Tuesday, December 10, 2013
Forgive the excessive posting today; there is a lot happening today.
SCOTUS today unanimously decided Spring Communications v. Jacobs, placing significant limits on the scope of Younger abstention. Scott Dodson has a good analysis at SCOTUSBlog. The Court held that Younger only applies in three categories of cases: 1) criminal cases; 2) certain civil cases, typically where the state has initiated enforcement efforts against a private person; and 3) certain civil proceedings, where the challenge touches on the state's ability to perform its judicial functions (implicitly, it seems to me, where the challenge is to the source of authority for that function, such as the law imposing an appellate bond requirement). The decision eliminates the analytical distinction drawn in many circuits between coercive and remedial proceedings. And it makes clear that Younger does not reach simple parallel proceedings between private parties.
Other than rendering obsolete some of the Younger discussion in my book, this decision is good news in clarifying and narrowing Younger's particular application. It hopefully will stop what I regard as Younger Creep--where district court either used Younger to abstain inappropriately or cited it as the basis for abstaining instead of some more appropriate abstention doctrine.
But it might be interesting to consider two recent cases in which the federal court abstained on Younger grounds and how they should play out under the new analysis.First is Tyler v. Commonwealth, where the district court abstained in deference to some potential future family-law proceeding between the girl and the convicted rapist. As a purely private proceeding, that would no longer should be subject to Younger. There also was the underlying state criminal case to which the girl was not a party, but she was not actually seeking to enjoin that proceeding.
Second is SKS Assocs. v. Dart, a 2010 case out of the Seventh Circuit that I use as a problem in the book and in class. The court affirmed abstention from a challenge to the constitutionality of a state court order issued in several pending eviction actions. This is not a criminal proceeding or a civil proceeding involving state enforcement efforts. And the challenge was not to the statutory source of the order, but to the order itself, so this should not fit within the third category. In class, I suggested that Rooker-Feldman was the proper basis here.
In both cases, I would argue that Rooker-Feldman is the appropriate basis for the court to decline to hear the case. Even if I am wrong about that, Sprint should make clear that Younger is not.
SCOTUSBlog: Argument in Ray Haluch Gravel
Monday, December 02, 2013
SCOTUSBlog: Attorney's Fees and Final Judgments
I have a new SCOTUSBlog preview on next Monday's argument in Ray Haluch Gravel Co. v. Central Pension Fund, which considers whether a district court judgment that leaves contractual attorney's fees unresolved can be a final and appealable judgment for purposes of § 1291 and Federal Rule of Appellate Procedure 4.
Tuesday, November 26, 2013
More pleading/qualified immunity
The big news from SCOTUS today was the unexpected totally expected cert. grant on the constitutionality of the contraception mandate. But the Court also granted cert. in Wood v. Moss, which involves qualified immunity and pleading.
The case arises out of a street protest against President Bush, where police and Secret Service agents moved protesters several blocks away from where the President was having dinner, while allowing pro-Bush protesters to remain in place. Two months after Iqbal was decided, the Ninth Circuit found the complaint insufficient, a decision I argued illustrated the negative effects Iqbal was likely to have on civil rights litigation. The plaintiffs were given a chance to replead and a later Ninth Circuit panel held that the amended complaint sufficiently pled viewpoint discrimination.
That the Court took the case does not bode well, but I suppose I could be surprised.
§ 1983 and the 11th Amendment
I wrote last week about Tyler v. Commonewealth of Massachusetts, the lawsuit by a woman contesting a state court order forcing her to engage in family law matters with the convicted rapist who fathered her child. A federal district court dismissed the § 1983 action. One of the cited reasons was the Eleventh Amendment, a decision I said last week was wrong. Here is why.
It is true that the original complaint impermissibly named the Commonwealth of Massachusetts as defendant. But one overlooked aspect of this jurisprudence is that the inability to sue a state, at least on a constitutional violation, is a matter of the text of § 1983, not the Eleventh Amendment. SCOTUS has twice held that a state (or state agency) is not a "person" within the meaning of § 1983; the ordinary meaning of person does not include a sovereign and Congress did not provide any text or history to suggest differently. In fact, it seems clear that under either the prevailing congruence-and-proportionality analysis or Justice Scalia's "enforce means enforce" approach, § 1983 is valid § 5 legislation. There is perfect congruence-and-proportionality between § 1983 and the Fourteenth Amendment rights being enforced. And Scalia has acknowledged § 1983 as the main example of permissible legislation that creates a remedy for existing constitutional rights. So the reason the plaintiff could not sue the Commonwealth is that the Commonwealth is not a person subject to suit or liability under the applicable substantive law. This approach also has the benefit of making clear that this is all a defect in the merits of the claim--the plaintiff sued a defendant who is not subject to the duties or liabilities under that substantive law.
The other problem with the Court's analysis is more fundamentally wrong. The plaintiff moved to amend the complaint in response to the motion, seeking to substitute the justices of the Superior Court (the trial court) as defendant. And since the plaintiff sought an injunction preventing current and future enforcement of the state court orders, this seems like it would be permissible under Ex Parte Young as an action against a responsible officer seeking prospective relief from an ongoing violation.
Amazingly, however, the district court held that Young did not apply. Tyler was not seeking prospective relief because the "sentence complained of has been imposed and is now an historical fact." But this seems to misunderstand what it means for relief to be "prospective." Yes, the challenged order is already entered. But the plaintiff's argument is that the order is presently causing her constitutional harm and will continue to cause her constitutional harm in the future. The injunction she seeks is to halt future enforcement of that state-court judgment. If that is not prospective, I am not sure what is. Under the court's apparent definition, no relief is prospective--it would be just as easy for a court in an action challenging the constitutionality of a statute (the typical Ex Parte Young case) to say "the statute complained of has been enacted and is now an historical fact." The issue should not be the timing of the complained-of legal rule, but the effect of that rule and when the relief sought will take effect.
There are cases that distinguish "purely prospective" injunctions from other injunctions. But those are Younger cases; they hold that an action that seeks to enjoin future enforcement of a law without interfering with a pending prosecution are not barred by Younger. (Wooley v. Maynard is a good example). This has nothing to do with whether an injunctive is prospective for Ex Parte Young purposes.
Friday, November 22, 2013
Rooker and Younger
In August, I wrote about Young v. Commonwealth, a § 1983 lawsuit by a teen-age girl who had a child as a result of a rape; the criminal court in Massachusetts ordered the convicted rapist (who was sentenced to 16 years probation) to initiate proceedings in state family court regarding paying child support and other matters, prompting the man to also seek visitation. The girl objected to that order because she did not want the man involved in her, or the child's, lives; she attempted to appeal the criminal court order to the Massachusetts SJC, but was found not to have state-law standing. She then ran to federal court. I pointed out a number of problems with the case and even used the complaint to illustrate some concepts and doctrines in Civil Rights.
Two weeks ago, District Judge Stearns of the District of Massachusetts dismissed the complaint, seemingly with prejudice (H/T: One of my alert students). The court dismissed for three reasons: 1) the suit is barred by the Eleventh Amendment because it named the Commonwealth as defendant and the attempt to instead name the state judges under Ex Parte Young is still barred because the suit does not seek prospective relief, but relief from a prior judgment (this last point is beyond wrong, although I leave that for another day); 2) it is barred by Burford Abstention, which requires federal abstention in deference to a unified state regulatory regime, which includes family courts); and 3) it is barred by Younger abstention, because the § 1983 action interferes with an ongoing state proceeding.
In my earlier post, I suggested that the real basis for dismissal should be Rooker-Feldman, which is also what I suggested to my students in class. The court's reliance on Younger instead of Rooker-Feldman reflects what may be a common, but unfortunate, confusion between the doctrines.Younger and Rooker-Feldman share similar underlying comity concerns--allowing state institutions, mainly as courts, to function according to their own processes and preventing federal district courts from hearing cases that interfere with or override those proceedings. And both doctrines rest on the premise that constitutional errors in state proceedings should be corrected by seeking appellate review in the state system and, if necessary, SCOTUS review of the final state-court judgment.
The difference is (or should be) the target of the federal suit. In the typical Younger case, the state is seeking to enforce its substantive law in a state proceeding and the state defendant asks a federal court to enjoin that enforcement effort, and thus to enjoin the ongoing state proceeding, because the underlying substantive law is defective (usually constitutionally, but also as a matter of federal statutory law). The federal defendant is usually the executive officer or agency who initiated the enforcement efforts. Younger prevents that end-run, forcing the party to defend in the state enforcement proceeding, present its constitutional challenge to the underlying law there, and appeal any adverse result. And if Scott Dodson is right about the case pending before SCOTUS, Younger's scope is going to be explicitly more confined to such coercive proceedings. By contrast, Rooker-Feldman applies where the constitutional injury to the would-be federal plaintiff is caused by an adverse judgment or order already issued in any type of ongoing state proceeding, where the federal injunction would functionally review and reverse that order.
The problem is that many courts (and presumably defendants, which is where this begins) immediately turn to Younger anytime the injunction touches a pending state proceeding, without stopping to consider the nature of the state proceeding, the source of the alleged constitutional injury, or the target of the sought federal injunction. Those features should mark the line between Younger and Rooker-Feldman. The Tyler court is not alone in this conflation. In SKS Assocs. v. Dart, the Seventh Circuit held that Younger barred a federal action to enjoin a General Order issued by the chief judge of the state court and applicable to all pending eviction actions in state court. The court similarly went straight for Younger, even though the challenge was to the constitutionality of the order issued (functionally) in a pending state case and not to the underlying applicable law. The court did acknowledge that this was not the typical Younger case because SKS was not a defendant in the state proceedings, but nevertheless insisted that Younger comity demanded abstention.
The Tyler court also seems to have missed the point of the lawsuit, which may add to the confusion. The court saw it as an effort to enjoin the family proceedings (which have not yet produced any final order), meaning there was no specific order to point to as the source of injury. But the complaint actually asks the court to enjoin the underlying criminal court order that sent the perpetrator to family court in the first instance, as order already issued and final. So, once again, the target of the federal action matters.
The further irony is that less than a decade ago, lower courts were overusing RF, having conflated it with claim preclusion. SCOTUS halted that with two decisions (Saudi Basic and Lance). Now the courts seem to be running away from RF's core application.
At some level, of course, it does not make a practical difference. A federal district court cannot hear Tyler's § 1983 action and Tyler's recourse lies in appellate review of state proceedings, with possible certiorari to SCOTUS. But there is nothing wrong with a little doctrinal consistency and accuracy.
Wednesday, November 20, 2013
Stay in Texas clinic litigation remains in place
By a 5-4 vote (divided along predictable lines), SCOTUS let stand the Fifth Circuit stay of the district court injunction prohibiting enforcement of the restrictions on reproduction health clinics. The law remains in effect and enforceable, and clinics must comply with the law, pending resolution of the appeal. The Fifth Circuit has expedited briefing and set oral argument for January. The main order was unsigned. Justice Scalia (to whom the original application was directed) wrote an opinion concurring in the denial of the application, joined by Justices Thomas and Alito. Justice Breyer wrote a dissent for four.
The dissent focused, properly I believe, on preserving the status quo and properly balancing the harms. By enjoining enforcement of the law, the district court changed the status quo from what it would have been were the laws in effect and returned to the status quo before the law was enacted. The stay thus disrupts that status quo by putting the state laws into immediate effect, thereby forcing many clinics (advocates insist as many as 1/3 of the clinics in the state) to close and many women to have to travel hundreds of miles to obtain reproductive health services. And many of those clinics may be unable to reopen even if the district court is ultimately affirmed. The balance of harms is thus between the state being unable to enforce its laws for a few months against the permanent harm to women unable to exercise their constitutional rights without undue burden (which the district court found was imposed by these laws).
