Tuesday, June 24, 2014

Purdy on our "anti-democratic court"

Prof. Jed Purdy (Duke) (Go Devils) has a piece at The Daily Beast called "God Save the United States from this Anti-Democratic Court."  (Ann Althouse writes about it, here.)  He asks, among other things, "[s]hould a self-respecting democracy have a Supreme Court like ours, with the power to overturn democratic legislation?"  In response to this question, Purdy observes, "[m]ore and more progressive observers are not so sure."  (But see, e.g., Geoffrey Stone, "Do We Need the Supreme Court," here.)   

It's an important question, for sure, and while I'm at best a faint-hearted and selective Thayerian, I'm sympathic to -- or at least think that I should be -- the answer Jeremy Waldron gave, a few years ago in The Core of the Case Against Judicial Review (That is, "pretty much no.")  The problem with Purdy's piece -- or, perhaps, the problem with me -- is that it is really hard for me to avoid the reaction, "Well, it appears to me that progressive observers, like most of the rest of us, like judicial review when they think courts get the right answer and dislike it when they think courts get the wrong answer.  Justice Breyer, for example, thinks it's really important to defer to legislative judgments, except when state legislatures enact school-choice programs."    Purdy quotes Rob Hunter’s recent conclusion that “judicial interference with democracy” should become “unthinkable," but I guess I'm skeptical that progressives, or Purdy, really want to unthink all "judicial interferences with democracy."  Few Court decisions have been as "anti-democratic" as, say, Roe v. Wade or Engel v. Vitale, but I suspect Erwin Chemerinsky's new book, The Case Against the Supreme Court (which Purdy mentions) will not criticize these rulings.

Don't get me wrong, my hands are not clean here:   I've suggested that the Court should be very deferential and hands off when it comes to the Establishment Clause but also that Hosanna-Tabor was about as right as a Court decision can be.  And, it could be that my snark is unfairly directed at Purdy's piece, since he does say:

For this reason, it’s the rare radical democrat who will denounce the Supreme Court right down the line. Whatever they think of the Court’s other decisions, progressives will generally celebrate without reservation on the all-but-certain day when the Court established marriage equality nationwide. Most Americans think of the Constitution as being ultimately on their side, and identify the Constitution with the Supreme Court. When they agree with the Court’s decision, they tend to think the country has been called back to its best self. When they disagree, they tend to think there has been a regrettable, maybe terrible, mistake.

So . . . what?  Maybe this latest uptick of expressed frustration with the strangeness of a state of things in which the Answers to Big Questions are provided by Justice Kennedy is just a reprise of the popular-constitutionalism conversation, or the inquiry into whether there really is such a thing as "judicial activism" (See, e.g., Kermit Roosevelt's book), or the call for "neutral principles", or the celebration of the "passive virtues", or . . . .  I'm not sure.  I feel confident, though, that few if any of us -- despite what we might wish we could honestly say we want -- really want the Court to be entirely inert or unflinchingly "democratic."

Posted by Rick Garnett on June 24, 2014 at 05:25 PM in Constitutional thoughts, Rick Garnett | Permalink | Comments (9)

Friday, June 20, 2014

When dissent rhetoric comes true

In covering summary judgment in civ pro, I teach an Eighth Circuit case called Sitzes v. City of West Memphis. A police officer drove, perhaps without lights or sirens, 80-90 mph through a residential neighborhood towards what may or may not have been a genuine emergency and hit a car, killing the driver and injuring the passenger. A divided court held that intent-to-harm was the applicable standard and granted summary judgment in favor of the officer. It is a great teaching case because both the majority and dissent parse the evidence in the record in identifying what may or may not be genuine disputes of material fact and join issue with what facts are material in light of the applicable legal standard. It is also one of the few cases in Civ Pro that genuinely seem to get students riled up.

At one point, the dissenter (a district judge sitting by designation) went into parade-of-horribles mode. The majority held that there was no intent to injure since the officer genuinely subjectively believed he was rushing towards an emergency. That being so, the dissent argued, "an officer could avoid Section 1983 liability for driving 100 miles per hour through a children’s playground during recess time, by stating that he subjectively believed there was an emergency and the path through the playground was the most direct to get to the claimed emergency." The majority's only responses were: 1) that's not this case and 2) "we think it very likely that an officer who intentionally drove through a playground . . . could be held liable even under the intent-to-harm standard, regardless of the officer’s avowed belief, at least absent some compelling exigency not described in the hypotheticals."

