Saturday, July 22, 2017

Update on late-game fouling and the "Elam Ending"

In April I wrote about the proposal from Nick Elam to eliminate late-game fouling basketball by making the end of the game untimed and playing to a target score (+7 of the leading team when the clock is turned off in the final minute). The Basketball Tournament implemented the Elam Ending for its 16-team pre-tournament; it now reports on the results--there was no late-game fouling, some exciting comebacks, and the final time time lasted between two and five minutes of game time.

Posted by Howard Wasserman on July 22, 2017 at 04:13 PM in Howard Wasserman, Sports | Permalink | Comments (2)

CFP: National Conference of Constitutional Law Scholars

The Rehnquist Center is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16-17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Adrian Vermeule will deliver a keynote address. Distinguished commentators for 2018 include:

  • Jamal Greene
  • Aziz Huq
  • Pamela Karlan
  • Frank Michelman
  • Cristina Rodriguez
  • Reva Siegel
  • Robin West

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by September 15, 2017. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by October 15, 2017. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan (acoan@email.arizona.edu). For logistical questions or to register for the conference, please contact Bernadette Wilkinson (bwilkins@email.arizona.edu). The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches.

Register here.

Conference Organizers

Andrew Coan, Arizona

David Schwartz, Wisconsin

Brad Snyder, Georgetown

The Rehnquist Center

The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

Posted by Howard Wasserman on July 22, 2017 at 11:19 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, July 19, 2017

The lawyer, the addict, and the law professors

What did people think about The Lawyer, the Addict in last weekend's New York Times? The piece was written by the ex-wife of a lawyer who died of an overdose; in investigating her husband's drug use and death, the author found a legal profession with high rates of substance abuse.

For now, I want to focus on one small section of the piece, sub-titled "The Law School Effect," which suggests that law school is part of the problem. Prior to law school, future law students are healthier than the general population--they drink less, use less drugs, have less depression, and are less hostile; they also begin with a stronger sense of self and values. Then it all changes in law school, which "twists people’s psyches and they come out of law school significantly impaired, with depression, anxiety and hostility." Following the start of law school, students show "a marked increase in depression, negative mood and physical symptoms, with corresponding decreases in positive affect and life satisfaction."

The piece points to a few factors. One is the way law school encourages students to remove emotions from their decisions. Another is the focus, and the shift in student focus, to status, comparative worth and competition, looking at things such as grades, honors, and potential career income, and away from the idealism that had motivated them to come to law school. The result is that young lawyers succumb to substance abuse when "the reality of working as a lawyer does not match what they had pictured while in law school."

I focus on this because it is the one part of this I might affect in my professional life. But I wonder what we as law professors can or should do about this. Start with the three big things mentioned in the article:

   • I am not sure law school encourages students to remove emotion from their decisions as much as to learn that emotion cannot be the basis for the decision. I like when students feel passionately about something. The problem--and the thing law school must teach--is that the whole of the analysis cannot be emotion and emotion cannot get in the way of everything else; they must move past emotion and go where the law does, can, or should lead, which is what I think law school tries to do. I also believe many professors and courses try to get students to think not only descriptively but also prescriptively about what the law should be or about how they would counsel a client to behave. But if it is all emotion--this is how I feel it should be--we are doing cable news or Twitter, not law.

   • Is law school more focused on grades, honors, and career income than other professional schools? Also, is this focus coming from law schools or from the profession? And, in any event, what can we do about it? Students go to law school to get jobs as lawyers--a central criticism of legal education is that we are producing too many lawyers who will not get jobs (or at least not good jobs) as lawyers. So career focus seems seems built into the education process. As to grades and honors, those are the signals that the job market uses in giving out jobs as lawyers. I suppose it would be nice not to give grades (grading is every prof's least-favorite part of the job), but that obviously is not happening. Students are aware of the import of grades and honors because they know they are the keys to getting jobs. At least within the curriculum, most professors are focused on students learning the subject rather than getting good grades, although the two ideally run together.

   • Loss of idealism is inevitable and, by definition, unrealistic. This is not unique to law or law school. (The author's ex-husband worked  as a chemist before law school, but found the work tedious--I imagine it departed from what he expected when he went to grad school for chemistry). Loss of idealism seems akin to the removal of emotion--idealism should not be eliminated, but it cannot control the game. We live, and will practice law in, the real world.

Another obvious factor, not mentioned in the article, is that law school is a lot of work--a lot of reading, a lot of preparation, and a lot of assignments going on at once. And it is not structured passively, with students sitting and listening to us lecture, so it is difficult to just skate by (at least in first year). Again, however, so is legal practice. Even if one wants to argue that the traditional law school classroom is ineffective and should be replaced by other methods, those other methods still require to read and be prepared for class, so the amount of work and preparation does not change. And, again, is law school more work than med school, engineering school, etc.?

So what can law schools and legal education do to not be a gateway that, by its nature and structure, starts students into this potential danger (according to the article)? (In answering, we must assume no changes to the legal profession or what life is like for practicing lawyers--law schools cannot make unilateral changes that would create more of a disconnect between education and the profession).

Posted by Howard Wasserman on July 19, 2017 at 12:28 PM in Howard Wasserman, Teaching Law | Permalink | Comments (33)

Wednesday, July 12, 2017

Judge Wood is not happy with Jeff Sessions and other appellees

Seventh Circuit Judge Diane Wood issued a fed-up in-chambers opinion, calling out two appellees, including Jeff Sessions, for inadequate jurisdictional statements. The order called out appellees for failing to state in their briefs that the appellants' jurisdictional summary was both "complete and correct" (both appellees certified only one but not the other) and struck appellee briefs in two cases--one by Sessions (or DOJ) and one by the Airline Pilots Association.

Judge Wood identified routine problems with appellants' jurisdictional statements that appellees waive away; many are common problems  in the jurisdictional statements in district-court pleadings that I discuss in class:

in federal question cases where jurisdiction depends on 28 U.S.C. § 1331 , the failure to specify the particular statute or constitutional provision at issue, and in diversity cases, failure to distinguish between citizenship (required by 28 U.S.C. § 1332 ) and residency (irrelevant) and, for organizations such as partnerships, LLPs, and LLCs, the failure to work back through the ownership structure until one reaches either individual human beings or a formal corporation with a state of incorporation and a state of principal place of business.

This is worth sharing with students, who often do not recognize or accept how important these details are. (I also use an Easterbrook opinion, in which he sanctions both sides for botching jurisdictional treatment of LLCs--Update: Per a request, the Easterbrook opinion is Belleville Catering v. Champaign Marketplace from 2003).

Posted by Howard Wasserman on July 12, 2017 at 07:14 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (10)

Tuesday, July 11, 2017

Colllege football coaches and diversity jurisdiction

Here is an interesting diversity jurisdiction puzzle, for anyone looking for one (and you know you are).

Penn State sued Bob Shoop, its former defensive coordinator, to recover close to $ 1 million on the buyout clause, after Shoop left PSU to take a similar job at Tennessee. Penn State filed in Pennsylvania Commonwealth Court, then Shoop removed to the Middle District of Pennsylvania, based on diversity. And this confused me. Penn State is a state university. And a "state" is not a "citizen of a state" for diversity purposes; when a state brings a non-federal claim against a citizen of another state to federal court, original jurisdiction rests with SCOTUS (concurrent with state courts). The case thus should not be removable, because the district court lacked subject matter jurisdiction. This looked to me on all fours with a case from about ten years ago--involving West Virginia University's attempt to enforce a buyout clause against its former head football coach--in which the university filed in its state courts and the coach removed, but the district court remanded for lack of jurisdiction because the university was the state.

It turns out that Penn State (along with the larger public universities in Pennsylvania, such as Pitt and Temple) is a "state-related" university, as opposed to a state university. Although I am not sure of all the differences, state-related universities receive less funding and are entities created by state law that maintain affiliations with the state (sufficient to make them act under color for Fourteenth Amendment and § 1983 purposes), but are not treated as alter-egos of the state. District courts in Pennsylvania have held that Pennsylvania's state-related schools do not enjoy Eleventh Amendment immunity.

This matters because most circuits use the same analysis to identify an entity as an arm of the state for Eleventh Amendment purposes as for § 1332 purposes--that is, if an entity is an arm of the state entitled to Eleventh Amendment immunity, it is an arm of the state and not a citizen of the state for diversity purposes. That is how the federal court involved the West Virginia case. Because the prevailing view is that Penn State does not enjoy Eleventh Amendment immunity, it should follow that the district court has jurisdiction in this case.

I am curious to see if Penn State at least tries to move to remand or if it knows it will lose on the point. A recent possible comparison is Haywood v. University of Pittsburgh, a suit brought in federal court by--you guess it--the former football coach. Haywood included three claims--two for breach of contract (with jurisdiction under § 1332) and one for a violation of due process (with jurisdiction under § 1331); Pitt did not contest jurisdiction and the court reached the merits. This would suggest that a state-related university can be sued in federal court on diversity. But Haywood may be of limited use. The due process claim gave the district court original jurisdiction, with supplemental jurisdiction over the state claims, all regardless of diversity (Haywood did not assert § 1367 in the Complaint, which may just be unwise drafting). So it may have been that Pitt knew there would be jurisdiction anyway, regardless of the basis, so there was no point in contesting. The Penn State case squarely presents the question of the university's status for § 1332 purposes.

Posted by Howard Wasserman on July 11, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (9)

Sunday, July 09, 2017

Citizen video and other § 1983 puzzles

In Fields v. City of Philadelphia, the Third Circuit joined the parade of courts of appeals recognizing a First Amendment right to record police in public in a non-interfering way, subject to time, place, and manner limitations. It is now the Fifth, First, Seventh, Eleventh, and Ninth Circuits, with none going the other way (prior to this, the Third Circuit had avoided the issue by twice holding that the right was not clearly established without addressing the merits). The case arose from two separate actions--one by a woman who was physically moved and held to keep her from recording the arrest of a protester, the other by a man who was arrested and charged with obstructing a public passage for recording officers from a sidewalk across the street.

Two thoughts.

In explaining the need for and importance of this First Amendment right, the court included this line: "To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately." Recent experience with body cameras and police shootings shows this statement, at least in the absolute form presented in the first sentence, is wrong. Not that recording is not or should not be protected; only that it does not present "objective fact" or eliminate subjectivity. In fact, subjectivity likely is why the police officers involved in the incidents in this case stopped the plaintiffs from recording--they did not want video getting out that could be viewed by the public in an adverse way, even if they might have found a way to explain it away.

Second, this decision may be as significant for its discussion of § 1983 doctrine, showing how qualified immunity makes damages liability difficult, if not impossible.

The City asked the court to pretermit the merits and grant qualified immunity (as had two prior Third Circuit panels) because the right was not clearly established. The court declined to "take the easy way out." In justifying this approach, the court pointed to several considerations that SCOTUS identified as benefits to merits-first: the importance and frequency of the constitutional issue, the need of police departments for guidance on the issue, the purely legal, non-fact-bound nature of the issue, and the quality of the briefing (with amicus briefs from several advocacy organizations, a group of First Amendment professors, and DOJ's Civil Rights Division).