The dissent also found no public interest considerations that warranted a stay. Justice Scalia responded by insisting that "[m]any citizens of Texas, whose elected representatives voted for the law, surely feel otherwise." But this goes to the related point about harm to the state if it is barred from enforcing its laws and linking (as the Fifth Circuit and Justice Scalia both did) the public interest to harm to the state--it proves too much. The state always has an interest in enforcing its duly enacted laws and the public in the enforcement of the laws duly enacted in its name. If those two truly predominate and always run together, then injunctions should always be stayed pending appeal to preserve that interest in enforcing the law until any law is finally determined to be unconstitutional.
But not every negative injunction is stayed pending appeal; I would imagine that most aren't (this might be a nice empirical question to explore). And, if we focus on maintaining a status quo, most shouldn't be. Which suggests that what is really going on is a tip of the hand on the merits--that five-justice majority is convinced the Texas law is constitutionally valid and sees no reason to delay enforcement. And so we have a pretty good sense of what will happen if/when the case comes back to SCOTUS for full merits consideration.
Tuesday, November 12, 2013
Teaching procedure from bad procedure
Last week, I wrote about the § 1983 action by a man allegedly subjected to multiple invasive searches and medical procedures--including a colonoscopy, enemas, and digital penetration--in a futile, seemingly unsupported search for drugs. Michelle Meyer at The Faculty Lounger reports on two additional incidents, one involving the Hidalgo County Sheriff's Office (the same department, and the same K-9, as in the first suit) and one involving federal border agents.
Michelle also reports that a Scribd user is collecting all the documents in the first lawsuit, including the complaint and the four answers (by the county and its officers, by the city and its officers, by the deputy DA, and by the two different doctors). Given the attention this issue is getting and the outrage the cases have generated, these seem like they would lend themselves as sample pleadings for Civ Pro. Unfortunately, they are not great pleadings. The complaint is ok; it illustrates how to plead detail to get around Twiqbal and shows how different claims go towards different defendants; but there are problems/omissions in the jurisdiction statement and in the framing of the claims. The multiude of answers shows how each defendant or group of defendants must answer separately. But they all are a mess, particularly in being drafted so it is impossible to match paragraphs between the pleadings.
The question is how much we want to teach by negative implication--"here is an example of a bad pleading, don't do it this way."
Tuesday, November 05, 2013
You can't make this stuff up, § 1983 edition
So: Would the officers even try asserting qualified immunity, on the ground that there is no case law establishing this conduct as unconstitutional? Is it safe to say these guys are plainly incompetent? Absent case law, is this analogous to Judge Posner's hypothetical about selling foster children into slavery? And what of the doctors? Did they act under color of law? And under what test?
Monday, November 04, 2013
The rhetoric of qualified immunity
I think SCOTUS has given up on qualified immunity. Today the Court in one eight-page per curiam order in Stanton v. Sims granted cert, reversed, and remanded a case in which the Ninth Circuit had denied qualified immunity, where an officer kicked open a fence to enter private property without a warrant, purportedly in "hot pursuit" of a misdemeanor suspect. And all without resolving whether there was a violation, so lower courts have no new guidance on the question.
What is noteworthy is the Court's new rhetorical move. In Ashcroft v. Al-Kidd, the Court had explained that qualified immunity "protects ‘all but the plainly incompetent or those who knowingly violate the law.'" The Court today repeated the phrase "plainly incompetent" five times in the opinion; in doing so, it seems to be suggesting that a court that denies qualified immunity is, per se, labeling that officer as "plainly incomepetent." If lower courts and defendants seize on that, qualified immunity will become even harder to overcome (and dismissal easier to obtain), because no plaintiff wants to be seen as labeling the officer incompetent and no court wants to sign onto calling police officers names or questioning their integrity and ability.
Saturday, November 02, 2013
Stays and appellate benchslaps
In staying the injunction pending appeal in the New York stop-and-frisk, the Second Circuit also ordered that the district judge, Shira Scheindlin, be removed from the case for running "afoul" of the judicial code of conduct. The court then remanded the case to the district court to 1) be reassigned to a different judge so 2) that new judge to implement the stay and "otherwise await further action by the Court of Appeals on the merits of the ongoing appeals,." But the case remains in the court of appeals, and subject to its jurisdiction, in all other respects.
In a listserv discussion, Aaron Caplan (Loyola-LA) questioned the necessity of this limited remand. FRCP 62 makes clear that the power of district judges to stay proceedings pending appeal does not limit the power of the court of appeals to stay proceedings and to issue orders preserving the status quo. So why the remand at this point? Why did the Second Circuit not simply order the stay, decide the merits, and remand to a new district judge only if and when remand is necessary once the Second Circuit decides the appeal. One answer may be that this ensures formal procedural regularity--under FRAP 8, the expectation is that a stay will be sought and entered in the district court in the first instance. So the remand order ensures that there is a stay in the trial court.
A second, and more likely, explanation is implicit in Emily Bazelon's article on the case, which describes this as the court of appeals reaching to call out Judge Scheindlin. Remanding now maximizes the appellate benchslap, drawing particular attention to her removal from the case. The removal would not carry the same force as a criticism of Scheindlin if it came at the end of the appeal, particularly if the court affirms the injunction (which remains possible). If the goal was to publicly bring the judge to heel, this was the way to do it.
Note how the Second Circuit's view of the relation between the court of appeals and the district court on stays contrasts with the Fifth Circuit's approach in the Texas abortion case. The court of appeals issued the stay even though the state never requested a stay in the district court, as required by FRAP 8(a)(1). The rule allows for a first request in the court of appeals if a motion in the district court would be "impracticable." Of course, the court did not explain why a motion in the district court was impracticable; it simply asserted that the plaintiffs did not push this point and that the challenged law was due to take effect the day after the final judgment and injunction issued from the trial court. I'm not sure what any of that has to do with the practicality of seeking a stay there.
Friday, November 01, 2013
Injunctions and stays
Earlier this week, a district judge held that several provisions of the restrictive reproductive health regulations enacted by Texas last summer (over the famous Wendy Davis filibuster) were unconstitutional and enjoined their enforcement. On Thursday, the Fifth Circuit stayed the injunction pending resolution of the appeal. This means the laws are enforceable. It also means a number of clinics are not going to be able to operate beginning tomorrow morning.
Putting aside my views of the constitutionality and wisdom of these laws, the stay surprises me. The idea behind staying an injunction is to preserve the status quo and to avoid permanent or long-lasting effects that may be inconsistent with the ultimate state of the law once the litigation is fully resolve. Ultimately, we want to avoid a mess, whatever the outcome of the constitutional challenge. Under that consideration, a stay seems inappropriate here. Several clinics are going to have to close, cease performing abortions, or make physical or operational changes, all at some cost. If the district court is ultimately affirmed, these losses would have been incurred because of an ultimately invalid law. And even if the district court is ultimately affirmed, some clincis, having had to close or to incur these additional costs, may be unable to recover. This seems pretty messy. The court of appeals addressed this concern in a sentence, saying any such concerns were overcome by the likelihood that the state would succeed on the merits and that the laws are constitutional) But the uncertainty of the constitutional question, combined with the cost and messiness that comes with allowing the law to be enforced, should weigh against the stay and in favor of letting the injunction remain until the case is resolved.
Contrast this with the Prop 8 litigation, where everyone knew the initial district court injunction would (and should) be stayed pending appeal. If that injunction had taken immediate effect, people would have been able to marry, even before the question of Prop 8's constitutionality was conclusively resolved. And had the district court been reversed, we would have had a bunch of couples the state was forced to marry, although its law was not ultimately unconstitutional. Here, the mess goes the other way--not staying the injunction would have created confusion.
Update I: I suppose I should add something on the Second Circuit's stay of the injunction in the New York stop-and-frisk case. This also seems like an inappropriate case for a stay. The status quo should be that people are not subject to potentially unconstitutional searches (as already determined by a district court) until their constitutionality is resolved.
Sunday, October 13, 2013
The justices talk procedure
If you want to hear SCOTUS talk intelligently about procedure, have a listen to last week's argument in Atalantic Marine Construction Co. v. District Court. The issue in the case is whether, when a party files someplace in violation of a contractual choice-of-forum provision, the issue is properly considered as improper venue under FRCP 12(b)(3)/§1406 or as a request to transfer venue under § 1404. It discussed venue, forum non, improper venue, 12(b)(6), and the interconnections among all of these, in a very intelligent and easy-to-grasp way. And the argument repeatedly discussed a law professor by name--Stephen Sachs of Duke, who wrote an amicus brief arguing for a third way at this question. Leading the way were Justices Ginsburg and Kagan (no surprise) and Alito; on the other hand, Justice Breyer again asked questions that suggest he does not know (or want to know) anything about civil procedure.
Although I expect the Court to have decided the case by the time I reach venue next semester, I may assign the argument as a way to show this stuff fits together.
Tuesday, October 08, 2013
Baseball and removal
Baseball player and PED pariah Alex Rodriguez sued Major League Baseball in state court in New York last week, asserting claims for tortious interference with existing contract (his contract with the New York Yankees) and tortious interference with prospective business relationship (because sponsors have dropped or refused to hire him). Today, MLB removed the action to the Southern District of New York.
But the basis for removal was not, as one might expect in a tort suit, diversity. That removal would have been impossible. MLB is an unincorporated association of its 32 teams, which are themselves unincorporated associations and partnerships; each team is a citizen of every state in which a member or partner is a citizen, meaning MLB is a citizen of every such state. MLB thus is a citizen of New York (among other places), as is Rodriguez, meaning complete diversity is lacking. Moreover, because MLB is a citizen of New York, it cannot remove a diversity action under the Forum Defendant Rule.
Instead, removal was based on federal question jurisdiction under the doctrine of complete preemption. MLB argues that Rodriguez's claim, which functionally challenges his suspensiona and the process by which that suspension was imposed, is preempted by § 301 of the Labor Management Relations Act and MLB's agreements with the MLBPA. The LMRA is one of a few federal statutes (ERISA and the National Bank Act are the others) that have "uniquely powerful preemptive force;" the statute provides the only available cause of action in this realm, such that any state law claim is converted into a federal claim arising under the federal statute. Thus, although Rodriguez pled state-law claims, such state claims do not exist. His claims therefore arise under federal law (the LMRA) and are removable as such.Complete preemption is controversial and in many ways makes no sense. Preemption ordinarily is a defense; the preemptive force of federal law defeats the state law claim and warrants its dismissal. But that argument is made in state court. By allowing removal to federal court, the doctrine carves an unexplained exception to the Well-Pleaded Complaint Rule, under which removal can only be based on the claims appearing in the complaint, not on defenses. The response, I suppose, is that this is a unqiue form of preemption, which converts the nature of the cause of action; removal is not based on a defense, but on the actual claim, recast in light of federal law's preemptive force. But the Court has never explained or justified what Justice Scalia has derided as this "federalize-and-remove dance."
It is particularly obvious in this case that the LMRA provides a defense rather than a change to the claim. With the case now in federal court, MLB almost certainly will argue that the civil action should be dismissed because the claims are governed by MLB's Basic Agreement (its CBA) and related agreements respecting drug use and testing, which empower the commissioner with respect to PED use and commit challenges to that power to binding arbitration. In other words, the LMRA and the Basic Agreement are doing double work--providing the jurisdictional hook to put the case in federal court, then providing the merits hook to defeat the claim. This offends my basic belief that rules should be either merits or jurisdictional but never both. In any event, the extra step seems wasteful and unncecessary. It would have been simpler and more efficient for MLB to simply move to dismiss in state court in favor of arbitration.
