Wednesday, April 23, 2014

The American Presidency: An Invitation to Detrimental Decision Making

I’ve previously described some serious disadvantages from a presidency that gives all of the executive power to a single person—the denial of representation to the half of the public that supported the other candidate and the promotion of partisan conflict as both sides fight to secure control of the Oval Office. Might these disadvantages be offset by the benefits of an energetic executive who can act decisively and with dispatch?

That might have been true for the first 150 years or so of the United States, but the energetic executive of Federalist No. 70 no longer meets the demands of the modern presidency. Indeed, a one-person presidency invites decision making harmful to the country.

As Congress has transferred much of its policymaking power to the executive branch, the nature of presidential power has been transformed. The Constitution envisions a president with secondary responsibility for the creation of national policy and primary responsibility for the execution of national policy. However, the contemporary president enjoys primary responsibility for both the creation and execution of policy.

This assumption of policy-creating responsibility by the president allows national policy to be made in the absence of a robust debate among multiple decision makers who bring different perspectives to their decision making. It may make sense to have a single person who can act decisively and with dispatch when the person is an executor of policy made by others. But the founding fathers correctly reserved policy making for multiple-person bodies such as Congress and the Supreme Court. As Woodrow Wilson observed, “ The whole purpose of democracy is that we may hold counsel with one another, so as not to depend upon the understanding of one man.”

Indeed, when it comes to making policy, there is much truth to the maxim that two heads are better than one. Studies by economists, psychologists, and other researchers demonstrate that shared decision making works better than unilateral decision making. As the example of George W. Bush waging war against Iraq illustrates, a single decision maker can make very poor choices. Multiple executives from different parties would bring the different perspectives and problem-solving skills that make for better decision making. Multiple executives would make more good choices and fewer bad choices than single presidents.

To be sure, too many cooks can spoil the broth. As Congress illustrates, very large groups can become quite dysfunctional. But small groups generally make better decisions than do individuals or large groups.

Of course, even single presidents do not make decisions in isolation. They consult with members of their cabinet and staff, so they enjoy many of the benefits of group decision making. Nevertheless, there is a big difference between deciding alone after consulting with advisers who are inclined to reinforce one’s inclinations and sharing decision making with others who are inclined to challenge one’s inclinations. Consider in this regard how different would be decisions from a Supreme Court of one justice and eight law clerks.

Don’t we need a single president to keep gridlock out of the Oval Office? While the framers were concerned about dissension and rivalry between multiple executives, there are good reasons to think that multiple executives could develop a meaningful willingness to cooperate with each other. That will be the topic of my final post in this series on the presidency. 

[cross-posted at orentlicher.tumblr.com]

Posted by David Orentlicher on April 23, 2014 at 08:51 AM in Constitutional thoughts | Permalink | Comments (2)

Wednesday, April 16, 2014

Extreme views in the classroom

The Chronicle of Higher Ed reports that Frazier Glenn Cross, Jr., the white supremacist suspected in the shootings of three people earlier this week, was invited two years ago to speak in a class on "New Religions" at Missouri State University. (H/T: My colleague Tom Baker). The professor issued a statement yesterday defending the choice, saying he wanted to educate his students on white supremacist views (and their dangers) and that the students would not believe the true nature of these views just by reading a textbook or hearing the professor lecture about them. According to the article, it went about as you would expect--Cross yelled at the students, used racial slurs, and praised violence, and apparently the students yelled back at him. It sounded like a productive exchange.

I do not think there is any question that it is appropriate to present Cross' views in a classroom setting. And the alternative proposed by the ADL in the story--inviting experts who have studied the subject firsthand--are not sufficient. If the point is to get students to engage with and understand these views, then hearing them characterized and filtered through an expert (no doubt, since this is the ADL, an expert who believes these views are harmful and should be suppressed) is not a substitute for engaging with the primary materials. One can question whether white supremacy is a new religion, but I will defer to the instructor on that. The broader point is there are situations in which it is appropriate to present, in unfiltered fashion, even the worst and most offensive political, religious, etc., ideas.

There is a nice question about inviting him to speak in the classroom, as opposed to having students read his writings or hear his speeches--there were more than enough available on the internet (maybe this is what the ADL rep meant in the story by "multimedia tools," although that is such an inanely empty phrase). And this issue is more pedagogical than political. Some of this is my general objection to the use of guest speakers in the classroom. But some is the question of whether having him address the students directly was necessary to the pedagogical goal. They can experience and understand these views first-hand without having to experience him first-hand. Having him shout at the students (and having them shout back) shows that he is crazy and not to be taken seriously, but it does not really show his ideas or thoughts or require them to wrestle and deconstruct them, which is supposed to be the goal. It is the difference between a cable tv shoutfest and an academic discussion.

And I wonder if the visceral responses about "endorsing" and "providing a platform" goes away if students were reading his writing rather than seeing him in-person.

Posted by Howard Wasserman on April 16, 2014 at 11:24 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Standing and the proper defendants

To absolutely no one's surprise, a panel of the D.C. Circuit rejected the challenge to the constitutionality of the Senate's filibuster rule (shout-out to Josh Chafetz and Michael Gerhardt for the citation). The district court had found none of the plaintiffs (Common Cause, some members of the House, and some people who would have benefitted from certain filibustered bills, notably the DISCLOSE Act and the DREAM Act) lacked standing--none had not suffered any cognizable injury in fact, they could not show the bills would have passed but for the filibuster, and no injunction could have accorded them relief. Fed Courts 101 (and still a course everyone should take).

The circuit court took a different path: The problem was that the plaintiffs had sued the wrong defendants. The proper defendants were the Senate and the Senators who made, retained, and voted according to the filibuster rule with respect to the bills at issue. But all Senators would enjoy absolute legislative immunity, so they could not be sued. Nor could a court impose the remedy the plaintiffs wanted--an injunction prohibiting the 60-vote requirement and compelling the Senate to adopt a simple-majority rule.

To get around that, the plaintiffs sued Vice President Biden (in his role as President of the Senate) and a bunch of non-Senator Senate officers (Sergeant-in-Arms, Parliamentarian, and Secretary) as the people responsible for "enforcing" or "executing" Senate rules. (Powell v. McCormack being the obvious precedent). But that did not work here, because the named defendants did not do anything that caused the alleged injury, since the injury was the Senators' use of the 60-vote requirement.

This analysis adds a new wrinkle to the causation prong of standing by making the identity of the defendant an element of that prong. It requires not only that the defendants' action caused the harm, but also that these defendants caused that harm. Plaintiffs must show a link between conduct and harm and that they got the "right guys" in their suit. And causation--and thus standing--is absent if either one is absent.

But doing it this way shows-again-why standing makes so little sense as a jurisdictional rather than merits rule. In any other context--including constitutional claims, even constitutional claims for injunctive relief (where standing always comes up)--it is a merits dismissal when the plaintiff sues the wrong defendant.  Moreover, had the plaintiffs sued the Senators--thus solving the standing issue as viewed by the court of appeals--the legislative immunity defense would have produced a merits dismissal, not a jurisdictional dismissal.

At bottom, however, this is all about how plaintiffs structure their lawsuits--who sues, who they sue, what they sue for, what remedy they seek. It should have nothing to do with federal structural jurisdictional concerns.

Posted by Howard Wasserman on April 16, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, April 14, 2014

The American Presidency: Does It Work Anymore?

Absent a major change in the political climate and a Democratic wave election in November, we can expect many more articles like Peter Baker's in the New York Times on the frustrations facing President Obama for the remainder of his term in office. As Baker observed, it is becoming increasingly difficult for presidents to get sweeping legislation through Capitol  Hill. 

While it is tempting to blame Congress, partisan polarization, or other features of the contemporary political system, it also seems clear that there is a deeper structural problem at work--the U.S. presidency no longer works well. I consider the defects in the presidency at some length in "Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch." In this and upcoming posts, I will discuss some of the key problems with the presidency.

For example, barely more than 50 percent of the public has a voice in the policymaking decisions that emerge from the Oval Office. While presidents may once  have aspired to act as the representative of all Americans, and George Washington may actually have done so, contemporary presidents generally hew to the views of their partisan base. Even when they attract only 53 percent of the popular vote, presidents claim a broad mandate for their partisan platforms and remind the other side that “elections have consequences."

All citizens want to have a voice in their govern­ment, but nearly half the public is denied a chance for meaningful input into the devel­opment of presidential policy. This is fundamentally unfair. To paraphrase John Stuart Mill, instead of having an executive branch “of the whole people by the whole people, equally represented,” the United States has an executive branch “of the whole people by a mere majority of the people, exclusively represented.” Or as Jill Lepore wrote in The New Yorker last month, "one-half of the people ought not to be ruled by the other half." (To be sure, Lepore was speaking about women being ruled by men, but the point still stands.)

It's not only unfair to reserve all of the presidential power for half of the country, it also fans the flames of partisan conflict. We should not be surprised that when people are denied representation, they become receptive to a policy of obstruction that might enhance their chances of winning back power. In my next post, I will discuss the modern presidency and partisan conflict.

[cross-posted orentlicher.tumblr.com]

Posted by David Orentlicher on April 14, 2014 at 09:18 AM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Monday, March 31, 2014

Video and public gatherings

Much is being written about the "riot" in Tucson near the University of Arizona campus on Saturday evening following the school's overtime loss in the Elite Eight of the NCAA Tournament. The police department is defending its actions, although there are murmurings about coming lawsuits and a thorough internal investigation. However it plays out, the event illustrates a couple of problems involving public gatherings and the role of video.

First, according to one eyewitness (the owner of one bar), students were not destroying property or acting in a violent or "unruly" manner. Nevertheless, the police "declared" it an unlawful assembly and issued a dispersal order; the violence (people throwing beer bottles began after that order, once police began trying to clear the streets. So the question (which I have not heard asked or answered) is why this was an unlawful assembly or why it was necessary for people to disperse when, according to that bar owner, they were "more were hanging out in the street rather than trying to cause problems." Tim Zick (William & Mary) has written extensively on the collapse of public spaces under the First Amendment, as public gatherings become heavily regulated and, in this case it seems, presumptively unlawful, to be met with massive displays of force and immediate dispersal. This is not to excuse violent responses to the move-along order, as much as to question the need for, and propriety of, the order in the first instance.

Second, people are talking about this video, in which a riot-gear-clad officer body-checks a woman over a bench (go to the :21 mark).

 

The video does not provide context, although the person who shot the video says the woman was walking to her car and talking on her cell when the officer ran over to her. It is hard to watch this without thinking about qualified immunity (is there Ninth Circuit case law about body-checking people talking on the phone?), the likelihood that this officer is going to have a job for much longer, and whether the plaintiff should get summary judgment under Scott v. Harris, because anything the officer can say to explain his actions will be "blatantly contradicted by the record" (i.e., this video). On the other hand, this case actually shows why video, while helpful, does not obviate the need for a factfinder; at the very least, there can be a dispute as to what the video shows and means and as to possible non-video explanations and reconciling any such conflicts is why we have factfinders.

Finally, this should render hollow the arguments against a public right to video record police conduct. This seems like exactly the situation in which we want people to be able to "check" police and the type of conduct that we want to expose with the more real and affecting (albeit not conclusive) evidence that video provides. The argument that police will behave differently if people with cameras are watching is incoherent, since this behavior is exactly what we hope officers will refrain from doing--and if the chance that they are being recorded provides that deterrence, great (it likely is more effective deterrence than § 1983 liability). And allowing people to record in no way "interferes" with this officer's work, other than by potentially exposing his misconduct.

Posted by Howard Wasserman on March 31, 2014 at 01:39 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1) | TrackBack

Wednesday, March 26, 2014

Wood: So many ways for the plaintiff to lose

The Court heard argument today in Wood v. Moss, a "bit-of-everything" case that I have written about previously both on Prawfs and as an early illustrator of Iqbal's dangers. There are all sorts of issues and reasons flying around the case, and while I do not see anyway the plaintiffs will win, I cannot tell why they're going to lose.

Justice Scalia seemed to be itching to hold that the First Amendment cannot be enforced through Bivens. Or, at least, not against Secret Service agents charged with protecting the President. Or, at least, subjective viewpoint-discriminatory intent is irrelevant if there also is a subjective security rationale (i.e., applying Whren to the First Amendment). The government wants to skip the merits and simply conclude that the right against viewpoint discrimination at a presidential appearance was not clearly established.

