Friday, June 24, 2016

Whole Women's Health

Three cases remain to be decided this term--Whole Woman's Health, McDonnell v. US, and Voisine v. US. Of these, only WWH seemed even remotely likely to be a 4-4 affirmance. The Court issued two 4-4 affirmances on Thursday, in DAPA and Dollar General. Can we conclude, therefore, that WWH is not going to be a 4-4 affirmance? Is there any reason the Court would issue two divided affirmances today but hold one out until next week?

If not a 4-4 split, the next likely result is a 5-3 opinion declaring the TRAP regulations unconstitutional, with Kennedy joining Ginsburg, Breyer, Sotomayor, and Kagan, and Kennedy assigning the opinion. If so, WWH will offer a nice counterpart to Fisher. As Steve pointed outFisher marks the first time Kennedy has declared valid a racial preference. WWH would mark the first time Kennedy has declared invalid a restriction on abortion since he co-authored the joined opinion in Casey.

Posted by Howard Wasserman on June 24, 2016 at 12:44 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 23, 2016

What now on DAPA?

Today's 4-4 affirmance of the injunction against DAPA leaves things in obvious flux. There are several considerations affecting might happen now--legal, procedural, and political.

Procedurally, the next move is a trial on the merits and, as the trial judge has tipped his hand, likely entry of a permanent injunction. Then we go back up the ladder, presumably back to SCOTUS, by which point it will be back up to a full roster. I have heard suggestions that the government might seek a quick permanent injunction (if a defendant has no new evidence, the court can  convert a preliminary injunction into a permanent injunction without a trial or further hearing) and expedited review to SCOTUS. Given my long-standing position that there will not be a ninth Justice until the start of OT 2017*, I am not sure this will achieve anything, until the hope is that SCOTUS would stay the permanent injunction pending review (which, of course, does nothing about the preliminary injunction that remains in place until final judgment).

[*] Assuming, of course, that a Republican Senate does not continue to refuse to allow an appointment because, even though the people have spoken, the real governing principle is that Democratic presidents do not get to make Supreme Court appointments.

Legally, the United States could attempt to apply DAPA outside of the eight states that brought this suit. Although the district court purported to issue a nationwide injunction, I do not believe a district court has that power. The United States is enjoined from enforcing DAPA only as to the plaintiff states, and no one else is protected by the injunction;** this was not a class action and there is nothing that legally makes this relief indivisible. The precedential force of the constitutional analysis supporting the injunction is limited to the Fifth Circuit. And SCOTUS's affirmance of that analysis does not create binding precedent. So nothing in the Constitution or any court order prohibits the United States from enforcing DAPA in, for example, California, especially if California does not object.

[**] For much the same reason that Obergefell did not, of its own force, require Texas to issue marriage licenses, a position Texas happily adopted a year ago.

Politically, I do not see this happening.  It would take too long to explain to the public concepts such as scope of an injunction, regional precedent, and non-precedential SCOTUS affirmances. Instead, this would play in the public as the administration ignoring a court order, one seemingly emanating (or at least endorsed by) SCOTUS. [Update: I imagine the government also wants to avoid a situation in which it enforces the immigration laws differently in 42 states than it does in the other eight.]

Posted by Howard Wasserman on June 23, 2016 at 02:17 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, June 21, 2016

O.J. and Rodney King

I hope people have had a chance to watch O.J.: Made in America, the spectacular five-part ESPN documentary that traces O.J.'s life from his college career to his current incarceration, while weaving his story into the story of racial bias in society and the LAPD and O.J.'s lifelong efforts to "rise above" race (the telling line is "I'm not Black, I'm O.J."). The film links O.J.'s acquittal (by a largely Black jury) to the acquittal of the officers who beat Rodney King (by an all-white jury). On this telling, O.J.'s acquittal was "revenge" for the officers' acquittal, the long-awaited chance for an African-American to benefit from mistakes in the system. One juror explicitly acknowledges this as her reason for voting to acquit.

But the film (and every conversation about the connection) omits something: Two of the officers in the King beating were convicted of federal civil rights violations and sentenced to 30 months in prison (the other two were charged and acquitted). So if justice means that a wrongdoer is convicted and punished under some criminal law for his misconduct, there was some justice in that case. It may not have been enough justice or the right kind of justice. Thirty months was arguably too short (the court departed downward from an expected Guidelines range of 70-87 months). Perhaps it somehow would have been "more just" for them to be convicted of assault, etc., in state court rather than civil rights violations in federal court. Indeed,  that might prove the point. Congress enacted the Reconstruction-Era civil rights statutes because the states were incapable and/or unwilling to enforce the rights of African-Americans against whites and white public officials. Having to resort to those in 1992 demonstrated how far we had not come.* Some had a sense that the civil rights charges were illegitimate, more a result of the rioting that followed the state-court acquittals (which the Koon Court took time to call out) than legitimate prosecutorial decisionmaking or use of federal criminal law.

 [*] And still have not come, where police-abuse cases now do not even make it past a grand jury and even the civil rights backstop is increasingly unavailable.

It seems too simple to say "Stacey Koon, et. al, got off, so O.J. should have gotten off." Because Koon and Powell did not get off, at least not entirely. By contrast, two people who had nothing to do with anything were dead in a horrific manner (I had never seen the photos of the bodies or the crime scene--they were stunning) and, on the definition above, they did not receive justice.**

[**] I bracket for the moment how we consider, in terms of assessing "justice," the civil verdict that necessarily included a jury finding that Simpson killed Nicole Brown and Ron Goldman but that did not impose criminal punishment, or the absurdly long sentence Simpson received in 2008 for the events in Nevada, which everyone sees as having impermissibily taken the murders into account. In one interview segment, attorney Carl Douglas points out that the Nevada judge held the jury until late into the evening to announce the verdict on the thirteenth anniversary of the murder acquittal and sentenced Simpson to 33 years, matching the $ 33 million in damages awarded in the civil case.

Posted by Howard Wasserman on June 21, 2016 at 09:31 AM in Criminal Law, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Monday, June 20, 2016

More on RJR Nabisco and extraterritoriality

Following on Andra's post on RJR Nabisco:

It makes no sense for a statute's private right of action not to be coextensive with the substantive law being applied. Ginsburg is correct that there should be a link, not separation, between prohibited activities and authorized remedies. At the very least, that should be the presumption, unless Congress provides otherwise in the cause of action itself. And a statute that says "[a]ny person injured in his business or property by reason of a violation" of some substantive law--where that substantive law has been (and, per Congress, can be) violated by that extraterritorial conduct--should allow for a claim for extraterritorial violation. By applying the presumption of extraterritoriality to the cause of action, the Court now requires Congress to draft the cause of action not only to link the right of action to the substantive law being enforced, but also to include language dealing with extraterritoriality. For example, I presume this case now means that, even if the Fourteenth Amendment applies extraterritorially, a § 1983 claim will not lie for such a violation, since nothing in the statute speaks to extraterritoriality (indeed, the purpose of that statute was bringing states into line within their own borders following the Civil War and has nothing to do with foreign conduct).

The culprit in this is Kiobel v. Royal Dutch Petroleum (2013), where the Court applied the presumption of extraterritoriality to the Alien Tort Statute, a purely jurisdictional provision. But the ATS is unique in that it grants not only adjudicative jurisdiction, but also prescriptive jurisdiction to create federal common law based on the law of nations as of 1789 and its analogues; the question in Kiobel was whether the grant of prescriptive jurisdiction could include common law applying extraterritorially. In other words, the courts were not only creating the right of action, they also were creating the law that "directly regulate[s] conduct or afford[s] relief." The end result in Kiobel is that the substantive common law the courts could create did not reach extraterritorial conduct (because Congress did not grant the courts the power to establish such common law), so neither could the court-created right of action.

Under RICO, however, the law regulating conduct does apply to extraterritorial conduct, per Congress. The right of action should, as well.

Posted by Howard Wasserman on June 20, 2016 at 05:16 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

12 years a President?

Following up on my discussion of Veep's penultimate episode and Tom James occupying the White House for twelve years: I asked Brian Kalt (MSU), who wrote the book Constitutional Cliffhangers, which explored various gaps in the constitutional provisions on presidential selection. He wrote the following (reposted here with his permission):

On the question of whether acting as president for four years should count, it does seem right textually. As such, I think it provides one of the strongest tests I can imagine of a person’s commitment to textualism, because it is so much at odds with the purpose of the 22nd Amendment. As with the question of whether there is a distinction between being eligible to be elected president and being eligible to serve at all, the legislative history tells us that the drafters intentionally sacrificed precision and broad coverage on the altar of supposedly simple language.

Following the path I take in my book, I would dodge the question somewhat by focusing on the practical side—positing that it is very unlikely that such a person would be able to get the people to elect him two more times. Conversely, if he did manage to get the people to elect him two more times, it would be hard for the courts or Congress to deny him his prize.

Brian described evolution of the language of the 22d Amendment, where a desire for simplicity of language collided with a desire to count at least some portion of another person's term toward the term, leading to a an unintended hole.

First, the version introduced in the House said that no one: “shall be chosen or serve as President of the United States for any term, or be eligible to hold the office of President during any term, if such person shall have heretofore served as President during the whole or any part of each of any two separate terms.”

The version that passed the House had the same effect, but was more concise: “Any person who has served as President of the United States during all, or portions, of any two terms, shall thereafter be ineligible to hold the office of President.”

The Senate Judiciary Committee loosened the restraints a bit in terms of timing (one day would not count; it had to be a year) but still did not limit it to terms to which someone else had been elected: “A person who has held the office of President, or acted as President, on three hundred and sixty-five calendar days or more in each of two terms shall not be eligible to hold the office of President, or to act as President, for any part of another term.”

Senator Magnuson was the great advocate of simplicity. He also did not want to count any partial terms. To him, then, the Veep character’s position would be just fine. His language was: “No person shall be elected to the office of President more than twice.”

The Senate’s final text (to which the House agreed) accepted Magnuson’s simplification of the “eliminated from what?” language, which was the basis of the discussion here a little while back on whether two-termers can serve as President even though they cannot be elected. But on the other part of the amendment, the “eliminated based on what?” language, the Senate was not willing to fail to count unelected service. When they restored language to count unelected service, though, they used the infelicitous phrasing that we are now discussing: “or acted as President, for more than two years of a term to which some other person was elected President.” They could have just eliminated everything after “term” and avoided our current dilemma.

Posted by Howard Wasserman on June 20, 2016 at 09:34 AM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (0)

Veep, S5E9

We finally get to the House election, but the episode is shown through the documentary (Kissing Your Sister: The Story of a Tie) that Selina's daughter, Catherine, has been working on all season. It is a nice change of pace. It gives us scenes we already have seen in real time during the season, but from the different perspective of Catherine's hand-held camera. It also shows the background events for things we have seen on the show. For humor, we see the background shots of Jonah (unsuccessfully) chopping wood for his campaign commercial. We see into the personal lives of the staffers--Amy's attempts to get together with Dan, Kent's membership in a Spanish-speaking motorcycle gang, Mike's shifting preparations for the coming babies. And we see Selina's verbal revenge against Amy for her outburst last season.