Monday, September 23, 2013
The post-hoc First Amendment
At some point in the future, I hope to write an article on the problems with enforcing First Amendment liberties through § 1983. One problem (not unique to free speech claims) is qualified immunity. Case in point is this recent Fourth Circuit decision involving sheriff's deputies in North Carolina allegedly fired for supporting the opposing sheriff candidate.
The case has drawn praise for recognizing that clicking "Like" on Facebook constitutes protected speech. And this certainly is a good thing from a court of appeals. Of course, the district court decision on this point reflected such a lack of understanding of how people can express themselves (quite apart from how technology works) that this was almost too easy. But lost in the celebration of a court getting technology right (for once) is that the deputies largely lost. The divided court held that the sheriff was entitled to qualified immunity from damages for the firings. The judges wranged over the scope and meaning of a particular divided en banc decision from a few years earlier; for the the majority, their wrangling shows precisely why the right was not clearly established, on the old "if three federal judges can't agree on the state of the law, then how can we expect a layperson to understand?" rationale. So it all ends up looking like a giant advisory opinion. Especially since this looks like a case in which it was entirely unnecessary to reach the merits--an obvious dispute about the meaning of circuit precedent made it obvious this was not clearly established. So why bother with the merits?
Interestingly, the plaintiffs' claims for reinstatement survive; that is prospective/equitable relief, to which qualified immunity does not apply and to which for Ex Parte Young does. This raises an interesting question--what if the plaintiffs sought front pay in lieu of reinstatement? Lower courts have all held that this is not available, because it is monetary relief paid for out of the state treasury. But this seems like it would fall within the Eleventh Amendment's prospective compliance exception, which provides that there is no sovereign-immunity bar to the state paying (out of the treasury) the ordinary costs of complying with prospective relief. If the plaintiffs prevail, the state has to pay them the same amount of money either way--either for actually working or for the work they would have done were reinstatement a viable option. And the latter will be paid out for less time. It seems incoherent to label identical payments in identical amounts for identical purposes differently.
Tuesday, September 10, 2013
Understanding Civil Rights Litigation
I am happy to announce publication of Understanding Civil Rights Litigation with LexisNexis.
My main motivation for writing the book was to provide a supplement for my Civil Rights course, which I teach through open-source materials and, like Robin, believed the students can use some bit of help putting together the raw cases and information. The book also works as an assigned or recommended course supplement for any Civil Rights or Fed Courts casebook, or as a student study guide. And it includes relevant constitutional and statutory provisions and problem sets for use in classroom discussions.
Now available from Lexis, through your favorite Lexis rep, and in supermarket checkout lines near you.
Friday, September 06, 2013
What is the civil justice system for?
The general view seems to be that the NFL won and the players lost with the $ 765 million settlement of the head-trauma class action. An illustrative missive comes from Charles Pierce, who speaks of the NFL "buy[ing] silence," essentially copping a "nolo [contendere] plea" that should not happen in a just world, and having "bought itself out from under its responsibilities." I have not decided what I think about the settlement, largely because I do not know enough about the merits of the NFL's labor preemption arguments. But Pierce's article fundamentally misunderstands the purposes and operation of the civil justice system.
Settlement is part of the civil justice system, particularly in damages actions. The pressure to settle comes from multiple sources, often including the presiding judge (as was the case here, where Judge Brody ordered the parties to mediation and set a deadline for settling). The plaintiffs, who know more about the case than anyone sitting on the outside commenting, agreed to the settlement. There was a professional mediator involved, who worked to bring everyone to an ultimately mutually agreeable solution. And the judge still must sign-off on the agreement (and presumably will). So the ire at the NFL and the suggestion that it somehow has escaped justice by paying money seems misplaced, when the league did not settle unilaterally or in a vacuum, but only with the agreement of several other actors. And Pierce's comparison of the NFL to Texas fertilizer plants that uniltaerally refuse (presumably in violation of law) to allow inspections is, to say the least, overwrought. The NFL did nothing wrong in the context of litigation other than availing itself of its procedural rights and the settlement mechanism; it is troubling to tar an entity for doing that.
Even if we accept that too many cases settle and that "truth" is lost by over-settlement, Pierce still ignores what litigation is all about and how it functions. It is not some public auto-da-fe in which the NFL would have confessed its sins and had punishment imposed. Discovery, particularly depositions of present and former NFL officials, would have been conducted in private and likely placed under seal (as determined by the court, not the league acting unilaterally). At best, discovery might have driven-up the settlement value. But Pierce is angry about the fact of settlement, not the amount; the mythical $ 10 billion settlement that some predicted would still entail "buying silence." The only public component would have been trial. But trial occurs in so few cases (again, not the NFL's fault), and in this case might not have happened for years (followed by even more years of appeals). So the notion that settling short-circuited some immediate public accounting seems far-fetched.
Further, the NFL asserted several potentially meritorious legal defenses about assumption of risk, preemption by workers' compensation schemes, and, especially, arbitrability under the CBA. It was possible that, had the parties not settled last month, the complaint would have been dismissed as to many players. According to recent reports, Judge Brody hinted to the parties that she was inclned to find many of the claims subject to arbitration, which explains why the case settled when it and for the unexpectedly lesser amount. It also is possible that, even at trial on the ultimate merits of the tort claims, the league still would have won. Pierce's response, I imagine, would have been that the NFL somehow acts nefariously in asserting those legal rights or in demanding the plaintiffs prove their case. But again, this is not some public confession ritual; it is a judicial proceeding in which the court must apply controlling law (including legal defenses such as arbitrability) and the complaining party is put to its burden of persuasion.
Pierce sees this as a public-health issue, demanding that the truth about the inherent risks of football and what the NFL knows of those risks be aired so decisions about the game's future can be made. He is right about the public-health part. But damages litigation--designed to compensate injured players and perhaps impose a monetary punishment on the league--can only indirectly provide public-health solutions. What Pierce wants, really, is not litigation, but something like a congressional hearing--a free-standing inquisition supported by subpoena power into a public problem or issue, disassociated from particular legal rules, claims of right, defenses, or legal remedies. Of course, it is highly unlikely that Congress or any executive agency ever will undertake such an investigation, which probably is why Pierce sees litigation as the only hope.
Finally, not all change happens through formal legal and political processes. We also should not overlook the value of journalistic and scientific investigations into the problem. The upcoming documentary from PBS' Frontline, which is going to attract a larger audience after ESPN's sudden decision to take its name off the project, may do a lot to drive the conversation forward. Journalism, not litigation, moved the ball on the meat-packing industry a century ago. Perhaps that also will be the case here.
Which is not to say there is not value in Pierce's essay. It is hard to find good, short readings for the few minutes we spend on settlement in Civ Pro. This actually may be good for that, if only to move students into a more lawyerly understanding of how settlement fits in civil litigation.
Saturday, August 31, 2013
Tragic cases and Fed Courts
Dahlia Lithwick wrote last week about two cases--one in Montana, one in Massachusetts--demonstrating how unseriously many judges take rape and the tendency to blame even teen-age victims or to place victim and perpetrator on similar moral footing.
The Massachusetts case has lead to a § 1983 action in federal court. According to the complaint, a 14-year-old girl, identified as "H.T.", became pregnant as a result of her rape by a 20-year-old. The man pled guilty in 2011 and was sentenced to 16 years probation. He also was ordered to initiate proceedings in family court, declare paternity, and comply with the family court's orders regarding child support, visitation, etc. The victim opposed this, not wanting to have any sort of relationship or contact with her attacker; she attempted to challenge that order, but the SJC of Massachusetts held that she lacked standing. The family court ordered him to pay child support, whereupon he sought visitation, then offered to withdraw that request in exchange for not having to pay child support. The complaint seeks to enjoin the criminal-court order as violating a host of constitutionl rights, including substantive due process, procedural due process, First Amendment, and Equal Protection.
The case demonstrates that, for better or worse, within every horrific and gut-wrenching tale of wrong lies a course of legal doctrines to be navigated. No matter the tragedy, process remains part of the system for seeking justice. And for anyone looking for a Federal Courts/Civil Rights question or discussion topic, this case has a semester's worth of stuff.
• The named defendant is the Commonwealth of Pennsylvania Massachusetts (sorry--got my commonwealths mixed up), which is not permissible, since a state is not a person for § 1983 purposes (and state sovereign immunity lurks in any event, much as I wish it didn't). This is an overlooked aspect of the Court's 11th Amendment doctrine--it is not that states cannot be sued for damages, states cannot be sued by name for any relief. The case must run against the responsible state official, under Ex Parte Young. It is not clear who the plaintiff should sue her. One possibility is the state criminal-court judge who entered the order being challenged. But then the extra clause of § 1983 (added in 1996) kicks in; this requires a plaintiff suing a judge to first seek a declaratory judgment, only able to get an injunction if declaratory relief is either unavailable or ignored. Another possibility is the executive office responsible for enforcing court orders, such as the county sheriff. But a blanket suit of the state qua state (unfortunately, in my view) will not work. Although query whether the state will bother raising this issue, as the plaintiff would simply find the proper defendant and amend, so the issue only delays things.
• The obvious problem for the plaintiff is Rooker-Feldman, since the federal lawsuit is alleging a consitutional violation caused by the state-court judgment. The complaint anticipates this, insisting that RF does not apply because this is not a case in which a "losing-party [sic] seeks review of a judgment entered in state court." It is true that H.T. is not a state-court loser (the term used in these cases), since she was not a party to that litigation. But she is adversely affected by a state-court judgment, so this strikes me as quibbling semantics. The idea behind Rooker-Feldman is that the appellate process, not federal civil litigation, should be used for correcting erroneous or unconstitutional state-court judgments, regardless of whether we call the person challenging it a state-court loser or an adversely affected party. The obvious and proper move in light of Rooker-Feldman should have been to seek cert to SCOTUS from the SJC decision.
• But the SJC resolved the case on purely state-law grounds--that H.T. lacked state-law standing to challenge the order. So perhaps SCOTUS would not have jurisdiction here because the state-court decision rests on an independent-and-adequate state grounds (state-law standing is not the same as Article III standing). On the other hand, the complaint explicitly challenges the standing component as part of the basic order, alleging that the refusal to let her challenge the criminal-court order violates due process and the First Amendment. That argument would be available in a cert petition. Independent-and-adequate should not preclude review where the supposed I-and-A ground itself (lack of standing) is unconstitutional in this case. The cert. path seems to remain open.
• There is a potential argument that this case is not ripe. The injury to H.T. is the forced relationship with her attacker. But that forced relationship comes from the family court proceedings, and presumes that the family court orders or permits some relationship. But we do not know how that litigation will play out. Perhaps the family court would reject the man's efforts to establish a relationship with the child or with H.T., in which case the constitutional harm will not arise. H.T. also is worried about the rapist playing games in family court (such as threatening to seek visitation), although the family court might be equipped to handle any such abusive efforts. The point is that the harm results from what the family court does, not the criminal-court order. So we may just have to wait to see what the family court does. In addtion, publicity over the case also triggered introduction of legislation in Massachusetts that would prohibit rapists from having any contact with children resulting from the rape. The possibility of future legislation does not alone render a case unripe. But it does demonstrate that there are a lot of uncertainties about what will happen in family court.
• Of course, once the family court does make a ruling (such as the one ordering child support), Rooker-Feldman kicks back in and the family court order is challengeable only through the appellate process. And we are back where we started.
• H.T. also alleges a constitutional injury from the threat of potential family-court litigation, which requires time, money (to hire an attorney), and stress for the next 16 years. She is concerned that she will be running in and out of family court for the next 16 years to deal with his games. And this injury is caused by the criminal-court order. But is avoiding potential future litigation a cognizable constitutional right?
