Friday, January 30, 2015

LBJ and the Supreme Court

This is a couple days old, but I will second Gerard Magliocca's recommendation of KC Johnson's post on LBJ's conversations about the nomination of Abe Fortas as Chief Justice; the post includes audio links to excerpts of the Johnson White House tapes along with transcripts and some commentary. The conversations touch both on Fortas's elevation and on who should replace him as Associate Justice (Homer Thornberry was nominated, but the nomination was withdrawn when Fortas was rejected as Chief). KC argues that Fortas represents the tipping point on judicial nominations, the point at which it became contentious and partisan and at which a nominee might realistically be filibustered or rejected. (I will leave that debate to others).

Beyond the general enjoyment of listening to the conversations and, in Gerard's words getting to "hear LBJ . . . well . . . being LBJ," I found a couple of individual points of interest.

First, Johnson mentions the possibility of bringing Arthur Goldberg back to the Court (Goldberg had resigned in 1965, at Johnson's urging, to become UN Ambassador and to allow Johnson to put Fortas on the Court), but rejected that idea because "I oughtn’t to have two Jews." (I have written before about how jarring it is to hear "Jews" as opposed to "Jewish people." It sounds worse with a Texas drawl).

Second, Johnson specifically talks about the states represented by the different possible nominees and how "seats" for each state is a consideration. This brings to mind Nancy Leong's JOTWELL essay reviewing Sharon Rush's article on geographic diversity on the federal bench, particularly on a non-regional court such as SCOTUS.

Third, it raises some cute historical counter-factuals. What if Johnson had not pushed Goldberg to resign in 1965? Johnson basically conned Goldberg into believing that 1) Goldberg could make a difference with Vietnam from the UN and 2) It might put him in position to run for President. Neither of those things is remotely true. 

So what happens if Johnson leaves Goldberg alone? Johnson got to make (or at least try to make) two more nominations after 1965--1967, when he appointed Thurgood Marshall to replace Tom Clark, and 1968, when Warren indicated his intent to retire. Johnson wants Fortas and Marshall on the Court and also wants to make Fortas Chief when Warren steps down. So consider:

1) Johnson still appoints Marshall in 1967 because "it's time," then nominates Fortas as Chief from outside the Court in 1968 (back then a Chief without judicial experience was not uncommon). If Fortas has not been on the Court for three years when nominated, does that change the Senate's reaction to him? Certainly some of the problems that killed his nomination go away--he no longer is tagged with what many viewed as the "excesses" of the late Warren Court on criminal procedure and obscenity; there no longer is anything untoward in his having recently advised Johnson on matters; it is at least less untoward that he took money for giving various speeches. On the other hand, as KC describes in his post, by June 1968, everyone expected that Nixon would win the White House, so Republicans (and others) in the Senate wanted to leave the nomination for the new president rather than the lame duck. This concern does not go away.* So which way do things go?

* In the tapes, Johnson several times mentions the age and failing health of Black, Douglas, and Harlan, by way of showing Republicans that Nixon would get to make several appointments fairly quickly even if Johnson got to appoint the Chief in 1968. And, indeed, Nixon got to replace both Black and Harlan by the end of his first term. And but for Watergate, he would have appointed Douglas's replacement in 1975, towards the end of his second term.

2) Johnson appoints Fortas in 1967 to get his friend on the Court, then tries the same move in 1968 of trying to elevate Fortas, this time nominating Marshall as Associate. Does Fortas fare any better with two fewer terms (and decisions) on the Court? Does Marshall draw too much opposition to make the two-fer work (one of Thornberry's virtues was that it was unlikely anyone in the Senate would oppose him)? Does Johnson not nominate Marshall at all because of that opposition? In which case, when does the Court get its first African-American Justice?

Posted by Howard Wasserman on January 30, 2015 at 03:10 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, January 28, 2015

If you say so

Judge Callie Granade of the Southern District of Alabama has clarified her order holding that Alabama's marriage-equality ban violates the Fourteenth Amendment. She block-quotes Judge Hinkle's position--which I previously labeled "unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four"--that the injunction does not apply to anyone other than the Alabama A/G (the only named defendant), but that the Constitution does apply and the Constitution requires the probate judges to issue marriage licenses.

On reading it this time around, these seems a framed example of an advisory opinion. A court is telling someone what to do or not to do, but that person is not a party to a case within the court's jurisdiction and not subject to any valid order of the court. Judge Granade can insist all she wants that the Constitution requires the state's probate judges to issue marriage licenses--if they disagree, no one can do anything about it (unless and until new litigation is brought and a court with jurisdiction--perhaps Judge Granade--directly compels them to do so).

Of course, the news is not all normal, because Alabama Supreme Court Justice Roy Moore is back in the news, insisting that state law remains in place, that he will continue to follow state law, and that the probate judges should continue to do so, as well. This, in turn, prompted the Southern Poverty Law Center to file an ethics complaint against Moore, alleging he violated judicial ethics rules in commenting on a matter that will be coming before him in the coming weeks.*

* Although I am not sure why. I would expect the move for anyone denied a license would be to sue the probate judge in federal court, so I do not see how this is going to make its way through the Alabama courts.

(H/T for all of this: Josh Blackman and Howard Bashman)

Posted by Howard Wasserman on January 28, 2015 at 02:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (8)

#Not all convictions

Sadly, the only lessons anyone will learn about campus sexual assault from the convictions of two former Vanderbilt football players is 1) Don't be so stupid (or arrogant) as to record and share your criminal activity and 2) You cannot get away with as much when you are not the star quarterback at a championship-contending football factory. More sadly, I am not sure what would happen if you have a star quarterback who is stupid enough to record. Still more sadly, we already know what happens if the non-star is smart enough not to record.

Posted by Howard Wasserman on January 28, 2015 at 09:34 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, January 26, 2015

Epilogue: Moral Panics and Body Cameras

Almost immediately after my essay on body cameras was published in Wash. U. L. Rev. Commentaries in November, stuff blew up--the Michael Brown non-indictment, the Ferguson and national protests, the Eric Garner non-indictment, and the protests from that. The editors were kind enough to publish an Epilogue, now available on Commentaries, discussing those subsequent events and how they further illustrate my points about video, body cameras, and moral panics.

Posted by Howard Wasserman on January 26, 2015 at 01:24 PM in Article Spotlight, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Submission angsting: Spring 2015

The submission window is just about to open and we await Redyip's semi-annual return-- some journals already have announced they are accepting submissions. So let the angsting commence.

If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.

Posted by Howard Wasserman on January 26, 2015 at 09:31 AM in Howard Wasserman, Law Review Review, Teaching Law | Permalink | Comments (21)

Sunday, January 25, 2015

The process of marriage equality, once again

This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.

Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they  framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.

With all that, calling everyone a bigot in a legal document is not particularly helpful.

Posted by Howard Wasserman on January 25, 2015 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, January 23, 2015

JOTWELL: Leong on Rush on geographic diversity

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Sharon E. Rush's Federalism, Diversity, Bias, and Article III (Missouri L. Rev.), which explores the role of geographic diversity in the federal judiciary.

Posted by Howard Wasserman on January 23, 2015 at 09:41 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 21, 2015

MDL consolidation and appealability

SCOTUS on Wednesday decided Gelboim v. Bank of America, holding that a district court order dismissing the sole claim in a single-claim action, consolidated with other actions for pretrial proceedings in multidistrict litigation, was a final and appealable order, even if claims remained in other actions included in the MDL. I have an opinion analysis at SCOTUSBlog. And I am happy to say I called this one.

Posted by Howard Wasserman on January 21, 2015 at 04:25 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, January 20, 2015

Joachim Prinz, American Jews, and the Civil Rights Movement

This article is a few years old, but I came across it, appropriately, on MLK Day. It is about Joachim Prinz, the most prominent Jewish leader in the Civil Rights Movement and the only Jewish leader to speak at the March on Washington (he spoke just before King). I was personally interested in the story because Prinz performed my Bar Mitzvah in 1981 at B'nai Abraham in Livingston, N.J., where he was Rabbi Emeritus. As students at the Hebrew School, we sort of knew about his involvement with King. But my friends and I were more interested in being outside playing baseball.

Posted by Howard Wasserman on January 20, 2015 at 09:52 AM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, January 19, 2015

Thurgood Marshall and the limits of the judicial role

Mike Dorf poses an interesting question: Why is Thurgood Marshall never in the conversation about civil rights icon--it is only MLK, with Macolm X as the only possible alternative. Mike offers three reasons, which all seem plausible.

