Thursday, October 13, 2016

JOTWELL: Coleman on Rosenbaum on RICO and class action attorneys

The new Courts Law Essay comes from Brooke Coleman (Seattle), reviewing Briana Rosenbaum, The RICO Trend in Class Action Warfare (Iowa L. Rev.) (forthcoming), exploring the use of RICO actions against class-action plaintiffs' lawyers.

Posted by Howard Wasserman on October 13, 2016 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, October 12, 2016

Your Honor, and May It Please Mitch McConnell

The race is tight for control of the Senate. According to the statisticians at 538, six states are experiencing (to use the technical term) “super close” elections, and those same races very well may determine which party exercises the exceedingly important powers wielded by this body of government. If the vote totals on Election Day are tight enough to invite disputes over the true winner of a Senate race, the question becomes: who should adjudicate those contests? If you thought to yourself “Mitch McConnell, Bernie Sanders, Elizabeth Warren, Ted Cruz, and their colleagues in the Senate; they should do it,” then you are in good company: the Founders agree with you

As Article I, Section 5 of the United States Constitution reads, “[e]ach House shall be the judge of the elections, returns and qualifications of its own members.” What this means is that the Senators are charged with judging election contests over disputed Senate seats, while the Representatives are charged with judging election contests over disputed House seats. And judge they do: in this context, each House examines witnesses, manages discovery, and inspects ballots, among other tasks, all pursuant to a set of procedures (informal in the case of the Senate, and set by statute for the House). At the conclusion of the proceedings, each House publishes, through a committee, something that looks much like a judicial opinion. This report recommends a particular resolution of the claims, and if the full House agrees with that recommendation, it passes a resolution so ordering. As I explain in Judging Congressional Elections, the Houses of Congress already have resolved hundreds of contested elections in this fashion.

The arrangement may seem strange, but it has a long historical pedigree, and nearly every state has adopted a similar approach (that is, nearly every state also has vested power to judge state legislative elections in the legislative body itself). Still, a host of difficult questions remains. Among them is whether—and how—courts may also adjudicate these same disputes. Let’s take Pennsylvania, where the race between challenger Katie McGinty and incumbent Pat Toomey appears exceedingly close. Can the Supreme Court of Pennsylvania weigh in if either candidate disputes the results on Election Day? Or what about in Nevada, where the candidates are locked in a tight race over Harry Reid’s seat—can the state courts offer guidance if November 8 produces no clear winner? The answers largely depend on constitutional questions surrounding Article I, Section 5, and the resolution of those questions is, to put it lightly, unsettled.

As I explain in my article, which is forthcoming in the Georgia Law Review, a combination of factors has produced an interpretative vacuum in response to the Article I, Section 5 mandate. Although we have authorities that normally are able to clarify questions of federal law—including federal court decisions and congressional legislation—such authorities are almost entirely absent in this area. The result is a chaotic set of ad hoc, state-based interpretations of the mandate that vary drastically by jurisdiction. As an example, take the hypotheticals above. The Pennsylvania courts likely could adjudicate a dispute between McGinty and Toomey. In Nevada, however, the state courts almost certainly could not adjudicate a dispute between Joe Heck and Catherine Cortez Masto. The legal reasoning behind each conclusion is complicated (and addressed at length in my article), but the upshot is simple. Due to deep uncertainty surrounding the law of Article I, Section 5, states like Nevada and Pennsylvania have reached different conclusions about its meaning, and those competing interpretations are what govern in the respective jurisdictions.

This uncertainty matters for many reasons. At the outset, even the appearance of manipulation of the rules can undermine an election’s legitimacy, and nothing triggers the appearance (and perhaps, at times, the reality) of manipulation quite like legal uncertainty. The uncertainty also matters because it has resulted in suboptimal forms of procedure governing contested elections. This is particularly problematic in states that have concluded that Article I, Section 5 flatly prohibits judicial proceedings of any sort. In these jurisdictions, it’s the Senate (or House), or bust.

This area of the law is one of the most complicated I’ve encountered, and there remains a lot to unpack. Ultimately, however, I think Congress owes it to the electorate to take the first step toward reform by clarifying its own position on the principal set of questions: that is, whether, and in what circumstances, courts may hear these disputes. Each House has the power to make these procedural decisions precisely because it is the “judge” of its own elections—or, at least, that’s my conclusion regarding how best to understand the Article I, Section 5 mandate. In any event, hopefully more eyes will turn toward this underanalyzed provision of the Constitution. It’s interesting; it’s important; and, like so much in election law, it’s best analyzed and addressed before a close election turns each point of uncertainty into a partisan battle.

Posted by Lisa Manheim on October 12, 2016 at 10:40 PM in Civil Procedure, Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Monday, October 10, 2016

Florida Democrats win TRO extending voter registration

A federal judge in the Northern District of Florida has issued a TRO requiring Florida to extend the deadline for voter registration in the wake of Hurricane Matthew and the evacuation of thousands of would-be registrants. The court found that the refusal to extend the deadline violated the right to vote, applying strict scrutiny because the non-extension worked a complete denial of the right to vote. The TRO extends the deadline to Wednesday, when there will be a hearing on the motion for preliminary injunction. The court also quickly disposed of some preliminary standing issues. Best of all, the opinion uses the word "poppycock."

I would be curious to hear from a panel of election-law experts whether the constitutional analysis here is correct.

Posted by Howard Wasserman on October 10, 2016 at 08:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, October 09, 2016

Trump Sunlight Campaign

Now on GoFundMe (gotta love the picture of Justice Brandeis), to raise money to cover the legal fees and judgment for anyone leaking Apprentice footage showing Trump making further sexist, racist, etc. statements. Producers and staffers on the show signed non-disclosure agreements, apparently with a liquidated damages clause of $ 5 million for breach (any guesses on whether that might be deemed unconscionable?). Apprentice Exec Produce Mark Burnett, who is a Trump supporter, has vowed to sue anyone who leaks footage.

During the Kim Davis insanity in Kentucky, people attempted a similar campaign to pay Davis's contempt fines; the site shut it down, given the obvious moral hazard concerns. It will be interesting to see what GoFundMe does with this one, as raising money to pay someone's legal judgment would seem to raise the same moral-hazard concerns. (The likelihood political-viewpoint bias here is high). It might be different if the campaign was only to pay attorney's fees and costs or to provide a bounty for the leaker. But that would not make a difference as an incentive--the disincentive is not the cost of the lawsuit, it is the judgment at the end.

Anyway, the site had raised a little under $ 2000 in two hours. So I do not expect this to be a big money-maker or game-changer.

Posted by Howard Wasserman on October 9, 2016 at 07:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, October 02, 2016

Newby and the Duty to Defend Indepedent Agencies and Commissions in Court

I am delighted to have the opportunity to participate in the Prawfsblawg election symposium! For my first contribution, I want to discuss an important issue implicated by a recent election-related case that extends far beyond election law.

In League of Women Voters of the United States v. Newby, the D.C. Circuit (in a 2-1 ruling) overturned the decision of the U.S. Election Assistance Commission's ("EAC") Executive Director, Brian Newby, to revise the state-specific instructions accompanying the federal voter registration form. The revisions would have required applicants from Georgia, Kansas, and Alabama to provide documentary proof of citizenship, such as a copy of a birth certificate, passport, or naturalization papers, to use the federal form to register to vote. Those states had requested changes to the instructions because their laws limit the right to vote to U.S. citizens and generally require people to provide such proof of citizenship to register.

I will discuss the merits of the D.C. Circuit's ruling--with which I disagree--in a separate post later this week. Here, I want to discuss a remarkable aspect of the case: the Obama Administration's Justice Department ("DOJ") completely refused to defend Newby's actions in court.  Although DOJ purported to represent both the Commission -- which is an independent, bipartisan agency -- and Newby in his official capacity and was filing briefs on behalf of both parties, it expressly disavowed the legality of Newby's actions and joined in the plaintiffs' request for a preliminary injunction to prevent the changes to the instructions he approved on the EAC's behalf from taking effect.

