judge courts for all challenges to all federal laws.

We could recast Judge Costa's argument to require three-judge courts for those rare cases in which a universal injunction is warranted--truly indivisible rights and relief or 23(b)(2) injunctive class actions. That may offer a more direct solution to the real problem of the party scope of the injunctions--when the injunction must be broad, the case can be fast-tracked in this way. But it disconnects from the concern for the "importance" of the federal issues. For example, the sanctuary-city-funding regulations (which are the subject of two universla injunctions) are important, but the right and relief is not indivisible.

Posted by Howard Wasserman on January 25, 2018 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, January 23, 2018

JOTWELL: Bookman on Effron on privatized procedure

The new Courts Law essay comes from new JOTWELL contributor Pamela Bookman (Temple), reviewing Robin Effron, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion (B.U. L. Rev. forthcoming), which describes how private procedure and judicial control come together.

Posted by Howard Wasserman on January 23, 2018 at 10:37 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, January 22, 2018

One easy fix in Artis

A 5-4 Court held in Artis v. District of Columbia that the filing of a state-law claim on supplemental jurisdiction tolls the limitations period; where the court declines to exercise supplemental jurisdiction over the state claim under § 1367(c), the plaintiff has whatever time remained on the limitations period at the time of filing plus 30 days under § 1367(d). Justice Ginburg wrote for the Chief and Breyer, Sotomayor, and Kagan; Gorsuch wrote the dissent.

Gorsuch's dissent emphasized a concern that arose during arguments--that state courts may now have to deal with claims that were untimely by many years. This assumes that a claim might have been filed with, say, two years remaining on the limitations clock, would sit in federal court for several years, then would be filed in state court many years after it otherwise could have been. That was the case in miniature here--Artis was fired in November 2010 (facing a three-year limitations period on the state claims that gave her until November 2013), filed suit in December 2011, had her federal claims resolved on summary judgment in June 2014, and had the court decline supplemental jurisdiction over her state claim at that time. As the Court resolved the case, Artis could have filed in July 2016, more than 2 1/2 years after she would have had to file had she not gone to federal court.

Such timing should not be a significant concern in the mine run of cases. A district court should be able to decide early in the litigation whether declination is warranted. It should be obvious near the outset of the case whether the state-law issues substantially predominate or raise novel or complex issues of state law--if not from the complaint then from the responsive pleadings that raise additional state-law claims.

The problematic case is this one under § 1367(c)(3)--where the district court "has dismissed all claims over which it has original jurisdiction," meaning the federal claims. But this problem arises only because of how courts have interpreted "dismissed" in (c)(3). The word seems to contemplate a 12(b)(6) dismissal,* a decision typically made in the early weeks or months of an action.

[*] It cannot include a 12(b)(1) dismissal. If the court lacks subject-matter jurisdiction over the federal claims, it never could have had supplemental jurisdiction over the state claims. The court would be dismissing the state claims for lack of jurisdiction, not declining supplemental jurisdiction. Refiling would depend on the state's savings statute.

But courts have interpreted dismissed to include resolved on summary judgment, including in Aris. That adds the additional months and years that concerned Justice Gorsuch, as summary judgment often must await discovery and the lengthy exchange of information. As Brad Shannon (Florida Coastal) argued a decade ago, however, summary judgment is not a dismissal. If courts limited (c)(3) to dismissals, such time lags would be less likely to occur. A district court could not decline supplemental jurisdiction following a grant of summary judgment, so a case such as Artis (declination 2 1/2 years after the suit was filed) will not result in a declination or the need to refile in state court after the period has run. Declination, and thus tolling, would arise only where the court dismissed federal claims, which typically happens early in the process and much closer to the limitations clock.

Posted by Howard Wasserman on January 22, 2018 at 01:21 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Saturday, January 20, 2018

Cert granted in travel ban case

SCOTUS granted cert in the Ninth Circuit case, out of Hawaii, challenging the third travel ban. Included in the questions presented is "whether the district court’s order applies too broadly," meaning the Court may address head-on the propriety of universal injunctions (unless, as I somewhat suspect, the Court declares the ban constitutionally valid, in which case it may never reach the remedy question).

Posted by Howard Wasserman on January 20, 2018 at 11:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 18, 2018

National injunctions on NPR

Earlier Thursday, I appeared on AirTalk on KPCC (Southern California Public Radio) with Amanda Frost (American) to debate universal/national/nationwide injunctions. (I was filling in as the extremely poor-man's Sam Bray).

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

Wednesday, January 17, 2018

Universal, Not Nationwide, and Never Appropriate

The first draft of my article on universal injunctions is now on SSRN: Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation. I wrote this for a symposium at Lewis & Clark, which gave me a chance to get my thoughts on the subject on paper. And while this is an early draft, I wanted to get it out there, as this has become a hot topic both in the scholarly literature and the press. Comments welcome.

Moving forward, I will combine this piece with a discussion of judicial departmentalism to create a larger model of incremental constitutional litigation.

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

Tuesday, January 16, 2018

Argument recap in Hall v. Hall (Updated)

My SCOTUSBlog recap of the argument in Hall v. Hall is available. I think it will be the rout I expected. Petitioner's counsel did well and the Justices asked pointed questions and seemed dubious about aspects of both sides. But I think the respondent has the better of this because consolidation must mean something unique.

Update: Two additional thoughts.

Petitioner's counsel suggested a rule that reflects how I sometimes teach this material: Cases can be consolidated for all purposes only if the parties could have joined them in one action at the outset; if so, they become a single case requiring one final judgment. Otherwise, joinder is for limited purposes, the cases are not merged, and remain separate for finality. I teach this is how some courts approach consolidation, since 42(a) should not be allowed to override party choice in framing a case. Respondent's argument is that this may not help petitioner because the consolidation was for all purposes and petitioner waived the argument by not challenging or appealing the consolidation.

This case offers a good hypothetical on the various forms of joinder and their limits, an issue Ginsburg probed a bit at argument. The original lawsuit was brought by Ethlyn, their mother, against Samuel; when Ethlyn died, Elsa became plaintiff as executrix of the Ethlyn's estate. Samuel tried to bring his alienation-of-affection claim against Elsa as a counterclaim, but could not because Elsa in her individual capacity was not the plaintiff, so they were not opposing parties. Samuel likely considered impleading Elsa in her individual capacity, but could not, because the alienation claim was not contingent on the estate claims. All that was left was a separate lawsuit.

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

Monday, January 15, 2018

NY Times on (improperly named) nationwide injunctions

In the wake of a decision enjoining the DACA-repeal regulations, the Times has an article on recent nationwide/universal injunctions, especially in immigration cases. The article includes comments from Sam Bray (who wrote the definitive piece on the subject). (I have been writing about this at Prawfs for a while and my own effort in the debate, for a symposium at Lewis & Clark later this year, will be on SSRN in a few days).

A few thoughts on the article (much of which I have talked about and will hit in the forthcoming paper) after the jump.

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

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

Tuesday, January 09, 2018

Argument preview: Hall v. Hall (Updated)

I have a SCOTUSBlog preview of next Tuesday's oral argument in Hall v. Hall, addressing when a judgment dismissing one action is final and appealable when multiple actions were consolidated for all purposes under FRCP 42.

On the papers at least, this one has the makings of a rout. The petitioner (who sought to appeal dismissal of one claim while another remained pending and who argues that consolidated cases remain separate for finality purposes) is represented by her trial counsel from the Virgin Islands, who does not appear to have argued before the Court; the respondent (who argues that there is no final judgment until all claims in the consolidated case are resolved) is represented by Neal Katyal. A group of retired federal district judges filed an amicus in support of the respondent.

Worse, the petitioner never engages on the critical issue in the case--how to treat actions consolidated for all purposes compared with actions consolidated for limited purposes, such as discovery or trial. The petitioner insists that consolidated actions retain their separate identities and that the case is controlled by the spare finality language of § 1291. There is no difference in the scope or nature of a consolidation,. But that position may be inconsistent with footnotes in Gelboim v. Bank of America (which involved a discovery-only MDL consolidation) that consolidation may be for all purposes and may require a different rule for finality and appealability. Rule 42(a)(2) contemplates consolidation as distinct from joining some issues for some purposes. And Gelboim seems to contemplate different types of consolidation. The question in Hall is how different types of consolidation affect finality. But the petitioner's lawyer never engages that question.

[Update: The petitioner's reply brief (which was filed after I submitted my piece) points to the trial court issuing separate Judgments in each case as evidence that the consolidation was for trial, not for "all purposes." It therefore does not matter how finality may be affected by consolidation for all purposes, because this consolidation was not for all purposes. As I noted in the preview, the nature of the consolidation is in dispute and something the Court may have to resolve. Given how loosely trial courts label orders as judgments or not, I am not sure this has as much explanatory power as petitioner hopes]

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

Tuesday, January 02, 2018

Indiana tries to stop NFL kneeling--and would fail

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

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

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

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

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

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

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

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

Sunday, December 31, 2017

2017 Year-End Report of the Federal Judiciary

The 2017 Year-End Report of the Federal Judiciary was released at 6 p.m. Sunday. No dueling or lumberjacks this year, although the Chief could not help but throw in a history lesson about The Great Hurricane of 1780.

The primary theme this year was how the judiciary responds (and responded in 2017) to natural disasters. This was followed by a brief discussion of the "new challenge" for 2018 of dealing with workplace sexual harassment in the judiciary, discussing his called-for AO working group to examine policies and practices, including codes of conduct, employee education, confidentiality and reporting rules, and rules for processing complaints. He closed with an expression of confidence that the "overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies."

Posted by Howard Wasserman on December 31, 2017 at 06:41 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, December 21, 2017

Zervos v. Trump, in federal or state court

Richard Primus discusses an amicus brief he wrote in Zervos v. Trump, the defamation lawsuit filed by a former Apprentice contestant in New York state court (Zervos claims Trump sexually assaulted her and that Trump's denials effectively defamed her as a liar). Trump has moved to dismiss, arguing that a sitting President enjoys immunity from suit in state court (stated differently, Clinton v. Jones applies only in federal court). Primus's brief (written for Steven Burbank, Richard Parker, and Lucas Powe) argues that state and federal courts are no different for purposes of the President's amenability to sue.

The existence of presidential immunity does not matter in this case, because Zervos will refile in federal court on diversity jurisdiction (Zervos is from California, Trump is probably from New York, but definitely someplace other than California). The surprise when Zervos filed suit was that she had filed in state court (in Trump's home state, no less) rather than federal court. It might have been a fear of anti-plaintiff federal procedure and a desire to take extensive (embarrassing) discovery that she is more likely to get in state court than federal court. But the same law applies and the jury pool in the Southern District of New York is the same (and as anti-Trump) as the County of New York, so it is not obvious Zervos is better off in state court than federal court.