I want to consider a fourth option--the limits of the judicial role. Marshall spent the last thirty years of his career on the bench (with a two-year break as SG, an unusual government-attorney position that is part advocate, part court advisor, part administrative official). As such, he was less of an "advocate" for civil rights than King was or than Marshall had been earlier in his career. While he was a great liberal voice from the Court, he was no longer an advocate. And he was deciding not only civil rights cases, but cases on many other subjects--some of which were at least indirectly about civil rights and racial equality (criminal procedure), others having nothing to do with them (for example, he wrote Shaffer v. Heitner). And even in that role, Marshall was hampered by the fact that by 1971 and certainly by about 1981, he was no longer regularly in the majority on many of these issues; he was a strong voice in dissent, but he, unfortunately, was not directly shaping the law.

Finally, consider Richard Posner's suggestion that Marshall's great strength was as a trial lawyer, not as an appellate judge/justice or as SG. In other, Marshall spent the last half of a sixty-year career playing to less than his stengths, thus weakening his influence. Perhaps had Marshall remained in a different role--while continuing to have the same success in that role (and admittedly huge if)--he might have been in an even-more exalted space in the civil rights pantheon.

Posted by Howard Wasserman on January 19, 2015 at 12:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Sunday, January 18, 2015

Sponsored posts, explained

You may have noticed a recent "sponsored post" on our feed, and there were some questions from our valued readers about it. We're happy to provide some information.

We were pleased to reach a sponsorship agreement with West in spring 2014. Occasional sponsored posts, written by prominent law professors, are part of that new relationship, and have appeared intermittently since last spring.

We welcome West on Prawfsblawg. But we should make clear that West provides the content of those posts. They do not necessarily represent the views of the other writers on Prawfsblawg, although their subject matter is consistent with this blog's conversation about law schools and legal education.

If you have any questions, please feel free to contact any of the permabloggers via email.

Posted by Howard Wasserman on January 18, 2015 at 02:31 PM in Blogging, Howard Wasserman | Permalink

Wednesday, January 14, 2015

Lubet on Chronic Fatigue Syndrome

At Faculty Lounge, Steve Lubet discusses living withMyalgic Encelphalomyelitis/Chronic Fatigue Syndrome (ME/CFS), a condition with which author Laura Hillenbrand (Unbroken) also lives and which she has talked about recently.

Posted by Howard Wasserman on January 14, 2015 at 12:31 PM in Howard Wasserman | Permalink | Comments (0)

JOTWELL: Tushnet on the Junior Fed Courts Workshop

The new essay on JOTWELL's Courts Law is a guest piece from Mark Tushnet (Harvard) on the Federal Courts Junior Scholars Workshop. Mark presented his comments at JOTWELL's Fifth Anniversary Conference back in the fall. He offers some interesting thoughts about that conference and about the proliferation of junior scholars conferences.

Our own Steve Vladeck began this program all the way back in 2008 and I had the privilege and pleasure of hosting back in 2011. It really is a great program that has taken on an amazing life of its own.

Posted by Howard Wasserman on January 14, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Tuesday, January 13, 2015

Guaranteed salary and understanding the Supremacy Clause

Bills have been introduced in Texas and South Carolina attempting to prevent courts from recognizing same-sex marriages, in part by controlling salaries and funding. The Texas bill prohibits any state or local government employee from recognizing, granting, or enforcing a same-sex marriage license, with anyone who does losing her salary; a separate provision extends this to state judges. The bill also requires the court to dismiss any constitutional challenge to the law and to require plaintiffs to pay fees. The South Carolina bill is similar--no recognizing, granting, or enforcing same-sex marriage licenses, no public funds or salaries spent for doing so, required dismissal of any challenges to the law, while also specifically prohibting the use of any public funds to enforce any court order (including, presumably, a federal court order) to issue a same-sex marriage license.

Obviously, neither bill has a remote chance of passing; trying to stop marriage equality is simply a fool's errand at this point. And there are too many constitutional defects to count. But I want to highlight a couple.

First, a shout-out to the unsung Article III protection--judges "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." Everyone focuses on life tenure as the great bulwark of judicial independence (or as a bad idea whose time has passed); there is less focus on guaranteed salary, even though, as these crazy bills show, it otherwise would be a prime target for a legislature angling to control constitutional adjudication.

Second, I have questioned Slate's Mark Joseph Stern before for the legal errors in his articles (I have no idea if he has a J.D.). Today, he argues that these bills are in "clear violation" of the Supremacy Clause by imposing a sanction on a judge who is just following federal law as declared by the Fourth Circuit (which includes South Carolina) and many, many federal district courts. But neither a federal court of appeals nor a federal district court binds a state court. A state court is free to ignore these decisions. And, at least as a matter of the Supremacy Clause, a state legislature is free to compel its courts to ignore those decisions (there may be other reasons the legislature cannot do this). So why make up reasons that are simply wrong.

Third, what would the Constitution of either state have to say, specifically about the provisions requiring state courts to dismiss challenges to these laws. During the Theresa Schiavo Controversy, the Florida Supreme Court adopted a principle very much like United States v. Klein as a matter of state separation of powers. These bills run afoul of Klein's idea that legislatures cannot tell courts how to decide cases, to the extent that principle applies to state governmental structures.

Posted by Howard Wasserman on January 13, 2015 at 05:50 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (11)

New permaprawfs

We are pleased and excited to announce that Daniel Rodriguez (Dean at Northwestern) and Richard M. Re (UCLA) have joined us as PermaPrawfs. Richard has been on an extended guest-blogging stint here since the summer, while Dan has been a past visitor. And both have done some great solo blogging elsewhere. So they both will provide great new voices to the Prawfs community.

Posted by Howard Wasserman on January 13, 2015 at 07:41 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, January 12, 2015

More on rotating Chief Justices

At CoOp last week, Gerard Magliocca asked whether it would be constitutional to shift away from the current system of a separately appointed Chief Justice in favor of a system of rotating Chiefs, either based on seniority (as on the Federal Districts and Circuits) or based on selection by thesitting Justices (as happens on some state supreme courts). I have used this question in Fed Courts, in the last days of the class when we discuss the theoretical stuff on congressional control over the courts. Edward Swaine (GW) considered the question in a 2006 piece in Penn Law Review, concluding that the present scheme of appointing/confirming one person to the position of Chief Justice of the United States was not constitutionally required and that Congress could change the manner of selecting a Chief Justice (the Constitution requires that there be a Chief Justice). I agree with Swaine on the constitutional point.

But is it a good idea? Gerard argues that a rotating system distributes the powers to preside and to assign opinions, which otherwise remain exclusively with the Chief or with the senior-most Associate Justice in the majority, possibly for quite awhile. And if the Chief and the senior-most Associate often disagree, the assignment power remains firmly in two sets of hands for a significant number of cases.* How might deliberations and decisionmaking change if there were more variance over time in the assignment power? How might oral arguments change if the presiding Justice changed more often?

(*) This would make an interesting empirical question, actually. In the past 40 years, we have had two such lengthy periods--1975-90 (Burger/Rehnquist as Chief, Brennan as seniormost Associate) and 1994-2005 2010 (Rehnquist/Roberts as Chief, Stevens as seniormost Associate). [Ed: I cut Stevens short, forgetting that he spent five additional years as senior associate after Rehnquist's death, with Roberts, a Justice with whom he often disagreed, as Chief.  This 2011 article explores how and how often Stevens exercised the assignment power as senior associate justice]

The counter-argument attaches to the idea that the Chief carries a unique connection, allegiance, and obligation to the "Supreme Court as an institution." This affects how the Chief performs administrative functions as the head of the entire federal judiciary--for example, by chastising Congress for insufficient funding and failure to fill vacancies, regardless of which party is in control. And it may carry into decisionmaking. Chiefs have cast surprising votes in cases that are atttributed, rightly or wrongly, to that loyalty and to an interest in protecting the Court's institutional legitimacy, even at the expense of their own jurisprudential preferences--people often point (again, rightly or wrongly) to Roberts upholding the individual mandate in NFIB or Rehnquist affirming the constitutional basis of Miranda in Dickerson. The concern is that someone serving only 6-8 years as Chief (the typical term for a lower-court Chief Judge) as part of longer service as a Justice will not feel that same institutional obligation, potentially at some cost to the Court as a body. Moreover, there is a sense that someone must "grow" into the Chief Justiceship and learn to perform well the various administrative and institutional functions, which takes more time than a rotating term would allow; the longer, permanent chiefdom is necessary to allow for that leaning curve.

Posted by Howard Wasserman on January 12, 2015 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, January 05, 2015

Merging systems in the wrong direction

I have written before that I have come to prefer a UK-style parliamentary system, in which the executive is guaranteed legislative majorities and we are open about the partisan connections between the executive and the legislature. But Keith Humphreys, blogging at the Reality-Based Community, discusses how the UK (where an election is coming in May) is, unfortunately, looking more like the US than the other way around.

First, the focus of the election is now on the prime minister candidates and their personalities and views, ignoring the connection between the party leader and the party-in-the-legislature. Second, there is an increasing preference for divided government, with voters moving towards divided government and coalition governments, in which mutliple parties have enough seats to be at the negotiating table and the major party is unable to govern as it wishes; Humphreys sees this as a departure from Britain's historic preference for "giving the other fellow a chance."