It's not as if the Commission itself subsequently took any action to disapprove or nullify Newby's actions. To the contrary, at least one of the three subsequently appointed Commissioners agreed with his decision to update the instructions. Nevertheless, despite the fact that nonfrivolous, colorable arguments could be made in defense of Newby's actions--indeed, some strong arguments may be made in support of them--DOJ completely refused to assert them in the briefs it filed for Newby and the Commission. It sought to nullify an official final action of an independent agency without any adversarial presentation of the issues, presentation of contrary authorities, or consideration of alternate remedies.

The district court allowed Kansas Secretary of State Kris Kobach and the Public Interest Legal Foundation to intervene to defend the revised instructions. But DOJ's actions nevertheless remain troubling. As an initial matter, there is something disturbing about allowing DOJ to file briefs on someone's behalf--even if they are party to a case solely in an "official capacity"--without that person's consent, especially when those briefs expressly advocate against that person's legal interests and affirmatively seek relief against that person.

Putting aside that issue (which arises largely as a function of which defendants a plaintiff chooses to name), DOJ's authority to refuse to defend against federal lawsuits is perhaps at its apex with regard to purely executive action by executive agencies under the current administration. If the President or his delegates determine that a member of the Executive Branch engaged in wrongdoing, the Government surely is not required to take that person's side and defend him or her. This power is likely just as broad with regard to executive actions that occurred in earlier administrations, though special care must be taken to ensure that Presidents and agency heads do not use essentially collusive litigation with ideologically aligned groups to nullify the actions of their predecessors when they would be unable to do so through the usual legislative or administrative process. See generally Michael T. Morley, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases, 16 U. Pa. J. Const. L. 637 (2014).

More complex problems arise when DOJ is required to defend the legal interests of entities outside the Executive Branch, which may conflict with those of the President. For example, Congress may enact laws that the President believes are unconstitutional, particularly on the grounds that they infringe upon purported Executive prerogatives. This summer, in Helman v. Department of Veterans Affairs, Attorney General Loretta Lynch notified the Speaker of the House and the U.S. Court of Appeals for the Federal Circuit that DOJ would not defend the constitutionality of provisions of the Veterans Access, Choice, and Accountability Act ("VACAA") that Congress had enacted two years earlier to limit appellate rights of senior career executives who are fired from the Department of Veterans Affairs. (Full disclosure: I represent a coalition of 12 military and veterans groups, including the VFW, AMVETS, Reserve Officers Association, and Marine Corps League that were permitted to intervene to defend the law's validity and advocate more narrowly tailored remedies for any constitutional concerns that may exist). In cases where DOJ refuses to defend a statute's validity out of concern for the President's Executive power, it is not really representing the interests of the Government as a whole, but rather the Executive Branch in particular, potentially at the expense of the independent legal interests and prerogatives of the Legislative Branch.  

Cases such as Newby present similar concerns.  A President may disagree with the desirability, legality, or even constitutionality of an independent agency's or commission's actions or determinations.  If the President can undermine or even nullify those actions by simply preventing DOJ from defending them in court, then the agency or commission is independent in name only.  To be truly independent, an entity must have independent litigating authority.  While DOJ has tremendous litigation experiences and resources for an independent agency or commission to call upon if it so chooses, it should not be compelled to be represented in court by attorneys acting under an institutional conflict of interest.  One solution is to allow the entity to either represent itself or retain outside counsel of its choice.  Another possibility is to be flexible in allowing outside intervention and applying Article III's rules concerning standing.  Finally, Congress could authorize the creation of a small entity, akin to either an Office of Independent Counsel or a public defender's office, to represent the interests of governmental agencies or officials outside the Executive Branch whose legal (or potentially even political) interests clash with those of the President.  In any event, if DOJ is going to undertake to represent the Government or an independent agency in a case, it reasonably should be expected to present the court with colorable, nonfrivolous arguments in favor of congressional or independent agency actions or enactments. 

Posted by Michael T. Morley on October 2, 2016 at 02:07 AM in Civil Procedure, Constitutional thoughts, Current Affairs | Permalink | Comments (4)

Tuesday, September 13, 2016

House subcommittee hearing on complete diversity

The House Judiciary Committee/Subcommittee on the Constitution and Civil Justice held a hearing (includes video) Tuesday on whether to eliminate the requirement of complete diversity in the basic jurisdiction statute. Witnesses were attorney Charles Cooper, Joanna Shepherd (Emory), and Ronald Welch (Dean, Baltimore). (H/T: Jim Pfander and Patricia Moore). Both Cooper and Shepherd argued for adopting minimal diversity as the statutory standard, Cooper for constitutional reasons (that do not hold up to the prevailing doctrine or theory) and Shepherd because it would have only a minimal effect on the federal docket that could be minimized by filling judicial vacancies or ratcheting up the amount-in-controversy requirement (which has not moved in more than 20 years).

The paradox of expanding the jurisdiction of the federal courts in this way (largely for defendants seeking to remove) is that the goal is to take advantage of the merits-based and procedural narrowing of access to the federal courts (via Twiqbal, limits on discovery, etc.) against the plaintiffs. In other, moving to minimal diversity would open the courthouse doors in order to slam them shut.

The proposal will not go anywhere, not least of all because federal district judges, who were not heard from here, hate diversity jurisdiction. Nevertheless, it is interesting to see how the shifting political positions with respect to federal jurisdiction, particularly in these state-law cases, in which the supposed Republican commitment to federalism would require deference to state power and state institutions.

Two additional points, as I think of them. First, Cooper's testimony recasts diversity as a measure for protecting interstate commerce generally, as opposed to protecting outsiders who cross state lines. So recast, diversity becomes about anti-corporate bias writ large, since corporations are the ones seeking to "be" everywhere at once. Second, I wonder what Cooper would make of the Hulk Hogan/Gawker case, where the big conservative money was Peter Thiel and Hogan, but minimal diversity would have allowed Gawker to remove and likely to win before a smarter federal judge more willing to respect the First Amendment.

Posted by Howard Wasserman on September 13, 2016 at 04:05 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, September 09, 2016

JOTWELL: Thornburg on Gilles on class actions and low-income litigants

The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Myriam Gilles' Class Warafre: The Disappearance of Low-Income Litigants from the Civil Docket (Emory L.J.), which explores the disparate effects of restrictions on aggregate litigation on low-income litigants.

Posted by Howard Wasserman on September 9, 2016 at 10:10 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 06, 2016

Too politically charged?

The Second Circuit last week decided Sokolow v. PLO, holding that a federal court in the United States lacked personal jurisdiction over the PLO and Palestinian Authority in an action brought by a number of U.S. citizens and their family members, arising from some terrorist attacks in Israel. The case contains good analysis of both the new general-jurisdiction analysis after Daimler and the new effects test after Walden.

This would be the type of case I would use for a subject essay on personal jurisdiction in Civ Pro. But is the underlying subject matter too hot and too controversial? Will people who feel strongly about either (or both) sides of this debate find the subject too painful, hurtful, etc.? Will I be seen as insensitive to one (or both sides)? Is this likely to get a reaction similar to the First Amendment exam question about whether Michael Brown's stepfather could be successfully prosecuted for incitement?

As I think I have written before, I like using real-world cases/problems for exams and essays. And I like questions that force students to look past their political preferences to see and explore the legal issues in a case--one's political views about Israel and the Israel-Palestine conflict should be irrelevant to whether the PLO is "essentially at home" in New York. But in this case, am I asking for trouble?

