Tuesday, April 18, 2017

SCOTUS on inherent powers

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

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

Notes on Monday's SCOTUS arguments

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

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

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

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

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

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

Thursday, April 13, 2017

Libertarians and the Public Interest Class Action

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

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

     As originally introduced, it provided as follows:

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

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

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

    What’s wrong with that? 

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

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

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

    Was that an aim of the original bill? 

    It’s hard to say. 

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

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

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

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

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

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

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

Monday, April 10, 2017

Did United Airlines act under color?

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

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

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

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

Upcoming procedure cases (Updated)

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

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

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

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

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

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

Friday, April 07, 2017

DOJ, civil rights, and police reform (Updated)

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

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

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

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

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

Thursday, April 06, 2017

The Liberaltarian Class Action

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

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

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

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

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

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

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

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

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

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

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

Wednesday, April 05, 2017

Your Fed Courts/Civil Rights Exam

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

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

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

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

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

Party control

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

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

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

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

Thursday, March 30, 2017

Twiqbal on life support?

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

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

Thursday, March 23, 2017

JOTWELL: Campos on Glover on claims as property

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

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

Monday, February 27, 2017

Qualified Immunity meets advisory opinions

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

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

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

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

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

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

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

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

Sunday, February 26, 2017

One more from Hernandez v. Mesa

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

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

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

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

Friday, February 24, 2017

Hernandez v. Mesa argument

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

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

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

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

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

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

Thursday, February 23, 2017

Third Annual Civil Procedure Workshop (Reposted)

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

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

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

Confirmed participants for 2017 include the Hon. David Campbell, Allen Erbsen, Margaret Lemos, Troy McKenzie, Mark Moller, the Hon. Lee Rosenthal, Elizabeth Schneider, Norman Spaulding, and Beth Thornburg. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 1, 2017. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by April 15, 2017. Please send all submissions or related questions to Dave Marcus.

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

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

Tuesday, February 21, 2017

JOTWELL: Lahav on Coffee on entrepreneurial litigation

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

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

Friday, February 10, 2017

The process of challenging the travel order

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

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

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

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

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

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

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

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

Monday, February 06, 2017

Criticizing v. Threatening--wither the line?

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

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

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

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

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

Saturday, February 04, 2017

Nationwide TRO bars enforcement of immigration order (Updated)

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

Some quick highlights:

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

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

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

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

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

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

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

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

 

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

Sunday, January 29, 2017

More on the immigration order

Events move quickly:

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

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

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

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

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

Sunday, January 22, 2017

Arguments in Ziglar v. Abbassi

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

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

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

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

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

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

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

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

Thursday, January 19, 2017

More on Zervos v. Trump

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

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

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

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

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

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

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

More civ pro in SCOTUS

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

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

Wednesday, January 18, 2017

Donald Trump and civil procedure

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

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

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

Friday, January 13, 2017

Procedure returns to SCOTUS docket

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

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

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

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

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

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

Last of its kind?

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

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

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

Wednesday, January 11, 2017

Goodyear v. Haeger oral argument

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

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

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

 

 

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

Monday, January 09, 2017

Shorter White v. Pauly

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

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

Less Hollow Hope on the defensive side

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, January 07, 2017

Elevating judges during recess

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

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

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

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

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

Friday, January 06, 2017

Elevating judges and creating vacancies

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

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

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

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

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

Tuesday, January 03, 2017

Goodyear v. Haeger argument preview

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

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

Sunday, January 01, 2017

Ode to a District Judge

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

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

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

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

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

Friday, December 23, 2016

Spoliation in the Age of Snapchat

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

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

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

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

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

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

Tuesday, December 20, 2016

A student-athlete tries the First Amendment

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

It could be worth following the First Amendment piece.

 

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

Tuesday, December 13, 2016

Pennsylvania recount rejected

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

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

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

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

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

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

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

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

Friday, November 25, 2016

JOTWELL: Walsh on Bray on national injunctions

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

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

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

Friday, November 11, 2016

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

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

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

Tuesday, November 08, 2016

Yet more support for cameras in the courtroom

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

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

Monday, November 07, 2016

How Would a Disputed Presidential Election Proceed?

It is the scenario virtually no one wants to face: a presidential election that goes into overtime.  Yet over the past week I have received a steady stream of questions on how a post-election dispute would proceed.  Each of the fifty states has its own, detailed procedure for resolving an election contest over its presidential electors (or any other election).  

As I write in a new piece for CNN:

As polls tighten and Donald Trump has cast doubt on the reliability of the election system, talk inevitably has turned to whether we might be in for another postelection dispute.

In addition to the possibility of federal court litigation, each of the 50 states has its own, detailed mechanism for handling a disputed presidential election. Although the procedures vary by state, they all generally suffer from the same destabilizing mechanism: a lack of safeguards to root out the appearance of partisanship.
 
The CNN Op-Ed further notes that although many states send an election contest to their state courts like a regular lawsuit, other states have different procedures: sending a case directly to the state supreme court, using a specially-constituted court, creating a non-judicial tribunal, sending it to the legislature, and in one state even having the governor decide!
 
My article Procedural Fairness in Election Contests includes an Appendix with a 50-state chart of the election contest procedures in every state, describing the procedural mechanisms for election contests for every type of election (president, congress, governor, state legislature, etc.).  It's a good resource, I think, but let's hope we don't need it tomorrow night!

Posted by Josh Douglas on November 7, 2016 at 10:33 AM in Civil Procedure, Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Wednesday, October 26, 2016

DNC motion to enforce and the rigged election

The DNC has filed a motion to enforce the consent decree against the RNC for supporting and collaborating in Donald Trump's "ballot security" measures that sound like intimidation of minority voters in places such as Philadelphia. The motion seeks enforcement, sanctions, and further preliminary injunctive relief prohibiting RNC funds and personnel from being used  in such efforts in concert with the Trump Campaign. The motion does not go all the way to pinning the Trump Campaign's activities on the RNC because Trump is the party's nominee, but it does highlight its "coordination, encouragement, and support" of such activities.

Posted by Howard Wasserman on October 26, 2016 at 11:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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)