Posted by Howard Wasserman on January 5, 2015 at 04:51 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, January 03, 2015

The process of marriage equality, redux

I do not have the energy to provide background; SCOTUSBlog offers a nice analysis of what is happening in Florida, as an opinion by U.S. District Judge Robert Hinkle (N.D. Fla.) invalidating Florida's ban on marriage equality is due to take effect next Monday evening. I am simply going to link to a bunch of documents and ask whether anyone in the State of Florida has a clue about procedure, remedies, or jurisdiction.

First is a December memorandum from the attorney for the Florida Association of Clerks and Comptrollers stating, correctly, that Hinkle's a decision and injunction is binding only on the Washington County Clerk of Courts (named as defendant) and only as to the named plaintiff; all other clerks are not legally obligated to issue licenses and may, in fact, be prohibited by state law from doing so and subject to criminal penalties. (Slate's Mark Joseph Stern, somewhat losing it, labels the memo "bogus," "deceptive and borderline unethical," and "willfully misleading").

Judge Hinkle responded on Thursday with this order acknowledging that his injunction is as limited as the FACC lawyers suggested. But he then goes on to insist that "the Constitution requires the Clerk to issue" (italics in original) licesnes to other couples. Implicitly, that means the Constitution require all other clerks to issue licenses. And it reminds all clerks that other litigation may follow his ruling and that they may be subject to suit, injunction, and attorney's fees if they do not follow his ruling.

The FACC's lawyer responded that, in light of the new order (which it also interprets as threatening money damages, although the order says no such thing), all "clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle." Florida Attorney General Pam Biondi similarly responded: "This office has sought to minimize confusion and uncertainty, and we are glad the Court provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed."

Finally, the Orange County Clerk of Courts sought and received a state declaratory judgment; the state judge agreed that the state prohibition on SSM violates the Constitution (essentially adopting and incorporating by reference Judge Hinkle's opinion), that the clerk could rely on the federal decision, and would not be violating state law or be subject to criminal penalties if she issues licenses to same-sex couples once the Hinkle order becomes effective next Monday.

My coments on why this all is so insane after the jump.

The original memo from the FACC's lawyer had it right. The district court's injunction only requires the named defendant clerk to issue a license to the named plaintiff. There was no class of plaintiffs or defendants before the district court. There was no statewide officer enjoined to issue, or order the issuance, of licenses across the state. The district court's declaration that the SSM ban violates the Fourteenth Amendment is not binding or preclusive as to any non-party and is not binding on any other federal or state court. The memo is a bit overwrought in suggesting that a clerk is going to be prosecuted for issuing a license. But the basic point--the district court decision is nothing more than persuasive authority to all other couples and all other clerks--is correct.

None of this is new, of course. We have been discussing procedure underlying marriage equality since last summer, when, post-Hollingsworth, we were left with an incredibly (and possibly unlawfully) overbroad injunction in California and procedural wrangling about what happens next. But Judge Hinkle's original injunction is not so broad, as he acknowledges. So any non-party clerk remains free to deny a license in light of state law on the books; it then is on any couple wanting a license to sue and challenge the constitutionality of the denial and the state SSM ban, likely winning on the strength of the persuasiveness of Hinkle's opinion. This is all messy and inefficient, but that is how constitutional litigation works, at least short of a decision by SCOTUS or a class action.

So what to make of Judge Hinkle's supplemental order? It is either unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four. That everyone seems to be praising this order for "clarifying" things shows how just confused everyone is.

The italicized insistence that the Constitution requires the issuance of licenses by all clerks to all same-sex couples is nonsense. Yes, licenses are required by the Constitution, as interpreted by Judge Hinkle. But that interpretation is not the only one and it does not bind (or even necessarily influence) anyone not a party to that case. There is controversy enough over whether SCOTUS does/should get the last word on constitutional meaning and what the Constitution requires; there is no way that a single district judge could possibly have the last word, even within one state. But the supplemental order insists that is the effect of the original  decision--in essence, "I have announced what the Constitution means with respect to the Fourteenth Amendment and marriage equality and every clerk in the State of Florida is bound by that meaning I have identified (even if not subject to the injunction)." One district court opinion cannot be read to have that much binding effect, particularly on people outside of that judicial district and not subject to the court's jurisdiction or venue.

Moreover, since Article III courts cannot issue advisory opinions, it is logically impossible to separate the Constitution (as interpreted) from the injunction or to have the former apply more broadly than the latter. The only people who can be bound by the court's interpretation are those bound by its remedial order. And Hinkle concedes the narrowness of the original injunction.

Beyond that, the supplemental order does not tell us anything we did not already know (or should have already known). Any same-sex couple could have sued any county clerk (beside Washington County) at any time to invalidate the ban and, if successful, could have gotten an injunction and attorney's fees; Judge Hinkle's original decision would have been important binding precedent in that lawsuit, but nothing more. But the right of other couples to bring that suit does not emanate from Judge Hinkle or his order. And the threat of injunction and attorney's fees against a non-compliant clerk is a consequence of basic rules of constitutional litigation of which everyone should have been aware even without the supplemental order.

Nor should it be news that any clerk may (italics again Judge Hinkle's) follow that original ruling that the ban violates the Fourteenth Amendment. Of course a clerk may follow the ruling, for the same reason she could ignore it--absent injunction, preclusion, or binding precedent, every clerk retains the authority to decide her legal and constitutional obligations, unless and until her interpetation is overruled by a higher state official or a binding court decision. Otherwise, note the internal contradiction of the supplemental order--a clerk who agrees with him may follow the ruling, but a clerk who disagrees must follow the ruling.

Everyone is also reading the supplemental order to threaten money damages for any clerk who does not issue a license. I do not read the order as suggesting damages as a consequence. But even if Hinkle did threaten that, I do not see how any damages action could overcome qualified immunity--that it was clearly established that the Fourteenth Amendment required clerks to issue licenses to same-sex couples. There is no binding precedent on this in Florida; neither SCOTUS nor the Eleventh Circuit has spoken. We have a circuit split nationally (even if it is largely one-sided) and decisions from one federal and two state trial judges within Florida. I believe that banning same-sex marriage violates the Fourteenth Amendment. But no way is that conclusion clearly established, as that concept is currently understood. So damages are not remotely possible.

The only appropriate procedural move was by the Orange County Clerk of Courts, who got that state-court declaratory judgment. In essence, the state court established a state-court order that the SSM ban is unconstitutional and that the Orange County Clerk, as a party to the state-court action,is not bound by the state prohibition, is free to issue licenses to same-sex couples, and is now protected by an order of a court that actully had jurisdiction over her (which Judge Hinkle did not).

As a policy matter, I like where we end up: every clerk in the state is likely to issue marriage licenses to same-sex couples and the attorney general is not going to stop them. A mass ceremony is planned for just after midnight Tuesday in Broward County. And I am surprised that Florida, which hardly the leading edge on SSM, is not going to be one of the recalcitrant states dragged kicking and screaming to marriage equality by SCOTUS. Still, it would have been nice if everyone involved, including the federal judge, had a better sense of the underlying processes.

Posted by Howard Wasserman on January 3, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Thursday, January 01, 2015

Happy New Year and Rotations

Happy New Year. As Paul mentioned, for obvious reasons, 2014 was a difficult year for all of us at PrawfsBlawg. But we appreciate the support we have received from all our readers, commenters, and guest bloggers (past, present, and future). And we are honored that you all continue to come to this blog, engaging in the public conversation and allowing us to continue, in some form, what Dan started here.

This spring marks PrawfsBlawg's tenth anniversary and we hope to do some special programming to mark that point. Please feel free to email any of us with particular ideas about how to mark the anniversary--republishing the first posts or some of our favorite posts, running a series of new posts on popular Prawfs topics, publishing a symposium on Dan's work, or anything else.

Thanks to our December guests--Josh Douglas, Franita Tolson, Steven Morrison, and Kelly Anders; they may be sticking around for a few extra days and posts.

And now to get 2015 started. For January, we are pleased to welcome back Ann Marie Marciarille (UMKC) and Garrick Pursley (Florida State), and to welcome first-time GuestPrawfs Dan Filler (Drexel), Paul Gowder (Iowa), and Eugene Mazo (Wake Forest). And, as always, we are forever looking for monthly guests, so let us know if/when you would like to play.

Posted by Howard Wasserman on January 1, 2015 at 09:43 AM in Blogging, Howard Wasserman | Permalink | Comments (1)

Wednesday, December 31, 2014

A shandeh fer der politsey

There is a Yiddish phrase, "a shonder shandeh* fer der goyem," which colloquially means that when a Jew misbehaves, it confirms all the worst beliefs that the non-Jewish world has about the Jewish people, and thus is "bad for the Jews." The title of this post is a riff (not linguistically quite accurate, admittedly, but it sounds good when you can bring the Yiddish) on that. One theme to emerge from recent controversies over police abuses is that the public position of the police is to not experience or aknowledge that feeling of shame when one of their own does something wrong. The "thin blue line" remains forever unified and will not criticize even the worst behavior; there is no public sense that good cops do (or should) despise cops who do wrong.