Posted by Howard Wasserman on September 6, 2016 at 09:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (9)

Tuesday, August 16, 2016

A call to action for civil justice reform

The following is by Linda Sandstrom Simard (Suffolk Law), who was a member of the Civil Justice Improvements Committee discussed in the post. These comments represent her own thoughts and opinions, not those of the Committee.

This summer the Conference of Chief Justices (“CCJ”), an association comprised of the chief justices of all of the state supreme courts, strongly endorsed the Call to Action and Recommendations of the Civil Justice Improvements Committee. Talk of civil justice reform is ubiquitous, but the CCJ endorsement of these Recommendations offers more than a glimmer of hope that key stakeholders in state courts around the country are ready to take serious action. The Report offers a comprehensive view of civil litigation in state courts and concludes that our legal system is too often not living up to the promise of a just, speedy, and inexpensive resolution of civil cases. The Report makes a series of evidence-based recommendations that seek to protect access to justice and restore faith in the civil justice system.  

Following is a brief description of the Report and my thoughts on the likelihood that the Report will engender reform.

In 2013, the CCJ established the Civil Justice Improvements Committee. The Committee, comprised of state court leaders from the bench, bar and academia, undertook two years of intensive deliberations, reviewing data from pilot projects around the country, implemented rule changes, empirical research, and stakeholder input. Based upon this research, the Committee found that: (1) over the last several decades there has been a dramatic rise in self represented litigants, with more 75% of civil cases involving at least one party who is self-represented; (2) high-value tort and commercial contract disputes comprise a small proportion of civil caseloads; (3) the vast majority of civil cases are debt collection, landlord/tenant, mortgage foreclosures, and small claims cases involving relatively modest monetary claims; (4) in many instances, the cost of litigating a case through trial exceeds the monetary value of the case; (5) the vast majority of civil cases are disposed of without adjudication on the merits; and (6) some litigants with meritorious claims and defenses are effectively denied access to justice because they cannot afford to engage in litigation, and those litigants with adequate resources frequently opt for private alternative dispute resolution. If action is not taken, these findings suggest that our civil justice system is in serious jeopardy.

The CJI Committee’s Recommendations are premised upon the notion that transsubstantive procedure, or “one size fits all,” is not a sustainable model for the future. Complex cases involving an abundance of disputed issues of law and fact require more procedure than streamlined cases involving few contested issues. The Committee’s Recommendations suggest that courts must manage civil cases by assigning each case to a case management pathway that provides the amount of judicial attention needed to resolve the disputed issues in a just, timely, and cost-effective manner. The responsibility for effective case management must be shouldered by the entire court staff, not just the trial judge, along with cooperative lawyers and parties. Innovative uses of technology are highly encouraged as a means to meet the enhanced demands of “right sized” case management. The Report makes special reference to recommendations that address the unique demands of cases that involve asymmetrical legal expertise. Overall, these Recommendations seek to restore faith in the civil justice system by reducing cost and enhancing fairness and efficiency.

I believe there is reason to be optimistic about these Recommendations. At its core, the CJI Report endorses the concept of proportionality.   Unlike the Federal Rules of Civil Procedure that require judges to make individualized determinations of proportionality for every discovery dispute, the CJI Report identifies procedural pathways that help courts to know which cases are likely to require substantial focused judicial attention and which cases are likely to need less judicial attention.  Since state civil case loads are much larger than their federal counterparts, this modified version of proportionality is pragmatic and efficient.   The Recommendations also recognize the need for flexibility in pathway assignments and encourage courts to reassign cases if presented with reasons why a pathway is inappropriate.   The fact that these Recommendations coincide with the tenor of the recent amendments to the Federal Rules of Civil Procedure suggests that momentum may be growing for significant civil justice reform to take hold.

Of course, this is not to say that change will be easy. Implementing the Recommendations will require substantial judicial resources. Court personnel will need training to meet the enhanced demands of case management, and judicial training programs will be necessary for newly appointed judges as well as experienced judges who may need to change deeply rooted habits. Structural changes may also need to be considered. For example, judicial rotations, short terms of office and frequent elections are likely to complicate case management efforts and hinder efficiency. Finally, cultural change will be crucial. Litigation strategies that rely upon expertise and judgment, as opposed to routine reliance upon boilerplate discovery requests or vague and meaningless discovery responses, will enable lawyers to resolve disputed issues of law and fact efficiently. If we can meet these challenges, I believe implementation of the CJI Recommendations will be a significant step forward for civil justice in this country.  



Posted by Howard Wasserman on August 16, 2016 at 06:30 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Thursday, August 11, 2016

IP, The Constitution, and the Courts - IPSC 2016

IPSC 2016 - Breakout Session III - IP, The Constitution, and the Courts

Lexmark and the Holding Dicta Distinction – Andrew Michaels

A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan

Established Rights, the Takings Clause, and Patent Law – Jason Rantanen

A Free Speech Right to Trademark Protection? – Lisa Ramsey 

Lexmark and the Holding Dicta Distinction – Andrew Michaels

How do we distinguish dicta from holding? This project uses the Federal Circuit's dispute in Lexmark (on remand) over the breadth of the holding in Quanta. As Paul Gugliuzza summarized it for me (I was a late arriver), Michael's argument is that, rather than treating holding/dicta as a binary distinction, we should envision a spectrum of the types of things that courts say in their opinions. 

A spectrum approach to holding v. dicta might helpfully restrict courts. If a holding says "No red convertibles in the park", we might worry about a case where a subsequent court says the opinion requires a holding of no vehicles in the park. They are not unrelated, but perhaps still dicta. Broader statements should have less capacity to bind than narrower holdings.

Jason Rantanen: This is interesting. We often see doctrinal pronouncement in Federal Circuit's case, much broader than necessary to decide the case. We also see language from earlier court opinions that are clearly dicta. Panels in the Federal Circuit nevertheless use it later. I wonder, however, whether we should take into account how the court is using the language. For example, do we bind the court to holding language only, or might they be appealing to the persuasiveness of early reasoning. Your spectrum focuses on text as it appears in the early opinion, but is that too narrow? Can dicta apply? 

Andrew - Sometimes dicta is well considered. But if the court pretends it's a holding, and acts as if it is bound, then they are failing to adjudicate the dispute, and that's a problem.

Paul Gugliuzza - I think the Federal Circuit may engage in some over-use of dicta. Is there a prescriptive payoff to this spectrum? How does the court determine whether to follow the statement or not?

Andrew - The payoff is to require courts to deal more directly with the question of dicta.

Pam Samuelson - I think it's interesting when dicta becomes a holding, over time, and solves a problem. For example, the 3rd Circuit (Whelan) case had a lot of broad dicta that led to a lot of litigation. But the 2d Circuit also included a lot of dicta in Computer Assocs. v. Altai, and the dicta from the that case seems to have knocked out Whelan, and been followed, correctly from Pam's view, in many other circuits.

A subsequent observation from Paul: I think the spectrum provides an interesting descriptive contribution, but I wonder whether, instead of arguing whether a statement is holding or dicta, we'd just end up arguing about (1) where on the spectrum a particular statement falls and (2) whether, given its location on the spectrum, it's binding law or not.


A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan

States are passing laws designed to cabin patent demand letters. We might presume that the Federal Circuit has primacy, but this paper argues the question isn't so cut and dried. The Supreme Court, in a case about attorney malpractice, held that there should be a balance struck between the interests of the federal courts and the state's consumer protection laws.

In a demand letter case, we could ask whether 1) this raises a sufficient issue of federal patent law, and 2) is the law unconstitutional or improper. To understand the second question, look to the Federal Circuit's Globetrotter case. The patent holder threatened to send letters to the defendant's clients. The defendants sued for tortious interference, and Fed. Cir. held that the Patent Act preempted acts that prevent sending demand letters.

We argue there is an odd disconnect in the Federal Circuit's analysis. It's a mistake that makes the Federal Circuit's jurisdiction appear larger than it is.

