Tuesday, May 23, 2017

Another unwarranted universal/nationwide injunction

Last week, Judge Jones of the Western District of Washington issued a nationwide TRO against enforcement of a federal regulation barring attorneys from providing limited limited legal services for otherwise-pro bono litigants in immigration proceedings. The regulation requires attorneys to file a formal appearance as counsel of record in order to provide any representation, something the plaintiff Northwest Immigrant Rights Project, a nonprofit advocacy organization, cannot afford to do in all cases for all clients. NWIRP argued that the regulation violated the First Amendment.

As always, the court made the order nationwide: "Counsel for the Government represented during the hearing on the TRO that it desired to continue issuing cease and desist letters to non-profit organizations providing legal services to immigrants. As such, the Court grants this TRO on a nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. § 1003.102(t) during the pendency of this TRO on a nationwide basis."

Even if universal injunctions might at times be warranted, this is not one of those times. NWIRP represents clients only in the Pacific Northwest, so it would be sufficiently protected by an injunction prohibiting the issuance of cease-and-desist letters to it in Washington. We could even extend that to the issuance of letters to NWIRP anywhere in the country (a real "nationwide" injunction). But NWIRP's is in no way deprived of complete relief if the government issues C/D letters to any other lawyers or nonprofit organizations anywhere else in the country. There is no reason, and no basis in principles of equity and judgments, for one district court in a non-class action to freeze enforcement as to every other person everywhere in the country.

But we have reached a point where universality is automatic and unthinking. Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal.

Posted by Howard Wasserman on May 23, 2017 at 06:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Tuesday, May 16, 2017

Spencer appointed to Civil Rules Committee

Ben Spencer (Virginia) has been appointed to the Civil Rules Advisory Committee. Congratulations to Ben.

Posted by Howard Wasserman on May 16, 2017 at 10:00 AM in Civil Procedure | Permalink | Comments (1)

Monday, May 08, 2017

JOTWELL: Mulligan on Subrin & Main on state procedural rules

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure (Case Western Reserve L. Rev), which argues against "reflective" state emulation of the Federal Rules.

Posted by Howard Wasserman on May 8, 2017 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 02, 2017

Two steps back on jurisdictionality

On Monday, SCOTUS unanimously (through Justice Breyer) held that plaintiffs must prove, not merely make non-frivolous allegations of, the elements of the exception to the Foreign Sovereign Immunities Act for cases where "rights in property taken in violation of international law are in issue." The plaintiff must prove and the court must find that the case involves property rights and that the property was taken in violation of international law--if the claim fails on either point, the court lacks jurisdiction. This must be the approach even if the findings overlap with the merits of the claim and even if the findings are not made until later in the case (although the Court also said resolution should be made "as near to the outset of the case as is reasonable possible").

This is the first time in a while the Court has declined to draw a sharp separation between jurisdiction and everything else and to adopt the narrower conception of jurisdiction. The Court was swayed by the foreign-relations and international-comity implications of the contrary result, under which sovereigns would have had to litigate the merits, which may have caused litigation to continue for longer. The Court rejected the plaintiff's analogy to § 1331, emphasizing the different language and the textual import of consistency with international law as to FSIA but not to § 1331. The Court was unconcerned with merits-jurisdiction overlap, emphasizing that in most cases the jurisdictional facts (property and violation of international law) are not part of the merits.* These facts thus were more like the fact of citizenship in diversity cases than whether a claim is created by federal law.

[*] The court of appeals tried a middle ground--proof of jurisdictional fact was necessary where the merits did not overlap, while nonfrivolous allegations were sufficient where they did. SCOTUS said this approach was contrary to the text of FSIA.

I am not convinced by the distinctions with arising-under jurisdiction, although that is informed by two conclusions: 1) Jurisdiction and merits never can overlap, even by the accident of Congress slapping the label of "jurisdiction" on some issue; 2) Sovereign immunity, again regardless of label, is better understood as a merits defense, going to who can be sued and for what conduct. The Bolivarian Court at times plays loose with that jurisdictional nature, distinguishing § 1331 because it does not involve sovereign immunity--but if sovereign immunity is jurisdictional, then it is doing the same thing as § 1331 in limiting judicial authority.

Two of the Court's arguments as to § 1331 are, I believe, especially weak. First, the Court emphasized that the "arising under" language of § 1331 is unconcerned with consistency with international law. But the FSIA exception requires that rights in property taken in violation of international law be "in issue." Nonfrivolous allegations that property was taken in violation of international law should place those facts "in issue," just as a claim "arises under" when the nonfrivolous allegations suggest a right and right of action created by federal law. The Court never addresses the "in issue" language, what it might mean, or how it might be comparable to the § 1331 language.

Second, the plaintiffs had argued that their approach would not burden sovereign litigants, who could move under 12(b)(6) or 56 on these issues and would not necessarily (or even likely) be forced to litigate to the "bitter end." Breyer responded that foreign sovereign immunity is immediately appealable under the collateral order doctrine. If these were treated as merits facts, however, they would not be immediately appealable, because Cohen requires the issue be separate from and collateral to the merits. But several non-jurisdictional defenses (notably individual immunities in § 1983 actions) are subject to C/O/D review. And the Court's recent cases have focused on the effectively unreviewable prong and the effect on and importance of  the interests lost if immediate review is unavailable--considerations that should break in favor of  C/O/D applying even if these are treated as merits facts.

Posted by Howard Wasserman on May 2, 2017 at 08:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, May 01, 2017

Genuine dispute as to any basic fact

In response to my posts on the cert denial in Salazar-Limon, a civil procedure colleague blames Celotex, calling this decision a logical extension of the opening of summary judgment. The explanation was as follows: 1) Defendant can move by "pointing" to a lack of evidence, here of not reaching for the waistband; 2) plaintiff could not offer proof of his version, because he did not say at his deposition (because he was not asked) whether he reached for his waistband; 3) plaintiff bears the burden of persuasion, so defendant wins.

I do not find Celotex problematic--having the exchange of evidence on summary judgment resemble the exchange of evidence on judgment as a matter of law at trial makes sense. But I agree that the lower court was wrong in Salazar-Limon.

My explanation for those conclusions is something I suggested but did not fully elaborate on in my first post and the comments. Courts on summary judgment are insisting on contradictory direct evidence (i.e., contradictory testimony) on a basic fact. What courts are supposed to do is dive into the record, identify the material fact to be inferred from any basic facts, and determine whether all the evidence allows a reasonable jury to find that material fact in either direction. In other words, courts are asking if there is a genuine dispute as to a basic fact. Courts are supposed to look for a genuine dispute as to a material fact, a dispute that can arise because of a dispute over a basic fact or because of other evidence of the material fact that does not rely on the same basic fact.

So consider Salazar-Limon. The officer testified that he saw the the plaintiff reach for his waistband; the lower courts concluded that the absence of evidence contradicting that testimony meant there was no genuine dispute as to whether the plaintiff posed an imminent threat justifying deadly force.* But the plaintiff did testify to a different version of events--"I was walking away, he yelled 'stop', then shot me in the back a few seconds later, before I had a chance to do anything." That testimony should do two things: 1) Allow the reasonable inference that there was no imminent threat, if it believes the plaintiff that he was walking away and got shot before he could do anything; and 2) Allow the reasonable inference that he did not do any other things (including reach for his waistband, threaten the officer, recite Jabberwocky, whatever) that he did not mention doing in his testimony. But the courts ignored it.

[*] Put to one side whether the move from reaching for the waistband to imminent threat to deadly force is justified.

The lower courts' analysis here elevates the basic fact (waistband) over the material fact (imminent threat). The court did not examine all the evidence or all the reasonable inferences that could be drawn from all the evidence. It looked for a single basic fact the defendant identified, looked for contradictory evidence as to that basic fact, and, finding none, granted summary judgment. That is not how this should work. It may be, of course, that a jury will not believe the plaintiff's story that he was walking away and was shot before he could respond to the officer's commands. But the question on summary judgment is supposed to be whether the plaintiff could win. Whether the plaintiff will win is for a factfinder.

Posted by Howard Wasserman on May 1, 2017 at 04:59 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Congress: Step Away from the Class Action!

My previous posts noted that, for libertarians, there is no simple algorithm for fixing the class action.  Despite this, there is a once-a-decade push from right-of-center think tanks for a congressional class action “fix.”

The problem with this, I’ve suggested, is that congressional legislation in this area tends toward crude categorization and simple algorithms. First, the intensity of interest group attention to class actions tends to push reform in directions that serve blunt private interests of portions of the practicing bar, at the expense of more complex public values.  Second, class action reform has long been an important battleground for partisan identity signaling—one does not get on the good side of the base of either party by arguing for a nuanced treatment of class litigation (although, as Adam Zimmerman highlighted in a comment, there are signs this may be changing). 

Both problems explain Congress’s tendency, evident in features of the Fairness in Class Action Litigation Act, to take some arguably useful refinements of the class action law in the private market class action and reflexively extend them to public rights litigation, where those refinements may do more harm than good. 

That’s why I tend to agree with Myriam Gilles that it is better to leave reform of certification standards, at least in the near term, to the Court, which is much better adapted than contemporary Congresses to make the often nuanced institutional judgments that certification doctrine demands.  Libertarians and progressives may not agree on every feature of class action reform, but they ought, I would argue, to agree on that much.

It’s a position, by the way, I’ve come to reluctantly:  I’ve argued elsewhere that separation of powers principles favor a more robust role for congressional oversight of the class action.

But I’ve also come to appreciate that the Court can capture some of the benefits of functional political branch oversight in the class action area by replicating that oversight “in house,” through a system of intrabranch or “internal” separation of powers.  This is something I explore, by the way, in this new draft piece.

Anyway, thanks to Howard and Prawfs for having me—and apologies to the Prawfs management for infrequent posts. I’ve been pulled in ten different directions this month at my home institution, making this a much busier April here in Chicago than I expected!

Posted by Mark Moller on May 1, 2017 at 03:56 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Thursday, April 27, 2017

More on summary judgment and qualified immunity

Following on my post on Monday's cert denial in Salazar-Limon: Justice Sotomayor questioned that denial in light of the Court's recent summary reversals in cases denying qualified immunity. It is notable for the coincidence that on the same day, the Court denied cert in Needham v. Lewis, a case in which a divided Sixth Circuit denied summary judgment in favor of the officer in a case featuring dashcam video. The majority insisted that a reasonable jury could interpret the video in competing ways (in the face of the dissent saying "That is not the video I have reviewed," not realizing that this is not her job on summary judgment) and that general principles clearly establish that fleeing a traffic stop, without more, does not justify deadly force. The denial also is surprising, first because the type of case the Court has been summarily reversing, and second because of the presence of video and the greater leeway the Court has allowed itself in video cases.

One interesting feature in Needham is that the defendant moved for summary judgment prior to discovery, with the video as the only thing in the record. The court declined to treat the video as one-sided. But perhaps officer testimony confirming the video would have placed the case more squarely within Scott and Plumoff.