(*) Several readers questioned my original transliteration; in deference, I have changed it to the more common one.

And that has further manifested in a sense that any criticism of even a misbhaving cop is an attack on all cops; any failure to support all cops is necessarily anti-cop; any criticism of some police or police tactics is necessarily anti-cop; and any suggestion that systemic problems affect police-public relations (especially as to African-Americans) and that the police are in any way responsible for those problems is necessarily anti-cop. Look no further than the Mendocino H.S. basketball controversy,** where some have suggested that "I Can't Breathe" t-shirts, criticizing NYPD Officer Pantaleo and the Staten Island grand jury, are insensitive to the family of a Mendocino County sheriff's deputy who was killed in the line of duty, although I cannot imagine what one has to do with the other. Or the suggestion by the Cleveland police officers' union that such t-shirts insult all cops everywhere.

(**) Which got more complicated. After the host school backed down on its t-shirt ban, the Mendocino coach prohibited his players from wearing the shirts in warm-ups for Tuesday's game. When the Mendocino superintendent overruled that decision, the coach refused to coach. The players (including the one player who did not play on Monday under the host school's prohibition) did not wear the shirts on Tuesday. Members of the Mendocino girls' team, who were not playing in the tournament, sat in the stands wearing the shirts.

Anyway, maybe this is another example of the militarization of police departments--you can't criticize the military without being labeled a traitor, either.

Posted by Howard Wasserman on December 31, 2014 at 10:45 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Saturday, December 27, 2014

Gutless educational administrators and the First Amendment, part 6577 (Updated)

This is pathetic and really depressing. (Note the title is changed to reflect that the public face of the decision is not the school's AD, but the school's principal, which just makes this even more depressing).

First, we bemoan about how uninvolved and politically disinterested "kids today" are, then we systematically shut down their efforts to be involved or to take a stand.

Second, note the administration's move here--"we are too small to keep the peace 'should someone get upset and choose to act out,' so we are just going to stop people from speaking." This is a preemptive heckler's veto--In the ordinary heckler's veto, government stops the speaker when the crowd gets unruly and actually threatens violence; here, the government is stopping the speaker with no basis to know or reason to believe that anyone will get unruly, essentially by pleading poverty. Of course, government never has enough resources to protect everyone should someone decide to act out (someone will get hurt before police/security can respond). So, taken to its extreme, no one should be able to say anything that (government finds) controversial or objectionable, because government never can guarantee complete safety.

Third, while high schools are different and administrators have much greater control over expression on school grounds, this seems a step too far, particularly as to fans in the stands. Is an "I Can't Breathe" shirt really more likely to cause a disruption than an armband in the middle of Vietnam?

Fourth, given the insistence that "all political statements" be kept away from the tournament, should we assume that the national anthem will not be sung?

The tourney begins Monday. No indication that the players or potential shirt-wearing fans are running to court to even try to get an injunction.

Update: Some more details in this story. Before explaining the preemptive heckler's veto, the principal of the host school--a professional educator--indicated that she "respected the Mendocino teams 'for paying attention to what is going on in the world around them.'" Apparently, however, this professional educator does not respect them enough to not punish them for paying attention to what is going on in the world around them. Irony really is dead.

The Huff Post story also indicates that the father has been in touch with the ACLU and is hoping to hear back after the holiday. Someone in the N.D. Cal. is going to be handling an emergency TRO Monday morning.

Further Update: Per a commenter: The school district relented following negotiations with an attorney for one of the players--players and spectators will be permitted to wear the t-shirts, so long as they "do not cause any serious problems at the tournament." Of course, framing it that way walks us right back to the heckler's veto--if I object to the shirts, my motivation is to cause a disruption, which would then prompt the school district to do what I want and stop people from wearing them.

The Mendocino HS girls' team will not be able to play; since too few players accepted the no-t-shirt condition last week, the tournament invited a replacement team. This is where a § 1983 damages action would come in handy. Unfortunately, there is no way a court would find it clearly established that banning these shirts was unconstitutional, which would entail a parsing of Justice Alito's concurrence in Morse.

Posted by Howard Wasserman on December 27, 2014 at 10:00 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (8)

Finding what is emotionally charged

Mike Dorf posted his most recent Con Law exam (he writes great exams).  The question touches on mandatory vaccinations and the rights of those who oppose or reject vaccinations, religious accommodations, non-religious accommodations, and the possibility of genetic and biological differences among different ethnic groups. Plus, compulsory broccoli consumption.

Emotionally charged? Likely to offend? Insensitive to some sub-section(s) of students? Otherwise inappropriate as an exam question?

Posted by Howard Wasserman on December 27, 2014 at 09:14 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, December 23, 2014

Teaching emotionally charged subjects, ctd.

The conversation, promptly most prominently by Jeannie Suk's New Yorker piece, is turning to trigger warnings, at least according to this piece from Slate/Inside Higher Ed. Shorter version from most of the people interviewed: "Of course we should teach sexual assault and other sexually related subjects, but let's be sensitive." "Sensitivity," among many of those interviewed, seems to entail some combination of not cold-calling or providing trigger warnings. Note that the conversation is not only about sexual assault; it also is about "discrimination," which means, if taken seriously, a trigger warning for any Con Law, Fourteenth Amendment or Employment Discrimination course.

Posted by Howard Wasserman on December 23, 2014 at 07:26 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Thursday, December 18, 2014

The '60s, ctd.

Responding to how law schools handled testing on emotionally charged issues during the '60s, an alert reader points me to Harvard Law School's exam database, which seems to go back to Langdell.

In spring 1970,* Professor Cox's (presumably Archibald) Con Law exam (the link above takes you directly to this exam, beginning on p.335) asks whether a Black Panther can be prosecuted for criminal syndicalism for a speech discussing reasons to "tear down" and "burn" the town and how three men can do themselves. The hypo is fictionalized, but it is pretty clear who and what the prof is getting at and why (just as a fictionalized version of Michael Brown and Louis Head would not have covered anything). This exam was given two weeks after two students were killed and twelve others wounded when Jackson, MS police opened fire on an anti-war protest consisting of about 100 Black students).

* Yes, 1970 was still "the '60s"; the '70s did not begin until Watergate.

Another Con Law exam that same year, this from Prof. Kaufman (beginning on p. 341 in the link), asked students whether, as clerk to a court of appeals judge, they would recommend joining an opinion affirming rejection of a Fourteenth Amendment challenge to a municipality closing all its swimming pools. It later asked students to evaluate the constitutionality of a federal statute permitting students to transfer out of segregated schools and requiring public payment of transportation expenses for students to attend other schools.

So we have the Black Panthers and incitement during a civil rights protest, state efforts to avoid desegregation in places of public accommodation, and federal efforts to ensure integration, including bussing. Surely these were no less controversial or emotionally charged in May 1970 than Ferguson/police shootings is today. In fact, the pace of legal change (as opposed to just social disruption) was significantly greater then compared with now, so the times were even more unstable and even more likely to draw visceral reactions from students of varying political and identity stripes directly or indirectly affected by these issues.

Were these questions insensitive or inappropriate? One could argue that because there were far fewer students of color at Harvard in 1970 compared with at most schools today, there was less need for sensitivity to possible disparate emotional impact. Or, more precisely, less understanding of the need for sensitivity; Obecause we are more aware and more understanding of these issues and how they affect different students differently, we should be more willing to take that into account in drafting exams. In other words, we should not in 2014 emulate what law schools did int the benighted 1970s.

Posted by Howard Wasserman on December 18, 2014 at 05:09 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

New Law Teachers' Workshop at SEALS

This year, in addition to the terrific New Scholars' Colloquia (early-morning panels of papers from new scholars, with each presenter assigned a mentor/reviewer), the Southeastern Association of Law Schools (SEALS) will be offering a New Law Teachers’ Workshop.  It will include a variety of panels designed to prepare the new (or newer) law professor for his/her new career. This also is in addition to the Prospective Law Teachers' Workshop, which does mock job talks and interviews for people (usually VAPs/Fellows) about to his the market.

Details (courtesy of SEALS macher Russ Weaver) after the jump.

Several things to note about the SEALS workshop.  First, it is relatively inexpensive ($150 registration fee for faculty from member schools and $175 fee for faculty from non-member schools which is a fraction of the cost of other comparable programs).  Second, in addition to being able to attend the New Law Teachers’ Workshop, attendees will have access to the entire SEALS meeting, including a rich variety of programs on pedagogy, research, publishing opportunities, etc., (see below) as well as programs on an array of substantive topics.  Included in the general SEALS programming are specific programs designed specifically for legal writing and clinical faculty.  Finally, and again for the same $150 fee, faculty from institutional member and affiliate schools will have the opportunity to participate in the New Scholars Workshop.  This latter workshop allows young faculty to present a work in progress, to have a mentor, and to receive feedback on their scholarly projects.