From the other side, though, it is worth wondering why Trump is bothering to raise immunity in this case, because it will not end or even delay the lawsuit. Does he so badly want to be in federal court? Is he trying to protect the presidency apart from his personal interests (something he has not been inclined to do)? Is he trying to make Zervos work for it?

Posted by Howard Wasserman on December 21, 2017 at 10:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, December 15, 2017

About that Judiciary Committte Hearing

Matthew Spencer Petersen, an FEC commissioner and a nominee to the United States District Court for the District of Columbia, had a rough time at his confirmation hearing Wednesday when he was unable to answer probing legal questions requiring nuanced analysis (asked by Republican Sen. John Kennedy). These included "Do you know what a motion in limine is," "Do you know what the Younger abstention doctrine is," and "How about the Pullman abstention doctrine."* Kennedy also asked Petersen if he had "read" the FRCP and FRE.

[*] I am proud to say that I teach each of those things in my courses. My new pitch to upper-level students during course-selection time will be "If you want to be a federal judge, take my courses."

A couple of thoughts about the entire thing:

1) Kennedy began by asking the full panel of Petersen and four other nominees whether any had tried cases to verdict or taken depositions. The "never tried a case" thing has been a recurring theme with several of Trump's district-court nominees, but I am not a fan. There is benefit to having judges from various backgrounds on all courts, including legislative-branch and non-judicial executive-branch experience (which would not allow a nominee to have tried or litigated a case). That a district-court judge has never litigated a case (not "tried," since most cases do not go to trial) should not be disqualifying.

2) Petersen sort-of tried the latter move by describing his role in supervising the FEC attorneys who litigate on behalf of the FEC and who thus deal with the FRE and FRCP and motions before judges--"no, I have not argued the motion, but I have overseen the lawyers who do and I am familiar with this work." But that set him up for the questions revealing he did not know anything about what these lawyers do.

3) The problem is that Petersen apparently had never heard of basic legal concepts. It was not that he could not ask answer questions about their appropriate scope or how they should apply. He could not give basic definitions or describe the basic ideas behind these doctrines. The real revelation here was less Petersen's unfitness (although he is unfit), but his arrogance. He was so certain he will be confirmed and that this was a dog-and-pony formality that he did not take two hours to look up the basic definition of legal issues or become less-than-minimally conversant about basic procedural issues that he hopes to spend the next forty years dealing with. He believed he could walk in, sit through the couple hours before the committee members, and be home free to a lifetime appointment. And that may be more disqualifying that not knowing basic legal principles. Watching Petersen, he did not appear embarrassed or bothered or ashamed by the spectacle.

4) No one "reads" the FRCP or the FRE, so the question itself was bad. Were Petersen smarter, he might have responded "I have not read them like a book, because that is now how one deals with a code. But I am happy to answer questions about specific rules or overarching ideas contained within the FRCP." That might have stopped Kennedy in his tracks (see below). But Petersen could not have answered those next-level questions, so this option was not open to him.

5) [Added thought]: The questions Kennedy asked were effective in making Petersen look stupid. But the questions could not have shown much about Petersen's qualifications, regardless of his answers. He would not have shown himself fit by saying "A motion in limine (Latin: "at the start", literally, "on the threshold") (Latin pronunciation: [ɪn ˈliːmɪˌne] in LEE-min-ay) is a motion, discussed outside the presence of the jury, to request that certain testimony be excluded" or "Younger abstention, named for Younger v. Harris, 401 U.S. 37 (1971), is less permissive to the federal courts, barring them from hearing civil rights tort claims brought by a person who is currently being prosecuted for a matter arising from that claim in state court" (those are cut from the first sentences of the Wikipedia definitions). Yet he did not do that basic work (see # 3).

6) Am I alone in doubting that Sen. Kennedy knows what Younger or Pullman is? Or, at least, that he would be unable to have asked more than "have you heard of it" questions?

7) Petersen will be confirmed. Kennedy will vote in favor, both in committee and on the floor. So I will not even be able to use this as a sales pitch, because the students can always say "well, Matthew Petersen is on the D.D.C. and he doesn't know Younger, so why should I."

8) Here is the video, if you have not seen it. Regardless of outcome, it is worth watching

 

 

Posted by Howard Wasserman on December 15, 2017 at 10:47 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (13)

Tuesday, November 28, 2017

The Judicial Power Over Patents and the Future of Administrative Adjudication after Oil States

The following guest post is by my FIU colleague Hannibal Travis, Professor of Law at FIU College of Law and this semester the Irving Cypen Visiting Professor of Law at University of Florida. He wrote about Oil States prior to argument.
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Although in a less spectacular way that in some other oral arguments, yesterday’s oral argument in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC put competing judicial philosophies on brief display.  Emily Bazelon, Eric Posner, Cass Sunstein, and others argue that one major “judicial philosophy,” by seeking to limit the discretion of administrative agencies, “would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers.”  Another judicial philosophy of “minimalism” and “majoritarianism,” according to Sunstein, would result in “reasonable” regulations being upheld from constitutional challenges.  There was a subtext of this struggle between constitutional worldviews as the justices questioned attorneys in Oil States.

The Ancient Doctrine of Vested Rights

Apart from the private rights theory of Article III that has been the focus of most briefing and commentary on Oil States, Justice Breyer highlighted the “vested rights” theory, commenting that it “had great popularity in the 19th century and might have moved Justice Story but in fact has happily sunk from sight.”  Justice Gorsuch had described Justice Story as concluding that once a patent is granted, it is a private right secured to its owner.  This sets up a potential 5-4 or 6-3 split in which Justice Breyer writes or joins an opinion strongly defending the administrative state from constitutional counter-majoritarianism, with Justice Gorsuch on the other side.

Constructing Left and Right in Article III Jurisprudence

In the era of the Greatest Generation, the Supreme Court’s left tended to take the side of due process and an independent judiciary, while the right found administrative adjudication to be acceptable.  This may play out a little bit differently in Oil States than in Northern Pipeline.  In the latter, Justice Brennan, typically associated with the judicial left, wrote a plurality opinion seemingly confining Article I courts to a small area covered by three categories, adding that an independent judiciary shields litigants from judges subject to “improper influences not only by other branches but by colleagues as well.”  Three conservative justices, led by Justice White, maintained that Article III’s preference for an independent judiciary should be balanced in an ad hoc fashion with “congressional values and … responsibilities.”

However, even Justice Brennan wanted to distinguish, and perhaps allow non-Article III courts to adjudicate, rights created by Congress as opposed to by the common law or state statutes.  This possibility led to much dialogue at yesterday’s oral argument about whether, not being obligated to create patent rights, Congress may condition them upon post-grant agency proceedings, or whether on the other hand, as Allyson Ho argued for Oil States, “in the Article III context, where Congress is taking a category of cases that have been adjudicated in courts for centuries and removes those cases -- withdraws those cases to a non-Article III tribunal, that impacts … the individual rights guarantees that Article III [contains]….”

The Oil States oral argument is being presented as a clash between a left that supports the PTO, and a right led by Justice Gorsuch that is defending private property.  In 2011, the four justice who are often portrayed as the Court’s liberals rejected Justice Brennan’s opinion in Northern Pipeline as an “analysis that did not command a Court majority …. and that was subsequently disavowed” in, among other cases, CFTC v. Schor, 478 U. S. 833 (1986).  They would have revived the principle from Crowell v. Benson, 285 U. S. 22 (1932), that Article III provides a right to appeal a judgment to an independent judge, not a right to a judge who initially decides all factual issues.  Therefore, in Crowell, an administrative adjudication of a private employer’s liability to an employee under a federal harbor worker’s compensation law, subject to appeal to federal district court for noncompliance with law or lack of support in the record, was consistent with Article III.  Except for patents being “property,” perhaps unlike an employer’s defense to a federal statutory claim, it would be a small step from that premise to say that the PTO can revoke patents, subject to appeal to the Federal Circuit for legal error or lack of evidence.

Defusing the Northern Pipeline Bomb

Justice Kennedy possibly signaled a fifth vote in favor of inter partes reviews passing Article III muster when he distinguished Stern v. Marshall, 564 U.S. 462 (2011), as involving a right not created by Congress.  In Stern, the Court held that a non-Article III court could not render a final judgment on a state law counterclaim, despite its relationship to a claim voluntarily filed in bankruptcy court by the counterclaim defendant.  As Malcolm Stewart pointed out for the government, “Stern versus Marshall and Northern Pipeline … are really directed at a different sort of problem,” because the “adjudicator was being asked to determine whether one party was liable to another for a violation of [state] law.”  This argument might be gaining some traction, despite the argument that Northern Pipeline merely echoed McCormick Harvesting and American Bell in insisting that private rights be enforced (or set aside) in Article III courts.

Introducing a Parade of Horribles

Justices Ginsburg and Sotomayor questioned counsel for Oil States about whether the PTO must allow its worst mistakes to be perpetuated if patents are private rights immune from revocation by the PTO, or by anyone other than a lay jury for that matter (assuming genuine issues of fact as to validity).  Justice Sotomayor asked whether, “somehow at the founding in 1789, given the replete English history of the crown and the Privy Council … sidestepping any judicial adjudication of validity, …  in 1789 the founders intended to change that system as radically as to say, no, we're not going to permit … the legislature to change the terms of a patent grant?” 

None of the justices seemed to question whether the Privy Council was thought in 1789 to have the power to revoke issued patents.  For justices who share this premise of the government in the case, it may seem to open Pandora’s Box to make flawed and foolishly granted patents administratively irrevocable, without a good constitutional reason to do so.  (Incidentally, patent law historians H. Tomás Gómez-Arostegui and Sean Bottomley make a strong case in their amicus brief that between 1780 and 1800, the Court of Chancery sitting as a law court sent patent validity issues for final judgment to the King’s Bench, and that the Privy Council’s power to revoke patents had fallen into disuse and virtually out of living memory.)

The Takings Turn

Justices Breyer and Gorsuch seemed concerned that a patent owner who has invested large sums of money in manufacturing a product may be divested of the patent rights by a non-Article III court.  This led to a line of questioning about whether the government could declare land held for decades to be subject to revocation by administrative panels within the Department of the Interior, before the landowners could sue other private parties for trespass.  

As Justice Kennedy pointed out, the Constitution refers to a congressional power for “securing” to inventors the “exclusive right” to their discoveries, not securing to Congress or the presidency the discretion to adjust issued patents in the public interest, etc.  The observation echoed a statement by the Supreme Court in 1888: “The patent, then, is not the exercise of any prerogative power or discretion by the president, or by any other officer of the government, but it is the result of a course of proceeding quasi judicial in its character, and is not subject to be repealed or revoked by the president … or the commissioner of patents, when once issued.”

