Monday, March 27, 2017
Ornstein on election do-overs
In The Atlantic, Norm Ornstein proposes the creation of a mechanism for special presidential and vice-presidential election in "extraordinary circumstances," covering not only a terrorist attack or other catastrophic event, but also attacks on the electoral process itself, as well as "foreign interference in the election combined with a winning party’s involvement in or reinforcement of the interference." Ornstein's basic point is that if a cloud if illegitimacy hangs over the President and Vice President, everyone who might replace him within the line of succession sits under that same cloud. (This is the converse to the logic of having cabinet officers as primary successors--they enjoy what Akhil Amar calls "apostolic democratic legitimacy" should they be elevated to acting president, by virtue of having been appointed by the legitimate President. But if that President is not legitimate, then no one enjoys apostolic legitimacy).
Norm knows more about presidential succession than just about anyone alive. I had the privilege of working with him a bit on the Continuity of Government Commission, an effort he co-chaired in the years after 9/11 to alter the rules of presidential succession to respond to a mass-destruction event aimed at Washington (recall that Flight 93 was headed to the Capitol). Those efforts went nowhere, as the political urgency subsided. His point now is that a different political urgency has presented itself.
Sunday, March 26, 2017
Welcome to Max Stearns and "Blindspot"
Max Stearns (Maryland) has joined the law professor blogosphere with Blindspot, which he describes here. Posts so far have covered the Gorsuch hearings, coffee, the TV show "Rectify" (whose final season I need to watch), and ideological blindspots of both political parties.
Definitely worth adding to your regular blog stops.
Thursday, March 23, 2017
JOTWELL: Campos on Glover on claims as property
The new Courts Law essay is from Sergio Campos, reviewing J. Maria Glover's A Regulatory Theory of Legal Claims (Vand. L. Rev.), which considers the implications of understanding legal claims as property.
Tuesday, March 21, 2017
Journalism, law, and asking questions
This piece, arguing that reporters undermine their checking function by asking complex, multi-part questions or burying a single question in a long lead-up, is spot-on. And the comparison to what we try to do in law school and law is apt. Effective cross-examination involves single, pointed questions. The same for effective questioning during oral argument--part of why Justice Breyer's questions are so incomprehensible and impossible to wade through is all the crap surrounding the question--which is usually just "respond to what I just rambled about for 3 transcript pages." It also what effective classroom teachers do, guiding the discussion with singular pointed and precise questions.
The result in journalism and law is the same: If the question is memorable because so beautifully and intricately phrased, the answer will not be memorable--because it will not have gotten a meaningful answer or even any answer, at the least not the one the questioner was hoping for.
Update: Needless to say, this also would make confirmation hearings far more bearable.
Whose money is it, anyway?
A manager's amendment to AHCA was submitted on Monday, containing several changes designed to get conservative and Freedom Caucus members on board. Under the new legislation, people will not be able to roll unused tax credits into health savings accounts. This change was made as a sop to anti-choice activists, who argued (as far as I can tell) that allowing tax credits to be placed in individual's HSAs would be for government funds to, potentially, be used for abortions. This is on top of a provision that prohibits tax credits from being used to purchase insurance plans that cover abortion.
But in Arizona Christian School Tuition Org. v. Winn, the Court rejected Establishment Clause taxpayer standing in a challenge to a state scheme of giving tax credits to individuals in the precise amount of their contributions to organizations that gave scholarships to students attending religious private schools. The linchpin of the Court's analysis was that the tax credit was not an expenditure of government funds, because the money never passed into government hands--it was money that the government never collected because it lowered that individual's tax bill (for whatever reason). There was no Flast standing to challenge what amounted to charitable expenditures by private individuals.
But doesn't it follow that these restrictions on the use of tax credits are imposing restrictions on the use of private funds (in a way that arguably constitutes an undue burden). The government is lowering the tax bill for individuals, but then limiting how that individual can spend their own money.
What am I missing?
Friday, March 10, 2017
The forgotten police shooting?