Posted by Howard Wasserman on April 27, 2017 at 07:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Wednesday, April 26, 2017

Problems of scope and nomenclature in nationwide injunctions

Judge Orrick in the Northern District of California preliminarily enjoined President Trump's Executive Order stripping "sanctuary" cities of federal funds. As per usual in these cases nowadays, Judge Orrick made the injunction "nationwide," rejecting government arguments that it be" issued only with regards to the plaintiffs." The court supported that conclusion by citing Califano v. Yamasaki for the proposition that the "scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff." The problem is that Orrick excludes the important next word in the quoted sentence--"class." Califano was a 23(b)(2) injunctive class action. Thus an injunction that prohibited enforcement of the challenged law as to multiple people was appropriate--because everyone in the class was a plaintiff. And it makes sense that the injunction should follow the plaintiff nationwide--if the government cannot enforce a law against a plaintiff (whether an individual or a municipality), it cannot enforce it regardless of where in the country the plaintiff goes.

This illustrates that the proper term for what the court did here is "universal injunction"--an injunction that covers the defendant's conduct (here, prohibiting enforcement of the EO) with respect to everyone, party or non-party. A "nationwide injunction," on the other hand, is an injunction that protects the appropriately protected persons (the plaintiffs) nationwide. The former, which is what courts have been issuing, is inconsistent with general principles of equity and the law of judgments, which limit the binding effect of a judgment to the parties. And Califano does not establish the contrary, because that was a class action, so the parties who could be protected by the injunction (consistent with the law of judgments) included everyone in the class. In other words, Califano involved a nationwide injunction for a nationwide class. It did not involve a universal injunction protecting everyone in the universe, even non-parties.

And this does not seem a situation in which the injunction must protect non-parties to be given its full scope. To protect Santa Clara and San Francisco from enforcement of this unconstitutional order, it is not necessary that the court also protect other sanctuary cities from enforcement. Those cities can bring (and some have brought) constitutional challenges prohibiting enforcement as to them, now with the benefit of Santa Clara v. Trump as persuasive precedent. Other than a desire for simplicity, there is no reason that the first decision on a legal issue should also be the last on the way to SCOTUS. Rather, it runs contrary to the assumption that multiple lower courts and multiple lower-court judges are going to take passes at legal issue before those issues reach SCOTUS.

The less said about the White House statements, which drips not only with contempt for the judiciary (a well-established theme), but a misunderstanding of how the federal judiciary and constitutional litigation operate (one listserv member wondered whether a competent lawyer came anywhere near these press releases. But one notable point: The statement uses some form of the phrase "single unelected district judge" three times. I know the White House is engaging in demagoguery and not series legal argument there.

But let's take it at its word--the problem is the injunction being issued by the single district judge. What would the WH like to do about that? Return to the old system of 3-judge district courts for all actions seeking to enjoin enforcement of federal laws? Amend Article III to give SCOTUS original jurisdiction of actions challenging the constitutionality of federal law? Always have the government win because everything the government does is constitutionally valid? (actually, that is the preferred option). Always have the government win in the lower courts? This may be what disturbs me the most about the administration's statements towards the judiciary--they reflect not substantive disagreement, but disregard (or lack of understanding) of the judicial processes that produce constitutional decisionmaking.

Posted by Howard Wasserman on April 26, 2017 at 12:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Tuesday, April 25, 2017

Salazar-Limon and the expansion of summary judgment

On Monday, SCOTUS denied cert in Salazar-Limon v. City of Houston, a § 1983 action arising from an officer-involved shooting of an unarmed person. The Fifth Circuit granted summary judgment in favor of the officer, seeming to credit the officer's version of events over the plaintiff's version, even without video. It also touched on the "he was reaching for his waistband" defense that has become a mainstay in these cases. The case was carried over six times before cert was denied--apparently, because Justice Sotomayor was writing a dissent from denial of cert for herself and Justice Ginsburg, which prompted a concurrence in denial of cert by Justice Alito, joined by Justice Thomas. I am quoted in an Atlantic piece on the case.

The officer testified that he saw the plaintiff turn and reach for his waistband as if for a gun. The plaintiff testified that the officer yelled for him to stop as he was walking away, then shot him immediately--at most a few seconds--after the command. But the plaintiff did not explicitly deny reaching for his waistband, and for both lower courts and Justice Alito, that showed there was no dispute. That the stories told by the officer and the plaintiff contradicted one another, in other words, was not sufficient. The plaintiff had to deny the direct evidence (reaching for the waistband) and could not rely on the competing inference (if what the plaintiff said was true, he did not reach for his waistband) to get past summary judgment.  If taken seriously, this could represent a dramatic expansion of summary judgment.

Justice Alito insisted that this is not the kind of case SCOTUS reviews. Sotomayor placed this within Tolan v. Cotton, as a case of the lower court's clear misapprehension of summary judgment standards warranting summary reversal. Notably, however, Justice Alito (joined by Justice Scalia) concurred only in the judgment in Tolan, suggesting that he did not think the Court should have granted cert, but that Court practice is not to dissent from the grant of cert.

Justice Sotomayor highlights the Court's failure to intervene in this and similar cases in which summary judgment is (erroneously) granted against § 1983 plaintiffs, while frequently summarily reversing decisions denying summary judgment in favor of officers. That assymetry, she argues, ignores that the erroneous grant of summary judgment in § 1983 qualified immunity cases harms "society as a whole" as much as an erroneous denial. Tolan was a step to addressing this assymetry, but the Court has now taken a step back. In response, Justice Alito recognizes the cases reversing denial of summary judgment, then says "the dissent has not identified a single case in which we failed to grant a similar petition filed by an alleged victim of unconstitutional police conduct." But that seemed to be her point--the Court is not taking these cases (other than Tolan) and that is the problem.

Finally, Sotomayor points in a footnote to the increasing frequency with which police officers justify shootings of unarmed people by testifying that the defendant reached for his waistband. Sotomayor does not cite it, but in 2014, the Ninth Circuit, in an opinion by Alex Kozinski, held that the absence of a gun raises a reasonable competing inference to officer testimony that the plaintiff reached for his waistband. It makes "no sense whatsoever" for an unarmed person to reach for his waistband. A jury therefore could doubt that the plaintiff did this, making summary judgment inappropriate, even if the officer's testimony about reaching for the waistband is not expressly contradicted.

Posted by Howard Wasserman on April 25, 2017 at 11:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Getting Civ Pro mileage out of Trump

For my in-semester essays in Civ Pro, I got a lot of mileage out of Zervos v. Trump, the defamation lawsuit filed by the former Apprentice contestant who alleges Trump sexually assaulted her (the allegation is that when Zervos went public with her allegations and Trump denied them, he called Zervos a liar, constituting defamation per se).

I got four essays out of the basic lawsuit, with only a little bit of elaboration beyond the Complaint itself and only a few made-up or altered facts, as necessary: 1) Whether another of Trump's sexual-assault accusers (I used Natasha Stoynoff, the People Magazine journalist) could join as a plaintiff; 2) How Trump could raise a defense of presidential immunity (that is, the difference between 12(b)(6) and 12(c) for affirmative defenses--I moved the case to federal court); 3) Whether Trump could remove to federal court in New York (a test of the Forum Defendant Rule--I tweaked the facts and had the lawsuit filed on January 23); and 4) Whether Zervos could have filed the lawsuit in her home state of California rather than New York (a test of the Effects Test for personal jurisdiction, with some internet thrown in).

All-in-all, a helpful teaching case, in a framework that students would be interested in and with which they would be somewhat familiar. And, at least so far, no complaints from students about asking them to write about Donald Trump and his misdeeds, even having to answer one question as Trump's counsel.

I will leave with a question for the Civ Pro types: What would your conclusion be on the P/J-in-California question? Based on the allegations in the Complaint, Zervos is from California and one of the sexual assaults that Trump denies occurred there (the other occurred in New York). But Trump's denials of the assault accusations (i.e., the defamatory statements) were made either via Twitter directed at the world or at campaign rallies in states other than California, with no indication the statements made it into California through his efforts. And what makes Trump's denials defamatory is that he is denying Zervos' statements about the assaults, which were not made in California, not the California-based assault itself. My initial thought was that there would be no jurisdiction in California. But when I sat down to write the sample answer reaching that conclusion, I moved in the other direction (I ended up writing two sample answers, one going each way). Thoughts?

If my initial conclusion was wrong and California would have jurisdiction over Trump, it raises some interesting questions and ties personal jurisdiction to other, strategic issues for the plaintiff. If there is jurisdiction in California, why did the plaintiff go to New York, especially New York state court? Trump is certainly no less popular in New York City than in California (although perhaps not Orange County, where Zervos lives). One answer may be that she wanted to keep the case in state court--because of the Forum Defendant Rule, Trump (almost certainly a New Yorker) could not remove to federal court in New York, although he could remove to federal court in California. But to the extent any temporal presidential immunity exists, it would be in state court (an issue the Court in Clinton v. Jones left open), while it is clear that no such immunity exists in federal court. That being so, why would Zervos pick state court over federal court?

Posted by Howard Wasserman on April 25, 2017 at 09:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, April 20, 2017

No Simple Algorithm

In his article Libertarian Separation of Powers, Aziz Huq asks whether a libertarian should prefer one instantiation of interbranch structure over another.  His answer is no:  What institutional arrangements maximize liberty is deeply contingent.  “Confident prediction and prescription require a high degree of historical and circumstantial tailoring. There is no facile algorithm.”

Something loosely similar, I’ve been suggesting in previous posts, is plausibly true of the class action.  For libertarians, there’s no simple algorithm for regulating  class certification.

In this post, I’ll flesh out the point further by turning to the current version of the Fairness in Class Action Litigation Act ("FICALA"), Congress's latest attempt at class action regulation. To blog-simplify, I’ll assess the Act from the standpoint a crude libertarian—someone whose strong preference for private ordering leads him to embrace very crude constraints on state intervention in the marketplace. 

The virtue of this heuristic is not that it tells us whether reforms in the Act are good, bad, or indifferent, but that it makes the following claim at least colorable:  Even confined to a single category of Rule 23 class action, Rule 23(b)(3), it’s not clear that there’s one set of optimal libertarian class certification rules.

I’m going to focus on one portion of the FICALA:  its provisions on partial certification or “issue classing.” Partial certification, grounded in Rule 23(c)(4), involves slicing class claims into their component issues and then certifying discrete common issues (most often, issues related to primary conduct or general causation), leaving individualized issues relating to specific causation and damages calculation to later proceedings brought by individual class members. 

FICALA, following circuits like the Fifth, forbids partial certification—class certification, it provides, should hinge on the certifiability of the class claims considered as a whole.  This turns Rule 23(c)(4) into the most banal of housekeeping provisions—one that allows the court to segment and hold separate trials on a series of common issues in a thoroughly cohesive class. 