Nevertheless, after recognizing the right, the majority held that the officers were entitled to qualified immunity because the right to record was not clearly established. There was no Third Circuit precedent and precedent from other circuits and from district courts was factually distinguishable (some of those cases based the right on the presence of expressive intent by the recorder, while the Third Circuit recognized a right to record, regardless of what the recorder planned to do with the recording). The court also refused to find the right clearly established based on Philadelphia Police Department policy recognizing a First Amendment right to record. The problem was that the plaintiffs sought municipal liability based on the failure of those policies to effectively instruct officers about this right; if the policies were ineffective, then they could not clearly establish the right so any reasonable officer would know there was a First Amendment right to record, as most officers did not know of the right.

Judge Nygaard dissented on qualified immunity. He argued that the right was clearly established given the unanimity in other circuits, Department policy, and 2012 DOJ recommendations that local departments establish policies to affirmatively set forth the First Amendment right;* those three things placed the right to record "beyond debate" and placed officers on unambiguous actual notice that they must allow members of the public to record their activities. Nygaard also argued that a reasonable officer's "lived experience" informed him of the pervasiveness of recording devices and their routine integration into daily lives, with the resulting First Amendment implications.

[*] Recent consent decrees with cities such as Ferguson and Baltimore included provisions requiring police departments to recognize and not interfere with the First Amendment right to record in public.

The majority's analysis demonstrates the unfortunate breadth of qualified immunity. Factual distinctions are always possible with precedent--the Third Circuit had previously accepted (or at least had not flatly rejected) that there might be a meaningful distinction between filming a sidewalk encounter and filming a traffic stop. It thus is possible that this decision will do nothing for the next case in which an officer prevents someone from recording, if the officer can find some small distinction to the incidents in this case--the recorder was on the same side of the street rather than across the street, the person was momentarily stopped from recording but not arrested, the plaintiff was recording a physical altercation rather than an arrest. The possible distinctions are boundless.

I also do not buy the reasons the majority rejected reliance on department policy as a basis to clearly establish the right. There is nothing inconsistent with saying that department policy should have placed a reasonable officer on notice that there was a constitutional right to record (thus clearly establishing the right) and that department policy was constitutionally insufficient because officers were ignoring it and department officials were not providing further training (thus establishing municipal liability). They go to different issues involving different standards.

On the other hand, SCOTUS' recent string of summary reversals rejects the big-picture approach to qualified immunity that the dissent took in relying on broad legal principles divorced from specific facts, with no applicable SCOTUS precedent. So while normatively preferable, Judge Nygaard's approach would  draw more attention and a possible summary reversal.

Posted by Howard Wasserman on July 9, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, July 07, 2017

The district court's injunction (Updated Twice)

Judge Watson in the District of Hawaii last night refused to rule on the plaintiffs' Motion to Clarify the Scope of the Preliminary in the travel ban case. The plaintiffs, he ruled, were asking him to clarify the meaning of language in the Supreme Court's opinion and order, not his order; that request should be directed to SCOTUS. Ilya Somin criticizes the ruling, pointing out that interpreting and applying the language of rulings from higher courts is what district courts do. Lyle Deniston questions whether there is a procedure for asking SCOTUS to clarify language in the opinion, short of a motion for reconsideration. Michael Dorf is a bit more forgiving, arguing that Watson's ruling is not crazy, given the confusion involved when cases are moving up and down the hierarchical judicial system.

I agree that Judge Watson was wrong, for the reasons all three commentators describe. I want to make explicit one point that I believe is implicit in their posts (and that Remedies guru Doug Laycock made on a listserv): The injunction, albeit as modified by SCOTUS, remains Judge Watson's order and it remains his duty to enforce that modified injunction. And that entails figuring out the scope of the injunction, which means figuring out precisely how SCOTUS modified it, which means figuring out what SCOTUS meant in its opinion. The trial court must do that in the first instance--SCOTUS can reverse that interpretation on appeal if it disagrees. My point is that this goes beyond the ordinary situation of lower courts determining and applying SCOTUS precedent to a new case or even to the same case (for example, applying a new legal standard to evaluate the merits of the claim). This is about a district judge enforcing his own injunction going forward.

The plaintiffs have appealed the denial of the motion, presumably because this is an order refusing to modify an injunction. My best guess is that the Ninth Circuit summarily reverses and tells Judge Watson to determine the scope of his injunction.

[Update, Saturday, July 8: I want to say I was half-right. The Ninth Circuit dismissed the appeal for lack of jurisdiction, because the order did not do anything of the things enumerated in § 1292(a)(1), because it sought a declaration rather than an injunction, and because the plaintiffs could still seek injunctive relief in the district court. The Ninth Circuit added that the district court "does possess the ability to interpret and enforce the Supreme Court's order, as well as the authority to enjoin against, for example, a party's violation of the Supreme Court's order placing effective limitations on the scope of the district court's preliminary injunction." In other words, plaintiffs filed the wrong motion. They should have moved to enforce the district court's injunction-as-modified or to hold the government in contempt of the district court's injunction-as-modified--and in the course of resolving those motions, the district court must decide what the Supreme Court said and meant. Presumably, that is what the plaintiffs will do in the district court. [Second Update, Saturday afternoon: Motion to Enforce, or in the alternative, to Modify]

The Ninth Circuit's was surprisingly rigid. Courts of appeals typically take jurisdiction under § 1292(a)(1) if the order is within sniffing distance of an injunction or its enforcement. Plus, it was obvious that the plaintiffs were asking the district court to enforce the injunction according to its proper terms (based on SCOTUS modification) by determining those proper terms. In some sense, the Ninth Circuit did tell the district court it was wrong and that it did have power to decide what SCOTUS meant; the plaintiffs simply captioned their motion incorrectly. This is different than what the district court said, in directing all issues to SCOTUS.]

Posted by Howard Wasserman on July 7, 2017 at 01:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Sunday, July 02, 2017

SCOTUS Symposium: The Gorsuch Court (Updated)

Eric Segall reflects on the passing of the moment to instantiate his proposal for an evenly partisan eight-person Supreme Court, which died* with the arrival of Justice Gorsuch. Eric writes that many of the post-Term analyses have described it as a quiet Term, marked by consensus and an absence of late-Term drama.

[*] I suppose the dream remains alive if the next retirement were Justice Kennedy or Justice Thomas.

[Update: New reports are that Kennedy has hired only one clerk for OT 2018 and has told candidates he may not hire more because he may retire (retired Justices have one clerk). That vacancy would come four months before the mid-Term elections in which Democrats hope to retake the Senate. Of course, the chances that Senate Republicans unilaterally disarm in that situation are even less than they were prior to the Gorsuch nomination.]

But that narrative is accurate only until the April sitting, when Gorsuch took his seat for arguments. One could feel a palpable change in the Court; it reflected in arguments, with his dominant and sharp questioning, and in his seven separate opinions. All this offers clear indications that he is pushing his way to the front as a voice on the Court, seniority be damned, and that he is less interested in consensus and compromise than other members of the Court. (Some have suggested that this split with the conservatives more interested in compromise--the Chief and Kennedy--explains the odd result and per curiam opinion in the travel ban case).

Eric argues that the change we have witnessed since April reflects another point in favor of his proposal: "[W]hen five Justices share a common ideology, whether left, right or center, the temptation to impose that ideology is too great for mere mortals to resist." Three months in, and we already are seeing that point.

Posted by Howard Wasserman on July 2, 2017 at 12:31 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (6)

Saturday, July 01, 2017

The Cult of Nina Totenberg?

Dahlia Lithwick offers advice to the White House Press Corps. on how to do the job without cameras, now that the White House has barred recording of press briefings. The piece is mainly tongue-in-cheek (she urges TV news organizations to adopt John Oliver's dog-centered visuals), but I want to push back on two of her serious points.

Dahlia urges the press to stop covering the press gaggle, to "cover what happens, as opposed to the spin." I agree that the press should stop covering these briefings, which have become forums for lying and obfuscation, exacerbated by the inability of many reporters to ask effective and direct questions (as opposed to convoluted multi-part questions that enable obfuscation). She likens the press briefings to the "drama and theatrics" of oral argument, which the SCOTUS Press Corps. has learned to ignore in favor of focusing on the opinions as the "work product that emanates from the Court." Two problems. First, the SCOTUS Corps. does not ignore oral arguments, in-depth, as displays of the Justice's personalities and styles and with the attendant tea-leaf reading. Second, I am not sure how practices in covering the Court translate to covering the White House, because much of what happens in the White House never produces concrete "work product" that the reporters can read, parse, and analyze. The alternative to the press briefings is more informal interaction with WH staffers and more speaking with people off the record, as well as more reporting on the President's latest tweets. Which is not a bad thing, as it produces a more honest picture of what is happening.

Dahlia also urges WH reporters to be nerds, like the SCOTUS reporters: Ego-free, writing about the opinions, and not striving to be among the "competing cults of personality" that "tower over the news in America." There is no Cult of Jess Bravin (who covers the Court for the Wall Street Journal). But there long has been a Cult of Nina Totenberg (especially during the '90s, when she did double duty at NPR and ABC) and there long was a Cult of Linda Greenhouse--they were as known as much as personalities and commentators as for the cases on which they reported. The journalists who cover the Court do a marvelous job, and I have no reason to doubt that it is a "kind" and "ego-free workplace." But in writing about the Court, they offer not only cold analysis of the case, but opinion and commentary, which makes them as much a part of the story as are WH reporters.

Posted by Howard Wasserman on July 1, 2017 at 08:41 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, June 26, 2017

SCOTUS Symposium: Perry v. MSPB

I wrote an analysis for SCOTUSBlog of Friday's opinion in Perry v. Merit Systems Protection Board. My post-argument prediction that Justice Gorsuch would dissent was correct, although I predicted a solo dissent and he got Justice Thomas to come along. I describe the opinion as Gorsuch announcing his presence with authority on statutory interpretation. This is a minor case, but it portends some sharp divisions in the coming years.

Posted by Howard Wasserman on June 26, 2017 at 07:49 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Sunday, June 25, 2017

SCOTUS Symposium: The final week

We enter the final week of June and the final week of the Term. Six cases remain, with Monday the final scheduled opinion day, so expect a flurry. I am most interested in Hernandez v. Mesa, which could produce either further contraction of Bivens or further expansion of qualified immunity. Plus, the Court  has full briefing on the travel ban cases. Plus, rumors of Justice Kennedy's retirement are heating up. Or maybe it is Justice Thomas.

So as we enter the final week and the wrap-up to our End-of-Term Symposium, let's talk about everything that happens on Monday, as well as some broader lessons, conclusions, criticisms, praise, and perspectives from the Term as a whole, and some predictions about what might happen in OT 2017.

Posted by Howard Wasserman on June 25, 2017 at 10:28 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (2)

Wednesday, June 21, 2017

Beckman v. Chicago Bears

Russell Beckman is a Green Bay Packers fan who holds season tickets with the Chicago Bears only so he can attend the Bears-Packers game. Season-ticket holders earn points allowing them to purchase "experiences," including going onto the field during pre-game warmups. But the Bears prohibit these fans from going onto the field in the opposing team's gear; they would not let Beckman participate during the Bears-Packers game last season, and, he alleges, will not let him do it at the game next season. Beckman has sued the Bears, alleging that the no-opposing-team-gear rule violates the First Amendment and seeking an injunction against enforcement of the policy. Beckman is appearing pro se (he and I exchanged emails about the situation a few weeks ago).