Listed below is the rich tapestry of programs available to SEALS attendees.  For this particular workshop, we will include the following panels:

 

Teaching Students Born In the Digital Age
As students get younger, and we professors age, the phrase “mind the gap” becomes increasingly pertinent. The panelists have ideas on how to connect with the newest generation to attend law school, from differing uses of mobile learning, such as pod casts, to using the Internet and multimedia in the classroom, videos, flipping the classroom, new technologies, and much more.

    Speakers: Professor Brannon Denning, Samford University's Cumberland School of Law; Professor Michael Rich, Elon University School of Law; Professor Maggie Thomas, Louisiana State University Paul M. Hebert Law Center; Professor Laurie Zimet, University of California, Hastings, College of the Law

 

Becoming a Productive and Fulfilled Scholar. (Panel and Breakout Groups).
This panel of experienced scholars will discuss a variety of topics, including what a “scholarly agenda” is and how to develop one; alternate routes to tenure and self-fulfillment; using colleagues and research assistants in productive ways; the art or luck of publishing “well;” the importance of presenting at conferences; and how to enjoy, not dread, the scholarly process. The discussion will include the “nuts and bolts” of writing – where, when, what, and why. The panelists will then lead a breakout group to discuss these topics with participants in more depth in a roundtable format.

    Moderator: Professor Colin Marks, St. Mary's University School of Law

    Speakers: Professor Linda D. Jellum, Mercer University Law School; Professor Ronald Krotoszynski, The University of Alabama School of Law; Professor Nancy Levit, University of Missouri-Kansas City School of Law

 

Discussion Group: Advice for Newer Law Professors from Law School Deans
Building on the success of last year, this Discussion Group will bring together a panel of experienced deans to give their perspective on issues common to newer professors. These include things like juggling multiple service requests, navigating faculty meetings, setting reasonable expectations of availability with students, and evaluating advice from all the many people who will want to provide it. The discussion group will have ample opportunity for individual questions and for breaking into smaller groups.

    Moderator: Professor Jennifer Bard, Texas Tech University School of Law

    Discussants: Dean William Adams, Deputy Managing Director, American Bar Association, Section on Legal Education; Dean Luke Bierman, Elon University School of Law; Dean Nora Demleitner, Washington and Lee University School of Law; Dean Daisy Floyd, Mercer University Law School; Dean Jon Garon, Nova Southeastern University, Shepard Broad Law Center; Dean Richard Gershon, The University of Mississippi School of Law; Dean Danielle Holley-Walker, Howard University School of Law; Dean Ian Holloway, Calgary Law School; Dean Alicia Ouellette, Albany Law School; Professor Elizabeth Pendo, Saint Louis University School of Law; Dean Christopher Pietruszkiewicz, Stetson University College of Law

 

Creating Successful Methods of Assessment, Including Essays and Multiple Choice Questions
The panelists for this session will explore formative and summative assessment tools, especially in light of the future implementation of A.B.A. Standard 302, Learning Outcomes. The tools include writing a meaningful exam and creating efficient formative assessments during the semester. Topics will include the basic mechanics of exam-writing, constructing useful formative tools, and related matters such as cultural implications, the relevance of disabilities, and the rationales behind open and closed book exams.

    Moderator: Professor Joel Mintz, Nova Southeastern University, Shepard Broad Law Center

    Speakers: Professor Doug Chapman, Elon University School of Law; Professor Michael Coenen, Louisiana State University Paul M. Hebert Law Center; Professor Eang Ngov, Barry University, Dwayne O. Andreas School of Law; Professor Nancy Soonpaa, Texas Tech University School of Law

 

Designing Effective First Year Courses and Upper Level Elective Courses
The panelists, who have spent many years designing effective courses and seminars,, will discuss syllabus design, how to make decisions about the allocation and amount of coverage, the selection of texts and supplemental reading material, the amount of reading to assign, setting outcomes for the course or seminar, and overall teaching philosophy. Each panelist will then lead a breakout group to discuss these issues in-depth with participants in a roundtable format.

    Moderator: Professor Susan Klein, University of Texas School of Law

    Speakers: Professor Kathy Cerminara, Nova Southeastern University, Shepard Broad Law Center; Professor Howard Katz, Elon University School of Law; Professor Ben Madison, Regent University School of Law

 

Putting Your Teaching Philosophy to Work In the Classroom
The panelists, all dedicated and excellent teachers, will discuss their teaching philosophies and the differing methods they use to implement those philosophies. The panelists also will discuss concrete issues, such as the role of different learning styles, the best methods of controlling the classroom, time management, coverage of material, and teaching respect, professionalism and cultural awareness in the classroom. Each panelist will then lead a breakout group to discuss these issues with participants in depth in a roundtable format. Some of the breakouts will focus on nuts and bolts; other groups will pursue broader issues such as teaching philosophy.

    Speakers: Professor Enrique Armijo, Elon University School of Law; Professor Olympia Duhart, Nova Southeastern University, Shepard Broad Law Center; Professor Susan Kuo, University of South Carolina School of Law; Professor Connie Wagner, Saint Louis University School of Law

Posted by Howard Wasserman on December 18, 2014 at 10:22 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, December 17, 2014

The '60s

Paul rightly links the request by some students to delay exams in light of events in Ferguson, New York, Cleveland, etc., to the '60s, when students were similarly protesting about the war, civil rights, etc.

Let me ask a different question that relates back to the issue of exams and coverage on hot-button subjects and contexts: How did professors handle discussing and testing on the subjects that ruled the day 40-50 years ago and how did students react? After all, just as students then were similarly too busy protesting the war to deal with exams, they were also similarly emotionally invested/triggered by these issues (after all, many of them were a student deferrment away from maybe fighting in the jungle). So did profs feel free to ask questions about protesters and demonstrators getting arrested? What about the constitutionality or wisdom of US conduct in Vietnam or Cambodia? What about the constitutionality of the Voting Rights Act or C/R/A of 1964? And did students object to such questions when they appeared on tests? And if not, what should we make of that difference?

Posted by Howard Wasserman on December 17, 2014 at 07:21 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Suk, "The Trouble with Teaching Rape Law"

Adding to the conversation about teaching and testing on controversial or emotionally charged subjects, here is Jeannie Suk (Harvard) this week in The New Yorker. (H/T: My FIU colleague Eric Carpenter). Of course, sexual assault fits into the first category, in that the subject itself is emotionally charged regardless of the context in which it is presented or tested. Obviously, I share Suk's conclusion that it is too bad that we are moving in this direction--and that it is bad not only for law students, but also for law and legal reform.

Posted by Howard Wasserman on December 17, 2014 at 09:24 AM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Tuesday, December 16, 2014

But can I wear my "Fuck the Draft" jacket?

From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:

No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.

Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?

Posted by Howard Wasserman on December 16, 2014 at 04:48 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Dodson on Twombly Creep

The following is by Scott Dodson (Hastings):

Yesterday’s Supreme Court’s opinion in Dart Cherokee held that a notice of removal need not be accompanied by evidence of the amount in controversy in a CAFA-removal case. The Court split 5-4 on the nerdy question of whether the Court could even review the issue itself because the Court of Appeals declined, in its discretion, to hear the appeal from the district court. That latter issue got quite a bit of play at oral argument, and coverage of the opinion’s resolution of that issue has overshadowed the Court’s decision on the merits, which pretty much everyone—myself included—thought fairly obvious.

But there’s something funny, and potentially important, in the merits part of the decision that people seem to be overlooking.

Section 1446(a), which sets the standards for a notice of removal, requires the defendant to file a notice “containing a short and plain statement of the grounds for removal.” This language mirrors Rule 8(a)(1), which sets the standards for pleading the jurisdictional basis for a claim filed in federal court, requiring a complaint to provide: “a short and plain statement of the grounds for the court’s jurisdiction.” The parallel language is not coincidence. In drafting the removal standard, Congress meant to borrow and incorporate the liberalized pleading standard from Rule 8(a)(1), which contains the identical language “a short and plain statement of the grounds for,” and focuses on allegations of jurisdiction. Removal, after all, is concerned primarily with jurisdiction rather than the merits of the claim.

The Court has interpreted these standards before. For jurisdictional allegations, both in cases filed in federal court and in cases removed to federal court, the amount-in-controversy alleged in good faith by the plaintiff controls unless contested by the defendant. Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 276 (1977); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938). Thus, the standard for a “short and plain statement of the grounds for” the jurisdictional allegation of the amount in controversy for diversity jurisdiction is “good faith.”

