Tuesday, May 27, 2014

Should "National Consensus" Matter?

We’ve seen this before.  Today, in Hall v. Florida, the Court reached a controversial Eighth Amendment holding based on some combination of a perceived "national consensus" and the Court's own "independent judgment."  This two-step approach has come in for criticism, as the Court's national consensus analysis seems carefully tailored in each case to suit the Court's independent judgment.  Yet, despite the criticisms, national consensus arises anew in case after case after case.

In this post, I'd like to ask whether the national consensus analysis, as currently employed, is worth retaining.  My answer is yes -- but not because a supportive consensus is a necessary feature of Eighth Amendment holdings.  Rather, resort to public views can still play a useful role in preventing the Court from defying national consensuses in favor of certain punitive practices.

Hall held that, under the Eighth Amendment, states must consider IQ tests' "standard error of measurement" when determining whether defendants are intellectually disabled and therefore ineligible for capital punishment.  On its face, the "standard error" issue is a dubious subject for national consensus: it's a technical statistical concept that is not often publicly debated, and most people likely have not considered how "standard error" relates to IQ tests for purposes of determining intellectual disability or the permissibility of capital punishment.  In this respect, Hall is different from past cases, which have concerned issues of greater public salience, such as the execution of persons who are juveniles or concededly intellectually disabled.

Yet the Court was undeterred and, after a few pages on recent state legislation, concluded that there is "strong evidence of consensus that our society does not regard [Florida's] strict [IQ] cutoff [which did not consider standard error] as proper or humane."  But can "our society" really condemn a practice for being less than "humane," when only a very small slice of America has ever heard of the practice at issue, or formed an opinion on it?  If Hall depended on the answer to that question being yes, then, as in prior Eighth Amendment cases, the Court would be pretty open to criticism.

But maybe Hall didn't depend on there being "strong evidence of consensus" against the punitive practice at issue.  Instead, maybe Hall required only that there was no national consensus in favor of the practice.  That move would pose a legitimacy trade-off.  On the one hand, it would require the Court to own its "independent judgment" as the true impetus for its Eighth Amendment decisions.  On the other hand, it would allow the Court to be more candid about the fact that "national consensus" on high court holdings is pretty rare -- anywhere and at any time, but especially in the United States of 2014.  (E.g., if the "consensus" is really "national," then why are four justices dissenting?)

Moreover, viewing national consensus as a side-constraint would lower the stakes in debates over the Court's independent judgment.  The Court wouldn't be seizing absolute authority to invalidate punishments disfavored by "elites," as Justice Alito alleged in Hall, but would instead be operating within a zone demarcated -- and, perhaps, policed -- by the democratic process.  (For more, see here and here.)

In my view, the Court's recent Eighth Amendment cases are marked by a genuine concern with respecting both democracy and federalism, even though the "national consensus" analysis has long been a misnomer.  At this point, the best path forward isn't to abandon recourse to public views, but rather to be clearer and more modest about the role that those views should play in the legal analysis.

 The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on May 27, 2014 at 07:40 PM in Constitutional thoughts | Permalink | Comments (0)

Thursday, May 22, 2014

Standing, the Merits, and Judge Fletcher's "Softened" Views

On Monday, I blogged about standing in Town of Greece v. Galloway, and Howard’s subsequent comments on that subject have reminded me of an interesting recent development in standing scholarship that I’d like to draw attention to here.   In short, Judge Fletcher—a renowned critic of modern standing doctrine—recently wrote that his “views have softened somewhat.”

To recap, Howard initially suggested that standing might be found in Town of Greece and other Establishment Clause cases based on a plaintiff’s feeling of religious offense or exclusion, even in the absence of coercion. But in fleshing out that instinct, Howard found it tricky to avoid collapsing the distinction between standing and the merits—a move that current standing doctrine frowns on. To state Howard’s point using the categories of my earlier post, when trying to make answer #5 work, it’s tempting to slide into answers #4 or #6.

In particular, it’s tempting to slide into the theory famously put forward by then-Professor and now-Judge William A. Fletcher. To grossly simplify his beyond-classic article, Fletcher argued that the scope of standing should turn on the merits, that is, on the meaning of the substantive law at issue. From that vantage, an inquiry into “injury in fact” seemed pointless—or worse. In a well-known passage, Fletcher compared the injury-in-fact requirement with “substantive due process.” Here’s an excerpt:

To use a phrase that is particular anathema to those members of the Court most anxious to tell us that there are Article III limitations on statutory grants of standing, one may even say that the ‘injury in fact’ test is a form of substantive due process.

This was a drop-the-mic moment—a powerful and compelling charge of intellectual hypocrisy.

One difficulty with that line of attack, however, is that a lot of people like substantive due process, and many of them are otherwise sympathetic to Fletcher’s critique of standing doctrine. As so often happens, inconsistency could be viewed as a two-edged sword.