None of this is to minimize the harm H.T. has suffered and may continue to suffer. Nor do I doubt the sheer lunacy of a court ordering (much less allowing) a convicted rapist to potentially be involved with his victim and the child produced by the rape. But the case shows that the seemingly esoteric and theoretical issues floating around a standard Fed Courts or Civil Rights course actually have some teeth. And law students (as future lawyers) must know how to navigate them. And in a set of facts this disturbing, it helps us to remind students that they cannot get caught up in emotion, but often must keep their eyes on the procedural ball.
Friday, August 30, 2013
Preparing to Teach Open Source Civ Pro Part III: Compiling the Materials (or, Why I Have the Best RAs in the World)
In my previous posts I have explored why I am moving towards an open source casebook for civil procedure and the materials I am using. In this post, I'll outline the process for editing and compiling nearly 500 pages of cases and statutes in just one summer! I'll also include my table of contents at the end, for anyone who is interested in seeing what made the final cut. Next week I'll look at a different model, and spotlight the fabulous playlist that Glenn Cohen has made for his open source civ pro class at Harvard.
How to Put Your Own Materials Together ... And Still Get Your Summer Writing Done!
1. Have Fabulous Research Assistants
The most important thing to note is that I had four part-time research assistants working with me this summer. Each of them had full-time summer jobs elsewhere, so I want to give a public shout out to the students who worked incredibly hard with me to make this possible. I could not have undertaken this project without them.
2. Compile a List of Cases
I began with the syllabus I had been using for the past few years. I canvassed other casebooks and syllabi to prune some cases and add others. I also added a few cases that are not traditionally in casebooks. For example, I decided to begin my course this year with a fabulous default judgment case in which a trial court entered a $1.26 billion default judgment against Pepsi. (Joyce v. Pepsico, Inc., 340 Wis.2d 740 (2012)).
Although the judgment is ultimately vacated, there are some fun personal jurisdiction and statute of limitations issues along the way, and it was a fun intro case for the class. Well, fun by my standards...
3. Assign Cases to RAs
Each RA received a portion of the syllabus and a copy of the student treatise. I had them read the relevant sections and comment on the cases I had added and deleted from previous years.
4. RAs Preliminary Edit
Each RA downloaded the text of their assigned cases. I instructed them to excise superfluous text (syllabus, extended caption, parallel citations, issues not relevant to our course), and then give a shot at their own edit. I made several casebooks available to the RAs so that they could see how different casebook authors have edited cases. I indicated which books had longer and shorter edits, and asked them to aim for a middle ground. Not only did this save me a good deal of time, but I learned a lot from what they chose to include or exclude from the edits. It was a good window into the minds of my students. The RAs also found and edited the relevant rules and statutes.
5. My Edits
The RAs returned the cases to me with all of their edits in "track changes." I accepted many of their changes and added some of my own, often including short summaries of sections or opinions that I omitted from my edits.
I then compiled the final product! It was printed and available for students to purchase for $20.35 in the bookstore. Alternatively, they could download the materials from the class web course and print it on their own.
7. Moving to Other Online Formats
I am slowly moving towards utilizing online formats that will make sharing, editing, and mixing my syllabus easier. This is Glenn Cohen's approach on the H2O system, and I'll discuss the pros and cons of that method next week. I hope that by next year I will also have my materials available in this format.
Thursday, August 29, 2013
Settlement in NFL concussion lawsuit
The class action against the NFL by more than 4000 former players, alleging that the league knew and failed to disclose the risks of head trauma associated with the game, has tentatively settled. Players will receive $ 765 million (plus court-approved attorneys' fees to be determined later) for individual compensation (reportedly about $ 110,000 per plaintiff), plus funding for research and medical examinations. The settlement was reached following court-ordered mediation, although the agreement still must be approved by the court.
Much is being made in some sports-media circles about the size of the settlement relative to the NFL's wealth, but, of course, civil damages are tied to the harm to the plaintiffs, not to the defendant's ability to play. We might question whether the settlement figure provides sufficient deterrence that the NFL will take real steps (as opposed to the cosmetic ones it has been taking) to make the game safer--assuming such a thing is actually possible (I have my doubts).
Like many other cases, this one also highlights the question whether settlement, especially in money cases, furthers the civil justice system's goals of discovering the truth. There was no discovery, so we never really learned what the NFL knows and has known about the game's risks or about what those risks actually might be (the answer to both is "a lot," according to a forthcoming documentary). We also have not heard the plaintiffs' stories told in a judicial forum (although we might not have). Of course, discovery in a case like this almost certainly would have been sealed, a regular practice that presents a different problem in modern litigation. And the plaintiffs' willingness to settle this early makes sense, because this case would have been a ripe target for a Twiqbal-based 12(b)(6) and a motion to send the entire issue to arbitration under the CBA.
Update: The prevailing view among sports columnists is that the NFL won huge, although this seems to be because legal experts predicted settlements of between $ 5 and $ 10 billion, so a figure of less than $ 1 billion is so paltry that plaintiffs' attorneys must have caved. So did they cave? Or does this just show the limited ability of "legal experts" to predict anything?
Tuesday, August 20, 2013
Teaching Open Source Civ Pro Part II: The Materials I'm Using
This week I will begin teaching civil procedure without a traditional casebook. In my last installment, I wrote about why I've decided to "go rogue." In this post I'll recap the process I used to choose and produce my materials. My materials for this semester are: (1) A course pack "case book " that I edited; (2) A statutory and rules supplement course pack that I edited; (3) a student treatise; (4) a book of experiential learning exercises.
After the jump, I'll discuss the various methods I considered and why I chose the materials that I did.Possible Methods for Teaching Open Source
1. The Bare Bones Method: No Materials But a Syllabus
One possibility is not to give students any materials at all, but simply distribute a syllabus and tell the students to download the relevant cases and statutes from Westlaw or Lexis. (Derek Tokaz made this suggestion as a comment to an earlier post). While there is some appeal to this idea, I felt it was not right for this class:
(a) because I am teaching first semester 1Ls, I do not expect them to enter the class with Westlaw and Lexis skills, even ones that seem easy to us like finding and printing cases. I also do not want to add extra stress to their lives.
(b) many cases are far too long, or contain extended discussions of irrelevant issues. I figured that by the time I explain "read this, but don't read that" for each of the cases, much of the simplicity of the "find and print" approach would be gone. I also didn't want students to "compete" with each other by reading more of each case.
(c) students would still have to print out the cases, and printing costs money. So this method is not quite as "free" yet as we would like. Which brings me to the next point...
2. Edit the Cases and Statutes/Rules and Post Them Online
The advantage of this approach is that it's still completely free, and it solves the problem of unedited cases. I decided that this would be part of my approach, but was not completely sufficient.
(a) First, as I edited the cases, I began to realize that I needed interstitial material. While I'm moving away from from the extensive "notes and questions" approach of some casebooks, there are situations where it is useful to summarize or introduce material, or expose students to synopses of related cases. And sometimes I'd just like students to read about an area of law without reading a principal case, such as when I teach about the mechanics of service of process.
(b) The students would still need to print out the materials themselves. This point was a difficult decision for me. When I first thought about using open source materials, I imagined that students could use their tablets or e-readers. But there are some barriers. First, I do not permit students to use laptops in the classroom (that's a different debate), and I worried that the tablets could be used for distracting non-case reading purposes. More importantly, I realized that if I wanted to give an open book exam, I would need to make all of the materials available in print format because the students cannot bring tablets or e-readers to the final exam. Now, one solution to these problems is to just permit laptops and give a closed-book exam. These are changes I might consider for future years. For now, I'm sticking with my no laptop and open-book exam policies because I have had such positive experiences in the past.
(c) Not all materials are actually open source. This was not a big issue for civil procedure. If, however, I used this approach for other classes there could be problems. For example, when I teach International Business Transactions, some of the materials found in the statutory supplement are not in the public domain (think Incoterms or the UCP, both published by the International Chamber of Commerce).
3. Create a Course Packet and Post Materials Online
To solve these problems, I compiled the cases into one course packet and the statutes and rules into another. The students now have a choice: they can buy the packets at the bookstore, or print them at home if that is easier and cheaper for them. They could even use a tablet for reading and then print the sections with their own annotations. I have posted the coursepacket as a large pdf file, as well as several smaller files to enable easier printing and downloading.
4. Use a Student Treatise as a Secondary Text
Here's where I begin to depart from full-fledged adherence to open source. For reasons described above, I am not yet ready to teach exclusively from principal cases. So I decided to supplement with a student treatise. Here are the advantages:
(a) Cost. Although the students must purchase the book, it is much cheaper than a case book ($79 new, $30-ish used or rented).
(b) Context. The student treatise provides the context and summaries of areas that I do not expect students to learn from reading principal cases.
(c) No More Hide the Ball. I almost always recommend a good treatise or horn book to my students. I think we have moved past the days in which there is a classroom fiction that the students don't know the law until it is magically revealed to them exclusively through socratic dialogue about principal cases. I would much rather have them read a comprehensive and comprehensible account of an area of law in a treatise so that classroom discussion can focus on the nuances and difficulties in the caselaw itself. In this way, I hope that classroom time will be less about the "punchline" of every case because the students have access to thorough discussions of the black letter law in their reading. I have assigned my students Richard Freer's Introduction to Civil Procedure (Aspen Student Treatise Series), a text with which many former students have had a positive experience.
Perhaps in the future I will begin to write my own summaries and introductions so that I can move away completely from requiring purchased texts. For now, I am comfortable asking students to purchase a text that is cheaper than a casebook, and one that many students might buy anyway as a study aid.
5. Use an Exercise for Experiential Learning
This semester I am teaching a small section of procedure. We have extra time, and I am using that time to teach discovery through a simulation exercise. While I would love to create my own simulation, I have opted for one that has been "road tested" and will use Michael Vitiello's Bridge to Practice book. Although it's not completely relevant to the open source problem (as I would only use this for a smaller group), I wanted to fully disclose all of the purchases that my students must make.
So, there you have it -- a complete account of my desire to totally ditch the casebook and the reality that I was not able to get all the way to "free" on the first try.
Wednesday, August 14, 2013
Preparing to Teach Open Source Civ Pro Part I: Why I’m Doing It
This semester I will be teaching civil procedure without a casebook and blogging about the trials and tribulations of this approach. As the semester approaches, I’ll be writing about my preparations. This post will be about why I’ve decided to take the plunge. Part II will be about the materials that I’m using, and Part III will be about how I put the materials together. My reasons for embarking on this project appear after the jump.
It shouldn’t surprise anyone that this tops the list of reasons to go casebook-less. As other bloggers have noted, many casebooks have broken the $200 barrier. Statutory supplements often cost between $35-$40. Add this to the hornbook and commercial outline or two, and students can easily spend $300-$350 per course on books. I am mindful of these costs, and to the extent that I can minimize them for my students, I would like to do so. As I will explain in future posts, I was not able to get all the way down to completely free materials, but the list price for the books (including a course packet) that I have ordered come in at under half the price of the materials I have used in the past.
2. Many Materials Are Available for Free
This reason is closely related to the cost issue, but it is worth making the separate point: a large chunk of the materials that we assign to our students are public. So why should students pay for this? Casebooks do add value (some more than others) in the form of editing, summaries of law, and giving historical context. If anything, I have an even greater appreciation for this value-added after a summer of editing my own materials. Still, I am left with the feeling that if my primary text consists of cases, and those cases are freely available, why should we charge so much to read them?
I hope that my work here, along with the work of other such as Glenn Cohen will be the beginning of a collaborative effort to use open source and creative commons to provide our students with high quality materials at a minimal cost.
3. Flexibility for Students
I have made the cases, rules, and statutes available to my students as PDFs, and have also printed them as a course packet that they can purchase. I will also begin to make the materials available on Harvard’s H2O platform. I hope that this will allow some freedom from schlepping the whole book each day, or perhaps the ability to mark up the text online or on a tablet. (Ultimately, though, the students will need some sort of a hard copy of the materials because I give an open-book exam. I’ll delve deeper into this problem in a future post).