The Takings Clause analogy to the Article III problem may cut both ways for Oil States, however.  Justice Roberts asked:

What is … the relationship between your position and the takings clause? The government can certainly diminish the value of your property rights quite extensively when it comes up with [a] new regulation. You have a lot that you think you could have built a mansion on, and then the government passes a law and you can only build a shed on it and … yet we often … give the government a lot of leeway in saying that … that they don't have to pay compensation. So, if the government can restrict your property right in real property to that extent, why can't it do so with respect to patent rights?

Most of the way through Mr. Stewart’s argument, Justice Breyer suggested reserving the Takings Clause question for another day, perhaps after a ruling in favor of the government on Article III.  Interestingly, these portions of the argument invert the supposed politics of the Court, as Chief Justice Roberts normalizes the regulatory erosion of property rights in the public interest, and Justice Breyer suggests that a massive disruption of investment-backed expectations is a taking.

Shoring up the Schor Test

One outcome of Oil States might be a decision upholding the inter partes review system of the America Invents Act, but clarifying why it is a special case and that other investments are not at risk of being caught up in administrative revocation under White House pressure.  Chief Justice Roberts asked whether the multi-factor Article III test articulated in Schor provides sufficient guidance to investors contemplating the manufacture and launch of a patented product.  Schor seemingly expanded Crowell into Justice White’s ad hoc balancing test from Northern Pipeline for sustaining non-Article III procedures.  Schor, which had the backing of seven justices, Justices Brennan and Marshall dissenting, looks to broadly-framed “factors”: whether the courts maintain the “‘essential attributes of judicial power’” despite the administrative adjudication at issue, “whether the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III.”  A firm requirement of historical understandings that a claim did not exist or was decided administratively and outside of law courts in 1789 would be more protective of judicial independence under Article III, and of the right to a civil jury.  Alternatively, a consent theory based on the possibility of a reexamination of patent claims by the PTO under a 1980 statute at the time Oil States filed could decide this case, without endorsing Schor.

Copyright Lurking in the Background

Although the government was asked whether the PTO could hear infringement actions consistent with Article III, copyright small claims and initiatives such as the Stop Online Piracy Act did not come up.  The government’s response to the question, however, indicated that such evasions of Article III would be difficult to sustain due to the lack of historical precedents.  Presumably the answer was aimed at compulsory agency adjudication and not to voluntary small claims tribunals like the proposed Copyright Claims Board.  If Oil States is based on a consent theory tied to a patent application being filed subject to a statutory scheme that warns the applicant that an issued patent may be reexamined or revoked, there will be few implications for copyright damages actions outside of Article III courts.  However, if five or more justices adopt broad readings of Crowell, Schor, or the Northern Pipeline dicta concerning congressionally-created rights being subject to congressional remedies and limitations, the copyright small claims movement will have a major precedent to draw on in Congress and during constitutional challenges.  

From a copyright perspective, the Oil States oral argument was noteworthy for what was not said.  Given the briefing on the Seventh Amendment and the fact that Justice Thomas wrote one of the landmark opinions in Seventh Amendment jurisprudence, some might have looked forward to a discussion of the right to a jury trial and the implications of Feltner v. Columbia Pictures, 523 U.S. 340 (1998).  The Seventh Amendment and the concept that jury trials shall be “preserved” did not come up, other than in the start of the government’s argument.  Justice Thomas did not ask any questions, and Justice Alito asked only one: whether Congress, which had the power not to enact any patent regime, was within its rights to enact one issuing patents subject to post-grant cancellation.  If the Court lumps the Seventh Amendment inquiry together with the jurisprudentially distinct Article III inquiry, and resolves the latter by expanding Crowell, Schor, or some other doctrine justifying non-Article III courts, collateral attacks on default judgments involving small copyright claims may fail.

Posted by Howard Wasserman on November 28, 2017 at 11:25 PM in Civil Procedure, Intellectual Property | Permalink | Comments (0)

Monday, November 27, 2017

JOTWELL: Michalski on Dodge & Dodson on personal jurisdiction

The new Courts Law essay comes from Roger Michalski (Oklahoma--one of several new contributors to the section), reviewing William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, Mich L. Rev. (forthcoming), which argues for a national-contacts test for personal jurisdiction over non-US persons.

Posted by Howard Wasserman on November 27, 2017 at 12:19 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The future of intellectual property and the administrative state: Oil States v. Greene’s Energy (Guest Post)

The following guest post is by my FIU colleague Hannibal Travis, Professor of Law at FIU College of Law and this semester the Irving Cypen Visiting Professor of Law at University of Florida.

The Future of Intellectual Property and the Administrative State: Oil States v. Greene’s Energy

Efficient dispute resolution is something of a Holy Grail in intellectual property (IP).  Several of the major innovations in the field over the past two decades chased it: WIPO domain name dispute resolution, the statutory license process for webcasters and digital downloads of cover songs, the introduction of an theory of induced infringement into copyright jurisprudence affecting online intermediaries, the evolution of copyright filters such as ContentID and Audible Magic CopySense, and the America Invents Act of 2011.  The results have been mixed in many cases. 

The question being presented to the Supreme Court this week is whether the Constitution limits the trend towards dispensing with the trappings of federal civil procedure in certain IP disputes.  The Patent Trial and Appeal Board of the U.S. Patent and Trademark Office (PTO) has been considering more than 1,000 petitions per year, on average, for inter partes review (IPR) of patent claims that were not novel or that were obvious considering the prior art.  Patent law specialists comb through voluminous filings citing often obscure technical publications and foreign patents in a way that would be too time-consuming and expensive if done for each of the 500,000 patent applications submitted annually.

While the cancellation of an improvidently issued patent is a relatively narrow issue, the broader questions of when an Article III court should review the validity of rights underlying a claim for money damages, and when a jury trial is available as of right for such a claim, will have broader implications.  Most notably, the Court’s opinion in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, will affect the default judgments that are likely to multiply in copyright cases if small claims legislation is passed to reduce the cost of enforcing copyrights.

Many years ago, the Federal Circuit resolved a constitutional challenge to the system of reexamining issued patents whose validity would traditionally have been handed to a jury for resolution.  The court began with the principles that patents are property rights protected by the Fifth Amendment from deprivation without due process and from takings without just compensation and public use.  It emphasized that a patent is a right to exclude granted to generate value through licensing, and to encourage risk-taking that will advance the useful arts.  Prior to a 1980 statute, which became effective in 1981, Article III courts handled the cancellation of issued patents’ claims.  The plaintiff in the challenge had been issued patents in the late 1970s based on an application from 1959, but on the eve of jury trial in 1982, the case had been continued pending a reexamination under the new statute.  The Federal Circuit rejected the plaintiff’s Fifth Amendment, Seventh Amendment, and Article III claims against the Commissioner of Patents and Trademarks, holding that patents are “public rights” dependent on a government grant under Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).  The Court in Northern Pipeline looked for a textual commitment of a class of cases to the executive branch to limit the Article III power, or a comparable “historical understanding” that executive officials could decide certain matters.

The basic premise of Northern Pipeline and its predecessors is somewhat problematic.  The fact that England had certain practices does not necessarily make them compatible with the Bill of Rights.  The Seventh Amendment and Article III Judicial Power were intended to protect life, liberty, and property from the executive and legislative branches, which could “overwhelm[]” the British judiciary.  Even Northern Pipeline distinguished territorial courts, courts-martial, and other traditionally non-“judicial” forms of dispute resolution from Congress enacting legislation to assign issues to Article I courts under an Article I power such as the Commerce Clause or the Copyright and Patent Clause.  As the Civil Jury Project at NYU argues in its amicus brief, the exemption of “public rights” from the Seventh Amendment lacks “support in the amendment’s history or text, and if interpreted too broadly would empower Congress to sidestep civil juries altogether.”  Justice White articulated better and more manageable distinction between public rights and private ones in 1977, in holding that the Seventh Amendment is not violated when Congress “created a new cause of action, and remedies therefor, unknown to the common law….”  Causes of action known to the common law are different, this theory would suggest. 

The Solicitor General of the United States and the PTO point out, as do many amici, that the Supreme Court adopted a seemingly broad standard for public rights in 2015, that bills seeking to cancel a patent were historically equitable in nature and therefore not subject to jury trial, and that the Privy Council--an entity linked to the English Crown--could void patents based on lack of novelty or filing by someone other than the true inventor.  The executive branch frequently strips individuals of their property rights, and IPRs are an easier way to do so, they claim.

The Obama administration defended the AIA as alleviating “problematic” aspects of patent litigation by enabling or accelerating post-grant review of issued patents.  It criticized the court system as allowing “legitimate innovators” to be “tied up” in litigation.  Some innovators even had to settle cases, the administration lamented.

In the New York Times, Eduardo Porter argues that drug prices will be lower under the AIA, and that there is no evidence that a “stringent” patent system helps the economy in any event.  The first point seems to be undermined by evidence that pharmaceutical prices have risen more rapidly under the AIA regime, reaching an annual percentage rate of increase in 2015 that was double the rate in 2010 (p. 29 of the link).

A better argument is that the PTAB will save potential infringers litigation costs.  Perhaps this argument proves too much, however.  How would many of the companies seeking to preserve a low-cost way to invalidate patents feel about low-cost methods to uncover accounting irregularities, wage and hour violations, or unpaid copyright royalties to musicians?

Another interesting question is whether the AIA will reduce prices, which are kept high by patents.  Professor Porter links “stringent” patents to research claiming that there has been a “drastic increase” in pricing power – or markups (roughly sales minus cost of goods sold) – among all publicly-traded firms, and also among the larger set of all IRS tax filers.  Interestingly, the trend line on markups starts to change dramatically in about 1980, just before efforts to strengthen U.S. patentholders’ positions.

Again, there are reasons to doubt this claim. 

First, the research on markups attributes the enhancement of pricing power to a broad array of intangibles, which have increased in number and in strength alongside patents: copyrights, trademarks, franchises, and other intangible assets.  Starting with brand value alone, it reached the impressive level of $790 billion in 2017 at 10 companies alone, including $184 billion for Apple and $48 billion for Facebook’s.  Patents like those on the iPhone interface can be invented around without too much difficulty many times, even when they aren’t canceled under the AIA, but brand value is elusive.  Trade secrets can also be quite valuable, as Alphabet’s Waymo alleges in its lawsuit against Uber.  Perhaps trade secret theft does not cost the economy $300 billion annually, as an advocacy group asserts, but trade secrets in aggregate may be worth tens of billions of dollars.  Disney’s effort to take in 65% of the revenue from screenings of next month’s The Last Jedi illustrates how copyrights can drive markups, especially after a transaction like the $4 billion deal for Lucasfilm.  Intangibles other than trademarks, copyrights, and trade secrets have also proliferated, such as the millions of derivatives contracts on five U.S. banks’ balance sheets, bearing a notional value of more than $220 trillion.   