With that background, consider Fletcher’s recent contribution to a terrific Alabama Law Review symposium in honor of Fletcher’s work on standing. I’ll only reproduce portions of Fletcher's keynote remarks here, but I recommend reading them all:

I have rethought a few things, helped in part by the papers contributed to this Symposium. In my article, I criticized the Supreme Court for not admitting what it was doing. The Court wrote that its purpose in limiting standing under Article III was to exercise judicial restraint and thereby preserve our democracy. In Justice Scalia's words, the Court was preventing the “overjudicialization” of our government. But each time the Court holds that a grant of standing to enforce a statutory duty is unconstitutional under Article III, the Court is doing precisely what it says it is not doing. It is not deferring to the exercise of power by our democratically elected legislative body. Quite the contrary. It is restraining Congress’s power and increasing its own.

While I have not exactly changed my mind, I have to say that my views have softened somewhat. I no longer insist so vigorously that the Court explain what it is doing and why, and I no longer object so strenuously to the Court's substituting its view for Congress’s.

[Fletcher then discussed leading standing cases involving the Establishment Clause, the Equal Protection Clause, and environmental law.]

... I regard all three lines of cases as examples of the Supreme Court’s use of its lawmaking power. ...

The Supreme Court has not, and will not, explain its Establishment Clause, equal protection, and environmental standing decisions in the way that I have just explained them. It has not, and will not, state openly the degree to which it is making law. This is not a new phenomenon. Common law courts have always been reluctant to say openly the degree to which they are changing the law. They much prefer to emphasize the degree to which their decisions are consistent with, even compelled by, decisions reached in earlier cases. I do not regard the Court’s unwillingness, perhaps inability, to explain what it is doing as illegitimate or improper. The Justices are acting in the way they and their predecessors have always acted, making law even as they seek to disguise the degree to which they are doing it.

Given that Fletcher has been an intellectual leader both in the academy and, now, on the bench, his “softened” views seem noteworthy—particularly since they’re coupled with a candid description of how “[c]ommon law courts have always been reluctant to say openly the degree to which they are changing the law.”  Indeed, Fletcher's softer attitude toward standing doctrine seems linked to a similar change in attitude toward the exercise of what he calls the Supreme Court's "lawmaking power."  As he puts it, "I no longer object so strenuously to the Court's substituting its view for Congress’s."

To my mind, Fletcher’s “rethought” view of standing addresses a significant set of questions raised by his original piece. And it adds an interesting perspective on the standing issue in Town of Greece and many other cases.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on May 22, 2014 at 09:54 AM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (0)

Wednesday, May 21, 2014

Sunstein on Epstein

Cass Sunstein has a quasi-gossipy and (therefore/still?) interesting review of Richard Epstein's latest book up on TNR. My quick sense is that it seems unnecessary and probably anachronistic for Sunstein to have credited (or blamed) or even linked Epstein for Tea-Party Constitutional politics altogether. E.g., "Everyone knows who Rand Paul's father is, but in an intellectual sense it is Richard Epstein who is his daddy." Having done so, I also wonder why Randy Barnett's work in the area isn't equally (credited or blamed) or linked.

Thoughts?

Posted by Dan Markel on May 21, 2014 at 11:46 AM in Article Spotlight, Constitutional thoughts | Permalink | Comments (4)

Monday, May 19, 2014

The Missing Standing Decision in Town of Greece

As part of my ongoing quest to discover under-appreciated jurisdictional issues, I'd like to return to the Court's recent decision in Town of Greece v. Galloway.  In that case, the plaintiffs objected to the use of sectarian prayers to solemnify public proceedings, and the Court found no Establishment Clause violation in part because the public prayers at issue were not deemed coercive.  That holding raises an interesting threshold question: in the absence of coercion, did the plaintiffs have standing to bring their claim in the first place?  Bizarrely, the Supreme Court has never directly addressed this issue, even though it arises in many Establishment Clause cases.

I can see a bunch of possibilities, all with problems.

1.  The Court could try to squeeze a conventional "injury in fact" out of the situation in Town of Greece.  For instance, the plaintiffs could have argued that the sectarian invocation imposed costs on attendees in the form of wasted time.  But that kind of argument would generate causation problems, including because the town would likely employ other, equally time-consuming forms of solemnification in the event that its actual prayer policy were struck down.  There is also something dissatisfying about basing standing on what seems like a convenient excuse, or an "ingenious academic exercise in the conceivable," when the real reasons for bringing suit -- and hearing the case -- lay elsewhere.

2.  The Court could invoke municipal taxpayer standing, which was briefly noted in the District Court and Court of Appeals decisions in Town of Greece.  Obviously, this approach wouldn't work in many public prayer and display cases.  Further, the prayers at issue in Town of Greece seemed to involve only "incidental" expenditures, and did not necessarily involve the kind of direct cash outlay that, under recent cases, serves as the basis of taxpayer standing.  Finally, taxpayer standing is generally in decline at the Court, and, in that context, it is odd for municipal taxpayer standing to be going strong.  As Judge Sutton has pointed out, cities can have populations larger than those of states.