For plot, Catherine catches the lobbyist and Speaker of the House walking into Tom James' office announcing "future calling;" this lead to the dinner at the Mongolian Barbecue that we saw live a few weeks ago. We also see Catherine's interview with Bill Ericsson, the former staffer who took the fall and went to jail last season for the Meyer Campaign's illegal activities; he says that if he were James, he would try to get three states to abstain to send it to the Senate. We know Ericsson got his conviction overturned on appeal (he was running the Widow Sherman's campaign in New Hampshire), so now we can wonder if James or the lobbyist helped Ericsson to get out of jail.

The show went with Ericsson's plan, hinted at the end of last season--the final House vote is O'Brien 25, Meyer 22, 3 abstentions (Missouri, Vermont, and a third state we never saw). The Speaker adjourns the House. And the implication is that the Senate will elect James as VP and he will become President next week, because "a President shall not have been chosen."

Selina made one Hail Mary, trying to get Jonah to switch New Hampshire's vote to O'Brien. If O'Brien won, she could run against him in four years, but if James won, she would have to wait eight years, at which point she would be too old. Unfortunately, Jonah did not get the word in time (he was late for the vote because he spent the night with a high school senior/congressional groupie, then could not find the House chamber). After the session ends, he tries to change his vote, announcing "The Gentleman from New Hampshire puts forth on the floor a do-over."

So how did the show do on the Constitution and the electoral process? Not well--yes, I know it is a TV show and a great one; it just does not pass the Con Law exam).

• They got the dates wrong. The House election is taking place on January 3d and we see a flashback to Jonah's swearing in the day before (right before hooking up with the groupie). But under § 2 of the Twentieth Amendment, the new House convenes on January 3. And under 3 U.S.C. § 15, the House does not open and count the Electoral College votes until 1 p.m. on January 6. And the House cannot hold an election until it actually counts the electoral votes and determines that there is, in fact, a tie (what if there had been that faithless elector?).

• I am trying to figure out why three was the magic number of abstentions for denying a majority. There does not seem anything significant about that number. Also, no states had evenly divided delegations, which seems unlikely as a practical matter, given the number of states with even-numbered House caucuses (including New Hampshire, more on that below).

• On that point: I cannot find the answer to this question and do not feel like researching it at midnight: Are abstentions treated the same as divided caucuses? Or is divided caucus a vote for neither candidate, while an abstention is a non-vote? And does the Twelfth Amendment require a majority of all states or all states that case votes, with abstentions being non-votes that reduce the denominator? History is ambiguous. In 1800, all the representatives in Delaware (1) and South Carolina (4) abstained on the 36th ballot. Jefferson already had won 10 states, so he had the election anyway. But it is not clear whether his majority was out of 16 (total states) or 14 (states casting votes, since Delaware and South Carolina abstained because each of their members abstained)? Were the abstentions from those two states the same as, say, Maryland's earlier non-committal vote when the caucus split between Burr and Jefferson?

In the Veep-iverse, this matters for two reasons. If they are the same, James did not have to necessarily plot to get states to abstain, he could have just counted the votes and seen that there were a sufficient number of evenly divided even-numbered caucuses. If they are different, then O'Brien won the election, because the three abstention reduce the denominator to 47 (states voting), so O'Brien's 25 votes constituted a majority of that.

[Update: A participant in the Con Law Prof listserv offers the right way of looking at this: If every member of the caucus abstains, then the vote from the state is 0-0-X; this is an evenly divided caucus, just as much as a 1-1-1 caucus would be. So there are no non-votes, which means the denominator must be 50. But then we go back to James not needing states to abstain, but simply be divided, whether through true division or through strategic abstentions by individual members in a state that create a tie (we thought that is what he was doing two weeks ago in getting the seventh member of Colorado's caucus to abstain, producing a 3-3-1 division). So the show seems to err again, confusing abstentions by states with abstention by individual members that tilt the balance one way or another.]

• The House adjourns with no announcement or plans for another vote. Of course, in 1801 the House immediately dove into additional votes over the course of that day and the following days and weeks. Catherine's movie catches a snippet of a conversation in which Selina and one of her staffers mention that James likely got the Speaker to agree not to hold additional votes once the first produced no winner. But would the members of the House, especially those who support O'Brien (and thus are politically opposed to James), tolerate that? Would the public? Yes, James is popular and competent. But it seems too pat.

• Jonah, of course, makes a fool of himself. But the problem of placing him in New Hampshire arose again. New Hampshire has two representatives, so Jonah does not exclusively control the caucus vote. New Hampshire only voted for Meyer because the other New Hampshire representative also voted for Meyer.  So, again, Jonah was not necessary. More importantly, Jonah could not unilaterally switch the state's vote; switching his vote, assuming his colleague did not switch (and Jonah never had a chance to talk to him), would only render New Hampshire a split caucus going for no one, denying both candidates the possibility of a majority (unless abstentions do not count as votes).

• The show got its numbers wrong, at least for purposes of season-long consistency. The idea was that Jonah would cast the vote that would give Selina New Hampshire and the presidency. Put aside that NH could not play that role. It only works if NH would be the 26th state for Meyer. But the final vote with NH going for Selina, was 25-22-3. Even if all three abstentions would have been Meyer states, that still would not produce a victory for her.

• The show is setting up a Tom James presidency, continuing to ignore that James is not becoming President, he is only becoming acting President. Put differently, he does not hold the office of President, he only exercises those powers. The 22d Amendment expressly draws that distinction, as does the presidential succession statute. Even if it lasts four years, he still only acts as president during a period in which no President has been chosen. Neither the Constitution nor § 19 places a limit on the period in which someone can act as president or a limit on how long the period of non-qualification can last.

What the Speaker is allowing to happen is inconsistent with the purpose of the Twelfth Amendment. The amendment was motivated, in part, by the risk of "inversion," in which a party's preferred candidate for Vice President would win the House election and become President, against the preferences of the party and perhaps the public. The Federalists who voted for Burr did so because they hated Jefferson, but also because they knew it would mess with the Democratic-Republican plans to have Jefferson as President and Burr as VP. The Speaker is allowing the very inversion the amendment was designed to prohibit. Again, because James is so popular and so competent, the public in the Veep-iverse is okay with it, as he will get things done. Thinking about it, however, it starts to sound like a coup--the VP is conspiring with the Speaker to prevent a vote for the presidency, allowing him to exercise those powers for an entire four-year term. I think there would be strong opposition. And I also would expect both Meyer and O'Brien to lobby House members from their respective parties to force a vote--perhaps on bipartisan threat of removing the Speaker if he does not continue holding elections. Again, too pat.

Since the show is coming back for another season, it must be setting up what it hinted at in last season's finale--James nominating Meyer as his vice president, so next season she will be back where she started--doing nothing and waiting for the President to call.  Too bad that is a constitutional impossibility.

• And now for the big mistake (ed: Maybe). Selina explains to Amy her plan to have Jonah switch so she could run against O'Brien in four years, whereas if James is made (acting) President, he would serve for eight years. Amy corrects her--"Twelve, ma'am. Tom's first term won't count because technically he'll be an elevated Vice President." My initial reaction was this is unforgivably wrong and I cannot believe they missed that badly, even if only as a piece of exposition. The Twenty-second Amendment makes clear that someone who has acted as president for more than two years of someone else's term can only be elected President once. Since James will act as president  for four years (we presume, because the Speaker is blocking a vote), he could be elected once for four more years, but not a second time.

But then someone pointed out that the 22d Amendment says "held the office of President, or acted as President, for more than two years of a term to which some other person was elected President." (emphasis mine). The argument is that James is not acting in a term to which someone else was elected; he is acting because no one was elected. Textually that seems right. And it cannot be excused as drafting for an unforeseen situation, since the 12th and 20th Amendments both contemplated a VP acting as president for some period of time if the House failed to elect a President. So if they intended to include that in the 10-year limit, the drafters of the 22d should have accounted for that. Amy's exposition ("he'll be an elevated Vice President") is still wrong, but the substance is right.

But this reading is so inconsistent with the purpose of all three amendments related to a House election and presidential succession that it cannot be right. The 22d was intended to limit the number of years anyone can exercise executive power. And it would incentivize the very manipulations we see here, both in the Electoral College and in any House contingency election. And those incentives would not be limited to the VP-elect. If the House cannot pick a President and the Senate cannot pick a VP, the Speaker would act as president under § 19(a). So imagine the plots that could be hatched.

• The process the show followed for the House election is interesting. One member from each state, in alphabetical order, cast the entire state's vote publicly, presumably with individual votes having been taken in secret and within each caucus. In both 1800 and 1824, however, individual votes were recorded and each state's ballot was written and sealed. The procedures for the House vote are left to the House and changeable for each election, so nothing is set in stone. Lawrence Tribe wrote a nice essay on the process prior to the 1980 election, when it seemed possible that independent John Anderson might win some electoral votes, perhaps enough to deprive Reagan or Carter of a majority and throw the election into the House (spoiler: He didn't).

Posted by Howard Wasserman on June 20, 2016 at 08:19 AM in Constitutional thoughts, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, June 13, 2016

Veep, S5E8

So the pieces are beginning to come together as we move into the final two episodes, which apparently will involve the actual House election (where find out if there is, indeed, an Electoral College tie) and the inauguration of someone.

Jonah wins the New Hampshire special election, which is revealed to be an election to replace a representative-elect, stating that Jonah will be sworn with the rest of the House at the beginning of January. He wins in typical Jonah fashion--after he shoots himself in the foot, his opponent (the widow of the former representative and Jonah's former grade-school teacher) is quoted telling Jonah he needs to be more careful because guns can be dangerous; that last part is seized by the NRA, which undertakes a massive campaign to defeat her. So Jonah wins and promises to cast the vote that delivers Meyer the presidency.

While I like the story, let me lay out why the math does not work for the plot device of Jonah casting the deciding vote as a representative from New Hampshire. Meyer needs 26 state delegations to win. Let's say she has 25 states and the idea is that NH will be 26, with Jonah voting for her. NH has two representatives, so the  delegation voting in January will consist of Ryan and Rep. X. If Rep. X supports O'Brien, Jonah's vote creates a divided delegation and does not provide the 26th state. It keeps NH away from O'Brien, but taking a state away from O'Brien does not give it to Meyer, leaving her with 25, not the required majority. If Rep. X supports Meyer, then she alone could have given the state to Meyer; there was no need to rush the special election or to get a supporter into office by January, as Meyer and her team wanted. The only possibility is that Rep. X plans to abstain, so Jonah's vote moves NH from a non-commitment to Meyer's 26th state. But that seems an odd plot move, one the writers have not set up or even telegraphed over the season, although maybe they will next week.

[Update: Upon further consideration, even that last one does not work. If Rep. X, as the lone member of the NH delegation had abstained, then the vote from NH would not have been a non-commitment, it would have been an abstention; that would drop the denominator to 49, meaning Meyer's 25 states constitute a majority. So Meyer would have a majority regardless of whether Jonah is in the House.]

By the way, the constitutional problem with the plot is not making Jonah the deciding vote (which is a cute move, given everything we know about Jonah and how the Meyer people feel about him), but putting Jonah in New Hampshire, a state with an even-numbered delegation, as the deciding vote. If you like New England, put him in Massachusetts (9 representatives), Connecticut (5), or even Vermont (a single at-large rep [update: Although, again, see above]) and the story makes constitutional sense.

I suppose another possibility is that Jonah renegs on voting for Meyer, denying her the majority and setting up a House stalemate and clearing the way for Tom James. But, again, James still only acts as president, so that hole remains.