How might the crude libertarian think about FICALA's partial certification ban? 

The crude libertarian has spent a lot of time reading, although not carefully, the literature on “regulation by litigation.”  The literature defines “regulation by litigation” as the “use of the threat of a catastrophic loss in litigation to coerce agreement to forward-looking, [quasi-administrative] regulatory provisions in a settlement.” The problem with regulation by litigation, according to this literature, is that it evades the usual checks on regulation built into the political process, imposed by administrative procedure, or what have you.

Our crude libertarian sees class certification through the lens of this literature and, characteristically, does so in blunt, un-nuanced terms:  Damages class actions are, in his mind, one thing—an opportunity for regulation by litigation (by, he likes to tell you, “politicized” judges.)  The crude libertarian isn’t picky about how to deal with that opportunity.  He's happy so long as judicial discretion to take advantage of it is locked down.

And so the crude libertarian embraces the contemporary version of the Rule 23(b)(3) predominance test, which, as Robert Bone laments here,  requires a very high degree of class cohesion in a way that imposes a rule-like constraint on certification. The same impulses, of course, lead the crude libertarian to reject partial certification, because it allows judges to evade the predominance requirement.  In the crude libertarian's view, partial certification uncorks the judicial ”regulatory” discretion that the modern predominance test tries to bottle up.

Or, at least that’s how things look to crude libertarian when he focuses on the corporate wrongdoing class action.  What, though, happens if the crude libertarian turns his attention to, say, constitutional tort litigation? 

The crude libertarian, it turns out, is pretty hawkish on monetary claims for constitutional torts.  Here, after all, he thinks, litigation protects rather than disrupts autonomy and private ordering.

Of course, he knows that imposing monetary liability on municipalities has costs as well as benefits.  He’s not sure where the tipping point, where costs outstrip benefits, is.  But he’s sure we haven’t reached it yet.  Indeed, recent political trends have given him the distinct fear that the pendulum may have swung too far in the anti-liability direction.

And so when he turns his attention to class actions based on constitutional torts, the Fairness in Class Litigation provisions on partial certification seem. . .  problematic.   Sure, section 1983 class litigation for damages is especially rare—but it exists and frequently depends on the use of partial certification.

Applied in this setting, then, partial certification seems not bad but, plausibly, good.  Sure, partial certification occasionally misfires.  But the occasional misfire is a small price to pay for  giving the deterrent threat of monetary liability for constitutional torts some needed extra bite.

The virtue of the crude libertarian isn’t that his judgments are all spot on.  They're not.  The crude libertarian is a crude simplification.  But it's a simplification with a purpose, e.g. pointing up a possibility:  Much as there is no “facile algorithm” for maximizing liberty through macro interbranch structure, there is no single “libertarian” algorithm  for regulating damages class actions. The best class certification rules, from a libertarian perspective, may vary--alternatively constraining and empowering damages classes--in different contexts. 

Thanks to his crudeness, the crude libertarian can’t  give us firm answers about how to structure the class action in these contexts.  But, in a future post, I’ll suggest he helps us see some common ground between progressives and libertarians about who ought to make that design decision. 

Posted by Mark Moller on April 20, 2017 at 11:40 PM in Civil Procedure | Permalink | Comments (0)

Tuesday, April 18, 2017

SCOTUS on inherent powers

I have a piece at SCOTUSBlog on Tuesday's unanimous decision (8-0, as Justice Gorsuch was not on the bench when the case was argued in January) in Goodyear Tire & Rubber v. Haeger, holding that there must be a but-for connection for an award of attorney's fees for bad-faith conduct under a federal court's inherent powers. The court remanded to determine whether Goodyear waived its challenge to a base award of $ 2 million or whether the district court must redo the entire fee calculation. I am a bit surprised by the outcome, although the Court announced a legal standard broad enough to support a similarly large award, if the court makes appropriate findings.

Posted by Howard Wasserman on April 18, 2017 at 01:38 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Notes on Monday's SCOTUS arguments

I covered two of yesterday's arguments for SCOTUSBlog--in Perry v. MSPB (considering where review is had for MSPB decisions) and Town of Chester v. Laroe Estates (considering whether intervenors must have standing). Some additional thoughts below.

First, the story for many commentators about Perry was how engaged Justice Gorsuch was with both sides in the first case on his first argument day (it is not clear from the transcript, but reports are he asked his first question about ten minutes in). What has been discussed less is that Gorsuch seemed poised to rejected everything the Court had said previously about mixed cases. While the Court as recently as five years ago in Kloeckner v. Solis had stated that mixed cases go entirely to a district court, Gorsuch pushed both sides to the conclusion that the CSRA does not authorize district courts to review MSPB decisions and that mixed cases must be split up, with discrimination issues going to the district court and CSRA issues to the Federal Circuit. It is not clear where and whether he will follow that position. I previously, mainly jokingly, predicted that Gorsuch would write Perry, because it seemed the kind of case assigned to the junior-most Justice and I expected it to be unanimous, in light of Kloeckner. I may prove partially correct about him writing--but it may be a solo dissent.

Second, Gorsuch showed a distinct style on the bench (I cannot tell the tone of that style from the transcript--I am anxious to listen to the audo). He is well prepared and able to dig into the minutiae of the case, including statutory language (contrast that with the 10,00o-foot professorial musings of Justice Breyer). And he does not let attorneys get away with half-answers or skirting his questions; he keeps coming back and demanding answers. An exchange in Town of Chester with respondent's counsel is illustrative. Gorsuch was asking about the line between an intervenor seeking his own relief and seeking to benefit from the same judgment that a plaintiff with standing is seeking. Counsel argued it depends on the scope of the judgment sought, in light of the "one good plaintiff" rule. When counsel tried to pivot, Gorsuch apologized for interrupting, but said "[i]if you would just answer my question, I would be grateful," later insisting "that's not a trick question." When counsel again returned to the one good plaintiff, Gorsuch said "I'll let you go."

Third, Town of Chester silently ties into debates about the proper scope of judgment. Everyone was getting tripped up by the "one good plaintiff" rule, under which a non-class judgment can work to the benefit of multiple plaintiffs so long as one has standing. But that rule may be problematic under Article III, as Aaron Bruhl argued in an amicus brief and a forthcoming article. And it may be problematic as a matter of the law of judgments, where a court should be limited to issuing a judgment that directly benefits only a named plaintiff (and a named plaintiff must, under Article III, have standing). The one good plaintiff rule reflects the same misunderstanding of judgments and injunctions that allows for nationwide/universal injunctions.

Fourth, the Justices keep dancing around the connection between standing and merits, without seeing (or wanting to see) the identity between them. In Chester, Justice Alito asked respondent's counsel for an example of a case in which an intervenor lacked standing. Counsel responded with Trbovich v. UMW, in which a union member, who would not have been allowed to sue under the LMRDA, was allowed to intervene. To which Alito responded "that's not an Article III question. That's a merits question. That's the scope of the claim." That it is, Justice Alito. That it is.

Posted by Howard Wasserman on April 18, 2017 at 01:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Thursday, April 13, 2017

Libertarians and the Public Interest Class Action

    In my previous post, I suggested that there is a seeming disconnect between libertarian priors and the real-world class action reform advocacy of DC libertarian organizations. In this post, I’ll illustrate that point, in a provisional way, through a case study.  This one focuses on the Fairness in Class Action Litigation Act (FICALA) 1.0, introduced in 2015.  (This was the precursor of the current bill before Congress.) 

    The original version of the FICALA was not well-drafted, to the say the least.

     As originally introduced, it provided as follows:

No Federal court shall certify any proposed class unless the party seeking to maintain a class action affirmatively demonstrates through admissible evidentiary proof that each proposed class member suffered an injury of the same type and extent as the injury of the named class representative or representatives

    Subsequent alterations narrowed the same injury requirement to claims for monetary relief.  But the fact that the language was proposed at all is troubling.

    Critics noted several problems.  Let me focus on just one: As Alexandra Lahav testified, “All injunctive actions would be affected by this bill the way it is written. . . . I do not see a way around that.”  That’s, of course, a natural implication of the bill’s all-encompassing language:  “[I]it says,” noted Lahav, that “ no Federal court shall certify any proposed class” unless each class member suffered the same type and extent of injury.

    What’s wrong with that? 

    Well, injunctive classes, as David Marcus notes here, often target systematic wrongdoing that bureaucratically “distributes” harm in different ways.  David gives the classic example of  a state custom of deliberate indifference to prisoners’ medical needs.

    That custom may spawn different types of harms in different prisons.  For example, writes David, one prison warden “might implement a policy to provide for emergency medical care for inmates injured in prison fights. But his prison might neglect the medical care of inmates with diabetes, a failing made possible by the [state custom of] indifferent management” of local prison conditions.  Another warden “might have an adequate insulin protocol in place but ignore mental health needs of inmates in solitary confinement.” 

    Prisoners at these prisons—the diabetic prisoner denied insulin and the prisoner suffering from solitary confinement—have palpably different “types” of injuries, but are victims of the same systemic problem of indifferent state management.  Read one way, the 2015 bill would prevent one or a few prisoners from challenging the system-wide policy—it would rather require recruiting named plaintiffs that represent every discrete category of harm emanating from the alleged systemic failure, or, instead, relegate lawyers to the slow grind of targeting the custom piecemeal. 

    Was that an aim of the original bill? 

    It’s hard to say. 

    Best case: the bill simply was not well thought out in its early stages. Worst case:  the bill was a failed bid to smuggle in the constraints on public interest class actions that have grown up willy nilly since Wal-Mart Stores v. Dukes.  Indeed, as David Marcus details in the article referenced above, a series of post-Dukes (b)(2) injunctive class actions have foundered thanks to lower court rulings rejecting injunctive classes due to a lack of “near-perfect identity among class members’ experiences.”   Whatever may have been intended, the original bill sure looked an awful lot an attempt to codify this caselaw.

    “So what?,” you might say.  After all, Congress eventually changed the same injury language of the 2015 bill to limit the provision to class monetary claims —and the new version of the bill introduced in this Congress retains that focus.

     But the episode, while it turned out to be  just an initial bump on the road to the current version of the bill, is telling.

    The grist of public interest litigation against governmental defendants —systemic government wrongdoing, like prisoner abuse--is certainly something that engages many libertarians.  But while progressive public interest advocacy organizations rightly raised a hue and cry about the original blunderbuss language (Lahav called it a “terrible” bill), class action mavens in DC libertarian-leaning organizations seemed to mostly shrug off these concerns.  Prominent representatives of these groups echoed, instead, the (to-my-mind unpersuasive) claims of the corporate defense bar that civil rights groups were overreacting.

    It’s a small episode, but one that reinforces my point from my earlier post.  Despite what would seem to be a natural affinity, at least in governmental public interest litigation, between libertarians and the plaintiffs’ bar, institutional libertarians’ class action reform advocacy seemed more in tune with the corporate defense wavelength. 