Second, the most patent-intensive products see some of the most remarkable declines in price despite increases in quality.  This contrasts with books, for example, which are sold today at quality levels often no better than those our forebears had access to, but at prices two to 15 times what they would have paid.  The very rich in the 1970s or 1980s might have paid millions of dollars for an iPhone, but it could not be had at any price.  Another interesting example is the PlayStation 2, presumably another “victim” of patents due to the many overlapping rights implicated by its games processor and graphics synthesizer chips, possibly including Nintendo’s 3D image processing patents.  The PS2 fell in price from $299 at launch to $99 in 2009, before the AIA was passed.  The Playstation 3, which had more than 100 times the power of the PS2, fell in price by Cyber Week 2012 to less than the PS2 at launch, or $219.

Third, the decline of startup activity that is supposed to be the mechanism for high markups – because large firms increasingly lack vigorous competition from newcomers – could just as easily be blamed on weaker patents as on “stringent” protection of patents.  The research in this area points to “transformational” entrepreneurs who want to revolutionize a product category or service sector, and who account for a disproportionate share of growth within industries.  Like many famous inventors who go on to become billionaires, such entrepreneurs may seek patent protection.  The PTO released a working paper in 2015 finding that among thousands of startups that went public or were acquired, those that had a patent application approved were 53% more likely to obtain venture capital or similar investments.  The National Venture Capital Association argues that patents “are the main way in which potential investors, namely venture capitalists, can assess whether a company has … a unique advantage.”

In any event, the AIA would not be the only or even the most efficient way to address high drug prices, even if that had been the goal of Congress or the White House.  The Patent and Trademark Office could simply issue a memorandum suggesting that examiners reject the sort of patents found invalid by the PTAB for combining existing dosing methods with expiring chemical compound (or drug) patents.

Turning to the issue of whether Oil States could help reign in a “stringent” patent system that is unhelpful by academic consensus, the system may be no stronger than years or decades ago, even as we learn more about its potential economic benefits.  The median patent damages award in 2016 was $6.1 million, down from 1997-2006.   Moreover, nearly two-thirds of patent holders are unsuccessful in court, not counting settlements, and only 2% of cases result in a damages award.  Recent research into innovation suggests that most significant inventions were not patented, and that Switzerland and the Netherlands were as innovative without patent systems as other countries with them were.  Even this work, on the other hand, emphasizes that correlation studies indicate that patentability is a “primary driver of innovation.”   For example, a study of inventions originating in 27 countries showed that the number of patent applications from a given country in the United States is strongly correlated with research and development investment by private industry in that country.  Brazil, China, India, and Russia have seen innovation and foreign investment increase markedly after providing stronger patent and trademark protection.  Global research and development spending has doubled in a 25-year period.

Critics of the PTAB suggest that it often comes out with conclusory and arguably wrong decisions.  So-called “objective evidence” that an invention is not obvious, for example, is typically downplayed by the PTAB, even though the Federal Circuit calls such evidence “critical.”  Vital discovery into documents probative of this issue is often denied to patentees.  Moreover, the PTAB arguably misapplied the definition of a “covered business method” from the American Invents Act in at least two cases.  It is possible that PTAB judges whose firm represented a party on a related matter more than one year prior to the institution of IPRs could decide IPRs in which the party is involved.  Finally, the pharmaceutical industry argues that IPRs have an “extraordinarily lopsided track record” and that “the PTO has admitted to reconfiguring panels to alter outcomes,” threatening due process.  While appeal to the Federal Circuit can and should cure most errors, the practice of summary affirmances undermines this safeguard.

Looking to the future, there are several ways in which a decision favorable to the PTO could affect the copyright system.  Congress might be encouraged to pass small claims legislation, and even to make it mandatory rather than voluntary subject to a potential default judgment, as current drafts envisage.  Although an action for damages involving copyright infringement is distinguishable from cancellation of a patent, which has more obvious equitable analogues, many of the arguments in Oil States point more broadly to considerations of deference to Congress, expert panels, cost reduction, and comprehensive statutory schemes.  If accepted by the Supreme Court, these theories may apply to a Copyright Claims Board staffed by copyright experts and handing out awards of up to $30,000 per proceeding, plus up to $5,000 in attorney’s fees against defendants who maintain unreasonable defenses.  The Copyright Office has even asked for comments as to whether injunctive relief should be included in such a regime.  Like the PTAB, such a regime might accelerate the process of dispensing with probing examinations of applicable arguments, and their submission to civil juries, in favor of fast and cheap decisions.

Posted by Howard Wasserman on November 27, 2017 at 09:31 AM in Civil Procedure, Intellectual Property | Permalink | Comments (2)

Sunday, November 26, 2017

Who heads the CFPB and how to find out?

Marty Lederman deconstructs (and questions) the OLC memo concluding that the President's appointment of Mike Mulvaney was lawful and controlling. Sam Bray argues that the answer is a quo warranto action filed by the AG or the US Attorney for the District of the District of Columbia.

On Sunday, Leandra English filed suit in the District of D.C., seeking a TRO and declaratory judgment (with a passing reference to a writ of mandamus) that she is the lawful Acting Director and that the Mulvaney appointment is invalid. The suit names Trump and Mulvaney as defendants, for a declaration barring Trump from appointing any other Acting Director and barring Mulvaney from asserting the authority of the office.

Posted by Howard Wasserman on November 26, 2017 at 10:28 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, November 21, 2017

Facial unconstitutionality does not support universal injunctions

Judge Orrick of the Northern District of California on Monday permanently enjoined (order embedded in story) enforcement of the administration's sanctuary-cities order. As with the April preliminary injunction, Judge Orrick made the injunction nationwide (really, universal). I criticized his reasoning for the universal preliminary injunction and the reasoning in this is not much better. The order again quotes Califano v. Yamasaki, ignoring that the order in that case involved a plaintiff class, not individual plaintiffs--universality made sense, as everyone in the class was a plaintiff protected by the injunction.

The court also relies on the fact that it found the regulation unconstitutional on its face, not simply in its application. But facial as opposed to as-applied goes to the scope of the judicial analysis. It should not go to the scope of the court's remedial authority. And it should not empower a district court to issue an order binding every district court in the country in actions involving different plaintiffs and subjecting the federal government to contempt sanctions for enforcement efforts having nothing to do with the two plaintiffs. Slapping the "facial" label on constitutional analysis should not so enhance the court's precedential or remedial authority.

Posted by Howard Wasserman on November 21, 2017 at 11:33 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (12)

Sunday, November 19, 2017

Reminder: Discovery is a two-way street

Attorneys for Alabama Media Group responded (copy of letter, free from typos and grammatical errors, in story) to the insane and incoherent letter from Roy Moore's attorney. In addition to standing by the story and denying the claims in the initial letter, AMG's lawyers say they expect litigation "would also reveal other important information about your clients" and makes a counter-demand that Moore preserve and maintain documents, materials, and information that "is or could remotely be relevant in any manner to any of the claims that you have made." This includes information relevant to Moore's "romantic relationships or physical encounters (whether consensual or not)."

This was not as brazen as the New York Times letter from October 2016, which expressly dared Trump to sue. But both are interesting examples of an emerging genre of legal writing.

Posted by Howard Wasserman on November 19, 2017 at 11:46 PM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, November 13, 2017

JOTWELL: Effron on Trammell on precedent and preclusion

The new Courts Law essay comes from Robin Effron (Brooklyn, visiting at Notre Dame), reviewing Alan M. Trammell, Precedent and Preclusion, ___ Notre Dame L. Rev. (forthcoming), which considers the due-process connections of precedent and preclusion. 

I am anxious to read Alan's piece, as the distinction between precedent and preclusion is central to a theory of judicial departmentalism.

Posted by Howard Wasserman on November 13, 2017 at 03:06 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Friday, November 10, 2017

Procedural posture in First Amendment cases (Updated)

Update: Note the clarification below, as I was not precise enough. The questioner was asking about cases in which a preliminary injunction was sought and denied. In White (and one case I thought of, Simon & Schuster), the plaintiff did not move for a preliminary injunction. Instead, the parties went straight to cross-motions for summary judgment on permanent injunctive relief.

A question was asked of me: Can we think of significant First Amendment cases in which the lower courts denied a preliminary injunction barring enforcement of a law, then SCOTUS granted cert., reversed, and held that the challenged law is not enforceable?

The only one I could come up with off the top of my head is Steffel v. Thompson. And there the lower courts denied relief on standing and Younger grounds, never reaching the First Amendment merits.

Any cases that fit this description, where the lower courts declared the law constitutionally valid and declined to enjoin, then SCOTUS granted cert to reverse?

Posted by Howard Wasserman on November 10, 2017 at 12:07 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (3)

Thursday, November 09, 2017

The overwhelming effect of stays pending appeal

The Second Circuit denied a stay pending appeal of the denial of an injunction barring suspension of NFL running back Ezekiel Elliott. The court referred to it as an "injunction pending appeal," which is wrong and the improper terminology makes the media reporting on this more confusing than usual.

Tracing the history of this case is a Fed Courts or Remedies problem all its own: 1) Elliott was suspended for six games and an arbitrator upheld the suspension; 2) a judge in the Eastern District of Texas issued a preliminary injunction barring enforcement of the suspension (allowing Elliott to play); 3) the Fifth Circuit reversed, holding that the district court lacked jurisdiction, grounds that were arguably incorrect, although the result was probably right (barring Elliott from playing); 4) the union and player filed suit in the Southern District of New York; 5) a district judge granted a TRO (allowing Elliott to play); 6) the same judge refused to grant a preliminary injunction (barring Elliott from playing); 7) the Second Circuit granted a temporary stay of the denial of the preliminary injunction (allowing Elliott to play) pending fuller consideration of the motion to stay; 8) the Second Circuit today denied a full stay pending appeal, allowing the judgment denying the preliminary injunction to go into effect, meaning the suspension goes into effect and Elliott will not be able to play on Sunday (unless SCOTUS gets involved).

Even more than in the marriage-equality litigation, the stay question dictates the result in these cases. Although the Second Circuit granted expedited appeal, it is not clear that the case will be resolved before Elliott has missed six games. The question is the weight the likelihood-of-success prong bears in these cases--it is hard to overturn an arbitrator's decision, so Elliott was not likely to succeed in having the denial of the injunction reversed. And that may have convinced the court of appeals there was no irreparable harm in having the suspension take effect.

Posted by Howard Wasserman on November 9, 2017 at 05:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, November 08, 2017

More jurisdictionality from SCOTUS

My opinion analysis for Hamer v. NHSC is up on SCOTUSBlog. As I predicted, the Court unanimously (through Justice Ginsburg, who cares most deeply about these issues) held that FRAP 4(a)(5)(C)'s 30-day limit on extensions to file notices of appeal was not jurisdictional, then punted issues of waiver, forfeiture, and equitable exception to the Seventh Circuit for initial consideration. A few additional thoughts.