Meyer at one point is nonchalant about losing benefits to Ohio and North Carolina from the agreement with China, in part because Jonah appeared poised to win New Hampshire. But that, too, is inconsistent with the requirement of a House majority--Meyer needs all the states she can get. Unless she is trading NH for OH and NC, which really makes no sense--why give up two states that take you past the bare majority?

I am looking forward to seeing how the writers play this out.

Posted by Howard Wasserman on June 13, 2016 at 12:52 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Thursday, June 09, 2016

The science and linguistics of profanity

From the latest Slate Lexicon Valley. I especially liked the four division of four categories of profanity--blasphemy, sex, bodily excretions, and slurs (or, as the author calls it, "Holy shit! Fuck! N****r!"*)--and the way different linguistic cultures accept or reject any of them.

[*] Yes, I recognize the sad irony of not using the word in a post about words. I don't need the headache.

Posted by Howard Wasserman on June 9, 2016 at 01:31 PM in Howard Wasserman | Permalink | Comments (0)

Permanent injunctions and no mootness in marriage equality litigation

I missed this yesterday, but Judge Granade entered a permanent injunction in Strawser v. Strange. She rejected the state's argument that the case was moot in light of Obergefell, pointing to the suspended Roy Moore and the Supreme Court of Alabama's refusal to vacate its March 2015 Mandamus and that court's continued criticism of Obergefell as demonstrating that the state officials cannot show that enforcement of the marriage ban is certain not to occur. That the court (including whoever is Chief and serving as the administrative supervisor of the state judiciary ) is especially salient in Alabama, where judicial-branch officials are charged with issuing marriage licenses.

Judge Granade's order follows on the heels (and relies on) a similar permanent injunction in Brenner v. Scott in Florida back in March (sorry to have missed it at the time). The court in Brenner was even more dismissive of the state's mootness arguments. The court pointed to the state's refusal to immediately comply with earlier orders, the legislature's failure to repeal or amend the ban on same-sex marriages and other laws affected by that ban, and requests of state officials to "clarify" the scope of the injunction on other issues that turn on recognition of same-sex marriage. For example, the State Surgeon General asked for clarification whether, under Obergefell and the injunction, they must identify a female non-biological parent on a birth certificate, even though the document says "father;" the judge insisted the answer should be easy (same-sex couples must be treated the same as opposite couples in all respects) and the request itself showed that the defendants have not "unambiguously terminated their illegal practices." These courts join the Eighth Circuit in rejecting the argument that officials' agreement to comply with Obergefell, without more, moots unrelated cases involving different parties and different laws.

There is a procedural morass here that makes this a lot more complicated and that I need to think through further.

On the one hand, SCOTUS precedent should not moot an unrelated case, given the general rule that voluntary cessation does not moot and especially given my departmentalist model in which state officials have no constitutional obligation to follow SCOTUS (or any other) precedent outside of a judgment against them as to particular parties. That keeps the controversy alive, since every new request for a license is a new controversy beyond the scope of any existing court order. That state officials are not rushing to apply Obergefell to new settings is a product of Obergefell not extending that far.

On the other hand, the limited scope of most injunctions (including the injunction in Brenner, although not Strawser, given the class certification) should make a permanent injunction inappropriate once the named plaintiffs received their marriage licenses on the strength of the preliminary injunction. The plaintiffs got what they wanted and the defendants gave the plaintiffs what they were entitled to, so there is nothing more for the court order to do as to these parties. Everything else is for further state compliance with respect to people and issues not before the court and, if necessary, further litigation and a new injunction involving those new parties and new issues. For example, Brenner recognized that the birth-certificate issue is "not well presented in this case," since none of the plaintiffs seeks a birth certificate; there are two separate lawsuits by unrelated parties against the Surgeon General for refusal to issue such certificates. And if those statutes are constitutionally invalid (as they assuredly are under Obergefell), then state officials will be enjoined from enforcing those laws as to those plaintiffs. But that should not provide a basis for the type of free-standing injunction against taking any "steps to enforce or apply" Florida's prohibition on same-sex marriage, unconnected to context or party, in a case in which the plaintiffs only sought marriage licenses.

Finally, an interesting side note: I found the Strawser order on the website for Americans United for Separate of Church and States, which is undertaking representation of couples seeking marriage licenses in Alabama (and presumably elsewhere), since the refusals are now grounded in officials' religious objections to performing this function. It is interesting how the constitutional valance of marriage equality, and thus of the advocacy groups involved, has shifted.

Posted by Howard Wasserman on June 9, 2016 at 09:35 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, June 08, 2016

Stern on liberals, sexual violence, and the justice system

I was going to write something about the misguided effort by California voters to attempt to recall Judge Aaron Persky in response to his  light sentence on convicted sexual assaulter Brock Turner, arguing that anyone supporting such efforts cannot complain when state judges are removed or non-retained in response to, for example, pro-LGBTQ rulings (e.g., three members of the Supreme Court of Iowa in 2010). But Mark Joseph Stern at Slate (whose work I generally do not like), beat me to it. He ties the recall petition to a host of issues in which progressive commitment to due process, basic defendant rights, and judicial independence have run aground in cases of sexual violence, with the ordinarily progressive position abandoned; these include victim-impact statements, propensity evidence in sexual-violence cases,  the right to confront witnesses, and general abandonment of due process in campus sexual assault.

To further illustrate the shifting locus: During lunch when I was interviewing at one law school, the subject turned to summer public-interest scholarships (small-money grants for students working public-interest summer jobs). The faculty member at the table said the grants were available for students working at the public defender's, but not to students in prosecutors' offices, which did not qualify as "public interest." That is, unless they were prosecuting domestic violence and sexual assault.

Posted by Howard Wasserman on June 8, 2016 at 04:38 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Monday, June 06, 2016

Veep, S5E7

It is mid-December and time for the White House Christmas party with members of Congress. And we learn what Tom James was up to in meeting with the Speaker at the end of last week and during the party this week:

James is lobbying individual House members to abstain in order to create tie delegations, denying any candidate a majority. He is then counting on winning the Senate vice-presidential vote (which is by individual, not state) and, when the House vote produces a tie fails to produce a winner,* becoming acting president when no one has qualified to be President. We particularly see the fight over two members of Congress--1) Rep. Nickerson from Colorado, who's initial agreement to vote for Meyer gives her that delegation 4-3, but whose sudden abstention makes it a tie; 2) Rep. Yeager (state not mentioned that I heard), who similarly decides to abstain, denying his state delegation to Meyer. The situation is resolved by 1) Meyer and James having sex and 2) Meyer, seemingly emboldened, threatening Nickerson (in especially colorful language) and blackmailing Yeager (who was at the party with his young female "staffer") to return to supporting her. We will see if it holds up.

[*] It is not about a tie, as the show keeps saying, but about a majority. If Selina wins 25 delegations, O'Brien wins 20, and five are deadlocked, the vote is not tied, although it does not produce a winner.

The problem with James' plan remains what I argued when they began this story line at the end of last season: Under the Twelfth Amendment as modified by the Twentieth Amendment, the plan only results in James acting as president until a president (either O'Brien or Meyer) qualifies, not becoming a president. Someone could act as president for a full four-year term, but it would be an inherently unstable situation, ending at any moment that a later House vote produces a majority and a winner who qualifies as President. James also would not have an inauguration, would not appoint a new Vice President under the Twenty-fifth Amendment, and would not be listed in the line of Presidents. Would James want that position and hope it holds up for four years? Would his apparent popularity allow him to retain public support through that instability?

The show reminds us of the magic number for Meyer: 26, a majority of state delegations. Also, note that we still do not actually know if there is an electoral tie, since we still are in December and the votes will not be counted until January 6. The show could be waiting to play the faithless-elector card as late-season trump.

Update: This review of the episode proposes a fun third wrinkle: What if, while James is trying to screw Meyer by denying her a House majority, Sidney Purcell and the Speaker (the two people James met with last week) are going to screw James by denying him a Senate majority? The Twentieth Amendment gives Congress the power to provide for the failure of both the House and Senate to pick someone; that statute provides that when there is neither a President nor a Vice President for any reason (as would be the case at noon on January 20 if both the House and Senate fail to produce majorities, so that no one has qualified for the office) the acting president is . . . the Speaker of the House. That would be a legally/constitutionally accurate twist that would fit the show's screw-your-neighbor political ethos.

Posted by Howard Wasserman on June 6, 2016 at 12:01 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Saturday, June 04, 2016

Muhammad Ali and the Law

Some law-related thoughts following the death of Muhammad Ali.

Ali's direct contribution to U.S. law is the Supreme Court decision (in a case captioned Cassius Marsellus CLAY, Jr. also known as Muhammad Ali) reversing his conviction for refusing Army induction. It was a per curiam opinion, decided on fairly narrow grounds, so nothing that would become canon or significant precedent. Ali had sought a conscientious-objection exemption, which at the time required that the person have a sincere, religiously grounded objection to war in any form. Although a hearing officer found all three elements satisfied and recommended to the Appeal Board that his status be recognized, the Department of Justice wrote a letter to the Board recommending rejection of status, based on DOJ's purported findings that Ali failed to satisfy any of the three elements. The Appeal Board denied c/o status, disregarding the hearing officer's recommendation and without explanation, although the only other available basis was the DOJ letter. Before the Court, however, the government conceded that Ali's objection was sincere and religiously based. That brought the case within precedent holding that when the basis for a selection-service (or any other government) decision is uncertain but some possible bases are unlawful or erroneous, the entire decision must be vitiated. Rather than speculating whether the Board might have relied on the one remaining basis (the objection not being to war in any form), the Court rejected the Board's decision in toto and reversed the conviction. Justice Douglas concurred; he argued that the evidence showed Ali objected to all but Islamic war against nonbelievers, a "matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute" by limiting c/o status only to those who object to all war in all forms. Justice Harlan concurred in the result, concluding that the DOJ letter could be read as claiming that Ali's assertion of C/O status was untimely, an error that called for reversal under the same line of cases as the majority relied on. The inside-the-Court workings leading to the decision were the subject of the otherwise-silly Muhammad Ali's Greatest Fight.

Ali is lionized for this stand, often through the modern laments about professional athletes refusing to take political stands or become politically involved the way Muhammad Ali did. But this has always seemed unfair. Ali was not lionized at the time. His actions were unpopular with the press and much of "mainstream" America (which did not like Ali to begin with, regarding him as an uppity loudmouth). The exception was African-Americans and young anti-war activists on college campuses. He was stripped of the heavyweight title and denied a license to fight in any state, most importantly New York (Madison Square Garden remained the center of the boxing world), costing him 3 1/2 years at the prime of his career. Although ultimately vindicated by SCOTUS, it came at tremendous cost to his career. Modern athletes asked to take political stands almost certainly do not face similar exile from their sports. But to normalize Ali* as the expectation for high-profile athletes seems unfair, a burden we do not place on other people, even other famous people, anywhere else in society.

[*] The other person forwarded as the aspiration is Jackie Robinson. But Robinson was somewhat forced to take a stand by circumstance--being the first African-American player in modern baseball made him inherently political. And the abuse Robinson took no doubt took a psychological and physical toll that contributed to him dying at age 53.