The Bears play at Soldier Field, which is owned by the Chicago Parks District and rented to the team for its use. That, I believe, raises the possibility the Bears act under color. If the case involved the Bears stopping fans from wearing opposing-team gear in the stands, this would be an easy case, with the Bears subject to Burton's symbiotic relationship test, just as the New York Yankees were at the old Stadium. But I have been reluctant to say that teams playing in publicly owned arenas act under color for all purposes, as opposed to for the limited purposes of operating expressive fora (the stands, press access, etc.). A team should retain leeway in its organization and operations, including its interactions with customers. Playing at a publicly owned arena would not stop the Bears from being viewpoint-discriminatory in, for example, deciding what people could wear or who could attend a Lake Michigan cruise for ticket holders. The question is where the playing field (ordinarily not part of the expressive forum) falls on the spectrum. I am not sure I know the answer to that question.

Interestingly, the Yankee Stadium lawsuit was brought by the NYCLU in conjunction with NYU's Civil Rights Clinic. It is surprising (telling?) that neither the Illinois ACLU nor a Chicago-based clinic would take this on. Did Beckman never ask around? Does it say something about how that state-action question will be resolved when we move from the stands to the field?

Or are Green Bay Packers fans less popular in Chicagoland than Nazis?

Posted by Howard Wasserman on June 21, 2017 at 11:58 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, June 20, 2017

Resolved, not moot

In Campbell-Ewald v. Gomez, SCOTUS held that a case does not become moot when the defendant makes an unaccepted offer of judgment. The Court expressly did not decide "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount." In Fulton Dental v. Bisco, the Seventh Circuit said the result is not different, that a defendant can no more force a settlement by putting money in the court under FRCP 67, unaccepted by the plaintiff and with no judgment from the court, than offering the money and having the plaintiff reject the offer under FRCP 68. (H/T: Alert reader Asher Steinberg).

The Seventh Circuit tried to push back against characterizing this as mootness, saying it was more like the affirmative defenses of payment or accord and satisfaction. But the court was limited because SCOTUS discussed Campbell-Ewald as a mootness concern, rather than following the position urged by the S.G. that this is a merits concern. Like Campbell-Ewald, Fulton involved an action for damages for past harm incurred; such a case cannot become moot because the past injury remains and never goes away. Mootness should be limited to claims for prospective relief, where the plaintiff's injury is ongoing and something stops the injury.  The payment and acceptance of money as settlement of a case over a past injury means there should not be further litigation between these parties over this transaction-or-occurrence. But that is because the case was resolved, not because it became moot.

Posted by Howard Wasserman on June 20, 2017 at 03:10 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, June 19, 2017

SCOTUS Symposium: Happy talk and revolutions of historic proportions

I am going to discuss the two free speech cases--Matai v. Tam and Packingham v. North Carolina--together as unanimous, broad reaffirmations of a libertarian, highly protective model of free expression.

A couple of interesting points:

1) Justice Kennedy and Justice Alito in some kind of tit-for-tat? Alito wrote the Opinion for the Court in Tam, but Justice Kennedy did not join pieces addressing government subsidies, government programs, or commercial speech. He wanted to hang his analysis on viewpoint discrimination, which rendered unnecessary discussion of those other issues; even commercial speech cannot be restricted on viewpoint-discriminatory bases.  Kennedy at least tried to praise the pieces of the Alito opinion that he joined, especially on viewpoint. Meanwhile, Justice Kennedy wrote the Opinion for the Court in Packingham, but Justice Alito did not join the opinion (he concurred only in the judgment) because of its "undisciplined dicta," "loose rhetoric," and failure to "heed its own admonition of caution" regarding the internet.

It is not surprising that Kennedy would take a broader approach to free speech than Alito or that Alito might bristle at Kennedy's speech-protective rhetoric. What is somewhat surprising is how the rest of the Court divided. In Tam, Ginsburg, Sotomayor, and Kagan went with Kennedy; in Packingham, the Chief and Thomas went with Alito.

This brought to mind one similarly divided free-speech case in United States v. Alvarez; there, the Chief, Ginsburg, and Sotomayor followed Kennedy's  broader and looser approach, while Kagan (with Breyer) followed a narrower course (Alito and Thomas dissented). So we see in these cases a slight shift in who is willing to pursue the broadest free-speech approach. I am not trying to overread anything, because every case is different. But these were interesting lineups.

2) I want to highlight Rick's argument (an idea I have seen reflected elsewhere) that the paeans to viewpoint neutrality in both Tam opinions signal where the Court would come out on public controversies over offensive or outrageous speech--racist speech on campus, hate speech, severed heads, productions of Julius Caesar, etc. And it seems everyone on the Court is on a similar page as to offensiveness and viewpoint discrimination.

3) On that point, note how broadly both opinions in Tam define viewpoint discrimination. It is not enough to allow "both sides to speak;" the First Amendment requires that both sides be allowed to utter the full range of views in the manner of their choosing. As Justice Kennedy put it, "a subject that is first defined by content and then regulated or censored by mandating only on sort of comment is not viewpoint neutral;"[m]andating positivity"--allowing every side to say nice things about everything but not say mean things about everything--still is viewpoint discriminatory. In other words, it is viewpoint discrimination to prohibit critical speech, even if both Republicans and Democrats are prohibited from criticizing. Or as Justice Alito explained, the challenged provision "is not an anti-discrimination clause; it is a happy-talk clause." And mandating happy talk is viewpoint discriminatory.

4) Justice Kennedy's Packingham opinion is about the communicative "revolution of historic proportions" that is the internet--the "forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow." Justice Alito's Packingham opinion is about the "dark internet" in which bad people are lurking on web sites.

5) Part II of the Alito opinion in Tam addressed and rejected Tam's argument that the disparagement clause did not apply to disparagement of groups of persons as opposed to individual real or juridical persons. It considered this despite Tam not raising it below and despite the Court declining to grant cert on it when presented in the opposition to cert. The Court justified this on avoidance grounds. But does that mean that even an unpreserved statutory argument is always subsumed in a grant on a constitutional issue? Justice Thomas did not join this piece of the opinion.

Posted by Howard Wasserman on June 19, 2017 at 07:59 PM in 2016-17 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

SCOTUS Symposium: Setting fire to House Bivens

"If you're cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not  set fire to the house." So said Justice Breyer in dissent in Ziglar v. Abbasi, in which the Court rejected Bivens claims against high-level executive officials brought by mistreated post-9/11 detainees (although left a small glimmer of hope for a claim against the warden), and in the process may have limited Bivens to claims against line officers for immediate violations of a small group of rights. In other words, the majority may have set fire to the House of Bivens.

 Some thoughts after the jump.

1) This was a 4-2 decision, with Justice Kennedy writing for a majority of the Chief, Thomas, and Alito, and Justice Breyer dissenting with Justice Ginsburg. Justice Sotomayor recused because she was on the  Second Circuit when earlier iterations of this case were heard, Justice Kagan recused (because she was SG when earlier iterations of the case arose), and Justice Gorsuch did not participate (he was not on the Court). It remains to be seen how much weight a decision from such a small Court will gain. Everyone likely assumes that the judgment would have been the same with a full Court, with Gorsuch joining the majority and Sotomayor and Kagan joining the dissent.

2) Two themes have been floating around the recent Bivens cases. One is the idea of "extending" Bivens to new contexts beyond the three cases in which SCOTUS recognized a claim and how the Court should hesitate to do so. The other is the connection between Bivens and implied statutory rights of action and the Thomas/Scalia position that Bivens was a "relic of the heady days in which this Court assumed common-law powers to create causes of action. Both ideas came home to roost today.

3) As for the second theme, Justice Kennedy timed the creation of Bivens to the rise of the implied right of action doctrine, noting that Justice Harlan relied on those cases in identifying an implied constitutional claim. It followed that the Court's narrowing of implied statutory rights makes "expanding" Bivens a "disfavored" activity. Both rest on separation-of-powers principles under which Congress, not the courts, should decide whether a damages remedy exists. If the Court is not implying rights of action, then it should not recognize "new" Bivens claims.

4) As for the first theme, this led the Court to crystalize a three-part test for whether a Bivens claim is available (both the majority and dissent agree on this test):

   a) If the case is different in a "meaningful way" from previous cases decided by SCOTUS, then the context is new. Factors that suggest meaningful differences include the rank of the officers, the constitutional rights involved, the generality or specificity of the right involved, the extent of judicial guidance of how the officer should respond, the statute under which the officer operated, the risk of disruption of other branches, or the presence of new special factors not considered in past cases. As to the high-level executive officers, this was a new context, involving high-level policy following a terrorist attack; as to the warden, this case involved a new right (Fifth Amendment rather than Eighth), less guidance as to constitutional obligations, and congressional action suggesting intent not to provide a remedy--all small differences, but "even a modest extension is still an extension."

   b) There is consideration of alternative remedies, although it is unclear how. The majority several times emphasized the availability of alternative remedies for the constitutional violations here, namely habeas and injunctive relief. Breyer treated this as its own second step. [Update: I will link to Steve's post at Just Security pointing out that habeas likely is not available to challenge conditions (as opposed to fact) of confinement and Kennedy himself hedged on whether habeas was available in this kind of case]

   c) Special factors counseling hesitation. Here, these include the national-security context, that this case entails challenges to and inquiry into federal policy discussions and decisions, that the claims go beyond ordinary law enforcement, that Congress has done nothing in its post-9/11 litigation to provide any remedies for detainees challenging their mistreatment, and that injunctive and habeas remedies are available (again, it is not clear where this belongs in the analysis). To the extent there is a balance to be struck between these special factors and the needs for deterrence of executive misconduct, it is for Congress to strike that balance. The Court did remand for the Second Circuit to do the special factors analysis as to the warden.

5) Justice Breyer was explicit that the above is the three-step test, but he saw the factors going the other way. He did not see this as a new context, or, if it was, the claim survived steps two and three.

6) Breyer calls the majority on what I believe has been a problem in the recent Bivens cases: the confounding of the constitutional merits, qualified immunity, and cause of action. Breyer works through the list of factors that the majority identifies for defining when a context is new, insisting that some go to whether a constitutional right was violated, some go to whether that right was clearly established so the officer enjoys qualified immunity, and some are better case as special factors for step three. But none should go to the cause of action. The majority makes this worse with its consideration of alternative remedies, which hangs around the analysis throughout the case, not belonging in any clear place. The majority seems to be in a hurry to get rid of cases such as this, but it does so by focusing so much on the cause of action rather than the substantive merits and substantive defenses. Or consider how the majority uses national security as a special factor counseling hesitation before recognizing the cause of action. That factor can be taken into account at other points--in pleading requirements, on the merits, in assessing immunity, and in shaping discovery. Given these existing safeguards, there is no need to double-count it at the threshold--that is setting the house on fire.

7) That last point gives rise to another problem Breyer addresses: The "anomaly" of different analysis for claims against state/local officers as opposed to federal officers (we might also call this a lack of parallelism between claims against the former compared with the latter). A plaintiff can pursue a § 1983 claim against a mayor or governor but not a Bivens claim against a high-level DOJ official, for the same conduct violating the same right. And even if claims fail, they fail for different reasons: The claim against the federal officer fails because there is no cause of action, while the claim against the state/local official fails because the right was not violated or because it was not clearly established. That distinction makes no sense.