The pleading discussion came largely in the Respondent's argument. He and the Chief had an interesting exchange about how to read Iqbal--Respondent's attorney hit on the "plausibility is not probability" language, while the Chief hit on the "obvious alternative explanation" language. Lower courts have not done much with that language, at least not rhetorically, but the Chief may be trying to revive it. Respondent tried to read that as one of degree-only if the alternative is so clearly obvious and right that it renders the pled explanation implausible (which, of course, is not the case here). There is also a nice exchange about how discovery can or will work here and (implicitly) whether or not the district court can control it, including whether there are secrecy concerns with disclosing practices and policies regarding how the President is protected.

Justice Kennedy summed the case up best--"it seems to me that if this complaint doesn't survive, nothing will." Indeed. And that is the problem.

Posted by Howard Wasserman on March 26, 2014 at 04:59 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7) | TrackBack

Wednesday, March 19, 2014

A new justiciability puzzle

The Enforce the Law Act was introduced in the House earlier this month; it purports to allow one or both houses of Congress to sue the President or other executive officers for failing to enforce the laws. The focus is on executive-branch non-enforcement policies, rather than individual enforcement decisions. And it does not include policies of failing to defend laws is court (e.g., what happened with DOMA).

Assuming the bill solves the legislative standing problem (because a clear statement granting legislative standing is enough to solve the Article III issue), any action seeking an injunction compelling the executive to enforce the laws would seem to be barred by the Political Question Doctrine. Is there anyway to avoid that hurdle?

Posted by Howard Wasserman on March 19, 2014 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3) | TrackBack

Friday, March 14, 2014

Big Mountain Jesus saved . . . for now

I visited the University of Montana School of Law in beautiful Missoula earlier this week, to talk with students and give a public presentation on religious freedom and the Constitution.  (Thanks to Anthony Johnstone for the hospitality!).  Since I was out there anyway, I decided to do some (ahem) field work, and visit "Big Mountain Jesus," up at Whitefish Mountain Resort (which happened to have recently been gifted with more than two feet of fresh snow).  Here is a picture:   

BMG picture The statue was put up in 1953, by the Knights of Columbus as a memorial for members of the 10th Mountain Division.  As this news story reports:

The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.

In 2010, The Madison, Wisconsin-based Freedom From Religion Foundation would demand that the Forest Service not renew the permit. While initially agreeing, public outcry led the service to reconsider.

In February 2012, FFRF sued to have Big Mountain Jesus removed from the government owned property.

Powder magazine had this feature on the statute, and the case, recently.  The FFRF lost in the District Court, but has appealed to the Ninth Circuit.  Judge Dana Christensen wrote:

"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."

He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."

Some of the Court's precedents might suggest that the solution here is to invite the installation of a statue of Ullr close by . . .

Posted by Rick Garnett on March 14, 2014 at 09:07 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (1) | TrackBack

Monday, March 10, 2014

Letter on cameras in SCOTUS

Yesterday (intentionally timed to the fiftieth anniversary of New York Times v. Sullivan), the Coalition for Court Transparency, a coalition of media and public interest organizations, sent a letter urging Chief Justice Roberts to open SCOTUS proceedings to video. The letter addresses all the familiar arguments for and against video, as well as offering a preliminary step of same-day audio before moving to same-day video.

Posted by Howard Wasserman on March 10, 2014 at 04:49 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1) | TrackBack

Monday, March 03, 2014

Loathed cases

In  Why We Need More Judicial Activism (the subject of a great Green Bag micro-symposium), Suzanna Sherry identified the eight universally condemned Supreme Court decisions (Spoiler Alert: Bradwell v. IllinoisMinor v. Happersett, Plessy, Abrams, Buck v. Bell, Gobitis, and Hirabayashi and Korematsu). The unifying theme is that all have been, if not overruled, certainly discredited, such that none remains good law.

But are there cases that remain genuinely good law that are similarly disliked by both sides of political and constitutional debates and that both sides would like to see overruled? Two come to mind.

One is DeShaney. Liberals would like to see the Fourteenth Amendment impose affirmative obligations on government to protect the public; conservatives see affirmative government obligations to protect the public as a possible route to prohibiting abortion (my thoughts here were triggered by Steve's post about North Dakota's personhood amendment, which, as I said in the comments there, arguably overrules DeShaney at the state level and imposes some sort of affirmative obligations on government). A second, I think, is Slaughterhouse. Both sides would like a textually sounder basis for incorporation through Privileges of Immunities (although Due Process incorporation is so well-established at this point that the issue is more formalist). And since that was an economic liberty case, conservatives would like to see it come out differently.

What other cases might fit the bill? And am I wrong about these?

Posted by Howard Wasserman on March 3, 2014 at 10:28 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (15) | TrackBack

Saturday, March 01, 2014

Waldron v. Seidman, and the obligations of officials and the rest of us

"Never Mind the Constitution." That's the awesome title of this characteristically sharp and learned essay by Jeremy Waldron, reviewing in the HLR Mike Seidman's new book, On Constitutional Disobedience.  Seidman's got a cheeky and funny short reply to Waldron, entitled, appropriately enough, "Why Jeremy Waldron Really Agrees With Me."  I wonder if Seidman's Response will continue the apparent trend of the personal title for scholarship, e.g., Why Jack Balkin is Disgusting. If Susan Crawford's Response in the Harv. L. Rev. Forum to the review of her book by Chris Yoo is any indication, I suspect at most we can use these few data points only to identify a trend in favor of the  "meta" title and not make broader generalizations just yet.

Moving past the title to something like the merits, I'll confess I'm pretty skeptical toward the general thrust of Seidman's argument (as characterized by Waldron and as evidenced in his NYT oped from last year). He is, as Waldron notes, basically a philosophical anarchist and that's a position I find largely untenable under particular conditions of a reasonable well-working liberal democracy. (Importantly, some of Waldron's work on political obligation was what led me down that path but little of Waldron's work on that subject figures into his review of Seidman.) One last mildly interesting thing to note is that Seidman's embrace of philosophical anarchism and his export of it to constitutional theory basically coincides with the thrust of Abner Greene's recent book, Against Obligation.  There are differences between them, some of which are discussed here (review of Seidman by Greene) and here (review of Greene by Seidman). For those interested in these overlapping and important projects, the BU Law Review published a symposium on these two books last year, and you can find the contributions here, which I'm looking forward to exploring further, since, full disclosure, I am writing dreaming up something inspired by these various works on the moral and political obligations of prison or other corrections officials as a distinct class of officials).

 

Posted by Dan Markel on March 1, 2014 at 04:19 PM in Article Spotlight, Blogging, Books, Constitutional thoughts, Dan Markel, Legal Theory | Permalink | Comments (13) | TrackBack

Wednesday, February 26, 2014

The other side of corporate speech

There are reports that the NFL is monitoring Arizona's SB 1062, which gives private businesses the right to refuse service to anyone if providing service would violate their religious beliefs. Phoenix is scheduled to host next year's Super Bowl, but the league stated that such a bill would be inconsistent with the league's (stated and purported) policies of tolerance, inclusiveness, and non-discrimination for all sorts of reasons, including sexual orientation. The fear among Arizona business and political leaders now is that the NFL may move the game if this bill becomes law (it has passed both houses and is waiting the governor's signature). And there is precedent for this--the league moved the 1993 Super Bowl from Arizona (theme warning!) when it failed to recognize Martin Luther King Day as a state holiday.

But isn't this corporate speech? Isn't the NFL, a powerful entity, engaging in First Amendment expressive activities by using its economic influence to affect public policy? Isn't this exactly what critics of the "corporations have First Amendment rights" meme object to? (The NFL is not a corporation but an unincorporated association of associations, but I doubt that matters much for most arguments). Liberals and progressives and supporters of LGBT rights--the very groups most likely to be criticsl of Citizens United, are now quite pleased with, and supportive of, the NFL's stance and the (hoped-for) effect it could have on this horrific piece of public policy. But other than the valence of the political position at issue, how is this different than a large company trying to affect environmental policy or elections (which, in turn, will define policy)?

This gets at what I always have regarded as an inconsistency in many anti-corporate-speech arguments. We like businesses that are socially conscious and that work towards the public good. But that must mean they have the same right to define (what they regard as) the public good as anyone else. It cannot simply be that entity speech is ok when it promotes LGBT rights, but not ok when it promotes something we do not support.

Update: Gov. Jan Brewer vetoed the bill.

Posted by Howard Wasserman on February 26, 2014 at 02:22 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4) | TrackBack

Friday, January 31, 2014

College athletes, unions, and short-term employment

As has been reported, an undisclosed number of  Northwestern football players (Go 'Cats) are trying to unionize (apparently with support of the athletics administration), having signed cards to initiate the NLRB process. Among the group is senior quarterback Kain Colter, who is done playing for NU. And all the other players will leave within 4-5 years, simply by the nature of college and a college football career.

Here is my question: What happens if all the signers leave an employer before the process (both before the NLRB and in federal court) is complete? Is there some sort of mootness doctrine that kicks in with changes in the people who signed cards? Is it overcome by new players joining in? Are there other unionized industries or workplaces that are so concretely and definitively time-limited in the term of employment as would a university and its football team?

Posted by Howard Wasserman on January 31, 2014 at 06:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (5) | TrackBack

Friday, January 17, 2014

Settlement in § 1983 colonoscopy case

(Sorry, I couldn't figure out a better title). David Eckert, who was subjected to an escalating series of medical procedures by police officers searching (unsuccessfully) for drugs, has settled his § 1983 action for $ 1.6 million. I previously wrote about the case and have been using the complaint in my Civ Pro class. I must admit to being slightly disappointed that we never got to hear the officers trying to argue that the law prohibting state-imposed colonscopies without probable cause was not clearly established.

Posted by Howard Wasserman on January 17, 2014 at 09:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4) | TrackBack

Thursday, January 16, 2014

Gender Diversity and Same-Sex Marriage

The recent district court decisions regarding same-sex marriage in Utah and Oklahoma have drawn a great deal of attention in the past few days.  The Tenth Circuit is a particularly interesting venue for adjudication given what we might infer about the ideological composition of the court.  Currently the court has five Republican appointees and five Democratic appointees, but just today nominees Carolyn McHugh and Nancy Moritz were voted out of the Senate Judiciary Committee, which would make the court seven-to-five in favor of Democratic appointees.  While I don't want to overstate the importance of a nominee's political background -- which I think has sometimes been exaggerated in the same-sex marriage cases -- the potential new additions to the court would create a particularly engaging scenario were the Tenth Circuit to take the case en banc.

Rather than retread ground others have covered, I want to focus on a particularly odd argument that the state of Utah recently raised in its brief to the Supreme Court requesting a stay of the district court's judgment pending appeal.  Utah makes three arguments.  The first two are familiar to everyone who has followed the same-sex marriage cases: that "traditional marriage marriage reinforces responsible procreation" and that "children generally fare best when reared by their two biological parents in a loving, low-conflict marriage."  Others have addressed -- and in my view, pretty thoroughly debunked -- these arguments.

The third argument might charitably be described as more creative.  The state argues that "society has long recognized that diversity in education brings a host of benefits to students," and "[i]f that is true in education, why not in parenting?"  If I read the brief correctly, the idea is that having one male and one female parent will provide children with benefits that surpass those provided by having either two male or two female parents.  As the state puts it: "the combination of male and female parents is likely to draw from the strengths of both genders in a way that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children" (emphasis theirs).

The first problem with this argument is that it relies on unexamined assumptions about gender.  What, exactly, are the "strengths of both genders"?  What strengths do women inherently have that men inherently lack?  What strengths do men inherently have that women inherently lack?  Within any two-person relationship, of course, the people involved will have different strengths.  But these strengths map very loosely, if at all, onto gender.  One can find both men and women who possess any conceivable personality trait, and who engage in any given part of the spectrum of child-rearing responsibilities.  Some men are more nurturing than their partners, and so are some women.  Some women are more aggressive than their partners, and so are some men.  Some women stay home with their children, and so do some men.  Some men cook and do dishes, and so do some women.  Some women fix cars, and so do some men.  All of this is potentially valuable in a marital or parenting arrangement.  But none of it is inherently associated with gender.  And so there's no reason to assume that a diversity of parental attributes is more likely to occur in an opposite-sex marriage than a same-sex one.