Update: Case in point from the Daily News, extolling Ali for "offer[ing] a roadmap for today’s athlete to be an activist," while 1) eliding that in 1967, this columnist almost certainly would have been lining up to excoriate Ali for talking to much and dodging the draft, and 2) perpetuating the idea that the only true activist is the one who sacrifices millions of dollars and the prime of his career, something we ask of no one else.  The Big Lead provides a good critique. At the same time, it understates the point in saying "[t]here are few, if any, athletes who can match Ali’s legacy fighting for social issues. That’s what made him such an important figure." Ali's legacy is, in part, a unique product of circumstances and initially unlawful action by the United States. That is why no one can match it.

Further Update: This Slate piece goes into detail on a lot of these themes, including more background on DOJ's efforts to influence the Appeal Board and on the prosecution, which were influenced by congressional and administration pressure.

Posted by Howard Wasserman on June 4, 2016 at 06:16 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Friday, June 03, 2016

Exclusive Submissions: FSU Law Review

The Florida State University Law Review will be conducting exclusive article reviews over the next few weeks. Any article submitted to the Law Review between now and June 15th will be evaluated for publication purposes by June 22nd.  By submitting an article the author agrees to immediately accept a publication offer with the Review should one be extended.  The author is not required to withdraw any article previously or contemporaneously submitted for consideration elsewhere.  However, the author may not accept an offer of publication from another journal  for any article submitted to the Law Review’s exclusive review process unless the Review indicates that the submitted article will not receive a publication offer. Author requests to further expedite the exclusive review process will be accommodated to the extent practicable. Any articles accepted through this exclusive review process will be published in the Review's third and fourth issues, which are slated for publication in summer of 2017.  

If you have an article you would like to submit, please e-mail Jazz Tomassetti a copy of the article and your CV at  jazztomassetti@gmail.com with the subject line "Exclusive Article Review." We look forward to reading your submissions.

Posted by Howard Wasserman on June 3, 2016 at 01:29 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Adding Civil Procedure to the Bar Exam: A Squandered Opportunity to Understand the Impact of Admitting Students with Lower Indicators

The following post is by my colleague Louis Schulze, who runs FIU's Academic Excellence Program.

As is well known, Erica Moeser of the National Conference of Bar Examiners (NCBE) famously stated that July 2014 bar takers were “less able” than students of the recent past. Equally famously, deans of many law schools objected to this comment, at the very least for its lack of tact. Commentators noted that other factors, such as the ExamSoft breakdown during the exam, could also have led to lower bar passage rates. The NCBE rejected this theory. When bar pass rates once again declined in 2015, the NCBE effectively doubled-down on its “less able” theory.

Last week, Judith Gunderson, Director of Testing at the NCBE, presented a plenary address at the annual conference of the Association of Academic Support Educators. Much of the address focused on rather pedestrian matters that would be well known even to the greenest of AASE members. Additionally, despite promising to allot 30 minutes of an hour-long talk for questions, that period was only a few minutes long (and even that brief period took us three minutes over the session’s end-time).

I was one of the lucky few able to pose a question. My query was this: “When adding Civil Procedure to the MBE, to what degree did the NCBE consider ‘cognitive load?’” Ms. Gunderson’s response was, basically, that Civil Procedure tested equally as well as the other subjects. But this answer demonstrated a troubling misunderstanding of cognitive load theory. Below the fold, I’ll briefly explain “cognitive load theory” and how the NCBE’s possible unawareness of the subject renders us once again less able to draw conclusions from the recent decline in bar passage rates.

Cognitive load states that working memory has the capacity only to hold a certain amount of information at one time. Because that capacity is limited, the possibility of overload exists, and this overload produces sub-optimal mental processing and, thus, learning. (Sweller, 1994).

One can think of cognitive load as similar to “bandwidth”; there’s only so much of it to go around. If an Internet service has 60 Gbs of bandwidth, and it is distributed over six devices, each device will work just fine if it takes up 10 Gbs. But, let’s say that you buy a new device that also takes up 10 Gbs of space. Well, now each device will perform below its optimum ability because 60 Gbs must be distributed over seven devices. Each device drops from 10 Gbs usage to 8.57 Gbs.

Similarly, if we add a seventh subject to an already taxing exam, we run the risk of undermining the performance on each subject. If the material learned in exam preparation hinders processing into long-term memory, this would lead to lower test scores across the board. Deflecting the question about cognitive load by saying that Civil Procedure tests equally well as other subjects, therefore, entirely misses the point. Just as each device in my analogy performs equally well, the problem is that each of them dipped in performance from 10 Gbs to 8.57. This is why Ms. Gunderson’s answer is troubling.

To be clear, my claim is not that adding Civil Procedure caused the plummeting bar passage rates. (In fact, my own personal opinion is that decreasing entrance indicators likely contributed significantly to this phenomenon). Instead, my claim is that the NCBE’s rolling out Civil Procedure concurrent with the plummeting passage rates scuttled an excellent opportunity to obtain clean data showing that lower incoming indicators likely caused the decreased passage rates. Just as the ExamSoft debacle muddied the analysis of the dropping passage rates in 2014, the addition of Civil Procedure similarly prevents legal education reformers from acquiring powerful data to support their important cause.

I acknowledge that the NCBE works tirelessly to produce a fair bar exam. The organization uses sophisticated statistical analyses and extensive vetting of questions to work towards this goal. Not considering cognitive load theory, however (if that is indeed what happened), was a critical mistake.

Truly, this was a squandered opportunity.

Posted by Howard Wasserman on June 3, 2016 at 01:28 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

The new judicial ethics

So just so I understand this: If I make racist, sexist, etc., statements about groups of people, then a judge who who happens to be a member of one of the groups I criticized now has an "absolute conflict of interest." For a judge, of course, that absolute conflict of interest demands recusal.

And that is true not only in a case in which membership in that group might be salient, (e.g., the claim/charge is based on my discriminatory action or deals with the rights of members of that criticized group). It applies to any and all cases in which I am involved as a party, regardless of subject.

Or is it only a conflict if the statements were made by a presidential candidate? Or is it only a conflict if the statements were made by Donald J. Trump and everyone else is on her own?

As I have said before, at least opponents of marriage equality went out of their way to emphasize that it was not the judge's status as an LGBTQ person that warranted recusal. The argument was still nonsense, but at least they kept it as subtext. With Trump, everything is text.

Posted by Howard Wasserman on June 3, 2016 at 08:07 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, June 01, 2016

JOTWELL: Wasserman on Lain on The Irrepressible Myth of SCOTUS

I have the new Courts Law essay, titled The Irrepressible Myth of SCOTUS, reviewing Corinna Lain (Richmond), Three Supreme Court "Failures" and a Story of Supreme Court Success (Vand. L. Rev.). Lain's article is part of a symposium on Erwin Chemerinsky's The Case Against the Supreme Court.

And I just could not resist the title.

Posted by Howard Wasserman on June 1, 2016 at 12:33 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Ferguson's Fault Lines at Law & Society

This week, I am off to the Law and Society meeting in New Orleans (a city I have never been to, so I am looking forward to the chance to walk around). At 8:15 a.m. Thursday, I am in a roundtable session titled Ferguson's Fault Lines Transcend Ferguson, along with other contributing authors to the book of the similar name.

Posted by Howard Wasserman on June 1, 2016 at 12:01 PM in Howard Wasserman | Permalink | Comments (0)

Rotations

As June marks the official start of the academic summer (i.e., when I actually have to get cracking on my summer research projects), we welcome our new visitors for the month: Hadar Aviram (UC Hastings), David Fontana (George Washington) Ajay Mehrotra (American bar Foundation), Andra Robertson (Case Western), and John Stinneford (Florida).

And thanks to our May guests, who may be sticking around for a couple of extra days.

Posted by Howard Wasserman on June 1, 2016 at 06:08 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, May 30, 2016

Veep, S5E6

More small developments as the season moves towards the inevitable vote in the House.

Selina must choose two failing banks to bail out and picks one of them because it is based in Illinois, a state she needs. The show still has her treating the House vote like a mini popular vote, with individual House members voting the state's interests rather than the party line.

Along those lines, Jonah's congressional campaign turns the corner when he begins criticizing the President and her poor performance. If he wins running on that platform, how might it affect his vote in the House? (Again, this is assuming he is running to become the new representative-elect for the next Congress). [Update: Jonah Ryan for Congress has a website]

Finally, we see the next step in Tom James' plan, as he is shown meeting with the Speaker of the House and the head of the lobbying firm Dan worked for (and for which James appeared to be shilling last week). Clearly James is trying to manipulate the House vote. But how? To formally get his name in the House election, he needs that faithless elector, but we do not know what has been happening with the electors. If James is trying to create a stalemate in the House as the way to become President, I go back to my original argument that he only acts as President until the House breaks that stalemate, so this seems a constitutionally unsuccessful move (and one I hope the show does not build the entire season around).

Posted by Howard Wasserman on May 30, 2016 at 09:31 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (6)

Sunday, May 29, 2016

Documents unsealed in Trump University lawsuit

On Friday, Donald Trump spent more than ten minutes of a campaign rally to criticize (and highlight the ethnic origin of) the judge in a class action against Trump University, mainly because the judge had issued various rulings against the defendant, a clear (according to Trump) indication that the judge was biased and should recuse. That same day, the judge has ordered unsealed a number of documents presented to the court on a class-certification motion. The court emphasized the public interest in the case (which suggested the need for public access to the documents), noting Trump's status as the front-runner for the Republican presidential nomination and that Trump had "placed the integrity of these proceedings at issue" in that race.

I guess judges do have ways to protect themselves against political attacks.

Posted by Howard Wasserman on May 29, 2016 at 03:40 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Saturday, May 28, 2016

Thiel, settlement, and third-party funding

Following up my previous post on Peter Thiel and Gawker, this TNR post is so wrong about so many issues with civil litigation.

First, it derides the ACLU/NAACP analogy (also offered by Eugene Kontorovich) as "ridiculous." That is correct to the extent the ACLU or NAACP are not motivated by private vendettas. But the comparison works at the broader level of someone with an agenda (whether personal or ideological) helping someone else litigate their claims. And the fact that the agenda is personal rather than ideological should not matter. Public-interest organizations are no more consistent than individuals in their positions, as will no doubt be demonstrated when various political groups go silent about President Trump's executive actions.

Second, it argues that Thiel 's "Ahab-like mission" prevented the case from settling, which would have been the better solution to properly balance free speech and privacy concerns. But the prevailing view is that too many cases settle too easily, often under pressure from judges pushing settlement, and often confidentially, thereby depriving the public of knowledge of the case or its outcome and making it harder for repeat-player defendants (such as Gawker) to be held accountable. Moreover, to the extent Thiel's funding hand created a conflict between his interests and a settlement that would have been best for Hogan, this case starts to look quite a bit like NAACP-run impact litigation, where a settlement that might be best for the individual client is not consistent with the funder's long-term ideological or institutional needs and goals. So the non-settlement undermines the supposed ridiculousness of the NAACP/ACLU analogy--the potential for party-funder conflict looms in both.

Third, the focus on settlement as the means to balance speech and privacy and serve the public interest (by making Gawker pay for a violation while not being put out of business) is nonsense. We do not strike the balance by settling individual cases, although the parties themselves might. We strike the balance in the legal rules themselves, protecting speech against civil liability for invasion-of-privacy until the speaker crosses some line (the location of which will be the issue on appeal in this case). If Gawker crossed that line, there is no balance to be struck; it should be on the hook for all the harm it legally caused by violating Hogan's rights. And if that harm is so great that it forces Gawker out of business, so be it.