Well:

 

True, it is a golf course not a playground and the video seems to suggest it was not crowded. And it was a pursuit, apparently begun when officers attempted to serve outstanding drug warrants, perhaps the "compelling exigency" the majority demanded; it was not the officers using the golf course as a short-cut to reach some other location. And, fortunately, the officers did not hit anyone, so we need not address the § 1983 or due process questions.

On the other hand, why chase him onto the course, with all the attendant risks? There was a police helicopter in the chase, so the guy was not going anywhere.

Posted by Howard Wasserman on June 20, 2014 at 11:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Thursday, June 19, 2014

How to Prosecute Crimes Committed Abroad?

Earlier this year, in U.S. v. Pepe, a former U.S. Marine captain was sentenced to over 200 years in prison for brutally molesting young girls while teaching in Cambodia under the pretense of being a college professor looking out for the Cambodian youth.  He was found guilty of a violation of the PROTECT Act, a laudable federal statute with extraterritorial application which prohibits U.S. citizens from molesting children abroad.  The Pepe case had been lingering for eight years.  The investigation began in 2006, the jury convicted in 2008, and since then the case has been stuck in litigation limbo (a lingering motion for new trial based on an inappropriate relationship between a U.S. law enforcement agent and translator).

I have previously written about the PROTECT Act, and how it, along with numerous other federal statutes that criminalize U.S. citizens behavior abroad, raises an interesting Foreign Commerce Clause (FCC) issue - a matter in which circuit courts are in complete disarray over.  Assuming that Congress, under the FCC, has the power to enact laws like the PROTECT Act with extraterritorial application, the next issues to address (the issues which are framing my fall research project) are the criminal procedure implications of investigations of U.S. citizens in other countries and the related evidentiary matters.

If the U.S. criminally prosecutes a citizen for behavior abroad, when and to what extent should constitutional guarantees (like search and seizure) apply?  It has been suggested that so long as U.S. government agencies train foreign officers, constitutional rights would be secure and the evidence would be admissible.  That seems simplistic, and, indeed, case law is unclear.  For example, under the "joint venture doctrine," a U.S. agency may be so involved with a foreign investigation that the foreign authorities would be deemed as "acting as agents for their American counterparts."  At that point, the U.S. citizen has the right to constitutional protections.  But, the circuits are split as to what level of involvement the U.S. agency has to have to give rise to a joint venture.

What about evidentiary issues?  For example, in one PROTECT Act case, an NGO was helping U.S. and foreign authorities investigate a U.S. citizen traveling in Asia.  When the foreign agents arrested the defendant, an individual from the NGO took the defendant's laptop home which created problematic chain of custody issues at the U.S. trial.  From both practical and legal perspectives, securing witnesses and admissible evidence in the prosecution of extraterritorial crimes create extraordinary legal battles.  Given how easy international travel has become, these issues will become more and more prominent.

Posted by Naomi Goodno on June 19, 2014 at 05:55 PM in Constitutional thoughts, Criminal Law, Current Affairs, International Law | Permalink | Comments (0)

Standing is easier when you're Younger

An open issue in the standing discussion in SBA List is the extent to which the threat of an administrative proceeding, a la a complaint about false electoral speech before the Ohio Elections Commission, constitutes sufficient harm to allow standing for a preenforcement challenge to the underlying statute. The Court emphasized that adminstrative proceedings impose burdens on time, cost, and distraction to possible speakers and that a Commission finding that some speech was false may be viewed by the public as a state-imposed sanction--all genuine injuries-in-fact. The Court cited Ohio Civil Rights Commission v. Dayton Christian Schools for the proposition that "If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not." But the Court ultimately punted on the question because Commission proceedings might be followed by criminal prosecution, presenting an additional element of harm in this case.

But the Court's hesitancy or ambiguity on this point is unwarranted and potentially troubling. There should be no question that genuinely threatened administrative enforcement proceedings should be sufficient for preenforcement standing.

Dayton was a Younger case, which held that federal courts must abstain in deference to ongoing coercive enforcement proceedings before a state civil rights commission. The portion of Dayton quoted  in SBA List was from Footnote 1, in which the Court quickly disposed of any ripeness concerns, citing two other Younger decisions, both of which involved threatened criminal prosecutions, Steffel v. Thompson and Doran v. Salem Inn.