The second problem is that the "traditional marriage as gender diversity" argument draws an inapt parallel between education and marriage.  Even if we agree that diversity is a good thing in education, that doesn't mean that the same holds true for marriage.  Admitting a class of students involves bringing together hundreds or thousands of people with different characteristics and different life experiences.  No individual student is presumed to bring any specific quality to the table based on gender, race, sexual orientation, class, or other attributes.  Rather, in the aggregate, a diverse student body provides benefits because bringing together enough people from different backgrounds improves the learning experience.  In contrast, marriage is simply a different endeavor.  At least as the state's brief envisions it, marriage involves only two people, and the claim that traditional marriage promotes gender diversity inherently requires a presumption that men will behave one way and women another.

The argument is also poor strategy.  Several of the justices on the Court are openly contemptuous of diversity as a rationale for affirmative action.  In Grutter v. Bollinger, for example, Justice Thomas slightingly described diversity as "more a fashionable catchphrase than it is a useful term," and a school’s interest in diversity as an "aesthetic" desire to "have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them."  These are not exactly the words of a justice looking to provide additional support for the diversity rationale by tethering it to arguments against same-sex marriage.

And finally, it seems to me that the argument works far better as an argument in favor of certain types of relationships that lead to non-traditional parenting -- specifically, polyamory and parenting arrangements that involve more than two people.  Assuming for the sake of argument that two people of different genders bring different qualities to the table, and that this is good for children, wouldn't it be even better for a child to have three parents?  Or five parents?  Preferably with at least one parent who rejects binary notions of gender, and chooses to identify as neither a man nor a woman?  If we assume that Utah is right about the benefits of gender diversity in marriage, it seems to me that such parenting arrangements would provide even more of the gender diversity benefits that Utah envisions.  But I seriously doubt that this line of reasoning is what Utah intends.

In short, this argument seems like a pretty bad one -- at least insofar as it's intended to support a prohibition against same-sex marriage.  And perhaps it's an indication of exactly how far marriage equality opponents are reaching these days to find support for their position.

(cross-posted at nancyleong.com)

Posted by Nancy Leong on January 16, 2014 at 03:44 PM in Constitutional thoughts, Gender | Permalink | Comments (8) | TrackBack

"Alta is for skiers" . . . unconstitutional?

So claim "four snowboarders and a Utah nonprofit" in a recently filed lawsuit.

“Because of Alta’s relationship with the government, Alta’s actions must comply with the Constitution’s Equal Protection Clause,” says attorney Jonathan Schofield in the press release. “Alta’s prohibition against snowboarders excludes a particular class of individuals from use and enjoyment of public land based on irrational discrimination against snowboarders, which denies them equal protection under the law as guaranteed by the Fourteenth Amendment.”

Like the man said, I guess:  "Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate."

Posted by Rick Garnett on January 16, 2014 at 02:28 PM in Constitutional thoughts | Permalink | Comments (9) | TrackBack

Tuesday, January 14, 2014

Lawsuit over George Washington Bridge closings

The first lawsuit arising from the politically motivated closing of the George Washington Bridge was filed last week and John Culhane explains how more could be coming. This one is a purported class action by six plaintiffs who claim they were stuck in traffic on the bridge and late for work, causing them to lose wages and suffer other economic harms. Defendants are Christie, his former aide, two Port Authority officials, the Port Authority, and the State of New Jersey. It's a really poorly drafted complaint and kind of hard to figure out, with a lot of boilerplate and legal conclusions signifying nothing.

It does not identify any of the rights or sources of rights asserted. The first three counts appear to be § 1983 claims for 14th Amendment Substantive Due Process, Right to Travel, and failure-to-supervise/failure-to-train by Christie and the two entities. But this creates problems a number of problems. The plaintiffs cannot sue New Jersey and the Port Authority, which are state entities not subject to suit under § 1983. I suppose the conduct is conscience-shocking, although I'm not sure the right to travel includes the right to travel quickly or to get there on time. I'm also not sure Christie is in a supervisory relationship to the Port Authority workers (as opposed to the former aide) for failure-to-train purposes. And as for qualified immunity, is snarling traffic as part of a political vendetta equivalent to selling foster kids into slavery (the Posnerian paradigm of an obviously clearly established right for which no prior case law is necessary)?

Culhane gives the suit a chance, at least as a matter of state tort law. Because the alleged conduct was intentional, the plaintiffs may get around the economic loss rule. But since most of the complaint seems to be making constitutional claims, I am not sure how much that matters.

Posted by Howard Wasserman on January 14, 2014 at 11:35 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack

Symposium on After Marriage at Florida State Law

I'm delighted to share the news of this upcoming symposium at FSU on January 31, 2014, entitled "After Marriage."

The symposium, “After Marriage,” explores what a national marriage equality precedent would mean for gay rights, marriage, the family and anti-discrimination law more generally. Numerous conferences and symposia have been devoted to exploring the road toward marriage equality for same-sex couples. This symposium is devoted instead to the road after marriage equality. It uses the two marriage equality cases recently decided by the U.S. Supreme Court as an opportunity to think about what the future holds for these areas of the law in the wake of marriage rights for same-sex couples. The event will bring together scholars and movement members of national prominence to explore this important and largely uncharted question. 

Issues to consider might include:

  • What would marriage equality on a national level mean for marriage as an institution?  What would it mean for the family more generally? 
  • Many activists and movement members have framed marriage for same-sex couples as an end point.  What if we reconceive marriage equality as the beginning rather than the end?  What might it be the beginning of?
  • How, if at all, would marriage equality impact other progressive movements, including the movements for economic equality, for reproductive rights, for racial justice, for disability rights, and for transgender rights?
  • What, if any, consequences would there be to a Court decision in favor of marriage equality (rather than, say, a state or federal legislative decision)?  How plausible and persuasive is the backlash thesis in the particular context of marriage (as opposed to, say, reproductive rights)? 

Click here to view the program schedule.  More information about the speakers and CLE credit and how to register or watch the webcast after the jump.

Symposium available via webcast. Registrants will be provided a link to the webcast a few days prior to the event.

Featured Presenters and Commentators

Mary L. Bonauto, Esq., Civil Rights Project Director, Gay & Lesbian Advocates & Defenders

Courtney Cahill, Donald Hinkle Professor, Florida State University College of Law

Mary Anne Case, Arnold I. Shure Professor of Law, University of Chicago Law School

Dennis G. Collard, Partner, Kessler & Solomiany Family Law Attorneys

Kara S. Coredini, Esq., Executive Director, MassEquality

Martha M. Ertman, Carole & Hanan Sibel Research Professor of Law, University of Maryland Francis King Carey School of Law

William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School

Hayley Gorenberg, Deputy Legal Director, Lambda Legal

Michael Klarman, Kirkland & Ellis Professor of Law, Harvard Law School

Melissa Murray, Professor of Law, University of California - Berkeley School of Law

Douglas NeJaime, Professor of Law, University of California - Irvine School of Law

Angela Onwuachi-Willig, Charles M. and Marion J. Kierscht Professor of Law, The University of Iowa College of Law

Laura Rosenbury, Professor of Law and the John S. Lehmann Research Professor, Washington University School of Law

Elizabeth F. Schwartz, Esq., Attorney, Elizabeth F. Schwartz Attorneys & Mediators

Marc Spindelman, Isadore and Ida Topper Professor of Law, The Ohio State University Moritz College of Law

Deborah A. Widiss, Associate Professor of Law, Indiana University Maurer School of Law

Mary Ziegler, Assistant Professor, Florida State University College of Law

Registration: The registration fee for this event is $35. The fee covers all sessions and a boxed lunch. Click here to register.

Papers will be published in the Florida State University Law Review

CLE credit approved (reference number 1307138N).

For more information, contact Derinda Kirkland. Telephone:  850.644.5799 or e-mail: [email protected].

Posted by Dan Markel on January 14, 2014 at 09:27 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Monday, January 06, 2014

HuffPost Live on Utah SSM case

I appeared on HuffPost Live with Mike Sacks on Monday afternoon discussing the Supreme Court stay of the injunction in the Utah marriage equality decision. Also on the show were Michael Dorf (Cornell) and Neomi Rao (George Mason). It was a good discussion that also got into the Little Sisters case, which has a stay application (of the district court denial of an injunction) pending before Justice Sotomayor.

After the jump, one additional thing I did not get a chance to say on the Utah case:

A lot is being made of the approximately 950 same-sex marriage licenses that Utah issued under the force of the district court injunction, which now are in limbo. (Dorf argues that Utah could ultimately recognize these marriages as permanent, but is not constitutionally obligated to do so. SCOTUSBlog reports that it is not known how many those couples actually got married and that the state is trying to figure out what to do about any marriages). Sacks drew the obvious camparison to California, which recognized the thousands of same-sex marriages performed between the Caifornia Supreme Court decision in summer 2008 recognizing marriage equality as a matter of the California Constitution and enactment of Prop 8 in November 2008.

An important distinction involves finality within the judicial branch. When the California Supreme Court rendered its decision in 2008, that was the final word on the meaning of California equal protection and due process from the judicial branch of California. The state of California law was finally established--as a a constitutional matter, same-sex couples had an unquestioned right to marry, California had an unquestioned obligation to grant those marriage licenses, and an unquestioned obligation to recognize those marriages as legal for all purposes and in perpetuity. The only reason those marriages came into question was because the state of established California law subsequently changed when Prop 8 amended the state Constitution.

But that seems fundamentally different from marriages occurring during the pendency of litigation, before the "federal judicial branch" (the Article III system as a whole) has spoken. Here, we have heard from one judge in the court of original jurisdiction and the case is pending before the next judicial level. The rights of same-sex couples to marry and the obligations of the state to recognize those marriages have not been finally established by the judiciary. And the state of the law can easily change not through the extraordinary efforts of a constitutional amendment, but by the simpler step of a higher court reversing a lower court. Thus, should the Tenth Circuit (or SCOTUS) reverse the district court, Utah is under less of a legal obligation to recognize those ineterregnum marriages than California was.

Posted by Howard Wasserman on January 6, 2014 at 09:41 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Stay in Utah SSM case

SCOTUS without comment stayed the permanent injunction against Utah's ban on same-sex marriage, pending disposition in the Tenth Circuit. So we are back to no marriage equality in Utah, at least for a few more weeks (the Tenth Circuit agreed to expedite the appeal). Probably the correct result, although Mike Dorf makes a good argument the other way. In particular, the lay of the land has changed since I first wrote about the case--hundreds or thousands of same-sex couples have gotten marriage licenses since around Christmas, when the district court and court of appeals denied the stay, and this morning. So the thing a stay is designed to prevent--chaos in the status quo that may be difficult to undo--already has happened to some extent.

Posted by Howard Wasserman on January 6, 2014 at 11:23 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12) | TrackBack

Sunday, December 29, 2013

What effect pleadings?

The dueling decisions by two different federal district judges on the NSA surveillance program--one upholding it, one invalidating it--reminded me of a post I wrote in June comparing the two complaints. I argued that the complaint in ACLU v. Clapper (the Southern District of New York case) was better than Klayman v. Obama (the District of D.C. case). The latter had a lot of extraneous noise and "pleading as press release" nonsense, a number of legal mistakes, and asked for the ludicrous sum of $ 3 billion in damages; the former was cleaner, simpler, and legally sounder.

So what should we conclude from the fact that the plaintiff won in Klayman but lost in ACLU? Two possibilities jump to mind:

   1) Pleading-as-press-release works not just publicly but legally as well. Heightened, overstated, politicized pleading does affect the judge by impressing the urgency of a constitutional claim. That is lost in a complaint that lacks the "passion" we see in Klayman.

   2) Pleadings don't matter to the outcome, at least in constitutional cases. It's all about the legal arguments made in the subsequent motions related to injunctions, dismissal, or summary judgment.

Other possibilities?