The latest episode of NPR's Embedded explores the shooting of Jonathan Ferrell by a Charlotte police officer in 2013. This was the prototype for the many "officer-involved shootings" around which Black Lives Matter has grown: Part of the encounter (not the actual shots, though) was captured on dashcam; the officer described fear of an unarmed black man impervious to weapons with "holograms" for eyes; the jury hung (8-4 in favor of acquittal, split roughly along racial lines) based on seeing different things in the video and the state did not retry; the officer resigned; and the city settled (for about $ 2.5 million).
First, the show explores the ambiguity of video evidence and the fact that different people see different things in the video. It notes the demographic correlations, but no more than that. The producers did not talk to Dan Kahan or about his studies of how people view and understand video evidence and the demographic connections. They instead let everything stand on one person's comments that "people see what they want to see," which is a simplistic way of describing a complicated process of perception and cognition that Kahan has tried to explain.
Second, Ferrell has somewhat become the forgotten police-shooting victim. In writing about police shootings and video the past few years, my paradigms are always the post-Ferguson victims--Eric Garner, Laquan McDonald, Walter Scott. I had not thought about the Ferrell case until I heard the program.
Third, I wonder what we should make of Ferrell settling for $ 2.5 million in 2015, whereas McDonald's settled for $ 5 million and Scott's and Garner's families settled for more than $ 6. Why the difference? Has the post-Ferguson environment created a settlement premium in these cases?
Wednesday, March 08, 2017
JOTWELL: Malveaux on Selmi and Tsakos on the effects of Wal-Mart v. Dukes
The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes (Akron L. Rev.), which argues that Wal-Mart has not been the feared death knell for employment-discrimination class actions.
Saturday, March 04, 2017
Maybe it is seniority
Early in last week's argument in Packingham v. North Carolina, the Chief "called on" Justice Ginsburg over Justice Kagan. It does appear that the answer to who gets precedence is seniority. Which makes sense, given how everything else runs in that institution.
Wednesday, March 01, 2017
Thanks to our February visitors, who may be sticking around for a few more days. Thanks especially to our symposium participants, who definitely will be around for a few more days. That seems to have worked well and we look forward to doing more things like this in the future.
Welcome to our March visitors: Seth Cavis (UC-Irvine), David Fontana (George Washington), Jack Harrison (Northern Kentucky-Chase), and Brad Snyder (Wisconsin).
Tuesday, February 28, 2017
Rugby and the Infield Fly Rule?
I do not understand rugby well enough (really, at all) to fully analyze or deconstruct this play that has many people up in arms. But it raises the question of a limiting rule for that sport, a la the Infield Fly Rule in baseball.
As I understand it: When a player is tackled, the tackler must let go and move away from the tackled player, while the tackled player gives up possession by trying to play the ball back to his teammate. The players nearby will then try to stand over the ball to gain possession. When that happens, a "ruck" is formed; groups of players from both teams stand and push each other, trying to heel the ball back out of the ruck or allow a teammate to reach in and pull it out. When the ruck forms, teams must get onside, so everyone not in the ruck must be back and between the ruck and the goal they are defending.
In a game between England and Italy (video in link), Italy, for strategic reasons, never formed a ruck after tackling an English player. The Italian players backed away and let England keep possession. But this also meant that Italy's players did not have to get onside on the other side because there was no ruck--they could wait behind the ball, in the area to which an English ball carrier wanted to pass the ball (the ball only can be passed laterally or backwards in rugby). It took England a while to adjust to the strategy and allowed underdog Italy to stay in the game for awhile. At one point in the Deadspin video, an English player asks the referee what they should do and the ref responds that he is not the coach and they should figure it out. This is all lawful (there is not obligation to form a ruck), but the English coach complained that it is "not rugby."
But does it demand a limiting rule a la the Infield Fly? Based on my limited understanding of how rugby works, I think the answer is no.First, Italy does appear to be acting contrary to ordinary athletic expectations within the game. Teams ordinarily want to form a ruck because that is the way to get the ball back and the only way to score points, which is the goal of the game.