3.  Maybe, in cases like Town of Greece, the Court is thoughtlessly issuing "drive-by jurisdictional rulings" that it would focus on and reconsider in a future case, if only the point were squarely argued.  On this view, there was actually no standing in Town of Greece or any similar Establishment Clause case.  The main problem with this approach is that it would mean that there was actually no standing in Town of Greece or any similar Establishment Clause case.  While objectionable and counter-intuitive, that result isn't impossible.  In fact, something similar happened a few years ago in another Establishment Clause case, Arizona Christian School Tuition Organization v. Winn.

4.  Perhaps the coercion issue controls both standing and the merits, such that the two inquiries effectively collapse into one another.  This would presumably mean that, in ostensibly finding no Establishment Clause violation on the merits, Town of Greece actually (or simultaneously) found no jurisdiction.  That possibility comports with the widespread sense that standing is often just the merits by other means.  But the Court has given no sign that it's issuing jurisdictional holdings in cases like Town of Greece, even though jurisdictional and merits inquiries are different and can have distinct consequences for the parties.  And, of course, standing is supposed to be separate from the merits.

5.  Coercion could be viewed as relevant to the merits, while something less than coercion might suffice to create "injury in fact" for standing purposes.  For example, standing might arise from being religiously offended or from personally witnessing an establishment of religion.  This is probably what most people think is going on in Town of Greece.  But offense short of coercion normally isn't enough for standing.  For example, stigmatization caused by racial discrimination has been found inadequate.  And personally witnessing an illegality usually isn't enough to obtain standing either.  So something unusual must be going on in Establishment Clause cases for this approach to work -- and the awkwardness of saying so may explain why the Court has repeatedly ducked this issue.

6.  Finally, the Court might be prepared to set aside the doctrinal "injury in fact" analysis.  Since this is my blog, let me offer my own preferred means of doing so: in cases without coercion or other traditional injuries in fact, the Court might afford standing to those persons with the greatest interest in bringing the claim.  In Town of Greece, the challengers seemed to fit that bill.  There are problems here, too, of course. Comparing potential claimants won't always be easy; and the Court has said that standing can remove entire issues from the federal courts, thereby excluding even "best" plaintiffs.  Still, the justices sometimes seem to follow this basic approach, and even say so.  If you're curious to read more, here's a link to my article, "Relative Standing."

Which answer is best?  Are there others?

This post is cross-posted at Re's Judicata.

Posted by Richard M. Re on May 19, 2014 at 10:07 AM in Civil Procedure, Constitutional thoughts | Permalink | Comments (1)

Friday, May 09, 2014

More on Tolan and summary judgment

At the Civ Pro & Fed Courts Blog, Ed Brunet and John Parry comment on SCOTUS's per curiam/summary reversal/some other strange procedure in Tolan v. Cotton, the § 1983 summary judgment case I wrote about  earlier this week. Ed and John note that this is the first SCOTUS victory for a civil rights plaintiff in a summary judgment case in quite awhile.  I would argue that the effect of the decision, and the meaning we should draw from it, is wrapped up in the strange process the Court used to decide the case (whatever we call it--GVR, summary reversal, per curiam decision, or something else) 

One possibility they propose is that this represents a change in the Court's attitude, a sharp reminder to lower courts to take seriously the requirement to identify obvious factual disputes and to deny summary judgment when evidence genuinely goes in competing directions. Doing so in a per curiam opinion signals that this is nothing new legally, but simply a reminder of what it is well-established courts are supposed to be doing all along. On the other hand, by doing so in a per curiam opinion without full briefing, the Court removes some of the precedential weight of the decision.

Another possibility Ed and John propose is that the Court was just looking to correct grievous error in a very simple case, making this one of those one-off cases in which SCOTUS corrects egregious error without a broader rulemaking goal. But if that was the goal, the Court could have genuinely GVR'd the case or issued a summary reversal. By also writing an opinion--even per curiam--identifying the factual disputes and the conflicting evidence showing those disputes, the Court arguably is trying to do more: Demonstrating the appropriate analysis and trying to pull lower courts into line.

As I said earlier, I believe much depends on how the Court decides Plumhoff v. Rickard and the analysis the Court uses to get there. If the Court speaks, a la Scott v. Harris, about some testimony being "blatantly contradicted" by the record and thus insufficient to create factual disputes, that will remove a lot of the force from Tolan as a major summary judgment decision. If the Court rules for the defendant (as I expect) without a lot of focus on summary judgment, it may leave Tolan more room to do something.

Posted by Howard Wasserman on May 9, 2014 at 02:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, May 08, 2014

Donald Sterling and free speech

There have been scattered rumblings about the problem of the NBA sanctioning Donald Sterling for protected, although offensive, speech. Obviously, this is not a First Amendment problem, since the NBA is a wholly private actor. But we might call it a free speech problem, in that Sterling did suffer a sanction for expressing his opinions. And because it may be difficult to draw the line between this case and people speaking on other matters of people controversy (marriage equality, gay rights, abortion, whatever) and possibly offending someone, the specter of league-imposed suspensions for political speech looms.