Posted by Howard Wasserman on December 29, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8) | TrackBack

Wednesday, December 25, 2013

More on stays and injunctions, marriage equality edition

Last month, I wrote about when courts will or should stay negative injunctions ("this law is unconstitutional, stop enforcing it") pending appeal, pointing to marriage equality as a case in which a stay ordingarily would be appropriate. Well, perhaps not. Following last week's district court decision invalidating Utah's ban on same-sex marriage, both the district court and the Tenth Circuit declined, without explanation, to stay the injunction pending appeal. This means that, once state offices open after Christmas, same-sex couples will be able to get married in Utah.

Mike Dorf has a nice a take on this decision--he calls it legally and morally correct, but still wrong. Dorf makes the same argument I did about chaos and confusion (and, he adds, heartbreak) if marriages recognized in the interregnum are then declared invalid if the district court is reversed on the merits on appeal. In Dorf's view, this case came down to the likelihood of success on the merits prong--just as the Texas abortion case did last month--which here cut against issuing the stay. In light of Windsor, the state is not likely to prevail on the merits on appeal to the Tenth Circuit or SCOTUS; bans on same-sex marriage simply cannot stand. That overcomes any concerns for (or real risk of) chaos and heartbreak. Nevertheless, Dorf argues that decision not to stay still is wrong, just because one never knows what SCOTUS will do or when. I agree, which is why I would argue that risk-of-chaos should play a larger role than likelihood of success in cases such as this.

The next move could make for a fun Christmas. Step one is a petition to the Tenth Circuit Justice, Justice Sotomayor; she can either decide on the stay herself or refer the matter to the full Court. If she denies the stay, the state could file a renewed application with any Justice of their choosing.  Since it is Christmas, Justice Kagan may be the easiest one to find.

Merry Christmas to all who celebrate.

Update 12/27: Andrew Koppelman adds this tidbit: The Utah AG did not request a stay as alternative relief in its original pleading, which has been common practice in marriage equality cases. (Koppelman's post links to a transcript of the stay hearing in the district court, where the court says he did not enter a stay because no one requested one and the AG seems confused that the court did not enter a stay sua sponte). This explains the procedural rush over the stay, although I doubt it ultimately would have made a difference.

Posted by Howard Wasserman on December 25, 2013 at 08:11 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5) | TrackBack

Friday, December 06, 2013

The inanity of balanced religious symbols

IMG_1044This is the annual "holiday" display in the town right next to my neighborhood in Miami, which I drive through on the way to work every day.  As far as I can tell, it went up sometime Thursday afternoon or evening (I did not notice it on my way to work Thursday morning, although it's kind of hard to miss).

The problem this year, of course, is that Chanukah ended Thursday evening, before the display was fully in place and before its official "opening" that occurs this weekend. Now, since Chanukah only lasts eight nights, it is inevitable that the symbol will be up for longer than the holiday itself every year. But it would be nice if the symbol could be up for at least some portion of the holiday. Otherwise, it's a bit like dying the river green on March 18.

Worse, I am pretty confident that no one in charge realizes this fact or understands the ridiculousness of having a Menorah on display for a full month after the holiday is over. If they were serious about marking the holiday, they might have shifted the timing of the display this year. Of course, having a Menorah up without a Christmas tree probably would have violated the Establishment Clause. And vice versa, which is why the Menorah is not coming down. Instead we will, for the next month, have a religious symbol (and make no mistake,  Justices, a Menorah is purely religious) on display with no connection to the holiday it is supposed to mark. [Ed: Had the city moved up the display, the other likely effect would have been total confusion]

By the way, this is not meant to be a rant against official public displays of religious symbols. It's more to push the idea that when government tries to do religion in a way that does not establish religion, it inevitably gets it wrong, sometimes in a way as to be somewhat offensive,. And especially when it's a minority religion. So perhaps they should not bother.

Posted by Howard Wasserman on December 6, 2013 at 11:09 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (15) | TrackBack

Wednesday, November 27, 2013

Clapper and Probabilistic Standing

Standing is a doctrine that probably turns a lot of people off -- it's subject to heavy criticism for being manipulable and, in fact, actually manipulated.  But it's important, as is any doctrine that holds the keys to the courthouse door.  The Court's decision several months ago in Clapper v. Amnesty International has been discussed heavily, in particular for its implications for judicial review of intelligence gathering programs. Steve Vladeck has recently posted a characteristically sharp take on this issue.

Clapper also matters for admin law. Writing for the 5-Justice majority, Justice Alito insisted that the plaintiffs (U.S. entities that wished to communicate with foreigners who might be subject to wiretapping under the law) had to show that their injury was "certainly impending" if they wished to claim that they were suffering "imminent injury" as Article III uses that term. But he conceded that in an earlier case (interestingly, where he wrote the opinion) imposed a seemingly more lenient standard for imminence, requiring only that the plaintiffs prove that they ran a "substantial risk" of suffering harm. In Clapper he was able to elide this inconsistency by concluding that in any event the plaintiffs there failed both of these standards.

All this matters to regulatory law because risk reduction is what a lot of regulation aims at. This is especially the case when agencies regulate by incentivizing third parties to act in ways that help the intended ultimate beneficiaries of the regulatory program. These styles of regulating -- which are not really new but have gained more notoriety in the last couple of decades -- raise the question whether plaintiff-regulatory beneficiaries would be able to show the requisite imminent injury if they complained that government was regulating poorly.

I think Clapper's analysis can accommodate such claims.  I explain why in this brief essay. Briefly, the answer is, first, that Clapper recognized the competing, "substantial risk" test. It didn't reject it (which might have been awkward, given that Justice Alito wrote the earlier opinion as well as Clapper.) Just as important, Justice Kennedy remains the swing vote on many, probably most, standing questions. And over twenty years ago, in Lujan v. Defenders of Wildlife, he wrote a separate concurrence that stressed Congress's ability to create innovative rights and articulate causal chains that courts might not otherwise accept. As I explain in the essay, if we understand these new regulatory regimes as doing exactly what Justice Kennedy conceived of in Defenders, then there's every reason to expect, both as a matter of legal analysis and Supreme Court prediction, that the Court would accept such injury claims.

Posted by Bill Araiza on November 27, 2013 at 02:50 PM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

Tuesday, November 26, 2013

More pleading/qualified immunity

The big news from SCOTUS today was the unexpected totally expected cert. grant on the constitutionality of the contraception mandate. But the Court also granted cert. in Wood v. Moss, which involves qualified immunity and pleading.

The case arises out of a street protest against President Bush, where police and Secret Service agents moved protesters several blocks away from where the President was having dinner, while allowing pro-Bush protesters to remain in place. Two months after Iqbal was decided, the Ninth Circuit found the complaint insufficient, a decision I argued illustrated the negative effects Iqbal was likely to have on civil rights litigation. The plaintiffs were given a chance to replead and a later Ninth Circuit panel  held that the amended complaint sufficiently pled viewpoint discrimination.

That the Court took the case does not bode well, but I suppose I could be surprised.

Posted by Howard Wasserman on November 26, 2013 at 02:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

§ 1983 and the 11th Amendment

I wrote last week about Tyler v. Commonewealth of Massachusetts, the lawsuit by a woman contesting a state court order forcing her to engage in family law matters with the convicted rapist who fathered her child. A federal district court dismissed the § 1983 action. One of the cited reasons was the Eleventh Amendment, a decision I said last week was wrong. Here is why.

It is true that the original complaint impermissibly named the Commonwealth of Massachusetts as defendant. But one overlooked aspect of this jurisprudence is that the inability to sue a state, at least on a constitutional violation, is a matter of the text of § 1983, not the Eleventh Amendment. SCOTUS has twice held that a state (or state agency) is not a "person" within the meaning of § 1983; the ordinary meaning of person does not include a sovereign and Congress did not provide any text or history to suggest differently. In fact, it seems clear that under either the prevailing congruence-and-proportionality analysis or Justice Scalia's "enforce means enforce" approach, § 1983 is valid § 5 legislation. There is perfect congruence-and-proportionality between § 1983 and the Fourteenth Amendment rights being enforced. And Scalia has acknowledged § 1983 as the main example of permissible legislation that creates a remedy for existing constitutional rights. So the reason the plaintiff could not sue the Commonwealth is that the Commonwealth is not a person subject to suit or liability under the applicable substantive law. This approach also has the benefit of making clear that this is all a defect in the merits of the claim--the plaintiff sued a defendant who is not subject to the duties or liabilities under that substantive law.

The other problem with the Court's analysis is more fundamentally wrong. The plaintiff moved to amend the complaint in response to the motion, seeking to substitute the justices of the Superior Court (the trial court) as defendant. And since the plaintiff sought an injunction preventing current and future enforcement of the state court orders, this seems like it would be permissible under Ex Parte Young as an action against a responsible officer seeking prospective relief from an ongoing violation.

Amazingly, however, the district court held that Young did not apply. Tyler was not seeking prospective relief because the "sentence complained of has been imposed and is now an historical fact." But this seems to misunderstand what it means for relief to be "prospective." Yes, the challenged order is already entered. But the plaintiff's argument is that the order is presently causing her constitutional harm and will continue to cause her constitutional harm in the future. The injunction she seeks is to halt future enforcement of that state-court judgment. If that is not prospective, I am not sure what is. Under the court's apparent definition, no relief is prospective--it would be just as easy for a court in an action challenging the constitutionality of a statute (the typical Ex Parte Young case) to say  "the statute complained of has been enacted and is now an historical fact." The issue should not be the timing of the complained-of legal rule, but the effect of that rule and when the relief sought will take effect.

There are cases that distinguish "purely prospective" injunctions from other injunctions. But those are Younger cases; they hold that an action that seeks to enjoin future enforcement of a law without interfering with a pending prosecution are not barred by Younger. (Wooley v. Maynard is a good example). This has nothing to do with whether an injunctive is prospective for Ex Parte Young purposes.

Posted by Howard Wasserman on November 26, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Saturday, November 23, 2013

JFK and the CRA

Yesterday was the 50th anniversary of the assassination of John F. Kennedy (maybe you heard). Next summer will mark the 50th anniversary of passage of the Civil Rights Act of 1964. The proximity in time of the events is not necessarily coincidental, of course. One of the recurring narratives is that the assassination enabled the legislation. LBJ used the assassination and JFK's legacy to push Congress and the public to support sweeping legislation. And LBJ's legendary facility with Senate procedure, something Kennedy lacked, is often credited with enabling him to push the ultimate bill through in that house.

Many people are playing counter-factual history this weekend--what if Kennedy had not been assassinated (the subject of a book by journalist Jeff Greenfield)? So for everyone familiar with the 1964 Act and its passage, the legislative politics and procedure, and the history of the era--Would some version of comprehensive civil rights legislation (touching on voting, employment, education, and public accommodations) have passed had JFK remained president after Nov. 22, 1963?

Posted by Howard Wasserman on November 23, 2013 at 05:18 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack

Friday, November 22, 2013

Rooker and Younger

In August, I wrote about Young v. Commonwealth, a § 1983 lawsuit by a teen-age girl who had a child as a result of a rape; the criminal court in Massachusetts ordered the convicted rapist (who was sentenced to 16  years probation) to initiate proceedings in state family court regarding paying child support and other matters, prompting the man to also seek visitation. The girl objected to that order because she did not want the man involved in her, or the child's, lives; she attempted to appeal the criminal court order to the Massachusetts SJC, but was found not to have state-law standing. She then ran to federal court. I pointed out a number of problems with the case and even used the complaint to illustrate some concepts and doctrines in Civil Rights.

Two weeks ago, District Judge Stearns of the District of Massachusetts dismissed the complaint, seemingly with prejudice (H/T: One of my alert students). The court dismissed for three reasons: 1) the suit is barred by the Eleventh Amendment because it named the Commonwealth as defendant and the attempt to instead name the state judges under Ex Parte Young is still barred because the suit does not seek prospective relief, but relief from a prior judgment (this last point is beyond wrong, although I leave that for another day); 2) it is barred by Burford Abstention, which requires federal abstention in deference to a unified state regulatory regime, which includes family courts); and 3) it is barred by Younger abstention, because the § 1983 action interferes with an ongoing state proceeding.