Despite mentioning it at argument, the Court did not mention or cite Scott Dodson's arguments that the rule is jurisdictional because it allocates cases between courts, but the label matters less than the consequences (waiver, forfeiture, equitable exception, etc.) that a rulemaker attaches to the rule. Jurisdictional rules are mandatory only if Congress makes them mandatory; non-jurisdictional rules can be mandatory if Congress makes them mandatory. The Court did speak of timing rules "governing the transfer of adjudicatory authority from one Article III court to another," which smacks of the allocation concept that Scott uses. But the Court could not move past the label above the effects of the rule (which are not dictated by the label).

The "clear and easy" rule of decision the Court announced is that "If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category." This does not mention the Arbaugh rule that a rule is jurisdictional only if Congress speaks in jurisdictional terms. But the synthesis is that Congress can speak in jurisdictional terms, while the Court under the REA never can speak in jurisdictional terms.

In an email, Scott identifies some problems and open questions from describing the issue as the timing for transferring adjudicatory authority from one court to another. This would make timing limits in transfer-of-venue statutes or statutes governing the time for filing cert. petitions jurisdictional. Another question is whether the same rule applies to transfers of authority from state court to federal court, which would make timing requirements for removal and cert. petitions from state courts jurisdiction. Or it would mean that the time for filing a petition from federal court would be jurisdictional, while the time for filing a petition from state court might not be. Scott argues that these open questions show that the rule is not so "clear and easy."

Posted by Howard Wasserman on November 8, 2017 at 08:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, November 01, 2017

A Rule 60 Mechanism for Baseball Playoffs?

As the baseball world turns to the greatest single game in any season -- World Series Game 7 -- Washington Nationals fans are still lamenting what might have been. The Nationals lost to the Chicago Cubs in the decisive Game 5 of the National League Division Series in a game that included a truly bizarre 5th inning that may have ultimately dictated the outcome. 

The powers-that-be at MLB have admitted that the umpires in that 5th inning made a crucial mistake, which surely changed the results of that 5th inning and could have changed the outcome of the game itself. Not only did that error potentially affect who won the game and thus which team moved on to the next round of the playoffs, it also may have inadvertently led the Nationals to essentially fire their manager, Dusty Baker, and hire someone else.

So here's my question: should there be a recourse for something like this occurring, similar to Rule 60 of the Federal Rules of Civil Procedure? Should the Nationals be able to ask MLB for "relief" from that "final judgment," especially in an extraordinary case such as this?

Let's first examine what happened in that crucial 5th inning. The Cubs had already scored two runs that inning, making the score 5-4 in Chicago's favor. With two outs, and a runner on second, Nationals pitcher Max Scherzer struck out Cubs batter Javier Baez. However, the ball went past Nationals catcher Matt Wieters for a dropped third strike, allowing Baez to go to first and the runner on second to score. Here's the problem: on Baez's swing-and-miss, his bat hit the catcher Wieters. Under MLB Rule 6.03, the umpires should have ruled that action to cause a "dead ball" on the spot, meaning that Baez would have been out and no runners would be allowed to advance. The inning should have been over. Here is the text of the rule:

If a batter strikes at a ball and misses and swings so hard he carries the bat all the way around and, in the umpire’s judgment, unintentionally hits the catcher or the ball in back of him on the backswing, it shall be called a strike only (not interference). The ball will be dead, however, and no runner shall advance on the play.

The umpires conferred after the play but ruled that Baez could advance to first and allowed the runner from second to score. They ruled that the ball was not dead. But as Joe Torre, MLB's Chief Baseball Officer, admitted

“You know, the whole rule interpretation — there’s rules, and then there’s instructions to the umpires. There’s separate books. And what Jerry’s feeling was, that the interference didn’t take precedent over the fact that the ball was already past [Wieters] when the contact took place.

“However, the rule states — and you probably have read the rule — that when contact is made — in other words, when the bat came around and hit the catcher’s mask — it’s a dead ball. It’s a dead ball. And that’s the one thing that should have taken precedence.”

Instead of that inning ending with Nationals down 5-4, one run scored on that missed call, and the Cubs scored another run that inning as well to go up 7-4. The Cubs eventually won the game 9-8.

Of course, we will never know how the game would have played out had the umpires made the correct call. But there's at least a plausible argument that the Nationals would have come back and won the game. The Cubs went on to the National League Championship Series (where they lost to the Dodgers). The Nationals had lost their second NLDS Game 5 in two years. And their manager, Dusty Baker, was told not to come back for next season -- mostly because he had not won in the playoffs.

Thinking, now, of the parallel in civil litigation, it seems like this situation would call for a Rule 60-type remedy. Rule 60(b) provides

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... (6) any other reason that justifies relief.

To be sure, courts are typically quite reluctant to grant a Rule 60(b) motion, but it happens at times, particularly when an error is obvious and egregious. 

What would a Rule 60(b)-type remedy for this baseball game look like? I suppose that MLB could restart the game from the end of the 5th inning, when the mistake occurred. For instance, in the famous 1983 Pine Tar game, the teams resumed play 25 days later from the spot in the game when the mistake happened. 

One crucial difference between the Pine Tar game and the Nationals playoff game is that the Royals in that 1983 incident put the game under protest right then, while the Nationals did not. But why should that make a difference? Rule 60(b) does not require an immediate objection to preserve the ability to bring the motion (Rule 59 has stricter timing requirements for challenging a final judgment). The whole point is to relieve an aggrieved party from the effects of a judgment that essentially was wrong or is otherwise inequitable.

Of course, resuming the Pine Tar game was easier given that the incident happened during the regular season. It would be virtually impossible to restart a playoff game, especially once the subsequent series has begun. Among other things, that would be wholly unfair to the next round opponent (in this case, the Dodgers). So maybe the practical difficulties counsel more strongly in favor of finality in the baseball context, even when the Federal Rules keep the door open just a sliver for mistakes in litigation.

In any event, I highly doubt the Nationals would have beaten the Dodgers in the next round, so none of this really matters. But the admission of a mistake that very well could have changed the outcome, and very likely led to the nonrenewal of the Nationals manager, raises interesting questions relating to the litigation-as-baseball metaphor.

OK, time to sleep -- tomorrow is Game 7!

(By the way, I attribute any errors in this post to my late-night Halloween candy and baseball induced stupor. I'll gladly grant a Rule 60 motion to revise it if there are any egregious mistakes.)

Posted by Josh Douglas on November 1, 2017 at 01:32 AM in Civil Procedure | Permalink | Comments (2)

Tuesday, October 17, 2017

NFLPA victim of drive-by jurisdictional ruling

The Fifth Circuit last week reversed a district court order enjoining the NFL from carrying out the six-game suspension of Dallas Cowboy running back Ezekiel Elliott because of a domestic-violence incident. I saw the story, but assumed that the court of appeals had reversed for the usual reasons that courts of appeals reverse in these sports cases--the district court had been insufficiently deferential to the arbitrator decision (see, e.g., Tom Brady and Deflategate). And because I do not write on those issues and because I do not like or watch football anymore (and my antipathy for the sport and the league grows), I did not write anything on it.

But a reaction paper from one of my Fed Courts students revealed that the Fifth Circuit issued the dreaded drive-by jurisdictional ruling. A 2-1 divided court held that the district court lacked jurisdiction because the Elliott and the NFLPA had not exhausted CBA grievance processes, which placed a claim for relief "beyond 'judicial review.'" The court stated that Arbaugh, Henderson, and other recent jurisdictionality decisions did not change SCOTUS or Fifth Circuit precedent treating exhaustion as jurisdictional in the labor context. Judge Graves dissented, arguing that jurisdiction was established when a plaintiff claims a violation of a contract between an employer and a labor organization and that the grievance procedures appeared in the CBA, not the LMRA.

Under Scott Dodson's theory (and I think Scott cracked the problem of defining jurisdiction in a principled way),exhaustion is jurisdictional, because it measures when a case can enter a court or move to a court from another body (such as an arbitration panel). But the Fifth Circuit is descriptively wrong under recent decisions and the direction of the doctrine. Very little is jurisdictional anymore, especially when it does not appear in a statute. The "beyond judicial review" language (drawn from a 1967 SCOTUS case) is the sort of loose, figurative language that SCOTUS had used and attached jurisdictional labels, without thinking through the logic or consequences of the label; this is the language Justice Ginsburg had in mind when she introduced, and argued for limiting the effect of, drive-by jurisdictional rulings. And statutory exhaustion (as under Title VII) is not jurisdictional; it seems inconceivable that a statutory requirement would not limit the court's jurisdiction, but a private contractual obligation, not required by any statute, could strip a court of its structural adjudicative authority.

The question is what happens next. Elliott's first game of the suspension is next Sunday. The NFLPA has asked the Fifth Circuit for en banc review and also sought its own TRO in the Southern District of New York (where the NFL offices are located). The jurisdictional basis for the ruling was wrong, but that does not mean that the court of appeals was wrong that Elliott failed to exhaust his contractual remedies and that the injunction should not have issued. Elliott and the NFLPA may have properly lost, just on 12(b)(6) rather than 12(b)(1) grounds.

Posted by Howard Wasserman on October 17, 2017 at 01:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

Sunday, October 15, 2017

An overbroad defense of universal injunctions

Judge Leinenweber of the Northern District of Illinois denied a stay pending appeal of a universal (he called it nationwide) preliminary injunction barring enforcement of certain funding conditions against sanctuary cities. This is the first extended defense of universal injunctions (more than in the original order granting the injunction).  (H/T: Josh Blackman)

The gist of Judge Leinenweber's defense is that the attorney general's authority does not vary by jurisdiction. And similar universal jurisdictions have been upheld, in which relief inured to non-parties as well as parties. The court also finds support from the per curiam in Trump v. IRAP, where the Court allowed the injunction to stand as to those "similarly situated" to the plaintiffs, which matches the injunction here applying to cities and states similarly situated to Chicago. Most tellingly, the court rejected the argument that similarly situated plaintiffs can file their own lawsuits and use the first decision as precedent because "judicial economy counsels against requiring all these jurisdictions (and potentially others) to file their own lawsuits to decide the same legal question." The court recognized reasons to be "cautious" before entering such injunctions and that they should not be the "default," citing the recent work of Bray, October guest Michael Morley, and UCLA's Michigan's Maureen Carroll. He pointed to concerns for forum shopping, conflicting injunctions, and interference with law development within a circuit, then explained (in a sentence or two) why those "not insignificant concerns" do not overcome the benefits of a universal injunction in this case.

