Wednesday, April 27, 2016

Old injunctions and new statutes

The recently enacted anti-LGBT legislation in Mississippi includes a provision allowing public officials to recuse themselves from issuing marriage licenses to same-sex couples if doing so conflicts with their sincerely held religious beliefs. On Monday, lawyers for the Campaign for Southern Equality ("CSE"), an LGBT-rights organization, sent a letter to Mississippi's governor, attorney general, and registrar of vital records , arguing that this opt-out provision potentially conflicts with the permanent injunction barring all state officials from enforcing the state's ban on same-sex marriage. The plaintiffs interpret this to require state officials to "treat any gay or lesbian couple that seeks to marry the same as any straight couple that seeks to do so." The letter demands a "full and complete explanation" of the steps that will be taken to "ensure that gay and lesbian couples are not impeded or delayed when seeking to marry." Slate's Mark Joseph Stern praises this "clever exercise in civil procedure," enabling the organization to challenge the new law without a formal lawsuit.

But does it?

The injunction only protects the named plaintiffs. The named plaintiffs include two female couples, who presumably already received their licenses; the caption does not indicate this was a class action. Formally, the injunction does not obligate the defendants to do anything as to anyone else. If the plaintiffs are trying to use the injunction and enforcement (or threatened enforcement) of the injunction as a shortcut to halting the new law, it should not work because the injunction does not formally obligate state officials to do or not do anything as to anyone else. The twist is that CSE is also a named party, presumably having sued on behalf of its members, which theoretically includes every LGBT person in the state who wants a license. If so, this procedural move has a better chance, since CSE (and its members) is protected by the injunction and since state officials are prohibited from enforcing the law against CSE (and its members).

My best guess is that the state, the plaintiff, and the court will find a way to resolve this by creating reasonable opt-out methods, as has happened in other states. Still, this move requires careful consideration of the proper scope of civil-rights injunctions, something that is often overlooked.

Posted by Howard Wasserman on April 27, 2016 at 10:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Additional thoughts on Heffernan

SCOTUS on Tuesday decided Heffernan v. City of Paterson, holding 6-2 that a public employee stated a First Amendment claim when he was demoted on supervisors' erroneous belief/perception that he was engaged in protected political activity, even if he was not. Justice Breyer wrote for the Chief, Kennedy, Ginsburg, Sotomayor, and Kagan; Justice Thomas dissented, joined by Alito. I analyzed the opinion for SCOTUSBlog.

A few additional thoughts on the decision and the case after the jump.

The line-up makes sense, given the First Amendment predilections of the Chief and Kennedy, as well as those of Alito, in the other direction. I had some doubt following argument, especially in light of how the Chief and Kennedy both have voted in First Amendment cases touching on the government's institutional interests. (This discussion between Geoff Stone and Adam Liptak explores this institutionalist tendency).

The unspoken feature of this case is qualified immunity--I do not see how any First Amendment right was clearly established at the time of Heffernan's demotion, just given the divide within the Court. Yet it has not come up. I thought that Heffernan might have sought reinstatement to his previous position as detective, an equitable remedy to which immunity would not attach. But both the majority and the dissent spoke of this only as an action for damages. The Court remanded for further consideration of other First Amendment issues, but did not mention immunity as a continuing issue for the lower courts. [Update: Duh. There is no discussion of qualified immunity because the claim is against the City, which cannot assert immunity. As to any claim against the individual, Anon's suggestion would be an intriguing way around the problem]

Finally, the latter part Thomas's dissent, distinguishing harm from violation of a right, seems to illustrate how standing and causes of action have been improperly conflated. Thomas insists that a plaintiff states a § 1983 claim only if the government "has violated Heffernan's constitutional rights, not if it has merely caused him harm." Unconstitutional conduct alone does not violate an individual's rights, even if that individual is injured, unless the conduct violates her rights.* Thomas offers an example of a blatantly unconstitutional law permitting police officers to stop motorists arbitrarily to check for license and registration. Such a law would violate the Fourth Amendment. And attempts to enforce the law may harm an individual, such as by causing her to deal with traffic delays. But if police do not stop that individual, she would not have a § 1983 claim, because any injury (traffic delays) did not amount to a violation of her Fourth Amendment right not to be unlawfully detained.

[*] Thomas frames this as whether that plaintiff falls within § 1983's zone of interests, citing Lexmark and confirming that zone of interests is now unquestionably a merits inquiry.

Thomas is right in that analysis. But it seems to me we ordinarily would talk about this as a matter of standing, not the merits of the § 1983 cause of action. For example, in Clapper, the Court found the plaintiffs lacked standing because they could not show that  the challenged search program would be used to search the plaintiffs themselves. In Susan B. Anthony, standing was present because the plaintiffs had shown that the challenged law might be enforced against the plaintiff's speech. And if that same motorist brought a preemptive challenge to enforcement of the traffic-stop law, Thomas almost certainly would agree that she lacked standing because she cannot show that she will be stopped. So why did Thomas (who joined the "it's standing" majorities in SBA and Clapper) speak of it here as part of the § 1983 cause of action, a merits inquiry?

Perhaps it turns on the difference between prospective and retroactive relief. Thus, harm goes to the cause of action when the plaintiff seeks a remedy for harm that already has occurred, while it goes to jurisdiction when the plaintiff seeks a remedy for ongoing harm or harm that may occur in the future. Indeed, mootness only applies to prospective, but not retroactive, claims. But that is unsatisfying for two reasons. First, the distinction is not supported by the text of § 1983, which allows an individual who has been deprived of a right secured by the Constitution to bring an"action in law" (i.e., a claim for legal relief) or a "suit in equity" (i.e., a claim for equitable relief). The requirements for stating a cause of action under the statute do not vary with the type of relief sought, nor should the relief sought affect whether a statutory requirement is suddenly constitutionalized. Plus, prospective relief may be available for past harms in a case such as this one--there is no reason to believe Thomas's analysis would change had Heffernan sought reinstatement to remedy his previous demotion.

Alternatively, the distinction between harm/injury and right already is prominent in standing doctrine. For example, a party asserting third-party standing (e.g., doctors challenging abortion restrictions) must show their own injuries, although seeking to vindicate others' constitutional rights. On this view, whether the plaintiff has suffered an injury goes to standing, while whether the plaintiff's right has been violated goes to the cause of action and the merits of the claim. Thus, Heffernan did not present a standing problem because his injury (demotion) was clear; it only presented a statutory cause of action problem, because he had not been deprived of a right secured by the Constitution. But this seems an artificial distinction. And it is one that Thomas himself appears to disavow. He speaks of  the plaintiff needing to show the "right kind of harm" to state a § 1983 claim, meaning harm resulting from a constitutional violation. In other words, Thomas defines actionable harm as harm occurring from violation of a constitutional right.

Posted by Howard Wasserman on April 27, 2016 at 12:42 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Friday, April 15, 2016

Attorneys' Fees and Departmentalism

The model of departmentalism, judgments, and precedent that I have been urging carries an obvious risk of recalcitrant officials enacting all sorts of blatantly unconstitutional laws (based on their independent constitutional judgment) or refusing to alter their conduct unless and until compelled to do so by new litigation producing a new injunction. The answer is a number of doctrines that incentivize voluntary compliance. Chief among these is attorneys' fees--in theory, if the state compels enough litigation rather than voluntary compliance, it will get expensive for the state and, perhaps, politically unpopular.

Another case in point: North Dakota enacted a "fetal heartbeat" law (no abortions after a heartbeat can be detected), which effectively banned abortions from the middle of the first trimester. The Eighth Circuit declared the law invalid, obviously, in light of SCOTUS precedent. And the state just agreed to pay $ 245k in fees for that litigation.

Will that sufficiently deter the legislature from enacting the next piece of "we think this is constitutional, no matter what the activist Court says" legislation? Hard to say.

Posted by Howard Wasserman on April 15, 2016 at 06:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, April 14, 2016

JOTWELL: Lahav on Prescott & Spier on Settlement

The new Courts Law essay comes from Alexandra Lahav (UConn) reviewing J.J. Prescott and Kathryn Spier's A Comprehensive Theory of Settlement (forthcoming N.Y.U. L. Rev.), which offers a broad understanding of settlement within civil litigation.

Posted by Howard Wasserman on April 14, 2016 at 12:01 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, April 07, 2016

Better Call Saul and "stealing" clients

A story line on Better Call Saul this season involves Jimmy and his girlfriend leaving their respective large firms to go solo, setting up separate practices with shared space (the separation is so she can keep doing things the right way, while he continues down his path to becoming Saul Goodman). This week, Kim resigns from the firm and recruits (successfully, she believes) the one client that she brought into the firm to follow her. But Jimmy's brother, Chuck, a name partner in the firm, pitches to get the bank to stay with the firm. The gist of the pitch is "yes, Kim is great, but I have long expertise in the complexities of banking law and the work you need done requires the staffing and resources that only can come from a large firm with a lot of associates." And it works, leaving Kim without any clients as she opens her practice.

The TV blogs, especially the comments sections, seem of a mind that Chuck screwed Jimmy and that he did so out of spite. Now, Chuck has screwed Jimmy in the past, so the audience is somewhat primed to dislike him. But did Chuck (and Howard) do anything wrong here? Kim brought the business to the firm, so it was "her" client." And we do not know the business terms between Kim and the firm, which I assume spell out the relationship among the firm, the client, and the rainmaker. But what happens when a lawyer with business leaves a firm? Can the firm try to convince the lawyer's clients to stay with the firm rather than following the individual? And Chuck's pitch in no way disparaged Kim or questioned her abilities, even implicitly; he simply argued that his firm could provide better service, which seems to be what you have to do to get business.

Of course, Jimmy sees it as strictly personal. And his response is to forge a bunch of documents to make Chuck and the firm look bad, which is where we pick up next week.

Posted by Howard Wasserman on April 7, 2016 at 07:44 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Tuesday, April 05, 2016

The duty of sources

A federal judge has ruled that "Jackie," the pseudonymous source in the discredited Rolling Stone story about sexual assault at UVa must sit for a deposition in a defamation action brought by a former university administrator. Judge Glen Conrad (W.D. Va.). refused to quash a subpoena for the woman, who claims to have been the victim of sexual assault in a fraternity house, to be deposed by the plaintiff. But Judge Conrad did limit the deposition to five hours over two days (different than the presumption 1 day/7 hours) in the rule. And he ordered the deposition be sealed.

On that last point: The Slate piece ends with the following:

Steve Coll, the dean of the Columbia Journalism School, told The Washington Post this January that he thinks that’s for the best: “It’s an unusual situation, and I understand the argument on the other side, but I would not name her … She never solicited Rolling Stone to be written about. She’s not responsible for the journalism mistakes. To name her now just feels gratuitous, lacking sufficient public purpose. That could change depending on how the legal cases unfold, but that’s my sense now.”

Coll is right, of course, that the attention should stay on Rolling Stone and Erdely, who, unlike Jackie, had a clear responsibility to their readers . . .

I am not necessarily questioning the decision to seal the deposition, at least for now. But I am not sure about the rationale stated in the article--she was not responsible for the journalism mistakes and she did not breach a journalistic obligation to the public. Rolling Stone's "journalism mistake" was relying on her story, making it the centerpiece of the article and not sufficiently checking it out. Which is not to say the source should be a party to the action or should be liable, but it is to say that it is too simplistic to paint her as a total innocent in all of this.

So I am curious, as a matter of journalism law and ethics--How should we understand the obligation of a source in a story that goes bad?

Posted by Howard Wasserman on April 5, 2016 at 09:50 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (5)

Friday, April 01, 2016

Litigant Autonomy After Scalia--and Thanks!

           In two previous posts, I reviewed new GMU Law namesake Justice Scalia’s approach to litigant autonomy—or at least, what I think his writings and cases suggest about that approach. Briefly, Scalia seemed to think litigant claim-control rights are substantive entitlements conferred by the law that creates in personam-style rights of action. I also criticized this view.

            One response is, “who cares” whether or not claim-control entitlements are conferred by the law that creates rights of action. Due process requires affording litigants protection for their claim-control interests. So, even if claim control entitlements don't vest through the law that creates a right of action, protection for claim-control flows from basic due process guarantees.

            My interest in how we derive autonomy rights stems from the fact I’m pretty much convinced by Sergio Campos’s thin account of the protection that ought to be afforded litigant autonomy as a matter of due process. If you buy Sergio’s due process argument, as I tend to do, and are a skeptic about the claim that autonomy is a positively conferred substantive right, it means that there's more space for work theorizing why we protect litigant autonomy to the degree that we do.

            There’s already interesting work out there pursuing that project. I highly recommend Ryan Williams' piece on litigant autonomy, Due Process, Class Action Opt Outs, and the Right Not to Sue, available here. He makes an important move by reframing opt out as a protection afforded claim-owners’ interests in controlling whether to assert a claim in the first place.

            In this paper, I rotate our view of litigant autonomy in a slightly different direction. The power to control a claim is not just the power to control whether to assert it—but where to assert it. It’s the power to put legal issues and remedial interests on a court’s dispute resolution agenda.  