In my earlier post, I suggested that the real basis for dismissal should be Rooker-Feldman, which is also what I suggested to my students in class. The court's reliance on Younger instead of Rooker-Feldman reflects what may be a common, but unfortunate, confusion between the doctrines.

Younger and Rooker-Feldman share similar underlying comity concerns--allowing state institutions, mainly as courts, to function according to their own processes and preventing federal district courts from hearing cases that  interfere with or override those proceedings. And both doctrines rest on the premise that constitutional errors in state proceedings should be corrected by seeking appellate review in the state system and, if necessary, SCOTUS review of the final state-court judgment.

The difference is (or should be) the target of the federal suit. In the typical Younger case, the state is seeking to enforce its substantive law in a state proceeding and the state defendant asks a federal court to enjoin that enforcement effort, and thus to enjoin the ongoing state proceeding, because the underlying substantive law is defective (usually constitutionally, but also as a matter of federal statutory law). The federal defendant is usually the executive officer or agency who initiated the enforcement efforts. Younger prevents that end-run, forcing the party to  defend in the state enforcement proceeding, present its constitutional challenge to the underlying law there, and appeal any adverse result. And if Scott Dodson is right about the case  pending before SCOTUS, Younger's scope is going to be explicitly more confined to such coercive proceedings. By contrast, Rooker-Feldman applies where the constitutional injury to the would-be federal plaintiff is caused by an adverse judgment or order already issued in any type of ongoing state proceeding, where the federal injunction would functionally review and reverse that order.

The problem is that many courts (and presumably defendants, which is where this begins) immediately turn to Younger anytime the injunction touches a pending state proceeding, without stopping to consider the nature of the state proceeding, the source of the alleged constitutional injury, or the target of the sought federal injunction. Those features should mark the line between Younger and Rooker-Feldman. The Tyler court is not alone in this conflation. In SKS Assocs. v. Dart, the Seventh Circuit held that Younger barred a federal action to enjoin a General Order issued by the chief judge of the state court and applicable to all pending eviction actions in state court. The court similarly went straight for Younger, even though the challenge was to the constitutionality of the order issued (functionally) in a pending state case and not to the underlying applicable law. The court did acknowledge that this was not the typical Younger case because SKS was not a defendant in the state proceedings, but nevertheless insisted that Younger comity demanded abstention.

The Tyler court also seems to have missed the point of the lawsuit, which may add to the confusion. The court saw it as an effort to enjoin the family proceedings (which have not yet produced any final order), meaning there was no specific order to point to as the source of injury. But the complaint actually asks the court to enjoin the underlying criminal court order that sent the perpetrator to family court in the first instance, as order already issued and final. So, once again, the target of the federal action matters.

The further irony is that less than a decade ago, lower courts were overusing RF, having conflated it with claim preclusion. SCOTUS halted that with two decisions (Saudi Basic and Lance). Now the courts seem to be running away from RF's core application.

At some level, of course, it does not make a practical difference. A federal district court cannot hear Tyler's § 1983 action and Tyler's recourse lies in appellate review of state proceedings, with possible certiorari to SCOTUS. But there is nothing wrong with a little doctrinal consistency and accuracy.

Posted by Howard Wasserman on November 22, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3) | TrackBack

Wednesday, November 20, 2013

Stay in Texas clinic litigation remains in place

By a 5-4 vote (divided along predictable lines), SCOTUS let stand the Fifth Circuit stay of the district court injunction prohibiting enforcement of the restrictions on reproduction health clinics. The law remains in effect and enforceable, and clinics must comply with the law, pending resolution of the appeal. The Fifth Circuit has expedited briefing and set oral argument for January. The main order was unsigned. Justice Scalia (to whom the original application was directed) wrote an opinion concurring in the denial of the application, joined by Justices Thomas and Alito. Justice Breyer wrote a dissent for four.

The dissent focused, properly I believe, on preserving the status quo and properly balancing the harms. By enjoining enforcement of the law, the district court changed the status quo from what it would have been were the laws in effect and returned to the status quo before the law was enacted. The stay thus disrupts that status quo by putting the state laws into immediate effect, thereby forcing many clinics (advocates insist  as many as 1/3 of the clinics in the state) to close and many women to have to travel hundreds of miles to obtain reproductive health services. And many of those clinics may be unable to reopen even if the district court is ultimately affirmed. The balance of harms is thus between the state being unable to enforce its laws for a few months against the permanent harm to women unable to exercise their constitutional rights without undue burden (which the district court found was imposed by these laws).

The dissent also found no public interest considerations that warranted a stay. Justice Scalia responded by insisting that "[m]any citizens of Texas, whose elected representatives voted for the law, surely feel otherwise." But this goes to the related point about harm to the state if it is barred from enforcing its laws and  linking (as the Fifth Circuit and Justice Scalia both did) the public interest to harm to the state--it proves too much. The state always has an interest in enforcing its duly enacted laws and the public in the enforcement of the laws duly enacted in its name. If those two truly predominate and always run together, then injunctions should always be stayed pending appeal to preserve that interest in enforcing the law until any law is finally determined to be unconstitutional.

But not every negative injunction is stayed pending appeal; I would imagine that most aren't (this might be a nice empirical question to explore). And, if we focus on maintaining a status quo, most shouldn't be. Which suggests that what is really going on is a tip of the hand on the merits--that five-justice majority is convinced the Texas law is constitutionally valid and sees no reason to delay enforcement. And so we have a pretty good sense of what will happen if/when the case comes back to SCOTUS for full merits consideration.

Posted by Howard Wasserman on November 20, 2013 at 07:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8) | TrackBack

Tuesday, November 12, 2013

Teaching procedure from bad procedure

Last week, I wrote about the § 1983 action by a man allegedly subjected to multiple invasive searches and medical procedures--including a colonoscopy, enemas, and digital penetration--in a futile, seemingly unsupported search for drugs. Michelle Meyer at The Faculty Lounger reports on two additional incidents, one involving the Hidalgo County Sheriff's Office (the same department, and the same K-9, as in the first suit) and one involving federal border agents.

Michelle also reports that a Scribd user is collecting all the documents in the first lawsuit, including the complaint and the four answers (by the county and its officers, by the city and its officers, by the deputy DA, and by the two different doctors). Given the attention this issue is getting and the outrage the cases have generated, these seem like they would lend themselves as sample pleadings for Civ Pro. Unfortunately, they are not great pleadings. The complaint is ok; it illustrates how to plead detail to get around Twiqbal and shows how different claims go towards different defendants; but there are problems/omissions in the jurisdiction statement and in the framing of the claims. The multiude of answers shows how each defendant or group of defendants must answer separately. But they all are a mess, particularly in being drafted so it is impossible to match paragraphs between the pleadings.

The question is how much we want to teach by negative implication--"here is an example of a bad pleading, don't do it this way."

Posted by Howard Wasserman on November 12, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (12) | TrackBack

Monday, November 11, 2013

Counter speech, hecklers, and heckler's vetoes

This story (from Slate and Inside Higher Ed) [link fixed] discusses recent events at Brown University, in which students repeatedly interrupted a speech by NYPD Commissioner Ray Kelly (architect of the city's stop-and-frisk policy), ultimately causing the speech to be canceled. The author pairs this with a 2001 incident, in which students trashed 4000 copies of the student newspaper containing an editorial advertisement questioning the wisdom of slavery reparations. Both Kelly (or it least his policies) and the ad were alleged to be racist. The University president has criticized the Kelly protesters and spoken of the need to allow all voices to be heard. The legal director of the Foundation for Individual Rights in Education ("FIRE") (an organization whose views about campus speech I largely share) expressed concern over the pervasiveness of such "heckler's vetos."

The incident illustrates something I wrote about here, about three distinct forms that counter-speech (whether actual or symbolic) may take. One involves counter-speakers in the same location as the original speaker, attempting to drown him out. While those counter-speakers are certainly hecklers, heckling is itself a form of protected free-speech activity, at least so long as the hecklers are lawfully entitled to the space in which they are heckling. While this perhaps is not the ideal path to rational discourse, both the speaker and the heckling counter-speaker attempting to drown him out are doing what the First Amendment contemplates and protects.

A cinematic illustration of this idea after the jump:

 

But I hesitate to call what happened with Kelly censorship or a heckler's veto, at least without knowing more about what happened there. A heckler's veto presumes government involvement in stopping the original speaker on behalf of the hecklers or in furtherance of the hecklers' preferences; it does not include heckling counter-speakers who succeed in drowning out the original voices. It is the difference between Brown officials canceling Kelly's speech (whether to keep the peace or to satisfy the hecklers) and Kelly giving up because he could not get a word in edgewise.

Again, drowning out a speaker or burning publications with whom you disagree is not the best approach to public discourse and dialgoue, especially on a university campus, where all ideas should be aired. It is to say, however, that, no, Brown University does not have a problem with free speech; its students are acting entirely consistent with one vision of free speech and the First Amendment.

Posted by Howard Wasserman on November 11, 2013 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (14) | TrackBack

Sunday, November 10, 2013

Cert. Petition Filed in Elane Photography

Courtesy Scotusblog.  This is the case where a New Mexico photographer opposed to same-sex marriage refused to serve as the photographer at a same-sex commitment ceremony.  The couple sued under the state's public accommodations law, and eventually won at the state supreme court.  It's an interesting case presenting rights to resist compelled expression against equality access to public accommodations, including private businesses.  If the Court grants the petition it will quite likely result in an important First Amendment opinion.

Posted by Bill Araiza on November 10, 2013 at 11:33 AM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

Tuesday, November 05, 2013

You can't make this stuff up, § 1983 edition

Here is the story, out of New Mexico, which has been picked up nationally. The complaint is here.

So: Would the officers even try asserting qualified immunity, on the ground that there is no case law establishing this conduct as unconstitutional? Is it safe to say these guys are plainly incompetent? Absent case law, is this analogous to Judge Posner's hypothetical about selling foster children into slavery? And what of the doctors? Did they act under color of law? And under what test?

Discuss.

Posted by Howard Wasserman on November 5, 2013 at 03:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0) | TrackBack

Monday, November 04, 2013

The rhetoric of qualified immunity

I think SCOTUS has given up on qualified immunity. Today the Court in one eight-page per curiam order in Stanton v. Sims granted cert, reversed, and remanded a case in which the Ninth Circuit had denied qualified immunity, where an officer kicked open a fence to enter private property without a warrant, purportedly in "hot pursuit" of a misdemeanor suspect. And all without resolving whether there was a violation, so lower courts have no new guidance on the question.

What is noteworthy is the Court's new rhetorical move. In Ashcroft v. Al-Kidd, the Court had explained that qualified immunity "protects ‘all but the plainly incompetent or those who knowingly violate the law.'" The Court today repeated the phrase "plainly incompetent" five times in the opinion; in doing so, it seems to be suggesting that a court that denies qualified immunity is, per se, labeling that officer as "plainly incomepetent." If lower courts and defendants seize on that, qualified immunity will become even harder to overcome (and dismissal easier to obtain), because no plaintiff wants to be seen as labeling the officer incompetent and no court wants to sign onto calling police officers names or questioning their integrity and ability.

Posted by Howard Wasserman on November 4, 2013 at 05:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (10) | TrackBack

Sunday, November 03, 2013

NYT v. Sullivan Anniversary Symposium at U. of Georgia

 The University of Georgia Law Review is hosting an impressive and impressively well organized symposium honoring the fiftieth anniversary of the Supreme Court's decision in New York Times v. Sullivan. Justice John Paul Stevens is the keynote speaker,  and David Savage of the LA Times will be giving a lunchtime talk.  The panels of speakers discussing press issues old and new include Justice Steven's former clerk Sonja West, RonNell Andersen Jones, William Lee, Amy Gajda, Amy Kristin Sanders, Lili Levi, Paul Horwitz, and Rodney Smolla, and Hillel Levin will be moderating at least one of the panels.

I will be participating on the "new media" panel, discussing my paper-in-progress, "The Press and Constitutional Self-Help, Then and Now," a synopsis of which is below.

Once upon a time, the U.S. Supreme Court routinely decided press cases, but that period of time came to an end about twenty years ago. The Court’s disinclination to decide press cases kicked in just as the Internet began eroding the press’ traditional role as gatekeeper and translator of news and information and threatening the financial viability of traditional media. As we near the fiftieth anniversary of New York Times v. Sullivan, it is striking how few landmark press cases have been decided since the Internet, and now social media, have entered the scene.