But the second and third prongs suggest no special rule is necessary. This is not a one-sided, extraordinarily disparate cost-benefit exchange. Rather, both teams are gain something and surrender something on the play: England retains possession, although facing a confusing defensive situation; Italy surrenders possession, but keeps itself in a better defensive posture. Relatedly, England is not powerless to counter the strategy, as shown in the second half. Teams can find a way to get someone open to pass backward. Teams also can kick the ball forward, which they might be better able to do, since so many defenders are now behind the ball. Given the absence of these two prongs, this is not a situation, like the infield-fly, in which the equities of the game demand a rule change.
Instead, this seems to be another example (along with responses to hacking in the NBA) of an aesthetic concern--that deploying this strategy is not playing the game the "right way." Or not playing the game at all, if you believe England's coach that this is not rugby. Sports will enact rules to limit strategy for aesthetic reasons, even if not necessary to maintain cost-benefit balance and equity.
Monday, February 27, 2017
Qualified Immunity meets advisory opinions
One of my students flagged the Fifth Circuit decision in Turner v. Driver from two weeks ago. A divided panel held that the right to video-record police and police stations from the public sidewalk was not clearly established in September 2015. The court then went on to say:
Because the issue continues to arise in the qualified immunity context, we now proceed to determine it for the future. We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.
That section of the opinion was even titled "Whether the Right Is Clearly Established Henceforth."
There has always been something advisory-opinionish about the qualified immunity analysis. The court addresses the merits and finds a violation, but does not impose liability in this casebecause the right was not clearly established. Instead, that merits analysis serves (perhaps) to clearly establish the right for the next case, at least the next case involving largely similar facts.
But the majority here seems to have crossed over into a pure advisory statement of abstract legal principles. It was not even purporting to do a merits-first analysis (and not just because this part came after the clearly established prong). The court did not find that the officers violated Turner's rights in this case. Rather, it simply announced a First Amendment right to record in public (subject to reasonable time, place, manner restrictions), devoid of any facts or details to the case at hand. And the court did so expressly because the issue would continue to arise in the qualified immunity context, where courts otherwise would continually have to deny liability because the right would forever remain not clearly established. Of course, the need to establish constitutional law is one reason that courts may and often should abide by the merits-first approach, even if not mandatory. This goes beyond that--law divorced from any facts or any violation in the case at hand.
Moreover, it is not clear the majority did or could achieve what it wanted to do. As the dissent argued, future cases must look to factually similar cases for the clearly established analysis, not general principles of law. But the facts were not part of the analysis here. Thus, the dissent argues, "[b]ecause the majority does not hold that the officers actually violated the First Amendment, 'an officer acting under similar circumstances”' in the future will not have violated any clearly established law."
It is good to have another circuit weighing in on the First Amendment right to record. But the way the court got there was procedurally odd.
Sunday, February 26, 2017
One more from Hernandez v. Mesa
The following exchange occurred toward the end of Petitioner's argument:
Justice Alito asked whether a plaintiff would have a § 1983 action if the shooter had been a state or local police officer; petitioner's attorney responded "You would not have a claim over the State officer, but if you don't --but a Bivens claim--a constitutional Bivens claim could apply to the State officer."
Did counsel misspeak? Or is he arguing that a plaintiff can enforce the Fourteenth Amendment (including the incorporated Fourteenth Amendment) through a Bivens action in situations in which § 1983 runs out (as everyone seems to accept here, where § 1983 protects citizens and "other person[s] within the jurisdiction thereof")? And can that be right, certainly descriptively, under the Court's recent Bivens jurisprudence, where § 1983 would be an alternative remedy?
The Ringer looks at the many, many lawyers who have gone on the Bachelor/Bachelorette, including the upcoming bachelorette.
Friday, February 24, 2017
Hernandez v. Mesa argument
Just finished the argument in Hernandez v. Mesa (shooting across the Mexican border). A couple quick notes:
The argument was dominated by Justices Breyer and Kagan, with fewer questions from the Chief or Kennedy and even fewer from Justice Alito, who I would have expected to challenge the petitioner more than he did. On that note: At one point, the transcript shows Kagan beginning to ask a question when the Chief jumped in to call on Justice Kennedy (who, according to the transcript, had not begun to say anything). I want to hear it on audio. The Chief often plays traffic cop during arguments,* although this was the first time I have seen him do it without an apparent verbal signal that someone was trying to speak.