The key is recognizing that connection between standing and Younger. Younger requires abstention in deference to three types of pending state proceedings, including civil enforcement proceedings, especially those in which the state is party to the proceeding and in which the state initiates the formal process following some other preliminary investigation. The Sprint Court expressly recognized the administrative proceedings in Dayton as of the type to which a federal court must abstain. And the Court has never suggested that administrative proceedings must be supported by criminal prosecution to trigger abstention; a purely civil administrative proceeding is enough. Younger does not require abstention where those civil-enforcement proceedings are threatened but not pending. The issue then is one of standing or ripeness (or both)--whether there is a sufficiently credible threat (how sufficient is the point of Marty's post) that any such proceeding will be initiated. This creates a window for individuals to get into federal court--in the time between when the threat of initiation becomes real and when proceedings actually have been initiated.

So now we can frame the standing question for preenforcement challenges in those terms. If there is a credible threat of initiation of any proceeding and it is a proceeding from which Younger would require federal abstention once that proceeding is initiated, then the plaintiff has standing (or the action is ripe, whatever) for a preenforcement challenge. This now preserves that window for getting to federal court. Otherwise, if a genuine threat of a purely administrative proceeding is not sufficient to trigger standing, then a plaintiff is forever blocked from that federal forum--he cannot bring a preenforcement challenge and Younger kicks-in once the government initiates the administrative proceeding. In SBA List, it seems obvious that a federal court would abstain once Commission proceedings were pending against a speaker--that is what the district court initially held in the case (before other things happened procedurally). Therefore, the real threat of those Commission proceedings alone--whether or not supported by criminal prosecution--should be enough to establish standing.

Posted by Howard Wasserman on June 19, 2014 at 07:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, June 18, 2014

More on SBA List and standing

Marty Lederman offers some thoughts at SCOTUSBlog on the future of standing after SBA List. He focuses on something I glossed over a bit: The seeming inconsistency between Clapper, which required that an injury be "certainly impending," and prior case law (referred to in passing in a footnote in Clapper) which only required a "substantial risk" of harm. In SBA List, Justice Thomas presents them as alternative standards. Marty parses the decision, suggesting the Court applied a uniquely forgiving standard there, given that there was little chance (not even substantial and certainly not "certainly impending") of the state bringing a criminal prosecution on top of the administrative proceedings that were more likely. He also argues that the Court has the flexibility to make the requirements looser or stricter, depending on future contexts (considering, e,g., whether free speech is involved or whether election issues are involved or something else).

That "something else" might be the difference between challenges to regulations of the public's primary conduct as opposed to regulations of law-enforcement techniques and practices.

Posted by Howard Wasserman on June 18, 2014 at 12:53 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Tuesday, June 17, 2014

SLU PLR Call for Papers: The New Civil War: State Nullification of Federal Law 150 Years after Appomattox

From the Saint Louis University Public Law Review:

In recognition of the 150th anniversary of the end of the Civil War, the editorial board of the Saint Louis University Public Law Review (PLR) is soliciting articles for a special issue on the recent resurgences of state opposition to federal power.  The publication will consider articles on current federal/state tensions, as well as articles linking current events to the history of nullification in the United States.  Possible topics include but are not limited to:

* State efforts to nullify Federal Marijuana Laws

* State efforts to nullify Federal Gun Laws

* State resistance to Federally Mandated Health Care

* State efforts to constitutionalize bans on Same-Sex Marriage

Interested authors should submit an abstract of no more than 1,000 words to Managing Editor Dan Rankin (drankin3@slu.edu) by July 1, 2014.  Publication offers will be made based on an editorial board review of the submitted abstracts.  Accepted offers will receive a publication contract from PLR that will require finished articles by October 15, 2014.  All inquiries should be directed to drankin3@slu.edu.

Posted by Matt Bodie on June 17, 2014 at 02:46 PM in Constitutional thoughts, Current Affairs | Permalink | Comments (0)

Monday, June 16, 2014

Standing, ripeness, and SBA List

Not surprisingly, SCOTUS in Susan B. Anthony List v. Driehaus reversed the Sixth Circuit and held that the First Amendment challenge to Ohio's prohibition on knowingly or recklessly false campaign speech was justiciable; Justice Thomas wrote for a unanimous Court in a challenge brought by a group that wanted to run ads suggesting that supporting the Affordable Care Act means supporting taxpayer funded abortions. A few things of note (in addition to Richard's comments).