The Supreme Court decided the vast majority of its landmark press cases between 1964 and 1984, in what we media lawyers might now look back on as the “Golden Age” of press cases.  These cases contain some of the Court’s loftiest rhetoric about the special role the press plays in our democracy. Yet these same cases recognize only negative press freedoms; they protect only freedom from government intrusions such as prior restraints or compelled publication but refuse to interpret the First Amendment to provide the press with “special” access to governmental information or institutions not available to other citizens or special exemptions from generally applicable laws that interfere with newsgathering.  The Court’s refusal to recognize affirmative press rights during this period arguably suggests that the Court was merely paying lip service to the notion that the press plays a special role in democracy, for it seems intuitive that a “special role” should come with “special rights.”

I contend, however, that the Supreme Court that decided the press cases of the Golden Age was committed to a special constitutional role for the press but envisioned the press (or, more aptly, the media) as a true Fourth Estate—an unofficial branch of government capable of checking the other three by using its own powerful resources to safeguard its ability to play its special role. The Court assumed  that, in most instances, the media could use its own political and economic power to gain access to government information, protect confidential source relationships, and fight overreaching by the executive or legislative branches. In other words, the Court assumed that the media could engage in “constitutional self-help” to play their role. But this theory of constitutional self-help depends on a number of assumptions about the media that were largely true in the 1970s but may not be today. Media that are economically and politically powerful, popular with the public, and united in pursuit of common goals may indeed be able to fight off threats to their ability to play a special role in our democracy, especially when government officials depend on the media to carry government messages to the public. In light of recent developments, however, it is fair to question the ability of new media to use constitutional self-help to access government information or protect confidential sources, for reasons I will explore further in my talk (and my paper). Fundamental shifts in the balance of power between today’s Fourth Estate and the three official branches may signal a need to reexamine the assumptions underlying the press cases of the Golden Age.



 

Posted by Lyrissa Lidsky on November 3, 2013 at 03:37 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (0) | TrackBack

Friday, November 01, 2013

Injunctions and stays

Earlier this week, a district judge held that several provisions of the restrictive reproductive health regulations enacted by Texas last summer (over the famous Wendy Davis filibuster) were unconstitutional and enjoined their enforcement. On Thursday, the Fifth Circuit stayed the injunction pending resolution of the appeal. This means the laws are enforceable. It also means a number of clinics are not going to be able to operate beginning tomorrow morning.

Putting aside my views of the constitutionality and wisdom of these laws, the stay surprises me. The idea behind staying an injunction is to preserve the status quo and to avoid permanent or long-lasting effects that may be inconsistent with the ultimate state of the law once the litigation is fully resolve. Ultimately, we want to avoid a mess, whatever the outcome of the constitutional challenge. Under that consideration, a stay seems inappropriate here. Several clinics are going to have to close, cease performing abortions, or make physical or operational changes, all at some cost. If the district court is ultimately affirmed, these losses would have been incurred because of an ultimately invalid law. And even if the district court is ultimately affirmed, some clincis, having had to close or to incur these additional costs, may be unable to recover. This seems pretty messy. The court of appeals addressed this concern in a sentence, saying any such concerns were overcome by the likelihood that the state would succeed on the merits and that the laws are constitutional) But the uncertainty of the constitutional question, combined with the cost and messiness that comes with allowing the law to be enforced, should weigh against the stay and in favor of letting the injunction remain until the case is resolved.

Contrast this with the Prop 8 litigation, where everyone knew the initial district court injunction would (and should) be stayed pending appeal. If that injunction had taken immediate effect, people would have been able to marry, even before the question of Prop 8's constitutionality was conclusively resolved. And had the district court been reversed, we would have had a bunch of couples the state was forced to marry, although its law was not ultimately unconstitutional. Here, the mess goes the other way--not staying the injunction would have created confusion.

Update I: I suppose I should add something on the Second Circuit's stay of the injunction in the New York stop-and-frisk case. This also seems like an inappropriate case for a stay. The status quo should be that people are not subject to potentially unconstitutional searches (as already determined by a district court) until their constitutionality is resolved.

Posted by Howard Wasserman on November 1, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4) | TrackBack

Monday, October 07, 2013

A Grenade in the Prison Nursery

James Dwyer at William and Mary Law has an explosively interesting and sharp draft (forthcoming in Utah LR) up on SSRN called Jailing Black Babies. If you have a passing interest in the intersection of family life and criminal justice, race and law, or just how to do a law review article with panache and insight, then you should read it (h/t to Berman at SLP). I can't endorse the underlying merits because I don't know the studies that Dwyer skewers along the way, but the piece is, if true, a wonderful parade of argument in law and policy, and, in its own way, quite courageous. Kudos.

One minor quibble. At times, Dwyer takes to task the advocates for incarcerated moms for "wishful thinking" re: the putative benefits of prison nurseries. I don't have reason to doubt that there's little empirical support for developing prison nurseries now that some studies (as described and critiqued by Dwyer) show little grounds for them. But at least at some earlier point, it seems worrisome if critics insist that policy entrepreneurs provide empirical support for the benefits of a relatively new policy idea. How do we prevent policy ossification if we insist on studies for everything in advance? To be sure, Dwyer has probably convinced me that it was a form of constitutional folly to put kids into prisons with their moms. But if the legal arguments weren't there, and we were considering a strictly policy question, it wouldn't be batshit crazy to think that there might be some benefits to children of incarcerated parents being together with them; it *might* be the kind of thing we might want to see at least some types of (low-security) prisons experiment with. Dwyer's right, however, that there seems be little academic constituency for a child-centered view of these policies and their alternatives. One cannot read Dwyer's draft without feeling deeply concerned with this new policy bandwagon while also saddened by the conflict he spotlights between parental and children's interests.

Posted by Dan Markel on October 7, 2013 at 03:22 PM in Article Spotlight, Constitutional thoughts | Permalink | Comments (1) | TrackBack

Cert. denied in Duke lacrosse

SCOTUS this morning denied cert. in Evans v. Durham, the § 1983 action by the three indicted-but-exonerated members of the 2005 Duke men's lacrosse team. The Fourth Circuit rejected (which I discussed here) claims against the city and the investigating police officers involved; the plainitffs tried to get to SCOTUS on the issue of whether the prosecutor's conduct (which enjoys prosecutorial immunity) breaks the causal chain and cleanses the officers' misconduct when they conspired together. Interestingly, they did not seek cert on the "stigma-plus" theory of liability for other officer misconduct (on which the causal chain was not broken).

The plaintiffs still have state-law malicious prosecution claims pending. The next question may be whether the district court declines supplemental jurisdiction over those claims or decides to keep them, seeing as how this litigation is now 6+ years old.

Posted by Howard Wasserman on October 7, 2013 at 10:20 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

Friday, October 04, 2013

Compensation, Takings and Preventive Detention for Failure to Appear and Dangerousness

For a little while a couple years ago I was entertaining the thought that pretrial detention based on risk-based considerations (failure to appear or danger to oneself or the community or to the judicial process) was a regulatory takings that warranted compensation (at least normatively if not constitutionally). That position, it turned out, was largely advanced in a thoughtful piece by GW prof Jeff Manns on Liberty Takings.  

I was delighted that I didn't pursue that line of thought, not only because it was preempted by Jeff but also because I soon realized the view wasn't entirely sound (at least to the extent I recall it now). In short, there's a big difference between the innocent property owner and the person who is preventively detained: namely, there is a hearing where a judicial officer finds that, at least in the fed context, clear and convincing evidence shows that the defendant poses a social risk of some sort that requires containment or management, however you want to frame it. (Manns recognizes the distinction between the innocent homeowner and the pretrial detainee but I think he gives it less normative significance than I do.)

Of course, that distinction doesn't mean the pretrial detainee deserves no compensation, but the force of the "takings" rhetoric or jurisprudence attenuates substantially; if there is a warrant for compensation it likely occurs at a substantially discounted rate insofar as the detainee is responsible for having created the risk.

 Interesting questions bear on what the discount should be, what the baseline should be, etc. Moreover, it doesn't at all follow that the detainee should be "boxed" or confined in the same kind of facilities as those who are convicted. A least intrusive means test is probably warranted, perhaps triggering what my colleague Sam Wiseman, in his forthcoming YLJ piece, has called a right to be monitored (electronically).

Let's stipulate for purposes of argument that at least in some cases, confinement is required for particular people, rather than monitoring. The box the detainee goes in, however, should be a pretty nice box, glibly akin to condos with views of the beach and wifi, rather than putrid and overcrowded jail cells.  Along the same lines, if I'm right about the need to separate these preventive from punitive purposes, there would be no justification for extending credit for "time served" if the person is ultimately convicted (creating my unorthodox but I think justifiable view, a view that is naturally (!)  pace my friend Adam Kolber in Against Proportional Punishment).

When looking at the pretrial detainee world, there is often agitation for compensation. But this doesn't necessarily follow as a matter of rights or out of respect for the presumption of innocence. Even compensating a later-acquitted defendant doesn't necessarily follow so long as the standards of proof and purposes/structures of confinement are properly respected. Compensation to the detained person would only be warranted if the detention proved to be tortiously procured through some form of negligence, recklessness, etc on the part of the prosecution. But it's not obvious that a good-faith preventive detention of a person who, with a lawyer by his side, is shown by  the gov't to be dangerous by clear and convincing evidence, requires anything like a liberty takings model for compensation. The preventive detention box has purposes and structures and procedures that can be readily distinguished from those appropriate to the punitive boxes with their underlying purposes.

Of course, if we're serious about keeping these social projects distinct, then, per Justice Stevens' dissent in Salerno, the presence of an indictment is of no significance (except to the flight risk group). And if that's true, we should be able to have a restrictive though non-punitive form of preventive detention available for the future dangerousness folks (putting me in good company with Justice Stevens, though not Justice Marshall in Salerno). That model would probably look a good bit like Chris Slobogin's proposed regime of preventive detention (see his piece in Criminal Law Conversations), but perhaps without some of the pre-requisites he required (again, if I recall correctly).

This was roughly the set of views I tried to communicate to my students yesterday in teaching about pretrial detention and Salerno. However, as we were talking in class yesterday, I thought the liberty takings argument had more force in the context of the post-conviction post-punishment detainment of  folks, e.g., the sexually violent  predator types in Kansas v. Hendricks.  I realized those guys do warrant full compensation for the liberty takings (though again, query what the baseline is there, and whether the baseline should be discounted for earlier choice-tracking behavior on their part).

To summarize, I wonder who has the best claim to liberty takings compensation in the preventive detention world. If I'm right, the people who have the best claim are the SVPs or the mentally/criminally insane who are confined but not punished/blamed (anymore). Ironically, if I'm right, even acquitted (and even convicted) defendants who were detained would not have a strong moral claim to full compensation for pretrial detentions on a liberty takings model unless they could show that the detention was tortiously procured through misconduct on the part of the government. That said, even though these folks are not akin to innocent homeowners whose property is taken, they do have some claim to some compensation and incredibly better detention facilities than we currently extend to them. Indeed, home detention plus surveillance options are probably the closest reasonable approaches.

And perhaps most unorthodox is the claim that we should eliminate altogether the pervasive practice of giving credit for "time served" in jails for pretrial detention. Extending time-served only blurs the lines between preventive detention and punishment and makes the goverment less circumspect in their decisions about who they box and under what guise.  Anyway, this is just a first pass attempt at making sense (to me) of these boxes and social functions, and I will be revisiting the literature (including the Kolber, Slobogin, Manns pieces among others) if and when I flesh out these views further. Tell me in the comments if I'm way off base (at least normatively, if not constitutionally), and if you think someone has already articulated these views more coherently so that I don't bother chasing rabbits down a preempted hole.

Posted by Dan Markel on October 4, 2013 at 03:29 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (0) | TrackBack

Wednesday, August 21, 2013

Seriously? quote of the day

From a public statement by the Fairfield County (OH) School District, announcing it would allow a 12-year-old girl to play football rather than defend its ban (which it never explained) in litigation that the ACLU threatened to bring on the girl's behalf:

"We have no intent of competing with the deep pockets of the ACLU in any litigation situation in order to secure a favorable judgment," the district said in a statement. "Therefore, we will allow female participation in contact sports."