8) Breyer closes his opinion with a point he made during argument about the special need for damages actions in the national-security context. Damages claims can be resolved after the emergency has passed, with more information about the situation and a cooler eye towards the facts. And courts may be less likely to to issue injunctive or habeas relief in the middle of an emergency. It therefore makes no sense to rely on those remedies to preclude the later damages remedy--damages play a special role, with courts able to consider after passions have died down. The majority's approach reflects the general favoritism towards injunctive rather than damages relief in the constitutional context.

9) Justice Breyer cites Jim Pfander's new book on Bivens and GWOT, at one point seeming to adopt Jim's view that Congress' decision not to immunize individual officers under the FTCA for constitutional violations reflects an intent to leave Bivens in tact as the means for remedying constitutional violations, while putting non-constitutional torts through the FTCA.

10) Steve Vladeck had a Twitter thread on this case, pointing out that Hernandez v. Mesa, another Bivens case, remains undecided and could pull back on some of what the majority did here. But he suspects if that were to happen, the opinions would have issued at the same time. I wonder if Hernandez will be resolved on qualified-immunity rather than Bivens grounds.

11) As I said in my earlier post, I now have to rewrite my Bivens chapter. Oh well.

Thanks for wading through a long post.

Thanks for sitting through a long post.

Posted by Howard Wasserman on June 19, 2017 at 03:04 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS Symposium: Narrowing specific jurisdiction

The post-2010 revival of personal jurisdiction in SCOTUS (after a two-decade absence) has been defined in part by narrowing general jurisdiction, including last month in BNSF. In Bristol-Meyers Squibb v. Superior Court, an 8-1 Court (per Justice Alito) turned the screws on specific jurisdiction. The Court held that there was no jurisdiction in California over claims by non-residents for non-forum injuries, even when caused by the same nationwide conduct. Justice Sotomayor again dissented alone, as she has been in the general-jurisdiction cases, continuing to play the Justice Brennan role of finding personal jurisdiction in almost every case. She criticized the decision as the "first step toward a similar contraction of specific jurisdiction." 

For the majority, there was no purposeful availment as to the non-California plaintiffs because they were not prescribed, did not purchase, did not ingest, and did not experience injury from Plavix in California; that other plaintiffs were injured in California was beside the point. There must be a connection between the forum and each specific claim, with "claim" meaning one plaintiff, one defendant, and one right. Keeton v. Hustler did not help, because defamation hatmed the people of the state even as to an outsider plaintiff and because the issue there was whether one plaintiff could pursue a full claim against one defendant. The majority closed by rejecting the "parade of horribles" that plaintiffs raised, insisting that there were lots of other forums plaintiffs could go: New York and Delaware (where BSM is essentially at home and subject to general jurisdiction), "probably" in other states with lots of injured plaintiffs (there were dozens of plaintiffs from Texas who all could sue there), and maybe federal court (an open question, but probably not at the moment, because there is no statutory authorization for such jurisdiction).

Justice Sotomayor viewed the case as easy under the three-part Shoe analysis: 1) BSM purposefully availed given its massive sales and marketing in California; 2) the non-resident claims "related to" the forum because they have a "connection with" California, in that all plaintiffs in all states were injured by "the same essential acts" or "materially identical acts" to BSM's marketing and sales in California; 3) it was not unreasonable to make BSM defend the non-resident claims in California, since it already was defending the resident claims. Sotomayor also threw in an aside that she would measure jurisdiction first and foremost by fair play and substantial justice, elevating the third prong of the analysis to the first prong. She also pointed out, correctly, that the majority hasd no response to the "relate to" prong; it cited only Walden v. Fiore, a case that dealt with lack of minimum contacts, not whether those contacts gave rise or related to the claim. She also was correct as to Keeton--there is no meaningful distinction between a defendant haled into court by one non-resident plaintiff over nationwide conduct and haled into court by many non-resident plaintiffs over nationwide conduct. Sotomayor closed with her concerns about what this does to mass-tort litigation and the insufficiency of the alternative forums the majority suggests remain.

Some last thoughts:

1) I wrote after BNSF that BSM was the important personal-jurisdiction case for the Term. If general jurisdiction has narrowed, the solution is to broaden specific jurisdiction by broadening when a claim arises out of or relates to the contacts. But the majority did not go there, nor did it offer a good answer or guidance as to what arise out of/relate to means. Instead, it let the first prong--purposeful availment--do all the work by holding that BSM did not purposefully avail as to the non-resident defendants. But that is the problem. There should be no doubt that BSM purposefully availed, given its massive sales and advertising in the state (constituting both stream-of-commerce and seek-to-serve) and the fact that it is a nationwide corporation doing nationwide business; the question should have been whether those contacts gave rise to the non-res claims. But the majority did not frame the case in those terms. As in Nicastro (especially Justice Breyer's concurring opinion), the Justices seem unwilling to let the other two prongs of the analysis do any work.

2) What is Justice Ginsburg thinking? She wrote a sharp dissent in Nicastro. Otherwise, she wrote the three opinions narrowing general jurisdiction and joined the majority in the decisions narrowing specific jurisdiction. Sotomayor cited Ginsburg's Nicastro dissent in FN 3 in rejecting BSM's proferred narrow interpretation of relate to.

Update: A third point: The effect of this is to give large corporate defendants forum advantages over plaintiffs. A large group of plaintiffs wanting to pursue a corporate defendant must go to the defendant's home turn. Or they must go to federal court (maybe), which has shown itself to be more defendant-friendly in recent years. For many plaintiffs, neither is an enticing option.

Posted by Howard Wasserman on June 19, 2017 at 12:39 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

SCOTUS Symposium: Busy Day

SCOTUS came into today with seventeen remaining cases and two weeks to do. The Court cut a big chunk of that out on Monday, with five opinions, four of which were on cases I have been trying to follow:

Matal v. Tam: Declaring invalid under the First Amendment the disparagement provision in the trademark laws.

Packingham v. NC: Declaring invalid under the First Amendment a North Carolina statute prohibiting convicted sex offenders from using social media.

Bristol-Myers Squibb v. Superior Court: Rejecting an assertion of personal jurisdiction in a mass-tort action.

Ziglar v. Abbasi: Severely limiting Bivens, certainly in the national-security context and perhaps for everything beyond claims against line police officers. This one forces me to rewrite the Bivens chapter in my civil rights book.

McWilliams v. Dunn: Granting habeas relief and overturning a death sentence for failure to provide mental-health experts to the defense.

Our team of bloggers will be weighing in throughout the week. I will try to hit the procedure cases today and the speech cases tomorrow.

In addition, the Court announced that Thursday will be an opinion day.

Posted by Howard Wasserman on June 19, 2017 at 11:20 AM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (0)

Friday, June 16, 2017

JOTWELL: Leong on Mika on gender disparity before SCOTUS

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court (Am. U. J. of Gender, Soc. Pol'y & Law 2017), which measures the gender disparities among SCOTUS advocates.

Posted by Howard Wasserman on June 16, 2017 at 09:50 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Thursday, June 15, 2017

Responses

A response to two unrelated things, thrown into one post.

1) David discusses the "lower-court moment," in which lower courts are flexing their muscles and writing "aggressive opinions garnering public attention." Two responses. First, we saw the hints of this in the marriage-equality litigation, particularly with respect to decisions to stay (or usually not stay) injunctions, as Josh Blackman and I described. SCOTUS backed away from its typical role as "traffic cop" on constitutional issues and many lower courts ran with that. Second, the media environment contributes to this--there are so many more and different media outlets, some of which are dedicated to discussing high-profile political litigation from its earliest stages, leading to more coverage and more public awareness of what happens in the lower courts.

2) Gerard Magliocca considers that we lack a quick way to repopulate the House in the event of a mass-death event (UA 93 making it to the Capitol or an extreme version of yesterday's shooting). Proposals after 9/11 to amend the Constitution to allow for temporary House appointments in some circumstances never went anywhere; Gerard wonders whether it was because election of House members is sacrosanct or because the urgency was missing because the event was too far-fetched. I had the fortune to participate in some of these conversations, in my scholarship and in work the AEI's Continuity of Government Commission. Jim Sensenbrenner, who in the early 00's chaired the House Judiciary Committee, was steadfast that House members must be elected. And he was immovable on that point. The House did at least add a special quorum rule, which would allow a Rump House to conduct business until enough elections can be held. It does not get at the democratic problems of such a small body enacting emergency legislation, but at least there is a body to act.

Posted by Howard Wasserman on June 15, 2017 at 10:36 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, June 14, 2017

Remand in Haeger v. Goodyear

I covered Goodyearv. Haeger for SCOTUSBlog earlier in the Term, when the Court held that bad-faith attorney's fee sanctions must satisfy a but-for causation requirement. SCOTUS vacated the award (of $ 2.7 million) and remanded to the Ninth Circuit to decide whether Goodyear had waived its challenge to anything beyond $ 700,000 of the award. Last week, the Ninth Circuit remanded to the district court to redo the sanctions analysis, explicitly applying a but-for cause standard. Judge Smith dissented from the remand. He argued that the record as to waiver was complete and that the court of appeals could decide the issue. He suggested that there was a waiver. And he opined on why the $ 2 million award satisfies the but-for standard SCOTUS introduced.

Posted by Howard Wasserman on June 14, 2017 at 11:24 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Vehement, caustic, and sometimes unpleasantly sharp

This is correct.

Posted by Howard Wasserman on June 14, 2017 at 05:50 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Tuesday, June 13, 2017

SCOTUS Symposium: A departmentalist take on Morales-Santana

Richard's post about the Morales-Santana Court conflating judgment and precedent prompts a question: What if Congress and the Executive decide, in a fit of departmentalism, that the current differential treatment of unmarried-mother citizens is constitutionally valid? Congress refuses to amend the statute (or the President vetoes the proposed amendment) and the Executive continues removing people situated as is Morales-Santana by treating them as non-citizens, even while continuing to treat a comparable child of an unmarried-mother citizen as a citizen.

There is no judgment or order compelling Congress to change the law, something a court could not do in any event. There is no judgment compelling the executive to treat anyone other than Morales-Santana a certain way or declaring the rights of anyone other than Morales-Santana. A court cannot, through a declaratory judgment, adjudicate the rights of non-parties (I agree with Richard that this might be what the majority saw itself as doing). Departmentalism does not result in a constitutional stalemate (or devolves into judicial supremacy in practice) because at some point the judiciary has a final card in the form of a judgment in a particular case as to a particular person that government must follow on pain of contempt and that makes the Court's constitutional vision applicable to a person. The problem in this case, and in the cases likely to follow from it, is getting to that enforceable judgment that benefits some person in a way adverse to the government.

So let's play this out:

X is the child of  unmarried-father citizen who lived in the US for 4 years and 364 days, 1 year and 364 days after age 14, where the parents. The government seeks to remove. X cannot argue that removal is prohibited by a court order, because there is no judgment affecting him in place. So he goes into the BIA process, arguing that removing him as a non-citizen violates equal protection because unmarried-mother citizens (and their children) continue to be treated differently.  The BIA accepts his argument, following Morales-Santana (are BIA proceedings subject to the same rules of precedent as lower federal courts?). Or the BIA rejects his claim, but the court of appeals reverses, as it is unquestionably bound by Morales-Santana to hold that the differential treatment is unconstitutional. But now we are in the same place we are this morning--the statutory scheme is unconstitutional, but the court of appeals will be similarly reluctant to remedy by leveling up, meaning X remains subject to § 1409(a) (the 5/2 residency rule) and remains removable. And Congress and the executive remain free to ignore the precedential piece of the decision in X v. Sessions when it then seeks to remove Y, another child of an unmarried-father citizen.