What is the right policy outcome? Should the Federal Circuit have primacy here? The uniformity issues that inspired the creation of the Federal Circuit doesn't necessarily reach every case that touches on patent law, and perhaps these demand letter cases are outside the needs of the uniformity requirement.

Jake Linford: I'm unclear on where the line is between the stuff the Federal Circuit controls and the stuff it doesn't. It sounds circular to me. Help me understand.

Charles: The Supreme Court doesn't take the view that the Federal Circuit is the final arbiter of all patent issues. The Christensen and Gund cases are examples where the Supreme Court put the responsibility with the Seventh Circuit and Texas courts respectively. Questions of validity of the patent may go to the Federal Circuit, but not claims about a clearly invalid patent.

Lisa Ramsey: One of the reasons this is so important is because people will get different results before a state court than the Federal Circuit. Is that right?

Charles: It's unclear. If we sort some cases for the Federal Circuit and others for the states, we might get divergent outcomes.

Pam Samuelson: How does the issue of validity of the patent get to the Federal Circuit if the case starts in state courts? 

Charles: Removal is the mechanism. 

Pam: If so, then how do we take the ability of the Federal Circuit away? If the Federal Circuit decides whether it has jurisdiction...

Charles: Perhaps the Supreme Court takes cert?

Paul Gugliuzza: What triggers the arising under jurisdiction of the patent clause? Isn't this a matter of patent jurisdiction?

Charles: I'm not sure this meets the Constitutional language...

Paul: The Federal Circuit may rely on Globetrotter, even if I disagree with them. 


Paul Gugliuzza sent me the following summary of the Duan - Sheehan paper, which I find much better than my own:

The paper focuses on state law tort/unfair competition claims against patent holders, such those brought under the new anti-troll statutes adopted in over half the states.  As a substantive matter, Duan and Sheehan criticize the Federal Circuit for giving patent holders nearly absolute immunity from civil claims based on their enforcement behavior, an issue I’ve written about here:  As a matter of institutional policy, they argue that the Federal Circuit is poorly suited to assess the constitutionality of laws regulating patent assertions because the court has embodied various problems theorized to be associated with specialized courts, such as rule-orientedness, a detachment from broad policy concerns, and, perhaps most importantly, capture.  The Federal Circuit’s orientation toward patent holders, they seem to be arguing, would make the court too suspicious of government efforts to regulate patent holders.  Accordingly, they make a doctrinal argument that a challenge to the constitutionality of an anti-troll statute does not “arise under” patent law, as is required for the Federal Circuit to have appellate jurisdiction.  
I’m not sure about this.  I agree that, after the Supreme Court’s 2013 decision in Gunn v. Minton, a civil case challenging patent enforcement behavior does not “arise under” patent law.  The embedded patent law issues would be about the validity or infringement of a particular patent—the sort of case-specific issues that are not sufficient to create “arising under” jurisdiction.  But, in my mind, there’s a distinction between those case-specific issues and those that would be raised by a counterclaim seeking a declaratory judgment that a state anti-troll law is unconstitutional.  I suspect the Federal Circuit would say that THAT claim DOES “arise under” patent law, as it raises the issue of whether federal patent law “preempts” state law.  After the AIA’s so-called Holmes Group fix, that counterclaim would be sufficient to confer jurisdiction on the Federal Circuit.  Perhaps a better argument against Federal Circuit jurisdiction is that the federal issue is not preemption by the Patent Act, but the constitutionality of the statute under the First Amendment.  In that circumstance, the case would arise under federal law, but perhaps not federal PATENT LAW, meaning that the Federal Circuit would NOT have jurisdiction.  (In the article linked above, I argue that the Federal Circuit has erroneously stated that immunity for patent holders is about “preemption” of state law when, in fact, the court is actually drawing on the First Amendment right to petition to the government.)  In any event, this is an interesting and provocative project.  And if you’re still reading at this point, cheers to you for your commendable enthusiasm about patents and procedure!


Established Rights, the Takings Clause, and Patent Law – Jason Rantanen

Recent arguments have suggested that when patent laws change, the takings clause may be implicated. I wanted to understand the analytical reasoning behind the takings claim. Takings case law is a deep, Alice-in-Wonderland rabbit hole.  How does it actually apply to patent law?

1) Jason agrees that patents are property subject to takings clause. (The Federal Circuit said no, in Zoltec, when the government infringes the patent. The Supreme Court, instead, suggested in dicta in the raisin takings case, that patents are the type of property subject to the takings clause)

2) But it's inappropriate to cut and paste takings case law to patent cases. Patents aren't like rights in real property. We know what a takings of a coal mind looks like. Patents aren't the same. In addition, one key right "taken" is the right to use, and the patent holder doesn't lose the right to use, only the right to exclude or alienate. So application of standard takings cases is difficult.

3) The question is instead whether the new law changes or destroys an "established property right" in the patent. That's the taking, if there is one. What's an established property right? The type associated with property, established with a high degree of legal certainty. See, for example, the Penn Central case, where the Supreme Court is looking for certain rights. If we are looking for high degree of legal certainty, many aspects of patent law has changed significantly and frequently over time. Patent has replaced the entire statutory framework at least four times, with only very minor exceptions. For example, when Congress passed the 1836 Patent Act, it replaced the prior act, and also applied the new act to pending litigation. There are many similarities, but this is a new draft. Same with the 1952 Act: "It shall apply to unexpired patents." Damages changed dramatically, as summarized in Halo v. Pulse. Patent owners used to get treble damages automatically, and they don't anymore. Patent holders in 1836 lost that right while claims were pending.

Lisa Ramsey: One argument against cancellation in the Redskins case is takings. 

Jason Rantanen: The Redskins case considers whether the right was valid in the first place, which falls outside of standard takings analysis.

Camilla Hrdy: You may want to consider why the Supreme Court has held a trade secret can be taken. If so, why not a patent?


A Free Speech Right to Trademark Protection? – Lisa Ramsey 

The Federal Circuit recently held that the 2(a) bar against registering disparaging trademarks is unconstitutional. Lisa's paper aims to make two unique contributions to literature on disparaging trademarks and the First Amendment:

  1. Is there a right under international treaties to be able to register a disparaging or scandalous trademark? The answer is no.
  2. A framework of six elements that should be applied in deciding whether laws against offensive trademarks run afoul of free speech rights.

The U.S. is not the only country that bans registration of scandalous marks. Canada even bans use. 

We are members of the Paris Convention, which gives signees the discretion to decide whether to deny a registration on the grounds that a mark is contrary to morality or public order.

Lisa's framework (and 2(a) seems to meet most of these conditions):

  1. Is there government action? Who regulates the expression?
  2. Suppression, punishment, or harm: How does the regulation harm expression? Are there unconstitutional conditions imposed on speakers by denying the benefit? Lisa says no, because the benefit being denied is the right to restrict the speech of others.
  3. Expression. What is being regulated?
  4. Is this individual or government speech? Whose expression is regulated?
  5. No categorical exclusion for the expression: Is the regulation justified because of a categorical exclusion, like obscenity or misleading commercial expression?
  6. Does the regulation fail constitutional scrutiny? Is it content-neutral or content-based? That triggers different levels of scrutiny in the U.S.

What could the Court do if it wants to uphold 2(a)? 1) Say it's not suppression or punishment, and the unconditional conditions doctrine does not apply, under factor 2. 2) It satisfies the scrutiny under 6. 3) Make a "traditional contours" argument like in Eldred and Golan. 

Saurabh Vishnubhakat: Pushing on Lisa's state action analysis, if we apply Shelly v. Kramer broadly (where the Supreme Court refused to allow the enforcement of racially restrictive covenants in court, and which may be limited to its fact), that may suggest everything is potentially a state action?