[*] An interesting research question: Is he more likely to "call on" a male Justice, especially over a female Justice? It feels that way from the individual examples I notice. I wonder if a regularized study would bear that out.
Qualified immunity was not discussed much, only a couple of questions from the Chief and Kennedy. One of them asked whether qualified immunity accounts for different plaintiffs--that is, if case law establishes that X violates the Constitution, can courts distinguish that precedent (to find the right not clearly established) when the identity of the plaintiff subjected to X is different.
Finally, Kagan and Breyer both pushed back against the idea that Bivens must be "extended," at least for Fourth Amendment excessive-force claims to recognize a cause of action. Kagan suggested that Bivens should be understood as allowing Fourth Amendment claims unless it arises in the military context. And Kagan pushed hard on the absence of an alternative remedy here, seeming to suggest that we should not even look at special factors if the plaintiff is left entirely without a remedy. These ideas, if followed, would pull the Court back from where it has gone with Bivens in the past two decades, similar to the vision Justice Ginsburg espoused in her dissent in Wilkie v. Robbins.
Thursday, February 23, 2017
Third Annual Civil Procedure Workshop (Reposted)
The following is re-posted on behalf of Brooke Coleman (Seattle), David Marcus (Arizona), and Elizabeth Porter (Washington).
We are excited to announce the third annual Civil Procedure Workshop, to be co-hosted by the University of Arizona Rogers College of Law, the University of Washington School of Law, and Seattle University School of Law. The CPW will be held at the University of Arizona in Tucson on November 3-4, 2017.
The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.
Confirmed participants for 2017 include the Hon. David Campbell, Allen Erbsen, Margaret Lemos, Troy McKenzie, Mark Moller, the Hon. Lee Rosenthal, Elizabeth Schneider, Norman Spaulding, and Beth Thornburg. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 1, 2017. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by April 15, 2017. Please send all submissions or related questions to Dave Marcus.
The CPW 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.
Wednesday, February 22, 2017
Burning your own cross on your own lawn?
A couple in Stamford, CT had a racial slur spray-painted on their garage door. Convinced that the police are not doing enough to investigate the incident, they have refused to paint-over or cover the word. In response, the town is moving to cite them for having blighted property, which would result in a fine of $100/day. The NAACP has gotten involved, although the stories do not (yet) mention the First Amendment.
That citation and fine should raise First Amendment problems. Although the blight ordinance is content-neutral, leaving the word on the garage is expressive in several respects: 1) the word has obvious political content; 2) the homeowners can be seen as reappropriating someone else's hate speech;and 3) the purpose behind their actions is itself expressive, as an act of protest against what they see as police wrongdoing. Plus, the blight ordinance is not being applied content-neutrally here--the conclusion that the garage is blighted is justified only with reference to the content or message expressed by that word.
Intentional walks and limiting rules
Major League Baseball announced agreement on a rule change under which intentional walks will now require only a signal from the dugout, rather than the pitcher intentionally throwing four pitches wide of the plate and the catcher's box. The goal is to shorten games, although given how infrequent intentional walks are (one every 2.6 games last season), the effect will be minimal.
Intentional walks are one of the plays cited by critics of the Infield Fly Rule as an analogous play, with one team intentionally acting contrary to the game's ordinary expectations. My response has been twofold: 1) The cost-benefit imbalance is not one-sided and not disparate, as both teams incur costs and receive benefits (the batting team gets the benefit of a baserunner, at the cost of not having a good hitter bat, while the fielding team incurs the cost of a baserunner with the benefit of a more favorable batter and base-out situation), and 2) the batting team could counter the strategy by declining the intentional walk and trying to get a hit by swinging at pitches out of the strike zone (or if the pitcher mistakenly leaves a pitch too close to the plate).