Finally, the post argues that Thiel's supposed deterrence goal is undermined by the fact that he financed the lawsuit in secret, because deterrence only works if the punishment is publicly known. But this makes no sense. It is not Thiel's funding efforts that punishes Gawker, it is the $ 140 million judgment that Hogan achieved through litigation funded by Thiel. And that judgment is publicly known. And that judgment (if it stands, which I do not believe it will) will have a pretty strong deterrent effect. Thiel's identity is not necessary for deterrence. Although, to the extent we are concerned about anonymous funding, Simona Grossi's argument about transparency in funding offers a solution.

Posted by Howard Wasserman on May 28, 2016 at 05:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Friday, May 27, 2016

Litigation financing and the First Amendment

I wanted to share two takes on the news that tech billionaire Peter Thiel has been funding Hulk Hogan's lawsuit against Gawker Media. Simona Grossi (Loyola-LA) argues there is nothing inherently wrong with Thiel financing someone else's litigation, which represents a different type of third-party litigation financing, although she suggests that due process may require transparency in such funding arrangements.* Slate's Mark Joseph Stern argues that the problem is not Thiel funding the litigation, but that the litigation is possible because of elected state judges and state privacy torts that may not sufficiently leave room for free speech.

[*] In discussing litigation financing, Grossi mentions  public-interest organizations providing free/reduced-fee representation. But she does not mention the role of attorneys' fees for many of these organizations, which affects how that financing model operates. Of course, the court knows when attorneys' fees are potentially in play, so any transparency concerns are addressed.

Both argue that Thiel's funding activities are protected by the First Amendment, although for different reasons. Stern finds support from NAACP v. Button and constitutional protection for ideological litigation, while Grossi finds support in an analogy to campaign finance. The answer, I think, is a combination of these.

Button does not do it alone, because the case was less about the NAACP financing litigation than about it soliciting clients to bring litigation (financed, obviously, by the NAACP, but that was not the focus in the case). Plus, the NAACP was, in some sense, seeking to vindicate its organizational rights (or those of its members) through litigation. It is harder to conceptualize Thiel as vindicating his own rights. While he benefits from destroying Gawker, it is only in the way that everyone benefits from the deterrent effects of tort liability (either because Gawker stops publishing mean things or because Gawker stops publishing at all). This seems different than the NAACP desegregating the schools, where the precedential and remedial benefits of a judicial declaration of the unconstitutionality of segregated schools are more direct. That distinction also may relate to the litigation financed--challenges to the constitutional validity of state laws of general applicability as opposed to individual tort suits for damages against a private entity.

But Button does some work for the campaign-finance analogy. Money is not speech. But speech costs money, so restricting the money that can be spent on speech necessarily limits speech.** Under Button, litigation is First Amendment activity.*** It follows that spending money on litigation also must enjoy constitutional protection. That does not get us all the way there, obviously. But it at least forces Thiel's critics to identify what makes this financing model different and uniquely harmful and to show why any harms cannot be addressed in other ways (such as through the disclosure that Grossi suggests).

[**] As a general proposition, even critics of Citizens United and current campaign-finance doctrine would recognize that, for example, government could not limit the amount of money a company can spend on (truthful non-misleading) advertising or on printing its newspaper or magazine.

[***] The Court does not specify whether it is speech or petition activity, although it should not matter. Petition activity costs money, just as speech does.

Lost in much of the hand-wringing is that Thiel's efforts, at least with respect to Hogan, will likely fail. It seems unlikely that the judgment against Gawker will stand (in light of both First Amendment considerations and the trial court's evidentiary rulings), certainly not in the ridiculous amounts imposed. Of course, Thiel's goal may have been simply to force Gawker to spend millions of dollars on its defense, which it has done, even if Gawker does not also have to pay millions in damages. If so, the answer may lie in fee-shifting, although drafting a fee-shifting rule without it turning into "loser pays" will pose its own challenges.

Posted by Howard Wasserman on May 27, 2016 at 10:44 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, May 26, 2016

Arrest in Dan's death

As many of you know doubt have heard, Tallahassee Police have announced an arrest in Dan's death. Sigfredo Garcia was arrested yesterday evening. The probable cause affidavit for the murder charge has been sealed and the investigation remains ongoing. TPD declined to give further details at a press conference this morning.

We have written very little here about Dan's death (as opposed to about Dan himself) to avoid the speculation and general b.s. that has surrounded this tragedy. We are happy to write about genuine news and may occasionally check back in as the case progresses.

Comments on this post are closed.

Posted by Howard Wasserman on May 26, 2016 at 02:36 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 25, 2016

Frank Easterbrook, the First Amendment, and the Chicago Cubs

My colleague calls this case the trifecta. Interestingly, news reports (BNA, NLJ, etc.) have focused on the court of appeals affirming the denial of the preliminary injunction and rejecting the argument that the flat ban on sales on the adjacent sidewalks violates the First Amendment. But the court spent a lot of time on possible First Amendment defects in a related ordinance requiring all peddlers to be individually licenses, except those selling newspapers. The court questioned both the exception for newspapers under Reed v. Gilbert and the licensing requirement as a whole, to the extent it disadvantages a small publication that relies on individual part-time sellers. The opinion offers the plaintiffs arguments to make in moving for a permanent injunction on remand.

And Easterbrook could not resist starting with this line: "The 2016 season is under way, and the Cubs are doing well on the field. Left Field hopes to do as well on appeal."

Posted by Howard Wasserman on May 25, 2016 at 04:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 24, 2016

Trusts, religious paraphenalia, and freedom of the church

I am a week late to this decision from Judge McConnell of the District of Connecticut, resolving a dispute between two congregations over ownership of a pair of historic rimonim (the deocorative bells that adorn a dressed Torah). The opinion spends 40+ pages lovingly tracing the long story of Touro Synagogue and the Jews of Newport, R.I., including the 1790 letter exchange with George Washington and with several divergences into the Iberian Inquisition and differences between Sephardic and Ashkenazi practices. The opinion is a wonderful read as a judicial summary of a piece of American-Jewish history. The central legal issue was the relationship between the current Newport congregation and a congregation in New York that formed in the early 1800s, when most of the Newport Jewish community left for New York.

My question, for those who know such things (looking at you, Rick and Chris Lund) is whether the court successfully avoided any freedom-of-the-church problems. Because the structure of Jewish congregations is not religiously compelled, the questions (what corporations were formed, trust relationships, trustee conduct, existence of a bailment) could be resolved on purely secular grounds. I caught one point in which the court drew an inference (that the rimonim were received at the same time as some torahs, because the items travel together) that is based on some religious idea. But mostly the court seemed able to focus on general legal principles, without touching on any point of obvious Jewish law.

Are there First Amendment problems in this decision? Is this case so different from deciding which of two competing groups is the "real church" arguing over property, the type of cases courts are not permitted to hear?

Posted by Howard Wasserman on May 24, 2016 at 04:54 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Monday, May 23, 2016

Veep, S5E5

The show takes place during Thanksgiving weekend, in an episode that has a lot of House-election stuff in the air.

Selina begins making phone calls to whip votes for the coming House election. But the show approaches that election in a way that is, at least on the surface, sloppy--the correct understanding may be in the background, but the details to come out in the way characters discuss the mater.

Details (and spoilers) after the jump.

First, no one has yet acknowledged that we do not know for sure that there is an Electoral College tie. The electors have not yet voted (that happens on the first Monday after the second Wednesday in December, so about three weeks from the current action), not every state has a faithless-elector law (and for the states that do, their constitutionality is not settled), and in the show's universe of less-rigid partisanship, an elector defecting to the other party (to say nothing of the hypothesized rogue Tom James vote) is not outside the realm. We will not know that the vote is tied until January 6, when the House meets to count the votes. There is a presumptive tie, given how the College now works, but it remains just that.

Second, it seems odd that Selina seems to be whipping current members of the House, since it is the new House, beginning January 5, that will count the electoral votes and, if there is no majority, select the President. The show could at least mine some scenes from Selina lobbying some new House-members-elect who have not yet taken office.

Third, she is making calls as if individual votes matter, rather than the partisan make-up of the state delegation. Thus, when Rep. Harry Sherman of New Hampshire (an 89-year-old man from the other party) dies, Selina's reaction is that this is one less vote for O'Brien, rather than talking in terms of how it affects the New Hampshire delegation as a whole. New Hampshire has two representatives. If the other representative is from Sherman's party, the state still goes for O'Brien; if she is from the other party, it turns a split delegation into a vote for Selina. That should be the discussion.

That last point leads to the other narrative development over replacing Sherman The state announces it will hold a special election "before Christmas." Sherman's  widow (perhaps also-octogenarian, although it would not surprise me if the show trotted out a much-younger woman and played that for laughs) is running to replace him and Selina's party recruits Jonah to oppose her.* But the show is not clear about what vacancy is being filled. Is it the current term, that ends on January 4? Would a state bother to hold an election so someone can serve for 15 days? Or is it for the next term (the one for which Sherman was re-elected) that begins on January 5? But that seat is not yet vacant, since the term of Congress has not begun. Would a state hold a special election before the beginning of the new Congress to fill a vacancy that will occur when the new Congress is seated, but not before and that thus does not exist? It does not appear to be constitutionally obligated to do so. Perhaps it would do so here, given the extraordinary and historic circumstances. In any event, the show is being non-specific on this point.

[*] The decision to have Jonah as the candidate is discussed inconsistently. At times, he is spoken of as cannon fodder, thrown in to lose to the grieving widow. At other times, it is discussed as Jonah likely winning the election (because his uncle is king-maker in the state), but only as a short-time placeholder until his more-favored cousin returns from a tour of duty in the Middle East.

Finally, the show throws out a little Twenty-fifth Amendment action. Selina wants to disappear for the weekend to have minor cosmetic surgery to remove the bags from under her eyes, which leaves both eyes with rings of blood for a few days. Naturally, she is needed to speak to the public, first to calm concerns over a salmonella outbreak and then to address Rep. Sherman's death. She asks both Tom James** and current VP Doyle to take the lead. Doyle agrees once, then balks a second time until he is told why Selina cannot do it. When Mike lies that she just had some minor oral surgery that renders her unable to speak in public, Doyle demands to know why the amendment was not invoked for the President's incapacity or why, if not incapacitated, Selina does not do this herself; Mike's response--"she's not not incapacitated"--is classic Veep.

[**] James is shown working some scheme through his public statements, in which he appears to be shilling for companies represented by a lobbying firm. Is he setting up that one faithless elector to get him into the House vote? Dan, who has been assigned as James' bag man, catches on, but no one in Selina's camp believes him.

Posted by Howard Wasserman on May 23, 2016 at 11:53 AM in Constitutional thoughts, Culture, Howard Wasserman, Television | Permalink | Comments (3)

Friday, May 20, 2016

Money and departmentalism

Pending legislation in Oklahaom would prohibit doctors from performing abortions (it would be a felony and would result in loss of medical license). This Slate story and this letter from the Center for Reproductive Rights  describes the controversy in what I would argue are the appropriate departmentalist terms. It is about time and money: The time and taxpayer money the state is going to waste defending a law that will pretty obviously lose in the courts because the courts are bound to follow SCOTUS and other binding precedent (under which this law is, as  the CRR says, blatantly unconstitutional). And, we can add to the bill the plaintiffs' attorneys' fees, which are going to be quite high, if the marriage litigation and other recent examples are an indicator. And they situate this amid all of Oklahoma's economic problems and the money it is not spending on education, social services, and the health and welfare of women and children. Nowhere does the author or the CRR suggest that anyone in the state legislature or the governor is acting contrary to the Constitution or to their oaths by voting on or signing this bill. Instead, it's that this is making it impossible for you to govern the state well.