    In the next post— I’ll turn to take a look at the Fairness in Class Action Litigation Reform Act 2.0. Here again, we’ll find the legal reform wing of institutional libertarianism seems overly sanguine about an improved but still problematic bill.

Posted by Mark Moller on April 13, 2017 at 01:01 AM in Civil Procedure | Permalink | Comments (0)

Monday, April 10, 2017

Did United Airlines act under color?

It strikes me as a question worth considering. Ordinarily, one private actor calling law enforcement to enforce private rights as against another private actor is insufficient. And properly so, otherwise everyone would act under color any time she called the police to remove trespassers or to protect her rights and things went sideways.

But does this situation go beyond that, since UA brought in the police specifically for purposes of physically removing this passenger from the plane? The use of force, perhaps excessive, was both UA's purpose in calling the police and a likely result. Is this the sort of "brutal joint adventure," in which police action is necessary to enable private actors to carry-out questionable or unlawful actions? Is dragging this guy off the plane in this manner equivalent to arresting Mrs. Adickes and her students?

UA is going to settle--and do so very quickly. So no court will reach this. Worth thinking about, though.

Posted by Howard Wasserman on April 10, 2017 at 05:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (13)

Upcoming procedure cases (Updated)

I have two previews at SCOTUSBlog today for procedure cases to be argued at the Court next Monday. In Perry v. Merit Systems Protection Board, the Court considers the proper court (the Federal Circuit or a district court) for reviewing a decision of the MSPB that some discriminatorily motivated adverse employment action is not appealable to the Board (this case follows on a 2012 decision, that I also covered, holding that such "mixed cases" are reviewed in district court). In Town of Chester v. Laroe Estates, the Court considers whether a person seeking to intervene  as of right as a plaintiff must have Article III standing.

Two quick additional points on Town of Chester. First, I want to flag the amicus brief of Aaron-Andrew Bruhl (William & Mary), urging the Court to hold not only that the Court should require intervenors to have standing, but also to hold that every original plaintiff must have standing and to reject the current doctrine that, so long as one plaintiff has standing, there is no need to inquire into standing of all other plaintiffs seeking undifferentiated relief (such as injunction barring enforcement of some law). The brief follows on Bruhl's article (forthcoming Duke L.J.) arguing that the doctrine of "one good plaintiff" violates Article III.

Second, this case, especially if the Court is willing to pursue Bruhl's argument, could be significant to the ongoing debate over universal (or nationwide) injunctions. The ongoing confusion over universal injunctions is over the permissible scope of an injunction. That, in turn, reflects confusion over who is (or can be) directly protected by the injunction as an enforceable judgment and who is (or can be) indirectly protected  by the injunction only as binding or persuasive precedent in a new lawsuit. Only parties enjoy the former benefits. By allowing people without standing to be plaintiffs, courts expand who is a party and thus who enjoys the direct benefits of the injunction. Pulling back on this conception of standing may go a way to correcting scope-of-injunction problems.

Update: These also will be the first cases heard by Justice Gorsuch, who was sworn in yesterday and will participate in the April sitting.* I will make a second, more-random prediction: Gorsuch will write Perry. It is the kind of cases that goes to the junior-most Justice (Kagan, then early in her third Term, wrote Kloeckner). It likely will be unanimous (although I cannot predict from the briefs which way) and there is a tradition of giving a new Justice a unanimous decision.

* My long-ago prediction that Scalia's successor would not be deciding cases until OT 2017 was off by two weeks, although I was right that the earliest anyone would be confirmed was mid-April. But I assumed that it would not be worth the candle for the new Justice to step-in for a week or two of cases, which turned out to be wrong. I also did not anticipate that the Court would hear 13 cases--about 20% of the merits cases for the Term--in these two weeks.

Posted by Howard Wasserman on April 10, 2017 at 03:31 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, April 07, 2017

DOJ, civil rights, and police reform (Updated)

Last Friday, Attorney General Sessions issued a memorandum enumerating a series of principles regarding law enforcement and the relation between the federal government and local law enforcement; these include local control and responsibility for local law enforcement, promotion of public respect for police work, and the idea that the "misdeeds of individual bad actors" should not impugn law enforcement as a whole. The memo than calls for review of all DOJ activities to ensure compliance with those principles.

This almost certainly means we will not see new § 14141 actions or investigations being pursued against local agencies. Sessions (and Trump) rarely, if ever, sees police as being at fault in anything, and any misconduct that occurs is a product of a single bad actor, not systemic or institutional problems. It probably means ongoing cases in which a consent decree has not been approved, as in Chicago and Baltimore, will be abandoned or altered. (Chicago Mayor Rahm Emanuel has said the city will move forward with reforms, even absent a consent decree). It will be more difficult to undo existing consent decrees; because these reflect final judgments, the court must approve and oversee any changes, regardless of DOJ having changed its mind or policies.

This offers a nice reminder of the relationship between governmental and private enforcement of civil rights and the special role of private enforcement--the change of administration brings changes in enforcement priorities. Private enforcement (through "private attorneys general") provides a constant baseline of enforcement that can pick up the slack, however much slack there is, depending on the administration.

Update: District Judge James Bredar approved the consent decree, declining DOJ's request for a 30-day delay so DOJ could reassess the deal, stating that the case no longer was in a phase in which one side can unilaterally reconsider or amend an agreement and that the court did not need further time to consider the terms of the judgment. On a different procedural point, the NAACP is seeking to intervene, obviously concerned that DOJ is no longer committed to ensuring compliance or enforcing the decree.

Posted by Howard Wasserman on April 7, 2017 at 09:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Thursday, April 06, 2017

The Liberaltarian Class Action

When my old colleague Brink Lindsey coined the term “liberaltarianism” in 2006—his term for a liberal-libertarian “rapprochement”-- it seemed like an idea that was headed nowhere. 

But as the post-Trump Republican Party has catapulted deep into the abyss of nativism and racial resentment, treating us to various civil libertarian horror shows along the way, some Never Trump libertarians are finding common cause with progressives. 

And, as a result, liberaltarianism is getting a second wind.  Witness the amazing leap to prominence, over the last year or so, of the new Niskanen Center, a think tank that is the project of a great group of former colleagues from the Cato Institute, like Will Wilkinson, Joey Coon, Radley Balko, and Jerry Taylor.  

Niskanen’s M.O. is making a pragmatic libertarian case for positions once exclusively associated with the left or center-left.  Niskanen writers have produced some of my favor pieces of punditry in the last several months, like this Will Wilkinson piece on the social safety net and Jacob Levy’s piece on the BLM movement.

But they haven’t addressed one burning question (OK--burning perhaps only in the minds of class action nerds like me): what does liberaltarianism  mean for class action policy?

As even casual observers of the class action  know, its only a slight exaggeration to say that the Beltway debate over the class action has become as predictable as The Walking Dead.  It divides into two camps: One side (a constellation of plaintiff-oriented groups and progressive think tanks) argues, roughly, for a restoration of the permissive class certification caselaw of the late 1970s and 1980s.  The other—a group of corporate defense attorneys and allied advocacy groups, like the Chamber of Commerce—perpetually advocate an ever deeper retrenchment of the class action across the board.    

Mainstream libertarian groups, like my one-time employer the Cato Institute, tend to align with the Chamber—a product of the way that (as Will Wilkinson recounts here) the culture of Beltway libertarian think tanks has, at least in big stakes policy debates that are likely to produce actual legislation, biased them toward operating as spokes-entities for positions favored by the Republican Party. 

But, on class action reform, anyway, this alliance is quite odd.  If any group should be receptive to a robust role for the class device—particularly when it comes to civil liberties—its libertarians. 

Hence the value of the liberaltarian moment:  by creating a safe space for center-right heterodoxy, groups like the Niskanen Center are also creating an opportunity to scramble battle lines in the Beltway class action debate.

Is there a distinctive libertarian position for the class action?  What might it look like? Might it be different from "The Conservative Case for Class Actions” (the subject of Brian Fitzpatrick’s much anticipated forthcoming book?) In future posts, I’ll jot some tentative, blog-appropriate thoughts by using the pending Fairness in Class Action Litigation Act as a case study.

Posted by Mark Moller on April 6, 2017 at 01:20 AM in Civil Procedure | Permalink | Comments (1)

Wednesday, April 05, 2017

Your Fed Courts/Civil Rights Exam

Identify the problems with this complaint: The victims who will testify in the Michigan sexual-abuse prosecution Lawrence Nassar, the former doctor for USA Gymnastics. The witnesses have sued the criminal trial judge, the attorney general, and Nassar, challenging a gag order the judge imposed on the witnesses (on Nassar's motion), alleging it violates due process and the First Amendment. Where to begin?

• The claims against Nassar rest on the conclusion that a criminal defendant acts under color of law when performing ordinary, presumptively lawful litigation maneuvers, such as making motions. That is a dangerous idea.

Rooker-Feldman bars federal constitutional claims seeking relief from an injury caused by a state court order. And the Sixth Circuit is part of the majority of circuits holding that RF applies to interlocutory judgments. I see no way around that in this case, as even the Deadspin commentators recognize.

• The appropriate move should be for the witnesses to intervene and/or to file a motion in the criminal court challenging the gag order, which non-parties can do to challenge orders that affect their interests (for example, what newspapers do to challenge orders that cut-off access to the court). I suppose the move after that would be to mandamus the judge in the state appellate or supreme court--and, if necessary, move the issue to SCOTUS after a final judgment on the mandamus. A federal § 1983 action is nowhere on the list of appropriate strategies.

Posted by Howard Wasserman on April 5, 2017 at 09:12 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Party control

I have not had a chance to read the en banc Seventh Circuit decision in Hively v. Ivy Tech Comm. College, holding that sexual-orientation discrimination is discrimination "because of sex" under Title VII. This sets up a circuit split with a panel of the Eleventh Circuit. Two broad thoughts, beyond the substance of the Title VII question.

First, Hively sued a community college, a state actor that also could have been sued for an equal protection violation under § 1983, although there is no indication the plaintiff did so (there is a § 1981 claim mentioned, but § 1983). At least in race cases, courts treat the substantive discrimination analysis under Title VII and the Fourteenth Amendment as co-extensive, is all prevent intentional discrimination. So if sexual orientation discrimination is "because of sex" for Title VII, must it also be for constitutional purposes, as well?

Second, there is a lot of discussion of how Hively tees this up for SCOTUS resolution, with focus turning to what the SG and the Bush Administration will do. But Ivy Tech has indicated, at least for now, that it will not seek SCOTUS review, but will go back to the trial court and litigate the factual questions of whether the school discriminated. So note the prospect this potentially creates--a clear circuit split and every ideologically interested person wanting the issue to go to SCOTUS, but no vehicle to pursue the split because the parties controlling the vehicle choose not to do so. SCOTUS should get this issue because the plaintiff from the Eleventh Circuit will seek cert in order to revive her dismissed claim. But the en banc Eleventh Circuit might review the case first and rule consistently with the Seventh Circuit, removing the circuit split. All of which provides reminds us that the power of federal courts (and the SG) often remain subject to the whims, strategies, and preferences of private or non-federal litigants. [Update: The plaintiff in the Eleventh Circuit has petitioned for rehearing en banc].