How do we get out of this loop? One possibility is Mark Tushnet's suggestion that the court could/did order the government to exercise its discretion not to remove because the basis for removal was unconstitutional. If the government starts losing these cases and being unable to remove, it will amend the statute or change its enforcement mechanisms. A second possibility is that at some point the Court, tired of congressional or executive intransigence, remedies the violation in X's case by leveling up, requiring the government to subject X to the one-year exception and prohibiting removal. That will get Congress and the executive moving, to the extent they do not want one year to be the residency requirement for everyone.

This is all moot, because the government has agreed to level down for everyone going forward. But it shows the extent to which judicial supremacy has carried the day. The court can get away with an "order" such as the one in Morales-Santana because it knows that Congress and the executive will follow its declarations of constitutional law.

Posted by Howard Wasserman on June 13, 2017 at 10:23 AM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS Symposium: Most significant volume of U.S. Reports

Something fun to consider: What volume of United States Reports has the greatest number of canonical or important cases, whether legally or historically?

My nominee: Volume 403 (OT 1970), which contains:

Bivens; Cohen; Lemon; New York Times v. US (Pentagon Papers); Griffin v. Breckenridge (§ 1985(3), part of the KKK Act of 1871, reaches private conspiracies); Palmer v. Thompson (this one is anti-canon: Closing community pool to avoid integration OK); Rosenbloom v. Metromedia (no longer good law, but the high point of the expansion of New York Times v. Sullivan); Clay v. United States; and Coolidge v. New Hampshire.

That is a pretty strong batting lineup.

Defend alternative nominees in the comments.

Posted by Howard Wasserman on June 13, 2017 at 09:31 AM in 2016-17 End of Term, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, June 12, 2017

SCOTUS Symposium: Remedies and constitutional litigation (updated)

I do not teach or write in Remedies, except to the extent that basic remedial principles arise in more general Civ Pro or § 1983 work. Even in that context, I had not considered the special problems of ensuring equality through an injunction. In the First Amendment context, it is easy: Stop enforcing the prohibition on nude dancing or leafletting on the sidewalk and let the plaintiff have nude dancing in his bar or leaflet on the sidewalk. When the claim is that the laws are treating one group differently than the other, there are two choices: Extend the advantageous treatment to the disadvantaged group or extend the disadvantage to everyone. And that depends on statutory design.

This was the problem for the Court in today's decision in Sessions v. Morales-Santana. Federal law must provide rules for when to accord citizenship at birth to children born outside the U.S. where one parent is a citizen. The law imposes on the citizen parent a five-year (two years since age 14) pre-birth residency requirement in order for the citizen parent to transmit citizenship at birth to the child. And that rule controls three situations: Married parents where the father is the citizen; married parents where the mother is the citizen; and unmarried parents where the father is the citizen. The statute then frames an exception to that rule for unmarried parents where the mother is the citizen, who only must have lived in the U.S. for one year pre-birth. The majority held that this less-favorable treatment for unmarried fathers violated equal protection.

But then what?

Morales-Santana was born in the Dominican Republic to a U.S. citizen father and a Dominican mother; the father was 20 days short of satisfying the statutory requirement for transmitting citizenship at birth. What Morales-Santana wanted from the Court was to apply the unmarried-mother rule to unmarried fathers, which his father satisfied, and which would make him a citizen at birth.* He would get that relief if the Court followed its ordinary equal-protection approach of extending the benefit (one-year residency) to the disadvantaged person. But the Court could remedy the equal protection violation a different way: Eliminate the favorable treatment to the differentially treated group (unmarried-mother citizens) and subject everyone to the five-year/two-year rule. That eliminates the equal protection problem, but does not make Morales-Santana a citizen at birth or entitle him to a suspension of removal.

[*] Morales-Santana was trying to avoid deportation as a result of some state criminal convictions.

The Court chose the latter, because the former would be inconsistent with congressional intent and the structure of the law and would disrupt the statute. The rule for unmarried-mother citizens is framed as an exception to the general rule, suggesting that Congress saw the five/two residency rule as the norm. And if the Court extended the one-year rule to unmarried-father citizens (Morales-Santana's preference), it would have produced a system in which married parents were treated less favorably than unmarried parents, itself raising constitutional problems. And the Court believed that Congress would not have wanted all parents (married and unmarried, mother or father) subject to the one-year rule, otherwise Congress would have made one year the rule, not a one-provision exception.

But does the Court ordinarily look to groups not before the Court in creating remedies? The provisions for married parents are in 8 U.S.C. § 1401, while the provisions for unmarried parents are in § 1409. So the Court could have said the equal protection problem is in § 1409, extended the favorable rule to all, then worried about the equal protection problems as between § 1401 and § 1409 in a later case. But that still left the problem within § 1409, in which the provision for unmarried-father citizens was in (a) and for unmarried-mother citizens was in (c) and written as an exception to (a) ("Notwithstanding the provision of subsection (a) of this section . . .").

Update: From Mark Tushnet at Balkinization:

[M]y initial reaction is that that argument is incomplete, because it doesn't take account of the Court's statement that, pending a statutory revision, the "Government must ensure that the laws in question are administered in a manner free from gender-based discrimination." What could that mean? My (relatively uninformed) take is this: Where (a) the gender-based provision would have immediate legal consequences (as in triggering Morales-Santana's eligibility for removal), and (b) the law gives the government discretion in administering the law (for example, discretion to suspend removal), that discretion should be exercised in a way that would eliminate the legal effects of the gender-based discrimination. So, in short, if there's discretion to suspend Morales-Santana's removal, he should get to stay in the United States.
Mark quotes from p.2 of the slip op., the end of the Introduction. But at the end of the body of the opinion (p.28 of the slip op.), the Court says "[i]n the interim, as the Government suggests, § 1401(a)(7)'s now five-year requirement should apply prospectively to children born to unwed U.S.-citizen mothers." It seems to me that means the government is free to remove Morales-Santana, because he is not a citizen-at-birth under the applicable provision. And that provision is no longer discriminatory; the discrimination was removed by the order/agreement not to treat as citizens at birth those born to unmarried-mother citizens. The Court did not order the government to suspend Morales-Santana's removal or order the lower court to consider that. And the provisions at issue do not allow of executive discretion.

Posted by Howard Wasserman on June 12, 2017 at 02:26 PM in 2016-17 End of Term, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

SCOTUS Symposium: Class certification, death knells, and finality

The Court at long last* decided Microsoft Corp. v. Baker. The Court was unanimous that plaintiffs, having been denied class certification, cannot seek review of that denial by voluntarily dismissing their individual claims.

[*] The Court granted cert. in in early 2016, before Justice Scalia died. It was held to this and argument delayed following Scalia's death, although argued in March, before the 8-person Court.

In Coopers & Lybrand v. Livesay in 1978, the Court held that denial of certification was not a final order for § 1291 purposes (it was "inherently interlocutory") and not reviewable under the Collateral Order Doctrine. The Court rejected the "death knell" doctrine, under which review would be allowed where the denial of cert was the death knell for litigation, because it would be financially untenable for plaintiffs to pursue small-value individual claims. Twenty years later, the Court responded with FRCP 23(f), which allowed for immediate review of cert orders (grants or denials), if the court of appeals agreed in its discretion to hear the issue. Plaintiffs  developed an additional strategy in the lower courts--voluntarily dismiss their individual claims to create a final judgment, appeal that final judgment while getting review of the cert order, then reinstate the individual claims if the court of appeals reversed on the cert decision.

Justice Ginsburg, writing for Justices Kennedy, Breyer, Sotomayor, and Kagan, held that there was no final decision to appeal. The decision was entirely purposivist--tied to the way this strategy would undermine the efficiency purposes of the Final Judgment Rule, the "careful calibration" reflected by FRCP 23(f), and the one-sidedness of a mechanism that allows plaintiffs but not defendants to seek review. Justice Thomas, joined by the Chief and Justice Alito, concurred in the judgment. In their view, the voluntary dismissal did produce a final judgment, because the claims in the case were gone. But it is not a final judgment that can be appealed under Article III, because any adversity was destroyed by the voluntariness of the dismissal. And the disputed issue of class certification is not a case or controversy that can support Article III adverseness, but only a means of taking advantage of a procedural mechanism.

It seems to me that both parts of the Court get this wrong. The majority did not respond to the real strategy at work here--creating a final judgment in the order dismissing the individual, which should be final, then raising the class cert as an interlocutory order merged into that final judgment and subject to review as part of review of the final judgment. The majority was right that the cert order was not final, but that was not what the order that the plaintiffs were trying to appeal. On the other hand, if the concurrence was right about Article III, what does that do to conditional pleas, which seem analogous to what the plaintiffs did here: Concede the merits, subject to being able to raise an underlying interlocutory issue on appeal. If adverseness is gone as to one, why not the other? I suppose the answer might be that a constitutional right is at stake in conditional appeals. But some conditional appeals are keyed to, for example, evidentiary rulings that do not implicate constitutional concerns.

A better solution might have been that there is a final judgment in the dismissal order, but that there are prudential limits on a court reviewing a voluntary dismissal, just as there are prudential limits on a court taking appeals from the winners below. The majority's concern for the interaction with FRCP 23(f) and the policies of finality fit better with a prudential analysis might properly have led the Court to the same result, but in a way that fits better than using purpose to define finality. At the same time, if Article III does not categorically bar winners' appeals, it should not categorically bar appeals from voluntary dismissals.

Posted by Howard Wasserman on June 12, 2017 at 12:46 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (4)

SCOTUS Symposium: Gorsuch's first opinion

My tentative prediction that Justice Gorsuch would write Perry v. MSPB was dealt a non-fatal blow today when Gorsuch wrote Henson v. Santander, a case involving the scope of the Fair Debt Collections Practice Act. As per tradition, it was a short (11 pages), easy, unanimous decision. Gorsuch may still write Perry--he almost certainly will have multiple opinions from the fourteen-case April sitting. But the chances went down a bit.

[Update on further consideration: During Perry arguments, Gorsuch seemed to question Kloeckner v. Solis, a unanimous 2012 decision (authored by Justice Kagan) holding that some MSPB decisions should be challenged in district court. Might he have convinced four Justices to overrule Kloeckner? Or at least to reject its application to a slightly different context? And might the Court be divided on the point, triggering a dissent from Kagan? If so, it might explain why Henson came out first--not only because it got done more quickly because he did not have to await a dissent, but because the practice is to release the easy, unanimous case first.]

Posted by Howard Wasserman on June 12, 2017 at 11:02 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Sunday, June 11, 2017

@realDonaldTrump as public forum and state action

Last week, the Knight First Amendment Institute at Columbia University has written an open letter to President Trump on behalf of two people blocked from Trump's Twitter account, apparently for posts criticizing or mocking the President. The letter argues that the account is a designated public forum, from which people cannot be excluded for viewpoint-discriminatory reasons. Eugene Volokh questions the conclusion, doubting that Trump is using the account as a government official rather than as an individual who holds public office although admitting it is an unexplored border area, and narrowing the concept of the speech restricted to the opportunity to engage in comment threads. Noah Feldman rejects the entire premise of the Knight Institute's letter because Twitter, a private actor, banned the users.