Mike Dorf looks for a principled line and finds it in a broad  conception of harassment, such that once Sterling's racist views became public, his continued position as owner "created a kind of hostile work environment." While this is not enough to violate Title VII, Dorf argues that private firms often adopt prophylactic policies that go beyond what the law requires. He thus urges the NBA to defend the punishment on those grounds, rather than on his offensive speech simpliciter.

There is an appeal to this view, especially as a post hoc explanation for what the league did and as a way to isolate what Sterling did as something unique. But I wonder if the principle can be easily cabined. Any controversial policy could be recast as creating this sort of hostile environment--an openly LGBT player may find it hostile that the owner or a teammate contributes to anti-marriage equality causes, just as a devoutly religious player may find it hostile that a teammate opposes Christian prayer before public meetings, just as an Dominican player may find it hostile that a teammate supports heightened immigration enforcement. Maybe this is just the worst kind of slippery-slope anxiety--no league is going to suspend anyone for being involved in genuine social and political causes and we should not dignify what Sterling did by comparing it genuine political involvement. But I am not convinced Sterling (or to go back a longer time, former MLB pitcher John Rocker) only a difference of degree, not kind.

But if not Dorf's approach, then what?

One possibility is to try to distinguish speech (and wrongful non-speech activities) that genuinely relates to one's part or role on a team and in the league from speech that does not, with only the former providing a basis for league sanction. I thought about a version of this in thinking about what the league should have done a decade ago with the various racialized civil actions Sterling was involved in.

Now, this may not be any better, since it does not necessarily avoid those same line-drawing problems. Just as a league always can say X's involvement in a hot-button political controversy "creates a kind of hostile work environment," so can a league always say X's involvement in a hot-button political controversy relaates to his role on the team (often by throwing out the buzzword of creating "distractions in the lockerroom"). This saves us having to define and develope a new concept such as "kind of hostile work environment." But we still have to figure out what "genuinely relates" to one's role on the team. Another approach is for private entities to import some kind of Pickering balance, although that remains squishy and malleable enough to still cause problems.

None of this changes my basic view that the NBA has the authority to force the sale (and probably to suspend) Sterling and that these sanctions should hold up if/when he challenges them in court. But Dorf is onto something about not what the league can do, but what it ought to do.

status within the Clippers organization created a kind of hostile environment - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf

Posted by Howard Wasserman on May 8, 2014 at 04:34 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, May 07, 2014

Judge Tatel Uses a Concurrence to his own Majority Opinion as a Mechanism for Calling for Review of the Constitutionality of the Prison Litigation Reform Act

Many readers of this blog have had the experience as a law clerk reading complaints filed by prisoners or as a lawyer trying to help prisoners bring their concerns about mistreat or wrongful conviction to the courts.  Having worked directly on issues of prisoner access to health care, I've seen this issue from both sides. I also bring the PLRA act to students' attention in two classes I teach- Correctional Health and Constitutional Issues in Health Law.

Sometimes the petitions are heart-breaking, sometimes silly and almost always exhausting to parse.

Much of that activity was halted by a very powerful federal law, the Prison Litigation Reform Act of 1996 that set up a 3 strikes system that deprived a prisoner's right to petition the court without paying a filing fee after a judicial determination that he or she had filed 3 frivolous law suits.

For anyone interested in the issue (and/or looking for an article topic) I commend to you a very interesting  concurring  opinion today in the case of Keith Thomas v. Eric Holder, Jr. (DC Circuit) in which Circuit Judge Tatel takes a direct and critical look at the constitutionality of this law.  He writes that "I have grave doubts that the PLRA’s three-strikes provision may be constitutionally applied to indigent prisoners who seek access to the courts in order to bring claims involving fundamental constitutional rights. In the appropriate case, this court should address this unsettled issue.--and I commend it to everyone interested in access to the courts and civil rights."

But I also highlight it for the subsection of this readership with an interest in the art of judicial opinion writing--this is an opinion where Judge Tatel wrote the majority finding for the government AND  a concurrence expressing doubts about the law's constitutionality.  His reason for doing so makes sense--the constitutionality of  the PLRA was not directly relevant to dismissing an appeal in a case seeking the reclassification of marijuana so that it could be made available to prisoners for medical use.  

As he explained, "[f]or this court to reach out and decide this difficult and important question simply to reinstate a pointless appeal would violate the norm of constitutional avoidance to which we generally adhere."

But  his concern is justified.  Efficiency is an insufficient justification for blocking access to the court for those most vulnerable to abuse of state power.

Posted by Jennifer Bard on May 7, 2014 at 12:46 AM in Constitutional thoughts | Permalink | Comments (0)

Tuesday, May 06, 2014

Town of Greece and Iqbal

A funny thing about Town of Greece v. Galloway: I am not outraged or panicked about the future, as I somehow feel I should as a Jewish liberal Democrat. (Update: Perhaps I am not alone). I would have dissented were I on the Court, but I do not see the majority as tragically wrong. Maybe because Paul is right. Maybe because I know I am a religious minority and am not bothered by being reminded about that. Maybe because I do not attend town council meetings. Maybe because I have never lived in the type of community likely to use this decision as a reason to start those council meetings with pervasively sectarian or proselytizing prayers.