Injury-in-fact is established for purposes of a preenforcement challenge when the plaintiff alleges an intention to engage in some conduct "arguably affected with a constitutional interest" that is prohibited by the challenged statute where there is a credible threat of prosecution. That threat be shown by past prosecutions against similar conduct by the plaintiff or others similarly situated and by the absence of any disavowal of intent to prosecute. Threat may also include bringing administrative proceedings (such as those at issue here), at least when combined with a threat or risk of criminal enforcement (the Court left open whether administrative proceedings alone is enough of an injury to create standing).

Although this is a free speech case and the Court relied on many free speech cases (especially Steffel v. Thompson and Babbitt v. United Farm Workers), the Court spoke about all preenforcement challenges generally. It did not suggest, as some lower courts have said, that there is a lesser standard or reduced burden for free speech cases, but that more is required as to other constitutional rights. This arguably could change lower-court analysis of challenges to, for example, some abortion regulations.

At the same time, the Court did not demand the certainty of injury (i.e., state enforcement of the law) that the Court appeared to require just last year in Clapper v. Amnesty International. The Court did cite Clapper's statement that "allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a 'substantial risk’ that the harm will occur," but it focused more on substantial risk and did not demand a similar level of certainty. Although the Court does not discuss it, I think the difference lends support to my idea that the Court silently treats standing differently when the challenged law regulates primary conduct of individuals (i.e., whether they can engage in some political expression) as opposed to laws regulating what law enforcement officers can do in investigating oro pursuing criminal activity (i.e., whether they can surveil calls or use chokeholds).

Note that the Sixth Circuit had also analyzed the imminence of the threat of prosecution, concluding it was not sufficiently imminent. But it held that the lack of imminence meant the case was not ripe, while SCOTUS addressed the same question in standing terms. Justice Thomas noted Medimmune's footnote 8 that both standing and ripeness "boil down to the same question," and insisted on speaking in standing terms because that is what prior cases have done.

But the Court did not explain what is the proper realm for these doctrines and how litigants and courts are to know. To the extent standing and ripeness remain distinct aspects of justiciability, how are we to know which to argue? Lea Brilmayer long ago argued that standing arose when the plaintiff wanted to challenge a no-lawn-sign ordinance because his neighbor wants to post the sign, while ripeness arose when the plaintiff did not want to post the sign until next year. But standing cases (certainly since Lujan and including SBA) have focused on plaintiff's present intent and immediate plans to engage in some conduct (such as going to see the Nile crocodile), which sounds like ripeness as Brilmayer has defined it. Or we might say that the plainiff's immediate intent to engage in some conduct goes to standing, while the likelihood that the government will act to enforce goes to ripeness. But SBA discussed both of those as distinct elements that together went to standing.

The Sixth Circuit did consider two additional "prudential" elements for ripeness beyond imminent threat of prosecution--whether the factual record is sufficiently developed and the hardship to the plaintiffs if judicial relief is denied at this stage. SCOTUS cited its decision in Lexmark to suggest that such prudential factors no longer are part of any justiciability analysis, including ripeness (the focus of Richard's post). And even if they were, the Court disposed of both in a short paragraph, hinting that, at least where there is a legitimate threat of prosecution (creating standing), a preenforcement challenge to the constitutionality of a law always will be ripe.

So what role, independent of standing, if any, does ripeness continue to play in constitutional litigation?

Posted by Howard Wasserman on June 16, 2014 at 04:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Ripeness, In and After SBA List v. Driehaus

Today's unanimous standing decision in Susan B. Anthony List v. Driehaus generally came as little surprise: confronted with speakers wishing to criticize candidates for office, the Court gave a green-light to a pre-enforcement First Amendment challenge. Along the way, however, the Court had a few interesting things to say about ripeness. In this post, I'd like to explore the possibility that SBA foretells future changes in ripeness doctrine.