Posted by Howard Wasserman on April 5, 2017 at 11:55 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Thursday, March 30, 2017

Twiqbal on life support?

On a Twiqbal question on the preliminary exam in Civ Pro, no fewer than three students wrote that the rules require more than a "threadbare resuscitation of the elements."

Posted by Howard Wasserman on March 30, 2017 at 12:21 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Thursday, March 23, 2017

JOTWELL: Campos on Glover on claims as property

The new Courts Law essay is from Sergio Campos, reviewing J. Maria Glover's A Regulatory Theory of Legal Claims (Vand. L. Rev.), which considers the implications of understanding legal claims as property.

Posted by Howard Wasserman on March 23, 2017 at 10:16 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, February 27, 2017

Qualified Immunity meets advisory opinions

One of my students flagged the Fifth Circuit decision in Turner v. Driver from two weeks ago. A divided panel held that the right to video-record police and police stations from the public sidewalk was not clearly established in September 2015. The court then went on to say:

Because the issue continues to arise in the qualified immunity context, we now proceed to determine it for the future. We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.

That section of the opinion was even titled "Whether the Right Is Clearly Established Henceforth."

There has always been something advisory-opinionish about the qualified immunity analysis. The court addresses the merits and finds a violation, but does not impose liability in this casebecause the right was not clearly established. Instead, that merits analysis serves (perhaps) to clearly establish the right for the next case, at least the next case involving largely similar facts.

But the majority here seems to have crossed over into a pure advisory statement of abstract legal principles. It was not even purporting to do a merits-first analysis (and not just because this part came after the clearly established prong). The court did not find that the officers violated Turner's rights in this case. Rather, it simply announced a First Amendment right to record in public (subject to reasonable time, place, manner restrictions), devoid of any facts or details to the case at hand. And the court did so expressly because the issue would continue to arise in the qualified immunity context, where courts otherwise would continually have to deny liability because the right would forever remain not clearly established. Of course, the need to establish constitutional law is one reason that courts may and often should abide by the merits-first approach, even if not mandatory. This goes beyond that--law divorced from any facts or any violation in the case at hand.

Moreover, it is not clear the majority did or could achieve what it wanted to do. As the dissent argued, future cases must look to factually similar cases for the clearly established analysis, not general principles of law. But the facts were not part of the analysis here. Thus, the dissent argues, "[b]ecause the majority does not hold that the officers actually violated the First Amendment, 'an officer acting under similar circumstances”' in the future will not have violated any clearly established law."

It is good to have another circuit weighing in on the First Amendment right to record. But the way the court got there was procedurally odd.

Posted by Howard Wasserman on February 27, 2017 at 02:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, February 26, 2017

One more from Hernandez v. Mesa

The following exchange occurred toward the end of Petitioner's argument:

Justice Alito asked whether a plaintiff would have a § 1983 action if the shooter had been a state or local police officer; petitioner's attorney responded "You would not have a claim over the State officer, but if you don't --but a Bivens claim--a constitutional Bivens claim could apply to the State officer."

Did counsel misspeak? Or is he arguing that a plaintiff can enforce the Fourteenth Amendment (including the incorporated Fourteenth Amendment) through a Bivens action in situations in which § 1983 runs out (as everyone seems to accept here, where § 1983 protects citizens and "other person[s] within the jurisdiction thereof")? And can that be right, certainly descriptively, under the Court's recent Bivens jurisprudence, where § 1983 would be an alternative remedy?

Posted by Howard Wasserman on February 26, 2017 at 02:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, February 24, 2017

Hernandez v. Mesa argument

Just finished the argument in Hernandez v. Mesa (shooting across the Mexican border). A couple quick notes:

The argument was dominated by Justices Breyer and Kagan, with fewer questions from the Chief or Kennedy and even fewer from Justice Alito, who I would have expected to challenge the petitioner more than he did. On that note: At one point, the transcript shows Kagan beginning to ask a question when the Chief jumped in to call on Justice Kennedy (who, according to the transcript, had not begun to say anything). I want to hear it on audio. The Chief often plays traffic cop during arguments,* although this was the first time I have seen him do it without an apparent verbal signal that someone was trying to speak.

[*] An interesting research question: Is he more likely to "call on" a male Justice, especially over a female Justice? It feels that way from the individual examples I notice. I wonder if a regularized study would bear that out.

Qualified immunity was not discussed much, only a couple of questions from the Chief and Kennedy. One of them asked whether qualified immunity accounts for different plaintiffs--that is, if case law establishes that X violates the Constitution, can courts distinguish that precedent (to find the right not clearly established) when the identity of the plaintiff subjected to X is different.

Finally, Kagan and Breyer both pushed back against the idea that Bivens must be "extended," at least for Fourth Amendment excessive-force claims to recognize a cause of action. Kagan suggested that Bivens should be understood as allowing Fourth Amendment claims unless it arises in the military context. And Kagan pushed hard on the absence of an alternative remedy here, seeming to suggest that we should not even look at special factors if the plaintiff is left entirely without a remedy. These ideas, if followed, would pull the Court back from where it has gone with Bivens in the past two decades, similar to the vision Justice Ginsburg espoused in her dissent in Wilkie v. Robbins.

Posted by Howard Wasserman on February 24, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Thursday, February 23, 2017

Third Annual Civil Procedure Workshop (Reposted)

The following is re-posted on behalf of Brooke Coleman (Seattle), David Marcus (Arizona), and Elizabeth Porter (Washington).

We are excited to announce the third annual Civil Procedure Workshop, to be co-hosted by the University of Arizona Rogers College of Law, the University of Washington School of Law, and Seattle University School of Law. The CPW will be held at the University of Arizona in Tucson on November 3-4, 2017.

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 2017 include the Hon. David Campbell, Allen Erbsen, Margaret Lemos, Troy McKenzie, Mark Moller, the Hon. Lee Rosenthal, Elizabeth Schneider, Norman Spaulding, and Beth Thornburg. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 1, 2017. 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 April 15, 2017. Please send all submissions or related questions to Dave Marcus.

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.

Posted by Howard Wasserman on February 23, 2017 at 05:00 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, February 21, 2017

JOTWELL: Lahav on Coffee on entrepreneurial litigation

The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing John C. Coffee, Entrepreneurial Litigation: Its Rise, Fall, and Future (Harvard University Press). Very timely book and review, with aggregate litigation again in the crosshairs.

Posted by Howard Wasserman on February 21, 2017 at 03:35 PM in Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, February 10, 2017

The process of challenging the travel order

The litigation in Washington v. Trump has become politically confused following Thursday's decision by the Ninth Circuit.

The district court issued a Temporary Restraining Order; while it was entered following an adversary hearing, it was on light briefing and without an evidentiary hearing. It was designed to maintain the status quo until there could be briefing and a an evidentiary hearing on a preliminary injunction, although the briefing schedule was set so that the TRO would last more than the 14 days allowed by FRCP 65(b)(2), although not substantially more than that. The order was, as many have noted, bare-bones and conclusory in the constitutional analysis, as befits a TRO.

The United States appealed, although it was not clear what or how. TROs are not subject to immediate appeal, although preliminary injunctions are. The purpose of the appeal appears to have been to get the Ninth Circuit to stay the district court order.

The Ninth Circuit panel recast the TRO as a PI (pursuant to Ninth Circuit precedent allowing the court of appeals to look through the label), granting it appellate jurisdiction, then denied the stay pending appeal. The Ninth Circuit has set a briefing schedule for the appeal (running into March), so we are done at the district court, at least at the preliminary injunction stage. At the same time, the panel left open the possibility that the merits panel could revisit the issue, decide this is really a TRO and that there is no appellate jurisdiction, kicking it back to the district court for the evidentiary hearing it was trying to hold.  There also is the possibility that the Ninth Circuit panel will decide that it cannot review the decision without an evidentiary record and remand for that hearing.

So consider where this leaves us: The case is in the Ninth Circuit to review a bare-bones order, entered without an evidentiary hearing and without giving an opportunity for an evidentiary hearing. This means, as described by one professor on the Civ Pro Listserv, the appeal will be nothing more than a replay of the stay motion with longer and more drawn-out briefing (and with the burden of persuasion shifted to the State), but with nothing more in the record to review. This reflects an insight Samuel Bray has made in his work criticizing nationwide injunctions--if the courts see their role as deciding whether to "strike down" a statute, then the narrow, party-specific work in the district court becomes less important. And litigants may view it that way, as well.

It did not have to proceed this way. The United States could have instead sought a Writ of Mandamus, which would have allowed the Ninth Circuit to look at the TRO to determine whether it was egregiously wrong, without being a run-of-the-mill appeal. And it could have done that without having to manufacture appellate jurisdiction, review a cursory order entered without a full record, or waste time remanding to obtain that full record. But the U.S. seemed so anxious to be able to enforce the E.O. pendent lite that it blew through many of these details.

A nice question to consider: Where did the decision to pursue the appeal in this way come from? At the time, there was no AG and no SG. So did the instructions and oversight come from the White House?

Posted by Howard Wasserman on February 10, 2017 at 10:17 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Monday, February 06, 2017

Criticizing v. Threatening--wither the line?

Where is the line between criticizing the judiciary and engaging in threats that potentially undermine the independence of the judiciary? That is the question following Donald Trump's tweets over the challenge to the travel order--where he first referred to District Judge James Robart as a "so-called judge," then said Robart and the judicial system had put the country in peril and would be to blame if there were a terrorist attack while enforcement of the order is enjoined. Will Baude, Eric Posner, and profs on various listservs have decried this as a genuine threat--undermining judicial independence and possibly inciting mob violence against judges should anything happen.*

[*] Threats aside, the comments also rest on a false premise--that there has been a dramatic increase in travel to the United States since the TRO was entered or that the TRO prohibits all vetting and discretion in issuing visas or accepting refugees.

I agree that this is a wrong and intemperate way to criticize a court, a judge, and a judicial ruling and a wiser President would tone it down, focusing on the correctness of the decision rather than whether the judge was acting as a judge and thus had the power to render that decision (Will's point). But I am not convinced this reflects a threat or a shot across the bow of an independent judiciary. Nor am I convinced by how bound up the comments are with whether Trump might disobey or disregard a judicial order. Trump could disobey the order without verbally attacking the judge. These tweets perhaps prime the public to support and accept his disobedience, because they have been primed to understand the decision as non-judicial and thus not entitled to obedience. But they are not a necessary condition for a presidential showdown with the courts, should Trump choose to have one.