Really? The ACLU has deep pockets? The ACLU's pockets for litigation are lined with the money it recovers from idiotic governments--like Franklin Fairfield County--when it successfully challenges pointless-but-unconstitutional like this one. Still, it's a nice piece of demagoguery that might play well with the public. And the school district is not necessarily alone--Justice Scalia expressed similar beliefs about public-interest groups wielding superior  financial resources to overwhelm governments in § 1983 litigation.

I do agree with one commentator, who noted that such a statement indicates the district still does not support the girl's efforts, is not convinced she is legally entitled to play, and potentially not willing to give her the backing she needs (that is, the same backing as all other players get). We may not be done with this story.

Posted by Howard Wasserman on August 21, 2013 at 09:13 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (15) | TrackBack

Monday, August 12, 2013

Boobies and attempted coherence on student speech

I have written before about efforts by schools to regulate or ban "I [heart] boobies" bracelets, including one lawsuit in Pennsylvania that produced a broad district court opinion enjoining a middle school from suspending two students for wearing the bracelets on Breast Cancer Awareness Day. Last week, the en banc Third Circuit affirmed the preliminary injunction (I am not sure why the case went directly to the full court, with no mention of a panel hearing or decision) in a very speech-protective opinion that tried to bring some coherence to student-speech doctrine. Dahlia Lithwick has a nice analysis, suggesting it could be SCOTUS' next crack at student speech.

The Court tried to make sense of Fraser's grant to schools of broad power to "restrict vulgar, lewd, profane, or plainly offensive speech" and to work the major precedents--Morse, Fraser, and Tinker (Hazelwood is a different animal)--into a coherent whole. It did so in two respects.

First, it argued that Fraser was simply a subset of the indecent-as-to-minors category of unprotected speech (recognized in Pacifica and Ginsberg v. New York). Rather than some all-encompassing power grant to school administrators, Fraser reflects a narrow category of speech that is unprotected as to minors although fully protected as to adults.

Second, it identified three possible situations to mark the lines between Fraser and Tinker's fallback balancing test: 1) Schools can categorically ban "plainly lewd" speech, regardless of whether it contains a social or political message--implicitly, because speech cannot be plainly lewd if it contains a social or political message (much as sexually explicit speech cannot be obscene if it has serious literary, artistic, political, or scientific value); 2) Schools can categorically ban speech that a reasonable observer could interpret as lewd, but only if the speech cannot also plausibly be interpreted as commenting on political or social issues--in other words, in a close case that could go either way, courts must treat it as being about political or social issues; and 3) Schools cannot categorically ban not plainly lewd speech that could plausibly be interpreted as commenting on poltical or social issues. Anything in the latter two categories can be regulated or punished only if the school can satisfy Tinker's requirement of a specific and significant risk or fear of disruption to the school. Again, this is a potentially  speech-protective analysis, at least to the extent it pushes more cases out of Fraser (under which schools can punish speech without a showing of likely or actual disruption) and into Tinker's balancing test (where anything can happen).

Applying it here, the Third Circuit majority found this an "open-and-shut case." "I [heart] boobies" is not plainly lewd, even if it reasonably could be interpreted as such, and obviously contains a social or political message about breast cancer and the importance to young girls of breast cancer awareness. The court then insisted that Tinker "meant what it said": To regulate speech, schools must show a specific and significant fear of disruption. And the record of disruption or risk of disruption here was skimpy, consisting of only two incidents, both occurring after the school put the ban in place (which the majority suggested shows that the ban itself, rather than the speech, caused the disruption). In running the Tinker balance, the court was not at all deferential to teachers and administrators. But that analysis also reflects the reality that schools should not be in a panic about an admittedly sophomoric, but effective, public-health effort.

There is another aspect to this case that may make it cert. worthy, going to how lower courts identify binding SCOTUS precedent. The majority insisted that the limitation on Fraser for speech on political or social issues was not a doctrine of this court's creation, but was compelled by Justice Alito's concurring opinion (joined by Justice Kennedy) in Morse v. Frederick (the "Bong Hits for Jesus" case). Alito joined the five-justice majority in Morse, but concurred to explain his understanding of the narrowness of the opinion, particularly that "it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue." In other words, under Alito's approach, even categories of speech that can be banned in schools (advocacy of illegal drug use in Morse or lewd speech in Fraser) cannot be banned if it comments on a political or social issue. (One side note is the irony of Justice Alito's opinion providing the basis for such a speech-protective model, given Alito's general record as being one of the less speech-protective justices. Alito's concurrence was, in all likelihood, motivated by protecting student religious and religiously motivated speech, long a concern of his).

The court insisted that Alito's concurrence is controlling precedent under Marks v. United States. Marks most commonly applies where there was no majority opinion, so lower courts identify the narrowest non-majority opinion supporting the judgment. But the Third Circuit insisted that Marks is not so limited. It also applies where there was a majority, but the "linchpin justices" (the justice(s) who joined the majority and were necessary to establish and maintain that majority) concurred and expressed a narrower understanding or interpretation of the majority opinion. Because these linchpin justices would not have joined the majority opinion if it meant something broader than their understanding, they are the "least common denominator" necessary to the judgment and the majority opinion. This is an interesting approach, for which the court relied on a 2006 article by former GuestPrawf Sonja West. It does conflate differences between majorities and pluralities and between concurring opinions and opinions concurring in the judgment. But it also avoids the anomaly that had Alito and Kennedy concurred in the judgment in Morse, that opinion unquestionably would control under Marks. The words "in the judgment" should not bear such weight.

Lastly, the court rejected the school's slippery slope arguments that, if "I [heart] boobies" must be allowed, then so must "Save the ta-tas" (another breast-cancer awareness slogan aimed at teens), "feelmyballs.org (a testicular-cancer awareness slogan), and a host of other, increasingly profane possible slogans the school offered. The court would not engage, insisting they should cross that bridge when they come to it. Interestingly, officials in at least one school district took the opposite position--"boobies" is proscribable while "ta-tas" is OK. I am not sure how one possibly distinguishes ta-tas from boobies, in that both are less slang than sophomoric.

Which is simply to say that we are not done with cases like this, unfortunately. But maybe this court's analysis, if it holds up, gives us a more coherent, and speech-supportive, way to approach them.


Posted by Howard Wasserman on August 12, 2013 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3) | TrackBack

Thursday, August 08, 2013

What's "Obvious" About Corporate Free Exercise?

Rick Garnett suggested recently in this space that it is “obvious” (Rick’s word) that legal entities have Free Exercise rights, and Will Baude has written a bit more cautiously that churches “or the real parties in interest behind them” probably can assert their own first amendment claims.    Now, I’m just an unfrozen caveman tax lawyer, but I did once flip through a copy of “First Amendment Institutions” (and write two articles about nonprofit organizations in politics).  And I think the “obvious” examples are just intuition pumps.  Will argues churches very likely have their own sets of rights, while Rick says that anti-kosher laws would violate the rights of firms selling kosher products. 

[UPDATE: Rick points out (see the comments) that his post doesn't quite claim that entities have FE rights qua entities, though his phrasing of that distinction may be too subtle for duller readers (ahem).  So substitute for "Rick," with some modest amendment, "Adler," or "Bainbridge" or others, such as this piece by Scott Gaylord of Elon.]

I would say it’s obvious that regulation of churches or religious practices can interfere with individual rights to free exercise.  If my religious beliefs include shared worship with a community of likeminded believers, certainly direct restrictions on church (or other religious community) activity can interfere with my exercise of those beliefs.  But why does the organization itself need to be able to assert its own claims?  Corporations (including nonprofit corporations, such as most churches) can only sue by virtue of state laws giving them that power.  Are Will & Rick claiming it is “obvious” that states are constitutionally obligated to give legal personhood to abstract entities?

This may seem a fine distinction, but asserting that law is concerned with the rights of entities, not just the people in them, elides an important element of individual choice.   Believers who choose to invest their money in a highly regulated industry can reasonably be presumed to go in with their eyes open to the possibility that regulation will impose a variety of burdens.  If they don’t like that, they should take their money elsewhere.  That’s a very different thing than a total prohibition on some key religious practice, as in Rick’s kosher example.  The degree of imposition is just much smaller in my example, because the government leaves open many alternative avenues for religious expression.  Is it zero burden?  Of course not, but this is a balancing test, isn’t it?

Of course, SCOTUS also makes this same overly-easy substitution in Citizens United.  Why is the right of political expression a right of the entity, not its members?  Can’t the members express their political views individually (at least absent some special meaning to speaking together as a legally-recognized group)?  Maybe forming a collective facilitates speech.  But then the issue is to what extent it is permissible for government to reduce its prior commitments to facilitating expression.  That field is treacherous, to be sure.  But by simply assuming that the entity embodies its members’ rights, we dodge what ought to be at the center of the debate.

Posted by BDG on August 8, 2013 at 09:11 AM in Constitutional thoughts, Corporate, First Amendment | Permalink | Comments (7) | TrackBack

Tuesday, August 06, 2013

Lithwick on corporations and religious freedom

This piece by Dahlia Lithwick ("All Corporations Go to Heaven") is -- like so much of what she writes -- entertaining and snappily written, but also (in my view) mistaken in places.  Read it for yourself but, for what they're worth, here are two thoughts of mine: 

First, it does not seem helpful to describe the issue presented in the Hobby Lobby case as whether "CEOs can impose their religious convictions on the people who work for them."  The word "impose" suggests, it seems to me, some kind of coercion -- an effort to require another person to affirm what one affirms or to live in accord with one's religious obligations.  Lithwick (like the many others who frame the issue this way) uses "impose" to mean (I think) "act in accord with their own religious convictions, or run their business in accord with those convictions, in such a way that third parties are affected in some way."  But third-parties are "affected" by the exercise of legal and constitutional rights all the time.  Certainly, no employee of Hobby Lobby is, or would be, required by virtue of their employment to affirm what the "CEO" believes or to live his or her own life in accord with the CEO's religious convictions.  The employee would, of course, be affected by those convictions (because he or she would not get free contraception) and the question is whether the government has a sufficiently weighty reason -- one that is weighty enough to justify burdening religious exercise -- for preventing it.

A second thought:  Although I realize that our doctrines and the relevant statutory language put us on this track, it does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?"  The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm."  The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have).  It's a command to the government:  Don't violate "the freedom of speech"; don't burden the "exercise of religion."

It is obvious that some regulations of corporations violate "the freedom of speech."  And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization.  It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment.  Whether or not they do depends, again, on a variety of factors (e.g., the presence of denominational line-drawing or discriminatory intent, the feasibility of accommodation, etc.).

Posted by Rick Garnett on August 6, 2013 at 11:55 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (10) | TrackBack

Wednesday, July 24, 2013

Petition: Save Federal Defender Services

[At the suggestion of a commenter on my last post, I offer this petition:]

Sequestration imperils the constitutional right of criminal defendants to adequate legal representation.  About 90% of federal criminal defendants require court-appointed counsel.  In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs.  It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.

Funding for prosecutors is apparently headed in the opposite direction.  The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court.  This radical imbalance threatens the fundamental right to counsel.

Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services. 

Update: Thanks to all for the strong support so far. Please send me an email ([email protected]) with your name, institutional affiliation (if applicable), and city of residence. I will subsequently post a document with this petition and the names of signatories.

Fredrick Vars

Associate Professor, University of Alabama School of Law

Birmingham, Alabama

Posted by Fredrick Vars on July 24, 2013 at 01:38 PM in Constitutional thoughts, Criminal Law, Current Affairs | Permalink | Comments (70) | TrackBack

Garnett on "The Freedom of the Church"

I've posted on SSRN a paper that I did for a wonderful conference, last Fall, at the University of San Diego's Institute for Law and Religion. on "The Freedom of Church."  (Paul Horwitz's excellent paper, from the same conference, called "Freedom of the Church Without Romance," is available here.)  I've been thinking, for several years now (starting, probably, with this article), about the (very old) idea of the "freedom of the church" -- its content, its justifications, its contemporary relevance, etc.  Others have, too (and better), and this latest paper is an effort to respond, at least in part, to some of the important questions and challenges that have been raised, especially by Rich Schragger and Micah Schwartzman.  Anyway, the paper is called "'The Freedom of the Church':  (Towards) an Exposition, Translation, and Defense."  Here is the abstract:

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.