By way of background, SBA List involved a First Amendment challenge to Ohio's law against recklessly false speech regarding officials and candidates for office. One of the plaintiff groups had previously suffered early enforcement proceedings under this law and felt chilled from further speech of a similar kind. Viewing the case as one about standing, the Court explained that the key question was whether the plaintiff's threatened injury was sufficiently likely. The Court found the requisite threat based on a variety of considerations, including the fact that the plaintiffs planned to continue speaking on the same subject and the legal possibility that administrative complaints could be initiated by any person, including political rivals with an incentive to do so. Though the Court didn't say so, these and other considerations seem to distinguish SBA List from the famous/infamous case Los Angeles v.  Lyons, which found that the threat of a police choke-hold policy didn't give rise to a justiciable injury.

Perhaps the most basic question in SBA List was what doctrinal box to use. The Sixth Circuit had treated the case as one about ripeness, by which it meant three factors: the likelihood of the alleged injury, the record's fitness for review, and the hardship to the parties if relief were postponed. By contrast, the Supreme Court focused on standing, which demands an actual or imminent injury in fact that is traceable to the violation and redressable by a favorable judgment. In a footnote, however, SBA List said that the standing and ripeness issues both "originate" in Article III and "boil down to the same question," at least in this case. In other words, the key issue was whether there was a sufficiently credible threat of enforcement to give rise to an adequately probable injury, as demanded under both standing and ripeness. Later, SBA List confronted the "prudential" ripeness factors going to fitness and hardship. After raising doubts about whether prudential grounds are ever a sound basis for denying federal jurisdiction, the Court left that matter for another day, since all the ripeness factors had been satisfied in the case at hand.

Reading between the lines, SBA List appears to be setting the stage for holding that the prudential ripeness factors aren't constitutional at all, but rather are either unwarranted or substantive components of certain statutes providing for judicial review. This move is familiar after the decision earlier this year in Lexmark International v. Static Control Components, which (among other things) clarified that "prudential standing" doctrines are actually substantive requirements embedded in various statutory causes of action. Making this connection apparent, SBA List quoted Lexmark when it noted that merely "prudential" factors normally aren't a sound basis for denying federal jurisdiction. This approach also seems consonant with recent ripeness cases. Consider National Park Hospitality Association v. Department of the Interior, a 2003 Supreme Court decision that, like SBA List, was written by Justice Thomas. While noting that ripeness is rooted in part in Article III, National Park described ripeness without breaking out likelihood of injury as a distinct requirement, and it followed Lujan in characterizing ripeness as being at least potentially grounded in the Administrative Procedure Act.

If the Court ultimately goes down this path, there is a chance that something valuable might be lost. Under the prevailing standing framework, the key question is whether the plaintiff faces a sufficient threat of injury. Under the ripeness heading, by contrast, the intuitive question is whether the plaintiff has a sufficient threat of injury right now, as opposed to at a later time. In other words, ripeness calls for a comparison of risks across time. That comparative or relative aspect allows the Court to alter the required showing of injury in light of the situation at hand. If the Court rejected that relative ripeness analysis as merely prudential, it might find it harder than expected to live with a non-comparative, one-size-fits-all notion of adequate injury for constitutional purposes. SBA List itself illustrates that difficulty when, in attempting to reconcile competing standing cases, it notes that imminent injury requires either a "certainly impending" injury or only a "substantial risk" of one. Relative analysis, it seems, is hard to purge from the law of justiciability.

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

Posted by Richard M. Re on June 16, 2014 at 04:13 PM in Civil Procedure, Constitutional thoughts | Permalink | Comments (0)

Monday, June 09, 2014

Chief Justice Goldberg? A SCOTUS counterfactual

I am reading Lee Levine's and Stephen Wermiel's The Progeny, which traces the history of New York Times v. Sullivan and subsequent cases and Justice Brennan's efforts to control development of that area of First Amendment law. Arthur Goldberg makes a brief cameo in Sullivan and Garrison v. Louisiana as a third voice on the Court (along with Justices Black and Douglas) pushing for absolute First Amendment protection for all criticism of government and public officials, before resigning (at LBJ's urging) in summer 1965 to become UN Ambassador and to allow LBJ to appoint Abe Fortas to the Court.

So a counterfactual (and maybe this has been written about): What if Arthur Goldberg had not resigned from the Court?

Short term, The Progeny shows that the early path of post-Sullivan defamation cases might have been different. Goldberg aligned t with Black and Douglas for the broadest First Amendment protection (beyond Brennan's actual malice), while Fortas went in the other direction, on one occasion all by himself. Certainly football coach Wally Butts does not keep his defamation judgment if Goldberg rather than Fortas is occupying what at the time was called "the Jewish seat."

What about longer term? Chief Justice Warren supposedly wanted Goldberg to succeed him as Chief. We probably do not get the insanity of the failed nomination of Fortas to be Chief. We definitely do not get Fortas' subsequent pressured resignation from the Court. Do we get a Democratic Chief in 1968 (Goldberg? Brennan? Someone else, and if so, who?), instead of Warren Burger two years later? Would Goldberg have been filibustered the way Fortas was? And if Goldberg becomes Chief, we get someone other than Harry Blackmun in that associate justice seat, another LBJ nomine in 1968 (likedly Homer Thornberry of the Fifth Circuit, who was nominated to Fortas's seat when Fortas was nominated as Chief). In either event, Goldberg lived until 1990; does he become a 20+-year Justice? (or was too otherwise-ambitious and distracted, believing he could be Governor of New York or President).

If nothinge else, does Flood v. Kuhn come out differently? Goldberg likely would have been a third for Flood on the Court, which might have moved other people. More importantly, Goldberg no longer can represent Flood, so he no longer can deliver one of the worst arguments in the Court's history.

Posted by Howard Wasserman on June 9, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Wednesday, June 04, 2014

The Future of Polyamorous Marriage

Last summer, as the LGBT community rejoiced over the Windsor and Perry decisions, polyamorous activists spoke out to remind us that true marriage equality has not been achieved yet (here and here are some articulate posts about this.) The Bay Area polyamorous community has held a couple of political summits since the decisions, and in both of them several activists expressed their bitterness about how the LGBT community, who they vocally and actively supported in their struggle for marriage, "threw them under the bus" and distanced itself from them as part of its legal strategy.

Indeed, you may remember that this actually came up in the oral argument in Perry. Justice Sotomayor asked Ted Olson:

If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to -- that could get married -- the incest laws, the mother and child, assuming that they are the age -- I can -- I can accept that the State has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?

Mr. Olson responded:

Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.

It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case. There's a -- there's a different --

Olson’s response is problematic on various levels.

First, it assumes that multiple marriages generate “exploitation, abuse, patriarchy” but presents no data to support this assumption. And second, its distinction between “conduct” and “the exercise of a right based upon status” is murky at best. After all, marriage, between partners of any number or gender, is a “conduct”, and whether or not prohibiting it is based on status would depend upon whether sexual orientation, and monogamy orientation, are a status—with at least some commentators, like Ann Tweedy, arguing that polyamory could be perceived as a sexual orientation. But what is more interesting about Olson’s response is the reaffirmation of the general tendency among same-sex marriage supporters to draw a boundary between the struggle for same-sex marriage and a possible struggle for multiple marriage—a rhetorical move addressing the sort of “slippery slope” argument that one often hears from conservative opponents like Rick Santorum.

As Ann Tweedy pointed out in The Faculty Lounge that summer, the success of the same-sex marriage struggle seems to have encouraged poly people to consider marriage much more seriously than they did when I did field work on the community in 2005. This made me and Gwendolyn Leachman, a fellow JSP graduate recently hired by University of Wisconsin and a terrific social movements scholar, think about the question of poly marriage a bit differently. If poly activists are considering mobilizing for legal recognition of their relationships, what can they learn from the struggle for same-sex marriage? How can they overcome the effects of the LGBT community's efforts to distance itself from the poly community in litigation, political action, and public opinion appeals? and, how can it sort out practical issues like taxation, health care, and immigration? This was particularly interesting to us in light of the history of the LGBT marriage struggle itself, which, as Michael Boucai proves in his meticulous and inspiring historical work, was in the 1970s a radical, unthinkable, conceptually difficult task, very very different from its mainstream image today. We just presented our paper on this at the Law and Society Association annual meeting and got great feedback, and are continuing to think about this.

What do you think? How can a social movement that hopes to build on incremental change overcome the "distancing" techniques of its predecessor?

Posted by Hadar Aviram on June 4, 2014 at 09:07 AM in Constitutional thoughts | Permalink | Comments (11)

Tuesday, June 03, 2014

The Internet and Violence on Campus

I want to thank Dan Markel and everyone at PrawfsBlawg for the opportunity to guest blog this month.  As a regular reader, I am honored to officially join the conversation.

Because of the recent tragedy at the University of California, Santa Barbara, where Elliot Rodger murdered six students, I have been thinking a lot about violence in school.  Although Rodger wasn't a current student and didn't use the internet to threaten one specific individual, his video messages posted on YouTube were clearly directed at students at the school.  I have written about the intersection of the internet and school violence, but my focus was on K-12 public schools, not public universities.  These cases raise complex First Amendment and due process challenges.  When does a public school have the authority (or the requirement) to regulate off-campus speech that bullies or threatens other students or school officials?  As for K-12 public schools, the courts are all over the board in their decisions and the U.S. Supreme Court has yet to rule on the issue.  Because the pedagogical goals are different in college than in K-12 school, these issues become even more complex in the public university setting.

In a recent case, Tatro v. University of Minnesota, the Minnesota Supreme Court held that a public university could discipline a student enrolled in a professional program for posting inappropriate comments on Facebook that violated her academic program rules without impinging on her free speech rights.  The University disciplined Tatro, who was enrolled in the undergraduate mortuary science program, for posting off-colored remarks about a cadaver in an embalming lab.  The Court only sided with the University because the University's rules were narrowly tailored and directly related to the professional conduct standards of the student's program.  Although this case did not raise issues about violent comments created off-campus, it does bring to the forefront issues that desperately need resolution.

First, does the Tinker v. Des Moines Independent School District standard, which, in part, allows schools to regulate speech that substantially impinges upon the rights of others, apply to speech that students make off-campus and post on the internet?  If so, does that same standard apply to college students?  I have argued that the Tinker standard should apply to K-12 public schools, but the analysis seems different for public universities.  Not only are most college students legally adults who should be afforded more speech protection than minors given their presumed cognitive development, but colleges themselves are supposed to be bastions for the free exchange of ideas.  Thus, even if the Tinker standard applies to off-campus speech in the university setting, the bar should be much lower.  But, even with a lower bar, college officials should be required to take action when there are threats or extreme bullying - of course, what constitutes "extreme bullying" (my phrase) raises a host of other issues. 

Given this digital age and that social-networking sites pervade people's daily lives, students will undoubtedly continue to use the internet as the forum in which to air grievances, bully, make threats, and even post suicide notes.  I would be interested to hear what others think about how schools should respond to these issues.

Posted by Naomi Goodno on June 3, 2014 at 01:44 PM in Constitutional thoughts, Criminal Law, Culture, Current Affairs, First Amendment | Permalink | Comments (2)

Wednesday, May 28, 2014

Is Wood v. Moss generalizable?

Wood v. Moss turned entirely on the reasonable security rationale of keeping protesters out of "weapons range" of the President, even if that meant moving only certain speakers out of visual and audio range of their target. But does this rationale apply to all public officials who have security details? Is the President sui generis  for security purposes? Or can the state troopers who protect, say, Gov. Chris Christie also claim a security interest in moving protesters out of weapons range? Certainly the President has a larger security apparatus and is more of an obvious target. But the security logic of Wood is not so obviously limited, especially since there was no evidence that anyone intended to harm the President here (other than the protesters' disagreement with him).

Posted by Howard Wasserman on May 28, 2014 at 07:52 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Tuesday, May 27, 2014

The awfulness of Wood v. Moss

OK, if Town of Greece did not get me too worked up, Tuesday's decision in Wood v. Moss (summary here), while not surprising, is so bad as to have me going the other way. And this was a Ginsburg opinion for a unanimous Court, so I am all alone on the island on this one. The Court held that two Secret Service agents enjoyed qualified immunity because no case law had held that agents engaged in crowd control were obligated to ensure that competing groups are at comparable locations or given equal access at all times when reasonable security concerns are in play. Sounds simple enough, but inside the opinion is a lot of really bad stuff.

First, the Court makes explicit (it previously was implicit) that the absence of qualified immunity is an element of the claim, rather than qualified immunity being an affirmative defense. The Court stated that the plaintiff must plead facts, under the Twiqbal standard, showing that the defendants violated a constitutional right and that the right was clearly established. So this means qualified immunity is the default starting point--a plaintiff must carry the burden of persuasion both as to the facts on the ground and the state of the law.

Second, for the third time, the Court assumed without deciding  that a Bivens could be used for First Amendment claims (the issue was not preserved below). Eventually some defendant will be smart enough to preserve this issue (the hints are there) and the Court will resolve it--and likely not in a good way.

Third, while the Court purported to resolve the case on the second prong of the qualified immunity analysis (no clearly established right ) rather than the first (no right violated), the analysis kept conflating the prongs and moving back and forth between them--there was a lot of discussion about why there was no violation here because the agents were motivated not by viewpoint discrimination but by security concerns. This is partly a consequence of the Court's insistence that the second prong must consider the right in the particular factual context and not at too high a level of generality, which invites entwinement of the two prongs. But the analysis (particularly at pp. 14-end) is all about why the agents were justified in moving the anti-Bush protesters (but not the pro-Bush protesters) in this case, not about anything having to do with prior case law. That sounds like the Court saying the plaintiffs did not sufficiently plead a violation.

Fourth, the decision does not leave any obvious room for protesters to ever challenge Secret Service decisions regarding crowd control (which is what Justice Scalia urged during argument). The Court pays lip service to the principle that "government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views those persons express." And it insists (as the defendants conceded) that the First Amendment might be violated if the agents moved some protesters with "no objectively reasonable security rationale." But that principle will virtually always be trumped by the overriding concerns for protecting the President and it is impossible to imagine a case in which a court would find that the Secret Service lacked an objectively reasonable security rationale while protecting the President. Indeed, the only purported security rationale in this case was keeping the protesters out of "weapons range" of the President (Ginsburg repeats that phrase four times), even though there is no indication on the facts pled that anyone had or planned to use a weapon. Someone being in range raises, per se, a valid security rationale.

But the Court then summarily dismissed any significance of allegations regarding the diners permitted to remain inside the restaurant--obviously in "weapons range" of the President--as undermining the security rationale. The justices simply accept the defendants' argument that the diners “'could not have had any expectation that they would see the President that evening or any opportunity to premeditate a plan to cause him harm,'" and thus were not a security risk, even if within weapons range. Of course,the anti-Bush demonstrators also did not expect to see the President in the open courtyard; they originally only expected to be able to stand along the path of the President's motorcade as it drove by (with pro-Bush protesters on the opposite sidewalk). So they, too, could not have had any opportunity to premeditate a plan. If the diners were not security threats because they were not expecting to be near the President, then neither should the protesters be security threats. Except for one difference--the protesters held anti-Bush views and were there to express those views. So is the Court saying that everyone who disagrees with the President is a security threat if in weapons range and thus can constitutionally be kept from getting "too close" to the President (at least when he is outside his secure car)?

Fifth, the Court does a lot of factfinding (without acknowledging as much, of course) on a case that remains at the pleading stage. The Court finds and accepts the defendants' security rationale, even though the defendants still have not answered the complaint or offered their own factual allegations or evidence. The Court makes determinations about what maps of the area, included as part of the Complaint, show (perhaps another example of plaintiffs pleading themselves out of court by providing the additional information needed to comply with Iqbal). And the Court rejects inferences about differential treatment of the protesters as compared with the diners. It appears to be apply Iqbal's "obvious alternative explanation," although without saying so. Otherwise, these at least should be matters for discovery and summary judgment, if not the factfinder.

Finally, the plaintiffs alleged past instances of viewpoint discrimination by other Secret Service agents; they were trying for an inference from these past instances to an informal agency policy of viewpoint discrimination to the individual defendants acting pursuant to that policy. The Court rejected this out of hand, insisting that Bivens liability can attach only to the officer's own misconduct and declining to accept the plaintiffs' inferences. Putting aside that reasonable inferences should be drawn in the plaintiffs' favor on a 12(b)(6) motion, this seriously cramps the ability to ever plead viewpoint discrimination in the absence of an agent dumb enough to announce that he is moving speakers because of their viewpoint. Moreover, the Court points to the agency's official policy--which expressly prohibits viewpoint discrimination--as evidence that the agents did not act improperly. But repeated past instances of ignoring official policy at least raise an inference that officers regularly ignore official policy, suggesting that these officers also ignored the policy. At the very least, that should be enough at the pleading stage.

As I pointed out previously, at oral argument Justice Kennedy mused that "it seems to me that if this complaint doesn't survive, nothing will." And given what the Court finally said in this case, nothing will.

Posted by Howard Wasserman on May 27, 2014 at 08:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

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