The problem remains that the argument prove too much. As Sam Bray argues, it logically requires (or at least permits and encourages) a district court to issue a universal injunction in every constitutional challenge to federal law. Because the proposed funding conditions challenged here do not differ from any federal law.  The authority of federal officials to enforce every federal law does not vary by jurisdiction. Judicial economy always favors one lawsuit over many lawsuits. There would be a flood of similar lawsuits by everyone affected by every federal law.* Federal uniformity and the unfairness of disparate application of federal are present with respect to every federal law. Despite the court's rhetorical attempt to limit such injunctions to "extraordinary" cases, every case is extraordinary as he defines it; the reasoning applies to federal immigration laws, federal regulations of immigration attorneys, and federal law regulating any conduct.

[*] The solution is supposed to be FRCP 23(b)(2) class actions. But the growth of universal injunctions makes that rule superfluous.

Leinenweber closes with a paean to the rule of law and the role of the courts in ensuring the rule of law is enforced, which is undermined (in reality or in perception) if the attorney general can enforce "likely invalid" laws against other persons even while under an injunction as to some. Several responses. That is true of every federal law, making such injunctions the norm. The rule of law also includes limitations on the scope of a district court's lawmaking and remedial authority as compared with a court of appeals or SCOTUS; it therefore is as undermined by one district judge barring enforcement of federal law as to everyone in the world in all circumstances everywhere in the world. And without saying so, it also rests on a model of pure judicial supremacy--the Article III judge has spoken and the attorney general's authority to disagree, outside of that litigation, ceases to exist.

Posted by Howard Wasserman on October 15, 2017 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Saturday, October 14, 2017

Argument on ATS in Jesner v. Arab Bank

SCOTUS heard argument on Wednesday in Jesner v. Arab Bank, considering whether a corporation can be sued under the  common law cause of action under the Alien Tort Statute. I listened to the audio and have a few thoughts on the procedure, without getting into the substantive question of corporate liability.

The Court a good job (certainly better than four years ago in Kiobel) talking about the issues without conflating jurisdiction and merits. Everyone spoke about causes of action and the scope of the norms that are part of federal common law and can be enforced through that cause of action, without speaking about jurisdiction in a sloppy way.

Justice Gorsuch asked petitioner/plaintiff counsel what the continued point of the ATS is, given that § 1331 grants jurisdiction over claims grounded in federal common law incorporating international law. Counsel explained that the ATS is like the maritime-jurisdiction grant, a more specific grant in the Judiciary Act of 1789 through which Congress could make absolutely clear that such cases could be brought in federal court. What neither mentioned (and what you would expect Gorsuch to remember, given his Originalist obsession) is that the 1789 Act did not include general "arising under" federal-question jurisdiction, necessitating these subject-specific grants. To the extent § 1350 is vestigial or superfluous with modern § 1331, it is not alone.

Posted by Howard Wasserman on October 14, 2017 at 10:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, October 10, 2017

Argument: Hamer v. NHSC

Here is my SCOTUSBlog recap of Tuesday's argument Hamer v. NHSC. Justice Ginsburg was as engaged in this argument as I think I ever have seen her. She even had some love for the arguments of Scott Dodson (Hastings), who filed an amicus brief putting forward his theory that a jurisdictional rule is any rule, regardless of source, that places a case in one court and out of another. She asked petitioner's counsel about Scott's argument; his response was that Scott's formulation is "incorrect" because inconsistent with prior cases and the Rules of Civil Procedure, although without explaining whether or why that formulation is normatively wrong. No one else followed on Ginsburg's question.

Posted by Howard Wasserman on October 10, 2017 at 10:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, October 03, 2017

Hamer Time

I wrote a SCOTUSBlog preview of Hamer v. Neighborhood Housing Services of Chicago, to be argued next Tuesday; the case considers the jurisdictionality of FRAP 4(a)(5)(C), which limits extensions of time to appeal to 30 days beyond the original appeals period.

Although I did not discuss this in the preview, it bears watching how Justice Gorsuch approaches jurisdictionality. He demonstrated some iconoclastic views on procedural issues in his few cases from the April sitting last Term, often running counter to the rest of the Court, to the Court's recent doctrinal trends, and to recent precedent. Might he be inclined to return to drive-by jurisdictional rulings, counter to the Court's trend of the past decade?

Posted by Howard Wasserman on October 3, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, October 01, 2017

More from Bray on universal injunctions

Two weeks ago, the Northern District of Illinois imposed a universal/nationwide injunction against the new funding conditions imposed against "sanctuary cities." The court justified the scope because there was "no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction." In a WaPo op-ed, Sam Bray argues that this represents the next step in making the universal/nationwide injunction the new, unjustified, default in constitutional litigation against federal law. An injunction should be nationwide unless the challenged law and legal issues are limited to the plaintiff or to the jurisdiction in which the action is brought--which never will be true of federal law. Sam calls on someone--Congress, the Advisory Committee, or SCOTUS--to stop the "remedial irresponsibility." This injunction is of a piece with another low-profile universal injunction issued in May in the Western District of Washington in a challenge to federal regulations of attorneys in immigration proceedings--the government's stated desire to continue enforcing the regulation was sufficient to justify the expanded scope, a basis that similarly applies to all federal law.

Unfortunately, I am not sure who is going to put the brake on this practice.

Expecting Congress to do anything is beyond wishful thinking.

SCOTUS has, implicitly and probably unthinkingly, approved the practice by affirming the universal injunction in U.S. v. Texas (the DAPA case) and by leaving the injunction in place as to those "similarly situated" to the plaintiff in IRAP (the travel ban case). Both decisions were bound-up with other procedural concerns. Texas was affirmed by an Segall-ian evenly divided Court . In IRAP the Court was trying to figure out how to remold the substantive injunction in the guise of granting cert. and staying the injunction pending appeal; it did not have the time or attention to consider injunctive scope in terms of plaintiffs protected. And with the case likely moot, we start all over again.

The Advisory Committee is an interesting actor that I had not considered. But it would take too long to get anything done, given the committee process. And the Committee may be as surprised as everyone else that this practice has become so pervasive--the current language of Rule 65 combined with the existence of Rule 23(b)(2) injunctive class actions should tell district courts that they cannot issue an injunction protecting everyone in a class without a class.

Posted by Howard Wasserman on October 1, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Saturday, September 23, 2017

(Final?) Posner-Rakoff dialogue

I am late on this, but here is the most recent (final?) dialogue between Richard Posner and Jed Rakoff, published a few weeks after Posner's resignation frmo the court.. The conversation began from the question of whether judges should rely on their “common sense” (what Posner has described as “pragmatism” in judging), a binary that Posner properly rejects. I like the conversation over the competing roles and competencies of trial as opposed to appellate judges, both in the U.S. and in other systems.

I also like that Rakoff threw in one of my favorite jokes about a trial judge, appellate judge, and Supreme Court Justice (I tell it with a law professor) who go duck hunting.

Posted by Howard Wasserman on September 23, 2017 at 10:42 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, September 22, 2017

Tocqueville and judicial departmentalism

Dahlia Lithwick wrote about the litigation of the Joe Arpaio pardon, with the district judge hearing from numerous amici about the constitutional validity and effect of the pardon. The article ends by quoting one amicus, Ian Bassin of Project Democracy: "Thankfully, in America it’s the courts who get the last say on what the Constitution allows."

As I have been arguing again and again in defense of judicial departmentalism, this is not  true as a normative matter, at least not in the absolute sense in which it is presented here, as simply the way it works in America. It may be true as a practical matter in a substantial number of cases, because many constitutional issues wind up in court and the court must decide the constitutional issue to decide the case and the executive does not have discretion to decline to enforce that resulting judgment. When constitutional questions end up in court, the judiciary will get the final word.

This got me thinking of Alexis de Tocqueville, who famously said that "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (Mark Graber in 2004 revisited Tocqueville's thesis; he argued the statement was not as true as Tocqueville said, but may be more true in current times than it was during the Jacksonian Period in which Tocqueville was writing, as more political questions first get resolved into constitutional questions). Tocqueville's thesis affects just how much judicial supremacy we get in a judicial-departmentalist scheme. The more political questions that are resolved into judicial questions, the more the judiciary is going to get the last word, because the courts must decide the constitutional issues and the executive must enforce those judgments.

The political question of the Arpaio pardon is resolving into a legal question because the pardon touches on pending litigation. But that makes this pardon unusual--most pardons come before any charges have been brought (Nixon) or after the person has been convicted, sentenced, and served some portion of the sentence. So Bassin's comment about the judiciary getting the last word is accurate in this case, because of the unique posture of the pardon. But he is correct only to the extent Tocqueville was correct.

Posted by Howard Wasserman on September 22, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, September 18, 2017

JOTWELL: Smith on Baude on Qualified Immunity

The new Courts Law essay comes from new contributor Fred Smith (Emory), reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev.  (forthcoming 2018). This is a great article that Justice Thomas citing in his concurring opinion in Ziglar and that I cited to extensively in updating the immunity sections of Civil Rights book.

Posted by Howard Wasserman on September 18, 2017 at 04:14 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Tuesday, August 29, 2017

Palin v. NYT dismissed

Judge Rakoff of the Southern District of New York has dismissed Sarah Palin's defamation action against The New York Times, concluding that the allegations of actual malice, in conjunction with the testimony heard in questionable evidentiary hearing, showed that Palin had not pled facts plausibly showing that the editorial-page editor knew or recklessly disregarded the truth of statements about the connection between Palin's PAC publications (which featured gun-sites over "targeted" congressional races) and the Gabby Giffords shooting.

The order includes a lengthy footnote explaining the use of the evidentiary hearing. He justified it because a "court must have some knowledge of the context in which the underlying events occurred in order to carry out the function with which the Supreme Court has tasked it" --the "context-specific task" of evaluating plausibility. Also, neither party objected, the facts established by the testimony in the hearing are not in dispute, and no credibility determinations were made. And although he did not mention it, it appears that none of the testimony contradicted anything in the complaint. The testimony in the hearing was combined with the facts in the complaint and used to measure whether the facts showed actual malice.

But all this ignores FRCP 12(d), under which a court converts a 12(b)(6) to a motion for summary judgment when materials beyond the four corners of the complaint are used. Iqbal did not overrule or repeal 12(d), so the need for knowledge of the context cannot necessitate such hearings. It also would have been simple enough for the court to take the evidentiary hearing and convert to summary judgment (although perhaps the parties would have demanded some discovery, if only on actual malice). In short, obtaining and using information beyond the allegations of the complaint cannot be justified under the current rules without converting.

The merits discussion also appears to make the hearing unnecessary, because much of the analysis suggest that the problem with the complaint was legal insufficiency rather than plausibility-factual insufficiency. The problem was not a dearth of facts or the conclusoriness of the facts, but that the facts alleged, even if detailed, could not establish actual malice. For example, allegations of hostility towards Palin, economic motive to criticize Palin, and failure to comply with journalistic practices--alleged, in varying degrees of conclusoriness--all are insufficient, as a matter of law, to show actual malice.