This standard of a good-faith allegation leaves no room, at least prior to contestation by the defendant, for an evidentiary requirement. Dart was surely correct, then, in holding that a notice of removal requires no evidence beyond the good-faith allegation of the jurisdictional amount.

But, oddly, the Court did not phrase the question that way. The opinion sets the question presented a somewhat different way, with my emphasis added:

To assert the amount in controversy adequately in the removal notice, does it suffice to allege the requisite amount plausibly, or must the defendant incorporate into the notice of removal evidence supporting the allegation? That is the single question argued here and below by the parties and the issue on which we granted review. The answer, we hold, is supplied by the removal statute itself. A statement “short and plain” need not contain eviden­tiary submissions.

 The answer is correct: A “short and plain statement,” at least without other requirements, need not contain evidentiary submissions. But the italicized language is perplexing. It suggests that, though evidence is not required, the standard does require that the removal notice allege the requisite amount “plausibly.”

And, later, the opinion concludes (my emphasis added): “In sum, as specified in § 1446(a), a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional thresh­old. Evidence establishing the amount is required by §1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s allegation.” Again, last sentence is clearly correct. But the Court also seems to hold that the removal standard requires a “plausible” allegation of the amount in controversy.

Where in the world did the insertion of the “plausibility” standard come from? The Court offers neither citation for it, nor textual support for it, nor reasoning for it. Further, the Court’s reasoning repeats the proper standard of “good faith.” What’s up with plausibility?

The answer must be the infectious case Twombly, which established a new pleading standard of plausibility under Rule 8(a)(2) in federal court. This plausibility standard had never before been a part of any pleading regime; rather, Twombly imported it from the substantive antitrust context.

But importing plausibility to removal makes little sense. For one, removal already has a perfectly fine standard that has worked for 75 years: good faith. It is possible that the Court thinks that “plausible” is a useful, clarifying synonym for good faith. But it’s far from obvious that “good faith” and “plausible” are synonyms in this context. And there’s no indication that the standard of “good faith” was unclear (as if the gloss of “plausibility” would be helpfully clarifying).

For another, Twombly grafted plausibility onto Rule 8(a)(2), which has a different standard from either the removal standard or the Rule 8(a)(1) standard. True, all three standards use the same preliminary language requiring “a short and plain statement.” But the removal and Rule 8(a)(1) standards go on to use the phrase “of the grounds [for jurisdiction],” while the merits pleading standard of Rule 8(a)(2) uses the different language “of the claim showing that the pleader is entitled to relief.” In developing the “plausibility” standard, Twombly focused on Rule 8(a)(2) and its unique concluding language: “The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’” Twombly’s textual support for the plausibility standard—such as it is—has no bearing on jurisdictional allegations under Rule 8(a)(1) or § 1446(a).

For yet another, the rationale of Twombly maps poorly onto plausibility for removal allegations. Twombly foisted plausibility on merits allegations to guard against excessive discovery costs imposed on defendants at the behest of an implausible claim for relief: “Probably, then, it is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no ‘“reasonably founded hope that the [discovery] process will reveal relevant evidence”’ to support a . . . claim.” Removal, of course, merely shifts the forum; discovery cannot be avoided simply by defeating removal. And, in removal, the notice is filed by the defendant, the putative beneficiary of the plausibility standard. Applying the plausibility standard to removal turns Twombly on its head.

So, in Dart, it appears that, without citation or, frankly, any reasoning at all, “plausibility” has snuck in to yet another place where it doesn’t belong: removal. If so, this opens the door to arguments that Twombly’s standard is even more broadly applicable than previously thought.

Posted by Howard Wasserman on December 16, 2014 at 04:28 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (5)

Monday, December 15, 2014

Pfander on Dart

SCOTUS on Monday decided Dart Cherokee Basin Operative Co. v. Owens; the Court held that a notice of removal need only contain a short and plain statement of the amount in controversy and evidence is necessary only if the plaintiff contests the amount. It was a 5-4 decision, with Justice Scalia, joined by Justices Kennedy and Kagan and in part by Justice Thomas, in dissent, arguing that the Court lacked authority to review a court of appeals summary denial of discretionary review of a remand order. Justice Thomas also filed a separate dissent.

James Pfander and Daniel D. Birk (Northwestern) have a piece called Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisidction (Yale L.J., forthcoming); Dart fits with some of what they wrote there (see, especially, pp. 27-28 and 79-80). Jim emailed the following (posted with his permission):

Dart serves as a nice illustration of the work that a construct of non-contentious jurisdiction can do in simplifying the exercise of jurisdiction over some uncontested matters.  As you know, the problem in Dart arose from the one-sided and discretionary application for appellate review of the remand decision.  Justice Thomas, echoing a position first articulated by Justice Scalia in Hohn v. United States, argued that the petition in Dart was not a “case” in the appellate court and was therefore not a matter within the Court’s cert jurisdiction.  There were no adverse parties joined and nothing was contested.

It’s here that the construct of non-contentious jurisdiction can help.  If one recognizes that federal courts have long presided over uncontested applications for the certification or recognition of a claim of right, so long as they require the exercise of judicial judgment (as Brandeis explained in the leading case, Tutun v. United States), then the treatment of ex parte applications for discretionary review (as in Hohn and Dart) presents no real mystery.

Posted by Howard Wasserman on December 15, 2014 at 08:22 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, December 14, 2014

Promissory estoppel in emotionally charged contexts

In searching for a line on controversial or emotionally charged exam questions, it may help to think about three distinct ways those contexts can tie into and affect a question:

1) Testing on a legal topic that is part of the course curriculum and is inherently emotionally charged, regardless of the factual context in which you place it. This includes pretty much all of the "what about this" examples that Eugene and I (in comments to my earlier post) offered--testing on the validity of same sex marriage bans or affirmative action or circumcision bans, questions involving sexual or racial harassment in employment, rape shields, campus sexual assault, hate speech, limiting immigration, etc.

2) Testing on a legal topic that is part of the course curriculum where the question arises in some emotionally charged context and the context affects the analysis of the topic. The Ferguson/Incitement question falls here. Incitement is obviously a core part of a First Amendment class; the context and the details of Ferguson are essential to the First Amendment analysis. Asking in my Civil Rights class whether NYPD Officer Daniel Pantaleo is entitled to qualified immunity in a § 1983 lawsuit by Eric Wilson's widow also would fall here.

3) Testing on a legal topic that is part of the course curriculum where the question arises in some cemotionally charged context but the context is more-or-less irrelevant to the analysis of the topic. In this category would be a promissory estoppel question based on the Steven Salaita case (discussed here, here, here, and elsewhere). The emotional charge here comes from competing views over whether Salaita is a victim of an academic-freedom-violative witchhunt for having the wrong views on Israel and Palestine or is instead an unreconstructed anti-Semite whose tweets are undeserving of academic freedom. But none of that has anything (or little) to do with his promissory estoppel claim.

So where does this framework leave us? Category # 1 presents the easiest case--students must be able to grapple with and analyze these questions and we have to be able to test on them. And that does not change if we put the question into a real-world factual context or not. So, for example, if I want to test on hate speech regulation, I should be able to put it in the context of nooses displayed on a a real college campus.

Category # 3 presents the hardest case, because the controversial context can seem most like a provocation. It thus is especially susceptible to the arguments that either a) it is unfair, unnecessary, and too hard for some  students to fight through the offense or distraction to get at the legal question or b) if you insist on using Salaita, you can bowdlerize his "crime" to somethinions are beneficial in g other than tweets and views that may be seen as anti-Semitic or that may anger people on one side or the other of the Israel/Palestine question. I would suggest that Category # 3 questions are important to showing the legal side to current events and in making a subject relevant to the real world. But this category also leaves us the most flexibility, as we can give a Salaita question without quoting his texts or detailing his viewpoints (which, again, have nothing to do with the estoppel claim).

Category # 2 is obviously somewhere in the middle, coming closer to # 1 or # 3 depending on the question, the subject, and the circumstances. For example, the Salaita case may demand a different answer in an Education Law or First Amendment class testing on academic freedom.

I still believe all three should be fair game for both class discussion and for exams/essays. Lawyers must not only "get their lawyer on" (as a commenter on a prior post put it) as to the topic, but also as to its application. But for those who want to try to draw some distinctions and workable lines, this may be a place to start the conversation.

Posted by Howard Wasserman on December 14, 2014 at 09:31 AM in Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (1)

Friday, December 12, 2014

Procedure week at SCOTUS

I have recaps at SCOTUSBlog of this week's oral arguments in Gelboim v. Bank of America on finality in MDL cases and in United States v. Wong/United States v. June on the jurisdictionality of the FTCA's limitations periods.

I do not predict an outcome in either recap and I usually am bad at predicting these things. But I will go out on a limb: The Court reverses in Gelboim and holds that a judgment disposing of all claims in one action within an MDL is a final judgment. The Court affirms in both Wong and June and holds that the FTCA limitations periods are non-jurisdictional and subject to equitable tolling. (Apologies in advance to all three attorneys if I just jinxed your cases).