I do find troubling the utterly illusory nature of the (already small) opening the plurality left for challenging legislative prayers. Justice Kennedy stated this opening three different ways: "If circumstances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course." And "[c]ourts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood." And "[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose," there is no constitutional violation.

But it seems unlikely that a plaintiff will ever be able to make this showing. More problematically, it seems extraordinarily unlikely that a plaintiff will even be able to even sufficiently plead this under Iqbal (perhaps not coincidentally, another Kennedy opinion over a four-Justice dissent) so as to have an opporuntity to make the showing. It is easy to imagine the Court sweeping the complaint aside by finding an “obvious alternative explanation” for the government practice that is more plausible than the conclusion of an Establishment Clause violation. So, as in Town of Greece itself, that decade-long streak of only pervasively Christian prayers are a result not of impermissible purpose, but of bureaucratic over-simplification (using the Chamber of Commerce's limited list of houses of worship) or the fortuity of geography (the synagogue is on the other side of the imaginary town line).

Update: Dahlia Lithwick reports that Al Bedrosian, a member of the Roanoke County (Va.) board of supervisors has announced that he will seek to impose a Christian-only prayer policy, admitting that he probably would not allow any other religions, because America is a Christian nation and adherents to other religions are free to pray on their own. Public statements such as this make it easy enough to state a claim. The problem is that most public officials are smarter, saner, or subtler than Bedrosian, or will quickly learn to be. Then, much as with employment discrimination, cases become more difficult to prove and plead.

Posted by Howard Wasserman on May 6, 2014 at 05:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Monday, May 05, 2014

Why not plenary review?

SCOTUS on MOnday GVR'd Tolan v. Cotton with a per curiam opinion (beginning on p. 13) holding that the lower courts failed to view the facts in the light most favorable to the plaintiff in granting the § 1983 defendant summary judgment (the case involved a police shooting). The analysis illustrates how a court should draw inferences in the non-movant's favor, identifying four or five facts and why the presence of contradictory evidence puts those facts in dispute. And the Court avoids the slicing-and-dicing of facts as in so many summary judgment cases. (The opinion could be a nice supplemental case for teaching summary judgment, showing how a court finds or does not find factual disputes).

But why did the Court GVR, rather than performing plenary review of the case and producing a precedential opinion? We certainly could use a precedential case from SCOTUS showing that sometimes there are factual disputes and summary judgment is not appropriate (especially given how Plumhoff v. Rickard likely will come out). Yes, the factual disputes were fairly obvious from the record, although probably not more so than in other cases. Moreover, most GVRs are done to give the lower court an opportunity to reconsider the case in light of new law or a recent decision, rather than, as here, to reconsider the decision because the lower court did it wrong the first time. The Court did produce a per curiam opinio analyzing the merits (unusual in GVRs), which should have some precedential effect. But it seems an odd approach.

Justice Alito, joined by Justice Scalia, concurred in the judgment (p. 24 of Monday's Order List). They argued that it was inappropriate to grant cert. (although they agreed with disposition of the case once cert. was granted), which only involved the routine consideration of the sufficiency of the record on summary judgment and possible factual error--routine work for courts of appeals, but not for SCOTUS.

Interestingly, Alito, joined by Scalia, cited his concurring opinion from Tolan in dissenting from denial of cert. in Beard v. Aguilar (p. 26 of Monday's Order List), a habeas case in which the Ninth Circuit found that the California Supreme Court had unreasonably Brady to the facts of the case. The point, I guess, is that if the Court is going do error correction in Tolan, it also should have done so there.

Posted by Howard Wasserman on May 5, 2014 at 04:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (9)

Friday, May 02, 2014

Churches and marriage equality, ctd.

Chanakya Sethi at Slate reads the North Carolina anti-SSM stautes the same way I did -- as prohibiting civil ceremonies, not purely religious ones having no civil effect -- as do an expert on North Carolina family law and religious law scholar Doug Laycock.

Posted by Howard Wasserman on May 2, 2014 at 08:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Thursday, May 01, 2014

Introduction

Hello—and thank you to Dan and PrawfsBlawg for inviting me to guest this month!

My name is Jennifer Bard and I am a Professor at Texas Tech University School of Law where, among other things, I direct our Health Law Program.  I’ve been blogging in the “Profs” family at HealthLawProfs and more recently also at the Harvard Bill of Health.  My research interests include legal & ethical issues in conducting research, the effect of increasing knowledge about the brain on the legal response to criminal conduct, and the intersection between Constitutional Law and the regulation of health care delivery and finance.  Here’s where you can find some things I’ve published.

Over the next month, I look forward to blogging about issues I’ve been thinking about a lot including the future of legal education—both in terms of curricular reform and addressing the substantial challenges facing us about the cost of law school and the rapidly changing job market, current issues in higher education, and of course on-going developments in health law. 

My thinking has been shaped a lot by two degrees I got after law school.  The first was a master’s of public health which gave me the “prevention” model of solving.  The big idea in public health is that it’s always easier to prevent a problem than to solve one—but first you need to understand its causes.  The second is a Ph.D. in Higher Education that introduced me to the much larger theoretical and regulatory context in which legal education occurs. 