On the other hand, I worry that in seeing the President's tweets as so much noise that should not be taken seriously, I am falling into the very trap that a would-be authoritarian President needs--missing efforts to undermine the judiciary before it is too late.

Posted by Howard Wasserman on February 6, 2017 at 01:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Saturday, February 04, 2017

Nationwide TRO bars enforcement of immigration order (Updated)

A judge on the Western District of Washington has issued a nationwide Temporary Restraining Order barring enforcement of the main provisions of President Trump's immigration executive order. The order is short (7 pages) and cursory and lasts only until the parties can brief the preliminary injunction, which presumably will receive fuller analysis. Josh Blackman has a quick analysis, with which I basically agree. At the same time, a judge in the District of Massachusetts refused to extend the TRO issued on an emergency basis last weekend.

Some quick highlights:

The lawsuit was brought by the states of Washington and Minnesota. The court seemingly accorded them parens patriae standing, although courts generally do not allow states to assert their citizens' rights--Virginia tried unsuccessfully to use it to challenge the Affordable Care Act). The court also finds harm to the state itself, through its public universities, tax bases, operations, and public funds.

Standing to one side, I cannot see how the EO violates the rights of either State. The constitutional defects in the EO are that it violates the First and Fifth Amendment rights of those who would be kept out of the country. So this must be third-party standing on behalf of residents, although I do not yet see the connection between either state and the rights-holders (apart from through parens patriae). As with the other TROs that have issued, the focus is far more on irreparable harm and far less on the merits. Maybe in the early days that is appropriate. But the success of these lawsuits seems to rest on courts finding that the government's power over immigration is less than it was 100 years ago, because rights of equality and religious freedom are greater than they were then. Perhaps they are. But there needs to be more discussion of this following a fuller hearing and more time.

The judge made the order nationwide (more accurately, universal), rejecting the government's argument that the order should be limited only to the two states, citing Texas v. US and the need for uniform immigration rules. The politics of who is seeking and defending these universal injunctions to one side, the need for uniformity cannot justify such orders. Disuniformity pendent lite is an inevitable, perhaps even intended, consequence of dividing the lower courts regionally. Different lower courts might disagree on the same issues, producing momentarily different law in different places. Uniformity arrives at the end of the day from SCOTUS, which is why the Framers mandated that Court at the top. If one regional district court (or one regional court of appeals reviewing that regional district court) has the power to resolve the issue for the entire country, there would be no need for SCOTUS; uniformity would come from whichever court got there (and ruled against the government) first. While this does create some possible confusion and uncertainty in the interim, which would look bad to the public, I do not see how you avoid that problem without altering the nature of regional courts and judicial remedies.

For what it is worth, I am less troubled than Josh is by Washington arguing for a universal injunction, when it explicitly argued against that in the Texas DACA litigation. This is why we have presumptively transsubstantive rules--so repeat players who might find themselves on either side of a dispute cannot sit on rules favoring one side or another.

As expected, the White House responded in its usual reasoned and even-handed way. A WH statement decried the "outrageous" order, although quickly re-issued the statement without the adjective. The President himself was not so reserved--he tweeted (and did not delete) about the "so-called judge" issuing the "ridiculous" opinion. Ah, the new "conversation among the branches." [Update: The President also cannot understand why the lawyers are not "looking at and using" the order from the District of Massachusetts. I assume Bannon or Miller will calmly explain binding v. persuasive authority to our fearless leader.]

Josh reports that the government is working on an appeal to the Ninth Circuit and SCOTUS. Note that this is not an appeal of the TRO itself (which is not subject to immediate review), but seeking a stay of the TRO. The analysis is similar, but not the same.

Update: The United States has appealed. It appears the argument is that this is a de facto preliminary injunction, even though designated as a TRO. Ninth Circuit precedent allows the court of appeals to look below the label, especially where the order lasts more than 14 days. Alternatively, the government may try to turn the appeal into a petition for writ of mandamus, a frequent end-run for interlocutors appeals. It appears that no stay was sought.

Update: The Ninth Circuit treated the appeal as a request for stay of the TRO. It denied the request for an immediate administrative stay, then ordered briefing by Monday of the request for a stay pending appeal. Beyond the stay request, it is not yet clear how the court of appeals is characterizing the district court's order and how that affects appellate jurisdiction.

 

Posted by Howard Wasserman on February 4, 2017 at 12:21 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Sunday, January 29, 2017

More on the immigration order

Events move quickly:

• Secretary of Homeland Security John Kelly issued a statement deeming "the entry of lawful permanent residents to be in the national interest," meaning "lawful permanent resident status will be a dispositive factor in our case-by-case determinations." The question was raised whether this moots the actions involving LPRs. Administrative/executive interpretation, not reduced to formal policy, typically is treated as "voluntary cessation" of unlawful activity that is not sufficient to moot a case. The government must show it is "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Given the public confusion over the meaning and scope of the order--with contradictory statements coming from officials within the White House over threee days--and that the policy could be changed tomorrow by a new announcement from the Secretary, this announcement should not meet the standard.

• The rapid-fire litigation reminds me of the early days of the nationwide marriage-equality litigation, with district courts all over the country issuing orders, often ex parte, almost always against the government, and building a momentum in a given direction. It also reminds us of the power of district judges, at least in the short-term--ex parte T/R/Os and stays are not immediately appealable, unless a court of appeals wants to mandamus the district judge, which is unlikely. When we talk about the power of the judiciary, it is not only (or even primarily) about SCOTUS on the ground.

• More protests Sunday, with thousands of people turning out on the streets of several major cities and at airports, seemingly organized on short notice and growing organically, and despite some traffic blockages. Once again, few or no reports of arrests. But the constant protests and criticisms seem the thing that might drive the President over the edge. How long might it take for himto have had enough and to try to get protesters off the street, either working behind the scenes telling local police enough is enough, or by explicitly urging force to stop them?

Trump supporters bragged about what his first 100 days would achieve. We are 10% there and it has been a ride, although not in the way many expected.

Posted by Howard Wasserman on January 29, 2017 at 11:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, January 22, 2017

Arguments in Ziglar v. Abbassi

Some thoughts on last week's oral arguments in Ziglar v. Abassi, the follow-up to Iqbal raising three issues: 1) Whether a Bivens action can be brought against policymakers on national-security matters; 2) whether the complaints were sufficient under Twiqbal; and 3) whether any of this was clearly established in 2001.

1) This case might give the Court an opportunity to re-emphasize and re-ignite "obvious alternative explanation" as part of the pleading analysis. Although mentioned in Iqbal, lower courts had de-emphasized it as part of the analysis, other than a bit rhetorically. Which is good, since such an inquiry contradicts the purpose of 12(b)(6). That motion asks whether, accepting everything the plaintiff says is true, he could win. For the court to explain the defendant's conduct as a result of something other than what the defendant alleges is for the court to act as factfinder based on the plaintiff's preliminary allegations. But the SG mentioned this standard several times during his argument on behalf of Ashcroft, Mueller, and James Ziglar (the policy-maker defendants); the core argument was that the decisions were based on their best judgment about national security given their lack of information, rather than invidious discrimination.

2) Justice Breyer (whose questions I usually cannot understand) asked a question that captured the connection between ex post damages and immediate court orders (namely habeas) as constitutional remedies and why the former maintains a special place in any judicial regime. Using Japanese internment as his hypo, Breyer pointed out that a judge was unlikely to find a constitutional violation in 1942, given the immediacy of the crisis, the recentness of the executive-branch determination, and the uncertainty of events. But later damages actions and remedies allow judges to act after the crisis has been averted and with an opportunity to cast a cooler eye on the constitutional question. It thus is not enough to argue, as the government did, that these detainees could have sought habeas relief (as some did) or relief under the Administrative Procedures Act or injunctive relief on a constitutional claim--that later judicial inquiry in a damages suit plays its own unique role. The sharp dichotomy the SG drew--constitutional challenges to government policy come only through injunctive actions, never through actions for damages--is not supportable (certainly not if we use § 1983 as an analogue) or the best scheme for judicial enforcement of constitutional rights.

3) The arguments and questions over the Bivens extension reveal an unfortunate conflation of what should be distinct issues--constitutional merits, availability of a cause of action, and qualified immunity. Government attorneys and questions from the bench (especially from the Chief) worried that the possibility of a suit for damages against policymaking officials would over-deter officials concerned about their conduct ultimately being determined. But that concern is already addressed by qualified immunity, a point respondent's counsel* nailed in her argument. And Justice Kennedy called for a targeted qualified immunity analysis for claims against national policymakers, seemingly recognizing that the immunity analysis was the locus for that consideration. Plus, the two-step immunity analysis allows damages actions to serve as a vehicle for developing constitutional law, at least when the Court chooses to undertake that inquiry--but only if Bivens allows the Court to examine and analyze the constitutional merits.

[*] Respondent's counsel was Rachel Meeropol of the Center for Constitutional Rights--and, I just learned, the granddaughter of Julius and Ethel Rosenberg.

This is not a new problem. In Wilkie v. Robbins, the Court pushed concerns about the scope of substantive due process as a reason to reject a Bivens cause of action.

4) Justice Kennedy, who has voted to reject the Bivens action in every recent case, seemed surprisingly sympathetic to the petitioner. Some questions to the government suggested concern that the respondents had no meaningful remedies and his questions to the respondent seemed to tee-up her arguments. Maybe that is how the Court avoids a tie. [Update: I should clarify--that is avoid a tie on the Bivens question. I expect a majority to find that all the defendants have qualified immunity]

Posted by Howard Wasserman on January 22, 2017 at 11:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 19, 2017

More on Zervos v. Trump

Or, as it will be called on my Civ Pro exam, Pervos v. Drumpf (really, you cannot make this stuff up):

Michael Dorf has a typically excellent analysis of the decision to sue in state rather than federal court He concludes that it was a strategic blunder, given the risk of a presidential immunity in state court.

There also have been interesting discussions on the Civ Pro listserv about a number of built-in issues, including:

• Trump's domicile and what happens to that on Friday, as well as how that might have affected the plaintiff's decision to file when she did, rather than waiting until next week.

• Removability, both under current removal statutes (which turns on the domicile question) and as a matter of Article III, were Trump to raise some sort of presidential immunity in state court.

• Whether Trump might go to SCOTUS and ask it to use its All Writs Act authority to rule that the President enjoys immunity from suit in state court and that any lawsuit against him only can proceed in federal court.

Posted by Howard Wasserman on January 19, 2017 at 03:41 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

More civ pro in SCOTUS

SCOTUS today granted cert in Bristol-Meyers Squibb v. Superior Court, another personal-jurisdiction case. This one should provide an opportunity to define when contacts give rise or relate to a claim (and whether those two things mean the same thing) for general or specific personal jurisdiction.