All-in-all, a good First Amendment decision (I should add that there is some great language about the First Amendment, political speech, and the narrowness of actual malice), but reached in a procedurally incorrect way.

Posted by Howard Wasserman on August 29, 2017 at 06:30 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Sunday, August 27, 2017

The process of the Arpaio pardon and civil-rights enforcement under Trump

Josh Chafetz (Cornell) has a Twitter thread and WaPo op-ed arguing that the focus should be on the underlying racism, sadism, and abuse of power motivating the Arpaio pardon, not the fact that the pardon was for a criminal contempt conviction. In other words, the problem is that Trump pardoned a racist, sadistic serial abuser of state power, not that he pardoned someone who had been held in contempt. Josh suggests that we might want a President to pardon someone convicted of contempt, at least in some circumstances.

His example is the facts underlying United States v. Cox (5th Cir. 1965). Two African-American men testified in a federal suit against a state official, saying the official had refused to register them as voters; when he denied discriminating, the federal judge presiding over the case recommended that the two men be charged with perjury. DOJ investigated, but found no grounds for a perjury charge. Nevertheless, the judge ordered the case submitted to a federal grand jury, which convicted. When the US Attorney (acting on orders of Acting AG Nicholas Katzenbach) refused to pursue the indictment, the judge held the US Attorney in contempt and ordered Katzenbach to show cause why he should not be held in contempt. On direct review, the 5th Circuit reversed the contempt order, but refused to grant a writ of prohibition to Katzenbach, who had not yet been placed in any risk of contempt.

Procedure does matter, because of the circuitousness of that hypothetical pardon. The orders in Cox were for civil contempt, so a pardon would not have made a difference. To get to criminal contempt for a racist federal judge requires so many additional steps, including the cooperation of the US Attorney and Department of Justice. So you would need not only a racist judge, but a racist DOJ, with all its layers of review, that a subsequent President would choose to rebuke through a pardon. That all seems unlikely.

A second procedural issue involves civil contempt. To the extent this pardon sends a signal about civil rights enforcement, the effect may be federal judges relying more on civil contempt, including fines and jail for recalcitrant prison officials. Arpaio and Maricopa County had been held in civil contempt, but the judge chose not to enforce the citation against Arpaio (wisely, given the risk that it would have turned him into a martyr). Criminal contempt became necessary when nothing else worked and when Arpaio was voted out of office. But how plaintiffs frame cases affects available approaches to contempt going forward. Big structural-reform cases are brought against the entity, but courts are reluctant to impose sanctions such as fines or jail against non-parties, except as an extreme last resort. So expect civil-rights plaintiffs to spread the scope of their complaints to top officials in addition to the entity.

Posted by Howard Wasserman on August 27, 2017 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, August 25, 2017

More on pardoning Arpaio (Updated)

Thanks to Paul for flagging Marty Redish's NYT op-ed on the potential Arpaio pardon. Like Paul (and Marty), I do not know if the argument works. But I wanted to flag how his argument interacts with the version of "judicial departmentalism" I have been urging. My framing relies on Gary Lawson's version of departmentalism--the president can ignore judicial precedent as precedent he believes gets the Constitution wrong, but cannot ignore court orders. That includes the orders by which he is bound by as a defendant (e.g., the challenge to the travel ban) and the orders he must enforce on behalf of the federal courts involving other officials,even if he disagrees with the underlying constitutional judgment.*

[*] Lawson allows that the president might ignore a court order in extraordinary circumstances, but I put that to the side for the moment.

Marty's argument gives Gary's (and my) distinction a Fifth Amendment grounding. There is no functional difference between the president ignoring or declining to enforce a judgment and a president pardoning (or promising to pardon) another official who ignores court orders. If one violates due process, so does the other. And if departmentalism does not extend to one, it does not extend to the other.

Finally, if this becomes a concern, consider the federal courts' counter: Stop using criminal contempt and rely on civil contempt to enforce injunctions, including by jailing the recalcitrant official. There is no crime or conviction from which to pardon.

Update: Trump pardoned Arpaio on Friday.

Posted by Howard Wasserman on August 25, 2017 at 01:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, August 15, 2017

Random thoughts for the day

Two items for the morning, not particularly related.

1) President Trump is "seriously considering" pardoning  Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt for repeatedly ignoring injunctions against his department's Fourth Amendment-violative practices. Trump believes Arpaio has been a strong actor against illegal immigration. But Arapio's department was found to have engaged in systematic constitutional violations and then Arpaio intentionally and repeatedly disregarded court orders designed to stop that behavior. So it seems to me this pardon signals a lot--that federal, state, and local officials can be freer to ignore civil rights injunctions and that Trump, who does not hold the federal judiciary in much regard, may resist both obeying and enforcing future injunctions.

2) In the wake of Charlottesville, there has been discussion about driving into crowds of liberal protesters who move into the streets, with several states proposing laws that would immunize drivers for doing so. Florida's bill would 1) make it a second-degree misdemeanor for a person to "obstruct or interfere" with street traffic "during a protest or demonstration" for which there was no permit and 2) immunize any driver who unintentionally injures or kills someone who was in the street in violation of the first section.

My question: Does such a law violate the First Amendment? Florida law already prohibits obstructing public streets (it is a pedestrian violation), so this law would impose special heightened penalties when the obstruction occurs during an unpermitted protest or demonstration. Florida is a comparative negligence state, so a driver who unintentionally injures or kills someone who is wrongfully in the street (e.g., crossing against the light) may bear some liability for his negligence--unless the victim was in the street during an unpermitted protest or demonstration. In other words, the penalty for obstruction is greater and the protection against negligent drivers less when the person was in the street for expressive purposes than other purposes. This sounds like what Marty Redish and I called a "gratuitous inhibition on speech"--a law that treats more harshly activity done for expressive purposes than for non-expressive purposes.

Posted by Howard Wasserman on August 15, 2017 at 10:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (14)

Friday, August 11, 2017

First Amendment procedure

Sarah Palin sued The New York Times for defamation over a June editorial (following the congressional ballgame shooting) that linked Palin's rhetoric to the 2011 Gabby Giffords shootings. Palin alleges The Times writers acted with actual malice, in part because the paper had published numerous news stories showing there was no link between Palin's rhetoric and Jared Loughner. The Times moved to dismiss, arguing that the complain did not plausibly plead actual malice. In a brief order yesterday, Judge Rakoff ordered the author(s) of the editorial to appear at an evidentiary hearing next week, for questioning about their awareness of these prior news stories.

The prevailing view among civ professors online seems to be that the order is inappropriate.

The point of Twiqbal is that a plaintiff must plead sufficient facts, without the benefit of discovery, to allow a reasonable/plausible inference of the elements of a claim. If the plaintiff cannot do that, the complaint must be dismissed and, perhaps, the plaintiff given a chance to replead. That is a problem for facts such as actual malice, that go to the defendant's state of mind, but that is the regime the Court has set-up. The court has discretion to convert a motion to dismiss to a motion for summary judgment if matters beyond the complaint (such as testimony) are considered. But Judge Rakoff did not do that here. He is using this testimony, not including in the complaint, to rule on a 12(b)(6). Unless, of course, he converts later, although conversion must include notice and an opportunity to present material, which might require an opportunity to take discovery.

This case somewhat illustrates the problems with the Twiqbal regime. Courts are supposed to decide plausibility based on "judicial experience and common sense," which essentially requires a form of judicial notice. We might understand Rakoff as trying to enhance his experience and common sense, one of many work-arounds courts have developed. But the point of Twiqbal is to keep defendants from having to deal with any discovery, even a few hours of testimony. Rakoff seems to be trying to have it both ways--get enough information to evaluate the factual assertions, without deeming the complaint sufficient (which it seems to be) and allowing the case to move forward to full (or at least sectioned) discovery. To the extent Rakoff is doing something necessary to make an intelligent plausibility determination, it reveals the problem and impossibility of implementing such a standard at the pleading stage.

This offers a nice example of when a party might be tempted to use a writ of mandamus to challenge an interlocutory order. Mandamus is limited to exceptional circumstances in which the trial court clearly overstepped its bounds. Ordering discovery before deciding a motion that is designed to keep cases out of discovery might qualify. The drawback, as someone pointed out, is that a mandamus requires The Times to formally sue Judge Rakoff (or the Southern District), who will preside over this litigation; a party's reluctance to wield this tool is understandable.

Alexi Lahav has a new paper describing how courts disregard the FRCP's procedural design (complaint/dismissal/discovery/summary judgment), but moving pieces and skipping steps. This seems another example.

Posted by Howard Wasserman on August 11, 2017 at 12:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Friday, July 28, 2017

Excessive force

Following the President's speech today, the Suffolk County Police Department found it necessary to announce to the public (and remind their officers) about the Fourth Amendment and strict department policies regarding use of force and handling of prisoners and the lack of tolerance for roughing up prisoners. So the higher-ups realize there is at least a perception problem. (The International Association of Police Chiefs also issued a statement, declaring that treating all people with dignity and respect is the "bedrock principle behind the concepts of procedural justice and police legitimacy"). On one hand, the exchange shows institutions pushing back against presidential lawlessness. On the other, the disconnect between police executives and rank-and-file is striking.

But I could see discovery in the next excessive-force civil rights claim against the Department becoming interesting, because a good plaintiff's lawyer could make hay out of this event. Cane she use the video and the department response to suggest the officer knew the force was wrong and used it anyway, defeating qualified immunity? Does the cheering rank-and-file show a departmental custom? What if the next involved officer is one of those sitting behind the President, identifiable, and visibly cheering/laughing/clapping officers are identifiable--can that be used to overcome immunity? Can a plaintiff's lawyer make a failure-to-[blank] claim by showing that the department did nothing to discipline or retrain the officers who visibly cheered/laughed/clapped?

Posted by Howard Wasserman on July 28, 2017 at 07:04 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, July 12, 2017

Judge Wood is not happy with Jeff Sessions and other appellees

Seventh Circuit Judge Diane Wood issued a fed-up in-chambers opinion, calling out two appellees, including Jeff Sessions, for inadequate jurisdictional statements. The order called out appellees for failing to state in their briefs that the appellants' jurisdictional summary was both "complete and correct" (both appellees certified only one but not the other) and struck appellee briefs in two cases--one by Sessions (or DOJ) and one by the Airline Pilots Association.

Judge Wood identified routine problems with appellants' jurisdictional statements that appellees waive away; many are common problems  in the jurisdictional statements in district-court pleadings that I discuss in class:

in federal question cases where jurisdiction depends on 28 U.S.C. § 1331 , the failure to specify the particular statute or constitutional provision at issue, and in diversity cases, failure to distinguish between citizenship (required by 28 U.S.C. § 1332 ) and residency (irrelevant) and, for organizations such as partnerships, LLPs, and LLCs, the failure to work back through the ownership structure until one reaches either individual human beings or a formal corporation with a state of incorporation and a state of principal place of business.