I disagree with Feldman's conclusions, although it raises some interesting state action/under color of law questions. The relevant fact is that Trump commanded Twitter to ban block these speakers. And the claim is that Trump violated the First Amendment; Knight is not suggesting that Twitter violated the First Amendment. In any action against Trump, the challenge would be to his under-color decision to block them; it would be irrelevant that the block was carried out by a private actor following Trump's command. By analogy, if the President rented a private space for a public event and ordered private security to keep certain people out based on their viewpoint, the violative act is the order to keep them out, regardless of who carried it out.

And it gets kind of interesting if Knight were to go after Twitter. A private actor may be under color when it performs a traditional and exclusive government function and when it acts under government compulsion to perform a violative act. If Trump is acting as President in managing @realDonaldTrump, the violative act of blocking the users is done under Trump's command or compulsion. And the President arguably has delegated control and management of a public forum--a government function--to private actors. Both of those facts should make Twitter under color of (federal) law.

Posted by Howard Wasserman on June 11, 2017 at 06:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

A different scope-of-injunction question

The Texas Department of Health and Human Services enacted a regulation requiring clinics to bury or cremate fetal remains; a district court enjoined enforcement of the regs. The Texas legislature then passed (and the governor signed) a comprehensive statute imposing new abortion limitations, including requirements that clinics bury or cremate fetal and embryonic remains (§ 697.004). Slate's Mark Joseph Stern argues that this move is "treading dangerously close to a conflict with a federal court order." He explains:

Technically, SB8 does not directly conflict with Sparks’ injunction, which only prevents the state from implementing the Health and Human Services rule. In practice, though, the law looks a lot like defiance of a federal court order. By way of analogy, imagine if a court struck down Texas’ constitutional amendment outlawing same-sex marriage and the legislature simply replaced it with an identical statute. That game of whack-a-mole might be hypothetically legal, but it would also be constitutionally indefensible.

Stern interviewed a lawyer from the Center for Reproductive Right who said the district court's decision would "seem to clearly proscribe this law," but declined to discuss their litigation strategy for responding to the new law.

Is this right?

In a judicial-departmentalist world, a state government can disregard judicial precedent but cannot disregard a court order. A court order halts "this conduct" by "this defendant" (and those working with this defendant)  as to "this plaintiff." The question is what is "this conduct" when talking about attempts to restrict reproductive choice and an action seeking to enjoin that restriction. The answer depends on whose perspective we adopt. From the plaintiff's standpoint, it is the state seeking to require it to do something (dispose of fetal remains) in a way that injures its business and deprives its female patients of their Fourteenth Amendment rights. From the defendant's standpoint, each involves different forms of government conduct and the enforcement of different legal rules that must be scrutinized and analyzed separately in determining constitutional validity. We can do the same with Stern's same-sex marriage hypothetical. From the defendant's standpoint, these are distinct legal enactments and enforcement of distinct rules that must be scrutinized and analyzed separately in determining constitutional validity. From the plaintiff's standpoint, the state is prohibiting her from doing something (marry a same-sex partner) in a way that deprives her of her Fourteenth Amendment rights.

My inclination is that we look from the government's perspective and that this does not implicate the existing injunction. The government acts through grants of authority to enforce legal rules. And enforcement of a different legal rule from a different source is a different action, even if the rules are identical, even if they injure the same people in the same way, and even if they share the same constitutional defects. HHS enforcing a regulation is a different official action than HHS enforcing a statute. There also is the possibility that the government would argue that a statute should get greater deference or leeway than an administrative regulation. I would reject the argument in this context--if it imposes an undue burden, it does not matter who in the state enacted the ruel--but it is something Texas could argue. And that makes the statute different than the reg and thus not a violation of the injunction.

The difference is largely procedural--how, in an ongoing litigation (the parties are under preliminary injunction but no final judgment has been entered), to challenge the constitutional validity of the new law. If enforcing the statute represents the same governmental conduct as enforcing the reg, the plaintiff can proceed via a motion to enforce the injunction, perhaps along with a motion for contempt. If this is different government conduct, the plaintiffs must proceed via a motion to "extend" the injunction, likely in conjunction with an amended complaint adding a new constitutional claim against enforcement of the new legislation.

So I believe the answer is straightforward. But it presents a different issue for how we determine the scope of an injunction in constitutional cases--looking not only to the parties,  but also the legal rule challenged.

Posted by Howard Wasserman on June 11, 2017 at 03:47 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Saturday, June 10, 2017

Ranking Beatles songs (a non-law post)

In honor of the 50th anniversary of Sgt. Pepper's come two lists ranking all the Beatles songs: From Bill Wyman in New York Magazine and from Charles Curtis in USA Today. Both put A Day in the Life at the top. Otherwise, they are all over the map in interesting ways (that may say more about making lists than about the Beatles).

After the jump, I list each author's Top 20; in parens is where the other author placed that song. Draw your own conclusions and decide which list you prefer.

Wyman:

20) Hey Jude (4)

19) Lovely Rita (78)

18) Ticket to Ride (19)

17) Nowhere Man (36)

16) Here Comes the Sun (9)

15) Let It Be (10)

14) Money (That's What I Want) (unranked)

13) Something (3)

12) Tomorrow Never Knows (7)

11) She Said, She Said (44)

10) Rain (75)

9) Eleanor Rigby (12)

8) Norwegian Wood (11)

7) Here, There, and Everywhere (54)

6) Dear Prudence (50)

5) Please Please Me (28)

4) She Loves You (60)

3) Penny Lane (23)

2) Strawberry Fields Forever (22)

1) A Day in the Life (1)

 

Curtis:

20) The End (mid-20s. Wyman ranks Abbey Road medley at 22-29, songs listed in order)

19) Ticket to Ride (18)

18) I Want to Hold Your Hand (49)

17) I Saw Her Standing There (21)

16) Blackbird (31)

15) A Hard Day's Night (41)

14) Can’t Buy Me Love (55)

13) While My Guitar Gently Weeps (32)

12) Eleanor Rigby (9)

11) Norwegian Wood (8)

10) Let It Be (15)

9) Here Comes the Sun (16)

8) Help! (36)

7) Tomorrow  Never Knows(12)

6) Yesterday (39)

5) Revolution (56)

4) Hey, Jude (20)

3) Something (13)

2) In My Life (42)

1) A Day in the Life (1)

They agree on nine songs, but there is huge variance within that agreement, other than Day in the Life. No other song makes both Top-10s, although Rigby and Norwegian are close (9/8 for Wyman, justt outside it for Curtis at 12/11). Four of Wyman's Top-5 did not make Curtis' Top-20, while three of Curtis's Top-5 did not make Wyman's Top-20 (Hey Jude, which Wyman had at 20).

And just to show that they do not agree on the lower end, here is each one's bottom five:

Wyman:

Good Day Sunshine

Dig It

Little Child

Tell Me What You See

Dig A Pony

Curtis:

You Know My Name (Look Up the Number)

Good Night

Flying

Blue Jay Way

Octopus's Garden

For broad disagreement, Wyman had She's Leaving Home at 204 (10th-worst); Curtis had it at 61.

One other bit of Beatles trivia: The most recent Hit Parade Podcast explores the story of the week in April 1964 when the Beatles held the entire Billboard Top-5, a tale of how many people in the music industry whiffed on the Beatles. Worth a listen.

Okay, now back to SCOTUS and non-impeachment.

Posted by Howard Wasserman on June 10, 2017 at 06:41 AM in Culture, Howard Wasserman | Permalink | Comments (6)

Thursday, June 08, 2017

Expressive legislation, legitimacy, and judicial departmentalism

Sherry Colb discusses pending Texas legislation that would ban Dilation-and-Extraction (D&E), the most common method of second-trimester abortions. If enacted, the law would restrict second-trimester abortion to a degree that it almost certainly would constitute an invalid undue burden on reproductive freedom under current Fourteenth Amendment doctrine and almost certainly will be declared invalid and unenforceable by the courts. Colb wonders why Texas would enact legislation so obviously likely to lose in court (noting how common it is for states to do this with abortion legislation) and argues that such legislation is a form of expression for the legislators. She  labels such practices "potentially legitimate but generating discomfort and possible problems;” it depends on how long the law would be in effect and how likely it is to have a chilling effect on Fourteenth Amendment liberties in the lag between enactment and injunction. Legislation-as-expression is better than violence, but inferior to other forms of anti-choice speech that would not have the same practical effect on doctors and women in Texas.

Colb does not mention or consider that the Texas legislators and governor (presumably) believe such legislation is constitutionally valid. This is where the model of "judicial departmentalism" I have been urging comes into play. Because the judicial interpretation or understanding of the Fourteenth Amendment does not bind any other branches, Texas lawmakers  remain free (and act consistent with their oaths) to act on their own constitutional views and understandings, even if those views run contrary to those of the judiciary. What they are doing here is in no way illegitimate and should not be regarded as such. It instead is what coordinate constitutional actors are entitled, and expected, to do--change the law of Texas to match their policy preferences (and, presumably, those of their constituents) and their constitutional vision.

Colb is right that a court, bound to follow the judicial understanding of the Fourteenth Amendment, will declare this law invalid and enjoin its enforcement. And she therefore is right that the practical effect of such legislation at the moment is symbolic and expressive, except to the extent that it sets-up an opportunity to argue for a change in judicial doctrine. In fact, laws such as this represent the only way to change judicial doctrine, making them not only legitimate, but necessary to the development of constitutional law. So judicial departmentalism recasts Colb's argument--in practice it is symbolic, in theory it should not be derogated as only contingently legitimate. It is not that Texas is ignoring the courts, but that Texas' constitutional vision conflicts with that of the federal courts. Neither party acts illegitimately in following its vision.

Posted by Howard Wasserman on June 8, 2017 at 07:02 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, June 07, 2017

Bleg: Course/Credit Releases

I am reposting an earlier request:

I am looking for information on how other law schools handle periodic/sporadic/special release from the regular number of courses and credits (whether from 4 to 3 or 3 to 2). I am looking for information about one-year/one-time reduction--how often they happen, who decides, what criteria are applied, etc.? Is it a one-time special release, to be requested and approved when big projects arise? Do you use an hour-banking system, with a release every third or fourth year? Something else entirely?

You can comment below or email me at howard.wasserman@fiu.edu.

 

 

Posted by Howard Wasserman on June 7, 2017 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, June 06, 2017

SCOTUS Symposium: Thoughts on the assignment power

Last month's decision in Cooper v. Harris (declaring invalid two North Carolina congressional districts as impermissibly race-based) was notable for the rare lineup: Justice Thomas joined Justices Ginsburg, Breyer, Sotomayor, and Kagan. Less mentioned was that Thomas, as senior-most Associate Justice in the majority, assigned the opinion (draw your own conclusions from Thomas assigning the opinion to Justice Kagan, while Kennedy, placed in the same position, tends to keep the opinions for himself). This is similarly rare: Thomas generally agrees with the Chief (and if not the Chief, prior to last February, Justice Scalia), more-senior Justices who would assign opinions.

I am interesting in writing about the assignment power, particularly for Justices other than the Chief. I would like to look at those who have had long tenures as senior-most Associate Justice (either on the Court or on a segment of the Court) and had either a lot or a little assignment power in that role. I also am interested in the rare assignments, such as Cooper.