This is a time of significant change in higher education as it faces close scrutiny from consumers and the state and federal governments representing them.   For example, on Monday President Obama issued a report calling for substantial changes to the way universities both prevent and respond to sexual harassment and sexual assault.  Here is the first PSA to come from the White House on this topic.  Although law schools often see themselves as autonomous islands within the larger university, we are all going to see the effects of this and other related campaigns.

Posted by Jennifer Bard on May 1, 2014 at 12:25 PM in Blogging, Constitutional thoughts, Current Affairs, Life of Law Schools, Science, Teaching Law | Permalink | Comments (1)

Wednesday, April 30, 2014

Of (Courtney) Love and Malice

Today Seattle Police released a note found on Kurt Cobain at his death excoriating wife Courtney Love. Based on her subsequent behavior, Love cannot have been an easy person to be married to. I've been researching Love lately for an article on social media libel that I'm writing with RonNell Andersen Jones.  Love is not only the first person in the US to be sued for Twitter libel; she's also Twibel's only repeat player thus far. According to news reports, Love has been sued for Twitter libel twice , and recently she was sued for Pinterest libel as well. 

Love's Twitter libel trial raises interesting issues, one of which is how courts and juries should determine the existence of  "actual malice" in libel cases involving tweets or Facebook posts by "non-media" defendants. As you probably recall, the US Supreme Court has held that the First Amendment requires public figures and public officials to prove actual malice--i.e., knowledge or reckless disregard of falsity--before they can recover for defamation. And even private figure defamation plaintiffs involved in matters of public concern must prove actual malice if they wish to receive presumed or punitive damages.  However, US Supreme Court jurisprudence elucidating the concept of actual malice predominantly involves “media defendants”—members of the institutional press—and the Court’s examples of actual malice reflect the investigative practices of the institutional press. Thus, the Court has stated that in order for a plaintiff to establish actual malice, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." [St. Amant v. Thompson] Actual malice, for example, exists if a defendant invents a story, bases it on ‘an unverified anonymous telephone call,” publishes statements “so inherently improbable that only a reckless man would have put them in circulation,” or publishes despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports." Id.

These examples have little resonance for “publishers” in a social media context, many of whom, like Love, post information spontaneously with little verification other than perhaps a perusal of other social media sources. The typical social media libel defendant is less likely than her traditional media counterpart to rely on informants strategically placed within government or corporate hierarchies or to carefully analyze primary sources before publishing. Moreover, the typical social media defendants has no fact-checker, editor, or legal counsel and is less likely than institutional media publishers to have special training in gauging the credibility of sources or to profess to follow a code of ethics that prizes accuracy over speed. 

The issue Courtney Love's libel trial appears to have raised is whether it constitutes reckless disregard of falsity if a defendant irrationally believes her defamatory accusation to be true. I say "appears," because one can only glean the issue from media accounts of Love's libel trial--the first full jury trial for Twitter libel in the US. The jury found that Love lacked actual malice when she tweeted in 2010 that her former attorney had been "bought off." Specifically, Love tweeted: “I was f—— devestated when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote[sic].” Holmes sued Love in California state court for $8 million, arguing that the tweet accused Holmes of bribery. Love contended that her tweet was merely hyperbole. News accounts of the jury verdict in Love’s favor, however, indicate that the jury found that Love did not post her tweet with “actual malice." The jury deliberated for three hours at the end of the seven-day trial before concluding that the plaintiff had not proved by clear and convincing evidence that Love knew her statements were false or doubted their truth.

The Love case doesn't set any precedents, but it raises interesting issues for future cases. According to court documents and news accounts, Love consulted a psychiatrist for an “addiction” to social media. Certainly Love’s actions in the series of defamation cases she has generated do not seem entirely rational, but there is no “insanity defense” to a libel claim. Yet the determination of whether a defendant had “actual malice” is a subjective one, meaning that it is relevant whether the defendant suffered from a mental illness that caused her to have irrational, or even delusional, beliefs about the truth of a statement she posted on social media. It seems problematic, however, for the law to give no recourse to the victims of mentally disordered defamers pursuing social media vendettas based on fantasies they have concocted. As a practical matter, this problem is likely to be solved by the skepticism of juries, who will rarely accept a defendant’s argument that she truly believed her delusional and defamatory statements. Or at least I hope so. 

And in case you wondered . . . Love's first social media libel case involved her postings on Twitter, MySpace and Etsy calling  a fashion designer known as the "Boudoir Queen" a "nasty lying hosebag thief" and alleging that the Queen dealt cocaine, lost custody of her child, and committed assault and burglary. Love apparently settled that case for $430,000. Love's third social media libel case involves further statements about the Queen that Love made on the Howard Stern show and posted on Pinterest. Some people, it seems, are slow learners.