            In the article, I make two claims about agenda-setting power conferred by claim-control—the first, which I will quickly summarize below the line for those who might be interested, is that the shift opens the door to appreciating that litigant autonomy actually does some important work in our system of judicial federalism.

            Although federal-state jurisdictional concurrency is characterized in a number of different ways, I take the conventional view: concurrency uses judicial competition to break down or check concentration of the business of dispute resolution in the federal system.

            Concurrency does this in part through what might be called agenda-setting rules—rules that specify who gets to pick between competing forums. Subject to some exceptions, our system generally employs a plaintiffs-pick-the-forum rule, reflected in, say, the well-pleaded complaint rule and voluntary/involuntary rule in diversity jurisdiction. Together, both empower plaintiffs to control which courts, state or federal, get to decide their case by exploiting aspects of claim-control--their control the theory of the case and the party structure.

            Scholars puzzle over the plaintiff-picks-the-forum rule. Considered in isolation, it plausibly furthers the anti-concentration goal of concurrency-- largely because plaintiffs have historically tended, for a variety of reasons, to prefer state over federal court.

            But, the plaintiff-picks rule really gains its force as a check on federal consolidation when it is layered on top of the principle that individual plaintiffs control their own claims—or in other words, when plaintiff-picks is hitched to a regime of litigant autonomy.   Litigant autonomy decentralizes the power to set the judicial agenda among a network of claim owners. Because litigants, in turn, naturally tend to have different forum preferences, that decentralization tends to fragment litigation across federal and state forums.

            Not perfectly, of course. And not evenly. But it does so nonetheless. That’s, indeed, exactly what we see when we take the class device away, as we have, for the most part, in mass torts. The federal class action consolidates remedial interests in federal court in part because it overrides class members’ autonomy and with it their exploit the theory of the case and party structure to control where their claims end up. Take the class action away, give class members control over their own claims, and some chunks of mass litigation inevitably radiate out of federal courts reach into state court as litigants exploit their claim-control to park there claims there. True before CAFA. True after.

            This fact, I argue, points out the plausibility of treating the traditional claim-control entitlement as traditional component of the system of concurrency—one that furthers that system’s anti-concentration goals.

            That’s my first claim—litigant autonomy does some work in our system of judicial federalism. My second claim is that appreciating litigant autonomy’s role in the system of concurrency has some interesting formal implications for federal class action doctrine—one that allows us to draw on intertwined separation of powers and federalism principles to make a case for narrow constructions of Rule 23. (The argument also reinforces the claim made by others that the Court ought to be deferential to the rulemaking bureaucracy—treating it, effectively, as a stand-in for Congress or, put another way, as a system of internal separation of powers--a point I’m exploring in a current working paper).

            My argument, incidentally, echoes older, and lost, approach to litigant autonomy that appears in mid-century cases (see the oft-neglected concluding part of State Farm Fire & Casualty v. Tashire, where the Court construes statutory interpleader's application to mass torts narrowly in order to protect litigants’ “substantial right” to choose a state forum, for example). Rather than summarize this second claim, I’ll let you read the article yourself, if you are interested.

            Thanks to Howard and Prawfs for the invite to blog over the last month!

Posted by Mark Moller on April 1, 2016 at 01:48 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Tuesday, March 29, 2016

Misrepresenting the Employment Law Impact of HB 2

One of the most disappointing and infuriating things about the HB2 saga in North Carolina has been the persistent misrepresentation of its impact by Gov. McCrory and its supporters in the General Assembly.  As an employment and civil procedure scholar (and former long time litigator), I take particular umbrage at the gross misrepresentations related to the elimination of the state law claim for employment discrimination (discussed in my last post, here). 

The misrepresentations started in the General Assembly where the Republican sponsors repeatedly asserted that nothing in HB2 would take away existing rights.  Even when directly questioned about the elimination of the state law wrongful discharge claim for employment discrimination, Republican legislators responded that it would have no effect.  [I am basing the foregoing primarily on tweets from reporters on the scene as I was not in Raleigh for the “debate.”] 

The misrepresentations continued when Gov. McCrory issued his statement announcing he had signed HB2 into law.  In that statement, he stated “[a]lthough other items included in this bill should have waited until regular session, this bill does not change existing rights under state or federal law.”  (emphasis added).  Gov. McCrory doubled down on this misrepresentation in a document entitled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren't saying about common-sense privacy law” (here), which was posted on his official website on Friday, March 25.  In this document, question #2 is “Does this bill take away existing protections for individuals in North Carolina?”  Gov. McCrory’s answer: “No.” 

Put simply, McCrory’s statements are clearly and undeniably false. 

However, the most persistent voice in misrepresenting the impact of this provision of HB 2 has been (perhaps not surprisingly) HB 2’s author and sponsor, Rep. Dan Bishop (R-Mecklenburg).  Rep. Bishop is an attorney.  When pressed by a reporter on whether HB2 eliminated the longstanding state law claim for wrongful discharge, Rep. Bishop acknowledged that it likely did, but said “who cares” because you could get the same remedies under federal law.  In a separate interview, Rep. Bishop said the elimination of the state law claim “is an exceedingly minor procedural difference."  

Rep. Bishop graduated from UNC-CH law with high honors, so I will assume he does actually understand the differences between (1) substantive and procedural law; and (2) federal and state employment discrimination law.  But assuming he understands the distinctions, one must conclude that he is intentionally misrepresenting the impact. 

Whether the elimination of a state law claim is “substantive” or “an exceedingly minor procedural difference” is beyond rational debate.  Having 28 days to respond to a motion instead of 30 days is an exceedingly minor procedural difference.  Eliminating a state law claim that has existed for 34 years, is indisputably substantive and significant. 

I’ll take up the substantive differences between federal employment discrimination claims under Title VII (or the ADEA) versus North Carolina’s now defunct claim for wrongful discharge in violation of public policy premised on EEPA in my next post.

Posted by Brian Clarke on March 29, 2016 at 01:08 PM in Civil Procedure, Current Affairs, Employment and Labor Law, Gender, Law and Politics, Torts, Workplace Law | Permalink | Comments (1)

Saturday, March 19, 2016

Hulk Hogan and Complete Diversity

My best guess is that the $ 115 million verdict (likely to be substantially increased when the jury considers punitive damages next week) in favor of Hulk Hogan (ne, Terry Bollea) against Gawker will not stand. From what I have read, the judge made a number of questionable evidentiary rulings and gave a jury instruction that minimized the role of the First Amendment. And some facts will be subject to independent appellate review because they implicate the First Amendment.

But I want to discuss a different question that I missed two years ago--why the case was in a Florida state court at all, where Hogan seems to have gotten some home cooking. Hogan sued Gawker and Heather Clem, the woman in the video; Clem and Hogan are both Florida citizens, destroying complete diversity. Gawker removed anyway, but the district court remanded, rejecting Gawker's argument that Clem was fraudulently joined (as well as an argument that the First or Fourteenth Amendments were necessarily raised by Hogan's state tort claims, creating federal question jurisdiction).

The common defense of the complete diversity requirement, most recently reaffirmed in Exxon Mobil, is that the presence of non-diverse adverse parties eliminates the local bias that is the primary rationale for diversity jurisdiction; Hogan would not receive the benefit of local favoritism because a Floridian is on the other side of the case. But that argument ignores the risk of prejudice against the outsider (as opposed to bias for the local), which is not eliminated by the presence of a local co-party. This is exacerbated when there is disparity in the regard in which the locals are held in that community, such that one side is more of the local community than the other. And it is exacerbated when the outsider-defendant is the real target of the action, the deep-pocketed "big bad."

For jurisdictional purposes, this case looks very much like New York Times v. Sullivan: You have a well-known southern local plaintiff suing a New York-based media outlet, with a locally unpopular individual defendant thrown-in to destroy complete diversity and keep the case in state court. And you have a jury rendering a verdict that sends a pretty clear message about what it regards as outrageous speech. The problem for Gawker is that SCOTUS is unlikely to bail it out the way it did The Times. So Gawker will be relying on the Florida courts to get it out of this First Amendment bind (from all reports, paying anything close to this amount will bankrupt the company).

Posted by Howard Wasserman on March 19, 2016 at 11:52 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, March 15, 2016

Twiqbal boldly goes where no man has gone before

In late December, Paramount and CBS filed a copyright infringement action against a small company making a short fan-fiction (Kickstarter-funded) movie, a prequel to the Original Recipe series featuring a one-off character from one episode who also has appeared in some expanded-universe books. The producers moved to dismiss, arguing that the complaint relied too much on information-and-belief allegations and did not specify what works were infringed or how. The plaintiffs have now amended their complaint to include 28 pages of details and photos that serious Trek fans (I confess to having stopped with Original Recipe) will love, including the origins of the Klingon language and the structure of the Federation and Klingon governments.

Litigate long and prosper.

Posted by Howard Wasserman on March 15, 2016 at 10:20 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, March 10, 2016

Scalia & Litigant Autonomy, Part 2

In a previous post, I discussed how Justice Scalia seemed to think laws creating claims for individualized relief generally also vest claim-holders with substantive rights to control their own claims. In this post, I want to explore some problems with substance-izing claim-control.

First, though, here are a few (very significant!) consequences of this Scalia-ian conception of claim-control:

• Once we view claim-control as a substantive entitlement, its tough to see how courts can interpretively extend the scope of mandatory classing (e.g. under Rules 23(b)(1)(B) and 23(b)(2)) much beyond current boundaries without butting up against the Rules Enabling Act’s ban on procedures that alter or abridge substantive rights. 

• Viewing claim-control as a substantive entitlement removes rulemakers’ flexibility to expand mandatory classing via Rules amendments, again thanks to the Enabling Act.

• This conception of claim-control also restricts states—if individualized claim-control rights are embedded in federal rights of action for individualized relief, that leads to reverse Erie constraints on state mandatory class action procedures.

• Conceptualizing claim-control as a substantive right requires conceptualizing the class as an aggregation of individually controlled claims, ratter than as a juridical entity (i.e., a fictive party subject to legal consequences that vest independently of the choices of individual class members). And as my friend and future co-author Andy Trask notes, the Roberts Court has indeed tended to reject the entity model. Yet, even today, there are any number of judge-made rules that seem to accept the entity view of the class. Although some of these penumbral doctrines might be reconcilable with the view that claims confer a substantive control entitlement, others—particularly, the rule that the class counsel represents the class as a whole and so can settle individual class members’ claims over their objections—seem harder to justify in a world of substance-ized claim-control.

Some might respond to this (partial) list of consequences with a shrug: The restriction on mandatory classing is a feature of the theory, not a bug. And if some aspects of class action doctrine are, at the end of the day, inconsistent with a substantive conception of claim-control—this is a problem with these doctrines, not with substance-izing claim-control.

And that response seems totally right!—if rights to control claims are, in fact, part of the underlying right of action. The problem is that substance-izing claim-control rights doesn’t, on closer examination, really wash.

Here’s Ernest Young: “[E]ven in statutory cases, legislative intent about which plaintiffs ought to be permitted to sue will generally be fictional. Congress will not have addressed the problem, and the courts will need to rely largely on default presumptions.” “[T]he Court will need to recognize that it cannot do without prudential rules [that specify who can sue] entirely,” Young continues in another article. “Then the hard work of specifying which prudential rules are legitimate, which are not, and why can begin.” (my emphasis).

Yeah, careful reader, I know--he’s not writing here about class actions. He’s writing about the jurisdictional (and quasi-jurisdictional “prudential”) law of standing. But his point is equally applicable to class action law’s litigant autonomy norm.

The reality (I argue in the first part of this article, which, like this cute puppy, is still looking for its forever home, law review editors) is: Lots and lots of rights of action just don’t specify claim-control rights. And the inferences we can draw about legislative intent from background assumptions are actually pretty inconclusive—its been a long, long time since there was anything like a consensus in our law or legal culture about who, among a class of injured parties, ought to control their claims. That leaves the “usual rule that litigation is conducted by and for the named parties only” looking an awful lot like a judicial custom, informed, like the law of prudential standing, by both constitutional and forum-specific institutional values.

At the end of the day, the Scalia-era equation of that custom with substantive law did some good by reminding courts that they also need to be attentive to case-specific policies of the underlying substantive schemes when thinking about how much control class members should exercise over their own claims. But, even so, turning our attention in this direction answers fewer questions than we hoped—leaving those who want to put the Court’s treatment of litigant autonomy in the law of class actions on firmer footing with lots more work to do.

In a future post, I’ll suggest some overlooked avenues defenders of the Court’s cases might pursue.

Posted by Mark Moller on March 10, 2016 at 01:41 AM in Civil Procedure | Permalink | Comments (4)

Monday, March 07, 2016

Jurisdiction, merits, and same-sex marriage

SCOTUS today granted cert and reversed the Supreme Court of Alabama, holding that under the Full Faith & Credit Clause, Alabama must recognize a Georgia second-parent adoption between same-sex partners.