4. Flexibility for Me
Putting together my own materials allows me to choose the cases, order them, and present them to students in a streamlined format. Moreover, I hope that this format will allow me some flexibility within the curriculum. For example, I might choose to use shorter edits of some material and longer edits of others depending on my focus from year to year. Swapping cases in and out of the curriculum will be easier than changing casebooks or providing a large number of handouts.
5. Collaboration and Feedback
My hope is that I will learn from others who are embarking on similar projects, that I can borrow from their materials and edits, and that they will borrow from mine. I hope that I will learn from my students about what works well and what does not. In that spirit, one of the reasons that I am blogging about this experience is to get the comments, feedback, and suggestions from prawfs readers!
Because, really, would I have made this decision in any state other than a caffeine-fueled brainstorm? Probably not. But I’m glad I’ve chosen this path, and I look forward to seeing how it all turns out.
Tuesday, August 13, 2013
Jurisdiction, merits, and Dodd-Frank
A couple of years ago, tipped off by a partner at Wachtell and Prawfs reader, I wrote about a potential jurisdiction/merits confusion with respect to § 929P(b) of the Dodd-Frank Act. That provision sought to overturn Morrison v. National Australia Bank and expand the extraterritorial reach of the Securities Acts, but did so in jurisdictional terms by identifying two situations in which district courts "shall have jurisdiction over an action or proceeding brought or instituted by the [SEC]."
We now have a decision from the Northern District of Illinois wrestling with these issues, although ultimately declining to resolve them. The defendants filed a 12(b)(6), arguing that the SEC failed to allege sufficient facts to meet the Morrison standard and that § 929P(b), being solely jurisdictional, did not expand the law's substantive reach. Ultimately, the court denied the motion, finding that the complaint stated a claim, regardless of whether the controlling substantive standard came from Morrison or from § 929P(b) understood as a merits statute controlled.
Nevertheless, the court engaged on the jurisdiction/merits question and at least hinted that the better view is that § 929P is jurisdictional. On one hand, the plain language suggests § 929P is jurisdictional; it speaks in expressly jurisdictional terms and appears in the statute's jurisdictional section. On the other hand, the court acknowledged several competing considerations: 1) avoiding interpretations that render a provision superfluous--since the Securities Act already has a jurisdictional provision and since Morrison itself acknowledged that the district court had jurisdiction over that claim, § 929P serves no purpose if it is solely jurisdictional; 2) legislative history, particularly statements by a sponsor indicating a desire to expand extraterritoriality; 3) avoiding absurd results, namely the conclusion that Congress granted district court jurisdiction (jurisdiction they already had) over a class of claims that were going to be dismissed for failure to state a claim. But the court at least seemed inclined to give the benefit of the doubt to the plain language.
Stay tuned. Perhaps a better case, one that actually will have to decide the question, is somewhere in the pipe.
Saturday, July 20, 2013
Procedure of marriage equality, ctd.
If the wrangling over Prop 8 teaches us anything, it is that more students need to take Federal Courts and Remedies. In addition to the action filed by Prop 8 supporters in the California Supreme Court seeking clarification of the continued legal status of Prop 8, in light of another provision of state law requiring that state officials enforce state laws until there is a "definitive" decision invalidating the to-be-enforced law. Meanwhile, yesterday, the clerk-registrar of San Diego County filed his own petition seeking clarification, also arguing that, as an independently elected official, he is not bound by AG Kamala Harris' interpretation. (H/T: A commenter to my earlier Prop 8 post). The clerk asked the state court to stop the issuance of licenses to same-sex couples until a final determination (although the Supreme Court denied a similar request from Prop 8 supporters last week, so don't expect this one to have any more success). And the state's argument is that the Supreme Court should stay out of this altogether to avoid conflict with the federal court.
Has the state gone to the district court seeking to enjoin the state-court action under the "protect or effectuate its judgments" exception of the Anti-Injunction Act? And if not, why not? The state-court action, in part, functionally asks the court to interpret the scope and effect of the federal injunction (does it protect all couples? Does it apply to all officials in all counties)?, which seems like the district court's job. County officials (who have been working closely with Prop 8 supporters and similar organizations) have been very careful not to simply refuse to issue licenses, thus risking either a contempt citation in Hollingsworth or a new § 1983 action in which Hollingsworth might have either stare decisis or even (although less likely) preclusive effect. Clearly, they want to keep interpretation of the injuntion out of federal court, especially in light of the sense among many (including me) that the injunction is overbroad.
Of course, state-wide application depends on state officials (who were named as defendants) controlling unnamed county officials; faced with a motion under § 2283, might the district court have to certify that question back to the state supreme court? Or worse, abstain on a matter of ambiguous or complex state law?
Update: Kaimi Wenger (who was quoted in the linked article) expands on those comments. Kaimi discusses something I wanted to get into--whether the petition really is a request for procedural clarification or an act of conservative political theatre. He points out that the county clerk worked with a conservative religious organization and that the filing contains "broad social policy and political-usurpation language that seems extraneous to the procedural issues.' Actually, that complaint can be applied to the newspaper story itself, which intersperses discussions of the filing with heated rhetoric about the substance of marriage equality from both sides of the debate.
Monday, July 15, 2013
Commenting on the merits
Andy Koppelman argues at Salon that by joining the Chief's majority in Hollingsworth, Justice Scalia functionally cast the deciding vote to allow same-sex marriage throughout California. Koppelman games out the internal workings of the Court to figure out why the Court did not comment on the (arguably erroneous) overbreadth of the district court's injunction. He writes the following:
Koppelman then wonders why Scalia did not insist on such language. He concludes that Scalia and Roberts both recognized it might have split the five-justice majority, since Ginsburg, Breyer, and Kagan might have gone off with a separate opinion, perhaps one reaching the merits and recognizing a broad right of marriage equality that might even have garnered five votes. It's an interesting theory on how the justices negotiate opinion drafting.
Roberts’ opinion could easily have included some language casually noting in passing that the district court’s decision properly applies only to the two couples who brought the suit, and that the more general question was not within the district court’s jurisdiction. (Even if there was no standing to appeal, Roberts was not obligated to describe without comment an overbroad injunction.) He could then direct further proceedings in the 9th Circuit consistent with this opinion. That would have forced the lower courts to refashion the injunction to have nearly no effect.
The problem, I think, is with Koppelman's underlying premise. Roberts could not have compelled the lower courts to refashion the injunction, while also finding no standing to appeal. The propriety and scope of the injunction was never properly before either SCOTUS or the Ninth Circuit because there was no party to properly present that issue to either court. So the Court could not make any comment that would be anything more than dicta or would in any way have compelled the district court to rethink the scope of the injunction. I would add the Scalia would be particularly attuned to this point, as he wrote the opinion in Steel Co. rejecting the doctrine of "hypothetical jurisdiction" and the notion that a court can have anything meaningful to say on the merits in the absence of standing.
So one additional reason Scalia did not insist on the language Koppelman suggests may be that, believing (whether genuinely or strategically) that standing was lacking, Scalia also recognized that the Court lacked any power to meaningfully comment on or alter the injunction.
Sunday, July 14, 2013
The NAACP and other groups are urging the Obama Administration and DOJ to file federal civil right charges against Zimmerman, which has right-wing sites abuzz and screaming about double jeopardy. But what law could he be charged under? Not § 242, because Zimmerman did not act under color of state law (thus depriving the right wing of its most obvious demagogic analogue--the LAPD officers who beat up Rodney King). Also not § 241, because Zimmerman acted alone (and I'm not sure a purely private conspriracy still is possible under current understandings of § 5 of the Fourteenth Amendment). The only possibility is the federal Hate Crimes statute, which prohibits anyone, even if not acting under color of law, from willfully causing bodily injury because of the victim's race. If so, was that statute violated here? Assume Zimmerman followed and shot Trayvon Martin because Martin seemed "threatening" or "dangerous" and that Martin seemed "threatening" because of his race. Is that the same as following him "because of [his] actual or preceived race"? Also, how does federal law treat self-defense?
The other likely development is a civil lawsuit by Martin's family, which is being considered and was mentioned in the comments to Dan's first post. A civil action is, of course, governed by a lower standard of proof, involves more extensive discovery, and required testimony (deposition and trial) from Zimmerman himself. It also brings the state Stand Your Ground Law, and the pre-trial immunity it provides, back to the forefront. (By the way, if the civil suit were brought in federal court, this would be an interesting Erie hypo).
Wednesday, July 10, 2013
Procedure in constitutional challenges, ctd.
Last week, I wrote about courts (arguably) misapplying Twiqbal in constitutional injunction action, using plausibility to avoid addressing questions of law head-on on a 12(b)(6) motion. The en banc Fourth Circuit gives us another example, in Greater Baltimore Center for Pregnancy v. Mayor of Baltimore, one of two cases (the other decision, involving a similar regulation from Montgomery County, MD, is here) challenging local regulations requiring church-affiliated crisis pregnancy centers to post signs in their lobbies stating that they do not provide abortion or comprehensive birth control referrals, services, or counseling.
The district court in Baltimore Center granted a permanent injunction on summary judgment without giving the City an opportunity to take certain discovery. Without reaching the First Amendment merits, the majority (written by Judge King, who wrote an outraged dissent from the original panel decision) held that summary judgment was improper and the city should have been given an opportunity for discovery on a number of issues, primarily the status of the centers as commercial enterprises (which determines whether this is compelled commercial speech, which in turn affects the standard of First Amendment scruriny). Judge Niemeyer (who wrote the panel opinion affirming the district court and invalidating the regulations) dissented, insisting that all of this involved questions of law for which discovery is unnecessary and inappropriate. Whether speech is commercial or involves commercial and non-commercial speech inextricably intertwined is a question of law and, in this case, obvious, such that discovery should not enter the picture. As with 12(b)(6), this all illustrates of how procedures developed to handle fact-intensive cases apply to more law-intensive ones. And how should courts treat facts such as the legislative record for procedural purposes?
Political valences are nakedly obvious in this decision. Both dissents accuse the majority of using procedure to undermine the plaintiffs' rights and accuse the city of abusing discovery as a way to deny plaintiffs justice. This is, of course, a switch from the ordinary viewpoint (especially for judges such as these dissenters), where it is plaintiffs abusing discovery and judges protecting defendants from that abuse. Of course, the (likely) competing substantive views of reproductive freedom continually bubble to the service; this is prevalent in Judge Wilkinson's solo dissent, which accuses the majority of twisting in all directions to aid the choice movement and warns that compelled speech can be used against both sides in this debate. This is true, although again, attitudes about the topic seem to affect First Amendment analysis on all sides.The last noteworthy point is the disagreement about the effect of a preliminary injunction. In response to the abusive-discovery-denying-liberty point, the majority offered that the district court could have granted a preliminary injunction, thereby protecting the center against having to post the signs until discovery could work itself out. At the same time, the judges crossed swords over how much effect to give a preliminary injunction. The dissents both cited to the Montgomery County case (which involved a preliminary injunction) as establishing that the centers engaged in non-commercial speech to which strict scrutiny applied. But the majority insisted that a preliminary injunction is just that--preliminary--meaning it is subject to abuse-of-discretion review and does not firmly establishing constitutional principles. This is questionable; because the grant and denial of a preliminary injunction is immediately appealable as of right, much constitutional litigation (including appellate and SCOTUS review) occurs at the preliminary injunction stage.
I had thought these cases might be ripe for SCOTUS review (there are four First Amendment cases on tap for next year, one only indirectly--more than this past term, but less than in past terms). But the cases are so bound up in procedure, I wonder if either is the right vehicle, at least right now.