[*] I want to explore more about the deterrent value of attorney's fees. While that was not the original purpose of § 1988, fees increasingly play that role, especially in non-monetary cases such as this one.

And that is the larger point I am searching for. Political-branch officials do not act "unconstitutionally" when they act contrary to judicial precedent, only when they fail to follow a judgment rendered against them. And if they want to keep forcing new litigation beyond that judgment, even as against precedent, that is consistent with their constitutional vision. But if the cost of this move becomes so great, and starts to distract or draw from other priorities, the hope is that the  public will rise up at the ballot box when this becomes wasteful enough. That, in turn, provides a political check on similar behavior.

But to return to the question of legal and judicial ethics in this realm. Some of the legislators are likely attorneys and have attorneys working for them; Fallin likely has attorneys working for her. Are they violating their ethical obligations by voting for this law or advising that they can vote for it?

Update: Gov. Fallin veoted the bill, arguing that the absence of a definition of "necessary to preserve the life of the mother" (the one situation in which an abortion would not be illegal) rendered the law vague, likely to fail in a constitutional challenge, and thus not an appropriate vehicle for challenging Roe.

Posted by Howard Wasserman on May 20, 2016 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (6)

Wednesday, May 18, 2016

JOTWELL: Steinman on Pidot on tie votes

The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Justin Pidot, Tie Votes in the Supreme Court (forthcoming in Minn.L. Rev.), a timely study of the history and effects of evenly divided Courts.

Posted by Howard Wasserman on May 18, 2016 at 10:17 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 17, 2016

Elsevier purchases SSRN

Elsevier's press release is here. Matt Bodie is curious, Paul Gowder is outraged and looking to start-up a not-for-profit rival that will continue to be open-access for law and political science scholarship (similar not-for-profit services exist for hard sciences), and others are commenting.

Posted by Howard Wasserman on May 17, 2016 at 03:56 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Another data point on computers in the classroom

The new study comes from West Point; it created three sections--one that could use any technology (laptops or tablets) to take notes, one that could use tablets to read course materials, and one that could use no technology. The study offers two new insights. First, using a laptop hurt better students (measured by ACT scores) than weaker students--students with high ACT scores who used computers performed worse than comparable students who did not use computers, while students with low ACT scores performed similarly whether they used computers or not. Second, there was no performance difference between those who used technology for notes and those who used it only for reading--both sections performed worse than the non-technology sections.

This last point is notable to me. In Civil Rights, where I assign raw cases, I allow students to use a tablet for their cases (and thus to get the supplemental treatise by ebook). I may have to rethink this.

Posted by Howard Wasserman on May 17, 2016 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, May 16, 2016

Zubik, shadow dockets, and dispute resolution

It is easy to conclude that the anti-climactic resolution in Zubik v. Burwell is simply a consequence of the Court being down a Justice. What would have been a 5-4 win for the plaintiffs (with Justice Scalia in the majority) became a 4-4 affirmance (of disparate lower-court outcomes), necessitating the Court to order supplemental briefing and then to remand when, in light of that supplemental briefing, it was no longer necessary for this Court, as opposed to a lower court, to be involved.

And all of that may be true. But I want to try to situate this case, given its actual resolution, in two broader concerns.

First is the connection to William Baude's Shadow Docket. Perhaps this case demonstrates how cases can move back and forth between the "real" docket, in which merits decisions are made and explanations given, and the shadow docket, in which reasons are not given, but hints are dropped and cases are knocked out of the Court for non-merits reasons. The Court functionally DIGed the case, but in a way that gave specific marching orders to the lower courts to start over and, hopefully, put together the compromise resolution that the parties suggested in the supplemental briefing. But the end result plays much like what we saw in the lead-up to Obergefell.

Second, this type of resolution is not necessarily a bad thing. District courts (as do courts of appeals, although not quite as often) do this all the time--it is an aspect of "managerial judging," especially in cases involving institutional reform. While the Court is partially tasked with resolving significant disputes over constitutional (and in this case statutory) meaning and application, it also is the top of a judicial system whose primary function is to resolve discrete disputes between discrete parties. And if the Court can do that with a "work-it-out" mandate without passing on the legal question, there is no structural reason--no reason grounded in the "purposes" of SCOTUS or the federal courts--for it not to do so. Especially if it provides a solution that protects everyone's rights.

Posted by Howard Wasserman on May 16, 2016 at 12:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Jurisdiction day at the Court

The Court decided two closely watched (by a segment of law professors) jurisdictional cases today. I now have to start thinking about whether to include them in Fed Courts next semester and what to keep or drop if I do add them.

In Merrill Lynch v. Manning, the Court held that the grant of exclusive federal jurisdiction over any action "brought to enforce any liability or duty created by" the Securities and Exchange Act means the same thing as the grant of general federal jurisdiction over civil actions "arising under" in § 1331. This means that the claim must either seek a relief under the act itself or assert a state law claim in which an issue under the act is necessarily raised, actually disputed and substantial, and placing the case in federal court would not disturb the balance of power between state and federal courts.

[**] I was surprised that the Court did not mention the jurisdictional statutes that use the phrase "brought under" (notably the grants for employment-discrimination laws) and also have been interpreted identically to § 1331.

Justice Thomas, joined by Justice Sotomayor (apparently the first time those two have gone off on their own) concurred in the judgment. Thomas insisted that the textual difference between "brought to enforce" and "arising under" must make a practical difference; thus, while "arising under" requires both a necessary federal issue and other considerations, "brought to enforce" requires only that claims "necessarily depend on establishing an Exchange Act violation."**

[**] Note that Thomas does not like the Grable balancing test even as an interpretation of § 1331 and arising under. He has argued that the Court to return to the Holmes test that the claim arises under the law that creates the cause of action.

In Spokeo, the Court avoided the big question--whether a statutory violation, simpliciter, is sufficient for Article III injury-in-fact--by remanding to the Ninth Circuit to redo its standing analysis to consider not only whether the injury was particularized, but also whether it was "concrete," which is a distinct component of injury. According to the majority, the Ninth Circuit "failed to fully appreciate" this distinction. Along the way, the Court allowed a couple of points that may be significant for standing analysis going forward. First, a harm can be both concrete and intangible. Second, both history and congressional judgment play "important roles" in determining what intangible harms are sufficiently concrete. Third, the risk of harm may be sufficient to establish an injury and Congress can create procedural rights designed to avoid that risk. Finally, if Congress establishes a statutory intangible harm that is sufficiently concrete, a plaintiff need not allege any additional harm beyond the statutory violation itself. Thus, the ban on publishing false information could (presumably depending on what the information was) be sufficient to support standing.

Justice Ginsburg, joined by Justice Sotomayor, dissented. She went out of her way to agree with much of the majority opinion. She dissented because this is far from a case of a simple procedural injury with no harm (the majority's paradigm was publishing an incorrect zip code). The plaintiff had alleged significant material misrepresentations about his age, marital status, wealth, education, and employment history, all of which he alleged would harm his job prospects. She argued that it was unnecessary to remand so the Ninth Circuit could simply underscore what is already obvious about the harm the plaintiff suffered (or was threatened with suffering) to his job prospects.

Posted by Howard Wasserman on May 16, 2016 at 11:30 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Veep, S5E4

The Nevada recount is moved somewhat to the background this week, with the main story being about Selina's mother suffering a stroke and Selina removing her from life support. Reports of events in Nevada are interspersed with her grieving (she did not get along with her mother), so that she breaks down while giving the eulogy because she just learned that she had lost both the Nevada recount and the national popular vote (the ballots found last week gave O'Brien a bigger win in Nevada and also flipped the national vote).

Beginning next week, things move to Congress, which is the constitutional piece I have been looking forward to. Three interesting points. First, no one has mentioned the important event before going to Congress--the actual casting of votes in the Electoral College, in December. Will the show play around with a faithless elector either changing votes and giving either Selina or O'Brien a majority (and obviating a House election) or, as some commenters here have suggested, casting a vote for Tom James (Selina's running mate), which would put him into a three-person House election? Second, I am curious to see if, and how, the show paints a House election as anything other than a straight partisan battle--everyone in O'Brien's party votes for him, everyone in Meyer's party votes for her (assuming James is not in the mix), and we see where things land. Are there going to be enough evenly divided state caucuses that straight-party voting continues to produce a tie? Third, I continue to hope the show does not make the constitutional mistake of having the Senate select James, the House unable to decide, and James becoming President and appointing Selina as his VP. Stay tuned.

Posted by Howard Wasserman on May 16, 2016 at 12:53 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Sunday, May 15, 2016

Webinar: Ferguson's Fault Lines

I will be participating in an ABA Webinar on Monday, May 16 from 1-2:35 p.m. (EDT), titled Ferguson's Fault Lines: The Race Quake That Rocked the Nation; I will be talking about body cameras. This is a follow-up to the book of the same name and part of the ABA's Free CLE Series.

Posted by Howard Wasserman on May 15, 2016 at 02:28 PM in Howard Wasserman | Permalink | Comments (0)

Monday, May 09, 2016

Veep, S5E3

Things continue in Nevada. We see the beginnings of litigation, although I am not exactly sure where or what level--the Meyer campaign is seeking a "Hail Mary Injunction," appears in front of a multi-member court, but everyone is making objections. The show also continues developing Richard as character: He has emerged as the one competent person working for the campaign, but is not liked or taken seriously by others, and one reason might be that he is an overweight African-American.

The episode raises an interesting question about the politics of a Twelfth Amendment House election. Meyer starts and escalates an economic war with China, first to cover for a mistaken Tweet, then to avoid looking weak in the face of cyber-security threats from China, which she fears will hurt her electoral chances. But her electoral chances where? Not in Nevada, where the voting is done and what is left is the counting. So it must be the vote in the House. But would we expect the House vote to be anything other than straight partisanship, especially in this political period? Would a member of Meyer's party really vote for O'Brien (or abstain, allowing O'Brien to win that state's delegation vote)? Worse, would this one event cause that member to change his vote (i.e., he planned to vote for Meyer, but now will not because of this China thing), given what a disaster she otherwise has been in office? The show plays the typical "I can't look weak" concerns of an incumbent President running for office, but it may not fit the context.

Posted by Howard Wasserman on May 9, 2016 at 09:56 AM in Culture, Howard Wasserman | Permalink | Comments (3)

Saturday, May 07, 2016

Roy Moore suspended, facing removal

The Judicial Inquiry Commission of Alabama has filed a Complaint against Chief Justice Roy Moore with the Alabama Court of the Judiciary, which will hold trial to determine whether Moore should be removed from the bench. Moore is suspended with pay while the proceedings play out.

The focus of the charges was Moore's administrative order of January 2016, ordering all probate judges in the state that they had a ministerial duty not to issue marriage licenses to same-sex couples pending resolution of the mandamus action in the Supreme Court. This order was contrary to the statewide defendant class injunction in Strawser, the Eleventh Circuit's effective affirmance of that injunction (the Court rejected a challenge to the injunction as being inconsistent with the SCoA mandamus ruling, insisting that the SCoA ruling was abrogated by Obergefell), and Obergefell itself.