Posted by Howard Wasserman on December 12, 2014 at 10:56 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Much ado?

[Update: Eugene Volokh, Golstein's UCLA colleague, weighs in. He and I are in lockstep agreement (as always, he says it better than I did) about the need for law students to learn how to push through emotional investment and the seemingly boundless scope of the objections being leveled here. He adds two important points: 1) He gives the full question, which was much more detailed and provided students with the relevant facts and 2) Goldstein was not pressured by the administration to discard the question.]

Prof. Robert Goldstein at UCLA asked the following question on his First Amendment exam:

Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision.

And outrage has resulted. Elis Mystal at ATL says Goldstein was asking students "to advocate for an extremist point that is shared by only the worst people in an exam setting," akin to making students "defend Holocaust deniers or ISIS terrorists." Goldstein apologized (Mystal has the text of his note to students) and is disregarding the question, saying the subject is "too raw" to be useful as an evaluative tool.

But what is really wrong with the question? I already have argued that Louis Head (Brown's stepfather) did not commit incitement as understood in Brandenburg, Hess, and Claiborne Hardware. Nevertheless, this seems like a legitimate question to ask a First Amendment class, one that ties legal education into the current world. One of the things I tell my students is that having a legal education means you inevitably look at everything through a legal lens. So why not use significant current event that raises a legitimate legal issue as a way to teach the issue? And the question did not require anyone to take or defend any particular position, much less one equivalent to Holocaust denial; it said to write a memo on the constitutional merits, which plainly leaves room to argue that a prosecution could not constitutionally be brought (which, again, I believe is the "correct" First Amendment answer).*

* If there is a defect in the question, it is that it assumes a detailed level of knowledge of what happened on the night of the grand jury announcement and when Head made his statements, all necessary for the Brandenburg analysis.

Does that much turn on requiring the memo to the DA? (Mystal seems to think so, hightlighted in his responses to commenters on his ATL post.) Does advising the DA mean the student only can say that the First Amendment would not be violated and that a prosecution is permissible--couldn't they also write  "no, you will be violating the First Amendment if you try to bring this prosecution, remember your obligations to do justice"? Would we not be having this conversation if students had been asked to write a memo for a criminal defense lawyer or for the ACLU figuring out whether they have a meritorious constitutional defense against any prosecution?

I did not use any Ferguson questions on my Evidence exam this semester, mainly because I used the events (especially the convenience-store video and the alleged theft) in class discussions to illustrate character and other acts. But I never would have thought twice about asking such a question, or about putting the students in the position of having to argue that such evidence is admissible in any prosecution (which, ironically, would have put them in the position of the defendant in that case).

Posted by Howard Wasserman on December 12, 2014 at 08:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (24)

Thursday, December 11, 2014

Video and public opinion

William Saletan at Slate reports on a recent study showing that more whites believe the Michael Brown grand jury was right but the Eric Garner grand jury was wrong. Saletan argues it is evidence, not race, that explains the difference--the "quantity, quality, and clarity of evidence differed between the two cases," namely the presence of "unflinching" video of Garner's death.

This is an important aspect of video evidence. It is not only what video can do in criminal and civil litigation. Video also plays a role in the public conversation over a particular incident or event, which in turn may affect more official responses, both in and out of court. Certainly that video will provide the key push if DOJ decides to pursue a civil rights prosecution in the Garner case.

Posted by Howard Wasserman on December 11, 2014 at 09:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

JOTWELL: Mulligan on Preis on causes of action

The new Courts Law essay comes from Lou Mulligan (Kansas), reviewing Jack Preis, How Federal Causes of Action Relate to Rights, Remedies, and Jurisdiction (Fla. L. Rev.) (forthcoming). Jack's article is terrific (it will be an essential piece if/when I return to writing about jurisdictionality) and so is Lou's review.

Posted by Howard Wasserman on December 11, 2014 at 05:04 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 09, 2014

SCOTUSBlog Preview: Jurisdictionality and the FTCA

I have a SCOTUSBlog preview of tomorrow's arguments in United States v. Wong and United States v. June, which jointly consider whether the timing requirements for filing claims under the Federal Tort Claims Act are jurisdictional or procedural and whether they are subject to equitable tolling.

Posted by Howard Wasserman on December 9, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, December 08, 2014

Body cameras and and predictive analysis

Andrew Ferguson (UDC) argues at HuffPost that police body cameras can be used to track smaller, more routine police-citizen interactions that might be predictive of future, more severe wrongdoing by some officers. Worth a read.

Posted by Howard Wasserman on December 8, 2014 at 06:43 PM in Article Spotlight, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Another police video produces confusion

Wow. It does appear that an FBI civil rights investigation still is ongoing (the mayor's claims nothwithstanding) and a § 1983 surely will follow. But this suggest the key framing of the two limits on video (and thus of body cameras): 1) Video is not certain, so everyone (courts, officials, and the public) errs when elevating video over all other evidence (call this the Scott/Plumhoff issue), but 2) What video says to you is not the same as what it says to someone else (call this the Dan Kahan issue).

This means we should not necessarily be surprised by the Eric Garner grand jury or by Hammond's mayor. They simply saw something different on that video than I (and many other people) did.

Posted by Howard Wasserman on December 8, 2014 at 03:48 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

SCOTUSBlog Preview: Finality and MDL

I have a SCOTUSBlog preview of tomorrow's arguments in Gelboim v. Bank of America, which considers whether a decision dismissing all the claims in one action, where that action has been consolidated for pre-trial purposes with other still-pending actions through multi-district litigation, is a final and appealable order.

Posted by Howard Wasserman on December 8, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, December 07, 2014

Why it's impossible to regulate racist speech

Too often, the people doing the regulating do not (or cannot) get humor and satire. Latest case in point: the English Football Association has brought "charges" against star player Mario Balotelli (who is Italian, of Ghanaian descent) over an Instagram post of the picture "Dont' Be Racist," which talks about how multi-ethnic and non-racist Mario is by reference to all the ethnic stereotypes he embodies.

In my view, it's pretty funny. But the FA says Balotelli violated a prohibition on "abusive and/or insulting and/or improper," aggravated by "reference to ethnic origin and/or color and/or race and/or nationality and/or religion or belief." I posted the picture after the jump. Is it possible to sensibly see this as anything other than joke, reappropriating stereotypes to undermine them? Is this really abusive or insulting? Or is this simply what happens--when you try to regulate words, context inevitably gets lost.

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Posted by Howard Wasserman on December 7, 2014 at 10:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (9)

Friday, December 05, 2014

SCOTUS takes license plate case

SCOTUS (finally) granted cert to decide whether the slogans and messages on license plates ("Live Free or Die", "Choose Life", "Save the Manatee") constitute government speech or a forum for private speech (thus subject to limits on viewpoint discrimination). Although I never got around to writing about it, these cases have been percolating since I was still clerking. The case comes out of the Fifth Circuit and involves Texas denying a specialty plate to the Sons of Confederate Veterans, which would have included a Confederate flag. I always have viewed the slogans as government speech and the plate number as the speech of the vehicle owner. But this will give everyone a chance to discuss Wooley, one of the Court's underrated First Amendment decisions.

Posted by Howard Wasserman on December 5, 2014 at 04:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Thursday, December 04, 2014

Prosecuting police--the role of the grand-jury pool

Alexi Lahav (U Conn) shares this op-ed by Ilaan Maazel suggesting reforms in policing police misconduct, including body cams (while recognizing they are not a panacea) and having all prosecutions handled by an independent special prosecutor rather than the local DA. In a Slate piece in September, Kate Levine suggested something similar (she specifically wanted to turn all cases over to federal prosecutors), which I questioned.

But in light of recent events, I am beginning to come around to the idea that Maazel and Levine are pushing. Moreover, I am coming around not only to the idea of requiring a special state prosecutor or the State AG, which Levine suggested and which I thought might work, but to the idea of making everything federal.

The focus in both the Brown and Garner cases has been on the respective local prosecutors and their supposed failures to be sufficiently aggressive. And the argument generally is that local prosecutors, by necessity, are always too close to the police.

But perhaps we also should consider the effect of the composition of a state as opposed to federal grand jury. Maybe part of the problem involves the likely decisions or actions of body drawn entirely from people in St. Louis County or Staten Island/Richmond County who are immersed in the local passions and politics; maybe a federal body drawn from the entire Eastern District of New York or Eastern District of Missouri, less immersed in those local passions and politics, can process things differently. Of course, it may not matter given modern media--everyone knows the details of high-profile cases such as these. But perhaps someone from Montauk or Cape Girardeau has a bit more distance from the events, a bit more distance from the local police, and thus a greater willingness to find a basis to pursue a criminal case.

Posted by Howard Wasserman on December 4, 2014 at 05:41 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Repost: First Annual Civil Procedure Workshop

Repost: Please note that the deadline for submissions is Monday, December 15.