Rebecca Tushnet: If the Court is taking a "hands off" approach to conflicts between trademarks and the First Amendment, then doesn't hands off mean no registration? Isn't that state action?

Lisa: It is state action.

Rebecca: Then isn't everything state action.

Lisa: There are real benefits to registration that impacts the first amendment. Demand letters work better when backed by a registration. And when you have a registration, it's easier to push claims that some see as questionable, like dilution and merchandising cases.

Charles Duan: When it comes to disparaging marks, those have particularly strong expression value - used to express feelings, and therefore even worse to restrict than other registrations.

Lisa: Exactly!

Pam: Is there an international standard?

Lisa: No, as I read the law, each country has discretion to set up the system it prefers.

Posted by Jake Linford on August 11, 2016 at 08:45 PM in Blogging, Civil Procedure, Constitutional thoughts, First Amendment, Information and Technology, Intellectual Property, International Law, Judicial Process, Property, Science | Permalink | Comments (0)

Tuesday, August 09, 2016

Attorney advertising as jury tampering

While at Amelia Island for SEALS over the weekend, we caught a TV ad for a personal-injury lawyer. The entire ad focused on the legal rule prohibiting juries in personal injury cases (the ad focused on automobile accidents) from learning that the defendant has liability insurance. This is a common law rule in Florida, codified in the Federal Rules. The ad argues that juries are too sympathetic to, and thus unwilling to find against, defendants in these cases, erroneously believing, because they lack this one piece of information, that finding for the plaintiff will impose crippling liability on a powerless individual. The ad announces that almost all drivers have insurance and will not bear the cost of civil judgment, which instead will be borne by the big, bad insurance company. And it urges viewers to "spread the word" about the state of the law. Presumably, although only implicitly, these are cases in which the evidence otherwise shows that the defendant should be liable, and the plaintiff loses because of this misplaces sympathy. Of course, it ignores the flipside concern--a jury imposing liability against a defendant despite the evidence, believing an adverse verdict is "costless" to the insured defendant.

I am being tongue-in-cheek about calling the ad jury tampering. I believe it paints with too broad a brush, unconnected to any case, geographic, or potential juror (although I welcome the correction if jury tampering can be defined more broadly). Nevertheless, we can wonder about the ethics of an attorney "spreading the word" to the public about something they are not supposed to know as jurors and encouraging them (even if not explicitly) to use something they are not supposed to use as jurors.

This reminds me of a controversy that cropped up in the '90s, where people in parking lot or sidewalks outside courthouses gave potential and actual jurors information about the power of nullification.

Posted by Howard Wasserman on August 9, 2016 at 04:01 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, July 14, 2016

As if on cue . . .

The ACLU and several other organizations have sued Baton Rouge, citing, among other events, the incident described in this story and this post. The requested TRO goes after several specific practices, including too readily declaring an assembly unlawful, arresting protesters for stepping into the street in the absence of any obstruction of traffic, and dispersing protesters off the sidewalks and into the street and then arresting them for being in the street. The suit also names the DA and seeks to enjoin continued prosecution of those previously arrested.

Note that there is no individual plaintiff named in the action. Plaintiffs are the local ACLU, local National Lawyers Guild, and three Louisiana advocacy groups.

Posted by Howard Wasserman on July 14, 2016 at 09:46 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 30, 2016

Same-sex marriage, religious opt-outs, and constitutional procedure

On Monday, Judge Reeves of the Southern District of Mississippi declared that Mississippi cannot statutorily authorize county clerks to opt-out of issuing marriage licenses to same-sex couples based on religious objections to same-sex marriage (the law was enacted soon after, and in response to, Obergefell). But the order was entirely bound-up in the procedure of constitutional litigation, particularly with respect to marriage. Refreshingly, Judge Reeves took his time on the process and got it right.

The plaintiffs challenged the Mississippi law through a motion to amend the existing permanent injunction prohibiting enforcement of the state's ban on same-sex marriage. Before the court could reach the constitutionality of the new state law it had to determine:

1) It still had jurisdiction to enforce and expand the injunction, because the same issue--the constitutionality under the Fourteenth Amendment of a state law seeking to treat same-sex couples differently than opposite couples with respect to marriage licenses--was involved in both the original injunction and the new challenge.

2) The plaintiffs have standing to expand the injunction. This one is trickier, because the named couples have, presumably, gotten their marriage licenses, so they are not injured by the new law. And this is not a class action. The court relied on basic principles that plaintiffs always have a right to protect their final judgment, although the new law does not threaten the injunction as to them. Any uncertainty was resolve by the court's third point--the Campaign for Southern Equality is a plaintiff and it has associational standing to represent any members who want a license in the future and may have it denied pursuant to the new law.

3) The named plaintiffs, and the enjoined persons, are the governor, the AG, and the clerk of one county. The plaintiffs were trying to get the clerks for the other 81 counties in the state to comply with Obergefell. The court recognized that these 81 clerks are not parties and not bound by the injunction. Instead, the court ordered the parties to ensure that these other parties have notice of the injunction and that they are subject to it, presumably by adding them as defendants and/or certifying a defendant class, to whom the injunction can be extended.

4) The injunction would be extended to state that everyone bound by the injunction must issue marriage licenses to same-sex couples on the "same terms and conditions as opposite-sex couples." The court took this language from Obergefell to ensure that the Supreme Court decision, which is the law of the land and the law of the circuit, will be enforced. The judiciary, he added, should "remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly." Without saying so, Judge Reeves capture the departmentalist point--the injunction against specific individuals is necessary to formally bind them to Obergefell. The key is to ensure that all appropriate people are named parties subject to an injunction.

5) The court left it to the parties to figure out how to get notice to the other clerks and to agree on language for the amended permanent injunction.

Posted by Howard Wasserman on June 30, 2016 at 02:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

JOTWELL: Malveaux on Marcus on public interest class actions

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing David Marcus, The Public Interest Class Action (Geo. L.J.), which considers the special role of the public-interest, equitable-relief class action and how to shield it from the Court's recent narrowing decisions.

Posted by Howard Wasserman on June 30, 2016 at 02:11 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, June 23, 2016

What now on DAPA?

Today's 4-4 affirmance of the injunction against DAPA leaves things in obvious flux. There are several considerations affecting might happen now--legal, procedural, and political.

Procedurally, the next move is a trial on the merits and, as the trial judge has tipped his hand, likely entry of a permanent injunction. Then we go back up the ladder, presumably back to SCOTUS, by which point it will be back up to a full roster. I have heard suggestions that the government might seek a quick permanent injunction (if a defendant has no new evidence, the court can  convert a preliminary injunction into a permanent injunction without a trial or further hearing) and expedited review to SCOTUS. Given my long-standing position that there will not be a ninth Justice until the start of OT 2017*, I am not sure this will achieve anything, until the hope is that SCOTUS would stay the permanent injunction pending review (which, of course, does nothing about the preliminary injunction that remains in place until final judgment).

[*] Assuming, of course, that a Republican Senate does not continue to refuse to allow an appointment because, even though the people have spoken, the real governing principle is that Democratic presidents do not get to make Supreme Court appointments.

Legally, the United States could attempt to apply DAPA outside of the eight states that brought this suit. Although the district court purported to issue a nationwide injunction, I do not believe a district court has that power. The United States is enjoined from enforcing DAPA only as to the plaintiff states, and no one else is protected by the injunction;** this was not a class action and there is nothing that legally makes this relief indivisible. The precedential force of the constitutional analysis supporting the injunction is limited to the Fifth Circuit. And SCOTUS's affirmance of that analysis does not create binding precedent. So nothing in the Constitution or any court order prohibits the United States from enforcing DAPA in, for example, California, especially if California does not object.

[**] For much the same reason that Obergefell did not, of its own force, require Texas to issue marriage licenses, a position Texas happily adopted a year ago.