I know nothing about judicial ethics, particularly in Alabama. But it seems to me the first charge--that Moore ordered the probate judges to ignore a federal court's injunction--is fair game (although the fact that the Eleventh Circuit had weighed in on the issue seems beside the point). The rest--that Moore decided substantive legal issues, including in ways that conflicted with his role deciding cases as a member of the Court--seem a bit shakier, at least to the extent they suggest an ethical conflict between the Chief Justice's role as administrative head of the state judiciary and as a member of the courts. The last five charges assume that SCOTUS's decision in Obergefell is the last constitutional word and a state judge, even one acting in an administrative capacity, cannot second-guess or disagree with that.

I welcome comments from this with a background in Alabama judicial ethics.

Posted by Howard Wasserman on May 7, 2016 at 04:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Friday, May 06, 2016

Random items for a Friday morning

1) Here is a supercut of movie scenes depicting people dealing with writer's block. The Slate story describes it as stressful to watch--and it is. I also would say "claustrophobic."

2) Yesterday, I held my Civ Pro review session, which also included, for the second time, presentation of the "creative projects" that students can do for extra credit. The students enjoyed it, I got about 80-90 % participation (down slightly from the first time I did it, but still good). And it ran the gamut--board games, music parodies,* children's books, a skit about one of out classes, and even a pencil drawing of me. I think this is beginning to take on a life of its own, which I like. And a forever H/T to Josh Douglas for suggesting the idea; it has proven to be a nice exercise in class collegiality and, in many cases, an review that allows me to see what they understand (and what they don't). [Update: Here is the information sheet I give to students about this assignment]

    [*] The one problem with music parodies is that my musical tastes have not kept up. So I can recognize the Spice Girls ("I wanna really, really, really get an A in Civ Pro") and "Let it Be" ("Let 'em plead"--"yeah there will be an answer" sort of fits perfectly). The rest, not so much, although I think they were well done.

3) A federal lawsuit has been filed in the Southern District of Florida alleging that a former administrator in FIU's School of Architecture sexually assaulted a student. I know nothing about any of this. I mention it only to highlight one Civ Pro angle: The complaint was served while the defendant was on campus of another school in another state interviewing for an academic position. That is cold-blooded.

Posted by Howard Wasserman on May 6, 2016 at 09:57 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (4)

Wednesday, May 04, 2016

Judicial vacancies

Two items worth checking with respect to federal judicial vacancies:

First is the new episode, The Hold Up, of the Life of the Law podcast, exploring the problem of vacancies in the lower federal courts. The piece focuses on Chief District Judge W. Keith Watkins of the Middle District of Alabama, who is the only active judge in the district (three are authorized) and is running the district with two senior judges (one of whom just had surgery) and six magistrates.

Second is this report from the Congressional Research Service, analyzing Merrick Garland's jurisprudence on the D.C. Circuit and trying to predict what he might do on the Supreme Court.

Posted by Howard Wasserman on May 4, 2016 at 04:08 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, May 02, 2016

Veep, S5E2

Nothing new on the federal constitutional or succession front. The story is settling in for a recount under Nevada law--although I welcome election-law folks to offer thoughts about the state process, under which a sample of votes are recounted and if it is closer than a certain margin--Meyer needed t0 pick-up 512 votes--there would be a statewide recount.

The great lawyerly moment was over the effect of a comma on a ballot on which the voter had scrawled "Fuck Selina Meyer." The O'Brien people insist it is an O'Brien vote, the voter expressing disdain for Meyer; the Meyer people insist it is a Meyer vote because there is a comma in there ("Fuck, Selina Meyer"), the voter expressing "earthy but unambiguous enthusiasm for Selina Meyer." The election official counts it for Meyer. [Update: Courtesy of one of my students]:

GetAttachmentThumbnail

Actually, I read it a third way--indicating resignation ("Fuck, nothing better, [throwing up hands], might as well vote for Meyer"), which still would have produced the same result of a vote for Meyer.

Posted by Howard Wasserman on May 2, 2016 at 12:22 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (1)

JOTWELL: Walsh on Blackman and Wasserman on marriage equality

The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Josh Blackman and my The Process of Marriage Equality (Hastings Const. L.Q.), which explores some of the procedural issues underlying marriage-equality litigation leading to and after Obergefell. And which appears to be something that is not going away.

Posted by Howard Wasserman on May 2, 2016 at 11:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (3)

Sunday, May 01, 2016

Rotations

Happy May Day.

Thanks to our April visitors, who may linger for an extra day or so. It's been a great month, particularly with Chris FAQ posts, which reflect the spirit of what Dan was trying to start here so many years ago.

And welcome to our May visitors: William Berry (Mississippi), Megan LaBelle (Catholic), Kate Levine (headed for St. John's), Ray Partain (Aberdeen), Andy Spalding (Richmond), and Marcia Yablon-Zug (South Carolina).

Posted by Howard Wasserman on May 1, 2016 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Friday, April 29, 2016

Is Mrs. Palsgraf upset with Yeshiva University over the name of its law school?

A fair question in light of this.

Posted by Howard Wasserman on April 29, 2016 at 05:43 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Thursday, April 28, 2016

SEALS Prospective Law Teachers Workshop

Each year, the Southeast Association of Law Schools (SEALS) hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Omni in Amelia Island, Florida, on Thursday, August 4 and Friday, August 5. On Thursday, there will be mock interviews between 8 and 10 AM with CV review sessions from 10:15-11:00. On Friday, mock job talks will take place from 8 to 10 AM. And at 1:00 on Friday, we will have a panel entitled “Navigating the Hiring Process” which will feature recent tenure track hires who will dispense advice about getting hired in this “new" market. There are also several excellent panels on Friday and Saturday that are targeted to new law professors, which prospective law professors will also find helpful.

If you are interested in being a participant in this year’s workshop, please send your CV to professor Brad Areheart at brad.areheart@tennessee.edu. Applications are due by June 1, 2016. Many of the past workshop participants have gone on to obtain tenure-track positions in legal academia and now teach at diverse schools, ranging from Tulane to South Carolina to Louisville.

Posted by Howard Wasserman on April 28, 2016 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Wednesday, April 27, 2016

Old injunctions and new statutes

The recently enacted anti-LGBT legislation in Mississippi includes a provision allowing public officials to recuse themselves from issuing marriage licenses to same-sex couples if doing so conflicts with their sincerely held religious beliefs. On Monday, lawyers for the Campaign for Southern Equality ("CSE"), an LGBT-rights organization, sent a letter to Mississippi's governor, attorney general, and registrar of vital records , arguing that this opt-out provision potentially conflicts with the permanent injunction barring all state officials from enforcing the state's ban on same-sex marriage. The plaintiffs interpret this to require state officials to "treat any gay or lesbian couple that seeks to marry the same as any straight couple that seeks to do so." The letter demands a "full and complete explanation" of the steps that will be taken to "ensure that gay and lesbian couples are not impeded or delayed when seeking to marry." Slate's Mark Joseph Stern praises this "clever exercise in civil procedure," enabling the organization to challenge the new law without a formal lawsuit.

But does it?

The injunction only protects the named plaintiffs. The named plaintiffs include two female couples, who presumably already received their licenses; the caption does not indicate this was a class action. Formally, the injunction does not obligate the defendants to do anything as to anyone else. If the plaintiffs are trying to use the injunction and enforcement (or threatened enforcement) of the injunction as a shortcut to halting the new law, it should not work because the injunction does not formally obligate state officials to do or not do anything as to anyone else. The twist is that CSE is also a named party, presumably having sued on behalf of its members, which theoretically includes every LGBT person in the state who wants a license. If so, this procedural move has a better chance, since CSE (and its members) is protected by the injunction and since state officials are prohibited from enforcing the law against CSE (and its members).

My best guess is that the state, the plaintiff, and the court will find a way to resolve this by creating reasonable opt-out methods, as has happened in other states. Still, this move requires careful consideration of the proper scope of civil-rights injunctions, something that is often overlooked.

Posted by Howard Wasserman on April 27, 2016 at 10:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Additional thoughts on Heffernan

SCOTUS on Tuesday decided Heffernan v. City of Paterson, holding 6-2 that a public employee stated a First Amendment claim when he was demoted on supervisors' erroneous belief/perception that he was engaged in protected political activity, even if he was not. Justice Breyer wrote for the Chief, Kennedy, Ginsburg, Sotomayor, and Kagan; Justice Thomas dissented, joined by Alito. I analyzed the opinion for SCOTUSBlog.

A few additional thoughts on the decision and the case after the jump.

The line-up makes sense, given the First Amendment predilections of the Chief and Kennedy, as well as those of Alito, in the other direction. I had some doubt following argument, especially in light of how the Chief and Kennedy both have voted in First Amendment cases touching on the government's institutional interests. (This discussion between Geoff Stone and Adam Liptak explores this institutionalist tendency).

The unspoken feature of this case is qualified immunity--I do not see how any First Amendment right was clearly established at the time of Heffernan's demotion, just given the divide within the Court. Yet it has not come up. I thought that Heffernan might have sought reinstatement to his previous position as detective, an equitable remedy to which immunity would not attach. But both the majority and the dissent spoke of this only as an action for damages. The Court remanded for further consideration of other First Amendment issues, but did not mention immunity as a continuing issue for the lower courts. [Update: Duh. There is no discussion of qualified immunity because the claim is against the City, which cannot assert immunity. As to any claim against the individual, Anon's suggestion would be an intriguing way around the problem]

Finally, the latter part Thomas's dissent, distinguishing harm from violation of a right, seems to illustrate how standing and causes of action have been improperly conflated. Thomas insists that a plaintiff states a § 1983 claim only if the government "has violated Heffernan's constitutional rights, not if it has merely caused him harm." Unconstitutional conduct alone does not violate an individual's rights, even if that individual is injured, unless the conduct violates her rights.* Thomas offers an example of a blatantly unconstitutional law permitting police officers to stop motorists arbitrarily to check for license and registration. Such a law would violate the Fourth Amendment. And attempts to enforce the law may harm an individual, such as by causing her to deal with traffic delays. But if police do not stop that individual, she would not have a § 1983 claim, because any injury (traffic delays) did not amount to a violation of her Fourth Amendment right not to be unlawfully detained.

[*] Thomas frames this as whether that plaintiff falls within § 1983's zone of interests, citing Lexmark and confirming that zone of interests is now unquestionably a merits inquiry.

Thomas is right in that analysis. But it seems to me we ordinarily would talk about this as a matter of standing, not the merits of the § 1983 cause of action. For example, in Clapper, the Court found the plaintiffs lacked standing because they could not show that  the challenged search program would be used to search the plaintiffs themselves. In Susan B. Anthony, standing was present because the plaintiffs had shown that the challenged law might be enforced against the plaintiff's speech. And if that same motorist brought a preemptive challenge to enforcement of the traffic-stop law, Thomas almost certainly would agree that she lacked standing because she cannot show that she will be stopped. So why did Thomas (who joined the "it's standing" majorities in SBA and Clapper) speak of it here as part of the § 1983 cause of action, a merits inquiry?