For now, I want to address a different point: In December, I argued that the loser in Mitch McConnell's successful Merrick Garland gambit (besides Never-Justice Garland) was Elena Kagan, who lost a chance to be the Justice Brennan of a new liberal-leaning majority. But also losing out on the exchange was Justice Sotomayor, who lost the chance to frequently wield the assignment power (query whether she would have relied on Kagan the way Chief Justice Warren relied on Brennan). Assume Hillary Clinton won and the following: a) Garland is confirmed; b) Ginsburg and Breyer retire within Clinton's first two years. By OT 2018, we have the following Court: Chief, Kennedy,* Thomas, Alito, Sotomayor, Kagan, Garland, Clinton I, Clinton II. That is a 5-4 Court on politically divisive cases--with the four most senior Justices in the minority and Sotomayor the senior-most Associate Justice in the majority, assigning many of these opinions.

    [*] For purposes of this exercise, Kennedy could have retired as well.

Posted by Howard Wasserman on June 6, 2017 at 09:31 AM in 2016-17 End of Term, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, June 05, 2017

SCOTUS Symposium: More on standing, intervenors, and Laroe Estates

I covered Town of Chester v. Laroe Estates for SCOTUSBlog and my recap is here. Since that forum is intended to be descriptive, this is my normative take.

The Court leaves in place what Andrew-Aaron Bruhl (who filed an amicus brief in the case) calls the one good plaintiff rule--so long as one plaintiff has standing, other plaintiffs (including intervenor-plaintiffs) can go along for the ride. Town of Chester limits that to plaintiffs and intervenors who assert identical claims for identical relief. The problem (as Aaron argued in an email and I agree) is that all relief is plaintiff-specific--a remedy for A is different than a remedy for B, even if they both want the same thing. So either the Court's own rule is universal or it is calling on lower courts to draw an impossible distinction in practice.

With respect to damages in this case, the Court distinguished two remedies: The first is Laroe asking for damages directly from the Town for the value of its property interest, which would require standing. The second is Laroe joining Sherman to ask for a single fund of money from the Town, after which Laroe and Sherman would fight over their portions of that fund (which would not). The latter theory is that Laroe and Sherman seek the same thing from Chester--$ 6 million, the value of the regulatory taking of property in which they both have an interest; thus, only one need have standing to get the entire pool from the Town. Who between Laroe and Sherman owns how much of that $ 6 million is between them.

The "one good plaintiff" rule arises most often in actions challenging the constitutionality of a law and seeking injunctive relief; courts do a standing inquiry for one plaintiff, then stop. But the plaintiff-specificity of the remedy remains, which is why Aaron argues everyone must have standing. Enjoining enforcement of a law so A can engage in some conduct (attend an integrated school, hold a rally, get married, not buy health insurance) is a different remedy from enjoining enforcement of a law so B can engage in the "same" conduct himself. This decision does nothing to end that practice. Courts generally understand this type of injunction as the equivalent of a single pie for each party to put to its own use, rather than a single order requiring something from the defendant to each plaintiff. (I am interested in this point (and in Aaron's article) because it ties into questions about the scope of judgments, the permissibility of universal/nationwide injunctions, and the process of constitutional litigation).

Ironically, Justice Gorsuch's testy exchange with respondent's counsel (this was the second argument on Gorsuch's first day on the bench) surrounded discussion of this point. Asked by Gorsuch to identify when an intervenor seeks different equitable relief from the plaintiff, counsel tried to explain that it depends on the scope of the injunction, implicitly invoking one-good-plaintiff cases; Gorsuch became increasingly frustrated by counsel's refusal to answer his non-"trick" question. But Gorsuch did not seem to recognize the real problem--that an injunction should never be so broad that a person can benefit from it as a judgment without having standing.*

[*] For purposes of this point, I bracket my Fletcherian insistence that standing is merits. [Update: On this tangent, Aaron responds with a great point: "One good plaintiff" exists because standing is not merits. Courts never would have developed a doctrine that says "so long as one plaintiff has a successful claim on the merits, we will grant relief to other plaintiffs even though they don't have successful claims on the merits." But because it is a jurisdictional threshold, courts have been ironically lenient on it (as long as someone can pass the heightened threshold).

Posted by Howard Wasserman on June 5, 2017 at 02:23 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

JOTWELL: Levy on Grove on judicial independence

The new Courts Law essay comes from Marin Levy (Duke), reviewing Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence (forthcoming Vand. L. Rev.).

Posted by Howard Wasserman on June 5, 2017 at 09:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 31, 2017

SCOTUS Symposium: Good hombres and legal positivism

I think this sort-of relates to Paul's definite contribution to the SCOTUS Symposium. In light of Paul's model, how should we understand the Ninth Circuit's denial of a stay of removal in Ortega v. Sessions, particularly Judge Reinhardt's concurring opinion?

Ortega came to the United States unlawfully as a teen; he has been here 28 years, gotten married, had 3 children (one of whom is in college), and become a successful businessman--he is, as Judge Reinhardt said, a "good hombre." Ortega has been under a stay of removal since 2014, until the government changed its position on the stay in March and ordered him removed (absent the stay, that happens next month. Reinhardt concurred in the denial of the stay, arguing that the court lacks the authority to grant it, even if it is not fair and just. He concludes with a flourish:

We are unable to prevent Magana Ortiz's removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government's decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

Assuming arguendo we agree with Reinhardt that this decision is unjust, what do we think of the decision generally and Reinhardt's opinion specifically? Is this a form of resistance or domestication--the hope that, even though the administration "wins" and its opponent "loses," the court's words of criticism might either calm the administration down going forward or rouse an opposition? Alternatively, this presents a third option for the courts--compliance, in that the administration's policies move forward, even if it is grudging compliance with a chip on the court's shoulder that might rally domestication or resistance.


Either way, it supports Paul's argument that the conversation must be about more than who wins or loses--if all the administration cares about is winning, the court's words are meaningless. They begin to sound in Fuller's critique of legal positivism and how that concept requires courts to validate immoral actions in the name of positive law.

Posted by Howard Wasserman on May 31, 2017 at 03:50 PM in 2016-17 End of Term, Howard Wasserman, Law and Politics | Permalink | Comments (2)

SCOTUS Symposium: Justice Gorsuch on personal jurisdiction

Cassandra discusses then-Judge Gorsuch's opinion in Dudnikov, finding jurisdiction in Colorado under the Effects Test based on a letter sent to California that affected the plaintiff's behavior and business in Colorado. Cassandra raised the possibility that the Effects Test was silently overruled in Walden.

I doubt Walden was a stealth overruling of Calder, but it did narrow it one respect: Whereas many lower courts had said that the test was satisfied if the defendant directed conduct at a state knowing it would affect the plaintiff there, Walden requires that intentional conduct be aimed at the forum, not only at the plaintiff (who happens to be in or from the forum). In other words, knowledge that the plaintiff is in or from the forum or might feel effects in the forum is not enough when conduct is undertaken elsewhere; the intent of the outside condct must be to hit the forum.

The question (which I have used as a hypo in class) is whether Dudnikov comes out the same way after Walden. The point of the cease-and-desist letter was to stop the plaintiff from doing things in CO. So did the defendant direct his conduct at Colorado in purposefully trying to stop the plaintiff's business there? Or did he only direct his conduct at California, with knowledge of effects in CO?

Posted by Howard Wasserman on May 31, 2017 at 09:31 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Tuesday, May 30, 2017

SCOTUS Symposium: More recusals

Leah flags the summary disposition in Jaffe v. Roberts, where all Justices but Gorsuch were the respondents on the petition and all were recused, leaving only Gorsuch to act on the petition. Below that is a second no-quorum affirmance in Arunga v. Obama, in which Kennedy, Ginsburg, Breyer, and Kagan were recused.

A quick Google search shows that Arunga is a serial crazy litigator, with past lawsuits against President Clinton, Mitt Romney, and the ACLU. So I doubt there was much comprehensibility or merit to the lawsuit. Still, I am curious why those four Justices were recused.

Posted by Howard Wasserman on May 30, 2017 at 02:10 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (3)

SCOTUS Symposium: General jurisdiction narrows further

I am glad we started our June symposium two days early, because the Court issued four of its remaining opinions, including BNSF R. Co. v. Tyrrell, one of two personal jurisdiction cases from the April sitting.

The question was whether a state court (in this case, Montana) can exercise jurisdiction over a FELA claim for an accident that occurred in another state. The Court unanimously (through Justice Ginsburg) held that FELA itself does not answer the question because the possibly relevant statutory provision did not speak to personal jurisdiction, but only to subject matter jurisdiction (making clear concurrent jurisdiction over FELA claims) and venue (for FELA claims in federal court).

The personal jurisdiction analysis therefore was covered by International Shoe. And here was see the same divide (Ginsburg for the Court, Justice Sotomayor dissenting alone) over the scope of general jurisdiction as in Daimler v. Bauman; Part III of the majority and all of the dissent are an in-miniature rehash of Diamler.

The majority reiterates several things: 1) General jurisdiction is where the defendant's contacts are so "continuous and systematic" as to be "essentially at home"; The "paradigm" of the essential home is the entity's principal place of business and state of incorporation; 3) there may be "exceptional" cases in which general jurisdiction will be available outside those two states; 4) a company doing business in many states cannot be home in all of them and the analysis must consider its in-state contacts in light of its overall activities in other states; 5) Shoe was a specific, not general, jurisdiction case, so any discussion of general jurisdiction there is dicta. The Court added something new: It pointed to Perkins as exemplifying a company essentially at home other than its state of creation and P/P/B, hinting (according to Sotomayor's dissent) that this exhausts the exceptional cases and only a similar set of facts* will qualify.

[*]Unlikely, as Japan is unlikely to invade the Philippines.

Thus, 2000 miles of track and 2000 employees in Montana is not sufficient to make BNSF essentially at home, where it is incorporated and has its PPB elsewhere and where it does similar amounts of business in other states.

The significance of this case in reaffirming the narrowness of general jurisdiction may not be clear until the Court decides Bristol-Myers. The narrowing of general jurisdiction has forced courts to find ways to expand when a contact "gives rise" or "relates to" a claim, thereby expanding specific jurisdiction.

Posted by Howard Wasserman on May 30, 2017 at 10:51 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, May 29, 2017

Symposium Introduction: SCOTUS OT 2016

Welcome to the first (hopefully annual) PrawfsBlawg Symposium on the end of the SCOTUS Term. Our guests and regular Prawfs will be exchanging posts and talking to our readers and to one another about the final cases of the Term, as well as other issues relating to the Court.

I will get the conversation started with a few questions for consideration and discussion before the final month begins and we get into the flood of cases:

• By my count, there are 34 cases left to be decided. Which one(s) are you anticipating and why?

• Fourteen of those cases are from the April sitting, the only one in which Justice Gorsuch participated. Besides the obvious--no 4-4 splits--how do you anticipate Justice Gorsuch affecting the outcomes in these cases, compared with how they might have come out were the Court still short-handed? How does Gorsuch appear to have affected the Court's dynamics?

• What pending cert petitions are you watching and why? Which do you expect the Court to grant?

• Is Justice Kennedy going to retire at the end of this Term?

Feel free to start the month by discussing these and other issues not presented here.

Posted by Howard Wasserman on May 29, 2017 at 07:17 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (6)

Rotations

Thanks to Ben and Andrew for visiting in May; they will be around for a couple final days.