Politically, I do not see this happening.  It would take too long to explain to the public concepts such as scope of an injunction, regional precedent, and non-precedential SCOTUS affirmances. Instead, this would play in the public as the administration ignoring a court order, one seemingly emanating (or at least endorsed by) SCOTUS. [Update: I imagine the government also wants to avoid a situation in which it enforces the immigration laws differently in 42 states than it does in the other eight.]

Posted by Howard Wasserman on June 23, 2016 at 02:17 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Monday, June 20, 2016

More on RJR Nabisco and extraterritoriality

Following on Andra's post on RJR Nabisco:

It makes no sense for a statute's private right of action not to be coextensive with the substantive law being applied. Ginsburg is correct that there should be a link, not separation, between prohibited activities and authorized remedies. At the very least, that should be the presumption, unless Congress provides otherwise in the cause of action itself. And a statute that says "[a]ny person injured in his business or property by reason of a violation" of some substantive law--where that substantive law has been (and, per Congress, can be) violated by that extraterritorial conduct--should allow for a claim for extraterritorial violation. By applying the presumption of extraterritoriality to the cause of action, the Court now requires Congress to draft the cause of action not only to link the right of action to the substantive law being enforced, but also to include language dealing with extraterritoriality. For example, I presume this case now means that, even if the Fourteenth Amendment applies extraterritorially, a § 1983 claim will not lie for such a violation, since nothing in the statute speaks to extraterritoriality (indeed, the purpose of that statute was bringing states into line within their own borders following the Civil War and has nothing to do with foreign conduct).

The culprit in this is Kiobel v. Royal Dutch Petroleum (2013), where the Court applied the presumption of extraterritoriality to the Alien Tort Statute, a purely jurisdictional provision. But the ATS is unique in that it grants not only adjudicative jurisdiction, but also prescriptive jurisdiction to create federal common law based on the law of nations as of 1789 and its analogues; the question in Kiobel was whether the grant of prescriptive jurisdiction could include common law applying extraterritorially. In other words, the courts were not only creating the right of action, they also were creating the law that "directly regulate[s] conduct or afford[s] relief." The end result in Kiobel is that the substantive common law the courts could create did not reach extraterritorial conduct (because Congress did not grant the courts the power to establish such common law), so neither could the court-created right of action.

Under RICO, however, the law regulating conduct does apply to extraterritorial conduct, per Congress. The right of action should, as well.

Posted by Howard Wasserman on June 20, 2016 at 05:16 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Thursday, June 09, 2016

Permanent injunctions and no mootness in marriage equality litigation

I missed this yesterday, but Judge Granade entered a permanent injunction in Strawser v. Strange. She rejected the state's argument that the case was moot in light of Obergefell, pointing to the suspended Roy Moore and the Supreme Court of Alabama's refusal to vacate its March 2015 Mandamus and that court's continued criticism of Obergefell as demonstrating that the state officials cannot show that enforcement of the marriage ban is certain not to occur. That the court (including whoever is Chief and serving as the administrative supervisor of the state judiciary ) is especially salient in Alabama, where judicial-branch officials are charged with issuing marriage licenses.

Judge Granade's order follows on the heels (and relies on) a similar permanent injunction in Brenner v. Scott in Florida back in March (sorry to have missed it at the time). The court in Brenner was even more dismissive of the state's mootness arguments. The court pointed to the state's refusal to immediately comply with earlier orders, the legislature's failure to repeal or amend the ban on same-sex marriages and other laws affected by that ban, and requests of state officials to "clarify" the scope of the injunction on other issues that turn on recognition of same-sex marriage. For example, the State Surgeon General asked for clarification whether, under Obergefell and the injunction, they must identify a female non-biological parent on a birth certificate, even though the document says "father;" the judge insisted the answer should be easy (same-sex couples must be treated the same as opposite couples in all respects) and the request itself showed that the defendants have not "unambiguously terminated their illegal practices." These courts join the Eighth Circuit in rejecting the argument that officials' agreement to comply with Obergefell, without more, moots unrelated cases involving different parties and different laws.

There is a procedural morass here that makes this a lot more complicated and that I need to think through further.

On the one hand, SCOTUS precedent should not moot an unrelated case, given the general rule that voluntary cessation does not moot and especially given my departmentalist model in which state officials have no constitutional obligation to follow SCOTUS (or any other) precedent outside of a judgment against them as to particular parties. That keeps the controversy alive, since every new request for a license is a new controversy beyond the scope of any existing court order. That state officials are not rushing to apply Obergefell to new settings is a product of Obergefell not extending that far.

On the other hand, the limited scope of most injunctions (including the injunction in Brenner, although not Strawser, given the class certification) should make a permanent injunction inappropriate once the named plaintiffs received their marriage licenses on the strength of the preliminary injunction. The plaintiffs got what they wanted and the defendants gave the plaintiffs what they were entitled to, so there is nothing more for the court order to do as to these parties. Everything else is for further state compliance with respect to people and issues not before the court and, if necessary, further litigation and a new injunction involving those new parties and new issues. For example, Brenner recognized that the birth-certificate issue is "not well presented in this case," since none of the plaintiffs seeks a birth certificate; there are two separate lawsuits by unrelated parties against the Surgeon General for refusal to issue such certificates. And if those statutes are constitutionally invalid (as they assuredly are under Obergefell), then state officials will be enjoined from enforcing those laws as to those plaintiffs. But that should not provide a basis for the type of free-standing injunction against taking any "steps to enforce or apply" Florida's prohibition on same-sex marriage, unconnected to context or party, in a case in which the plaintiffs only sought marriage licenses.

Finally, an interesting side note: I found the Strawser order on the website for Americans United for Separate of Church and States, which is undertaking representation of couples seeking marriage licenses in Alabama (and presumably elsewhere), since the refusals are now grounded in officials' religious objections to performing this function. It is interesting how the constitutional valance of marriage equality, and thus of the advocacy groups involved, has shifted.

Posted by Howard Wasserman on June 9, 2016 at 09:35 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 29, 2016

Documents unsealed in Trump University lawsuit

On Friday, Donald Trump spent more than ten minutes of a campaign rally to criticize (and highlight the ethnic origin of) the judge in a class action against Trump University, mainly because the judge had issued various rulings against the defendant, a clear (according to Trump) indication that the judge was biased and should recuse. That same day, the judge has ordered unsealed a number of documents presented to the court on a class-certification motion. The court emphasized the public interest in the case (which suggested the need for public access to the documents), noting Trump's status as the front-runner for the Republican presidential nomination and that Trump had "placed the integrity of these proceedings at issue" in that race.

I guess judges do have ways to protect themselves against political attacks.

Posted by Howard Wasserman on May 29, 2016 at 03:40 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Saturday, May 28, 2016

Thiel, settlement, and third-party funding

Following up my previous post on Peter Thiel and Gawker, this TNR post is so wrong about so many issues with civil litigation.

First, it derides the ACLU/NAACP analogy (also offered by Eugene Kontorovich) as "ridiculous." That is correct to the extent the ACLU or NAACP are not motivated by private vendettas. But the comparison works at the broader level of someone with an agenda (whether personal or ideological) helping someone else litigate their claims. And the fact that the agenda is personal rather than ideological should not matter. Public-interest organizations are no more consistent than individuals in their positions, as will no doubt be demonstrated when various political groups go silent about President Trump's executive actions.

Second, it argues that Thiel 's "Ahab-like mission" prevented the case from settling, which would have been the better solution to properly balance free speech and privacy concerns. But the prevailing view is that too many cases settle too easily, often under pressure from judges pushing settlement, and often confidentially, thereby depriving the public of knowledge of the case or its outcome and making it harder for repeat-player defendants (such as Gawker) to be held accountable. Moreover, to the extent Thiel's funding hand created a conflict between his interests and a settlement that would have been best for Hogan, this case starts to look quite a bit like NAACP-run impact litigation, where a settlement that might be best for the individual client is not consistent with the funder's long-term ideological or institutional needs and goals. So the non-settlement undermines the supposed ridiculousness of the NAACP/ACLU analogy--the potential for party-funder conflict looms in both.