Perhaps it turns on the difference between prospective and retroactive relief. Thus, harm goes to the cause of action when the plaintiff seeks a remedy for harm that already has occurred, while it goes to jurisdiction when the plaintiff seeks a remedy for ongoing harm or harm that may occur in the future. Indeed, mootness only applies to prospective, but not retroactive, claims. But that is unsatisfying for two reasons. First, the distinction is not supported by the text of § 1983, which allows an individual who has been deprived of a right secured by the Constitution to bring an"action in law" (i.e., a claim for legal relief) or a "suit in equity" (i.e., a claim for equitable relief). The requirements for stating a cause of action under the statute do not vary with the type of relief sought, nor should the relief sought affect whether a statutory requirement is suddenly constitutionalized. Plus, prospective relief may be available for past harms in a case such as this one--there is no reason to believe Thomas's analysis would change had Heffernan sought reinstatement to remedy his previous demotion.

Alternatively, the distinction between harm/injury and right already is prominent in standing doctrine. For example, a party asserting third-party standing (e.g., doctors challenging abortion restrictions) must show their own injuries, although seeking to vindicate others' constitutional rights. On this view, whether the plaintiff has suffered an injury goes to standing, while whether the plaintiff's right has been violated goes to the cause of action and the merits of the claim. Thus, Heffernan did not present a standing problem because his injury (demotion) was clear; it only presented a statutory cause of action problem, because he had not been deprived of a right secured by the Constitution. But this seems an artificial distinction. And it is one that Thomas himself appears to disavow. He speaks of  the plaintiff needing to show the "right kind of harm" to state a § 1983 claim, meaning harm resulting from a constitutional violation. In other words, Thomas defines actionable harm as harm occurring from violation of a constitutional right.

Posted by Howard Wasserman on April 27, 2016 at 12:42 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Monday, April 25, 2016

VEEP, S5E1

As I indicated last week, I am going to blog about VEEP's storyline of an Electoral College tie. Mild spoilers (and direct quotations from the show's unique dialogue) after the jump.

We pick up the morning after Election Day, still facing the Electoral College tie.

Early on, Selena asks "Didn't those Founding Fuckers ever hear of an odd number?" And while many a living constitutionalist has wanted to utter that phrase, this tie, per se, cannot be laid at the Founders' feet. The number of electors is based on congressional representation, which was last set by Congress in 1913. It might be more accurate to blame the Twenty-third Amendment, which, by adding three electors from D.C., turned an odd number into an even number. Or blame Nebraska and/or Maine, which allocate their electoral votes by district. The one time we see an electoral map, all five NE votes are red, although we do not see the split in Maine. Did O'Brien (Selena's opponent) win one district in Maine, giving him a vote he otherwise would not have, thereby creating the tie?

The big plot move is that Nevada, which had been called for O'Brien, is closer than 0.5%, kicking-in review of votes and a possible recount (Richard, who had been Jonah's crony all last season, is revealed to be an expert in Nevada recount procedure). So it appears that, at least initially, the show is going to satirize Florida 2000, rather than House of Representatives 1800. But just wait.

Finally, apparently con law experts are the new math/science/computer nerds. Amy returns from a conversation with the campaign's consultants and says "I don't know what's getting their dicks harder-an Electoral College tie or talking to a girl."

Posted by Howard Wasserman on April 25, 2016 at 06:43 AM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (1)

Friday, April 22, 2016

VEEP returns amid constitutional chaos

VEEP returns to HBO on Sunday night (with a new showrunner) where it left off--an Electoral College tie; a likely tie in the House of Representatives; Selena Meyer's running mate, Tom James, likely to win in the Senate, then become acting President with the House in stalemate; and the running mate/new VP/new acting President asking Meyer to become his VP. This commentator argues that the show cannot narratively go back to Meyer as VP, although it can draw the uncertainty out well. In advance of the episode, I repeat my argument that the show cannot constitutionally go back to Meyer as VP, because James will only act as President and will not have the power to appoint a Vice President.

I hopefully will have some comments on the episode on Monday. Maybe I will try bloggging the constitutional and succession issues for the season.

Posted by Howard Wasserman on April 22, 2016 at 03:37 PM in Constitutional thoughts, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Thursday, April 21, 2016

Rump Courts: An Anniversary

Tomorrow, April 22, marks the 70th anniversary of the death of Chief Justice Harlan Fiske Stone. Stone's death left an already-rump Court even more short-handed. Justice Robert Jackson missed the entire October Term 1945 serving as lead Nuremberg prosecutor, so the Court already had only eight members; Stone's death left it with seven. Because it was so late in the Term, Stone's death affected only five cases decided after April 22 (Stone became ill and died immediately after reading his dissent in Girouard v. United States).

It is appropriate (or ironic) that we hit a landmark anniversary now. Due to Republican intransigence, we are in the midst of what I predict will be the longest rump Court since at least the turn of the Twentieth Century, likely lasting for 75% of this Term (as far as cases decided) and covering all of next. It also reminds that anything can happen, so that the possibility always looms (especially with three other Justices at or nearing 80) that we could face another seven-person Court, this time for more than five cases.

I imagine Stone's death played at least some role in Jackson's later belief that it was a mistake not to resign from the Court before accepting the Nuremberg appointment.

Posted by Howard Wasserman on April 21, 2016 at 11:30 AM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

The (still) irrepressible myth of Klein

SCOTUS on Wednesday decided Bank Markazi v. Peterson, rejecting, 6-2, a challenge to a federal statute under the separation of powers principles of U.S. v. Klein. My broadest takeaway from the case is that it makes clearer what probably was true before--short of the proverbial statute explicitly providing "In Smith v. Jones, Smith wins," nothing Congress would realistically enact (and the President sign) can ever violate Klein's prohibition on Congress deciding a case.

Justice Ginsburg wrote for Justice Kennedy, Thomas, Breyer, Alito, and Kagan. She hit a few key points.

   1) She appeared to limit Klein's meaning to the idea that Congress cannot dictate constitutional meaning to the Court (what Larry Sager has called the prohibition on compelling the Court to speak "constitutional untruths"). Klein's additional statement that Congress also cannot dictate rules of decision in pending cases--from which SCOTUS, lower courts, and commentators had derived the "no dictating outcomes" principle--cannot be taken at face value. Instead, Ginsburg looked to the various non-Klein limitations on retroactive legislation and insisted that, outside of those limits, the Court had twice affirmed that "Congress may indeed direct courts to apply newly enacted, outcome-altering legislation in pending civil cases." At a minimum, this marks a change of course, since "no dictating outcomes" had become Klein's central point in sub-constitutional cases.

   2) Ginsburg rejected the Bank's two main, related arguments that the statute was unprecedented in applying to only one case and in not leaving anything for judicial resolution, since the factual questions to be resolved (whether the asset was in the United States, was blocked, and was equal in value to a financial asset of Iran) were foregone conclusions. As to the second, she rejected the argument that the facts were foregone conclusions, requiring "plenty" of particular judicial determinations. And, in any event, that facts are undisputed does not mean a court is not applying new law to those facts. As to the first argument, Ginsburg insisted that § 8772 is not limited to only one case; while the enforcement proceedings were consolidated for administrative purposes, they reflected efforts to execute on 16 different judgments involving more than 1000 victims. Moreover, she rejected that idea that there is something inherently wrong with particularized legislation. While legislation often is of general applicability, bills governing one or a small number of subjects are permissible and common (citing, inter alia, Wheeling Bridge, a case upholding a statute designating a single particular bridge as a post road, a case Klein reaffirmed and distinguished).

   3) Finally, Ginsburg emphasized the statute's national-security context as an additional reason for deference to the political branches. Since Congress and the President creating foreign sovereign immunity, they also have broader power to create exceptions. This struck me more as a cherry-on-top argument good for this case. I expect the next Klein case, arising in a purely domestic context, to deemphasize that piece.

The Chief dissented, joined by Justice Sotomayor (which may be the most distinctive feature of the case), insisting that "there has never been anything" like this statute. No previous statute had singled out only a single pending case or a single defendant in this way. No statute had turned on such basic, already-undisputed facts.

To some extent, the divide in the Court turned on how they view several hypotheticals. The first is the "Smith wins" statute, which the Court had previously insisted (and the plaintiffs conceded at oral argument) would be invalid. The Court split over just how close § 8772 came to this paradigm. Roberts insisted they were the same, since creating a factual fait accomplii is no different that declaring a winner. Ginsburg, again deemphasizing this part of Klein, argued that such a law would be irrational, thereby violating Equal Protection. In any event, such a law would not be establishing a new legal standard, only compelling a result under old law. But Roberts had an interesting response: Such a statute would create new substantive law--old law did not necessarily determine that Smith wins, the new law does. Congress only can act by "changing the law" and anything Congress does (at least in exercising its power to enact statutes) is changing the law. It is necessary to take the next step of asking whether that new law that Congress enacted constitutes an invalid judicial act, something the majority fails to do.

The dissent offered a second hypothetical--a law declaring that a letter from a neighbor is conclusive proof of property boundaries, applicable only to one pending property case. But Ginsburg insisted this was the wrong analogy; the right analogy is a law clarifying which of two inconsistent maps should be used to establish the property boundary in the case. Notably, the statute declared invalid in Klein was problematic, in part, because Congress was dictating the effect to give a particular form of proof in the case.

A third Roberts hypothetical responded to the majority's position (used by many lower courts) that, as long as the result depends on some legal and factual determinations from the court, the law does not dictate the outcome. Imagine that the new law provided that Smith wins so long as the court finds that Jones was properly served and Smith's claim was within the statute of limitations, both of which are undisputed when the new law is enacted.* The majority's response, I suppose, is that those factual determinations do not go to the substantive merits of the claim being brought, while § 8772's factual determinations (whether the judgment debtor owns some enforceable assets) go to the heart of an action to execute a judgment.

[*] Then, just because, Roberts quoted Porgy and Bess.

Roberts closed by criticizing the opinion for offering a blueprint for how Congress can pick winners and losers in particular pending (or even threatened) cases going forward. In reality, it was clear before today that Klein would not have offered much resistance to most such efforts. Bank Markazi puts an exclamation point on that, particularly in arguably reading the "no dictating outcomes" principle out of Klein.

At the same time, Roberts did not offer a line between legislative and judicial conduct, "readily conced[ing], without embarrassment"** the difficulty in drawing such a line. Moreover, subject to due process retroactivity limits, Congress must be free to change the law in statutory cases, even where that alters who prevails in the case. After all, every law benefits one side or the other and Congress drafts the law to benefit the side Congress wishes to benefit. So even if Roberts is correct that § 8772 oversteps, he does not leave a sense of what Congress can, or should be able, to do.

[**] What might we craw from the "without embarrassment" language? And how might it relate to judges calling balls and strikes? Is Roberts acknowledging--and telling the public and the other branches--that constitutional decisionmaking is not so simple as he (and they) often make it out to be?

 

Posted by Howard Wasserman on April 21, 2016 at 12:43 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, April 19, 2016

Bad presidents and fictional schools

I have been listening to WaPo's Presidential podcast, which offers 44 sequential weekly bios of the Presidents, running from the beginning of the year until the election. This week is Buchanan, next week is Lincoln.

But hearing about the forgettable presidents of the nineteenth century, especially in the period between Jackson and Lincoln, got me thinking about TV shows (especially sitcoms) naming fictional schools after presidents who are largely regarded as unsuccessful. Off the top of my head: Welcome Back, Kotter took place at Buchanan HS; Glee took place at McKinley HS; the Brady kids attended Fillmore Junior High; and Girl Meets World takes place at John Quincy Adams Middle School (this is an homage to the original  taking place at John Adams HS).

What other examples am I missing?

Posted by Howard Wasserman on April 19, 2016 at 12:17 AM in Culture, Howard Wasserman | Permalink | Comments (7)