Posted by Howard Wasserman on January 19, 2017 at 03:15 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 18, 2017

Donald Trump and civil procedure

Donald Trump undoubtedly hates procedure, because it may interfere with his focus on substantive ends (unless procedure furthers his substantive ends--see College, Electoral). But all the litigation surrounding Trump and his businesses can be a boon for teaching and illustrating procedure. My fall Evidence exam was all Trump University. Now we have the defamation lawsuit by former Apprentice contestant Summer Zervos, alleging that Trump defamed her when he called her a liar in denying allegations that he sexually assaulted her. Merits aside, the case could be used to set-up and demonstrate a number of procedural issues.

For now, I want to focus on what the plaintiff's strategic choices tell us about diversity jurisdiction, at least from a plaintiff's standpoint. Diversity supposedly exists so the out-of-stater, forced to come into the state to litigate (I doubt Zervos could have gotten Trump into court in any other state), can find a neutral forum that will not favor the local over the foreigner. But here, a Californian filed a state-law action in New York against a New Yorker in state court.  It is worth thinking about that choice. One possibility is that Trump is unpopular in New York, so the federal forum is unnecessary. Another is that federal procedure has become so plaintiff-unfriendly that plaintiffs would rather take their chances with state procedure, even against a local. Or maybe that original assumption--federal courts are better because more free of local bias--was never true. Or if it was, it is not anymore. As I said, good discussion and/or exam fodder.

Posted by Howard Wasserman on January 18, 2017 at 07:55 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Friday, January 13, 2017

Procedure returns to SCOTUS docket

SCOTUS granted cert in sixteen new cases today. Several involve procedure/fed courts issues, including:

• The scope of general personal jurisdiction over a U.S.-based company in a state.

• In what court a fired federal employee can challenge rejection of the Merit Systems Protection Board decision, when the Board concludes that it lacks jurisdiction over a "mixed case" involving both a firing and a violation of federal employment-discrimination law.

• Whether intervenors in federal court must establish Article III standing or whether it is enough that the original parties have standing. (This issue has been around for awhile and came up back during the marriage-equality litigation).

Looks like I will have some stuff to write about late in the Term.

Posted by Howard Wasserman on January 13, 2017 at 05:15 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Last of its kind?

DOJ has entered into a consent decree with the Baltimore Police Department in a § 14141 action. As with many of the consent decrees we have seen from the Obama DOJ, it requires extensive changes to department policies and practices with respect to use of force, community engagement, and respect for the rights of people to speak and protest in public and to observe and record police activity. It also requires development of new practices with respect to transporting persons in custody and dealing with people with behavioral disabilities.

The question is whether this is the last such consent decree we see for awhile. Jeff Sessions does not appear to see systemic unconstitutionality in state and local police departments, nor does he appear to believe that the federal government and federal courts should oversee the operations of local agencies. It is unlikely that whoever Bush Trump appoints to head the Civil Rights Division will take a much different view of the matter. Extensive use of consent decrees through § 14141 is not in the Republican playbook--the Bush DOJ brought few civil actions and entered few consent decrees, preferring to engage in informal negotiations and letters of agreement, a less-adversarial/more-cooperative approach that does not necessarily produce as comprehensive reforms.

Posted by Howard Wasserman on January 13, 2017 at 12:28 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Wednesday, January 11, 2017

Goodyear v. Haeger oral argument

I have a piece on SCOTUSBlog covering Tuesday's argument in Goodyear Tire & Rubber v. Haeger.

Here, I want to highlight (as I do in the SCOTUSBlog piece) the analogy offered by Haeger's counsel between litigation and a train. He explains that most sanctionable conduct merely delays the train or causes a detour, although the train still arrives at the intended station. Here, the “train jumped track and it went in an entirely wrong direction.”

But does a train continue moving in any direction, right or wrong, once it jumps the tracks? Isn't it more like the beginning of The Fugitive?

 

 

Posted by Howard Wasserman on January 11, 2017 at 07:50 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, January 09, 2017

Shorter White v. Pauly

Unless an officer walks up to an unarmed man and shoots him in the head while shouting that he knows the victim was not a threat, stop denying police officers summary judgment in excessive force cases.

Posted by Howard Wasserman on January 9, 2017 at 04:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (17)

Less Hollow Hope on the defensive side

Judicial appointments always seem to be less of a high agenda item for Democrats than for Republicans. At the voting level, polls show that voters who identified the composition of SCOTUS and the federal courts as the most or a very important issue broke strongly for Trump.*

[*] On an AALS panel about the presidential transition, Steven Calabresi argued that this means Trump's promises about judicial appointments, especially to SCOTUS, are the equivalent of Bush I's "read my lips," to which Republican voters will hold him. If Calabresi is right, this will affect the result of any systematic Democratic efforts to oppose any Trump nominee.

At the presidential level, Reagan appointed 50 more judges in his eight years than Obama did in his, and Obama leaves office with about twice as many judicial vacancies (more than 100) than Bush II left in 2009. (So however Obama transformed the federal judiciary likely will be undone by Trump, who has a significant number of lower-court vacancies to fill immediately, along with the Scalia seat). Although Obama nominated and praised Merrick Garland and did speak about the waiting nomination, he did not do it so loudly or so often to keep the issue from largely disappearing from the news. I do not know if more political heat would have changed anything--if Republican voters genuinely care more about the courts than Democratic voters, there was no constituency to force Republican hands on this.*

[*] Which may offer another reason that Democratic attempts to hold the Scalia seat open indefinitely will fail--the Republican voters outraged at the obstruction will be louder and more numerous than were the Democratic voters outraged over Garland.

Some of Obama's less-than-complete success is due to Republican obstruction and that the Republican-controlled Senate has confirmed virtually no nominees during the past two years. But Obama had six years of a Democratic Senate, the last two of those without a filibuster on lower-court nominees (although still blue slips), which might have allowed him to push through a bigger flood of lower-court judges into those vacancies, had he been so inclined. (And this is without getting into judicial ideology, where Obama's (and Bill Clinton's) nominees never appear to be as liberal as Bush's (and likely Trump's) have been conservative).

But Obama never seemed so inclined, at least not outwardly or forcefully. One possible explanation is that Obama adheres to the arguments of University of Chicago political scientist Gerald Rosenberg in The Hollow Hope that the courts are not effective agents of social and political change and that progressive activists must focus more on the political branches. (The greatest social-change success came during the 1960s, the one time in history when the courts and Congress were on the same page). Obama is, at heart, a believer in political activism on the ground, back to his days as a community organizer, rather than in the courts. And that seems to have affected his approach to filling judgeships.

But there is a defensive component to our hopes for the courts. Courts are essential to protect what activists achieve in the democratic process. Or, stated, differently, they offer the other side a great way to stop or reverse social change that comes from the political branches. Packing the courts with Democratic nominees is essential to secure those political-branch successes, even if the courts should not be the primary target for establishing rights in the first place.

And it is not only about protecting statutes and regulations from declarations of unconstitutionality.*

[*] See Voting Rights Act or the Medicaid expansion or DAPA. Or, historically, everything between 1933 and 1937. Or imagine if a Republican-controlled Court had come out the other way on the constitutionality of public-accommodations provisions.

It is, perhaps more importantly, about protecting against judicial interpretation and construction that sharply narrow the scope of those statutes and regs, thereby undermining their impact and social-change purposes.*

[*] See, e.g., restrictive interpretations of Title VII and other employment discrimination laws.

And we can add to that sub-constitutional procedural decisions closing the courthouse doors to those who would seek to avail themselves of statutory and constitutional rights.

[*] See Twiqbal or recent restrictions on class actions.

That is what Republicans achieve by dominating the courts and by making that dominance a central goal of every presidential administration. And what Democrats lose by not. The power to reverse that trend is what was lost by the failed Garland nomination, the failed Clinton candidacy,the failure of Obama to push more on judges, especially in his first six years, and the substantial number of vacancies he leaves to be filled by President Trump. (I recognize this reflects the "Disease of More": Obama achieved a lot with respect to the federal judiciary--it just never feels like enough).

And to put on a candidly partisan hat for a moment (remember, the banner says "almost always"): This, more than the probable loss of Roe as a constitutional doctrine or the loss of an opportunity to finally define and implement a vigorous liberal constitutionalism, is what saddened me most about the results of this election.

Posted by Howard Wasserman on January 9, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, January 07, 2017

Elevating judges during recess

Based on comments to my earlier post and some emails, the key question on elevation and resignation is more specific: Is a judge elevated on a recess appointment differently situated than a judge elevated through the ordinary appointment process.

It seems to me that a recess appointment is substantively the same as a regular appointment, but the process is flipped--the nominee assumes the office first and then the Senate confirms (or does not confirm). But during the recess-appointment period (the period between the appointment and Senate confirmation), the officer is in all senses identical to someone appointed through the regular process, fully occupying that office and exercising its powers to the same extent. That being the case, if acceptance of a regular appointment accompanies a resignation from the lower-court (however that happens and pursuant to whatever legal source), so should acceptance of a recess appointment.

The counter argument must be that the trigger for resignation of a lower-court judgeship (again, whatever the source of that requirement) remains Senate confirmation and acceptance of the commission to the higher court. On this view, a recess appointment is not substantively the same as appointment following Senate confirmation--it merely ensures that the work of the office gets done until the Senate returns and confirms, but does not alone alone fill the vacancy, impose the resignation obligation, or create the new vacancy on the lower court.

But that means Obama erred in not making a recess appointment. I had argued that it was not worth eleven months of Justice Garland (the longest he would have been able to serve, until December 2017) if the end result would be Garland on neither SCOTUS nor the DC Circuit. But my reasoning was that Obama would not want to create the lower-court vacancy and Garland is too young to want to no longer be a judge. But my conclusion rested on the premise that Garland would have been unable to return to the DC Circuit when the recess appointment ended. But if Garland's DC Circuit seat would have been waiting for him next December, then Obama had nothing to lose and everything to gain from this move.

Posted by Howard Wasserman on January 7, 2017 at 05:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, January 06, 2017

Elevating judges and creating vacancies

On my prior post about the expired Garland nomination and the Scalia vacancy, my former professor Steve Lubet questioned why a Garland recess appointment would have created a vacancy on the D.C. Circuit.  After much research, I am unable to find a provision expressly barring judges from simultaneously holding seats on two courts or declaring that accepting a seat on a higher court constitutes a resignation from the lower court. It simply is and seems to always have been.

A Congressional Research Service report from earlier this year declares, without citation, "[a] judicial vacancy is created by an incumbent judge['s]  . . . elevation to a higher court." When nominating lower-court judges for a higher court, presidents since Washington have contemporaneously nominated someone to the lower court, although the nomination is contingent on the elevated judge being confirmed; if she is not, the contingent nomination is withdrawn because there no longer is a vacancy. And there is extensive political science and historical literature about Presidents elevating from the lower courts precisely because it allows them to fill two vacancies--the existing one on the higher court and the one they create on the lower court by moving a judge from the lower to the higher court.