Third, the focus on settlement as the means to balance speech and privacy and serve the public interest (by making Gawker pay for a violation while not being put out of business) is nonsense. We do not strike the balance by settling individual cases, although the parties themselves might. We strike the balance in the legal rules themselves, protecting speech against civil liability for invasion-of-privacy until the speaker crosses some line (the location of which will be the issue on appeal in this case). If Gawker crossed that line, there is no balance to be struck; it should be on the hook for all the harm it legally caused by violating Hogan's rights. And if that harm is so great that it forces Gawker out of business, so be it.

Finally, the post argues that Thiel's supposed deterrence goal is undermined by the fact that he financed the lawsuit in secret, because deterrence only works if the punishment is publicly known. But this makes no sense. It is not Thiel's funding efforts that punishes Gawker, it is the $ 140 million judgment that Hogan achieved through litigation funded by Thiel. And that judgment is publicly known. And that judgment (if it stands, which I do not believe it will) will have a pretty strong deterrent effect. Thiel's identity is not necessary for deterrence. Although, to the extent we are concerned about anonymous funding, Simona Grossi's argument about transparency in funding offers a solution.

Posted by Howard Wasserman on May 28, 2016 at 05:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Friday, May 27, 2016

Litigation financing and the First Amendment

I wanted to share two takes on the news that tech billionaire Peter Thiel has been funding Hulk Hogan's lawsuit against Gawker Media. Simona Grossi (Loyola-LA) argues there is nothing inherently wrong with Thiel financing someone else's litigation, which represents a different type of third-party litigation financing, although she suggests that due process may require transparency in such funding arrangements.* Slate's Mark Joseph Stern argues that the problem is not Thiel funding the litigation, but that the litigation is possible because of elected state judges and state privacy torts that may not sufficiently leave room for free speech.

[*] In discussing litigation financing, Grossi mentions  public-interest organizations providing free/reduced-fee representation. But she does not mention the role of attorneys' fees for many of these organizations, which affects how that financing model operates. Of course, the court knows when attorneys' fees are potentially in play, so any transparency concerns are addressed.

Both argue that Thiel's funding activities are protected by the First Amendment, although for different reasons. Stern finds support from NAACP v. Button and constitutional protection for ideological litigation, while Grossi finds support in an analogy to campaign finance. The answer, I think, is a combination of these.

Button does not do it alone, because the case was less about the NAACP financing litigation than about it soliciting clients to bring litigation (financed, obviously, by the NAACP, but that was not the focus in the case). Plus, the NAACP was, in some sense, seeking to vindicate its organizational rights (or those of its members) through litigation. It is harder to conceptualize Thiel as vindicating his own rights. While he benefits from destroying Gawker, it is only in the way that everyone benefits from the deterrent effects of tort liability (either because Gawker stops publishing mean things or because Gawker stops publishing at all). This seems different than the NAACP desegregating the schools, where the precedential and remedial benefits of a judicial declaration of the unconstitutionality of segregated schools are more direct. That distinction also may relate to the litigation financed--challenges to the constitutional validity of state laws of general applicability as opposed to individual tort suits for damages against a private entity.

But Button does some work for the campaign-finance analogy. Money is not speech. But speech costs money, so restricting the money that can be spent on speech necessarily limits speech.** Under Button, litigation is First Amendment activity.*** It follows that spending money on litigation also must enjoy constitutional protection. That does not get us all the way there, obviously. But it at least forces Thiel's critics to identify what makes this financing model different and uniquely harmful and to show why any harms cannot be addressed in other ways (such as through the disclosure that Grossi suggests).

[**] As a general proposition, even critics of Citizens United and current campaign-finance doctrine would recognize that, for example, government could not limit the amount of money a company can spend on (truthful non-misleading) advertising or on printing its newspaper or magazine.

[***] The Court does not specify whether it is speech or petition activity, although it should not matter. Petition activity costs money, just as speech does.

Lost in much of the hand-wringing is that Thiel's efforts, at least with respect to Hogan, will likely fail. It seems unlikely that the judgment against Gawker will stand (in light of both First Amendment considerations and the trial court's evidentiary rulings), certainly not in the ridiculous amounts imposed. Of course, Thiel's goal may have been simply to force Gawker to spend millions of dollars on its defense, which it has done, even if Gawker does not also have to pay millions in damages. If so, the answer may lie in fee-shifting, although drafting a fee-shifting rule without it turning into "loser pays" will pose its own challenges.

Posted by Howard Wasserman on May 27, 2016 at 10:44 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 25, 2016

Frank Easterbrook, the First Amendment, and the Chicago Cubs

My colleague calls this case the trifecta. Interestingly, news reports (BNA, NLJ, etc.) have focused on the court of appeals affirming the denial of the preliminary injunction and rejecting the argument that the flat ban on sales on the adjacent sidewalks violates the First Amendment. But the court spent a lot of time on possible First Amendment defects in a related ordinance requiring all peddlers to be individually licenses, except those selling newspapers. The court questioned both the exception for newspapers under Reed v. Gilbert and the licensing requirement as a whole, to the extent it disadvantages a small publication that relies on individual part-time sellers. The opinion offers the plaintiffs arguments to make in moving for a permanent injunction on remand.

And Easterbrook could not resist starting with this line: "The 2016 season is under way, and the Cubs are doing well on the field. Left Field hopes to do as well on appeal."

Posted by Howard Wasserman on May 25, 2016 at 04:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, May 20, 2016

Money and departmentalism

Pending legislation in Oklahaom would prohibit doctors from performing abortions (it would be a felony and would result in loss of medical license). This Slate story and this letter from the Center for Reproductive Rights  describes the controversy in what I would argue are the appropriate departmentalist terms. It is about time and money: The time and taxpayer money the state is going to waste defending a law that will pretty obviously lose in the courts because the courts are bound to follow SCOTUS and other binding precedent (under which this law is, as  the CRR says, blatantly unconstitutional). And, we can add to the bill the plaintiffs' attorneys' fees, which are going to be quite high, if the marriage litigation and other recent examples are an indicator. And they situate this amid all of Oklahoma's economic problems and the money it is not spending on education, social services, and the health and welfare of women and children. Nowhere does the author or the CRR suggest that anyone in the state legislature or the governor is acting contrary to the Constitution or to their oaths by voting on or signing this bill. Instead, it's that this is making it impossible for you to govern the state well.

[*] I want to explore more about the deterrent value of attorney's fees. While that was not the original purpose of § 1988, fees increasingly play that role, especially in non-monetary cases such as this one.

And that is the larger point I am searching for. Political-branch officials do not act "unconstitutionally" when they act contrary to judicial precedent, only when they fail to follow a judgment rendered against them. And if they want to keep forcing new litigation beyond that judgment, even as against precedent, that is consistent with their constitutional vision. But if the cost of this move becomes so great, and starts to distract or draw from other priorities, the hope is that the  public will rise up at the ballot box when this becomes wasteful enough. That, in turn, provides a political check on similar behavior.

But to return to the question of legal and judicial ethics in this realm. Some of the legislators are likely attorneys and have attorneys working for them; Fallin likely has attorneys working for her. Are they violating their ethical obligations by voting for this law or advising that they can vote for it?

Update: Gov. Fallin veoted the bill, arguing that the absence of a definition of "necessary to preserve the life of the mother" (the one situation in which an abortion would not be illegal) rendered the law vague, likely to fail in a constitutional challenge, and thus not an appropriate vehicle for challenging Roe.