Posted by Lyrissa Lidsky on April 30, 2014 at 06:30 PM in Blogging, Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (0)

Tuesday, April 29, 2014

Marriage, religion, and good (and bad) arguments

A § 1983 action was filed Monday in the Western District of North Carolina, challenging North Carolina's prohibition on marriage equality. What is interesting here is that the plaintiffs include the General Synod of the United Church of Christ and a number of clergy of different faiths; they argue that state law violates Free Exercise by prohibiting them, under penalty of criminal prosecution, from performing religious same-sex marriage ceremonies that their religious teaching approves.

Proponents of marriage equality have responded to religious objections by emphasizing the difference between secular and religious marriage--that requiring the state to recognize same-sex marriages (under the Fourteenth Amendment) does not obligate religious institutions to recognize or solemnize those marriages, to the extent it would contradict that religion's teaching. The plaintiffs here allege the opposite--that North Carolina, in prohibiting same-sex secular marriages, is prohibiting religious institutions from recognizing or solemnizing same-sex marriages where it is consistent with that religion's teaching.

While state legislatures enact a lot of blatantly unconstitutional laws, a law imposing criminal sanctions on clergy performing a sacrament seems way beyond the pale. But is that really what is going on here?

Paragraphs 91a and 91b of the Complaint quote the relevant statutory provisions, which refer to any "minister, officer, or other person authorized to solemnize a marriage under the laws of this State" performing a marriage for a couple that does not present a valid marriage license (presumably a different provision prohibits issuance of a marriage license to a same-sex couple). It seems to me the appropriate reading of that language is that it only prohibits ministers and others from performing a marriage ceremony that requires a license from the state--in other words, a secular marriage that would be recognized by and binding in the state.  But that does not extend to purely religious marriages--I do not need a marriage license from the state to obtain a Jewish marriage, only a ketubah. In addition, the language "minister, officer, or other person" includes clergy as well as non-clergy who perform only secular marriages (judges, notary publics). This suggests that the prohibition is on performing secular marriages, not religious ones, since secular marriages are the only things the people listed in the statute have in common. On this reading, there is no First Amendment problem, because state law does not, in fact, prohibit clergy from engaging in any purely religious ceremonies or otherwise prohibit anyone from practicing their religion.

Alternatively, perhaps the church and clergy plaintiffs are arguing that the state is unconstitutionally depriving these religious ceremonies of legal effect, meaning the state must recognize any marriage performed by clergy whose religion would recognize that marriage. But that seems such an obvious Establishment problem. And ¶ 106 states the claim as clergy being "prohibited under threat of criminal prosecution from performing any such religious ceremonies" and congregants being "prohibited from becoming married in the tradition of their respective faiths," all suggesting that it is only the religious element being challenged here.

So why raise this claim? Well, it allowed at least one commentator to seize on the case and rail about religious hypocrisy, so there is a political and rhetorical benefit. But when there are (in my, and every lower court's, opinions) so many good arguments to make as to why these laws violate the Fourteenth Amendment, why reach out for a bad one based on an unrealistic statutory reading?

Update: The point of this post was to consider the constitutional validity of one particular claim in this lawsuit. It was not to have a debate about theology and whether SSM is consistent with the will of god, a debate I am not competentto have here. There are many internet fora for such discussions; this post is not one of them. Please refrain from posting comments arguing such issues. I will continue removing them, which gets old quickly. At some point I simply will have to close comments, which I hate to do, since there are many relevant points to be made on the actual subject of the post.

Posted by Howard Wasserman on April 29, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (17)

Saturday, April 26, 2014

The truth about justiciability

From last week's  argument in Susan B. Anthony List v. Driehaus:

JUSTICE GINSBURG: Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness.

MR. CARVIN: In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context. No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.

You have to admire the honesty. The Sixth Circuit, which analyzed this as a ripeness case (and held that the action was not ripe), similarly acknowledged that the ripeness prong of likelihood of harm overlap with the standing prong of real, immediate, non-speculative injury-in-fact. It always has been difficult to explain the distinction between standing and ripeness (mootness tends to more clearly be its own thing). And that has become worse over the past several years, as SCOTUS has ratched up the injury-in-fact requirement in its standing cases. In a pre-enforcement constitutional challenge, whether a plaintiff has suffered an injury for standing purposes necessarily includes whether the plaintiff faces a likely risk of immediate harm, which long had been the bailiwick of ripeness.

Perhaps the Court will take this as a chance to clarify, although I doubt it. It seems so obvious that the case is justiciable, and the justices all so obviously believe the Ohio law--which prohibits knowingly false statements made in support or opposition to a candidate for office--is unconstitutional. The Court is going to be racing to reverse and send the case back to give SBA its chance to argue the merits in federal court. I doubt the fine details of standing v. ripeness are going to be the central concern.

Update: Alert reader Sam Bray (UCLA) reminds me about footnote 8 in Medimune, Inc. v. Genetech, Inc., where the Court said that standing and ripeness "boil down to the same question."