The rule change eliminates the second piece--the batting team can do nothing to prevent the intentional walk. Nevertheless, because the play involves an equitable cost-benefit exchange, it is not analogous to the infield-fly situation and thus does not warrant a limiting rule (or undermine the existence of the Infield Fly Rule).
Update: This, on everything wrong with the rule change.
Tuesday, February 21, 2017
JOTWELL: Lahav on Coffee on entrepreneurial litigation
The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing John C. Coffee, Entrepreneurial Litigation: Its Rise, Fall, and Future (Harvard University Press). Very timely book and review, with aggregate litigation again in the crosshairs.
Friday, February 17, 2017
The Ringer's Bryan Curtis has a great piece describing the evolution of sportswriting into a liberal profession and sportswriters into a group of liberal professionals. I have thought about this in connection with athlete speech and political activism. If you go back to what many regard as the heyday of athlete activism, especially black athlete activism (the mid-'60s through early '70s, with Ali, Flood, Brown, Carlos, Smith, etc.), the opinions of sportswriters ran overwhelmingly and angrily against the athletes. Perhaps to a greater degree than Curtis describes in the piece. Worth a read
Thursday, February 16, 2017
Acosta nominated as Secretary of Labor
Alexander Acosta, my dean at FIU College of Law since 2009, has been nominated (and will almost certainly be confirmed, possibly overwhelmingly) as Secretary of Labor. When we hired Alex, I predicted out loud that we would have him until a Republican was next in the White House. Turns out, I was right. I predicted/hoped that it would be 2021 rather than 2017. And I predicted/expected we would lose him to DOJ as Attorney General or to the federal bench; Labor never crossed my mind, despite his time at the NLRB.
Alex had what I believe should be regarded as a very successful deanship. The quality and success of our students has improved dramatically; we are ranked in the mid-50s on US News (yeah, I know) for student quality and job placement and we have topped Florida in bar passage the past three cycles. (Scholarly reputation is nearly immovable, although he supported programs to help on that front). He managed us through the financial and application drop--our applications have been up or down less than national averages most years. The only thing I predicted back in 2009 that he might do, but has not, was find a naming-rights donor. But those do not grow on trees.
I was skeptical of hiring a non-academic dean at the beginning. It turned out we were on the leading edge of a trend that numerous similar schools followed. He brought a unique skill set (notably the ability to recruit and support students) that is not easy to find or replicate and it did wonders for the school.
He will be missed, but I wish him all the best.
Whittington on Trump and the courts
This Balkinization piece by Keith Whittington. I have been trying to figure out why Trump's comments about the judiciary have rankled, especially given my (newfound) adherence to departmentalism. Keith's answer is that they are content-free and rest on a rejection of judicial authority (and an attempt to scapegoat judges for whatever might happen in the future), rather than a substantive critique of why the judiciary, while authorized, was wrong.
Monday, February 13, 2017
CFP: 2d Annual Ad Law New Scholarship Roundtable
The Ohio State University Moritz College of Law is pleased to host the Second Annual Administrative Law New Scholarship Roundtable on June 27-28, 2017, in Columbus, Ohio.
The Roundtable is the creation of four schools—Michigan State University, University of Michigan, Ohio State University, and University of Wisconsin—each of which has committed to hosting the Roundtable during one of the first four years of the Roundtable.
The Roundtable will bring together a mix of emerging and established scholars to present new work on Administrative Law. Participants will present their papers in small panel sessions designed to foster rich discussions with experts in the field and contribute to a vibrant Administrative Law community. Each panel will be led by a distinguished scholar who will facilitate the discussion. Confirmed commentators currently include Emily Hammond (George Washington), Lisa Heinzerling (Georgetown), Jon Michaels (UCLA), Nick Parrillo (Yale), Peter Shane (Ohio State), Cathy Sharkey (NYU), and Glen Staszewski (Michigan State). In addition to the paper panels, a lunch program will address current issues in Administrative Law and institutional resources for empirical research projects.