But I cannot find a statutory basis for this. The relevant provisions regarding appointments or tenure make no mention of and none of the literature cites to anything. The assumption underlying the appointment process, seemingly for everyone, is (and always has been) that  elevation means resignation and creates that new vacancy.

If anyone knows a basis for this that I am missing, please share in the comments.

Posted by Howard Wasserman on January 6, 2017 at 03:18 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, January 03, 2017

Goodyear v. Haeger argument preview

At SCOTUBlog, I have a preview of next week's argument in Goodyear Tire & Rubber Co. v. Haeger, considering the causation requirements for a court to impose bad-conduct discovery sanctions (in the form of attorney's fees) under its inherent powers.

Posted by Howard Wasserman on January 3, 2017 at 01:27 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, January 01, 2017

Ode to a District Judge

The Chief Justice's 2016 Year-End Report on the Federal Judiciary is an extend paean to federal district judges and the yeoman work they do as judges, administrators, and managers,* particularly in working with the 2015 discovery amendments and being more actively engaged in managing dockets and individual cases. As I did last year, I will assign the report for the first day of Civ Pro next week, because it provides a nice overview of the focus of that class.

[*] And lumberjacks. As in a "lumberjack saves time when he takes the time to sharpen his ax," just as district judges save time when they are more engaged in case management. As I say, he cannot help himself.

A couple notable omissions. Roberts mentions active and senior judges, but not magistrates, who in many districts deal with discovery and case management, at least on the first pass. The Report thus downplays the extent to which much of this important work is delegated to judicial officers lacking Article III protections, with all the concerns that might raise. Similarly, it mentions settlement as a benefit of skillful exercise of docket administration and case management, but does not mention that this often goes through ADR processes, again through bodies lacking Article III protections. Finally, the Report's tone of respect for the work of trial-court judges stands in stark contrast to the late Justice Scalia's question during oral argument in Iqbal. In challenging the argument that careful case management and control over discovery was the better alternative to a heightened pleading standard, Scalia said "well, that's lovely. The ability of the Attorney General and the Director of the FBI to do their jobs without having to litigate personal liability is dependent on the discretionary decision of a single district judge." The last two Annual Reports reflect a very different attitude towards the work of district judges. Of course, one could read this (as some did the 2015 Report) as Roberts nudging district court judges to his preferred exercise of discretion--more restrictive discovery and more early case resolution.

Speaking of Justice Scalia, it is interesting that Roberts did not mention his death and the political games surrounding that vacancy. It seems that Roberts is not going to follow the paths of Chief Justices Taft or Hughes in jumping into expressly political fights, even where the work and functioning of the Court is implicated by the actions of the other branches.

Posted by Howard Wasserman on January 1, 2017 at 01:39 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, December 23, 2016

Spoliation in the Age of Snapchat

According to Douglas Adams, a set of three rules "describe our reactions to technologies: 1. Anything that is in the world when you're born is normal and ordinary and is just a natural part of the way the world works. 2. Anything that's invented between when you're fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it. 3. Anything invented after you're thirty-five is against the natural order of things." Rule 1 explains why I collect vinyl. Rule 2 describes my career trajectory. But I started to move into Rule 3 with Snapchat.

Both anecdotal evidence from my students and industry stats show that Snapchat is here to stay. I'll admit that the first time I tried to use Snapchat, my Discover page of news stories included Seventeen Prom and something about the Kardashians. This made me feel old and silly, and I waited another month or so before I actually began using it. And now I get it - Snapchat can be fun. It steers us away from polished highlights and instead is meant to capture little moments throughout the day from the account-holder's perspective (Snap Inc.'s plan to create camera glasses will further this trend). But the biggest thing is the sense of freedom it creates with the promise of disappearing content. Snapchat stands for less permanency and more spontaneity.

As Snapchat stakes its claims as a social media powerhouse, new legal issues arise in the litigation context.

What are the duties to preserve data on ephemeral apps like Snapchat? Some ethics opinions make clear that lawyers must advise clients about their own social media usage, which may include instructions to preserve social media content. Certainly intentionally deleting Facebook content when there is a duty to preserve can lead to sanctions. But is there an issue with using self-destruct apps instead? Do the broader safe harbors in the 2015 amendments to the Federal Rules of Civil Procedure help address these potential issues? 

These are some of the questions I'm exploring in my work-in-progress, Social Media Spoliation. More broadly, I am curious how the law should adapt to the fact that we, as individuals, have become stewards of large amounts of data. We create vast digital archives about ourselves through our online activity. While many social media platforms store our personal data, they also may encourage modification or deletion of content through normal usage. The impact of ephemeral apps, like Snapchat, signals a new realm of potential discovery and spoliation issues - not to mention an epidemic of ridiculous selfies.

Posted by Agnieszka McPeak on December 23, 2016 at 09:36 AM in Civil Procedure, Information and Technology, Web/Tech | Permalink | Comments (2)

Tuesday, December 20, 2016

A student-athlete tries the First Amendment

Noriana Radwan was a freshman soccer player at UConn in 2014, when she was seen flipping-off an ESPN camera during the team's on-field celebration after winning the conference championship. She was suspended indefinitely and stripped of her scholarship, then transferred to Hofstra. Radwan has sued UConn and the responsible officials in federal court. Her primary focus is equal protection and Title IX, alleging that male athletes have done worse and been reinstated). But Count IV claims a violation of the First Amendment, stating that her conduct was "offensive and inappropriate," but still protected speech by a private citizen on a matter of public concern.

It could be worth following the First Amendment piece.

 

Posted by Howard Wasserman on December 20, 2016 at 08:29 PM in Civil Procedure, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, December 13, 2016

Pennsylvania recount rejected

On Monday, District Judge Diamond of the Eastern District of Pennsylvania dismissed the action filed by Jill Stein seeking a recount in Pennsylvania. (H/T: Arthur Hellman of Pitt, who recommends it as a possible Fed Courts final).  The court found Stein and a voter co-plaintiff lacked standing and also dismissed on both Younger and Rooker-Feldman grounds. Some thoughts after the jump, but with one umbrella conclusion: This is a nice illustration of courts using jurisdiction and justiciability, mostly incorrectly, to avoid the merits of a dicey case.

1) Stein lacked standing because she would not win even if a recount were ordered, meaning she cannot show an injury-in-fact or redressability. The voter lacked standing because he could not show that his vote was hacked or improperly tabulated. The possibility of hacking because voting machines were "hackable" was too speculative to support an injury.

The surprising piece of this was the court's unwillingness, without much explanation, to accord Stein third-party standing to sue on behalf of voters, as a district court in Florida did during the campaign. Campaigns and candidates often are accorded third-party standing to challenge state laws impinging on the right of members of the public to vote. But the court dismissed such standing as a plaintiff asserting someone else's generalized grievance. It seems the court could not get past the fact that Stein could not win Pennsylvania, no matter what, and thus was not a "proper" plaintiff. So, absent a change in result to favor the named plaintiff, any violations of the rights of individual voters did not matter. But I wonder if future candidates will now have to show some chance of success in establishing standing.

2) The Rooker-Feldman analysis was problematic. Stein and the voters initially filed an action in state court seeking a recount; they voluntarily withdrew that action when the court, pursuant to state law, required them to post a $ 1 million bond. In federal court, plaintiffs acknowledged that the state-court decision was effectively a decision not to allow the recount. But the federal action did not challenge or seek review of the state-court decision to require the bond; it challenged the state law requiring such a bond in any court, along with a number of other provisions of state election law. The plaintiffs complained of the statutory bond requirement, not the state-court decision imposing that bond. And the remedy they sought--a declaration of unconstitutionality of various state laws and a recount--was not a result of the state-court judgment. That distinction--between a challenge to the state decision enforcing a law and a challenge to the validity of the law itself--existed in Feldman itself--the Court held that jurisdiction was lacking over the challenge to the bar-admission decision, but not to the underlying bar-admission regulation.

3) The Younger analysis was flat-out wrong. The court dutifully recited the three-prong test from Middlesex County, but it ignored Sprint, which held that Younger required abstention in deference to only three types of cases: 1) pending criminal proceedings; 2) pending quasi-criminal proceedings initiated by the state (e.g., state public nuisance lawsuits); and 3) "certain orders . . . uniquely in furtherance of the state courts' ability to perform their judicial functions" (e.g., contempt orders). The pending proceedings were actions before several state trial courts and county election boards. None of these was initiated by the state, none was criminal or quasi-criminal, and none involved state efforts to enforce its own laws. And the third category does not fit, because a federal injunction against the enforcement of the challenged state laws would not interfere with the ability of state courts to function.

4) The court ignored the two better arguments for getting rid of the case. As to the bond order, this seems to be simply a matter of preclusion--plaintiffs bringing in federal court the same claims they brought (and had rejected) in state court. I do not know if preclusion was warranted, but that should have been the focus of the analysis. But that does not reflect a jurisdictional defect. And recent SCOTUS decisions have explicitly urged courts not to conflate the jurisdictional defects involved with Rooker-Feldman with common law preclusion limitations on relitigation.

As to the still-pending state actions, Colorado River abstention exists for this very situation--concurrent and parallel proceedings. True, Colorado makes clear that abstention on these grounds is the exception rather than the rule and the typical approach to parallel state and federal proceedings is to let both actions go and give preclusive effect to whichever finishes first. Still, Judge Diamond seemed pretty determined to abstain--it would have been better to abstain on grounds that made sense.

Posted by Howard Wasserman on December 13, 2016 at 05:34 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, November 25, 2016

JOTWELL: Walsh on Bray on national injunctions

The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Samuel Bray's Multiple Chancellors: Reforming the National Injunction, which uses traditional equity principles to critique the increasingly run-away practice of district courts entering nationwide (more accurately, universal) injunctions prohibiting enforcement of federal law against all persons in all places, beyond just the named plaintiffs. Amanda Frost reviewed the same piece for SCOTUSBlog.

And the timing is appropriate, as District Judge Amos Mazzant of the Eastern District of Texas did it again this week, issuing a nationwide injunction against the new Labor Department overtime regulations.

Posted by Howard Wasserman on November 25, 2016 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, November 11, 2016

JOTWELL: Grossi on Klonoff on introducing the study of American law

The new Courts Law essay is a guest piece by Simona Grossi (Loyola), reviewing Robert Klonoff's casebook Introduction to the Study of U.S.Law.

Posted by Howard Wasserman on November 11, 2016 at 09:25 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 08, 2016

Yet more support for cameras in the courtroom

Tuesday's hearing in the Trump Campaign's absurd lawsuit in Clark County, NV, was livestreamed. So everyone got to see (or go back to watch), in real time and with their own eyes, an unprepared and ill-informed lawyer and a knowledgeable judge who was, quite properly, having none of it (and likely more than a little aware that the purpose of the suit was not any sort of legal relief, but to set-up the "rigged" narrative for this evening).

Posted by Howard Wasserman on November 8, 2016 at 04:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)