SCoA had held that F/F/C was not required because the Georgia courts lacked subject matter jurisdiction to do a second-parent adoption for an unmarried couple, where the biological parent's rights were not terminated. But the propriety of the adoption was a matter of the merits, not jurisdiction. Georgia trial courts have general jurisdiction over "all matters of adoption," which this clearly was. The Court then turned to its usual jurisdictionality touchstones--the relevant statute does not speak in jurisdictional terms, does not refer to jurisdiction, has never been interpreted (by Georgia courts) as jurisdictional (Georgia courts recognize the line between whether a court has power and whether to grant relief), and the fact that the provision is mandatory does not make it jurisdictional. Georgia's rule of decision as to whether to allow an adoption does not speak to or limit the power of the state court to decide this type of case. SCoA thus was wrong (yet again, when it comes to marriage equality--it's been a bad week) in trying to squeeze this into the lack-of-jurisdiction exception to F/F/C.

Posted by Howard Wasserman on March 7, 2016 at 05:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Sunday, March 06, 2016

TRAP laws, rump SCOTUS, and the shadow docket

Four points.

  1) Based on arguments, one possible resolution in Whole Women's Health is a remand to build a better record as to 1) whether the state law caused the the clinic closures in the state and 2) whether the remaining clinics can meet the demand in the state. This would buy another year or more on the case, with enforcement halted in the meantime.

  2) On Friday, the Court stayed enforcement of Louisiana's admitting-privileges laws (specifically--the district court had enjoined enforcement and declined to stay the injunction pending appeal; the Fifth Circuit had stayed enforcement of the injunction pending appeal, making the laws immediately enforceable even as the appeal proceeded; and SCOTUS vacated that stay, rendering the laws not enforceable.

   3) WWH is one obvious candidate for a 4-4 split producing an affirmance by an evenly divided court, leaving in place the Fifth Circuit judgment declaring the state laws constitutional. Justice Kennedy has ruled in favor of the constitutionality of every abortion restriction the Court has considered since Casey and he is willing to buy even scientifically unsupported state justifications for restrictions (e.g., that women regret terminating pregnancies and the state can protect them against that regret by restricting their reproductive health options). Kennedy seemed at least somewhat skeptical of these laws during last week's arguments, although it is not clear whether he was skeptical enough to declare invalid these laws or the general concept of TRAP laws.

   4) There will be no one in Justice Scalia's seat until, at the earliest, October 2017. And perhaps beyond, depending on how the November election goes. That means that this 4-4 split may remain for several years (unless, of course, one of the remaining three 75-and-over Justices leaves the Court).

   5) This issue has the potential to reflect, in procedural terms, the marriage equality litigation: Many states enacting near-identical laws for similar reasons and purposes, such that a single SCOTUS decision necessarily knocks out the constitutionality of all laws, triggering a large state-by-state litigation campaign seeking that final decision.

So might the Court take the following out in the short-term?

Remand WWH to the Fifth Circuit for further factfinding on causation and/or capacity of remaining clinics. Kennedy (and maybe even the Chief) might like the out. And faced with the alternative of affirming an adverse lower-court judgment, Ginsburg/Breyer/Sotomayor/Kagan might be willing to go along. Meanwhile, bar enforcement of the laws from other states as they are challenged, which has the effect of maintaining the status quo (clinics remain open); eventually, the lower courts themselves will get the hint and take steps to halt enforcement pending appeal. Eventually, a case will be teed-up for merits resolution by a fully staffed Court--again, depending on who wins the presidency, who replaces Scalia, and who else leaves the Court in the first two years of the new administration.

Posted by Howard Wasserman on March 6, 2016 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, March 04, 2016

Alabama Supreme Court dismisses SSM mandamus

The Supreme Court of Alabama today dismissed the pending motions and petitions in the larger mandamus action filed by several advocacy groups to stop probate judges from issuing marriage licenses to same-sex couples. I have not had a chance to read it yet; it includes a lengthy opinion from Chief Justice explaining why he is no longer recusing himself from the action and why Obergefell is evil.

Update: The upshot is that there is no longer any state-court order obligating probate judges to act inconsistently with Obergefell. Some still might, of course, but they cannot rely on the state court to justify doing so. Marty Lederman's analysis captures the continuing confusion, given the seeming disconnect among the Order, the Certificate of Judgment, and the various concurring opinions, as well as the likely practical consequences (not many). Adding to the confusion--if the March 2015 mandamus order remains in effect, then what "petitions" (as distinct from various motions) were dismissed by Friday's order? [Further Update: Marty points to several separate petitions filed since March, including one by a probate judge asking the court to declare his entitlement to religious objections to issuing licenses to same-sex couples, in light of the jailing of Kim Davis.]

The interesting question is whether anyone can or will appeal the Alabama order. I expect it is unnecessary. If necessary, the federal court will enforce its injunction against any recalcitrant probate judges without regard to the continuing state order. To the unlikely extent Judge Granade refuses to enforce, plaintiffs can appeal the federal order and get the Eleventh Circuit (or SCOTUS, if things really go sideways) to enforce Obergefell and ignore the state court.  All of which further supports Marty's point that SCoA's order will sit there, ignored but embarrassing in its existence.

Finally, a quick comment on Justice Shaw's concurrence. He is dubious of departmentalism, which he calls "silly" and "rather nonsensical hairsplitting," since, even if Obergefell is not directly applicable, a later decision applying Obergefell will be. And he is correct in the sense that departmentalism rests on formalism--an executive official can resist Supreme Court precedent until that precedent is quickly applied in a case to which he is a party. At the same time, Shaw unwittingly captures the basic ideas behind what I have been calling "judicial departmentalism"--whatever executive officers can do, lower courts (including state courts) are bound by SCOTUS precedent (whether 5-4 or 9-0, whether the lower-court judges agree with it).

Posted by Howard Wasserman on March 4, 2016 at 03:41 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (7)

Scalia and Litigant Autonomy

A belated, blawg-y RIP, Justice Scalia. Over my next couple of posts, I want to talk a little bit about Justice Scalia’s legacy in an area where it doesn’t get a ton of play—class actions. Lots of posts around the web already note that Scalia was, of course, the fifth vote in important rulings restricting the class action. Without Scalia, you don’t get the common answers test from Wal-Mart Stores v. Dukes or the majority in Comcast v Behrend. And so on.

But what gets neglected about Scalia is that he seemed to have a pretty distinctive way of conceptualizing  external constraints on the class action, one that has made some inroads on the way proceduralists think about these questions—but also one that has never quite prevailed (which is probably a good thing).

In this post, I’m going to focus on litigant autonomy (for non-proceduralists, this is the term we proceduralists like to use to refer to litigants’ control of their own claims). Protecting that autonomy is, of course, one of the guiding norms of class action law.

As the term “litigant autonomy” itself evidences, lawyers have a tendency to describe the provenance of litigants’ claim-control entitlement in pretty ethereal terms— as a judicially-bestowed liberty that due process requires courts to give litigants for one or more “deep-rooted” normative reasons (dignity, participation, etc.). (There’s also a huge literature, of course, offering various sophisticated ways to theorize litigant autonomy’s normative foundations.)

One of Scalia’s characteristic moves was to push the way we think about autonomy in a positivist direction—to treat litigants’ rights to control their own claims as, first and foremost, a question of substantive law.

It’s a move that paralleled, and really was probably influenced by, the way he approached prudential standing, one of his longstanding bête noires. That might strike some readers as a weird thing to say. Prudential standing and class action law’s litigant autonomy norm aren’t routinely grouped together—partly a product, perhaps, of the accident that prudential standing and class actions often get taught in different classes by different professors.

But, for Scalia, they seemed to be linked—as, really, they should be. One of the three traditional prudential standing limits is “the general prohibition on a litigant’s raising another person’s legal rights.” That general prohibition is, of course, just a re-description of what we proceduralists call litigant autonomy.   And in fact, there’s a deep, but neglected historical link between prudential standing doctrine and the litigant autonomy norm in class action doctrine that’s worth exploring. Take Califano v. Yamasaki’s statement that class actions are an “exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” The passage really echoes the language of the Court’s prudential standing caselaw.

Scalia, in keeping with his general distaste for judicial lawmaking, was, to say the least, not a big fan of prudential standing.   And he ultimately succeeded in killing off two of its legs (the zone of interests test and the ban on assertion of generalized grievances) in Lexmark International v. Static Control Components, while leaving the prudential rule against third party standing on life support.

I can’t describe the bottom line of Lexmark any better than Ernest Young, so here’s his take from his very good article on the case:

Writing in 1988, Professor (now judge) William Fletcher reinterpreted standing doctrine as grounded in the substance of the plaintiff’s claim—not in general principles emanating from Article III. “Standing,” Fletcher wrote, “should simply be a question on the merits of plaintiff’s claim;” hence, “[t]he essence of a true standing question is the following: Does the plaintiff have a legal right to judicial enforcement of an asserted legal duty?” It followed that “[t]his question should be seen as a question of substantive law, answerable by reference to the statutory or constitutional provision whose protection is invoked.” Fletcher urged that this inquiry should replace the traditional constitutional requirements courts had found in Article III, such as injury-in-fact, and that position remains heresy at the Supreme Court. But one may fairly read Lexmark as adopting Fletcher’s analysis for purposes of prudential standing. The thrust of Justice Scalia’s opinion, after all, is to replace general, judge-made notions of prudence with a substantive inquiry into the intent of particular statutory provisions. (emphasis mine).

This was also largely the answer Scalia seemed to give when he turned, in recent class action cases, to the provenance of litigants’ autonomy or claim-control rights. Take Shady Grove Orthopedics v. Allstate, where he implied that eliminating opt out rights for damages claims would abridge class-members' “substantive rights,” contra the Rules Enabling Act. Sergio Campos suggested, in this excellent article, that Scalia here was treating claim-control entitlements as one of a bundle of substantive entitlements conferred by rights of action. Viewing this allusive passage next to Lexmark really drives home, I think, the rightness of that reading.

For Scalia, deriving individualized claim-control rights from the substantive law was pretty straightforward. Historically, in personam-type rights to individualized remedies were controlled by the right-holder. Against the backdrop of this historical practice, it only makes sense to assume that when a statute creates a personal right to individual compensatory damages and says nothing about allocation of claim-control entitlements, it intends to vest those entitlements in the traditional way.

This approach holds out the usual Scalia-ian promise that we can excise judicial value judgments, solve questions about the allocation of claim-control rights through ordinary legal science, while shifting that allocative decision, in the first instance, to the accountable political process. It doesn’t eliminate due process from the equation—lawmakers’ ability to override the claim-control norm is of course subject to due process limits (that remain fuzzily-limned in the caselaw).  But because the claim-control limit is already embedded in substantive law, the scope of those limits isn’t something that courts have to wade into.

To my mind, there’s some appeal to this approach. But it also creates some perplexing problems for class action law, which I’ll explore in a subsequent post.

Posted by Mark Moller on March 4, 2016 at 03:33 PM in Civil Procedure | Permalink | Comments (0)

Thursday, February 11, 2016

Judicial supremacy and professional responsibility

The ethics complaint filed against Texas Attorney General Ken Paxton last summer will proceed to a State Bar investigation. (H/T: Josh Blackman) The complaint stems from a letter Paxton sent to county clerks in the wake of Obergefell, suggesting clerks and justices of the peace may have a religious exemption from issuing licenses or performing marriages to same-sex couples and that they may be able to assert those requests for exemption.

One of the challenges to the model of departmentalism I have been advocating (what Richmond's Kevin Walsh calls "judicial departmentalism") is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere. The explicit problem, according to the complaint, is that Paxton ignored Obergefell and the (supposed) supremacy of SCOTUS's interpretation of the Constitution; his legal advice thereby ran afoul of several rules of professional responsibility.  In fact, Paxton expressly acknowledged that any clerk or JOP who did this would almost certainly be sued, held liable in light of SCOTUS (and 5th Circuit) precedent, and subject to an injunction that would bind them. He simply recognized the need for that additional step. But that is not good enough; because it is  "emphatically the province and duty," etc., an attorney, even one for the State, cannot give advice contradicting such judicial declarations. If this is what the regulations mean, they leave no room for departmentalism or for independent constitutional judgment in non-judicial actors; they instantiate judicial supremacy as the sole understanding for all attorneys, public or private.

On one hand, that could be permissible and appropriate. If a state legislature wants to establish judicial supremacy as the guiding principle for its attorneys, (so that, for example, the obligation to not advise a client to disobey a legal obligation includes obligations established in judicial decisions to which the client is not a party), it can do so. On the other hand, the automatic acceptance or presumption of judicial supremacy into the rule, without more, seems difficult to square. And somewhat unfair to impose without further warning or clear statement.