We are pleased to announce the First Annual Civil Procedure Workshop, to be co-hosted by Seattle University School of Law, the University of Washington School of Law, and the University of Arizona Rogers College of Law. The Workshop will be held at Seattle University on July 16-17, 2015. Future conferences will take place at the University of Washington and the University of Arizona.

The Workshop will give both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. We hope the Workshop will strengthen the study of procedure as an academic discipline. By assembling annually, colleagues will have regular opportunities to meet to exchange ideas, to collaborate, and to participate in a national conversation on civil procedure scholarship.

Scholars whose papers are selected will present their work in small panel sessions. A senior scholar will moderate each panel and lead the commentary. Confirmed participants for 2015 include Stephen Burbank, Scott Dodson, Myriam Gilles, Suzette Malveaux, Judith Resnik, Suja Thomas, and Tobias Barrington Wolff.
We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by December 15, 2014. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for ten years or fewer. Workshop organizers will select papers to be presented by January 31, 2015. Please send all submissions or related questions to Brooke Coleman.

The Workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

Feel free to contact us with questions:

Brooke Coleman (Seattle), colemanb@seattleu.edu
Liz Porter (UW), egporter@uw.edu
Dave Marcus (Arizona), dmarcus@email.arizona.edu

Posted by Howard Wasserman on December 4, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, December 03, 2014

Yung on police, lethal force, and video

Corey Yung weighs in at CoOp with six other instances in which police officers were not prosecuted (or otherwise sanctioned) for using lethal force against unarmed minority men, even when events were captured on video. Go watch.

Posted by Howard Wasserman on December 3, 2014 at 06:44 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Video does not prevent "another Ferguson"

A grand jury has decided not to indict a NYPD officer in the choking death of Eric Garner--an event captured on a cell phone video. Apparently the video "said" something to the grand jurors quite different than what it said to many other people who have seen it. That the chokehold maneuver is forbidden by department regs did not change anything. Nor did the fact that the officer used physical force against someone for selling loose cigarettes.

To the extent we hope video will create greater accountability, this result suggests maybe not--it obviously does not make an indictment more likely (it also is further proof that video would not have made a difference in the Michael Brown case). Nor is it likely to produce deterrence--police can respond with force to even the most petty misconduct. So bring on those body cameras; just do not expect them to change much.

Meanwhile, NYPD is preparing for the "potential contingency" of public protest, which of course means mass arrests and forcefully moving people off the streets.

Update: Nia-Malika Henderson at WaPo suggests the non-indictment hurts Obama's body-camera arguments. But she comes around to the right point--cameras are good, but they are not the solution and they will not alone achieve significant change.

Update II: This NPR story describes a lot of the developments over the course of the afternoon, including a "die-in" at Grand Central Station and the mayor canceling his planned appearance at the Rockefeller Center tree-lighting ceremony tonight, which may be a target for protesters.

Posted by Howard Wasserman on December 3, 2014 at 03:13 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (15)

Tuesday, December 02, 2014

Michael Brown and the return of Brandenburg

A colleague asks a question:

Did Louis Head, Michael Brown's stepfather, commit incitement within the meaning of Brandenburg? Law enforcement apparently is investigating possible charges. Immediately following the announcement of the grand jury decision, Head was captured on video (embedded-go to 2:30 mark) shouting "Burn this motherfucker down" and "Burn this bitch down" (as people around him tried to calm him down).

Brandenburg requires that incitement be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburg paradigm is a torches-and-pitchforks mob outside a poorly guarded jail and the leader saying "let's get that guy in there." We definitely have a mob here (although hardly in a poorly guarded area, since there were police in riot gear across the barricade and the National Guard was in the area). But I do not see how the state could show intent. There also is Hess v. Indiana, in which the Court overturned a conviction where the defendant was not addressing any persons or group and he was no louder than anyone else in the group. Certainly Head was at the center of crowd and he can be seen asking for a microphone or bullhorn, as if trying to address the crowd above the noise. But he also just appears to be one of many people shouting into the sky in a show of anger, in his case, immediately after embracing his wife, who had just broken down.* He just happened to be caught on camera, which raises an interesting question--if his words reached millions watching TV but not the people who did the actual rioting, can he be said to have incited the crowd?

* Yes, I acknowledge that this perception may be influenced by my views of the case and the First Amendment and that mileage may vary.

I have been kicking around an idea that the legal change to come out of Ferguson may be all about the First Amendment--militarized police responding to public gatherings, negotiations on rules of public protest, citizen video, unconstitutional move-along policies. A good old-fashioned incitement/advocacy of unlawful conduct argument would top that off.

Posted by Howard Wasserman on December 2, 2014 at 06:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Monday, December 01, 2014

Free speech in the NFL

It will be interesting to see how this plays out. Five St. Louis Rams players walked onto the field in the "Hands Up, Don't Shoot" gesture; the St. Louis Police Officers Association is demanding that the players be disciplined and that the team issue a public apology. The full statement from the association is angry and unprofessional (not to mention loaded with really stupid football puns); it quotes extensively from the organization's business manager, a fired police officer now serving in the state legislature who has been one of the few voices opposing body cameras.

NFL Commissioner Roger Goodell is a coward and a liar. But will be really punish players for core political speech about a local and ongoing matter of public import? (Note: Yes, I know he can punish them; the question is will he and, if he does, how does he explain it away).

One last note: In the statement, the association refers to Darren Wilson (not by name) as the "now-exonerated officer." Is that an appropriate description of the process that was used?

Posted by Howard Wasserman on December 1, 2014 at 07:06 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (8)

Sunday, November 30, 2014

Rotations

As we roll into a new month, we roll into a new set of visiting Prawfs.

Thanks to our November visitors--Michael Helfand (Pepperdine), Adam Kolber (Brooklyn), Jake Linford (Florida State), Kirsten Nussbaumer (Stanford), and Margaret Ryznar (Indiana-Bloomington); they may be sticking around for some final posts this week. Thanks also to Timothy Zick (William & Mary) and Leigh Osofsky (Miami) for their individual solicited posts.

And welcome to our December visitors--Kelly Anders (The Organized Lawyer); Miriam Cherry (Saint Louis); Josh Douglas (Kentucky); Franita Tolson (Florida State); and Steven Morrison (North Dakota). And Richard Re (UCLA) continues his semester-long stay.

And remember that we are always looking for voices to join the Prawfs conversation. If you are interested in joining us for a month in the coming year, please email me (howard.wasserman@fiu.edu) or Paul (phorwitz@law.ua.edu).

Posted by Howard Wasserman on November 30, 2014 at 12:01 PM in Housekeeping, Howard Wasserman | Permalink | Comments (0)

Friday, November 28, 2014

JOTWELL: Steinman on Larson on factual precedent

The latest JOTWELL Courts Law essay comes from co-Section Editor Adam Steinman (now at Alabama), reviewing Allison Orr Larson Factual Precedents (U. Pa. L. Rev. 2013), which explores the extent to which factual conclusions in SCOTUS decisions should be binding on lower courts.

Posted by Howard Wasserman on November 28, 2014 at 03:09 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 26, 2014

When "protests" become "riots"

Tim's final post talks about Monday's protests turning violent and destructive (and the process being repeated on Tuesday) as a tipping point, in which public (and media) support and attention shifts away from the protesters. I do not know if we have hit that point. There is still much to sort out about what has been happening on the ground the past few nights. And it appears that many of the unlawful mistakes we saw in July (mass arrests of even peaceful protesters, arresting people for recording) are being repeated. And the number of sympathy protests across the country (many far more peaceful) may suggest a deeper level of support.

Nevertheless, Tim's point about public sympathy reminded me of Walker v. City of Birmingham (which I wrote about last week) and what it indicates about the connection between public speech and public support. The events in Walker occurred during Easter Week 1963, four months before the March on Washington, when the violent response to peaceful were entering living rooms--arguably at or near the height of public support for the movement. But the case did not reach SCOTUS until 1967 (argued in March, decided in June). By that point, we had seen the same shift in public support and sympathy away from civil rights protesters and the movement, given the increasing militancy in the movement, as well as public concern about riots (on race, the war, etc.) throughout the country.

Brennan suspected that the changed social circumstances had influenced the majority in rejecting the protesters' First Amendment arguments. He closed his opinion with a sharp reminder that public fears about riots should not override the right to peaceful public protest. The first part remains applicable to current events:

We cannot permit fears of "riots" and "civil disobedience" generated by slogans like "Black Power" to divert our attention from what is here at stake -- not violence or the right of the State to control its streets and sidewalks, but the insulation from attack of ex parte orders and legislation upon which they are based even when patently impermissible prior restraints on the exercise of First Amendment rights.

Tim is correct that public sympathy wanes. The right of public protest should not wane with it.

Posted by Howard Wasserman on November 26, 2014 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (13)