Posted by Howard Wasserman on April 26, 2014 at 10:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Thursday, April 24, 2014

The American Presidency and the Need for Reform

If electing a single executive from one party compromises principles of representation, promotes partisan conflict, and encourages poor decision making, we should give serious consideration to ways in which executive power in the United States could be shared across party lines. With shared power, almost all Americans would have a voice in the policy making of the executive branch, solving the representation problem. And with broad representation of the public, partisan conflict could be defused. Moreover, with perspectives from both sides of the aisle on the table, wiser decisions should emerge from the Oval Office.

Shared power may seem problematic, but as David Fontana has observed, it has become much more common around the world for losing parties to be given “winners powers.”  Under the interim South African constitution, for example, the losing party was given seats in the cabinet, an approach that Fontana recommends for the United States.

Switzerland may provide the best example of shared executive power. In Switzerland, the executive power lies in the Federal Council, which has seven department heads who possess equal decision-making authority. Decisions are made by consensus, with resort to a majority vote only in exceptional cases. For more than fifty years, the seven councilors have come from the major political parties (currently five) that represent roughly 80 percent of the country’s voters, and the councilors work cooperatively.

After their 19th century civil war, the Swiss concluded that the best way to bridge social divides was to ensure that all citizens have a voice in their government. And with its broad sharing of power, the Swiss government has been able to avoid the kind of political conflict that we experience—and that Switzerland once experienced—even though its population is socially more diverse than our own. Switzerland has effectively melded its French, German, Italian, and Romansh citizens, as well as its Catholic and Protestant communities.

I think the Swiss have it right. Accordingly, in my book on political dysfunction, I recommend a bipartisan executive, with two presidents from different parties who would share power equally. Voters would still cast a single ballot every four years, but instead of sending the candidate with the most votes to the White House, the top two vote-getters would share the Oval Office. Most likely, the two presidents would come from the Democratic and Republican parties, but a two-person presidency would make third-party candidates much more viable. The Ralph Nader supporter in 2000 could have voted for him with the assurance that either Nader or Gore would run second.

Why wouldn’t two presidents bicker too much and become paralyzed by their inability to share power? The key to making shared power work, as in Switzerland, and avoiding failure, as happened in Uruguay, is to structure the sharing of power properly. For example, a party’s share of power needs to reflect its support among the public. Since the public is divided close to 50-50 between Democrats and Republicans, it makes sense to have a 50-50 division of power.

It also is critical to ensure that executives have strong incentives to cooperate and weak incentives to fight. In the case of a two-person, two-party presidency, the two executives would not have incentives to develop a relationship of conflict. Elected officials may be highly partisan, but they are partisan for a purpose. In typical power-sharing settings, one person can hope to establish a dominant position by outmaneuvering the other person. In the coalition presidency that I discuss, neither president could hope to prevail over the other president. During their terms, they would share power equally, and reelection also would come with half of the executive power.

Not only would the two presidents lack an incentive to engage in conflict; they also would have an important incentive to work cooperatively. Having reached the pinnacle of political life, presidents care most about their legacies. George W. Bush’s decision in 2003 to invade Iraq and overthrow Saddam Hussein is illustrative. While there were a number of reasons for his decision, it appears that he was influenced by the potential for introducing democratic governance to the Arab Middle East and providing a model that could spread to neighboring countries. The possibility of transforming a major region of the world overcame his opposition during the presidential campaign to policies of “nation building.”

If the two members of a coalition presidency spent their terms locking horns, they would not be able to implement key proposals that could enhance their reputations and burnish their legacies. Accordingly, they likely would come to accommodations that would allow them to implement meaningful policy changes.

Even if presidents from different parties could work together, wouldn’t members of Congress undermine cooperation with their own partisan battles? Not likely. In a two-person presidency, nearly all voters would have their preferred candidate serving and would be much more comfortable with the initiatives that emerged from the executive branch. Instead of half the public feeling disempowered and inclined to break the president’s administration, almost all voters would have a stake in the success of the executive branch. There no longer would be a mass of disaffected voters receptive to a policy of partisan obstruction. Currently Eric Cantor’s constituents like his opposition to Barack Obama, but they would not be very happy if he were obstructing an Obama-Romney administration.

For the same reasons, presidential partners would not have to worry that their compromises would leave them vulnerable to primary challenges when they stood for reelection. The 47 percent who voted for Mitt Romney are disaffected and receptive to a radical movement on the right. If those 47 percent had a voice in the Oval Office, they would not respond to the Tea Party. Indeed, Barack Obama faced no primary challenge from the left in 2012 even though he sold the left out on single payer health care, closing Guantanamo, drone strikes, and other issues. The Democratic Party was represented in the White House, and that was good enough for most Democrats.

If it seems unfair for the losing candidate to share equally in the executive power, it should seem even more unfair for the losing candidate to exercise none of the executive power. Forty-seven percent of the vote is a lot closer to fifty percent of the power than to zero percent of the power.

Whether my prescription is the right one or not, we won’t solve our political dysfunction unless we take seriously the need to ensure that all Americans have a voice in the policymaking offices of their government.

Posted by David Orentlicher on April 24, 2014 at 09:08 AM in Constitutional thoughts | Permalink | Comments (0)

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: dkirklan@law.fsu.edu.

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 (1) | 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