Tuesday, July 09, 2013
Settlement in the curriculumOne of the sample complaints I give my Civ Pro students is from Mort v. Lawrence County Children & Youth Servs., a § 1983 action brought by a woman whose newborn was taken away by the County after a false-positive drug test (the result of the woman eating an "everything" bagel from Dunkin' Donuts). It's a well-drafted complaint, so very good for illustrating joinder, pleading structure, jurisdiction, and Twiqbal. A student shared with me this report that the case settled for $ 143,000. This is a pretty good sum for a non-physical injury due process claim. And a good reminder to civ pro students that most monetary cases, at least those with well-structured complaints, settle.
Tuesday, July 02, 2013
Legal plausibility v. Factual plausibility
In her essay on Conley v. Gibson for Civil Procedure Stories, Emily Sherwin calls Conley "precedent by accident." In the (in)famous "no set of facts" language, the Court was describing a standard for legal insufficiency, referring to a situation in which the legal right asserted did not exist as law. But lower courts ran with it as a standard for factual insufficiency and it soon came to mean that a plaintiff need not allege any particular facts, so long as some facts might come up later in the case.
Ironically, the new plausibility standard from Iqbal and Twombly is now presenting this problem in reverse. Twiqbal established a new standard for factual insufficiency and the quantity and quality of the facts the plaintiff must plead--the plaintiff must allege non-conclusory facts that, taken as true, plausibily show a violation of rights and the opportunity to recover. But lower courts have begun using plausibility for legal sufficiency--whether the plaintiff's legal arguments, as applied to seemingly undisputed facts, are plausible. Courts are denying 12(b)(6) motions where law is in dispute.
This is particularly prominent in constitutional litigation. The Tenth Circuit recently did this in a First Amendment case. And Judge Bernard Friedman of the Eastern District of Michigan did the same yesterday, holding that a challenge to the validity of state prohibitions on same-sex marriage and on unmarried couples adopting survives a 12(b)(6) motion. After pointing out that both parties cite Windsor in support of their claims, the court states that "construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court's current statement of the law, this Court cannot say that plaintiffs' claims for relief are without plausibility."This is just wrong. Plausibility has no role to play with respect to the validity of the plaintiffs' legal arguments. A ccannot be legally plausible--it is either legally valid or legally invalid, at least when the facts alleged are uncontested, as in the Michigan case.
The only facts that matter are these and they are not in dispute--plaintiffs are an unmarried same-sex couple, want to adopt children together, cannot marry because of state law, and cannot adopt children together because of state law. The only issue on the motion is whether these provisions of state law violate equal protection and due process, as interpreted in Windsor. That is purely a question of law for the court to decide, which is precisely what 12(b)(6) was designed for. There is no reason for the case to proceed further. No discovery is necessary, there is no fact-finding for the court to do, and no need for further factual development; the case is teed up for resolution right now, depending entirely on the legal issue of how the district court interprets Windsor. And resolving the legal dispute is the court's ultimate job. It thus makes no sense for the court to refuse to resolve the legal question now because the the plaintiff's claim is "plausible," then decide the exact same legal question six months from now, when nothing will have changed on the record before the court other than the parties repeating the same legal arguments that they could make right now. If Windsor invalidates state law, the court should deny the motion (and the plaintiffs should be making their own motion); if Windsor does not affect state law, the court should grant the motion.
The district court exacerbates its error with this closing line: "Plaintiffs are entitled to their day in court and they shall have it." This is nonsense. What does it mean to have one's day in court with respect to a legal question? It means you get a judge to resolve that question. But that is what Judge Friedman just refused, to do, at least for the moment.
Thursday, June 27, 2013
Remedial effects of procedure
A colleague proposes the following: The overly broad language of Judge Walker's injunction, and thus the confusion about its scope, is a product of the state's refusal to defend in the district court and turning defense over to the sponsors.
I think there might be something to this. Kamala Harris' letter states that the state officials litigated on the belief (which they undoubtedly preferred) that any injunction should apply statewide as to all county clerks and registrars and as to all persons, not only the named plaintiffs. So they were not going to object to the overbroad injunction or bring the problem to the district court's attention, as an ordinary defendant, who actually defends, would have done. On the other hand, the sponsors likely were not thinking in remedial terms, since they were not the ones who would be subject to any injunction; they therefore had less incentive to really be on guard with respect to this ssue.
Wednesday, June 26, 2013
Federalism and DOMA
I've already seen some confusion about whether it's fair to describe Justice Kennedy's opinion in Windsor as relying on "federalism." Compare, for example, the majority opinion ("it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism") with the Chief Justice's dissent ("I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.") with Scalia's ("Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of the 'usual tradition of recognizing and accepting state definitions of marriage' continue. What to make of this?").
It seems to me that the answer is: Windsor is an equal protection decision to which federalism is relevant, both because it shores up the interest on Windsor's side and it diminishes or eliminates many of the interests on the federal government's side. In this way, Kennedy's opinion is in keeping with Judge Boudin's opinion for the First Circuit in Gill, which did something similar, and is like the arguments I discuss at the beginning of my DOMA article.
The confusion arises from some terminological confusion that began at oral argument. One "federalism" argument was the one that Kennedy and Boudin subscribe to-- that federalism influences the strength of the equal protection claim. But there was also a very different federalism argument made in an amicus brief for Ernie Young and other federalism scholars-- that DOMA is unconstitutional as a matter of enumerated powers and state sovereignty, independent of the discrimination issue. That question, Justice Kennedy declines to speak to. ("It is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.").
One other thing while I'm at it. Today's scenario -- DOMA unconstitutional, state laws intact for now -- means that same-sex couples and the federal government now have to confront a series of complicated and difficult choice of law questions (as Justice Scalia points out in dissent, and as I wrote about last year). The immediate consequences will depend a lot on what the executive branch does (and especially whether it tries to coordinate its agencies' different positions on choice of marriage law) and how the courts react. As Justice Kennedy said in explaining why the Court needed to decide this case:
The same could be said about the undecided choice of law issues. That said, it's still not too late for Congress to repeal DOMA and replace it with a choice of law rule. And perhaps the administration has a plan for how to deal with the fallout. Otherwise, it's about to become a lot more interesting to be a choice of law scholar.
The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. ... Rights and privileges of hundreds of thousands of persons would be adversely affected ...; the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. ... the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved.
Monday, June 24, 2013
The procedure of Title VII
Given my limited knowledge of the details of Title VII, I will not delve too deep into the details of either Vance v. Ball State University (only those with hiring/firing authority qualify as supervisors) or Univ. of Texas Southwestern Med. Ctr. v. Nassar (but-for cause required for retaliation claims). Instead, I wanted to note the role that procedure plays in both decisions.
Justice Alito's majority opinion in Vance insists that the Court's (seemingly) simpler definition of superviso will be more readily applied to resolve disputes prior to trial--primarily on summary judgment, although it hard not to see this trickling back into Twiqbal-tinged 12(b)(6) decisions. Similarly, Justice Kennedy in Nassar insists that a lesser causation standard makes it "far more difficult" to "dismiss dubious claims at the summary judgment stage" (emphasis addd--is it any wonder our students confuse those terms?). It is not sufficient that the employer could "escape judgment after trial."
The logic here calls to mind Harlow v. Fitzgerald, in which the Court adopted a purely objective standard for qualified immunity in § 1983/Bivens actions precisely because it would allow more claims to be resolved at summary judgment. But qualified immunity is an affirmative defense vesting in defendant officers a right not to litigate, purely for instrumental reasons--freeing them to focus on serving the public interest without having to deal with the distraction or chilling effect on governmental conduct. One can disagree with that doctrinal logic. But even accepting that, this is vastly different than saying that every defendant has a right to avoid liability prior to trial and that the substantive claim-creating legal rules (as opposed to an affirmative defense) should be interpreted in such a way explicitly to preserve that right. It no longer is enough that the "correct" party prevail--they now must prevail at the right point in litigation.
The other thing flowing through both opinions is concern for juror confusion and the need to make cases easier to grasp and decide. In particular, Alito emphasizes the need for "reasonably clear jury instructions in employment discrimination cases." Of course, the need to make jury instructions more comprehensible does not mean the need to simplify (if not "dumb-down") the substantve law itself. Jurors are capable of understanding and applying difficult legal concepts; the call from scholars has been to present and explain those concepts to the jury in a clearer way.
Alito also insists that "the danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under which different parties bear the burden of proof." But on that logic, we should never have jurors deal with affirmative defenses or counterclaims, which necessarily involve different parties carry different burdens of proof. In any event Nassar itself presents the very problem by imposing different causation standards for substantive claims and retaliation claims; as Justice Ginsburg argues in dissent, those types of claims often (as in Nassar itself) are regularly brought together. In other words, contrary to what Vance suggests should happen, Nassar means jurors will have to deal with different theories of causation fairly regularly (unless, of course, the new but-for standard succeeds in keeping retaliation cases from ever reaching trial).
Saturday, June 22, 2013
Dismissing the DOMA Case
Apparently "the rumor sweeping DC this past week" is that the Supreme Court will decide that it lacks jurisdiction in the DOMA case, and thus will dismiss the case without ruling on DOMA's constitutionality. Adam Winkler discusses the scenario in the New Republic (and seems to think that the consequences of doing so would be quite bad). A friend asked me what I thought of the rumor. Well:
First, dismissing the case for lack of jurisdiction would be the right thing to do. Invocations of the Supreme Court's jurisdiction, like any federal court's, require the invoking parties to have a real problem that they want the court to do something about. But neither Windsor nor the United States has such a problem here. Both of them got the result in the district court and in the Second Circuit that they wanted, and we can tell that because they're asking the Supreme Court to affirm. An appeal where both parties want the Court to affirm is an appeal where there's no standing. (Note for SCOTUS nerds-- this is different from the rare but consistent occasions where both parties want the Court to reverse and the Court appoints an amicus; those cases have prudential adverseness problems, but they don't have standing problems.)
And as for BLAG's participation, 28 U.S.C. 516 limits the "the conduct of litigation in which the United States" is a party to "officers of the Department of Justice," "except as otherwise authorized by law." No law delegates that authority in this case to BLAG.
In my view the only thing making this difficult is the Supreme Court's (apparent) earlier conclusion that it had jurisdiction in INS v. Chadha, but that case's reasoning isn't well explained and may not be correct or applicable. (The always insightful Marty Lederman has responses to some of these concerns here, though he takes a much more doctrinal and less conceptual approach to the question; I don't actually mean for this post to substitute for the extensive briefing on the question.)
Second, with all that said, I still think it's highly unlikely that the Court will dismiss the case. Of course oral arguments don't always predict case outcomes, but during the arguments over jurisdiction in the DOMA case the Court seemed very sympathetic to BLAG's position that there was standing. (E.g., Paul Clement: "And if you want to see the problems with their position, look at Joint Appendix page 437. You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case. I mean, that's what you get under their view of the world, and that doesn't serve as separation of powers." Justice Kennedy: "That -- that would give you intellectual whiplash. I'm going to have to think about that."). And it would be easy to write an opinion that finds jurisdiction with very little discussion, citing Chadha and moving on. Dealing with the question without much explanation might irritate some professors of federal jurisdiction, but the Court doesn't always care what they think.
Third, if the Court does dismiss DOMA for lack of jurisdiction-- as it should-- the consequences would hardly be disastrous. The result is simply that the parties can't appeal if neither of them wants the appellate court to do anything. As soon as any court actually upholds DOMA, there will be appellate jurisdiction. (One recent district court decision in the Ninth Circuit has arguably upheld DOMA.)
Winkler mentions this:
There is one possible route back to the Supreme Court. If someone challenges DOMA and loses, he or she would have the right to appeal. It’s hard to see that happening, however, given that the administration refuses to defend the law. Every challenger should win.