Posted by Howard Wasserman on February 11, 2016 at 01:06 PM in Civil Procedure, Constitutional thoughts | Permalink | Comments (3)

Wednesday, February 10, 2016

Ferguson consent decree falls apart, DOJ sues

The proposed consent decree between DOJ and the City of Ferguson has fallen apart, after the City Council on Tuesday night approved the deal, but demanded seven changes to the deal, mostly involving extended deadlines and limits on costs. DOJ wasted no team in filing a civil action today, alleging patterns and practices of various police abuses, in violation of § 14141 (via the First, Fourth, and Fourteenth Amendments) and Title VI. The complaint contains all the things we already knew from earlier DOJ reports.

I am somewhat surprised DOJ jumped to a lawsuit so quickly, rather than trying a bit of additional negotiation. My guess is DOJ was ticked that the Council would undermine seven months of negotiation in  single night. Life imitating art imitating life?

Posted by Howard Wasserman on February 10, 2016 at 08:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Kim Davis update

Judge Bunning of the Eastern District of Kentucky yesterday denied as moot the ACLU's motion to enforce the injunction against Kim Davis. The plaintiffs had requested that the court order the deputy clerks to issue the non-Kim-Davis-altered licenses, reissue the adulterated licenses, and order the deputies to ignore Davis's orders to issue any other type of license. But the court found that: 1) licenses are issuing to anyone who wants them; 2) Davis is not interfering; and 3) "there is every reason to believe" the altered licenses would be recognized as valid.

I suppose this is all the right outcome, although the court's ready assumption that these altered licenses are valid may be a touch presumptuous. We have no idea what an opportunistic litigant (say, in a future divorce or custody case) and rogue state-court judge might do with a marriage based on one of these licenses. Still, the Liberty Counsel's insistence that the ACLU wanted Kim Davis's "scalp" is just silly.

Posted by Howard Wasserman on February 10, 2016 at 05:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Tuesday, February 09, 2016

Three-Judge Courts and Precedent: An Election Law Procedural Quirk

Must three-judge federal district courts follow the law of the circuit in which they sit?  

Three-judge district courts are an anomaly, used mostly in certain election law disputes such as statewide redistricting claims and some campaign finance litigation.  In these cases, the initial single judge refers a qualifying case to the chief judge of the circuit, who will constitute a three-judge district court.  (The Supreme Court clarified, this term, that the single judge may not consider the merits, but must refer all qualifying cases to the chief judge for the creation of a three-judge district court.)  The chief judge assigns a circuit judge and two district judges to serve as the three-judge court.  The court sits like a normal trial court, making findings of fact and conclusions of law.  Decisions of this court are appealable directly to the U.S. Supreme Court, skipping the court of appeals stage.  Congress created this procedure for cases that will uniquely benefit from faster resolution and multiple minds at the outset, as the decisions are often seen as less biased and more legitimate. (For more on this process, see my article The Procedure of Election Law in Federal Courts.)

Sometimes, these courts face questions that the circuit court in which they sit have already decided.  A circuit court ruling on a particular point of law would be binding on a single district judge.  Are these appellate decisions also binding precedent on a three-judge district court? Although most three-judge district courts have said that they must follow circuit precedent, they are wrong.  I explain why after the jump.

Assume that a plaintiff brings a redistricting case under the Voting Rights Act, arguing that the mapmakers did not create enough "influence districts," where minority voters, even though not a majority, can still have a meaningful impact on who wins.  Assume further that the circuit court has ruled, in a separate case that does not go through the three-judge district court process, that the Voting Rights Act does not permit a claim for influence districts.  Must the three-judge court, as a matter of binding precedent, follow that circuit court ruling?

Three-judge district courts considering this question have largely assumed that they must follow circuit law. But they have provided very little discussion on this point.  The analysis has been conclusory, at best.  Courts typically write something like "we are bound by precedent in this circuit," without more.  Indeed, my initial research has found only one three-judge district court that has gone the other way, holding that, while certainly persuasive, it was not bound to follow circuit law as mandatory.

This minority view is correct if one thinks about the difference between superior and inferior courts.  Put simply, because the circuit will never review the decision of the three-judge district court, it is not a superior court to that three-judge district panel.  If it has no power of review, then its decisions cannot be binding precedent.  To be sure, its decisions are highly persuasive, but the only court that has binding authority over the three-judge district court is the U.S. Supreme Court.  That is the only court that could reverse the three-judge district court for not following its decisions.

Thus, if judges are bound by “higher” courts in the judicial hierarchy, than the converse also must be true: judges need not follow decisions of courts that are not directly above them. Indeed, this is the reason why one district judge need not follow the ruling of a prior district judge, and why one circuit court is not required to rule consistently with another circuit court.  (The prior panel rule within a circuit, however, cuts the other way. I will address why the prior panel rule does not change the analysis in a future post--or at least in the article that will come out of this analysis.)

In sum, the circuit court is not directly above the three-judge district court -- even though that court is a district court sitting within the circuit -- meaning that the circuit court's decisions are not binding precedent.  Although perhaps a seemingly minor problem, this analysis should change how three-judge district courts consider various issues that may arise.  It also has important consequences for the U.S. Supreme Court, which I will address later. 

Posted by Josh Douglas on February 9, 2016 at 01:36 PM in Civil Procedure, Law and Politics | Permalink | Comments (6)

Thursday, February 04, 2016

Discussing the Vanishing Civil Trial

Thanks to Howard for letting me linger here a few extra days. I wanted to close with a plug for a terrific new article in Judicature by U.S. District Judge D. Brock Hornby, entitled Imagined Conversations: The Decline in Federal Civil Trials. The steady drop in the federal civil trial rate since the 1960s is well-known, but Judge Hornby offers a concise and fresh take on the topic by envisioning a no-holds-barred conversation between old law school classmates who now occupy a variety of senior legal positions, from judges to trial counsel to corporate general counsel. 

The article is a great read: short, entertaining, and fast-moving. It will be required reading for my civil procedure students.  Most importantly, it keenly and respectfully identifies the many interrelated factors have contributed to the drop in civil trials over the past several decades. It should provoke useful discussions between unabashed proponents of civil trials (like myself) and those who are more agnostic.

Relatedly, I was thrilled to see that the same issue of Judicature features a compelling plea from John Rabiej to open federal PACER records for academic research without the need for district-by-district waivers.

Both pieces are well worth your time.  To shamelessly borrow a phrase from Larry Solum, download them while they’re hot!

Posted by Jordan Singer on February 4, 2016 at 03:29 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Tuesday, February 02, 2016

Introduction

Thanks to Howard for the invitation and the welcome. I am truly delighted to be guest blogging on Prawfs this month. For those of you I have yet to have the pleasure to know, I am a long-time die-hard proceduralist. I teach Civil Procedure, Administrative Law, and Federal Courts, and this semester for the first time, have added perhaps my first “substantive” course, National Security Law. Although any good proceduralist knows the substance/procedure dichotomy is murky, if not entirely false, I will admit that the move away from procedure has in fact felt uncomfortable, though certainly exciting.

In some ways, teaching National Security Law was the next, inevitable step for me. I have written about procedural aspects of government secrecy for essentially my whole (short) academic career. For a long time I fought full engagement with national security, hoping instead to address problems with procedural rights and remedies for all kinds of secrecy equally. But the truth is that our deepest government secrecy problems today concern security, and national security secrets are not treated the same as other secrets.

As you may have guessed by now, I am planning to use my time here to share my thoughts on the intersection between government secrecy, procedural justice, and national security. Before I get to national security, though, I will begin with a few posts on a slightly orthogonal topic: the corporate and commercial use of the Freedom of Information Act. I will share with you some of the findings I report in my forthcoming article FOIA, Inc., which is based on original data collected from six federal agencies’ records. While I think the findings are, in and of themselves, quite surprising and worthy of consideration, I hope by the end of my series, when I engage more fully with national security secrecy, I can make the connection between these two threads apparent.

I am looking forward to the month!

Posted by Margaret Kwoka on February 2, 2016 at 11:07 AM in Blogging, Civil Procedure, Information and Technology, International Law, Law and Politics | Permalink | Comments (0)

Thursday, January 28, 2016

Ferguson consent decree

DOJ has reached agreement with the City of Ferguson on a proposed consent decree resolving the threatened § 14141 action. It appears to attempt to address everything that went wrong there in 2014, as well as those practices that contributed to the general tension that had long existed. The order requires training and commitment to public First Amendment activity--peaceful protests, lawful public assembly, and video-recording of police activity--including a requirement that only the Chief of Police or Assistant Chief may declare an assembly unlawful and officers cannot disperse an assembly without that declaration. It limits and restricts "stop orders" or "wanteds," in which police initiate contact to enforce warrants. It requires the City to implement a body and dashboard camera program, with broad recording of most stops and interactions and public disclosure of recordings to the maximum extent allowed by state law. And it requires broad reform of municipal court practices and training and policies on use of force.

Posted by Howard Wasserman on January 28, 2016 at 01:04 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, January 25, 2016

More judicial departmentalism

A few points in furtherance of the model of "judicial departmentalism" that Kevin Walsh coined and that I have been urging, beginning with the marriage equality litigation and its aftermath.

First, the law imposes a number of incentives for governments and government officials not to push the departmentalist boundary, chief among them attorneys' fees for prevailing plaintiffs. This story discusses the fee awards from the marriage-equality litigation, which have topped $ 1 million in a number of states. The fee request in Tennessee (one of the states who defended in SCOTUS) is $ 2 million. Texas was ordered to pay about $ 600,000 (in a case that had limited briefing and a summary affirmance in the court of appeals), which the state plans to appeal. The point is, it will get pretty expensive for states if many of their officials decide to follow Kim Davis or Roy Moore and force couples to bring inevitably successful new litigation to obtain marriage licenses. [Update: A new report says Montana settled for $ 100k, bringing the national total to $ 13.4 million).]

Second, SCOTUS today in a per curiam decision in James v. City of Boise (pp. 13-14) held that the Supreme Court of Idaho was bound by SCOTUS interpretations of federal law--in this case, the limitation on § 1988 that prevailing defendants may recover fees only if a claim is frivolous, unreasonable, or without foundation. The state court had said that SCOTUS did not have the authority to limit the interpretive discretion of state courts, only of lower federal courts. The court made quick work of that argument, emphasizing the disuniformity it would engender (citing Justice Story in Martin) and insisting that "it is the duty of other courts to respect that understanding of the governing rule of law." Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.

Third, I like the way the Court described its authority--the Court says what a statute means and it is "the duty of other courts to respect that understanding." (emphasis mine). The Court did not say it was the duty of officers or offices other than courts. I am not suggesting this drafting was deliberate or that it reflects a sudden wave of departmentalism in the Court; more likely, it was written this way because that was how this case presented. Still, it captures what I believe is the appropriate scope of the Court's power to "say what the law is" and to whom.

Posted by Howard Wasserman on January 25, 2016 at 01:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, January 20, 2016

Why mootness?

SCOTUS on Wednesday decided Campbell-Ewald v. Gomez, holding that an unaccepted offer of judgment and offer of settlement do not moot a case. Justice Ginsburg wrote for herself and Justices Kennedy, Breyer, Sotomayor, and Kagan, stating that an unaccepted offer is like an unaccepted contract offer, having no legal force or effect and thus insufficient to moot the case. Justice Thomas concurred in the judgment, arguing that Article III should be read to incorporate common law principles of tender. The Chief Justice dissented for Scalia and Alito, with Alito adding a separate dissent.

Interestingly, only Justice Thomas mentioned (although even he did not particularly emphasize) that the plaintiff here sought retroactive legal relief (damages) for a past violation of his rights, whereas the Court's modern mootness cases all involved claims for prospective injunctive or declaratory relief from ongoing or future violations. And this omission reflects the flaw in how mootness is conceptualized, particularly by the Chief. Everyone keeps describing mootness as the point that "it is impossible for a court to grant any effectual relief whatever to the prevailing party." But the reason it becomes impossible for a court to grant any effectual relief is that the plaintiff no longer is injured as a result of the defendant's conduct. Thus, for example, the covenant-not-to-sue could moot Already v. Nike because, having promised not to sue, Nike no longer is harming Already with the threat of trademark infringement litigation; thus no judicial remedy can stop the injury that no longer is occuring. But in an action for retrospective relief for a past injury, the injury remains. The remedy makes the plaintiff whole by offering a substitute thing of value (money), but it does not uninjure him or stop the injury. It thus should be impossible for a claim for retroactive relief ever to become moot.

[Updated in response to comments]: At best, the court might enter judgment for the plaintiff in the appropriate amount when the defendant presents complete relief into an account payable or to the court. Justice Ginsburg leaves open whether that would moot the case what the result would be, while Justice Alito insists that paying the money to some third-party trustee would moot the case, without the need for a judgment.  The case should not be moot, because you cannot have both an entry of judgment and a moot case--the entry of judgment ends the case, so there is nothing to be moot. Alito is wrong because payment of the money does not end the injury, it only compensates for it with a substitute good (money).

Posted by Howard Wasserman on January 20, 2016 at 04:11 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (8)

Thursday, January 14, 2016

Final CFP Announcement: 2d Annual Civil Procedure Workshop

Here. Paper proposals are due on Friday, January 15.

Posted by Howard Wasserman on January 14, 2016 at 02:21 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, January 08, 2016

No one gets it

I am repeating myself, so I apologize. But this story on Chief Justice Moore's order to Alabama probate judges includes opinions from both sides of the issue--two law professors and the two United States Attorneys in Alabama criticizing the order and anti-marriage-equality advocates praising it to the heavens (in one case quite literally). None of them is right in their analysis.

And the common theme in all of this incorrectness is an overly simplistic approach to the process of constitutional litigation, particularly everyone's disregard for the role of lower courts and judgments. The Supreme Court, in the course of deciding one case, makes broad pronouncements about the law (e.g., the Fourteenth Amendment prohibits bans on same-sex marriage). But those pronouncements are not self-enforcing and do not, in and of themselevs, impose legally binding obligations on any non-parties or as to other laws. As to people and laws not party to the case that created that precedent, an additional step is necessary--separate litigation applying that precedent and producing a judgment as to this new law and these new parties. But we have that in Alabama--Judge Granade's class injunction (entered in May, stayed until the ruling in Obergefell, made effective by order applying Obergefell, and summarily affirmed by the Eleventh Circuit) requiring every probate judge in the state to issue marriage licenses to any same-sex couple that wants one. Thus, the problem with Moore's order is that he is compelling probate judges to act in contempt of court.

The USAs insist that the "issue has been decided by the highest court in the land and Alabama must follow that law." Carl Tobias (Richmond) says Obergefell "was a national ruling and it applies nationally." While correct in the abstract, it makes it all sound automatic when it is not--the Court's opinion applies nationally, but the judgment of the Court does not. One of two things must happen: Either the extra step of a judgment against Alabama officials as to Alabama's law, based on Obergefell, is necessary, or Alabama officials must voluntarily comply with Obergefell in order to avoid the inevitable judgment. The point of Moore's order is to force Alabama officials to follow the first rather than second path. That my be unwise, obnoxious, and driven by Moore's pathological intransigence. There is nothing unlawful about it.

But the anti-SSM advocates are equally wrong because they ignore the judgment and injunction against the class. So one advocate can say that Alabama does not have to follow a Supreme Court decision that ruled on law in another state. Which is true, but irrelevant, because of the injunction. Unfortunately, they can argue that way only because Moore's critics (and most, but not all, reporters) talk about this as defying the Supreme Court in Obergefell rather than defying the injunction that applied Obergefell to Alabama law.

And the attorney for one of the probate judges insists that the Eleventh Circuit has not applied Obergefell as to Alabama law. This is wrong in several respects. First, the Eleventh Circuit affirmed the  injunction.although the reasoning is convoluted and incorrect in some respects, including its understanding of how Obergefell affected Alabama. Second, regardless of what the Eleventh Circuit did or did not do, the class injunction is out there--it was was entered, took effect, has not been reversed by a higher court, and has not been stayed. This means probate judges are under an ongoing judicial obligation, imposed on them directly and on pain of contempt, to issue licenses. So Moore's order does not merely tell probate judges to wait--it is telling them to act in contempt of a federal judgment. Third, neither federal circuit nor district precedent is binding on state courts, thus, even if the Eleventh Circuit had not spoken, it would not matter because the Eleventh Circuit does not create a greater obligation on Alabama officials than a district court.

So if we are going to discuss this accurately, everyone needs to shift the focus to the district court and to Judge Granade's extant injunction. And with that focus, we see that Moore's order, if followed, sets probate judges (although not Moore himself) up for a potential Kim-Davis-like showdown.

Posted by Howard Wasserman on January 8, 2016 at 07:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (8)

Wednesday, January 06, 2016

Alabama (still) does not go gentle . . .

Chief Justice Roy Moore of the Supreme Court of Alabama is back. Today, he issued an order requiring Alabama probate judges to continue to refrain from issuing marriage licenses to same-sex couples, pending resolution of the mandamus action that has been pending in the Court since March. (H/T: Religion Clause Blog). Once again, Moore is sort of right, sort of wrong, and very short-sighted. A few thoughts after the jump..

The linchpin of his analysis is that Obergefell is not directly binding on Alabama probate judges or as to Alabama law; this, Moore insists, is the "elementary principle" that a judgment only binds the parties to that case. Thus, no higher court has spoken to the validity of Alabama's same-sex marriage law or the obligation of Alabama officials to recognize same-sex marriages; instead, we are still waiting for SCoA to address the statutory and constitutional questions in the mandamus proceeding. Moore is right about the scope of SCOTUS's decision. Interestingly, he draws support from cases out of Kansas and the Eighth Circuit that rejected the argument that Obergefell mooted challenges to the laws in these other states; those courts all insisted that Obergefell was merely binding precedent in future litigation, but did not speak to laws or officials or couples in these states, thus leaving those cases as active disputes. In other words, Moore finds support for the position of the Alabama government in cases rejecting the position of these other state governments.

Unfortunately for Moore (or at least for some Alabama probate judges), he ignores the class certification in Strawser v. Strange in the Southern District of Alabama. There is an extant class-wide injunction in the district court declaring the state SSM ban unconstitutional and binding every probate judge to issue licenses to any same-sex couple that wishes to marry in Alabama. That injunction immediately took effect when SCOTUS issued its decision in Obergefell. Thus, while Obergefell is not binding on anyone in Alabama, the district court judgment is. So Moore's order is setting some probate judges up to be held in contempt of that injunction, as well as for  damages liability, since Obergefell should clearly establish the right of a same-sex couple to a marriage license, barring outside issues (Ron Krotoszynski his a similar point in The New York Times). And, unlike with Kim Davis, no new federal litigation need be filed; a couple can jump straight to enforcing the injunction.

I am not surprised Moore would ignore that inconvenient piece of information. But I also have not been able to find any indication of activity or orders in Strawser since the summer. Probate judges in several parts of Alabama have been refusing to issue licenses all along, but I have not seen anything about plaintiffs or the court moving to enforce the class injunction. It will be interesting to see whether Moore's new order shakes loose some activity in federal court.

Update: That Times piece is notable because there is no mention of the Strawser litigation. That, not Obergefell, is the key to all of this. That is what binds and compels probate judges to issue the licenses, not Obergefell simpliciter. Will no one ever get this right?

Further Update: Yes, Chris Geidner at Buzzfeed, who generally does a good and accurate job of covering this stuff.

Further, Further Update: Based on Chris' report, in concluding that Obergefell "abrogated" the SCoA decision, the Eleventh Circuit dismissed the appeal as moot. Both of those conclusions are wrong (Marty is right about that in his comment), as well as inconsistent with the Eighth Circuit mootness cases that Moore cited in his order.

Posted by Howard Wasserman on January 6, 2016 at 05:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (10)

Tuesday, January 05, 2016

JOTWELL: Effron on Moore on the amended FRCP

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Patricia Hatamayar Moore's The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees (Cin. L. Rev.). As I get ready to teach Civ Pro this semester and to cover the new discovery rules (which Chief Justice Roberts highlighted in his year-end report), the article and Robin's review are both essential.

Posted by Howard Wasserman on January 5, 2016 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, January 03, 2016

Legislative Jurisdiction and Adjudicative Jurisdiction

I am late to writing about the oral argument in Dollar General Corp. v. Mississippi Band of Choctaw Indians, which took place early in December; the case concerns the scope of tribal court jurisdiction in civil actions against non-Tribe members. There was a great deal of discussion of the difference between legislative (or regulatory) jurisdiction and adjudicatory jurisdiction and the connection between them. In particular, there was some question whether, if a sovereign possesses regulatory jurisdiction, it also has adjudicative jurisdiction over any claims for violations of those regulations.

Since the distinction between these two forms of jurisdiction is important to the jurisdiction/merits divide, I am curious to see what the Court has to say on the issue.

Posted by Howard Wasserman on January 3, 2016 at 06:13 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, January 02, 2016

Chief Justice Roberts on speedier civil litigation . . . and dueling?

Chief Justice Roberts' 2015 Year-End Report on the Federal Judiciary focused on the amendments to the discovery and case-management portions of the Federal Rules of Civil Procedure and the need for the rules, courts, and attorneys to speed-up civil litigation. Roberts calls the amendments "a major stride toward a better federal court system," but insists they work "only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change." Adam Liptak covers the report; he includes interviews with several Civ Pro profs questioning the wisdom or necessity of the rules, so at least 1/3 of that triumvirate is not on board.

It is difficult not to read Roberts' facially neutral comments about delays in litigation--he calls out both those who make burdensome discovery requests as well as those who evade legitimate requests through dilatory tactics--as not reflecting the anti-plaintiff slant of much of this Court's procedure jurisprudence. "Speedier litigation" is generally code for getting defendants out of litigation more quickly. Plaintiffs do not win cases quickly, only defendants do; it takes time and effort for plaintiffs to gather the information they need and to carry their burden of persuasion (which only can be done at trial, in any event). But the incentive structure built into these amendments is almost certainly to limit what will be made available to requesting parties far more than to halt dilatory actions by producing parties. This almost certainly works against plaintiffs who depend on discovery to uncover information that in many cases is uniquely and exclusively in defendants' possession or control and unobtainable other than through discovery (e.g., employment discrimination, constitutional cases, and other cases that turn on defendant intent). And by emphasizing the need for speed and efficiency, Roberts' Report appears to be pushing district judges towards that understanding.

Roberts praises those district judges who are "knowledgeable, actively engaged, and accessible early in the process" as best able to resolve cases fairly and efficiently. But this stands in interesting tension with Twiqbal, which ratched the pleading standards precisely because the Court did not trust district judges to effectively manage cases in a way that would protect government defendants against burdensome litigation. But now we have formal rules, and official encouragement from the Chief Justice, promoting just such management. Does this mean that we trust district judges across the board and can return to pre-Iqbal pleading? Of course not, seeing as how the amendments also eliminated FRCP 84 and the Forms precisely because the Forms were inconsistent with Twiqbal. Instead, this smacks of Roberts not-so-subtly hinting which direction judges should be exercising this (not actually new) managerial discretion for those cases that manage to survive pleading and get into discovery.

Roberts begins and ends the Report with a discussion of dueling, its horrors, and its demise--just the sort of distracting and irrelevant rhetorical flourish that I often criticize in his opinion writing. And it feels just as glaring and out of place here. His point seems to be that dueling became obsolete when government began providing functional alternative dispute-resolution mechanisms. Thus, federal litigation must be speedier and more efficient so that it does not make a return to dueling look good by comparison or become the equivalent of a fictional 15-year feud between two Napoleonic-Era French cavalry officers. As he puts it, "We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result." His attempted connection seems especially strained in that dueling, at least as practiced in England and the U.S., was not primarily a method of dispute resolution; it was about restoring honor for perceived personal slights more than determining who was in the "right" in a legal dispute. Dueling thus was different than earlier practices of trial by combat, which rested on the belief that whoever prevailed in combat must have been in the right. It also means that the availability of functional courts would not have mattered all that much, since the personal conflicts settled by duel could not necessarily be transferred into a judicial proceeding.

Update: Michael Dorf argues that the Report can be seen as Roberts' attempt to shape the rules beyond his other three opportunities--appointing the rules committees, voting on the Rules themselves, and interpreting them in later litigation.

Posted by Howard Wasserman on January 2, 2016 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, December 18, 2015

Klein and NFL Officiating

I no longer watch football, particularly the NFL; the league is just too corrupt and the sport just too gladiatorial for my taste. But I cannot avoid news stories related to the league. I was interested in the league's announcement this week that, in the wake of increasing criticism of the game officiating this season (that may or may not be justified), game officials would be in contact the league vice president of officiating during games about replay and other "administrative" matters. This has sparked concerns among many, including the former VP of officiating, about the lack of accountability and increase in uncertainty from having a league official whispering into the ref's earpiece. One former official worried that we could not know whether a changed call was because the game officials got together or because "someone in New York doesn't like the call." As another former official said, "what it looks like is that the league office is making decisions on who possibly wins or loses the game."

The last concern sounds in the sports-officiating equivalent of United States v. Klein (which returns to SCOTUS later this term with a case challenging a law that may actually be unconstitutional for the first time since 1872): Just as Congress cannot dictate specific decisions or outcomes in specific cases, the NFL should not be telling officials what calls to make or how to apply the rulebook on specific plays in a specific game.

Posted by Howard Wasserman on December 18, 2015 at 03:54 PM in Civil Procedure, Howard Wasserman, Judicial Process, Sports | Permalink | Comments (0)

Tuesday, December 08, 2015

Bell v. Hood lives

I am beginning to think of Bell v. Hood  the way Justice Scalia thinks about about the Lemon Test: "Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried."  The Court's recent turn to a broader and sharper awareness of what is merits should require the interment of Bell, which strips courts of jurisdiction over federal claims that are "wholly insubstantial and frivolous." After all, if the question of whether the conduct challenged is reached (and thus prohibited by) a law (or, as I like to say, "who can sue whom for what conduct and what remedy")  is a merits question, it should always be a merits question, regardless of the strength of the claim of right.

There were some questions during argument in Shapiro v. McManus hinting that Bell might be on the table, especially given recent jurisdictionality cases that did not even cite Bell. Alas, it was not to be. A unanimous Court, per Justice Scalia, held that any case challenging the constitutional of congressional apportionment must be referred to a three-judge district court and cannot be dismissed by the single district judge. (I wrote about the case for SCOTUSblog). The limited exception, for "insubstantial" constitutional claims, incorporates Bell for "wholly insubstantial and frivolous" claims only, while "[a]bsent such frivolity," failure to state a claim for relief remains a judgment on the merits.

Bell thus survives and is now explicitly incorporated into the three-judge court analysis. In other words, some weak-on-the-merits claims, if the merits are weak enough, still can be dismissed for lack of jurisdiction. And so we continue to be haunted by unwarranted and unnecessary jurisdiction/merits overlap.

Posted by Howard Wasserman on December 8, 2015 at 05:21 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Technically . . .

I have no interest in wading into the morass over Judge Posner and Eric Segall's NYT op-ed suggesting that Justice Scalia believes that majoritarian religious preferences can trump minority rights--here is Corey Yung's effort, which began on Twitter. Segall responded to criticisms from NRO's Ed Whelan and Northwestern's John McGinnis. The esponse references Scalia's purported comments at Princeton that Obergefell is not directly binding on non-party public officials, to which Segall says "That sentiment is technically correct, but as expressed by a Supreme Court Justice could be considered an invitation to a form of civil disobedience."

This is why I forbid my students from using the word "technically." (Imagine Yoda voice: "There is no technically; only correct or incorrect."). And in this case, Scalia is correct, full stop. Judgments themselves are not binding on non-parties and precedent is only binding on courts in future litigation, not on executive or legislative officials. Scalia's statement is incomplete, as it does not finish the point that the subsequent litigation against recalcitrant officials is binding on those officials (note that Scalia did not suggest that lower courts are not bound by Obergefell) and may impose other costs on them, such as attorney's fees, sanctions for non-compliance, and perhaps some limits on the arguments one can offer in litigation.

It is similarly problematic to suggest that a Supreme Court Justice should not express this legally correct and accurate proposition. If Justices should not explain how constitutional litigation actually operates, who should?

Posted by Howard Wasserman on December 8, 2015 at 08:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Monday, November 23, 2015

Seeking the truth

Later this term, SCOTUS will decide Bank Markazi v. Peterson, which involves a challenge under United States v. Klein to a law applicable to an action seeking to attach Iranian assets to satisfy a default judgment for victims of Iranian-sponsored terrorism. I was contacted by both sides of the case about being involved in a scholars' amicus, obviously because both sides believed that my previous work on Klein supported their position. I hope that means  I really was looking for the truth.

Posted by Howard Wasserman on November 23, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, November 19, 2015

Civ Pro and the lagging bar exam

Civ Pro is now a subject on the Multistate Bar Exam. But I learned earlier today that the questions are not going to incorporate the 2015 discovery amendments until 2018. In the meantime, test-takers are expected to know (and bar prep courses are going to teach) the rules as of 2012 and current jurisdiction/procedure statutes.

This strikes me as insane.  I intentionally taught my Spring 2015 students the amended rules, knowing that passage was inevitable (I would have done the same this fall were I teaching the class then), knowing that this is the law they would use as lawyers, even if it won't be effective for another few months. Now it turns out they need to learn something entirely different in between. In other words, the final "vetogate" before the practice of law requires them to learn law that is different than what they learned in school and different from what they will actuallysue on the other side of the vetogate. It makes even less sense given that the Bar is using current statutes along with the old rules--if the questions can remain up-to-date on statutes without imposing an enormous exam-writing problem, they should be able to remain up-to-date on the rules.

Update I: In response to a comment, I have not heard any explanation, only a statement to bar prep/academic support folks that they should continue using the current prep manual until 2018.

Update II: An emailer points out that it may not have as great an effect on Civ Pro teachers, as the current 1Ls, the first group to deal with the amended rules, will take the Bar in 2018, the first year of testing on the new rules. But, as I noted above, it punishes the past students of profs who attempt to be proactive about rules changes (as did last spring). And it leaves questions about what to do in, for example, Advanced Civ Pro/Complex Lit, Pretrial Practice, or other upper-level courses that deal with the FRCP? For that matter, consider students doing a clinic/internship involving federal practice or a judicial clerkship--current 2Ls and 3Ls are going to deal with one version of discovery now and a very different version for the Bar.

Posted by Howard Wasserman on November 19, 2015 at 08:30 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (8)

Tuesday, November 17, 2015

Scalia (sort of) gets it, the media (still) doesn't

According to this story, Justice Scalia gave (an unrecorded) talk at Princeton. Robert George, a Princeton faculty member and a leading opponent of marriage equality, claims that Scalia "declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution." Needless to say, that caused the reporter  from Think Progress, Ian Millhiser, to lose his mind, as well as to question the accuracy of George's recollections.

A few thoughts after the jump.

First, why did Scalia limit it only to those rulings that are not sufficiently textual or originalist--that is, rulings with which Scalia likely agrees? The departmentalist question should not turn on the "correctness" (methodological or substantive) of the decision. If political-branch officials possess authority to independently interpret the Constitution in the face of conflicting judicial rulings and to act on their own constitutional understandings, that authority applies to all constitutional decisions. If Scalia is serious, limiting it only to sufficiently originalist decisions makes no sense and undermines the accurate procedural point in service of a textualist/originalist hobby horse.

Second, Millhiser attempts to explain the procedure in the final three paragraphs, but he gets it completely wrong. His two biggest mistakes were suggesting that 1) this reduces the Court to an advisory body and 2) enforcement through future litigation is merely "conceivable." The whole point  is that future litigation guarantees enforcement because, unlike executive officials, lower courts are bound by the Court's judgments; so when lower courts apply precedent to new parties in a new judgment, that new judgment is binding on those officials. He is correct that this is complex and potentially expensive. But that is inherent in the nature of the judicial power, under which a judgment in one case is generally limited to determining the rights and obligations of the parties to that case And the costs is mitigated (somewhat) by  the availability of attorney's fees. Unfortunately, Millhiser does not mention (or grasp) either point.

Finally, Millhiser allows that Scalia's approach could be correct with respect to "decisions like Dred Scott or the anti-government decisions resisted by Roosevelt — decisions that are now widely viewed as evil," but not to "a decision that allows Americans to marry the person that they love." Nothing like neutral procedure applied neutrally.

Posted by Howard Wasserman on November 17, 2015 at 09:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (20)

Monday, November 16, 2015

JOTWELL: Erbsen on Trammell and Bambauer on personal jurisdiction

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Trammell & Bambauer, Personal Jurisdiction and the "Interwebs" (Cornell L. Rev.).

Posted by Howard Wasserman on November 16, 2015 at 11:39 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)

Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court's current Term. But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn't done in 90 years--issue an "original" writ of habeas corpus.

To unpack this dense but significant topic, Part I flags the origins of the problem--the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court's fractured 2001 interpretation of those provisions in Tyler v. Cain. Part II turns to the current circuit split, which involves whether the Court's June decision in Johnson v. United States, which invalidated a provision of the Armed Career Criminals Act (ACCA), can be retroactively enforced in second-or-successive petitions. Part III explains why that circuit split can't be resolved by the Supreme Court via certiorari--and why, instead, the best way for the Court to take up the Johnson question is through an "original" writ of habeas corpus in a case like Butler. Finally, Part IV argues that the Court should use Butler not just to answer the Johnson question, but also to resolve the debate over Tyler, lest this exact same scenario repeat itself after the next Johnson-like ruling.

I.  AEDPA and Tyler v. Cain

Of all of AEDPA's restrictions on post-conviction relief, perhaps none are more sweeping than the limits on "second-or-successive" petitions filed in federal courts by state or federal prisoners. As relevant here, AEDPA requires petitioners in such cases to first get permission to file such a claim from the Court of Appeals, which may only "certify" the claim if, as relevant here, it relies upon "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."

In other words, unless the claim is based upon newly discovered evidence, second-or-successive petitions can only go forward when they rest upon new Supreme Court decisions that, under Teague v. Lane, may be enforced retroactively. (Under Teague, new "substantive" rules may be retroactively enforced, whereas new "procedural" rules may not, unless they are "watershed" rules of criminal procedure). That part is clear (or, at least, well understood). What's less clear is the meaning of the word "made" in the emphasized language above: Must the Supreme Court expressly state that the particular new rule in question is retroactive, or is it enough that the retroactivity of the rule obviously follows from--and is effectively settled by--other existing Supreme Court retroactivity precedents? 

In Tyler v. Cain, the Justices considered this very question, and ruled, 5-4, that "a new rule is not 'made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive." But Justice O'Connor, whose vote was necessary to the result, opened the door to a slightly broader interpretation in her concurrence. As she wrote,

a single case that expressly holds a rule to be retroactive is not a sine qua non for the satisfaction of this statutory provision. This Court instead may “ma[k]e” a new rule retroactive through multiple holdings that logically dictate the retroactivity of the new rule. . . . [I]f we hold in Case One that a particular type of rule applies retroactively to cases on collateral review and hold in Case Two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review. In such circumstances, we can be said to have “made” the given rule retroactive to cases on collateral review.

In the 14 years since Tyler, the lower courts have generally followed Justice O'Connor's concurrence, rather than Justice Thomas's majority opinion. The debate, instead, has focused on whether particular rulings qualify as a "Case Two." The latest battleground on this question involves the Court's June decision in Johnson.

II.  Johnson and the Circuit Split

In Johnson, as noted above, an 8-1 Court struck down the so-called "residual clause" of the ACCA on the ground that it is impermissibly vague. As a result, not only are sentences based upon the residual clause no longer valid, but individuals who have already served what would otherwise be the statutory maximum (10 years) are presumably entitled to release, since there is no longer any positive authority for their continuing incarceration. Although there's therefore little question that Johnson falls on the "substantive" side of the Teague line, there's also nothing in Justice Scalia's opinion for the Court that says as much--and that therefore clarifies, per Justice O'Connor's Tyler concurrence, that Johnson's new rule is "of that particular type." In other words, Johnson may or may not be a "Case Two," depending upon whether the Court has to expressly say that it's a substantive rule, or whether it's enough that, based upon prior decisions, it's clear that its rule is substantive.

That's the issue on which lower courts have divided. As of this writing, five circuits (the First, Second, Seventh, Eighth, and Ninth) have authorized second-or-successive claims based upon Johnson, with the First, and Seventh providing detailed opinions explaining that, in their view, it's sufficiently clear from existing Supreme Court precedent that Johnson's rule is substantive, and is therefore an example of Justice O'Connor's "Case Two." Three circuits (the Fifth, Tenth, and Eleventh--over a dissent) have held to the contrary--reading Justice O'Connor's concurrence to require some explicit recognition by the Court that a new rule is "of that particular type," i.e., substantive for purposes of retroactive enforcement.

This circuit split is deeply problematic in two respects: First, it creates massive inequities as between federal prisoners convicted under ACCA's residual clause in the five circuits that have allowed second-or-successive Johnson claims and the three that haven't--with those in the latter category now in prison pursuant to convictions that, at the very least, should trigger resentencing, if not (for those who have served 10 years) outright release. Second, because AEPDA imposes a rigid one-year statute of limitations on second-or-successive claims, those serving potentially unlawful sentences have a closing window within which to obtain relief based upon Johnson. Under AEDPA, such claims must be filed by June 26, 2016--the one-year anniversary of Johnson itself. Thus, the circuit split needs to be resolved by the end of this Supreme Court Term--if not sooner.

Usually, of course, there's an easy way to resolve a circuit split like this one; the Court just grants certiorari to review one (or more) of the circuit-level decisions. Here, however, that's not possible: AEDPA itself takes away the Court's certiorari jurisdiction in cases in which the Court of Appeals denies certification (which insulates the Fifth, Tenth, and Eleventh Circuit decisions from review), and the party that lost in the other five circuits that granted certificates--the federal government--hasn't sought certiorari, ostensibly because it agrees that Johnson can be enforced retroactively in second-or-successive cases. 

Thus, AEDPA, TylerJohnson, and the government's litigating position have produced something of a perfect storm--where there's a major circuit split, and no immediately obvious way for the Supreme Court to resolve it. Enter In re Butler, a petition for an "original" writ of habeas corpus from the Supreme Court.

III.  The Supreme Court's "Original" Habeas Jurisdiction

There are few topics in Federal Courts in which there's a bigger disconnect between academic interest and real-world significance than the Supreme Court's so-called "original" habeas jurisdiction -- "'original' in the sense of being filed in the first instance in [the Supreme] Court, but nonetheless for constitutional purposes an exercise of [the] Court's appellate (rather than original) jurisdiction." Ever since Ex parte McCardle, the Court has alluded to "original" habeas writs as a crucial constitutional backstop -- "an unorthodox but sometimes necessary means of exercising review in situations where other avenues for relief are either practically or formally unavailable." Thus, the theoretical availability of original habeas has allowed the Court to sidestep the grave constitutional questions that would otherwise have arisen from various efforts to strip the Court's appellate jurisdiction in habeas cases, including in McCardle itself, and, more recently, Felker v. Turpin.

In Felker itself, the Court was also dealing with AEDPA's limits on its certiorari jurisdiction over second-or-successive petitions, and had no trouble recognizing its power to issue "original" writs of habeas corpus, which AEDPA left untouched, as an available remedy in appropriate cases--and one that obviated constitutional objections to AEDPA under the Exceptions Clause of Article III. As Justice Souter warned in his concurrence, though, "if it should later turn out that statutory avenues other than certiorari for reviewing a gatekeeping determination were closed, the question whether the statute exceeded Congress's Exceptions Clause power would be open." And, in an eerily prescient coda, he added, "The question could arise if the courts of appeals adopted divergent interpretations of the gatekeeper standard," i.e., exactly what has happened after Johnson.

Justice Souter's warning has proven prophetic; although the Court has received a number of serious, significant original habeas applications in the 19 years since Felker, it has yet to grant a single one, even in a 1999 retroactivity case in which the federal government agreed that original habeas was warranted on remarkably similar facts [the issue in that case was eventually resolved--against retroactivity--in Tyler]. Some of these petitions have come in high-profile capital cases, such as those of Troy Davis and Warren Lee Hill, where original habeas was the only way to prevent potentially unconstitutional executions. But whereas those cases may present more emotionally stirring narratives, the Johnson retroactivity issue is, in some ways, a cleaner vehicle for an original writ, since (1) the question before the Court isn't a "merits" question, but a simple retroactivivty question; and (2) the relevant statutes specifically contemplate that the Supreme Court, and not the lower courts (or state courts), will provide the definitive answer to that question. At the very least, if the Court wasn't going to grant in cases like Davis and Hill, and if it's not going to use original habeas to resolve disputes like the Johnson retroactivity issue, then original habeas really is a historical relic--and the constitutional questions Justice Souter worried about might finally have to be confronted.

IV.  Using Original Habeas to Solve the Problem

If you're still reading, hopefully I've convinced you by now that the Court should grant an original writ of habeas corpus to resolve the Johnson retroactivity issue (or, at the very least, should set the matter for full briefing and argument). There's at least one other pending original application raising the same question, but what makes Butler so attractive is the sentencing issue--because he has already served 10 years, he's entitled to outright release if Johnson is enforceable through a second-or-successive petition, meaning that the Court could simply grant habeas relief and be done. But should the Court do more than just grant the writ? Briefly, let me sketch out two further steps the Court can take--and then explain why, in my view, one is clearly better than the other:

A.  Hold that Johnson is Retroactive

Beyond simply granting the writ in Butler's case (which would leave other cases unsettled), the easiest way out, which would take about a paragraph, would be to expressly hold that Johnson is a "substantive" rule under Teague, and to therefore "ma[k]e" it retroactively enforceable in second-or-successive petitions under AEDPA. Such a ruling would then allow prisoners in the Fifth, Tenth, and Eleventh Circuits to obtain relief--including resentencing and, in cases like Butler, outright release. That wouldn't resolve the circuit split; it would simply moot it, since there would no longer be any question over whether the Supreme Court had "made" Johnson retroactive.

B.  Resolve the Circuit Split Over the Meaning of Tyler

The shortcoming of that approach is that, while it would moot the circuit split over Johnson, it wouldn't resolve the cause of the circuit split--i.e., lingering disagreement over the meaning of Justice O'Connor's Tyler concurrence. Thus, to avoid this exact scenario from arising again, the Court could use an original writ in a case like Butler to clarify who has the better of Tyler--the circuits that interpret it liberally to allow retroactive enforcement whenever it is sufficiently clear that a new rule is substantive, or the circuits that interpret it narrowly to require the Supreme Court to specifically say that a new rule is substantive. I have my own views on how the Justices should answer that question (both on the merits and to spare them from having to take pointless follow-on cases after each new rule is announced). But however this question is resolved, it should be clear that settling it in the context of Johnson will have a salutary effect for future litigation. 

*                              *                              *

In a paper I wrote in 2011, I argued that there's actually a value in preserving the obscurity of the Supreme Court's original habeas jurisdiction--and that, if original writs became common, they'd lose their utility as a safety valve, since Congress would presumably also think to take away that authority as part of future jurisdiction-stripping initiatives. But there's a difference between elusive remedies and illusory ones. For two decades, we have labored under the fiction that AEDPA's gatekeeper provisions don't raise serious constitutional problems entirely because of this safety valve. If, as a result of disuse, it turns out that the safety valve is sealed shut, then we can no longer dodge those constitutional questions. Thus, although we may be in the midst of a perfect storm for retroactivity, a case like Butler may actually be the perfect vehicle for the Justices to remind themselves about their original habeas authority--and, in the process, to issue an opinion that dramatically reduces the need for such relief in future retroactivity cases.

Posted by Steve Vladeck on November 16, 2015 at 10:54 AM in Civil Procedure, Constitutional thoughts, Criminal Law, Steve Vladeck | Permalink | Comments (16)

Thursday, November 12, 2015

A monkey, an animal rights organization and a primatologist walk into a federal court

Thus begins the argument section of the motion to dismiss in the copyright infringement lawsuit filed on behalf of a crested macaque whose "selfies" (the macaque pressed the shutter of a camera he pulled away from a photographer) were published by the camera owner. The motion argues both lack of standing and failure to state a claim, both based on the argument that copyright protections do not extend to non-human animals. As I argued in my prior post, I believe that under Lexmark the proper basis for dismissing is failure to state a claim.

I confess that, while I typically don't like this type of jokey writing move, it somehow works here.

Posted by Howard Wasserman on November 12, 2015 at 03:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Thursday, November 05, 2015

Shapiro argument and the future of Bell v. Hood

Josh gave his thoughts having watched the argument in Shapiro v. McManus. My SCOTUSBlog recap--alas, based only on the transcript--has now posted. (Obviously, I agree with Josh that video (or at least audio) should be made available immediately). I am especially looking forward to hearing Justice Scalia say "Wow" and "It's extraterrestrial."

Let me add one additional point. There was some discussion in the case about Bell v. Hood, which stands for the proposition that a federal claim that is "wholly insubstantial" does not arise under federal law. Bell is an anomaly, an unwarranted and rarely used exception to the general (and correct) rule that failure to state a claim does not deprive a court of jurisdiction. It remains as an unfortunate barrier to a clean merits-jurisdiction line. SCOTUS had held in several cases pre-1976 (the date of enactment of the current three-judge court statute) that a single judge can dismiss an insubstantial claim. Several questions and comments from the bench suggested that those cases incorporated Bell, making the single-judge insubstantiality dismissal a jurisdictional one.

At the same time, Justice Scalia raised the possibility during the argument that those pre-1976 cases should be overruled, narrowing the situations in which the single judge can refuse to refer the case for appointment of the three-judge court (presumably to the non-satisfaction of § 2284(a)). If so, is there any chance that the Court would take Bell with it? I hope so, but it does not appear likely. The Court has largely ignored or minimized Bell in most of its recent merits-not-jurisdiction cases, without taking the time to overrule it. On the other hand, Justice Kagan offered several comments/questions indicating that she is very comfortable with Bell and the idea that some "completely ridiculous" claims can be dismissed on jurisdictional grounds, even if the analysis looks "kind of mertis-y."

Posted by Howard Wasserman on November 5, 2015 at 01:34 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, November 04, 2015

Top Ten Thoughts on Visiting the U.S. Supreme Court Today to Hear Shapiro v. McManus (and One Bonus Prediction On Its Outcome!)

I had the good fortune and privilege of attending oral arguments this morning at the U.S. Supreme Court.  I was there in particular to listen to the argument in Shapiro v. McManus, an election law dispute that asks whether a single district judge can dismiss a redistricting case instead of referring it to a three-judge district court. (Howard previewed the case here). 

I co-authored (with Michael Solimine of U. of Cincinnati) an amicus brief in the case, which stemmed from two of my articles on election law and procedure.  It was fun to sit in on the oral argument given that I knew so much about the case. 

 The last time I visited the Court, I was in law school, so I had a much different experience this time as a lawyer and law professor.  Here are some observations:

1.  I was glad someone had told me to bring a quarter!  Cell phones and other electronic devices are not allowed in the courtroom, and there are lockers down the hallway for such items.  But the lockers cost 25 cents.  Thankfully I was prepared! 

2.  The formalities of visiting the Court did not seem as…formal as the first time I went.  I expected the decorum, nobility, and seriousness of the Court’s proceedings.  Maybe this is simply because I now have much more experience going to courtrooms!

3.  Once the justices take the bench, the Chief Justice admits new members to the Supreme Court bar.  I had looked into doing this, but as my bar license is currently inactive, I am not eligible.  Still, this process, with the Chief Justice formally admitting each person, is surely a nice highlight of these lawyers’ careers, and if I ever go back to active status it is something I would like to do. 

4.  The written transcript of oral argument really does not do justice, in my opinion, to the dynamics of the courtroom.  In my view, virtually all of the justices seemed to agree with the petitioner and were quite skeptical of the state’s argument in Shapiro, yet I do not think the cold transcript adequately reflects this reality.  Facial expressions, the tone of the questioning, and the nonverbal reactions all paint a much different picture of what was going on in the courtroom. 

5.  My last point makes me an even bigger proponent of allowing video recording of the Court’s oral arguments.  There is no justifiable reason to shroud the Court in secrecy by allowing only written transcripts and audio recordings of the proceedings.  When Justice Alito visited the University of Kentucky a few weeks ago, he remarked that allowing cameras in the courtroom would lead lawyers to perform for the cameras and not the justices, and that late-night TV would make a mockery of the arguments.  This is wholly unpersuasive.  The lawyers want to win their case, not play to a TV audience, and in any event they can make their pitch to the media afterward if they want to; late-night TV already spoofs oral argument.  Being there in person – or seeing the video of the proceeding – would help Americans understand this branch of government.  The Court champions transparency (through disclosure) as the best cure for the problems of campaign financing – why won’t it apply that same standard of transparency to itself?  In an era in which only 30% of Americans vote, shouldn’t we do all we can to encourage civic education?

6.  Recognizing when to end your argument and sit down – when you have more time left – is probably one of the hardest things a lawyer must do.  Michael Kimberly, arguing for the petitioner, did this beautifully.  It was clear from the tenor of the argument that most of the justices agreed with his points.  In fact, several, like Justice Scalia, seemed to want to go further and rule that a single judge may never dismiss a redistricting case without sending it to a three-judge court, a position Mr. Kimberly did not advocate (he agreed that he would win if the Court went that route but noted that it did not have to reach that far in this case, as he was advocating for a “wholly insubstantial” standard instead, meaning that a single judge may dismiss the case only if the claim is "wholly insubstantial").  When, after about 19 minutes of mostly-friendly questioning, it seemed clear that he had answered the justices questions to their satisfaction, he chose to cede the remainder of his time.   At that point, there was nothing left to say, and going further could have only done damage to his case.  Yet many lawyers would not be able to resist the temptation to press further points or try to shore up the argument even more.  Sitting down is often the better strategy, difficult as that might be. 

7.  It is never a good idea to make new arguments at oral argument that were not addressed in the briefs. Justice Scalia questioned Mr. Sullivan, Maryland’s lawyer, about why he did not make an argument about certain prior cases in his brief, and Mr. Sullivan first stammered before retorting “Well, you know, I’m trying to provide value now in addition to what we had in the brief.” (Mr. Sullivan’s stammering is not reflected in the oral argument transcript.)  Some observers suggested that Mr. Sullivan gamely parried the question.  I disagree.  With all due respect, I think Mr. Sullivan hurt his case with a comment that seemed almost glib.  Again, this was my initial impression while sitting in the courtroom.  And perhaps there was no better way for Mr. Sullivan to respond.  Still, this exchange shows the immense importance of strong briefing.  It’s also probably a bad idea to bring up “extraterrestrials” unless you are sure that all justices know to what you are referring—this reference by Mr. Sullivan ate up several minutes as Justice Scalia questioned what he meant.

8.  It is always better to make your best argument up front and not rely on the justices to do it for you – something I try to teach our moot court students.  About midway through Maryland’s argument, Justice Breyer finally highlighted what should have been the state’s key point: requiring a three-judge court will increase the Supreme Court’s mandatory review docket, as these decisions skip the court of appeals stage and are directly appealable to the Court.  Chief Justice Roberts then picked up on this point.  It would have been much better for Mr. Sullivan to lead off with this idea from the outset. 

9.  All lawyers should go visit the Court at some point.  It truly is an invaluable experience.

10.  I love D.C.  You just never know what – or who – you are going to see.  As I left the Court and walked by the U.S. Capitol, I happened to run into a press conference featuring Senator (and presidential candidate) Bernie Sanders.  I then stumbled upon a monument to Senator Robert Taft (William Howard Taft’s son), which I did not know existed.  And I had about 30 minutes to kill, so I went to Ford’s Theater, something I never did during my 9 years living in D.C. but something I have wanted to do even more  after recently reading the book Manhunt.  Next time you are in D.C. try to carve out a little bit of time to do something interesting – the city is a great place to explore! 