This is worth sharing with students, who often do not recognize or accept how important these details are. (I also use an Easterbrook opinion, in which he sanctions both sides for botching jurisdictional treatment of LLCs--Update: Per a request, the Easterbrook opinion is Belleville Catering v. Champaign Marketplace from 2003).

Posted by Howard Wasserman on July 12, 2017 at 07:14 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (10)

Tuesday, July 11, 2017

Colllege football coaches and diversity jurisdiction

Here is an interesting diversity jurisdiction puzzle, for anyone looking for one (and you know you are).

Penn State sued Bob Shoop, its former defensive coordinator, to recover close to $ 1 million on the buyout clause, after Shoop left PSU to take a similar job at Tennessee. Penn State filed in Pennsylvania Commonwealth Court, then Shoop removed to the Middle District of Pennsylvania, based on diversity. And this confused me. Penn State is a state university. And a "state" is not a "citizen of a state" for diversity purposes; when a state brings a non-federal claim against a citizen of another state to federal court, original jurisdiction rests with SCOTUS (concurrent with state courts). The case thus should not be removable, because the district court lacked subject matter jurisdiction. This looked to me on all fours with a case from about ten years ago--involving West Virginia University's attempt to enforce a buyout clause against its former head football coach--in which the university filed in its state courts and the coach removed, but the district court remanded for lack of jurisdiction because the university was the state.

It turns out that Penn State (along with the larger public universities in Pennsylvania, such as Pitt and Temple) is a "state-related" university, as opposed to a state university. Although I am not sure of all the differences, state-related universities receive less funding and are entities created by state law that maintain affiliations with the state (sufficient to make them act under color for Fourteenth Amendment and § 1983 purposes), but are not treated as alter-egos of the state. District courts in Pennsylvania have held that Pennsylvania's state-related schools do not enjoy Eleventh Amendment immunity.

This matters because most circuits use the same analysis to identify an entity as an arm of the state for Eleventh Amendment purposes as for § 1332 purposes--that is, if an entity is an arm of the state entitled to Eleventh Amendment immunity, it is an arm of the state and not a citizen of the state for diversity purposes. That is how the federal court involved the West Virginia case. Because the prevailing view is that Penn State does not enjoy Eleventh Amendment immunity, it should follow that the district court has jurisdiction in this case.

I am curious to see if Penn State at least tries to move to remand or if it knows it will lose on the point. A recent possible comparison is Haywood v. University of Pittsburgh, a suit brought in federal court by--you guess it--the former football coach. Haywood included three claims--two for breach of contract (with jurisdiction under § 1332) and one for a violation of due process (with jurisdiction under § 1331); Pitt did not contest jurisdiction and the court reached the merits. This would suggest that a state-related university can be sued in federal court on diversity. But Haywood may be of limited use. The due process claim gave the district court original jurisdiction, with supplemental jurisdiction over the state claims, all regardless of diversity (Haywood did not assert § 1367 in the Complaint, which may just be unwise drafting). So it may have been that Pitt knew there would be jurisdiction anyway, regardless of the basis, so there was no point in contesting. The Penn State case squarely presents the question of the university's status for § 1332 purposes.

Posted by Howard Wasserman on July 11, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (9)

Sunday, July 09, 2017

Citizen video and other § 1983 puzzles

In Fields v. City of Philadelphia, the Third Circuit joined the parade of courts of appeals recognizing a First Amendment right to record police in public in a non-interfering way, subject to time, place, and manner limitations. It is now the Fifth, First, Seventh, Eleventh, and Ninth Circuits, with none going the other way (prior to this, the Third Circuit had avoided the issue by twice holding that the right was not clearly established without addressing the merits). The case arose from two separate actions--one by a woman who was physically moved and held to keep her from recording the arrest of a protester, the other by a man who was arrested and charged with obstructing a public passage for recording officers from a sidewalk across the street.

Two thoughts.

In explaining the need for and importance of this First Amendment right, the court included this line: "To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately." Recent experience with body cameras and police shootings shows this statement, at least in the absolute form presented in the first sentence, is wrong. Not that recording is not or should not be protected; only that it does not present "objective fact" or eliminate subjectivity. In fact, subjectivity likely is why the police officers involved in the incidents in this case stopped the plaintiffs from recording--they did not want video getting out that could be viewed by the public in an adverse way, even if they might have found a way to explain it away.

Second, this decision may be as significant for its discussion of § 1983 doctrine, showing how qualified immunity makes damages liability difficult, if not impossible.

The City asked the court to pretermit the merits and grant qualified immunity (as had two prior Third Circuit panels) because the right was not clearly established. The court declined to "take the easy way out." In justifying this approach, the court pointed to several considerations that SCOTUS identified as benefits to merits-first: the importance and frequency of the constitutional issue, the need of police departments for guidance on the issue, the purely legal, non-fact-bound nature of the issue, and the quality of the briefing (with amicus briefs from several advocacy organizations, a group of First Amendment professors, and DOJ's Civil Rights Division).

Nevertheless, after recognizing the right, the majority held that the officers were entitled to qualified immunity because the right to record was not clearly established. There was no Third Circuit precedent and precedent from other circuits and from district courts was factually distinguishable (some of those cases based the right on the presence of expressive intent by the recorder, while the Third Circuit recognized a right to record, regardless of what the recorder planned to do with the recording). The court also refused to find the right clearly established based on Philadelphia Police Department policy recognizing a First Amendment right to record. The problem was that the plaintiffs sought municipal liability based on the failure of those policies to effectively instruct officers about this right; if the policies were ineffective, then they could not clearly establish the right so any reasonable officer would know there was a First Amendment right to record, as most officers did not know of the right.

Judge Nygaard dissented on qualified immunity. He argued that the right was clearly established given the unanimity in other circuits, Department policy, and 2012 DOJ recommendations that local departments establish policies to affirmatively set forth the First Amendment right;* those three things placed the right to record "beyond debate" and placed officers on unambiguous actual notice that they must allow members of the public to record their activities. Nygaard also argued that a reasonable officer's "lived experience" informed him of the pervasiveness of recording devices and their routine integration into daily lives, with the resulting First Amendment implications.

[*] Recent consent decrees with cities such as Ferguson and Baltimore included provisions requiring police departments to recognize and not interfere with the First Amendment right to record in public.

The majority's analysis demonstrates the unfortunate breadth of qualified immunity. Factual distinctions are always possible with precedent--the Third Circuit had previously accepted (or at least had not flatly rejected) that there might be a meaningful distinction between filming a sidewalk encounter and filming a traffic stop. It thus is possible that this decision will do nothing for the next case in which an officer prevents someone from recording, if the officer can find some small distinction to the incidents in this case--the recorder was on the same side of the street rather than across the street, the person was momentarily stopped from recording but not arrested, the plaintiff was recording a physical altercation rather than an arrest. The possible distinctions are boundless.

I also do not buy the reasons the majority rejected reliance on department policy as a basis to clearly establish the right. There is nothing inconsistent with saying that department policy should have placed a reasonable officer on notice that there was a constitutional right to record (thus clearly establishing the right) and that department policy was constitutionally insufficient because officers were ignoring it and department officials were not providing further training (thus establishing municipal liability). They go to different issues involving different standards.

On the other hand, SCOTUS' recent string of summary reversals rejects the big-picture approach to qualified immunity that the dissent took in relying on broad legal principles divorced from specific facts, with no applicable SCOTUS precedent. So while normatively preferable, Judge Nygaard's approach would  draw more attention and a possible summary reversal.

Posted by Howard Wasserman on July 9, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, July 07, 2017

The district court's injunction (Updated Twice)

Judge Watson in the District of Hawaii last night refused to rule on the plaintiffs' Motion to Clarify the Scope of the Preliminary in the travel ban case. The plaintiffs, he ruled, were asking him to clarify the meaning of language in the Supreme Court's opinion and order, not his order; that request should be directed to SCOTUS. Ilya Somin criticizes the ruling, pointing out that interpreting and applying the language of rulings from higher courts is what district courts do. Lyle Deniston questions whether there is a procedure for asking SCOTUS to clarify language in the opinion, short of a motion for reconsideration. Michael Dorf is a bit more forgiving, arguing that Watson's ruling is not crazy, given the confusion involved when cases are moving up and down the hierarchical judicial system.

I agree that Judge Watson was wrong, for the reasons all three commentators describe. I want to make explicit one point that I believe is implicit in their posts (and that Remedies guru Doug Laycock made on a listserv): The injunction, albeit as modified by SCOTUS, remains Judge Watson's order and it remains his duty to enforce that modified injunction. And that entails figuring out the scope of the injunction, which means figuring out precisely how SCOTUS modified it, which means figuring out what SCOTUS meant in its opinion. The trial court must do that in the first instance--SCOTUS can reverse that interpretation on appeal if it disagrees. My point is that this goes beyond the ordinary situation of lower courts determining and applying SCOTUS precedent to a new case or even to the same case (for example, applying a new legal standard to evaluate the merits of the claim). This is about a district judge enforcing his own injunction going forward.

The plaintiffs have appealed the denial of the motion, presumably because this is an order refusing to modify an injunction. My best guess is that the Ninth Circuit summarily reverses and tells Judge Watson to determine the scope of his injunction.

[Update, Saturday, July 8: I want to say I was half-right. The Ninth Circuit dismissed the appeal for lack of jurisdiction, because the order did not do anything of the things enumerated in § 1292(a)(1), because it sought a declaration rather than an injunction, and because the plaintiffs could still seek injunctive relief in the district court. The Ninth Circuit added that the district court "does possess the ability to interpret and enforce the Supreme Court's order, as well as the authority to enjoin against, for example, a party's violation of the Supreme Court's order placing effective limitations on the scope of the district court's preliminary injunction." In other words, plaintiffs filed the wrong motion. They should have moved to enforce the district court's injunction-as-modified or to hold the government in contempt of the district court's injunction-as-modified--and in the course of resolving those motions, the district court must decide what the Supreme Court said and meant. Presumably, that is what the plaintiffs will do in the district court. [Second Update, Saturday afternoon: Motion to Enforce, or in the alternative, to Modify]

The Ninth Circuit's was surprisingly rigid. Courts of appeals typically take jurisdiction under § 1292(a)(1) if the order is within sniffing distance of an injunction or its enforcement. Plus, it was obvious that the plaintiffs were asking the district court to enforce the injunction according to its proper terms (based on SCOTUS modification) by determining those proper terms. In some sense, the Ninth Circuit did tell the district court it was wrong and that it did have power to decide what SCOTUS meant; the plaintiffs simply captioned their motion incorrectly. This is different than what the district court said, in directing all issues to SCOTUS.]

Posted by Howard Wasserman on July 7, 2017 at 01:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)