Posted by Howard Wasserman on May 20, 2016 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (6)

Monday, May 16, 2016

Zubik, shadow dockets, and dispute resolution

It is easy to conclude that the anti-climactic resolution in Zubik v. Burwell is simply a consequence of the Court being down a Justice. What would have been a 5-4 win for the plaintiffs (with Justice Scalia in the majority) became a 4-4 affirmance (of disparate lower-court outcomes), necessitating the Court to order supplemental briefing and then to remand when, in light of that supplemental briefing, it was no longer necessary for this Court, as opposed to a lower court, to be involved.

And all of that may be true. But I want to try to situate this case, given its actual resolution, in two broader concerns.

First is the connection to William Baude's Shadow Docket. Perhaps this case demonstrates how cases can move back and forth between the "real" docket, in which merits decisions are made and explanations given, and the shadow docket, in which reasons are not given, but hints are dropped and cases are knocked out of the Court for non-merits reasons. The Court functionally DIGed the case, but in a way that gave specific marching orders to the lower courts to start over and, hopefully, put together the compromise resolution that the parties suggested in the supplemental briefing. But the end result plays much like what we saw in the lead-up to Obergefell.

Second, this type of resolution is not necessarily a bad thing. District courts (as do courts of appeals, although not quite as often) do this all the time--it is an aspect of "managerial judging," especially in cases involving institutional reform. While the Court is partially tasked with resolving significant disputes over constitutional (and in this case statutory) meaning and application, it also is the top of a judicial system whose primary function is to resolve discrete disputes between discrete parties. And if the Court can do that with a "work-it-out" mandate without passing on the legal question, there is no structural reason--no reason grounded in the "purposes" of SCOTUS or the federal courts--for it not to do so. Especially if it provides a solution that protects everyone's rights.

Posted by Howard Wasserman on May 16, 2016 at 12:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Jurisdiction day at the Court

The Court decided two closely watched (by a segment of law professors) jurisdictional cases today. I now have to start thinking about whether to include them in Fed Courts next semester and what to keep or drop if I do add them.

In Merrill Lynch v. Manning, the Court held that the grant of exclusive federal jurisdiction over any action "brought to enforce any liability or duty created by" the Securities and Exchange Act means the same thing as the grant of general federal jurisdiction over civil actions "arising under" in § 1331. This means that the claim must either seek a relief under the act itself or assert a state law claim in which an issue under the act is necessarily raised, actually disputed and substantial, and placing the case in federal court would not disturb the balance of power between state and federal courts.

[**] I was surprised that the Court did not mention the jurisdictional statutes that use the phrase "brought under" (notably the grants for employment-discrimination laws) and also have been interpreted identically to § 1331.

Justice Thomas, joined by Justice Sotomayor (apparently the first time those two have gone off on their own) concurred in the judgment. Thomas insisted that the textual difference between "brought to enforce" and "arising under" must make a practical difference; thus, while "arising under" requires both a necessary federal issue and other considerations, "brought to enforce" requires only that claims "necessarily depend on establishing an Exchange Act violation."**

[**] Note that Thomas does not like the Grable balancing test even as an interpretation of § 1331 and arising under. He has argued that the Court to return to the Holmes test that the claim arises under the law that creates the cause of action.

In Spokeo, the Court avoided the big question--whether a statutory violation, simpliciter, is sufficient for Article III injury-in-fact--by remanding to the Ninth Circuit to redo its standing analysis to consider not only whether the injury was particularized, but also whether it was "concrete," which is a distinct component of injury. According to the majority, the Ninth Circuit "failed to fully appreciate" this distinction. Along the way, the Court allowed a couple of points that may be significant for standing analysis going forward. First, a harm can be both concrete and intangible. Second, both history and congressional judgment play "important roles" in determining what intangible harms are sufficiently concrete. Third, the risk of harm may be sufficient to establish an injury and Congress can create procedural rights designed to avoid that risk. Finally, if Congress establishes a statutory intangible harm that is sufficiently concrete, a plaintiff need not allege any additional harm beyond the statutory violation itself. Thus, the ban on publishing false information could (presumably depending on what the information was) be sufficient to support standing.

Justice Ginsburg, joined by Justice Sotomayor, dissented. She went out of her way to agree with much of the majority opinion. She dissented because this is far from a case of a simple procedural injury with no harm (the majority's paradigm was publishing an incorrect zip code). The plaintiff had alleged significant material misrepresentations about his age, marital status, wealth, education, and employment history, all of which he alleged would harm his job prospects. She argued that it was unnecessary to remand so the Ninth Circuit could simply underscore what is already obvious about the harm the plaintiff suffered (or was threatened with suffering) to his job prospects.

Posted by Howard Wasserman on May 16, 2016 at 11:30 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, May 07, 2016

Roy Moore suspended, facing removal

The Judicial Inquiry Commission of Alabama has filed a Complaint against Chief Justice Roy Moore with the Alabama Court of the Judiciary, which will hold trial to determine whether Moore should be removed from the bench. Moore is suspended with pay while the proceedings play out.

The focus of the charges was Moore's administrative order of January 2016, ordering all probate judges in the state that they had a ministerial duty not to issue marriage licenses to same-sex couples pending resolution of the mandamus action in the Supreme Court. This order was contrary to the statewide defendant class injunction in Strawser, the Eleventh Circuit's effective affirmance of that injunction (the Court rejected a challenge to the injunction as being inconsistent with the SCoA mandamus ruling, insisting that the SCoA ruling was abrogated by Obergefell), and Obergefell itself.

I know nothing about judicial ethics, particularly in Alabama. But it seems to me the first charge--that Moore ordered the probate judges to ignore a federal court's injunction--is fair game (although the fact that the Eleventh Circuit had weighed in on the issue seems beside the point). The rest--that Moore decided substantive legal issues, including in ways that conflicted with his role deciding cases as a member of the Court--seem a bit shakier, at least to the extent they suggest an ethical conflict between the Chief Justice's role as administrative head of the state judiciary and as a member of the courts. The last five charges assume that SCOTUS's decision in Obergefell is the last constitutional word and a state judge, even one acting in an administrative capacity, cannot second-guess or disagree with that.

I welcome comments from this with a background in Alabama judicial ethics.

Posted by Howard Wasserman on May 7, 2016 at 04:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Friday, May 06, 2016

Random items for a Friday morning

1) Here is a supercut of movie scenes depicting people dealing with writer's block. The Slate story describes it as stressful to watch--and it is. I also would say "claustrophobic."

2) Yesterday, I held my Civ Pro review session, which also included, for the second time, presentation of the "creative projects" that students can do for extra credit. The students enjoyed it, I got about 80-90 % participation (down slightly from the first time I did it, but still good). And it ran the gamut--board games, music parodies,* children's books, a skit about one of out classes, and even a pencil drawing of me. I think this is beginning to take on a life of its own, which I like. And a forever H/T to Josh Douglas for suggesting the idea; it has proven to be a nice exercise in class collegiality and, in many cases, an review that allows me to see what they understand (and what they don't). [Update: Here is the information sheet I give to students about this assignment]

    [*] The one problem with music parodies is that my musical tastes have not kept up. So I can recognize the Spice Girls ("I wanna really, really, really get an A in Civ Pro") and "Let it Be" ("Let 'em plead"--"yeah there will be an answer" sort of fits perfectly). The rest, not so much, although I think they were well done.

3) A federal lawsuit has been filed in the Southern District of Florida alleging that a former administrator in FIU's School of Architecture sexually assaulted a student. I know nothing about any of this. I mention it only to highlight one Civ Pro angle: The complaint was served while the defendant was on campus of another school in another state interviewing for an academic position. That is cold-blooded.

Posted by Howard Wasserman on May 6, 2016 at 09:57 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (4)

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


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)