The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.

Posted by Rick Garnett on July 24, 2013 at 11:55 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0) | TrackBack

Three short pieces (by lawprawfs) on Windsor in Commonweal

Commonweal magazine has posted short pieces by Michael Perry, Marc DeGirolami, and me commenting on various aspects of the Windsor and Perry decisions.  The contribution of Michael Perry ("Right Decision, Wrong Reason") contends that the Court should not have relied on assertions regarding the "animus" behind or the bad motives driving DOMA and should instead have invalidated the challenged provision on the ground that it violates a general right to "moral freedom."  The piece by me ("Worth Worrying About?") considers the implications for religious freedom of the line of reasoning in Justice Kennedy's Windsor opinion.  And, in "Why Standing Matters," Marc DeGirolami explains (and defends) the Court's justiciability doctrines.

Posted by Rick Garnett on July 24, 2013 at 09:36 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0) | TrackBack

Tuesday, July 23, 2013

Could FACs induce retirement of government officials? A "Corruption" Work-around?

Btw, a couple weeks ago on FB (where all my random mental burps occur), I proposed a possible variation of our crowdfunded FAC model in the gov't context. Specifically, I wondered aloud: could a cabal of Soros and Gates and Bloomberg create a FAC (Fan Action Committee) to throw money at Justice Ginsburg (or her favorite charity) to retire from SCOTUS (so POTUS could appoint someone new presumably) without violating any laws?

We just saw Sec. J. Napolitano step down from DHS to head the UC system. So if Soros et al. couldn't offer RBG 20 million to retire, could he give her 20 million to join as a board member of Open Society to have tea with him once a year? There you at least have a peppercorn of consideration for the contract. Is that enough to circumvent the corruption statutes or relevant ethics rules? Would you give the same deal to get Michelle Bachman to leave Congress? The interesting wrinkle here is that unlike general corruption statutes governing improper quid pro quo of "official action" for $, this FAC-y scenario just requires $ in exchange for no "official action", ie, retirement. A couple friends thought scenarios of this sort would still be illegal, but I'm not sure I'm persuaded yet; if it's illegal at the federal level under extant law, could it be used at the state level? If you disagree with me, please cite chapter and verse on why! And file this in the "devilish and probably misguided idea" drawer.

Posted by Dan Markel on July 23, 2013 at 06:23 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Culture, Current Affairs, Dan Markel | Permalink | Comments (1) | TrackBack

Friday, July 19, 2013

Bad Day for Reporter's Privilege in Leaks Invesitgations: 4th Circuit in US v. Sterling

As is by now well know, the Obama administration has initiated six Espionage Act prosecutions against government officials accused of leaking national security information, more than all previous administrations combined. One case was against Jeffrey Sterling, a former member of the CIA's Iran Task Force.  The government suspected Sterling of being the source of an account in James Risen’s book “State of War” of a botched CIA attempt to sabotage Iranian nuclear research.  The government subpoenaed Risen, contending his testimony was essential to prove the case against Sterling. The district judge quashed the government’s subpoena insofar as it required Risen to identify his source, U.S. v. Sterling, 818 F.Supp.2d 945 (E.D.Va. 2011), but the government appealed to the Fourth Circuit, claiming that without Risen’s testimony it would be impossible to continue the prosecution. The Fourth Circuit today reversed the district court’s holding that a First Amendment reporter’s privilege prevented Risen from being compelled to reveal his source. The majority opinion on this issue analyzed both Supreme Court precedent (Branzburg v. Hayes) and Fourth Circuit precedent and concluded:

 There is no First Amendment testimonial privilege, absolute or
qualified, that protects a reporter from being compelled to testify by the
prosecution or the defense in criminal proceedings about criminal conduct that
the reporter personally witnessed or participated in, absent a showing of bad
faith, harassment, or other such non-legitimate motive, even though the
reporter promised confidentiality to his source.

Read the whole case here.

The court's conclusion was shaped by the fact that Risen's testimony was sought in a criminal case in which he had "direct information" about the "commission of a serious crime."  The opinion stated: "Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury--the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead." The majority emphasized that the public interest in "enforcing subpoenas issued to reporters in criminal proceedings" is compellling, given the public interest in "effective criminal investigation and prosecution," and the majority explicitly contrasted the lower public interest in enforcement of subpoenas to compel the testimony of reporters in civil cases. 

The court also ruled out the existence of a federal common law privilege that would shield Rosen from having to testify. The court felt bound by precedent not to recognize the privilege, but stated it would not even if it were at liberty to do. Even if a privilege were available, "the common law would not extend so far as to protect illegal communications that took place between Risen and his source or sources in violation of the Espionage Act."

Finally, the court (dotting its i's and crossing its t's) showed that even if a qualified privilege were recognized, the privilege would be overcome in this case based on the strong need for Risen's information.  Moreover, it suggested that Risen might have already waived the privilege by revealing the name of his source to a third-party.  

I hope you'll read this opinion, which is an important word, but perhaps not the last, on whether the First Amendment allows reporters to protect confidential sources whose identities might be relevant to leaks investigations. As the number of leaks investigations continues to grow, and the government uses more creative tactics to deter leaks and uncover leakers, the effect of the Fourth Circuit's holding on the ability of journalists to uncover government wrongdoing may grow. The opinion also seems to suggest at points, though subtly, that Risen's own behavior was criminal, which again raises the issue whether the government might choose to prosecute reporters who knowingly receive illegally leaked classifed information.

This post is intended to be a brief summary of this important case, about which I hope to write more later. There's much more to this 118-page opinion, including additonal legal issues not addressed here.

   

Posted by Lyrissa Lidsky on July 19, 2013 at 04:03 PM in Constitutional thoughts, Criminal Law, First Amendment, Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Saturday, July 13, 2013

Problems with Shelby County

After my post defending aspects of the Court's opinion in Shelby County v. Holder, I thought that before I left I should add a few words about some aspects of the opinion I find more problematic.

1:  Bail-in and bail-out.  Solicitor General Verilli's closing point at oral argument was:

The facial challenge can't succeed ... because there is a tailoring mechanism in the statute. And if the tailoring mechanism doesn't work, then jurisdictions that could make such a claim may well have an as-applied challenge.

Given that the Court relies so heavily on the irrationality of the coverage formula, it would have been better for it to directly address the government's arguments that the bail-in and bail-out portions of the statute cured any problems with the formula.

Ultimately, this is more of a point about craft than substance, since I do think the Court had good potential answers to this argument.  (The bail-out provision is so stringent that large jurisdictions can't get out unless the Department of Justice and the courts refuse to apply the statute as written, and in any event is sufficiently strict that it does little to cure any overbreadth in the coverage formula.  The bail-in provision can cure some underbreadth, but that does little about overbreadth; in any event the bail-in provision may yet get its day in the sun.)  But it would have been better to say something about it.

2:  The state-equality principle. The Court relied prominently on "the principle that all States enjoy equal sovereignty."  (Indeed, the words "equal" or "equality" appear nine times in the majority opinion, and always in reference to states, never to people or their voting power.)  There is reason to doubt, however, that the Constitution forbids discrimination between states.  More importantly, the Court does not explain what constitutional provision would forbid such discrimination.

Now one can tell a slightly complicated story to explain the Court's invocation of the state-equality principle here:  While there's no per se rule against interstate discrimination, the Constitution does require that enforcement legislation be "appropriate," and "appropriate" should be understood in light of McCulloch's gloss on the Necessary and Proper Clause, which should in turn be understood to incorporate various background principles of structure and rights; one such structural principle could be a principle of equal sovereignty.  Under this theory, unjustified unequal treatment of the states would heighten the scrutiny for necessity and propriety under the Reconstruction Amendments.

(The Court may be hinting at this theory when it says: "Coyle concerned the admission of new States, and Katzenbach rejected the notion that the [equality] principle operated as a bar on differential treatment outside that context.  At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.") 

But this is a pretty complicated story, it has several non-obvious moving parts, and one would expect an explanation along these lines.  To be sure, it is certainly true (as the Court notes) that the principle was endorsed in Northwest Austin with no criticism from the Shelby County dissenters. But as with bail-in and bail-out, it would have been better for the Court to explain what is going on here.

3:  This isn't really a point, just a final comment.  I think this was a hard case, and I think much of the criticism of the Court's opinion is misdirected.  Ultimately, though, I think the Court should probably have upheld the statute because of the burden of proof.  I mention this not because I have a great deal of confidence in this conclusion, but only because there's a strong temptation not to do so, since I think many of the criticisms of Shelby County are worse than the opinion they criticize.

Posted by Will Baude on July 13, 2013 at 01:49 PM in Constitutional thoughts | Permalink | Comments (9) | TrackBack

Wednesday, July 10, 2013

Procedure in constitutional challenges, ctd.

Last week, I wrote about courts (arguably) misapplying Twiqbal in constitutional injunction action, using plausibility to avoid addressing questions of law head-on on a 12(b)(6) motion. The en banc Fourth Circuit gives us another example, in Greater Baltimore Center for Pregnancy v. Mayor of Baltimore, one of two cases (the other decision, involving a similar regulation from Montgomery County, MD, is here) challenging local regulations requiring church-affiliated crisis pregnancy centers to post signs in their lobbies stating that they do not provide abortion or comprehensive birth control referrals, services, or counseling.

The district court in Baltimore Center granted a permanent injunction on summary judgment without giving the City an opportunity to take certain discovery. Without reaching the First Amendment merits, the majority (written by Judge King, who wrote an outraged dissent from the original panel decision) held that summary judgment was improper and the city should have been given an opportunity for discovery on a number of issues, primarily the status of the centers as commercial enterprises (which determines whether this is compelled commercial speech, which in turn affects the standard of First Amendment scruriny). Judge Niemeyer (who wrote the panel opinion affirming the district court and invalidating the regulations) dissented, insisting that all of this involved questions of law for which discovery is unnecessary and inappropriate. Whether speech is commercial or involves commercial and non-commercial speech inextricably intertwined is a question of law and, in this case, obvious, such that discovery should not enter the picture. As with 12(b)(6), this all illustrates of how procedures developed to handle fact-intensive cases apply to more law-intensive ones. And how should courts treat facts such as the legislative record for procedural purposes?

Political valences are nakedly obvious in this decision. Both dissents accuse the majority of using procedure to undermine the plaintiffs' rights and accuse the city of abusing discovery as a way to deny plaintiffs justice. This is, of course, a switch from the ordinary viewpoint (especially for judges such as these dissenters), where it is plaintiffs abusing discovery and judges protecting defendants from that abuse. Of course, the (likely) competing substantive views of reproductive freedom continually bubble to the service; this is prevalent in Judge Wilkinson's solo dissent, which accuses the majority of twisting in all directions to aid the choice movement and warns that compelled speech can be used against both sides in this debate. This is true, although again, attitudes about the topic seem to affect First Amendment analysis on all sides.

The last noteworthy point is the disagreement about the effect of a preliminary injunction. In response to the abusive-discovery-denying-liberty point, the majority offered that the district court could have granted a preliminary injunction, thereby protecting the center against having to post the signs until discovery could work itself out. At the same time, the judges crossed swords over how much effect to give a preliminary injunction. The dissents both cited to the Montgomery County case (which involved a preliminary injunction) as establishing that the centers engaged in non-commercial speech to which strict scrutiny applied. But the majority insisted that a preliminary injunction is just that--preliminary--meaning it is subject to abuse-of-discretion review and does not firmly establishing constitutional principles. This is questionable; because the grant and denial of a preliminary injunction is immediately appealable as of right, much constitutional litigation (including appellate and SCOTUS review) occurs at the preliminary injunction stage.

I had thought these cases might be ripe for SCOTUS review (there are four First Amendment cases on tap for next year, one only indirectly--more than this past term, but less than in past terms). But the cases are so bound up in procedure, I wonder if either is the right vehicle, at least right now.

Posted by Howard Wasserman on July 10, 2013 at 01:50 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack