Tuesday, September 23, 2014
The Washington Redskins, the Lanham Act, and Article III
As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.
I. The Lanham Act's Cause of Action for "Adverse" Parties
In their Complaint in Pro-Football, Inc. v. Blackhorse, the Redskins explained that they were seeking:
an Order of this Court: (1) reversing the TTAB Order scheduling the cancellation ofthe Redskins Marks; (2) declaring that the word "Redskins" or derivations thereof contained in the Redskins Marks, as identifiers ofthe Washington, D.C. professional football team, do not consist of or comprise matter that may disparage Native Americans; (3) declaring that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a),is unconstitutional, both on its face and as applied to Pro-Football by the TTAB, under the First Amendment of the U.S. Constitution, and is void for vagueness; (4) declaring that the TTAB Order violates Pro-Football's rights under the Fifth Amendment of the U.S. Constitution; and (5) declaring that Defendants' petition for cancellation in the TTAB challenging the Redskins Marks under Section 2(a) was barred at the time it was brought by the doctrine of laches.
But whereas the Redskins' Complaint routinely describes their lawsuit as an "appeal" of the decision by the TTAB (where it wouldn't be that weird to have the complaining party before the TTAB--the Blackhorse defendants--as the putative appellees), the Lanham Act actually authorizes something else altogether--a standalone, new civil action against an "adverse party" so long as that party was "the party in interest as shown by the records of the United States Patent and Trademark Office at the time of the decision complained of." The problem with application of that provision here, as the motion to dismiss quite persuasively explains, is that it's not at all clear how the defendants here are "the party in interest," at least in light of the specific nature of the Redskins' challenge:
Ordinarily, the adverse parties in an opposition or cancellation proceeding before the TTAB are two businesses claiming rights to the same or similar trademarks. Thus, when a party dissatisfied with a decision of the TTAB brings actions under 15 U.S.C. § 1071(b)(4), it is usually involved in a dispute with a business that uses a similar trademark, with the parties often joining claims for trademark infringement, unfair competition and other causes of action.
Here in contrast, there's no such relationship, and "PFI does not allege any wrongdoing on the part of the Blackhorse Defendants. PFI does not allege that they breached a contract, committed a tort, or violated any law. Instead, PFI’s allegations are directed solely against the USPTO and PFI seeks relief only against the USPTO." In effect, the Redskins' claim is that the TTAB wrongly cancelled their trademarks--which, for better or worse, has rather little to do at this point with the complainants who initiated the cancellation proceedings in the first place. Thus, it certainly appears as if 15 U.S.C. § 1071(b)(4) does not in fact provide the Redskins with a cause of action against the Blackhorse defendants--and that the suit should be dismissed for failure to state a claim upon which relief can be granted.
II. The Case-or-Controversy Requirement
But imagine, for a moment, that the Lanham Act does so provide--and that § 1071(b)(4) actually authorizes this suit. The motion to dismiss argues that, so construed, the Lanham Act would violate Article III's case-or-controversy requirement, and that seems right to me--albeit for slightly different reasons than those offered by the Blackhorse defendants.
The motion argues that "The Blackhorse Defendants’ legal and economic interests are not affected by the registration cancellations and they will not be affected by this litigation." But I think the case-or-controversy defect here goes to the Redskins' Article III standing. After all, it's black-letter law that a plaintiff must allege (1) a personal injury [“injury in fact”]; (2) that is fairly traceable to the defendant’s allegedly wrongful conduct [“causation”]; and (3) that is likely to be redressed by the requested relief [“redressability”]. Although the Redskins were clearly injured, it's not at all clear to me how the Redskins satisfy either the causation or redressability prongs.
On causation, as should be clear from the above recitation of the Redskins' claims, none of them even as alleged in the Complaint run against the Blackhorse defendants--who were the complaining parties before the TTAB. After all, even though they initiated the proceeding that produced the TTAB order the Redskins seek to challenge, they did not themselves issue that order, nor are they a competing business somehow reaping financial or noneconomic advantage from the deregistration of the Redskins' trademark.
As for redressability, neither the TTAB nor the Director of the U.S. Patent & Trademark Office are parties to the Redskins' suit, and so it is impossible to see how the relief the Redskins are seeking could be provided by the Blackhorse defendants. Again, one can imagine a different set of facts where the adverse party before the TTAB could have both (1) caused the plaintiff's injuries; and (2) be in a position to redress them, but I just don't see how either is true, here. It's certainly odd to think that the defect in this suit goes to the Redskins' standing--after all, if nothing else is clear, the Redskins are certainly injured by the TTAB's cancellation decision. But standing isn't just about the plaintiff being injured by a party nominally connected to the injury...
III. The Equities
Finally, although the motion to dismiss doesn't make this point, there's an equitable point here that I think deserves mention. Whatever the merits of the TTAB's underlying ruling, I have to think that the Lanham Act was not designed to disincentive individuals like the Blackhorse defendants from bringing non-frivolous claims seeking the cancellation of registered trademarks on the ground that they are disparaging. But if the Redskins are right, here, then any party that pursues such a proceeding before the TTAB is necessarily opening itself up to the (rather substantial) costs of a new federal civil action if it prevails, even when the subject-matter of the suit is simply an effort to relitigate the TTAB's underlying cancellation decision. (All the more so because the standard of review in the new lawsuit is de novo, with full discovery.)
Such a result strikes me not only as unwise, but as not possibly being what Congress could have intended when it enacted § 1071(b)(4). Indeed, in many ways, the Redskins' claims sure seem analogous to a SLAPP suit--all the more so when you consider that the Redskins could have, but did not, directly appeal the TTAB ruling to the Federal Circuit.
Posted by Steve Vladeck on September 23, 2014 at 08:47 PM in Civil Procedure, Constitutional thoughts, Corporate, Culture, Current Affairs, Intellectual Property, Steve Vladeck | Permalink | Comments (2)
Monday, September 22, 2014
Stone on sex discrimination and professional sports
The internet has most recently been ablaze with news of a lawsuit filed against the New York Mets by an ex-employee who claims that she was chastised and then fired due to her status as an unmarried pregnant woman. On the heels of other notorious stories of discrimination to come out of the sports world this past year, like Donald Sterling’s racist comments, Richie Incognito’s racially tinged bullying of a teammate, and the Atlanta Hawks’ general manager Danny Ferry taking an indefinite leave of absence after coming under fire for his racially-stereotyped comments about a player, this latest story has many clamoring for justice—whatever that will mean in this scenario.
Recently, my colleague, Howard Wasserman, blogged about various incidents of discrimination in the sports world, taking note of their wildly varying upshots and reactions generated. He asked whether we could “find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices,” and posited that factors that might be in play could include, among others, whether formal, legal action had been initiated, whether it is sexism or racism that is alleged, and whether video or audio recordings of the discriminatory sentiments exist. These observations are astute. I would add that the role of shame in these incidents has become central. Some years ago, I blogged about the role of shame in accomplishing the eradication of discrimination in a way that even the law could not, but I pointed out that the shame has to be public, even viral, in order to move most employers to act. From what we have seen in the sports world as of late, the ability of those involved or even of those who know about the discriminatory sentiments expressed by sports players, managers, and executives to stir up outrage on the part of the public appears to be central to whether or not those in a position to discipline or dismiss these individuals will act.Title VII prohibits racial, sex-based, and other discrimination in the workplace. It is clear that while the statute’s goal is to eradicate the erosion of individuals’ terms, conditions, or privileges of employment because of discrimination, it is not supposed to function as a general civility code, requiring anyone to change the way they think, feel, or express themselves when that expression is not anchored to workplace-based harassment or deprivation. In other words, as the Supreme Court has put it, “discrimination in the air,” unmoored from some adverse action or campaign of workplace harassment, is not actionable; it is only when discrimination is “brought to the ground and visited upon an employee,” that it becomes something for which we permit legal recovery.
It is interesting, then, that there has been such pressure on sports teams and leagues to undertake voluntarily to do what the law does not require them to do—to distance themselves from those who espouse racist, sexist, or other offensive views. To be sure, if the Mets executive who alleges that she was taunted and fired for being an unwed mom-to-be persuades a trier that these things did, indeed, happen, she will prevail in court. But what about the rest of the outrage? The offenses unaccompanied by legal harm? What if the executive had not been fired and her teasing had not risen to the rather high threshold of intolerability and consistency needed to render it actionable harassment as opposed to mere, permissible incivility? The public needs to understand that the law does not necessarily comport with public sentiment on these issues. “Discrimination in the air” is not actionable.
Moreover, the public needs to appreciate the fact that while high-profile shaming and pressure on professional sports organizations may effectuate the kind of personnel and cultural changes that the law cannot, discrimination—both in the air and grounded upon employees—is rife in all kinds of workplaces. There are no high profile campaigns of shame at a typical truckstop diner or even in a big box store chain. But the same sense of “humor” that allegedly compelled the Mets higher-up to continually joke about the morality of single motherhood or fuels racially stereotyped depictions, contempt, or observations in the upper echelons of the NBA or Major League Baseball also pervades everyday workplaces. And often, employees are either not believed when they report it, or even if they are, it does not matter because the hostility or microaggressions, as they have been termed, are not anchored to an adverse action or part and parcel of actionable harassment. The difference is that in these lower-profile cases, no one cares. The highers-up who harbor these views are often high up enough on the ladder to be valued and thus retained, unscathed, by employers, but anonymous and uncared-about enough to elude public shaming or outcry. The law’s gaps and holes allow us to be selective about how and when we, as a society, can demand justice in the form of the censure or termination of those who express discriminatory, stereotyped, or just plain hateful beliefs, and that selectivity breeds inconsistency and randomness even more dramatic across workplaces than that decried by Professor Wasserman in his sports blog.
Is it time for the law to come into line with the wishes and expectations of society as evinced by the decrying of “discrimination in the air” that we have seen in the media in response to what is going on in professional sports? Or is it the case that if all of those who demand the firing of high profile racists or sexists wouldn't really want the law to require what they are demanding if they thought it through? It is wholly inconsistent for us to say that we demand the ouster of a team coach or manager on the basis of his sentiments unmoored from action, but that we wish for less glamorous, less known, but perhaps as well compensated bosses in the private sector to retain an absolute right to their private dealings and expressions, with no job consequences?
Thursday, September 18, 2014
Cameras and unintended consequences
In the rush to video record everything so we always know for sure "what happened," it is important not to lose sight of the risk of unintended consequences. Two studies, not directly involving police and body cams, illustrate the point.
In The Atlantic, Derek Thompson argues that one major cause of the drop in offense and scoring over the past 5+ years is introduction in 2006 of video systems to review and evaluate umpire performance in calling balls and strikes. The intended effect was to teach umpires the "correct" strike zone and produce more accurate umpiring (indeed, several umpires were fired when video showed their ball/strike calls to be inadequate). But that accurate strike zone was a lower strike zone, with more pitches around the batter's knees now being called strikes, causing pitchers to learn to throw low in the strike zone. Low pitches are harder to hit, especially with power, so they produce more ground balls and more strikeouts (Thompson says the increase in strikeouts since 2008--called and swinging--is entirely on pitches lower in the zone). As a result, this more-accurate zone produces less scoring. The problem is that this lower-scoring game is not as popular nationally (based on game-of-the-week ratings and national fan recognition of star players) as the power-driven game of the late '90s and early '00s. And there is your unintended consequence--MLB used video to successfully increase accuracy, but accuracy fundamentally changed the game. And arguably made it less popular.
On the Harvard Business Review Blog, Ethan Bernstein (a professor in the B-school) argues that the increase in transparency that video brings may stifle worker creativity. He explains that "[k]nowing that their managers and others will closely evaluate and penalize any questionable recorded behavior, workers are likely to do only what is expected of them, slavishly adhering to even the most picayune protocols." In an article, Bernstein found such lack of creativity in assembly-line workers, who avoid potentially useful time-saving methods in favor of doing everything precisely by the book. And while supportive of body cams, Bernstein is concerned that they will have a similar effect on law enforcement.With respect to public officials such as police (the people who will be wearing cameras), official immunity (especially qualified immunity) is driven by similar concerns for over-deterrence. Officials enjoy immunity so they can exercise their learned judgment and discretion vigorously; immunity also encourages creativity in job performance that may be beneficial. We do want officials to play it overly safe, avoiding any risk of liability by steering so far away from the constitutional line, where doing so may leave significant performance and enforcement gaps.* Perhaps we should at least be aware that, in equipping officers with cameras, we may be creating the same disincentives that immunity was designed to eliminate--officers will play always play it "safe" and steer clear of the line for fear that, even if not unconstitutional or unlawful, their behavior "looks bad" to the people who are going to see the video and reach conclusions based on nothing more than the video. Bernstein's solution is to promote video and transparency in the use of body cams, but to create some "zones of privacy," in which video is used for education and training rather than punishment, thereby providing officers the needed "breathing space."
* I would argue that current qualified immunity strikes the wrong balance, too heavily weighting over-deterrence at the loss of accountability. But I recognize that both need to be taken into consideration.
The point is that police body cameras are as likely to produce unintended consequences as video in baseball or video monitoring of UPS drivers and assembly-line workers. Those unintended consequences must be considered and addressed by departments in establishing careful and clear rules and policies for camerause. And they should ring as another reason to treat cameras as one good idea, not as a complete solution.
Wednesday, September 17, 2014
Happy Constitution Day--Some Thoughts on Constitutional Issues in Health Law
As readers of this blog already know, today is Constitution Day. An occasion mandated by Congress that requires every institution of education receiving federal funding (which includes nearly all colleges and universities) to present some sort of "programming" related to the Constitution. In the context of suggesting that it may be an Unconstitutional mandate in regard to k-12 schools, Slate offered a history of where this idea came from and how it became law.
Since our TTU Health Sciences Center is a separate entity from TTU University, it is required to have its own, separate Constitution day event and it's been my honor as an adjunct faculty member to give the "Constitution Day Address" since the law took effect in 2004. At the beginning, it was an interesting challenge because, of course, the word "Health" appears nowhere in the Constitution. But what started as a service project turned into more as I developed a course for the law school based on one taught first by Maryann Boblinski at the University of Houston (now dean at the University of British Columbia) on Constitutional Issues in Health Law (and yes, this extends far beyond Obama care) to capture topics like First Amendment Issues in Prescription Drug Off-Label marketing, Entitlements, and, of course, the Right to Refuse Treatment, Non-Right to Physician suicide issues that get covered in a traditional bioethics class. Last year we looked at (and re-enacted the oral argument from) Hobby Lobby and this spring will focus on Halbig v. Burwell.
There have always been Constitutional issues in health care and fine constitutional work done by health law academics [more name checks to come--but to make an incomplete list of some giants, Sandy Johnson, Marshall Kapp, Diane Hoffman, Karen Rothenberg, Judith Daar, Alan Meisel, Paul Lombardo, Fran Miller, Rebecca Dressler, Mark Rothstein, Lori Anderson, Tim Jost and Mark Hall(now I really need to stop--the danger always in starting to list names is to leave people out) but --but it was the intense attention brought by the Obamacare Constitutionality cases (that in my opinion had almost nothing to do with health care, but that's another post) that has attracted interest both locally (last year I had 11 students, this spring 30) and more broadly. I've been working with my research assistant to put the course material into a package that can be used by others interested teaching a similar course--and who knows, maybe someday a book.
Happy Constitution Day,
Tuesday, September 16, 2014
Scientific misconduct and the First Amendment
This proposal to make scientific misconduct a crime would seem to raise serious First Amendment problems, certainly under the Kennedy plurality in United States v. Alvarez. If false statements are not categorically unprotected, regulations must survive strict scrutiny, and counter-speech is always available, it seems to me that any attempt to regulate false scientific results are as vulnerable as the ban on false statements about military service. Interestingly, such a criminal prohibition might fare better under the squishier balancing proposed by Breyer's Alvarez concurrence, given the more tangible harms from false scientific research (Andrew Wakefield, anyone?). But I do not think receipt of salary from the university should matter; we do not prosecute people for not doing their jobs well, even intentionally. And to the extent a scientist receives grant money requiring honest research and produces false results, charges of fraud or false monetary claims already should be available.
Friday, September 12, 2014
Federal control of all police prosecutions?
Having St. Louis County Prosecutor Robert McCulloch decide whether to prosecute Darren Wilson in the shooting death of Michael Brown raises several concerns, notably related to his comments and actions during the Ferguson protests/riots (depending on your perspective) and a generally poor track record with such cases. But McCulloch and the question of a Wilson prosecution illustrate a general problem for even the best-of-faith DAs having to prosecute local police officers. The relationship is too close and often too cozy. Alternatively, the decision to pursue charges against one officer may harm a prosecutor's relationship with the police going forward, with negative consequences to law enforcement.
But this seems like the wrong solution to the problem: Moving charging decisions exclusively into the hands of federal prosecutors, apparently even for state prosecutions in state court. The author extrapolates from the successful federal prosecution of Rodney King following his state-court acquittal; it "would have been more efficient and confidence-inspiring, however, if the federal lawyers had been in charge from the start."First, the problem in the King case was not with the county prosecutor's office, which brought and vigorously pursued state charges. The federal government (and federal lawyers) became involved only after the jury acquitted and only pursuant to specific policies governing successive prosecutions. The federal government never would have gotten involved (efficiently or not) if the state jury had gotten the case "correct" (as that is commonly understood in that case). So to jump from an (arguably) erroneous acquittal in King (or in a lower-profile, non-death case such as this one, that just shows how hard it is to convict cops even in the most-vigorous prosecution) to a blanket condemnation of the ability or willingness of all state prosecutors to prosecute police seems extreme. Similarly, it is extreme to go from one arguably conflicted prosecutor in Ferguson to that same blanket condemnation.
Second, how are federal prosecutors competent or appropriate to make charging decisions under state law? I guess the argument is that they are smart lawyers who can figure it out. But federal prosecutors prosecute federal crimes, not state crimes, leaving them with no special knowledge of the law and procedure of that state (or even any knowledge the law of that state--an AUSA need not be a member of a local Bar). This will be exacerbated if the decision is taken on not by the US Attorney Office for that district, but by Main Justice. So in gaining "independence," we potentially lose expertise in the applicable law.
So this proposal makes sense only if the idea really is that police shootings should be prosecuted exclusively as federal civil rights violations, never as state crimes (such as murder or attempted murder or aggravated assault). That certainly resolves the efficiency concerns--everything goes straight to federal prosecutors, federal substantive law, and federal court, and we need never wait around to see what state officials do or what happens in state court. But it comes at the expense of some federalism considerations. I am no big believer in federalism, but an across-the-board assumption that crimes should go automatically and exclusively to federal law--not an as one option but as the only choice--seems excessive. Which is not to say federal prosecution is n0t appropriate in many of these cases, including in the Brown shooting; only that it should not be the sole option. I also wonder if § 242, which requires specific intent to deprive a person of their constitutional rights, can be proven in many of these shootings. Finally, there might be resource limitations preventing the federal government from investigating and prosecuting every single police shooting. All of which means the net result could actually be fewer prosecutions or convictions against police.
The federal-prosecutor proposal unfortunately distracts from some good ideas in the piece, namely requiring that police shootings be investigated by a special prosecutor brought in from another county. Better still, I would argue, bring in the state attorney general, which can better (not perfectly, perhaps) bring distance from all local passion and politics, while retaining expertise in state law and state prosecutions.
Oddly, Levine points to the George Zimmerman prosecution as a positive example in which a special prosecutor was brought in after the local prosecutor refused to charge. Of course, Zimmerman was acquitted, in part because the special prosecutor overcharged and generally put on a terrible case. Moreover, Zimmerman was not a police shooting. So it appears Levine really is arguing that no local prosecutor should ever handle a high-profile or controversial case. But if those cases also should be taken from them, then why have local prosecutors at all--just to handle cases no one cares about?
Thursday, September 11, 2014
Is Hobby Lobby a Precedent on Jurisdiction?
Erin Morrow Hawley has written a fascinating short piece entitled “The Jurisdictional Question in Hobby Lobby.” Hawley’s basic claim is that all nine Justices in Hobby Lobby made “a serious mistake” in failing to address, much less mention, a jurisdictional problem. This incident calls to mind the Court’s controversial rule against ascribing precedential force to implicit jurisdictional findings.
Here’s Hawley’s argument in a nutshell. Under the Anti-Injunction Act (AIA), federal courts lack jurisdiction to hear challenges to taxes unless the challenger has already paid the tax. In the challenge to the Affordable Care Act a couple years ago, the Court said that, despite the AIA, it did have jurisdiction to hear a challenge to the Act’s mandate. Why? Because the Act expressly called the mandate a “penalty,” not a “tax.” Hawley argues that, under the reasoning of the healthcare case, the law at issue in Hobby Lobby should have been deemed a tax for AIA purposes. Why? Because this time Congress did call the provision at issue a “tax.” Therefore, AIA's jurisdictional rule applied, and the Hobby Lobby challengers should have had to pay the tax before filing suit. Yet not a single Justice in Hobby Lobby raised this arguably fatal jurisdictional problem.
How could this have happened? Hawley outlines possibilities that could be placed into three categories. First, the Court might have had a secret theory for why the AIA posed no jurisdictional bar. Second, the Court might have just missed the issue. Finally, the Justices might have had long-term strategic reasons to sweep the problem under the rug.
These three types of explanation aren’t mutually exclusive, and a combination of them may provide the best guess for what happened. When Hobby Lobby reached the Court, the AIA issue wasn’t front and center, as it had been in the healthcare case. Instead, the Government—which is normally vigorous in raising jurisdictional points—didn't press the matter. This meant that a Justice who did notice the issue would have to overcome a lot of inertia to make it into a big deal. And for what? The majority probably didn’t want to be distracted by an issue that hadn’t been briefed. And if the dissenters had pressed the AIA, then the majority would likely have declared the AIA to be non-jurisdictional: as Hawley argues—both in her piece and in an amicus brief she filed in Hobby Lobby—moving the AIA into the non-jurisdictional column would have been consistent with other recent cases. Or perhaps the majority would have followed the decision below in construing the challenge as a claim against a regulatory mandate, not the tax associated with it. But all this is just speculation. As Hawley notes, we “may never be certain why” the Court didn't address the AIA.
Hawley’s argument calls to mind a decade-old Supreme Court case raising similar issues. In Hibbs v. Winn, the Court reviewed the AIA’s cousin for state taxes, the Tax Injunction Act (TIA). Per Justice Ginsburg, the Court found no TIA bar in part because: “In a procession of cases not rationally distinguishable from this one, no Justice or member of the bar of this Court ever raised a [TIA] objection that, according to the petitioner in this case, should have caused us to order dismissal of the action for want of jurisdiction.” Justice Stevens concurred to argue that Congress had acquiesced in the “procession of cases” that Ginsburg alluded to. In sharp contrast, Justice Kennedy and three of his colleagues would have found a TIA bar, despite the Court’s “procession” of silent decisions. For these dissenters, “our failure to consider a question hardly equates to a thing’s being decided.” Thus, the Court’s earlier “exercise of federal jurisdiction does not and cannot establish jurisdiction.”
In light of Hibbs, it’s interesting to wonder how the Roberts Court would deal with Hawley’s argument, if it were to arise in the future. On the one hand, Hobby Lobby is just one decision—hardly a “procession”—so perhaps even Justice Ginsburg would not view its silence as evidence of the AIA’s scope. On the other hand, the Hibbs dissenters were all part of the Hobby Lobby majority and so might be reluctant to suggest that they had previously issued an ultra vires decision of such magnitude.
The big-picture lesson here is that doctrinal arguments based on precedential silence are generally unreliable. Instead of supporting whatever point you might want to make, a lacuna in a judicial opinion—even a Supreme Court opinion—could just be a blunder. As the Court itself put it almost a century ago: “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”
And it can take quite a bit for an issue to be “brought to the attention of the court.” In Hobby Lobby, for instance, the lower-court opinions discussed the AIA at some length, finding that it did not apply. In addition, Hawley's amicus brief in Hobby Lobby argued that the “first and foremost” reason for finding no AIA bar was that the AIA “is not jurisdictional.” With so much agreement that the AIA posed no obstacle, albeit for different reasons, the Court let the issue slip by.
The next time someone argues that a silent court must have had a particular point in mind, remember Hawley and Hobby Lobby.
The above is cross-posted from Re's Judicata.
Friday, September 05, 2014
Destroying marriage to save it
Have efforts to defend marriage-equality bans crossed over into Ben Tre territory, where they are destroying the town to save it? States' legal efforts to "preserve" marriage as a heterosexual institution have denuded that institution. They no longer defend it as a sancrosanct and powerful institution reflecting long-term intimate arrangements by committed adults who love and care about one another; instead, it has become a metaphorical prison to place fornicators who unintentionally produce a pregnancy. As Posner put it: "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure." Opponents of marriage equality insist, without evidence (a point Posner nailed Wisconsin on), that allowing same-sex couples to marry would cause heterosexuals not to marry. But speaking as a heterosexual, I am not sure I would really want to join the marriage club that most states claim to have established.
Wednesday, September 03, 2014
The myth of body cams
This Slate piece by two criminology professors who have studied the issues. They doubt cameras will prevent another Ferguson shooting, which is almost certainly true. But they also found (from studies of police in Mesa, AZ) found changes in police behavior--officers with cameras conducted fewer stop-and-frisks and arrests, although they wrote more citations. They also initiated more contacts with citizens, perhaps after observing behavior for longer to ensure themselves they were seeing wrongdoing before initiating contact.
Friday, August 29, 2014
Video Chutzpah, defined
Stories have begun circulating about an incident in Minneapolis in January, in which officers seemed to escalate a situation in which a man was sitting in a restricted area near a public space, then used a TASER when he refused to give his name and attempted to walk away. Charges (trespass and "obstruction of the legal process") were dropped in July. Yesterday, the chief of the St. Paul Police defended the officers, beginning with: "As is often the case, the video does not show the totality of the circumstances."
He is right, of course. But that is certainly not going to be his line or the officers' line when they inevitably move for summary judgment in the inevitable § 1983 action.
Another SCOTUS counter-factual: Justice Posner?
Many sites are talking about Wednesday's Seventh Circuit arguments in challenges to same-sex marriage bans in Indiana and Wisconsin. Judge Posner was in rare form in shredding the states' arguments in support of the bans, particularly in the Wisconsin case (several of the links have either the full audio or audio clips). As usual, there is the debate about whether this is Posner being a bully (Josh Blackman says yes) or Posner being Posner and attacking bad legal arguments and bad lawyering (in fairness to Josh's viewpoint, Posner does not give the lawyers room to answer in real detail).
But the argument highlights Posner's uniqueness as a conservative-but-iconoclastic judge. And sparks this question: What if Posner had been the nominee for the late Reagan/Bush I openings--Scalia, Kennedy (after Bork and Ginsburg both went down), or Souter (replacing Brennan, a fitting seat, since Posner famously clerked for Brennan)? Was he ever truly in the running for any of those seats? Would his academic writings have done him in (thus, making the term "Posnered")? Alternatively, assuming Posner has become more iconoclastic over the years, would he have gone the other direction had he reached the pinnacle (as some say Scalia has gone)?
More importantly, would things be different? And, if so, how? Replace Scalia or Kennedy with Posner and Carhart (upholding Nebraska's ban on D&X abortions) Gonzales v. Carhart (upholding the federal ban on D&X abortions) comes out the other way. In spring/summer 1998, while still living in Chicago, I attended arguments in the challenge to Wisconsin's D&X ban; it sounded an awful lot lot like Wednesday's arguments. Not sure what Posner would have done on Bush v. Gore had he actually been there on the ground and not writing about it ex post. On the other hand, replace the speech-protective Kennedy with Posner and the First Amendment might look somewhat different.
Wednesday, August 27, 2014
Two from Dorf on policing and body cameras
Two posts from Mike Dorf--one supporting use of body cams and one considering the effect and future of broken-windows policing, which necessarily increases the number of police-citizen law-enforcement encounters, which necessarily means increasing recording of those encounters. Mike share my view that cameras are a good idea but not a panacea.
Monday, August 25, 2014
Heien and Certificates of Reasonable Cause
Near the start of its new term, the Supreme Court will hear argument in Heien v. North Carolina, which poses the question whether a police officer violated the Fourth Amendment when he performed a traffic stop based on a mistake of law. When the case was granted, I suggested that Heien involves the "other" rule of lenity--that is, the notion that government officers (not criminal defendants) should be given clear notice before suffering personal consequences for having performed illegal action. The briefs in the case have now been filed, and they contain a surprise: a significant chunk of the briefing revolves around founding-era customs law. That history provides a fascinating point of comparison for current law and practice.
Founding-era history makes its biggest appearance in the amicus brief for the United States. Here's the background. At the founding, customs officials engaged in searches and seizures in order to confiscate illicit goods. Once confiscated, the goods were subject to forfeiture proceedings in which the putative owner could appear and defend the property. Federal statutes provided that, if the owner won the case, the court had the option of approving a "certificate" of "reasonable cause" or "probable cause" that would immunize the customs official from suit. The United States argues that these certificates regularly issued in cases where the seizure of goods was the result of a reasonable mistake of law.
Here is an excerpt from one of the statutes (Act of July 31, 1789, ch. 5, § 36, 1 Stat. 47) that the United States cites:
And when any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares or merchandise, and judgment shall be given for the claimant or claimants; if it shall appear to the court before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the same court shall cause a proper certificate or entry to be made thereof, and in such case the claimant shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor be liable to action, judgment or suit, on account of such seizure or prosecution.
And here's a discussion of a key case, from the amicus brief for the United States:
In United States v. Riddle[,] a customs collector seized certain goods because he believed that a merchant who arranged their importation had violated a customs statute by creating a set of false invoices, even though the consignee declared the goods' true value to customs officials. This Court held that the collector was incorrect to believe the false invoices violated the statute, concluding that “[t]he law did not intend to punish the intention, but the attempt to defraud the revenue.” Nevertheless, Chief Justice Marshall concluded that the customs inspector was entitled to a “certificate of probable cause” for the seizure because “the construction of the law was liable to some question.” “A doubt as to the true construction of the law,” Chief Justice Marshall explained, “is as reasonable a cause for seizure as a doubt respecting the fact.”
In his reply brief, petitioner argues in part that the relevant historical baseline is actually a common law rule that mistakes of law were no defense to suit. In addition, petitioner argues that immunity schemes are simply irrelevant to the question of reasonableness. If the founding-era statutes are analogous to any modern principle of law, petitioner argues, they are relevant not to the Reasonableness Clause of the Fourth Amendment, but rather to the modern doctrine of qualified immunity (that is, the non-constitutional doctrine that officers can generally be held personally liable for constitutional violations only if they have transgressed clearly established law). Here's a key passage from petitioner's reply brief:
The sole purpose of the Founding-era customs statutes was to immunize collectors from damages for concededly wrongful seizures. The statutes, that is, were nothing more than a precursor to the concept of qualified immunity now implemented on a more universal basis under 42 U.S.C. § 1983. Even though the customs statutes used the term “probable cause” to implement the immunity they created, the circumstances under which courts found the statutes satisfied tell us no more about the meaning of “probable cause” under the Fourth Amendment than the circumstances under which modern courts immunize officers for “reasonable” illegal searches tell us about what the term “reasonable” means under the Fourth Amendment.
Petitioner's argument about qualified immunity is of considerable academic interest. Some commentators think that founding-era Fourth Amendment practice is at least in tension with modern immunity doctrines, which generally allow Fourth Amendment plaintiffs to recover damages only if they can overcome qualified immunity. According to these scholars, a central purpose of the Fourth Amendment was to make officers personally liable at tort for "unreasonable" searches and seizures. But if reasonable mistakes of law could shield officers from liability, then qualified immunity jurisprudence starts to look more like a return to the founding than a break from it. Under both regimes, courts have the ability to make a precedential finding of unlawful official action, but then immunize the officer for having made a reasonable mistake of law.
But were these very early customs statutes constitutional? Or did they authorize impermissible post-search warrants -- despite the Fourth Amendment's requirement that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"? There are many possible answers. To suggest a few, perhaps the Fourth Amendment wasn't originally understood to guarantee any tort remedy against officers. Alternatively, the Fourth Amendment's reference to "persons, houses, papers, and effects" might not have protected ships and cargo, perhaps based in part on an early notion of exigency. It's also possible that a search cannot be unreasonable if it is based on a reasonable mistake of law -- in which case, issuing a certificate would have been tantamount to finding no Fourth Amendment violation at all. The existence of "reasonable cause" would make the seizure itself reasonable.
Finally, the founding-era certificates might inspire new approaches to Fourth Amendment remedies today. One interesting feature of the certificates is that they issued in forfeiture proceedings initiated by customs officials, but in effect adjudicated private plaintiffs' ability to bring damages lawsuits. In this way, the certificate process promoted efficiency by allowing the judicial system to avoid duplicative legal proceedings -- much as though the officer had sought a declaratory judgment against the property owner. Something similar is imaginable today. In adjudicating suppression motions, for instance, judges could issue "certificates" to resolve issues that might arise in private damages actions against police. Assuming that such a practice would be constitutional, it would harness the effort that goes into suppression proceedings and use it to either avoid or facilitate resolution of potential damages suits.
Heien was always a fascinating and important case. The historical issues it raises only make it more so.
The above is cross-posted from Re's Judicata.
Friday, August 22, 2014
Talking about free speech or talking about racial justice?
The focus of public and media conversation on Ferguson has shfted. We are talking less about the triggering events--the possible murder/possible unconstitutionally excessive police shooting of Michael Brown,(*) the underlying racial atmosphere that made that shooting more likely, and systematic constitutional problems within the Ferguson Police Department--than about the First Amendment problems with how police have responded (and continue to respond) to peaceful protests in a public forum.(**) This has become a miniature of the Civil Rights Movement. When protesters hit the streets in the South and Bull Connor, et al., responded as they did, the legal conversation, at least in the courts, turned to the First Amendment and away from the underlying racial problems and racist policies that the protesters were attacking and seeking to change. The cases that reached SCOTUS arising from the events on the ground largely dealt with First Amendment rights to protest, sit in, crticize, organize, and advocate against the racist and discriminatory policies and practices in the South, without real discussion or resolution about their legality, constitutionality, or morality. Certainly these all were important victories for the movement and its members (as well as for society as a whole), but they can feel sterile when the underlying injustices are forgotten or pushed below the surface. The Court itself never directly tackled the underlying constitutional validity of most pieces of Jim Crow (primarily because Congress did it for them).
(*) Although the competence and commitment of the county prosecutor to vigorously prosecute a police officer has moved to the front of the line for the moment. Since the grand jury might take two months, this will go away soon, unless the governor preemptively appoints a special prosecutor.
(**) While somewhat overstated, Dahlia Lithwick makes some good points comparing police responses to these protests (which, unfortunately, likely will not be successfully litigated after the fact) with what the Supreme Court said in McCullen v. Coakley was constitutionally required, particularly about potential distinctions between protest and counseling.
On one hand, this is appropriate for the First Amendment. The whole point of free speech is that constitutional protection for protest, advocacy, and criticism of government should not turn on the subject of that protest, advocacy, or criticism or its underlying morality. It does not matter whether protesters are complaining about racism, police misconduct, the minimum wage, or United States's tolerance of homosexuality bringing about God's wrath--what matters is that their peaceful protest enjoys First Amendment protection. On the other hand, as Harry Kalven and Burt Neuborne both have argued, the concerns about ending discrimination silently informed the free speech jurisprudence of the early '60s--without necessarily saying so, the Court protected free speech precisely so the underlying system of racism and segregation could be attacked and, hopefully, changed.
But that leaves a nice question whether we (courts, the law, and the public) miss something by not talking more explicitly about the underlying issues leading to the protests and the First Amendment violations. And, more cynically, whether the national outrage over Ferguson that has latched onto the First Amendment concerns (because everyone feels and cares about "their" First Amendment rights personally) frees us to ignore the underlying racial injustice (which is personally disconnected from most people).
Would “Pattern or Practice” Litigation Work in Ferguson?
The following guest post is by Stephen Rushin, a VAP at Illinois.
Earlier this week, Howard wrote an interesting post about the possibility of DOJ intervention into the Ferguson Police Department under 42 U.S.C. § 14141. This statute gives the Attorney General authority to initiate structural reform litigation against local police agencies engaged in a “pattern or practice” of misconduct.
This post raised some important questions. How might the DOJ use § 14141 to reform the Ferguson Police Department? And would it work? Over the last two years, I've been empirically studying the DOJ’s use of § 14141 litigation in American police departments as part of my doctoral dissertation. I am in the process of converting this dissertation into a book (in contract with the Cambridge University Press) that argues that § 14141 is the most effective legal mechanism available to combat police misconduct. So it is safe to say that I am a strong proponent of § 14141 litigation. But this regulatory mechanism is not without its limitations. After the jump, I’ll breakdown what we know about § 14141, and I’ll describe how this sort of structural reform litigation could work in Ferguson.
Let me start with a little background. Since Congress passed § 14141 in 1994, the DOJ has used the measure to reform police departments in cities all across the country, including Los Angeles, Washington, D.C., New Orleans, Pittsburgh, Cincinnati, Albuquerque, Seattle, Detroit. One of my earlier articles documents all of the formal DOJ action under § 14141. Below is a map showing all DOJ action under this statute (this doesn’t include DOJ action in Puerto Rico and the Virgin Islands). That same article also describes trends in DOJ enforcement of § 14141 over time.
In practice the DOJ has settled virtually all § 14141 cases through largely extrajudicial negotiations. One notable exception is the recent litigation in Alamance County, North Carolina. In a forthcoming article, I draw on original interviews to describe and evaluate this largely “off-the-books” process and theorize on its effectiveness. Scholars like Mary Fan (UW Seattle) have argued that this sort of bargaining of constitutional reforms in the shadow of the law “may yield smarter and farther reaching reforms.” And as Howard alluded to in his earlier post, Rachel Harmon and Kami Chavis Simmons have made valuable contributions in this field by describing how the federal government could use § 14141 to bring about more widespread and effective change in local police departments.
Studies in Los Angeles, Pittsburgh, and Cincinnati have suggested that § 14141 litigation can help police departments reduce misconduct. In my research, I argue that federal intervention via § 14141 helps reduce misconduct in several ways. For one thing, it forces municipalities to prioritize investment in police reform. Preventing unconstitutional misconduct is expensive. Take New Orleans as an example. There, estimates place the annual cost of the consent decrees facing the New Orleans Police Department and Orleans Parish Prison at around $18 to $33.5 million. In confronting such an immediate financial burden, communities are left with two options: reallocate scarce municipal resources to the cause of police reform, or generate more revenue through higher taxes. While this might seem troubling, interview participants in my study suggest that municipalities can recoup some of this cost through future reductions in civil suits for officer misconduct. As one city official in Detroit told me, “the amount of money that we have saved on lawsuits that we had endured for years … have paid for the cost of implementation of the monitoring two or three times” over.
Federal intervention via § 14141 also commonly spurs municipalities to bring in outside, reform-minded leadership to their police department. Federal intervention arms these local police leaders with legal cover to implement potentially unpopular, but necessary reforms. And it utilizes external monitoring to ensure that frontline officers substantively comply with top-down mandates.
That is the good news. But this regulatory method is far from perfect. For one thing, virtually all interview participants that took part in my study acknowledged that § 14141 litigation is most effective when the local police and political leadership are supportive of the reform. In 2010, Assistant U.S. Attorney Tom Perez announced that the Civil Rights Division was again “open for business” and would aggressively use its authority under § 14141 to reform local police departments. Even so, real questions remain about whether the DOJ can effectively use § 14141 to force reform in a municipality that defiantly and obstinately opposes federal intervention.
There are also serious questions about the sustainability of reforms achieved via § 14141. For example, in Pittsburgh, Police Chief Robert McNeilly oversaw the city’s Bureau of Police throughout the implementation of § 14141 reforms. During his process, McNeilly was an ardent supporter of federal intervention, despite fierce backlash from his own officers. After federal oversight ended, though, the newly elected Pittsburgh mayor removed McNeilly from his post. Since then, the Bureau “is now sliding back towards where it was” before federal intervention. One of McNeilly’s successors, Chief Nathan Harper, is currently serving an 18-month prison sentence on corruption-related charges. And the current Pittsburgh mayor recently acknowledged that the Bureau had regressed so much that it may be “on the verge of another consent decree.”
All of this is to say that § 14141 is not a silver bullet. If a full DOJ investigation finds evidence of a pattern or practice of police misconduct in Ferguson, the use of § 14141 may help facilitate organizational change. At the end of the day, though, long-lasting reform in the Ferguson police department will require more than § 14141. It will require dedication by local politicians, supportive leadership in the police department, and organizational buy-in by frontline officers.
Thursday, August 21, 2014
Police body cameras are often seen as a panacea in police-public relations and in controlling police misconduct. Judge Scheindlin endorsed them during closing arguments in the New York stop-and-frisk trial. As I have written before, I support the idea, although I doubt it is an ultimate answer, since video is not as certain as many proponents make it out to be.
But events in Ferguson show a different reason that body cameras are not alone sufficient--we need to see all the actors in the exchange; it is not enough to see who the officer is looking at and perhaps hear what the officer is saying, we also need to see the officer. I was reminded of this by looking at the video after the jump. All of which may be to say that body cams are great, but they do not obviate a rigorous First Amendment right of citizens to video their interactions with police, wherever and however they occur. The effect would not be the same if we only heard the officer's voice, without seeing him pointing a rifle at unarmed civilians who do not appear to be committing any crime. (Reports indicate the officer has been removed from duty).
On a different video-related point: Will Baude tries to find good arguments against the right to record, but finds all lacking. I agree, but would add an additional spin: Whatever their attitudes towards public recording (Will says police unions generally oppose it), police generally seem supportive of bodycams, dashcams, and other recording technology that they use and control. But that means recording is not the real concern, police control over it is. But obviously the government cannot be the sole actor with the power to record public events.
Wednesday, August 20, 2014
Who's Afraid of Assuming Federal Jurisdiction?
In the Supreme Court's much-discussed Hobby Lobby decision (decided at the end of June), the Court addressed whether for-profit corporations should be able to assert claims under the Religious Freedom Restoration Act (RFRA). The majority answered “yes” for a variety of reasons, mostly involving the statute’s text and history. But at one juncture, the majority and dissent also jousted over a pre-RFRA decision called Gallagher v. Crown Kosher Super Market. In the opinion of the Hobby Lobby majority, Gallagher “suggests, if anything, that for-profit corporations possess [free exercise] rights.”
Gallagher is a remarkable decision. In short, a plurality of the Court assumed standing before reaching the merits—contrary to the general rule later established in Steel Co. v. Citizens for a Better Environment. And, almost as remarkably, both the majority and the dissent in Hobby Lobby appear to be in denial about it. Hobby Lobby thus represents an interesting example of the Court’s willingness to engage in doctrinal revisionism. And, on inspection, the Court’s revisionism could have been done better.
Gallagher involved a Free Exercise Clause challenge against Sunday closing laws. The plaintiffs included customers of a kosher market, the kosher market itself, and a rabbi. In addition to addressing the merits, the defendants vigorously disputed whether any of the plaintiffs – either individual or corporate – had standing to sue.The Court splintered. A plurality, led by Chief Justice Warren, found no violation based on another case, Braunfeld v. Brown, decided on the very same day: "Since the decision in that case rejects the contentions presented by these appellees on the merits, we need not decide whether appellees have standing to raise these questions." Meanwhile, the concurring and dissenting justices didn't specifically address the majority's reservation. Because the plurality expressly reserved standing and no other justices complained about it, Gallagher seems like powerful evidence that it was once accepted practice to assume standing on the way toward the merits.
Remarkably, the Hobby Lobby majority and dissent papered over the Gallagher Court's reservation of jurisdiction.
Start with the Hobby Lobby majority’s oddly misleading summary of Gallagher. At the outset, the Hobby Lobby majority observed that the Gallagher defendants “argued that the corporation lacked ‘standing’ to assert a free-exercise claim.” The Hobby Lobby majority then dropped a footnote indicating that the defendants had objected to the corporate plaintiff's standing. Finally, the Hobby Lobby majority noted that the Gallagher plurality had "reserved decision on the question whether the corporation had 'standing' to raise the claim." But the defendants in Gallagher had vigorously argued not just that the corporation lacked standing, but that none of the plaintiffs had standing. And the Gallagher plurality expressly reserved whether “appellees” had standing, without limiting that reservation to the corporate party.
The Hobby Lobby dissent gamely engaged in the same revisionist account, wherein Gallagher assumed only corporate standing. “True,” the Hobby Lobby dissent conceded, “one of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews.” However, the “other challengers were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation.” The Hobby Lobby dissent offered this line of reasoning specifically to help explain why "the plurality [in Gallagher] stated it could pretermit the question 'whether appellees ha[d] standing.'" Perhaps the Gallagher plurality should have resolved the standing issue by focusing on the non-corporate plaintiffs, as the Hobby Lobby dissent suggested. But that approach doesn’t line up with what was actually argued or reserved in Gallagher.
Fortunately, there's another, better way to harmonize Gallagher with now-settled notions of federal jurisdiction. The key is that the Gallagher plurality adjudicated the merits based on another case issued the very same day. That scenario triggers a kind of exception (recognized in Steel Co.) for cases where there is “a merits issue dispositively resolved in a companion case.” The basic idea is that, if your claim was just rejected on the merits, then there’s no longer a substantial federal question for purposes of federal jurisdiction. So while Gallagher’s use of hypothetical jurisdiction was unusually blatant, it doesn’t contradict the rule against assuming jurisdiction—or, at least, doesn’t contradict it to any greater extent than already allowed by Steel Co. itself.
The above is cross-posted from Re's Judicata.
More on police "pattern or practice" in Ferguson
Andrew Ferguson (UDC) has an essay at HuffPost discussing the potential for mapping and predictive technologies to look not only at where crime occurs (its primary current use), but also where police officers are at given times and what they are doing. We thus can identify and map "problematic" police-citizen interactions, thereby showing where individual officers may be acting improperly (e.g., making a high volume of stops without recovering any wrongdoing) and showing patterns of misconduct. The technology also would provide policymakers the notice necessary to establish municipal liability.
Tuesday, August 19, 2014
Reforming the Ferguson Police Department
This Slate piece discusses the potential use of 42 U.S.C. § 14141 against the Ferguson Police Department in the wake of recent events. That section authorizes DOJ to investigate and bring civil litigation against a "pattern or practice" by law enforcement organizations that violates the Constitution; DOJ can seek an injunction or consent decree or, more likely, enter into a Memorandum of Agreement about reforms to be made by the agency.
Section 14141 was seen as a big step when it was enacted as part of the Violent Crime Control and Law Enforcement Act of 1993, a way to make-up for the perceived under-use of criminal civil rights prosecutions under § 242. Actual practice has been disappointing to many commentators, as Rachel Harmon (U VA) and Kami Chavis Simmons (Wake Forest) have discussed. In particular, they note that the focus of investigations has been on smaller cities, such as Pittsburgh, rather than large cities such as New York and Chicago (although the Slate article discusses an agreement--not sure if it was a consent decree or MOA--with Los Angeles that has been found effective). Certainly, this is the type of high-profile situation that would overcome federal inertia and prompt a response.
One problem is whether there can be a finding of a "pattern or practice" in Ferguson. Certainly the past week has demonstrated some potential misconduct and abuse of power by individual officers. And the department as a whole has handled the entire fallout badly (for example, of 78 people arrested last night, 75 were for failing to disperse when ordered, which brings us back to the problem of how police do (and are allowed) to respond to lawful assembly and protest whenever they also can point to the slightest risk of violence). And the militarized response certainly reflects department policies and practices, although typical of what many police departments are now doing. But there is a nice question whether awful response in a single situation, even one as high-profile as this, is sufficient to warrant federal intervention or whether it necessarily indicates broader problems.
The best hope may be that DOJ goes to Ferguson in a cooperative stance, looking not to pursue litigation, but to convince the department to accept an MOA, particularly in light of the awful optics of the past week. When my current dean headed the Civil Rights Division, he favored this approach, believing it created buy-in from the local government without an adversarial posture or the need to establish pattern or practice.
JOTWELL: Understanding Prophylactic Supreme Court Decisions
William Baude at JOTWELL has a review of my colleague John Stinneford's article, The Illusory Eight Amendment. Baude writes, "It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford's recent article . . . . " Professor Stinneford's article critiques Miranda v. Arizona, and contends, contrary to popular wisdom, that it did not truly create a prophylactic rule to prevent compelled confessions. Indeed, Professor Stinneford notes that "the Supreme Court in Miranda did not particularly care what the term 'compelled' means," and because of the Court's failure to address this issue directly, "many of the practices disliked by the Miranda court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession." Both Stinneford's perceptive article and Baude's review explore the implications of this analysis.
Monday, August 18, 2014
Can Standing Immunize Surveillance Programs From Judicial Review?
One of the abiding issues in standing doctrine is whether federal courts should care when legal violations seem to produce no viable plaintiffs. This issue has been particularly salient in debates about secret government surveillance. In recent weeks, yet another surveillance program has started to come into view, and commentators are again wondering whether anyone can challenge the program in court. What’s perhaps most interesting about this latest round of the controversy is that both sides can plausibly rely on the Court’s most recent decision on the issue.
I discussed this set of issues in a recent article entitled “Relative Standing.” Here’s the basic idea. In easy standing cases, plaintiffs assert common law injuries that have long been thought appropriate for judicial relief. Those historical practices give content to the idea of an “injury in fact.” But, in hard cases, the Court lacks a sound basis in historical practice and so the idea of an “injury in fact” lacks any stable meaning. In grappling with this problem, the Court has tended to make standing available only to plaintiffs with the strongest interest in seeking relief. This approach navigates a pair of widespread intuitions. On the one hand, standing doctrine shouldn’t make it impossible for federal courts to vindicate important principles of public law. On the other hand, standing doctrine shouldn’t give everyone an automatic ability to rush to federal court. In balancing these competing values, relative standing allows the Court to muddle through.
Relative standing made an appearance in the Court’s highly divisive 2013 decision in Clapper v. Amnesty International, USA. That case involved a suit by attorneys and journalists who interacted with people suspected of being terrorists. The plaintiffs believed that they were subject to surveillance by the government and so took precautions, such as traveling to meet clients instead of using the phone. These costly measures seemed to rest on something more than mere conjecture or speculation. As Justice Kennedy put it during the oral argument: “I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute.” Therefore, the plaintiffs' allegations seemed like a credible source of factual injury, broadly understood.
Yet a majority of the Court (Justice Kennedy included) found that the plaintiffs’ claim was too speculative to sustain standing. Near the final pages of its opinion, the Court appeared to reject relative standing as irrelevant, stating: “the assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.” However, the Court then proceeded to devote two pages of analysis to this supposedly irrelevant consideration. Of particular note, the Court suggested that people prosecuted based on potentially unlawful surveillance would be notified of that fact. And even if the defendants themselves couldn't obtain relief, their attorneys could. Sounding a distinctly relativistic note, the Court suggested that these alternative claimants had a “stronger” evidentiary basis for standing.
Clapper’s relativistic arguments were problematic. To be sure, Clapper was correct that alternative and even superior claimants were possible. But the Court failed to show that anyone who could actually sue had a greater interest in doing so than the plaintiffs. When the Court decided Clapper, the government had informed no defendants that they had been monitored pursuant to the challenged program. That left only two possibilities: either there were no defendants legally entitled to notification, or there were such defendants and the government had failed to give them notice. Either way, the “stronger” plaintiffs that the Court had imagined would not exist. In overlooking this problem, the Court let hypothetical plaintiffs defeat real ones.
We now know that, when Clapper was decided, the government was not in fact giving defendants legally required notice. Only after Solicitor General Verilli initiated an internal executive branch debate did the government belatedly supply notice to at least some defendants, thereby raising the possibility of a justiciable case. From one standpoint, these developments could be viewed as vindication for Clapper, since the Court’s holding might not ultimately prevent a ruling on the challenged surveillance program. But that appraisal would be too generous. The government chose to supply notice to defendants only after secretly failing to do so for several years. Moreover, the government could still employ the surveillance program indefinitely without ever engaging in new disclosures, so long as it does not use discovered information in ways that trigger disclosure obligations. Constitutional rights should not depend on whether the executive branch chooses to create a justiciable case.
Recently, attention has turned to another government surveillance program, apart from the one that was at issue in Clapper. This other program is conducted not under federal statutory authority, but under Executive Order 12,333. According to a recent article by Charlie Savage, it appears that the government is using this program in a way that is deliberately designed to avoid triggering notification requirements:
In practice, officials said, the government already avoids [introducing evidence obtained directly from 12333 intercepts], so as not to have to divulge the origins of the evidence in court. But the officials contend that defendants have no right to know if 12333 intercepts provided a tip from which investigators derived other evidence.
So if new plaintiffs challenge EO 12,333 intercepts, the government may not be prepared to make the same notice guarantees that appeared in Clapper.
Over at Just Security, ACLU attorney Patrick Toomey has provided a thoughtful analysis of these developments. Part of Toomey’s discussion suggests that relative standing could play a role here:
In Clapper, the Supreme Court indicated that notice to criminal defendants would ensure that there was some path to judicial review of the FISA Amendments Act. Not so, it appears, with E.O. 12,333 surveillance. Has DOJ invented, in essence, a foreign-intelligence exception to judicial review? Or does DOJ’s no-notice policy mean civil plaintiffs have standing to challenge E.O. 12,333 surveillance in the courts?
Toomey raises this point as a provocative question, which is appropriate given that Clapper purported to discount relative standing considerations, just before discussing them. What’s more, the four dissenting justices in Clapper plausibly argued that standing could be found without reference to relative considerations. So it’s quite possible that these problems will be resolved—one way or another—within the conventional standing framework.
Still, it seems fair to say that relative standing will form an important part of the debate. And it should.
The above is cross-posted from Re's Judicata.
Friday, August 15, 2014
First Amendment repealed in Ferguson, MO
Ronald K.L. Collins suggests (hopes?) we are about to enter a New York Times v. Sullivan moment in response to events in Ferguson, MO--broad free speech principles forged from public and media outrage and exposure of racial abuse by police and government officials. I am less sanguine, because I do not see either the government or individual officers being held to account or sanctioned in any way (legally or politically) for the massive restrictions on free expression that have been imposed in the last week. Collins may be correct that this may present an opportunity for the "admirably defiant spirit" of New York Times to "find its way back into the hearts and minds" of the public and for the public to demand that local government show greater respect for First Amendment rights. But these these events are not going to end with a resounding judicial affirmation of the First Amendment that will impose those obligations on government or sanction it for its past disregard.
Courts almost certainly will accept the government's assertions of public safety concerns and recent memories of rioting as justifying officers responding to seemingly peaceful, if angry, protests with riot gear and rubber bullets--these events illustrate Timothy Zick's thesis that public spaces are no longer for collective speech by large groups (My favorite detail: Police ordering people to return to their homes, then saying "Your right to assembly is not being denied"--oh, if you so say). The Eighth Circuit has never held that citizens or the media have a First Amendment right to record police in public spaces, so individual officers will enjoy qualified immunity for various incidents in which they have ordered citizens and journalists to stop recording, confiscated video equipment, or arrested people for recording. There is no evidence the city or county itself ordered officers to target people filming police--at best, municipal policy is silent. The federal government has already backed the local power play by declaring a no-fly zone over Ferguson, thus preventing television helicopters from recording activity from the air. DOJ has promised to conduct an investigation to see that justice is done, but that seems more about the original shooting; otherwise, DOJ assistance has been with "crowd control" and urging citizens not to "antagonize" police. But that "antagonism" has, in large part, consisted of attempting to assemble and protest and to video police massively over-reacting to those attempts--so DOJ's advice is for people not to do the things they should have a constitutional right to do. And like southern officials 50 years ago, Ferguson and St. Louis County officials do not seem affected or shamed by public outrage over their conduct, do not seem to acknowledge having done anything wrong, and do not seem inclined to make any changes on their own accord.
Again, the public takeaway from this may be a reaffirmation of free speech ideals. But is that enough without some official declaration and application of those ideals?
Update: According to this story, things played out much differently Thursday night, under the leadership of Missouri Highway Patrol Captain Ronald S. Johnson, a Ferguson native. There was no massive militarized police response to demonstrators and people were allowed to march and gather. And police officers were ordered to remove their gas masks. Missouri Governor Jay Nixon "vowed that officers would take a different approach to handling the massive crowds that have taken to Ferguson’s streets each night." (For those of you who teach Evidence, this would be an example of an inadmissible subsequent remedial measure).
Wednesday, August 13, 2014
Social and Legal Prejudice in Runyon v. United States
Runyon v. United States is a pending capital case in which the defendant has filed for cert and the United States sought eleven extensions of time before filing its brief in opposition earlier this month. As Amy Howe observed on SCOTUSBlog, the government’s highly unusual series of extensions delayed the Court’s consideration for almost a year.
Runyon is notable in part because it involves the interaction of prejudice in two senses—social and legal. In other words, Runyon asks whether prejudice in the sense of legal injury resulted from the government’s use of prejudice in the sense of social stereotypes.
The defendant in Runyon was convicted of performing murder for hire, and his cert petition raises questions concerning harmless error and cumulative error. During the penalty phase, the defendant sought to establish, as a mitigating circumstance, that the people who hired him to commit the murder were equally culpable and would not be sentenced to death. To rebut that argument, the government showed jurors a video of the defendant's interrogation in which the defendant failed to admit his role in the offense. However, the lengthy interrogation video also included numerous objectionable statements on the part of the police. Here are a few examples, all taken from the petition for cert:
- “You know, if you’re an honorable Asian man and your integrity is intact and you have any respect for anybody at all, then you’ll do the right thing today, okay?”
- “If you asked God for forgiveness, do you believe that He’ll forgive you for that? You can repent your sins, can’t you?”
- “But don’t let me walk out of that, that door right there thinking that you’re some piece of shit that murdered a U.S. naval officer and didn’t have enough respect to man up when he — when it was done.”
- “[W]hat do you think twelve reasonable people would, uh, conclude from that? . . . [T]hey’re going to make you out to be a monster, man.”
The interrogation video was meant to go to whether the defendant had cooperated and shown remorse, as compared with the other defendants. But the interrogators' remarks insinuated clearly improper reasons for treating this defendant differently from the others. These improper reasons could have shaped the jury's perceptions of the defendant and his failure to confess. While none of these statements drew a specific objection, the trial court directed the jury not to rely on the officers’ statements and required the jurors to sign a statement that race and religion didn’t figure into their reasoning.
The Fourth Circuit affirmed the convictions in Runyon while noting that the interrogation statements were “stereotyping” and “insulting” and should not have been presented to the jury. But the court didn’t think that the capital sentence was a close call. After noting that the defendant had arguably forfeited any objection to the offensive remarks, the court applied regular harmless error analysis and found harmlessness. In its opposition brief, the government argues in part that the case is a poor vehicle because plain error review should apply—even though the Fourth Circuit chose not to rely on it.
One aspect of Runyon calls to mind the harmless-error petition that the Court granted but then dismissed in Vasquez v. United States. During the 2012 Vasquez oral argument, the Justices pressed counsel on whether harmlessness should be tested by inquiring into the thought processes of the actual jury, as opposed to a hypothetical “rational” jury. Most of the justices seemed to think that the answer was yes, despite the government’s hesitancy on that point. As compared with Vasquez, Runyon’s question presented is better framed to reach the actual/hypothetical jury issue. According to the defendant, the court of appeals in Runyon failed to account for the actual jury’s signals that the case was close. For example, the jury declined to recommend capital punishment on all capital charges.
Another, related aspect of Runyon calls to mind Justice Sotomayor’s 2013 statement respecting denial of cert in Calhoun v. United States. The central fact in Calhoun was that the prosecutor had made the following remark to the jury: “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?" This appeal to racial guilt, Sotomayor made clear, was unacceptable. Still, Sotomayor “did not disagree” with the Court’s denial of cert in light of the case's vehicle problems: the defendant had forfeited any claim of prejudice or structural error, and the defendant’s claim was reviewable only for plain error. Sotomayor concluded her statement with these words: “I hope never to see a case like this again.” A similar sentiment may explain why the government sought so many extensions in Runyon, despite having already taken a position on the question presented in Vasquez.
It will be interesting to see whether the Court views Runyon as a more certworthy version of either Vasquez or Calhoun—or both.
The above is cross-posted from Re's Judicata.
Tuesday, August 12, 2014
Jurisdictional elements and merits
Here is a Ninth Circuit decision properly analyzing jurisdictionality in a Lanham Act case. The court held that the requirement that a trademark be "use[d] in commerce" is an element of the trademark claim and does not go to the court's jurisdiction over the claim. Relying on Arbaugh, the court held that the substantive provisions of the Lanham Act do not contain jurisdictional language and the actual jurisdictional grants for trademark cases (§ 1331 and 15 U.S.C. § 1121(a), along with 28 U.S.C. § 1338, which the court did not mention) do not use this language. Thus, "use in commerce" goes to the merits, not jurisdiction. This is spot-on analysis and the court made relatively light work of the arguments.
The court did not discuss it in these terms, but this case demonstrates the confusion created by so-called jurisdictional elements. The "use in commerce" element hooks the Lanham Act into Congress' Commerce power--Congress lacks the power (the jurisdiction) under that clause to regulate trademarks not used in interstate commerce. The "jurisdiction" here is Congress' prescriptive or legislative jurisdiction, its authority to prescribe legal rules to regulate real-world conduct. An internal limitation on congressional legislative power--like an external limitation such as the First Amendment ministerial exemption--constitutionally limits the scope of the legal rule and thus the rights granted and duties imposed under that rule.
But jurisdictional elements write that prescriptive-jurisdictional limitation into the statute, and the statutory claim, itself. Rather than absence of "use in commerce" rendering the statute unconstitutional as applied (as with a minister's ADA claim against a church), the failure of the jurisdictional element means the statute by its terms does not "reach" the conduct at issue. A Lanham Act plaintiff must prove "use in commerce" just as it must prove "reproduction, counterfeit, copy, or colorable imitation of a registered mark;" both go to whether there is an existing legal rule imposing liability on these defendants on the real-world facts at issue and thus whether the plaintiff's infringement claim has merit. In that regard, a jurisdictional element functions the same as an ordinary element of a statute. The jurisdictional element is there for a different reason than an ordinary element, but its role is the same--it controls the "reach" of the statute, which is uniformly understood as a merits concern. And it has nothing to do with whether the court has adjudicative jurisdiction to hear and resolve a claim because it is "arising under" that statute.
Monday, August 11, 2014
Informal survey time (I raised this on some listservs last week and wanted to try a different audience):
If you were to make a short list of five (5) of the most important free speech opinions (majority, concurrence, or dissent), what would they be? I want to drop a footnote in the intro of an article, so I welcome input. I am looking for both rhetorical and practical power, as well as rhetorical and practical effect in the development of modern, speech-protective free speech jurisprudence. Note that since I am focusing on the development of the broad free speech protection we have in the U.S., I am primarily looking for opinions that sided with the speech claimant.
My tentative list (in no particular order): 1) Holmes dissent in Abrams; 2) Brandeis concurrence in Whitney; 3) Barnette; 4) Sullivan; 5) Cohen v. California (I originally had Texas v. Johnson or Reno v. ACLU here, but people convinced me that Cohen is more significant).
Have at it.
Thursday, August 07, 2014
"Freedom of Religion and the Freedom of the Church"
Over at the "Liberty Law Forum," I have posted a short essay called "Freedom of Religion and the Freedom of the Church." (It's about what's probably my hobby-horse issue, and is adapted from this piece, which came out a little while ago in the Journal of Contemporary Legal Issues.) Critical responses will be added in the coming days from some leading law-and-religion scholars -- I'm looking forward to them (nervously). Here's a bit:
Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.” However, he continued, “it has again taken center stage.” It seems that it has. Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”
But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?
Saturday, July 19, 2014
Chokeholds and clearly established rights
This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).
I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:
1) What will the court do with the video on summary judgment? As I wrote in a draft paper for a SEALS discussion group, the Court last term in Plumhoff v. Rickard, just as in Scott v. Harris, was all too willing to interpret the video for itself and identify its single meaning (in favor of the defendant officer) as a basis for granting summary judgment. Will courts be similarly bold with potentially more damning video or will they be less willing to find a single message and leave it all to the jury? On that note, check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see. But it is veery different than what everyone (press, government officials, and courts) has done in, for example, describing video of high-speed chases.
2) According to The Times, chokeholds are expressly prohibited by NYPD regulations. How will that affect the qualified immunity analysis? In Hope v. Pelzer and Wilson v. Layne, the Court looked at department regulations and whether they endorsed or prohibited some conduct as indications of whether theright at issue is clearly established. While not conclusive, administrative regs can support a doctrinal consensus or demonstrate the absence of that consensus. Absent case law holding that chokeholds always violate the Fourth Amendment or violate the Fourth Amendment when in furtherance of arresting non-violent offenders, what will the court do with this officer violating clear departments regulations in dealing with a non-violent offender (they were trying to arrest the victim for selling loose cigarettes on the street).
3) What happens when the plaintiff tries to make his Monell claim against the city? On one hand, the express prohibition on chokeholds in department regs would seem to weigh against any argument that the city had a policy of allowing its officers to utilize such holds, since the very opposite is true--he really is the "bad apple" expressly disobeying how we told him to behave. On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. (Note that many of those complaints never go anywhere or are unsubstantiated--the point is that many citizens are talking about officers using chokeholds).
Thursday, July 17, 2014
Marriage equality in Florida
Judge Luis Garcia of the 16th Judicial Circuit of Florida (the higher-level trial court covering the Keys) has invalidated Florida's prohibition on same-sex marriage, finding that marriage is a fundamental right for Due Process purposes and that there is no rational basis for prohibiting same-sex marriage. The ruling does not take effect until next Tuesday, July 22. This is one of three actions in Florida challenging the anti-equality constitutional amendment passed in 2008--the other two are in state court in Miami-Dade County and in federal court in the Northern District of Florida.
Several quick thoughts:
1) Judge Garcia is up for non-partisan election this fall; let's see what happens in that race.
2) I genuinely expected Florida to be one of the stragglers that would get marriage equality only when SCOTUS finally spoke after 40 other states had eliminated SSM bans.
3) At this point, we need to stop reporting on trial-court decisions, since they are all going in one direction, but their coverage is so limited. It really will matter when federal courts of appeals and state supreme courts begin speaking out.
4) Is it even remotely possible that these lower courts are all getting it wrong? Is there any chance that appeals courts will split or go in different directions or that SCOTUS will ignore the singular position of these lower courts and hold that SSM bans do not violate the Constitution?
Wednesday, July 16, 2014
What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision
The indispensable Doug "not that subway fugitive" Berman alerted me earlier today to the Jones v. Chappell opinion by the federal judge in California who struck down the Cal death penalty on the grounds that the insane amounts of delay between sentence and execution are violative of the Eighth Amendment's ban on cruel and unusual punishments. (I have registered my retributivist and constitutional doubts about the death penalty before, but I haven't been too enamored of the argument that wins the day in this case. Whether I revise my views, well, anything's possible. I am after all getting older.)
Having worked my way through the opinion by Judge Cormac Carney (a GWB appointee), I imagine the outcome won't stand on appeal to SCOTUS should it get there. That said, with Justice Kennedy as the swing vote deciding on California issues, you never know for sure. Moreover, Justice Breyer has in the past voiced concern about foot-dragging death penalty delays.
Regardless of when/if it gets struck down, the Carney opinion notes the following about error rates, which I found to be of profound interest. Specifically:
"Of the 748 inmates currently on California’s Death Row, more than 40 percent, including Mr. Jones, have been there longer than 19 years."
"Of the 511 individuals sentenced to death between 1978 and 1997, 79 died of natural causes, suicide,
or causes other than execution by the State of California."
"For those that survive the extraordinary wait for their challenge to be both heard and decided by the federal courts, there is a substantial chance that their death sentence will be vacated. As of June 2014, only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process. Of them, 32 were denied relief by both the state and federal courts—13 were executed, 17 are currently awaiting execution, and two died of natural causes before the State acted to execute them. The other 49—or 60 percent of all inmates whose habeas claims have been finally evaluated by the federal courts—were each granted relief from the death sentence by the federal courts." But of those 49, the "State resentenced 10 of these individuals to death, thus starting anew the post-sentencing appeal process on the renewed sentences, though two have since died while on post-conviction review for the second time."
A few points here.
First, what's left unsaid by Judge Carney, so far as I can tell, is whether the state has abandoned efforts to resentence to death the remaining 39, or accepts that 39 out of the 81 people originally sentenced to death should in fact not be sentenced to death. If the state is committed to resentencing the 39 to the death penalty, then it's not clear that the facts adduced here have much traction; all they show is that the system is hyper vigilant at the post-conviction review stage. On the flip side, if the state basically concedes that 39 out of the 81 people should not or cannot be resentenced to death, then we have an almost 50% error rate in the initial distribution of the death penalty. As a purely prudential/consequentialist matter, that error rate strikes me as quite worrisome (independent of my constitutional or retributivist concerns). Indeed, unless such error rates were valuable in creating a higher deterrence through random terror effect, which I doubt, I suspect if I were the DP czar, I would be seriously concerned that the death penalty cases are a complete regulatory failure. Perhaps it's time to re-read Robert Morgenthau's famous oped about why prosecutors with resource constraints and a crime-fighting streak should oppose the death penalty.
Second, if 81 people have had a decision on the merits and exhausted all judicial review, it does seem a puzzle as to why there's an ostensible delay of YEARS between those decisions and the executions. Maybe the explanation is in the appendix that I didn't see; but in its opinion, the court notes that California hasn't executed anyone since 2006. Are there delays resulting from California's executioners waiting for the clemency process to be exhausted in addition to the post-conviction judicial review? Wouldn't that be worth knowing about?
Third, the defendant, Mr. Jones, and the Court here seem to think that only a random few people are selected for execution. If that were true, I could see why the constitution should step in and eliminate that randomness in distribution. But I'm not convinced yet that the source of delay is inherently random or arbitrary (terms the court conflates here). I guess I take issue with the claim that the Court offers: "a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose." I could well imagine that a rational legislature or jury would in fact understand their votes to constitute a view to execute subject to stringent review out of a desire to cause death to the defendant but only as long as and once the process has run out. Flipping it around as the fed Cal court does may seem rhetorically nifty, but it's not exactly a model of intellectual generosity to citizens and officials who disagree in good faith.
Fourth, while I understand and accept the claim advanced that deterrence is undermined by delay, it's not the case that harm prevention generally is necessarily undermined by procedural delay. Confidence in the system's accuracy or fairness in a death penalty tribunal might be thought to bolster compliance--this is the mantra that Bentham(!), Tom Tyler and Paul Robinson have all adopted. Inasmuch as the delays bolster confidence and compliance generally, which I take to be a fragile but possible relationship, then the part of the court's opinion addressing deterrence moves too quickly, in part b/c it makes the same mistake Eighth Amendment caselaw makes too frequently: by quickly conflating deterrence with harm prevention generally.
Fourth, the retribution analysis by the court (p21-22) also moves too quickly. I don't accept as persuasive the invocation of authority (citations to Rehnquist and Powell and Fletcher) as opposed to argument the claim that retribution is undermined by delay attributable to post-conviction review. The court takes that proposition for granted but it again conflates retributive justice with satisfaction of communal preferences for condemnation. Moreover, it assumes that the wrong against retributive justice ideals associated with executing a few of all those sentenced to death is the same regardless of whether the reason is because of the drag of post-conviction review or because someone is selected for execution based on his race (or, hypothetically, the race of his victim). But I don't think that's right at all.
In short, if we accept arguendo the controversial premise that capital punishment is consistent with retributive justice (a premise I reject), it doesn't follow that delay attributable to judicial review of the underlying accuracy or respect for the defendant's constitutional rights is antithetical to retributive justice. Indeed, the respect for accuracy manifested by an exhausting (albeit exasperating) forensic process could reasonably be thought to bolster the retributive value of the execution.
I don't want to signal an overly skeptical posture; I'm still unsure about what my views are here. I support striking down the d/p on Eighth Amendment grounds generally but for the reasons I've suggested, I'm less certain this court's arguments are the right arguments to bolster that constitutional claim. Regardless, I hope the dispute has the effect of spurring proper funding for capital appeals and post-conviction review so the delays are less likely to materialize. [Of course, I agree with Doug Berman's general view that the d/p is a sideshow to the more mundane and pernicious and pervasive problems with noncapital punishment.] That said, the claim that "justice" delayed is no justice at all, and indeed, unconstititional, needs more work -- so it seems to me. I'm not defending the claim that the delays are worthwhile, but I don't see how this opinion explains adequately how the delays harm the defendant once a) the defendant wants to benefit from the procedural wrangle, and b) the public has an interest in ensuring that justice appears to be done properly, ie, with appropriate judicial or executive clemency review for severe sentences.
Two (more) op-eds on Hobby Lobby
Ann Lipton has nicely captured the zeitgeist with the notion that "there is something of an obligation for all corporate law bloggers to weigh in on Hobby Lobby." Today, for example, the Conglomerate is starting up on its second Hobby Lobby symposium. So it is with some trepidation that I highlight for you two additional pieces on that speak to this case once again. First, Brett McDonnell defends the decision from a progressive perspective in "Ideological Blind Spots: The Left on Hobby Lobby," appearing in the Minneapolis Star-Tribune. Brett argues that the decision provides space for corporations to have goals outside of shareholder wealth maximization -- something that liberals have promoted in the corporate social responsibility context. The op-ed also recounts the history of RFRA, which overturned Justice Scalia's Smith opinion, and points out that progressives have traditionally been defenders of religious liberty and toleration. The op-ed has (at this point in time) 716 comments, which kind of puts us blawgs to shame.
Second, Grant Hayden and I have penned "Who Controls Corporate Culture?", which appears this morning in the St. Louis Post-Dispatch. Although not written with this intention, it is actually a nice complement/rejoinder to Brett's piece. It argues that folks are riled up about Hobby Lobby in part because the company's 13,000 employees had no role in making the decision. If corporations are going to be according political and religious rights, we argue, the employees need a voice in choosing how to exercise them, particularly when the primary impact is on employees.
Thursday, July 03, 2014
Federalism, RFRA, and Free Exercise in the next Hobby Lobby
Someone please tell me if I am wrong on the following points in the potential next round of Hobby Lobby-type litigation.
A major concern after Hobby Lobby is that similar closely held corporations will raise similar objections to legal obligations to hire (and not create hostile environments for) women, racial minorities, pregnant women, religious non-believers and other-believers, LGBTQ people, etc., as well as obligations to serve and do business with those groups.
Here is the thing. Protections for LGBTQ employees and customers are, at this point, not federal; they exist only in some states and/or some municipalities. But RFRA and strict scrutiny does not apply to state or local laws under City of Boerne. So any such claims to avoid those state or local obligations must be brought under the Free Exercise Clause and are likely to fail under Smith, since laws prohibiting discrimination in employment or public accommodations appear to be neutral laws of general applicability. The only way around that is if the company can tie some other constitutional liberty in (such as Free Speech in the wedding photographer case). So, ironically, LGBTQ people may be better off in this realm than women, since the corporation can rely only on the First Amendment, not a statutory strict scrutiny, to avoid its non-discrimination obligations.
Pushing it a bit further: Every state has a prohibition on race, gender, etc., discrimination that parallels federal law. So even if a hypothetical company could claim an opt-out from Title VII's ban on sex discrimination in hiring based on RFRA, that company still must comply with the state ban on sex discrimination in hiring, which, if challenged, again would only receive Smith-level Free Exercise scrutiny and the challenge likely will fail.
On the other hand, many states have their own RFRAs, which would require strict scrutiny of state anti-discrimination laws and might require analysis similar to Hobby Lobby. But that case at least would be litigated in state court, with the state's highest court having the last word; that court would not be bound by Hobby Lobby, may be less solicitous of accommodation demands (depending on the state), and might adopt the Ginsburg view on the question. Such a case would not be reviewable to SCOTUS, because a decision applying state RFRC would be an independent and adequate state ground for the decision. So the future of Hobby Lobby may produce some interesting federalism angles.
Sunday, June 29, 2014
Principles and political preferences in the First Amendment
Implicit in these comments is the suggestion that conservatives on SCOTUS are using the First Amendment as a "weapon" to further the conservative political agenda, a "trojan horse" swallowing every other right we cherish. Thus, supposedly speech-protective decisions such as McCullen, McCutcheon, and, everyone assumes, Quinn are wrong, if not illegitimate.
Some of the cricitism is fair, particularly as to Justice Alito, who is highly selective as to the free speech interests he votes in favor of and when. Emily Bazelon correctly points out the striking difference between how solicitous Alito was for the emotional fragility of funeral-goers faced with unwanted offensive speech in his dissent in Snyder v. Phelps, which did not carry over to women seeking access to reproductive health care. But this has always been true of Alito on many issues. During his confirmation hearings, he spoke at length about the difficulties his Italian-immigrant family suffered, although he has rarely voted in the direction of ethnic minorities dealing with, for example, voter suppression. On the other hand, the criticism is less warranted as to Justice Kennedy and, it increasingly appears, the Chief.
In any event, does that inconsistency mean the decisions are wrong? In the case of McCullen and, to hit the big one, Citizens United, I (and at least a few other people) would say no, as a matter of First Amendment principle. Alternatively, can we hurl the same inconsistency criticism at these critics, who are "breaking up" with the First Amendment because it now is being used to protect speakers and interests that they don't like? Alito is striking a balance among "cherished" rights, just as these critics are. But Sam Alito strikes the balance differently than Emily Bazelon or Dahlia Lithwick. Fair enough. But neither should be deemed more legitimate than the other.
Friday, June 27, 2014
Harmon on the fragility of knowledge in the Riley (cellphone and 4A) case
Prof. Rachel Harmon from UVA had an interesting post to the crimprof listserv that I thought warranted broader exposure, so with her permission I'm sharing it. (Rachel asked to also thank UVA law librarian Kent Olson for his help with the underlying research).
In light of the likely significance of the Court's opinion in Riley v. California, I may seem obsessed with the trivial, but I can’t help but note the Court’s odd support for one of its statements about policing, and the pathetic state of information about policing it reveals. On page 6, the Court states that “warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.” Though the proposition seems intuitively obvious, data on searches and seizures isn’t easy to find, so I was curious about the Court’s support.
Chief Justice Roberts cited LaFave’s Search and Seizure treatise, which struck me as an odd source for an empirical claim, so I looked it up. LaFave does indeed say, “While the myth persists that warrantless searches are the exception, the fact is that searches incident to arrest occur with the greatest frequency.” But that sentence has appeared unchanged since the first edition of the treatise in 1978. And LaFave’s support for the proposition is itself pathetic. It comes in a footnote which reads: “See T. Taylor, Two Studies in Constitutional Interpretation 48 (1969). ‘Comparison of the total number of search warrants issued with the arrests made is equally illuminating. In 1966 the New York police obtained 3,897 warrants and made 171,288 arrests. It is reliably reported that in San Francisco in 1966 there were 29,084 serious crimes reported to the police, who during the same year obtained only 19 search warrants.’ Model Code of Pre-Arraignment Procedure 493–94 (1975).”
Because I’m crazy, I pulled Taylor and the Model Code too.
Both sources suggest that they can’t really prove the original point. Taylor says, “[M]ost law enforcement agencies have been exceedingly lax with their record-keeping in this field. But there a few offices where the records are full enough to be meaningful, and from these it is abundantly apparent that searches of persons and premises incident to an arrest outnumber manifold searches covered by warrants.” He provides no further support for the claim.
The Model Code Commentary provides the numbers from 1966, but also makes it clear they are not to be taken too seriously. The New York data was apparently furnished directly to the Code’s Reporters from the NYPD, and the San Francisco numbers came from a New York Times’ reporter. (It was Fred Graham, the Supreme Court correspondent at the time and a lawyer.) According to a footnote to the Commentary, “Research efforts elsewhere foundered on the rocks of record-keeping failures. Law enforcement agencies do not commonly maintain statistical records pertaining to search warrants or searches and seizures generally.”
So the Supreme Court cited a source, unchanged since 1978, which cites two sources from the late 1960s, both of which suggest that there is very little evidence for the proposition because police record keeping is weak. I’m hardly one to criticize imperfect footnotes (since I’ve surely written many myself), but this one interests me. The Court is all too willing to make unsupported claims about policing, a problem I’ve noted before. See The Problem of Policing, 110 Mich. L. Rev. 761, 772-773 (2012). Moreover, for the Court, as well as scholars and policymakers there is a serious problem in finding credible information about what police do. See Why Do We (Still) Lack Data on Policing?, 96 Marq. L. Rev. 1119 (2013). The Riley/Wurie citation nicely illustrates both problems, and it won’t be the last to do so.
Thursday, June 26, 2014
McCullen and intermediate scrutiny
The Court in McCullen v. Coakley invalidated Massachusetts' 35-foot buffer zone around abortion clinics. The Court was unanimous in the judgment, but not in the reasoning--the Chief (surprisingly, sans pithy quips) wrote for the Court; Justice Scalia concurred (angily) in the judgment, joined by Justices Kennedy and Thomas; and Justice Alito separately concurred in the judgment.
The point of departure was whether the buffer zone was a content-based restriction subject to strict scrutiny or whether it was content-neutral subject only to intermediate scrutiny. The majority held the latter, because on its face the legislature was concerned with public safety, patient access to clinics, and the unobstructed use of public sidewalks and roadways, none of which have anything to do with the content of the (anti-abortion) speech regulated; the majority did not rely on the rationale from Hill v. Colorado of a state interest in protecting clinic patients from having to deal with unwanted speech. Justice Scalia insisted the law was content-based, largely for the reasons he insisted the buffer zone upheld in Hill was content-based (Scalia is still fighting that case rhetorically). The law did not survive intermediate scrutiny, because there were alternative ways to ensure safety and access that would have been less speech-restrictive.The Court stated at several points that the plaintiffs here were not abortion protesters, which it defined as people with signs and bullhorns, chanting and shouting about the evils of abortion. The plaintiffs were "counselors," who want to have a calm, quiet, compassionate, consensual conversation and to hand-out literature "informing" women of their options. Thus, the adequate alternative means of communication they needed were different. It was not enough that they could stand across the street beyond the buffer zone in order to speak as they wanted; they needed the time and space to have a calm, intimate, within-arms-reach conversation, which the buffer zone did not allow.
This marks just the fourth time since the creation of the modern content distinction that the Court has invalidated applied intermediate scrutiny to invalidate a content-neutral law (the others were Bartnicki, Gilleo, and Watchtower). Intermediate scrutiny requires that the regulation be narrowly tailored and leave open ample alternative channels of communication, as opposed to being the least restrictive means to serve the interest. But the majority seemsed to demand more than it typically does on the narrow-tailoring prong. It pointed to all the other legislative strategies that Massacusetts could have tried (and that the United States and other states have tried); it pointed to the state's failure to prosecute anyone for violating the old buffer-zone laws before moving on to this more-restrictive approach; it pointed to the fact that the law regulates all clincs, although there was a record only of problems at one Boston clinic on Saturday morning; and it pointedly rejected the justification that a blanket buffer zone is easier for the state to administer than a law requiring a showing of harassment or intent to obstruct. Such close review strikes me as an analyitcally correct approach to the First Amendment; it just does not sound like typical intermediate scrutiny.
The dispute between the majority and the Scalia concurrence arguably was less about this case and more about where we go from here. Scalia is still enraged by what he sees as an "abortion-speech-only jurisprudence," which has manifested in the failure to recognize as content-based restrictions that, whether facially or practically, only regulate anti-abortion speech. He made a similar point in his Hill dissent about the deck being stacked against those who oppose abortion rights. (Of course, it is similarly odd to see Scalia suggesting that the Court would and should vigorously scrutinize a law barring protesters from the streets and sidewalks outside the Republican National Convention). On the other hand, there are good arguments that courts place too much weight on the content-distinction, where identifying something as content-neutral seals the case for the government because intermediate scrutiny is so easily satisfied. Perhaps the majority opinion, while too easily concluding that the law was content-neutral, reflects a renewed vigor in reviewing content-neutral laws, rather than giving the government a free-ish pass once it is found that a regulation is not content-based. (Mike Dorf wonders how this might affect so-called "ag-gag" regulations prohibiting recording of conditions and treatment of animals on farms, which are similarly directed at a type of speech but also can be justified in terms of privacy, safety, and property).
The majority suggestsed that an alternative to this sort of blunderbuss legislation is to regulate clinic access through "targeted injunctions" once clinic blockage has become a problem; courts can better demand a record of a problem based on people's actual conduct and tailor the remedy to the specific clinic and its geography and needs. But such a stated preference for injunctions over legislation seems to fly in the face of established First Amendment doctrine, which generally abhors prior restraints on speech, even prior restraints based on a showing of past misconduct.
Finally, lower courts are left with the task of reconciling McCullen with Hill; although the parties briefed whether to overrule Hill, the majority did not address that issue (or even discuss that case). Justice Scalia suggested (and urged future parties to argue) that Hill has been sub silentio overruled. He emphasized that the majority here refused to rely on the avoiding-unwelcome-speech government interest (going for public safety, access, and avoiding obstruction instead) and that the majority acknowledged that a law is not content-neutral if the undesirable effects result from reactions to speech. Since that is the essence of the analysis and holding of Hill, it must not be good law.
Update: One last question to add: Under a principled application of today's decision, can the anti-Westboro funeral buffer zones be constitutionally valid? Most of those are much larger than 35 feet.
Wednesday, June 25, 2014
Standing and defendants
In affirming the district court and invalidating Utah's ban on marriage equality, the Tenth Circuit considered standing sua sponte. But, as with the D.C. Circuit's decision on the filibuster, the standing issue was not about the plaintiffs (who want to get married and are prevented from doing so, thus obviously have standing), but about the defendants--whether the governor and attorney general were proper defendants in this Ex Parte Young action. (This was necessary as a preliminary to whether the governor and A/G could appeal, since the county clerk of Salt Lake County, a named defendant who is directly responsible for issuing marriage licenses to four sets of plaintiffs, declined to appeal).
Under Ex Parte Young, the named defendant must be the executive officer responsible for enforcing the challenged law. And the plaintiffs should lose if they sue an officer who is not responsible for enforcing that law. But the Tenth Circuit did not explain why this should be a component of the plaintiffs' standing, as opposed to the merits of the constitutional claim.
In fact, the unique position of the governor and A/G in this case illustrates why treating this as standing makes no sense. Under Utah law, the governor and A/G are not directly responsible for issuing marriage licenses (that rests with county clerks) or for doing things that require recognition or non-recognition of out-of-state marriages (not giving spousal benefits, not allowing joint tax returns, not giving marital deductions, etc.). But they are responsible for advising, supervising, and compellling the clerks and other state officials who refuse in recognizing same-sex marriages, which made them responsible defendants subject to suit. In essence, the court accepted "supervisory" Ex Parte Young liability (which makes sense, since executives delegate all the time).
But we regularly deal with supervisory liability in § 1983 damages actions, without ever invoking standing. For example, imagine Officer Y uses excessive force against A; A sues Supervisor X for failing to supervise Y, but it turns out that X is not Y's supervisor under state law. Without question, A loses. But the court would not say that A lacks standing; instead, that claim fails on the merits. Or compare this Eighth Circuit decision holding that an officer violated a person's rights by enforcing a flag-burning ordinance. The plaintiff also brought a Monell claim against the city for failing to properly train the officer, which the court rejected because, under Missouri law, cities are not responsible for training police officers. So the city could not be liable and the Monell claim failed on the merits. Again, no mention of standing.
So why if "you got the wrong guy" is a merits matter in these actions for retroactive relief, it makes no sense whatsoever for it to become a standing matter in Ex Parte Young actions for prospective relief.
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."
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."
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.
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.
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.
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.
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 (email@example.com) 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 firstname.lastname@example.org.
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?
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.
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.
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?
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.
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).
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.
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.
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.