11.  And here is a bonus thought: although it is never a good idea to read the tea leaves, I predict a reversal in Shapiro, quite likely 9-0.

Posted by Josh Douglas on November 4, 2015 at 05:40 PM in Civil Procedure, Law and Politics | Permalink | Comments (2)

Argument in Shapiro v. McManus

SCOTUS hears argument today in Shapiro v. McManus, considering when a single district judge can dismiss under FRCP 12(b)(6) a case that is supposed to be decided by a three-judge district court. My SCOTUSBlog preview posted two weeks ago; I will have comments on the argument later today or tomorrow.

Posted by Howard Wasserman on November 4, 2015 at 08:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, November 02, 2015

Vanderbilt Law Review Roundtable: Spokeo v. Robins

I had the pleasure of participating in the new Vanderbilt Law Review En Banc Supreme Court Roundtable on Spokeo, Inc. v. Robins (being argued today). My essay argues for William Fletcher's conception of standing-as-merits and why that approach is especially appropriate in this type of statutory case. The Roundtable features contributions from Heather Elliot (Alabama), Andy Hessick (Utah), Jonathan Siegel (George Washington), Max Stearns (Maryland), and Joan Steinman (Chicago-Kent).

Posted by Howard Wasserman on November 2, 2015 at 08:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, October 28, 2015

CFP: Second Annual Civil Procedure Workshop

The following is from the organizers of the second annual Civil Procedure Workshop.

We are excited to announce the second annual Civil Procedure Workshop, to be cohosted by the University of Washington School of Law, Seattle University School of Law, and the University of Arizona James E. Rogers College of Law. The Workshop will be held at the University of Washington in Seattle on July 14-15, 2016.

The Workshop gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our goal is for the Workshop to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary. Confirmed participants for 2016 include Robert Bone, Sergio Campos, David Engstrom, Samuel Issacharoff, Alexandra Lahav, Alexander Reinert, the Hon. Lee Rosenthal, Joanna Schwartz, and Adam Steinman.

We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by January 15, 2016. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by March 1, 2016. Please send all submissions or related questions to Liz Porter.

The Workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

Feel free to contact us with questions.

Liz Porter (UW), egporter@uw.edu

Brooke Coleman (Seattle U), colemanb@seattleu.edu

Dave Marcus (Arizona), dmarcus@email.arizona.edu

 

 

Posted by Howard Wasserman on October 28, 2015 at 01:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Sunday, October 25, 2015

"No, no, thank you for that [awful] presentation"

I want to pick up on two themes from Paul's post on excessive flattering of questioners during job and paper talks.

I recall a SCOTUS case in which the lawyer responded to a question from Justice Scalia by saying, "that's an excellent question," to which Scalia responded (no doubt sarcastically--I never heard the audio), "Thank you very much." From the moment I read that, I made an effort never to use that phrase in responding to questions in talks or in class. I also made an effort to get my students never to use it in class, moot courts, etc. (usually by responding a la Scalia when they do it in practices). I agree with Paul that this is largely a tic, as well as a way to fill dead air while thinking of an answer. It also can come across as obsequious or arrogant or both, depending on the context.*

* For what it's worth, I doubt that "thank you for the question" is a noticeable improvement. There is no reason to thank me for playing my expected role in this common scholarly exercise.

Second, the flip side to the "that's an excellent question" response is the question that begins with 30 seconds of effusive praise for the paper and the talk and the presenter's brilliance and insight, whether warranted or not. This bears the hallmarks of what Paul was talking about, from the other side--a tic, verbal filler, and an overdone effort to be supportive or civil. Dan tried to eliminate such filler at PrawfsFest! under his "no foreplay" rule--commenters must get right into their comments. Yet many colleagues (here and elsewhere) resist such a rule, suggesting that taking out this filler reflects incivility or excess negativity--that in not starting off by telling the presenter how great her paper is, we turn into the worst stereotype of the University of Chicago, where faculty members do nothing but tear down papers and their authors.

Posted by Howard Wasserman on October 25, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (8)

Tuesday, October 20, 2015

Is It Unconstitutional to Apply Erie to D.C. Law?

Last December, I wrote a post about the strangeness that arises from the applicability of Erie (pursuant to which federal courts in diversity cases apply the state substantive law dictated by the choice-of-law rules in the state in which they sit) to the District of Columbia. Although it's strange to apply Erie in the federal territories at all, it's especially strange in D.C., which is the only one of the six federal territories in which the court receiving deference under Erie was created (and is controlled) by Congress, as opposed to the territorial legislature. Thus, as my post last December noted, when they follow Erie, the Article III D.C. district court and D.C. Circuit are necessarily deferring to an Article I court's interpretation of federal law (to wit, the D.C. Code). And although this result is not remotely compelled by the Rules of Decision Act, the (Article III) D.C. courts have nevertheless chosen to adopt it for purposes of convenience and litigation efficiency, if nothing else. 

The more I think about this issue, the more I wonder if this approach isn't just "strange," but also one that raises constitutional concerns. After all, it's well settled that Congress may not give non-Article III actors (whether non-Article III judges or Article I or Article II entities) supervisory authority over Article III courts, but the application of Erie to D.C. at least theoretically gives the D.C. Court of Appeals a supervisory power over some federal law within the District vis-a-vis their Article III brethren, even if it lacks authority over the latter's decisions. Thus, could Congress really compel a lower Article III court to follow an Article I court's interpretation of federal law (whether in general or as limited to the "local" federal law of D.C.)? This surely goes much further than Chevron, since, among other things, there's no room under Erie to set aside the Article I court's unreasonable interpretations of ambiguous "local" law...

But even if you don't find that argument compelling, what if the Supreme Court were ever presented with a question of D.C. local law? Wouldn't there be a serious problem under Article III with following Erie in such a case, given that the Supreme Court would, insofar as it applied Erie to the District of Columbia, necessarily be deferring to an inferior Article I federal court on a question of federal law (as compared to deferring to an independent state supreme court on a question of state law)? Although I'm somewhat ambivalent about the constitutional problem with applying Erie in the Article III D.C. lower courts, the constitutional problem with applying it in the Supreme Court seems manifest.

To be sure, an obvious rejoinder is that, unlike the D.C. district court and D.C. Circuit, the Supreme Court has never chosen to follow Erie in such a case, and so the constitutional question hasn't arisen. And in an appropriate future case, the Supreme Court could certainly choose not to follow Erie then, too. So if the constitutional problem only arises at the Supreme Court level (and again, I'm still not sure it's that limited), it can easily be avoided by the Justices if and when it presents itself.

But insofar as a refusal on the part of the Supreme Court to be bound by D.C. law as interpreted by the D.C. Court of Appeals would solve the constitutional problem, it seems to me that it also undermines the pragmatic justification the Article III D.C. lower courts have advanced for adopting Erie, since it suggests that, in fact, there will be cases in which the Article III courts will be constitutionally bound to reach an independent interpretation as to the meaning of D.C. law--and that those cases will come through the very courts voluntarily choosing to defer.

Posted by Steve Vladeck on October 20, 2015 at 03:53 PM in Civil Procedure, Constitutional thoughts, Steve Vladeck | Permalink | Comments (17)

Monday, October 19, 2015

Merits and mootness

In my writing here and elsewhere, I have argued that much of what is labeled as subject-matter jurisdiction, sovereign immunity, and standing are all better understood as being about the merits of a claim rather than Article III adjudicative thresholds. (I discuss standing in a forthcoming essay on next month's arguments in Spokeo v. Robins). And ripeness has somewhat been absorbed into standing. But that I thought the one threshold that might survive and make jurisdictional sense was mootness.

That is, until I listened to last week's arguments in Campbell-Ewald v. Gomez.

The issue is whether a case becomes moot when a defendant makes an offer of judgment that gives the plaintiff everything he asked for in the lawsuit and how that affects his status as representative plaintiff of a still-to-be-certified class. Counsel for Gomez and for the U.S.in support of Gomez both framed their arguments in the difference between a court entering (or even forcing) a final-and-enforceable judgment based on the parties' agreement and a court dismissing an action for want of jurisdiction as moot. The former gives the plaintiff the judicial relief he requested when he filed the lawsuit, just as if the court had decided the merits.

Counsel for the U.S. described the practice of district courts (which I recall following as a clerk): Upon notification of a settlement, the court would enter a consent decree (in a prospective case) or dismiss a damages claim while retaining jurisdiction to enforce the terms of the settlement. No one ever thought to describe this as mootness. Both attorneys explained why what the Justices were talking about in Article III terms as an absence of adversariness could easily (and in some cases, more properly) be recharacterized in merits terms, as the end of a present dispute that gave the defendant an affirmative defense and justified the entry of judgment. When the plaintiff has received everything he asks for, the defendant has a defense against any finding of liability, since the injury (which exists) has been remedied.

This is an unusual case in which to discuss mootness, since the plaintiff was primarily seeking retrospective relief for past harm. Mootness generaly occurs where an ongoing real-world injury has somehow ceased. With retrospective relief, however, the injury already has occurred and the judicial remedy sought is merely compensation for an already-completed injury; it does not cause the injury to cease.

But even with prospective relief, the merits characterization makes more sense. Take, for example, a constitutional challenge to a repealed statute. The plaintiff's rights are no longer being violated and he no longer is being injured by the defendant's conduct, since there is no longer a threat of enforcement. But it makes more sense to say the defendant wins on the merits because the plaintiff's rights are no longer being violated and the defendant is no longer subject to liability, just as it makes more sense (under the Fletcher model) to say the defendant wins on the merits because it cannot be liable when the plaintiff's rights were never violated in the first place.

I have to give this some more thought, especially once the Court decides the case.

Posted by Howard Wasserman on October 19, 2015 at 08:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Thursday, October 08, 2015

It's going to get pricey

Michigan has agreed to pay $1.9 million in attorneys fees to the plaintiffs who successfully challenged the state's same-sex marriage ban. That is in the same ballpark as Wisconsin paying $ 1.055 million in fees (that case only went to the court of appeals, not to SCOTUS).

Kim Davis must know that her stunt is going to get very expensive very quickly.

Posted by Howard Wasserman on October 8, 2015 at 03:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, October 06, 2015

Covering a colleague's class, or The Substitute

This morning, for the first time since I began teaching fifteen years ago, I covered a colleague's class. This presented some interesting issues, both substantively and stylistically, as to how much the class should sound like me and how much it should sound like my colleague?

Substantively, it presented the challenge of getting up to speed on the content. While I teach the same subject, I do not teach the same cases and my overall approach to the material is very different. I teach certain concepts differently or with different emphasis and in a different way. So I know I did not (and could not) run the class with the same confidence in the questions I ask, the points I make, and (certainly) my responses to their questions. There also was the question of base knowledge to be expected from the students. I cover material in a different order than my colleague. So I know what the class already knows (or should know) by the time I reach this topic in my own class; I was less sure of what these guys knew.

Stylistically, one big question was whether to use my colleague's PowerPoint slides, since that is both what she wants to do and what the students expect. I chose not to; I would not know how to interact with them, so they would have been more of a distraction than a help. The students were great about it--probably about 1/4-1/3 volunteered at least once. But it was like being a substitute teacher--everyone not knowing quite what to do with me, what to expect from the class, or what they were going to learn. I tried to make the class "mine," to the extent that is possible with a group of students who signed up for a different style of class.

Fortunately, no one threw spit balls.

Posted by Howard Wasserman on October 6, 2015 at 12:18 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, September 28, 2015

Monkeying around with copyright law

PETA has filed a copyright infringement action on behalf of a crested macaque; the defendant is a nature photographer who used selfies that the macaque "took" by pressing the shutter button on a camera that he grabbed away from the defendant.

The lawsuit raises an interesting (although I believe easy) question of statutory standing and the zone of interests of the copyright laws--namely, whether a non-human enjoys rights under the statute. This article explains why the answer should be no. The lawsuit is also reminiscent of a 2011 lawsuit that PETA brought against Sea World on behalf of five Orcas, claiming a violation of the Thirteenth Amendment. The court dismissed for lack of standing, concluding that the Thirteenth Amendment only protected human beings, although I argued it would have been more appropriate to dismiss on the merits for failure to state a claim. In the interim, SCOTUS decided in Lexmark International v. Static Control that whether a plaintiff falls within the "zone of interests" of a statute (and we can, I think, expand this to the zone of interests of the applicable substantive law) is properly a merits question. It should follow that, to the extent a macaque does not have rights under the Copyright Act, the complaint should be dismissed on the merits.

One other question: Is this worthwhile as a sample pleading for Civ Pro? While the lawsuit is a loser, and perhaps even frivolous, the complaint is well-drafted, includes a lot of factual detail, and illustrates the form and structure of a federal complaint. Is the content too off-the-wall for these purposes?

Posted by Howard Wasserman on September 28, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)