But it's worth emphasizing what this really means. If any court upholds DOMA, there will be jurisdiction in the Supreme Court. And if not-- if every single court to consider DOMA's constitutionality strikes it down-- the Supreme Court's intervention won't be needed, because DOMA will be invalid everywhere its constitutionality is raised. At that point, even the Obama administration would probably stop enforcing it.
Thursday, June 20, 2013
Settlement in SCOTUSHow often do cases settle once they have reached SCOTUS, that is, once cert has been granted or even sought? Has anyone studied the question? Does anyone know off-hand? I know of cases such as Pottawotomie County, a § 1983 wrongful conviction case that settled for $ 12 million after oral argument, which made news in part because it was so rare (and because of the settlement amount).
Baude on Spillenger on Extraterritoriality and the Constitution
More on today's decisions (and perhaps a few more comments on my prosecutorial comment post) when I'm not running to grab a plane (the story of my life). For now, I just wanted to cross-promote a post I have today on JOTWELL, State Boundaries and Constitutional Limits. From the post:
And from the conclusion:
Territoriality is a basic premise of the federal system; everybody knows that the New York legislature can’t just sit down and rewrite all of the laws of New Jersey. This seems like a common-sense requirement of our constitutional structure. But as Clyde Spillenger demonstrates in Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, the nature and source of this principle is misunderstood today. ...
By the way, so far as I know, this piece has not yet been picked up by a law journal. Student editors who are reading this: grab it while you can!
Friday, June 14, 2013
JOTWELL: Leong on Levy on judicial allocation of timeThe new essay on JOTWELL's Courts Law is by Nancy Leong, reviewing Marin Levy's Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals, which considers some oft-criticized appellate review processes (staff attorneys, unpublished opinions) in light of resource allocation, considering judicial time as one such resource. The review and the article are both worth a look.
Wednesday, June 12, 2013
A tale of two pleadings
Two lawsuits have been filed (so far--expect more) challenging the NSA's "dragnet" surveillance program. The first is Klayman v. Obama, filed in the District of the District of Columbia; the lead plaintiffs are Larry Klayman, the head of judicial watch, and Charles and Mary Ann Strange, the parents of a Navy SEAL killed in Afghanistan, on behalf of all other Verizon customers. The second is ACLU v. Clapper, filed in the Southern District of New York; the plaintiffs are the ACLU and the NYCLU, for themselves as Verizon customers who communicate with members, clients, whistleblowers, and others.
It is worth comparing very different approaches to pleading and to this case. It might even be a worthwhile lesson for class.1) There is a ton of extraneous noise in the Klayman complaint. It spends time talking about how Klayman and the Stranges have criticized the President. There is a lot of rhetoric about "beyond an 'Orwellian regime of totalitarianism'" and how the "only purpose of this outrageous and illegal conduct is to intimidate American citizens and keep them from challenging a tyrannical administration and government presently controlled by the Defendants, a government which seeks to control virtually every aspect of Plaintiffs, members of the Class, and other American's lives, to further its own, and Defendants 'agendas'" and how this is part of a "pattern of egregious ongoing illegal, criminal activity." Obviously this is all intentional and strategic--an example of what Beth Thornburg has called "pleading as press release." That "tyrannical administration" stuff is going to make for great soundbite, which Klayman almost certainly wants. But it is all legally irrelevant and almost certainly will have no effect on the factfinder. Even the request for damages--in excess of $ 3 billion--seems more designed to get reported on conervative blogs than to actually form the basis for recovery.
This contrasts with the ACLU complaint, which is straightforward and low-key. But the contrast illustrates a genuine strategic and pedagogical question: Does such rhetoric have a legitimate place? And how should we teach students about this, both in teaching pleading in Civ Pro and, more so, in specifically teaching about constitutional litigation in Civil Rights or Fed Courts? Is it comparable to the rhetoric we see in judicial opinions, especially dissents? Or does the comparison fail because judicial opinions are directed outward (to the public, future courts, and future litigants) while pleadings are (or should be) directed only to this court and the parties? One criticism of legal education is that we beat the passion out of students. Should we teach and encourage the sort of empassioned and emotional rhetoric we see in the Klayman complaint? Or should we teach them that there is a time and place--and a complaint is not it.
My instinct is that a pleading is not the appropriate time and place. I always am bothered by the sort of over-the-top language you see in Klayman and would strongly encourage students against this type of thing. Were I the judge, the plaintiff would lose a great deal of credibility with me.
2) Klayman has a lot of legal mistakes (or at least defects), particularly with respect to the effort to get damages. It includes a Fifth Amendment due process claim, which should not be available; substantive due process yields when more specific rights are implicated, such as the First and Fourth Amendments (both of which are pled here). It seeks damages from all defendants, including President Obama, which is, of course, impossible. It asserts state tort claims against all the individual defendants, rather than against the United States, as required by the Federal Tort Claims Act. It asserts a claim against Judge Vinson, the judge FISA Court judge who approved the request, who should have judicial immunity. There are potentially the same problems of supervisory liability that we saw in Iqbal, although a policy is clearly at issue here.
And this one is admittedly nitpicky, but it repeatedly cites Bivens as Bivens v. VI Unknown Named Agents (emphasis added). Are we suddenly in Rome (insert dictatorship joke here)? Or is this the result of some bad "change all"? Obviously, this complaint was drafted in a fairly short time. Still, should we expect more from attorneys? Again, it is about credibility with the judge.
3) The ACLU complaint is as close to one of the Forms as you are likely to see in modern times. It is short--only 38 paragraphs. It doesn't separate into several individual causes of action, with incorporation-by-reference of prior allegations; instead, it simply lists, in separate paragraphs, the three legal rules violated by the program (First Amendment, Fourth Amendment, and a federal statute).
4) Can the plaintiffs in either case establish standing under Clapper? Both sets of plaintiffs should be able to survive the "certainly impending" requirement; because the very nature of the program was to look at all Verizon customers, so any Verizon customer should have standing (perhaps even any customer of Spring and AT&T, as well). But, again, is it that simple? And doesn't that mean that plaintiffs are only going to be able to challenge extraordinarily overbroad programs, but not a slightly narrower one?
Wednesday, May 22, 2013
IRS and the political valence of constitutional litigation
I have written before about the phenomenon we have seen since 2008 of politically conservative plaintiffs (individual and organizational) bumping up against limitations on constitutional and civil rights litigation established in cases brought by politically liberal plaintiffs (think of all the birther lawsuits dismissed for lack of standing). The lawsuit filed Tuesday by True the Vote over the IRS handling of exemption applications by conservative groups could be the latest example.
In addition to a declaratory judgment that the group is entitled to its exemption under the tax laws, the lawsuit brings First Amendment claims under Bivens against various IRS officers and supervisors, including the acting commissioner, former commissioner, and direct of the Exempt Organizations Division. How is that part likely to fare?• SCOTUS has not yet established whether a First Amendment speech claim can be the basis for Bivens damages, a point the Court reiterated last term (in a case in which the plaintiff was arrested for verbally confronting Dick Cheney in a shopping mall).
• Lower courts are unanimous that a First Amendment claim requires proof of intentional viewpoint discrimination--that the officers acted a certain way because of disagreement with the viewpoint expressed by the speaker. Is using a political identifier per se treatment motivated by disagreement with that viewpoint?
• The Court hinted in Iqbal that there was no supervisory liability under Bivens. Even the most-forgiving view of Iqbal is that the state of mind required for supervisory liability matches the state of mind required for the underlying right. That means the supervisors must have created policies targeting groups because of their viewpoint. But the allegations state that the supervisors "knowingly and willfully applied the IRS Review Policy to True the Vote," which is not sufficient under Iqbal to plead their intent to discriminate.
• Lots of those darn conclusory and "information and belief" allegations, for example ¶ 54 ("Upon information and belief, under the IRS Review Policy, the IRS and IRSEmployees engaged in other discriminatory conduct toward applicants for tax-exempt status thatwere perceived to hold conservative policy positions or philosophical views contrary to those held by the current Administration."). The complaint has the benefit of media coverage and the Inspector General reports, but it shows how hard it is to allege state of mind and behind-the-scenes action in non-conclusory terms.
• Are the officers entitled to qualified immunity? Is the right allegedly violated clearly established? Courts keep insisting we cannot define the right at too high a level of generality (e.g., "the right to be free from viewpoint discrimination"). Is there case law holding that the First Amendment is violated by the use of political identifiers as the basis for a sorting mechanism for purposes of determining tax exempt status? And since several defendants are (or were) top-ranking federal officials, is this a case subject to Justice Kennedy's concurrence in Ashcroft v. al-Kidd demanding SCOTUS precedent to clearly establish a right as to top-level officials?
The complaint is generally well-drafted and it appears (I know nothing about tax law) the statutory and D/J claims can go somewhere. But the Bivens allegations look no different than in the many other recent lawsuits that SCOTUS and lower courts have rejected for varying reasons.
Wednesday, May 15, 2013
Rationing Legal Services
In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor. This only only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, my new article, Rationing Legal Services just published in the peer-reviewed Journal of Legal Analysis, examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.
To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services (CLS), that I discuss in greater depth in the paper. Should the Public Defender Service favor offenders under the age of twenty-five years instead of those older than fifty-five years? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? Should providers favor clients they think can make actual innocence claims over those who cannot? How should CLS prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?
I begin by looking at how three real-world LSPs currently rationi(PDS, CLS, and the Harvard Legal Aid Bureau). Then, in trying to answer these questions I draw on a developing literature in bioethics on the rationing of medical goods (organ, ICU beds, vaccine doses, etc) and show how the analogy can help us develop better rationing systems. I discuss six possible families of ‘simple’ rationing principles: first-come-first-serve, lottery, priority to the worst-off, age-weighting, best outcomes, and instrumental forms of allocation and the ethical complexities with several variants of each. While I ultimately tip my hand on my views of each of these sub-principles, my primary aim is to enrich the discourse on rationing legal services by showing LSPs and legal scholars that they must make a decision as to each of these issues, even if it is not the decision I would reach.
I also examine places where the analogy potentially breaks down. First, I examine how bringing in dignitary or participatory values complicates the allocation decision, drawing in particular on Jerry Mashaw’s work on Due Process values. Second, I ask whether it makes a difference that, in some cases, individuals who receive legal assistance will end up succeeding in cases where they do not “deserve” to win. I also examine whether the nature of legal services as “adversarial goods”, the allocation of which increases costs for those on the other side of the “v.”, should make a difference. Third, I relax the assumption that funding streams and lawyer satisfaction are independent of the rationing principles selected, and examine how that changes the picture. Finally, I respond to a potential objection that I have not left sufficient room for LSP institutional self-definition.
The end of the paper entitled “Some Realism about Rationing”, takes a step back to look for the sweet spot where theory meets practice. I use the foregoing analysis to recommend eight very tangible steps LSPs might take, within their administrability constraints, to implement more ethical rationing.
While this paper is now done I am hoping to do significant further work on these issues and possibly pursue a book project on it, so comments on or offline are very welcome. I am also collaborating with my wonderful and indefatigable colleague Jim Greiner and a colleague in the LSP world to do further work concerning experimentation in the delivery of legal services and the research ethics and research design issues it raises.
- I. Glenn Cohen
Posted by Ivan Cohen on May 15, 2013 at 02:57 PM in Article Spotlight, Civil Procedure, Law and Politics, Legal Theory, Life of Law Schools, Peer-Reviewed Journals | Permalink | Comments (2) | TrackBack
JOTWELL: Coleman on Hoffman on federal rulemakingThe latest essay for JOTWELL's Courts Law is by Brooke Coleman (Seattle), reviewing Lonny Hoffman's Rulemaking in the Age of Twombly and Iqbal (forthcoming, U.C. Davis Law Review).