For June, we are going to run a symposium on the end of the October 2016 SCOTUS Term. This will be a month-long exchange of posts,  in a conversational and interactive manner; we will be discussing final decisions of the Term as they are released, as well as other issues surrounding the Court, such as new cert grants, the influence of Justice Gorsuch on the Court's dynamics, and the rumors of Justice Kennedy's retirement. We will be talking with you and with one another.

Guest-bloggers are Will Baude (Chicago), Daniel Epps (Wash U), Leah Litman (Irvine), Andra Robertson (Case), Stephen Sachs (Duke), Ian Samuel (Harvard),  and Chris Walker (OSU) [ed: and late additions Joseph Miller (Georgia) and David Fontana (GW)]. In addition, the regular Prawfs who write on SCOTUS issues will be joining in the mix. This is something a little different for us. I think it will be fun and interesting.

Because there may be opinions released on Tuesday, we are going to start a couple days early.

 

Posted by Howard Wasserman on May 29, 2017 at 07:13 PM in 2016-17 End of Term, Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, May 28, 2017

In my opinion, my Electoral College margin was 538 votes

The President on Twitter this morning: "It is my opinion that many of the leaks coming out of the White House are fabricated lies made up by the media." And "it is very possible that those sources don't exist but are made up by fake news writers." A few commentators have suggested that these hedges signal that Trump has "lawyered up" and has someone in the White House counsel vetting his tweets.

But any lawyer knows that slapping "In my opinion" or "I believe" or similar hedges in front of verifiable assertions does not render them something other than statements of fact. It certainly would not get him out from under defamation liability (presidential immunity to one side). And it probably would not work politically to say that it was only his opinion that the leaks were fabricated when it turns out that these leaks were, in fact, coming from the WH. No good lawyer would think or advice otherwise.

If anything, this sounds like what a non-lawyer would think is enough to create a statement of opinion.

Posted by Howard Wasserman on May 28, 2017 at 11:53 AM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

Thursday, May 25, 2017

Scope of injunction in the 4th Circuit travel ban decision

The Fourth Circuit divided 10-3 in affirming the district court and enjoining the second travel ban. The court agreed to keep the injunction nationwide, but reversed the part of the injunction that ran against the President personally (although the injunction stands as to other federal officials involved in its enforcement). I will leave substantive analysis to others, but check out here, here, here, and here. Given my interests, I want to address two points about the scope of the injunction.

1) The court affirmed the nationwide scope of the injunction and actually gave reasons: Plaintiffs are dispersed throughout the country; congressional desire for uniform immigration law; and an interesting Establishment Clause hook--because the EO violates the Establishment Clause, its enforcement as to anyone sends the identical  message that plaintiffs are outsiders and unwelcome in the community.

The first concern is satisfied by a true nationwide injunction, which is to say an ordinary injunction--protect named plaintiffs everywhere they are. It does not justify this injunction, which is universal--protecting everyone everywhere. The second argument proves too much. Congress wants all federal law to be uniform; that is the point of having federal law in some areas. There is nothing special about immigration law in that respect. That the law might go through periods of disuniformity while courts figure out the meaning and validity of some law is inherent in a tiered federal judiciary and unavoidable, given that SCOTUS does not have original jurisdiction in all constitutional challenges to federal law, meaning any challenge must work its way through multiple (possibly disuniform) courts before SCOTUS can offer a final, uniform conclusion. It does not justify a regional court acting as SCOTUS and having the nationally controlling (even if temporary) word on an issue.

The third argument is interesting and would seem to make the Establishment Clause special for injunction purposes. But that Clause also is special for standing purposes, so it offers an interesting way to tie the front-end standing concerns with back-end remedial concerns.

 2) If the President cannot be enjoined in an Ex Parte Young action such as this one, it really means he is immune from suit, should not be named as a defendant at all, and should have been dismissed from the action at the outset. But he wasn't and courts entertain these lawsuits with the President as a named defendant all the time.

The Fourth Circuit relied on Franklin v. Massachusetts, including Justice Scalia's concurrence. Scalia argued that it was enough to enjoin the Secretary to stop unlawful executive action, just as we enjoin the executive to stop unlawful legislative action. But the reason is that legislators enjoy absolute Speech-or-Debate immunity from all suits for all remedies. In fact, we have EPY at all because of sovereign immunity-- the sovereign (the United States) cannot be sued, so we sue the executive acting on behalf of the sovereign. The President purportedly is not immune, at least not from an injunction, so there should be no reason to look elsewhere. Or, if he is immune, say so and proceed accordingly.

The Fourth Circuit also cites Franklin for the proposition that this does not leave the President free to act unconstitutionally. The secretaries through whom he acts are enjoined. And "[e]ven though the President is not directly bound by the injunction, we assume it is substantially likely that the President . . . would abide by an authoritative interpretation" of the EO.

Why is that so in a departmentalist world? The key to functional departmentalism is the difference between an injunction/judgment and precedent--the President is bound by the former, not by the latter. But if the President cannot be enjoined, there is no way to compel him (beyond persuasion) to the judicial interpretation. I suppose the answer is that the President cannot enforce the EO himself, but only through his secretaries, aides, and federal employees--all of whom are enjoined. Still, it adds an unnecessary step that is inconsistent with EPY, unless the President enjoys an as-yet unrecognized immunity.

Posted by Howard Wasserman on May 25, 2017 at 05:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, May 23, 2017

Another unwarranted universal/nationwide injunction

Last week, Judge Jones of the Western District of Washington issued a nationwide TRO against enforcement of a federal regulation barring attorneys from providing limited limited legal services for otherwise-pro bono litigants in immigration proceedings. The regulation requires attorneys to file a formal appearance as counsel of record in order to provide any representation, something the plaintiff Northwest Immigrant Rights Project, a nonprofit advocacy organization, cannot afford to do in all cases for all clients. NWIRP argued that the regulation violated the First Amendment.

As always, the court made the order nationwide: "Counsel for the Government represented during the hearing on the TRO that it desired to continue issuing cease and desist letters to non-profit organizations providing legal services to immigrants. As such, the Court grants this TRO on a nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. § 1003.102(t) during the pendency of this TRO on a nationwide basis."

Even if universal injunctions might at times be warranted, this is not one of those times. NWIRP represents clients only in the Pacific Northwest, so it would be sufficiently protected by an injunction prohibiting the issuance of cease-and-desist letters to it in Washington. We could even extend that to the issuance of letters to NWIRP anywhere in the country (a real "nationwide" injunction). But NWIRP's is in no way deprived of complete relief if the government issues C/D letters to any other lawyers or nonprofit organizations anywhere else in the country. There is no reason, and no basis in principles of equity and judgments, for one district court in a non-class action to freeze enforcement as to every other person everywhere in the country.

But we have reached a point where universality is automatic and unthinking. Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal.

Posted by Howard Wasserman on May 23, 2017 at 06:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Monday, May 22, 2017

JOTWELL: Thomas on Wistrich and Rachlinski on implicit bias

The new Courts Law essay is from Suja Thomas (Illinois), reviewing Andrew J. Wistrich and Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, a forthcoming book chapter in a volume exploring implicit bias in the judicial system.

Posted by Howard Wasserman on May 22, 2017 at 10:47 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Baseball rules--collect them all, trade them with your friends

For my recent birthday, my wife and daughter got me a baseball card for the Infield Fly Rule. The card, from 1978, features a picture of an infielder (for you fans of late-'70s baseball, it is Jerry Remy, then of the Angels, later the Red Sox) sitting under a fly ball with an umpire (decked out in very-1970s umpire gear and the old league-specific hat) standing in the background, although he has not yet signaled infield fly. The back of the card explains and defends the rule as "Unique and Necessary."

It turns out to have been part of a series of cards produced by the company Sportscaster from 1977-79 on "The Rules." The cards featured a photo of player in action, with an explanation of the rule or play on the back. According to this list, there were cards for Interference, the Hidden-Ball Trick, Pickoff, Rundown, and other plays and rules. I was in the heart of my baseball-card collecting phase in this period, so I am disappointed that I did not know about these at the time. I was fascinated by the Infield Fly Rule even then.

Posted by Howard Wasserman on May 22, 2017 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Police in changing communities

Some good stuff in this lengthy Buzzfeed piece on the tensions between the (overwhelmingly white) police and the increasing Black and minority communities in Troy, New York. Two items to pull out that are common in these types of stories, but illustrate some things I have been thinking about:

1) Describing the cycle that multiple incidents followed: "a stop for a low-level infraction; an interaction that escalates; use of force by officers; a charge of resisting arrest, dismissed by prosecutors or acquitted at trial; and then a lawsuit settlement with the city that allows officers to deny the allegations of misconduct." And four officers involved in multiple incidents remain on the police force. And the city works these (relatively small) settlements into the cost of doing business, so civil damages litigation produces no political or accountability pressure to change its policies or the behavior of its officers.

2) Among the reforms the chief of police proposed were dashcams, which were opposed by the union and ultimately rejected. Again, a common reaction--police unions are the one stakeholder not enamored of cameras and many unions are going in the opposite direction of moving away from initial support.

Posted by Howard Wasserman on May 22, 2017 at 08:06 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 21, 2017

Are esports sport?

It has been awhile since I wrote on the bar debate over what is and is not sport. Now Gizmodo asks the question about esports.

My preferred definition of sport has four elements: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. On that definition, esports fail on # 1--operating a game console involves fine rather than large motor skills.  I also would question # 2--the competitors small-motor physical actions do not do all the work--it is the complex machine translating those physical actions into something bigger on the screen. So while esports do require "training, endurance, mental focus, and, yes, physical precision," the physical precision is of the wrong type and works too indirectly.

The comments are interesting in that several people have argued "not a sport" based on a definition that requires direct interaction between competitors and the possibility of one competitor thwarting another.

Posted by Howard Wasserman on May 21, 2017 at 07:26 AM in Howard Wasserman, Sports | Permalink | Comments (6)

Thursday, May 18, 2017

How other law schools do things

Looking for some ideas on how law schools handle some faculty matters.

1) Course/credit releases. How do you handle periodic/special releases from the regular number of courses and credits (whether from 4 to 3 or 3 to 2). Not thinking about faculty buying out, but rather  one-year reductions because of big scholarly projects, etc. How often can faculty do this? Who decides--the dean, faculty, or some combination? Is there written criteria as to what justifies it or is left to decanal discretion? Do the credits get made up in a subsequent year? Is it a banking system?

2) Co-authored articles for P&T. How are P&T committees handling co-authored works in evaluating a colleague's productivity and in deciding what to send for outside review? Are such works being discounted? Do you ask the candidate for a breakdown of who did what or how the writing process worked on the project?

Please respond in comments.

Posted by Howard Wasserman on May 18, 2017 at 03:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, May 17, 2017

Welcome Carissa Byrne Hessick as perma blogger

We are happy to announce that Carissa Byrne Hessick of UNC has joined PrawfsBlawg as a permanent blogger. Carissa, who has visited hear many times in the past, writes on criminal law, including Redefining Child Pornography Law: Crime, Language, and Social Consequences.

Posted by Howard Wasserman on May 17, 2017 at 12:30 PM in Blogging, Howard Wasserman | Permalink | Comments (1)

Tuesday, May 16, 2017

Conspiracy theory of the day

In July 2016, after Trump selected Mike Pence as his running mate, Pence visited James Comey at FBI headquarters and said, "I want you to help me become President of the United States."

Posted by Howard Wasserman on May 16, 2017 at 07:57 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)