Sunday, May 12, 2013
Marty Redish and A Jurisdictional Perspective on New York Times
The latest issue of the Northwestern Law Review contains the Martin H. Redish Festshcrift, a symposium celebrating Marty's 40 years on the Northwestern faculty and 40 years of influential scholaship in Civ Pro, Fed Courts, and First Amendment. The live symposium last March featured top scholars in all three areas, as well as a panel of Marty's former students who have gone (or are thinking about going) into law teaching.
My contribution, A Jurisdictional Perspective on New York Times v. Sullivan, explores the subject-matter jurisdiction controversies that affected how New York Times was litigated and, in a sense, how it was decided. I am glad I finally got to write this piece, both as a fitting tribute to Marty and in anticipation of Sullivan's 50th anniversary next year.
Here is the abstract:
New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.
Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.
Thursday, May 09, 2013
Sports, video, and procedural rules
1) The umpires went to video review of a disputed non-Home Run call. And despite everyone (including the opposing team's announcers) believing the ball was a home run, the umps upheld the call. Why? Because video review still involves judgments and inferences, depending on the angle and what each individual sees. Contra Justice Scalia, the video does not necessarily speak for itself; someone has to figure out what the video is saying and that is going to vary on the viewer. Video just gives sports fans another thing to argue and complain about with respect to umpires.
2) The manager for the losing team was thrown out after this happened. Baseball has specific rules on what and how you can argue with umpires. One rule is that if a manager requests video review, he cannot argue over the results of that review (much as he cannot argue balls and strikes). Nor can he protest the review decision to the league, which is a non-reviewable judgment call. So you can make a motion, but not a motion for reconsideration. And you cannot appeal.
Wednesday, May 01, 2013
What subjects do students choose to write about?
In Fed Courts, a big chunk of the final grade is builty around a large writing assignment and oral arguments (arguing one case and judging one case). The arguments are on recent court of appeals and students are randomly assigned. For the writing portion, each student picked whatever third case she wanted (other than the ones assigned to argue or judge) and write the reviewing opinion. There were seven possible cases for 14 students--seven wrote on a Ninth Circuit case involving standing to bring a First Amendment challenge to a campus sexual-harassment policy and four wrote on a Fifth Circuit case involving ripeness of a challenge abortion-clinic regulations. Only one wrote about Hollingsworth. And no one wanted to write about the collateral order doctrine or mandamus to review pre-trial orders (imagine).
Do those selections surprise?
JOTWELL: Tidmarsh on Lemos (and Hensler) on parens patriaeThe new essay in JOTWELL's Courts Law has been published: Jay Tidmarsh (Notre Dame) reviews Margaret Lemos, Aggregate Litigation Goes Public: Representative Suits by the Attorney General (Harvard Law Review) and Deborah Hensler's response essay (Harvard Law Review Forum) on the possibility of attorney general-initiated parens patriae actions as an alternative to class actions.
Tuesday, April 30, 2013
Pennoyer = Lochner?
I just did my Civ Pro review and got several questions about what they need to know about or do with Pennoyer. Now I spend relatively little time (maybe 20 minutes) on Pennoyer, but everyone still seemed freaked out about what to do with this case that no longer is good law. After the session, I reminded one student that in Con Law (which is a fall course) they read and learned all the pre-New Deal cases, even though none really remains good law and even though they were not going to rely on it as the controlling law in their answers. But they learned it in order to understand how the law had changed and perhaps what some argue the law should return to being.
So, Pennoyer = Lochner? Discuss.
Monday, April 29, 2013
Why I Decided to Construct a Free Online Casebook Available to Anyone for Civ Pro Using the H20 Platform
One of the nice things about tenure is that it frees you up to to do things you know are good for the world but may not be adequately valued in the tenure process. This summer I will embark on one such project, building a free online casebook for Civ Pro. I will be using the Harvard Berkman Center H20 "hack the casebook" platform. This great platform allows you to create "playlists" of cases and other materials that can be "remixed" by others, added to, etc. The initial goal of the project is to create a completely free H20 platform casebook for each of the firsy year classes, and I have stepped up to do Civ Pro.
Let me tell you a little bit about why I chose to do this because it may encourage others to join this great project or ones like it.
First, like others, I am shocked at how expensive textbooks have become for doctrinal 1L course. I realized that together my casebook and supplement (including the FRCP, major statutesm, etc) would cost my students $243 a piece and thus providing them with free materials would save at least $19,000 among my own students for next year. When multiplied over several years, as well as the possibility that other faculty would adopt this textbook and save their students money, this just seemed like a value creating proposition.In a time when students across the U.S. are struggling with the high price of legal education, I felt I should do what I could here.
Second, most of the materials I teach in my Civ Pro class are major Supreme Court cases (with a few Circuit and state court cases) that could be easily found and edited in public domain format, which the H20 platform makes easy. Just because of the way I teach my own course and the textbook I was using, I was already not assigning many of the notes that followed the cases and I was supplementing the book with additional materials (some written up by myself) so that the value the casebook was offering to my course that could not be found in the public domain was lessened. To be sure, I will still have to replace introductory sections of various parts of the book with my own write-ups as well as do editing of all the versions of the cases I will still use -- no small amount of effort -- but I might have felt differently about undertaking this if my casebook was doing more original work for me in the way I taught my course.
Third (and here I am purposefully not being specific and naming the casebook in question because, for all I know, all Casebooks in the field are similar in this regard): my casebook is more than 1200 pages long. I estimate that I use only about 300-450 of those pages in a 4 credit introductory course. It does have a compact addition for shorter courses, but unfortunately what it chooses to keep versus discard is not a good fit for what I use from the book. Before I decided to do the H20 version myself, I called the publisher of my casebook to see if I could "buy by the page" for the pages I actually use, a practice that some textbooks allow you to do. I was told I could not. Given that they have gone to the trouble of creating a "condensed" version I do not blame the authors/publishers, but this was the last straw for me in deciding to go it on my own.
This summer, along with my RAs, will be spent doing a beta version of the free H20 Casebook for Civ Pro that I will test out with my incoming 1Ls in the fall. I am incredibly grateful to Harvard Law School for allowing me to use my time (and RA time) for this project whose value will hopefully be externalized. I am particularly grateful to my dean, Martha Minow, since she is herself the co-author of a Civ Pro textbook (not the one I had been using), so she is basically authorizing the law school to fund a project that may cut into her own sales. She's just that kind of classy person! The beta version will be kept internal to my students for the fall, but if all goes well I hope to share it with the world in 2014 and perhaps others will want to adopt it.
- I. Glenn Cohen
Thursday, April 18, 2013
Jurisdiction (of every shape and kind), Merits, and Kiobel
SCOTUS at long last decided Kiobel v. Royal Dutch Petroleum on Wednesday, unanimously rejecting the claim under the Alien Tort Statute. Five justices (via the Chief) went with a no-extraterrotriality approach, while four justices (Justice Breyer for Ginsburg, Sotomayor, and Kagan) urged a more-precise understanding of the ATS as a jurisdictional grant. Importantly for my interests, the Court as a whole tries (and more or less succeeds) in continuing the sharp distinction between merits and jurisdiction under ATS first drawn in Sosa v. Alvarez-Machain, which should apply more broadly and generally.
The majority begins with Sosa and the notion that the ATS is "strictly jurisdictional," that it does not regulate conduct or afford relief, and that it is the federal courts recognizing the cause of action. Awesome.
But then the majority refers repeatedly to actions "brought under" the ATS, a term typically applied to the substantive law rather than the jurisdictional grant (e.g., an "action brought under Title VII" or "an action brought under the Sherman Act"). Further, the presumption of extraterritoriality, which the majority relies on, fits oddly here, since the ATS itself is only granting jurisdiction; extraterritoriality and the presumption against it ordinarily concerns the reach of the applicable substantive law created by a legislature.The answer, I think, comes on p. 8 of the majority slip opinion, which says the following:
The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provide by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.
In other words, federal courts' authority to recognize causes of action is granted by Congress through the ATS; the courts do not have the inherent authority to create common law causes of action (the way a state court might). Stated differently, the ATS is a jurisdictional grant in two respects: It grants courts adjudicative jurisdiction to hear and resolve certain cases and it grants them prescriptive jurisdiction to prescribe substantive rules of conduct for certain transactions or occurrences. But the latter is limited to causes of action within the scope of the statutory grant itself. Hence the statutory extraterritoriality analysis--if the ATS does not have extra-territorial application (as the Court concludes), then neither can the cause of action created by the courts pursuant to the delegation in the ATS. Thus, the substantive cause of action the court could create under the ATS fails here because the conduct occurred overseas and involved foreign nationals--which sounds like a 12(b)(6) merits dismissal.
Justice Breyer's concurrence uses the word "jurisdiction" (or "jurisdictional") a bit loosely for my taste, so it's hard to know exactly what he is talking about. On pp. 1 and 7 of the slip op., Breyer argues that the statute "provides jurisdiction" (or that he would "find jurisdiction") where: 1) an alleged tort occurs on American soil; 2) the defendant is an American national; or 3) the defendant's conduct substantially and adversely affects an important national interest, including an interest in not becoming a safe harbor for pirates (or their modern equivalent).
The problem is that it is not clear what Breyer means by "jurisdiction" there. Does he mean adjudicative jurisdiction? If so, the third prong (and perhaps the first) bleeds over into the merits of the claim. Whether the defendant's conduct affects a national interest, like whether conduct affects interstate commerce, looks at the real-world conduct itself and thus (at least on my preferred model) should not have anything to do with the court's adjudicative authority. Alternatively, this framing is less problematic if he means, like the majority, prescriptive jurisdiction. That is, the only causes of action a federal court can recognize and attach liability to are those that meet those three elements. I can live with that as a limitation on the court's prescriptive authority and thus on the substance of any claim. But I still would suggest that it is better to describe that as a limitation on the available court-recognized cause of action rather on jurisdiction.
Tuesday, April 16, 2013
CFP: Sixth Annual Junior Faculty Fed Courts Workshop
Brooklyn Law School will host the Sixth Annual Junior Faculty Federal Courts Workshop on October 4-5, 2013. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Confirmed senior scholars will be announced shortly.
The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Rights Litigation, Civil Procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee.
The conference will begin with a dinner on Thursday, October 3, then panels on Friday, October 4 and Saturday, October 5. Each panel will consist of 4-5 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers. Brooklyn Law School will provide all meals for those attending the workshop, including a welcome dinner on Thursday and a reception on Friday.
Those wishing to present a paper must submit an Abstract by June 16, 2013. Papers will be selected by a committee of past participants; presenters will be notified by early July. Those planning to attend must register by August 26, 2013.
We are setting up a web site and submission e-mail; we will provide all that information as the submission and registration dates draw near. Anyone wanting to submit right away can send abstracts to me at firstname.lastname@example.org.
In the meantime, please save the dates of October 4-5.
Monday, April 15, 2013
JOTWELL: Mullenix on Sachs on personal jurisdictionThe new essay for JOTWELL's Courts Law has been posted: Linda Mullenix (Texas) reviews Stephen Sachs How Congress Should Fix Personal Jurisdiction, which argues that personal jurisdiction is a mess and only Congress can fix it.
Saturday, April 13, 2013
How do you know your exam is ready?
A while back, someone asked when and how you know an article is ready to be sent out. Well, that question also can be asked about exams. I find myself reviewing and re-reviewing and re-re-reviewing my Civ Pro exam, making sure every word is precisely correct and making largely cosmetic changes (changing "this" to "that", etc.), almost certainly to the point of diminishing returns. In other words, the same thing I do in the closing stages of an article.