Scholars wishing to participate in the Roundtable and present a paper must submit a one-to-two-page abstract by Friday, March 17, 2017. Applicants should include their title, institutional affiliation, and number of years teaching in the academy. Preference will be given to those who have been teaching nine years or less in a tenure-track position. Abstracts should be sent to Chris Walker at email@example.com. You may also contact Chris Walker or Peter Shane with any questions you may have about the Roundtable.
The Roundtable will provide meals for all participants. Participants must cover their own travel and lodging costs. We will reserve a block of reasonably priced rooms at a local hotel in advance of the Roundtable.
Administrative Law New Scholarship Roundtable Host Committee
- Nicholas Bagley, University of Michigan
- Michael Sant’Ambrogio, Michigan State University
- Miriam Seifter, University of Wisconsin
- Peter Shane, The Ohio State University
- Glen Staszewski, Michigan State University
- Christopher Walker, The Ohio State University
Friday, February 10, 2017
The process of challenging the travel order
The litigation in Washington v. Trump has become politically confused following Thursday's decision by the Ninth Circuit.
The district court issued a Temporary Restraining Order; while it was entered following an adversary hearing, it was on light briefing and without an evidentiary hearing. It was designed to maintain the status quo until there could be briefing and a an evidentiary hearing on a preliminary injunction, although the briefing schedule was set so that the TRO would last more than the 14 days allowed by FRCP 65(b)(2), although not substantially more than that. The order was, as many have noted, bare-bones and conclusory in the constitutional analysis, as befits a TRO.
The United States appealed, although it was not clear what or how. TROs are not subject to immediate appeal, although preliminary injunctions are. The purpose of the appeal appears to have been to get the Ninth Circuit to stay the district court order.
The Ninth Circuit panel recast the TRO as a PI (pursuant to Ninth Circuit precedent allowing the court of appeals to look through the label), granting it appellate jurisdiction, then denied the stay pending appeal. The Ninth Circuit has set a briefing schedule for the appeal (running into March), so we are done at the district court, at least at the preliminary injunction stage. At the same time, the panel left open the possibility that the merits panel could revisit the issue, decide this is really a TRO and that there is no appellate jurisdiction, kicking it back to the district court for the evidentiary hearing it was trying to hold. There also is the possibility that the Ninth Circuit panel will decide that it cannot review the decision without an evidentiary record and remand for that hearing.So consider where this leaves us: The case is in the Ninth Circuit to review a bare-bones order, entered without an evidentiary hearing and without giving an opportunity for an evidentiary hearing. This means, as described by one professor on the Civ Pro Listserv, the appeal will be nothing more than a replay of the stay motion with longer and more drawn-out briefing (and with the burden of persuasion shifted to the State), but with nothing more in the record to review. This reflects an insight Samuel Bray has made in his work criticizing nationwide injunctions--if the courts see their role as deciding whether to "strike down" a statute, then the narrow, party-specific work in the district court becomes less important. And litigants may view it that way, as well.
It did not have to proceed this way. The United States could have instead sought a Writ of Mandamus, which would have allowed the Ninth Circuit to look at the TRO to determine whether it was egregiously wrong, without being a run-of-the-mill appeal. And it could have done that without having to manufacture appellate jurisdiction, review a cursory order entered without a full record, or waste time remanding to obtain that full record. But the U.S. seemed so anxious to be able to enforce the E.O. pendent lite that it blew through many of these details.
A nice question to consider: Where did the decision to pursue the appeal in this way come from? At the time, there was no AG and no SG. So did the instructions and oversight come from the White House?
Monday, February 06, 2017
Criticizing v. Threatening--wither the line?
Where is the line between criticizing the judiciary and engaging in threats that potentially undermine the independence of the judiciary? That is the question following Donald Trump's tweets over the challenge to the travel order--where he first referred to District Judge James Robart as a "so-called judge," then said Robart and the judicial system had put the country in peril and would be to blame if there were a terrorist attack while enforcement of the order is enjoined. Will Baude, Eric Posner, and profs on various listservs have decried this as a genuine threat--undermining judicial independence and possibly inciting mob violence against judges should anything happen.*
[*] Threats aside, the comments also rest on a false premise--that there has been a dramatic increase in travel to the United States since the TRO was entered or that the TRO prohibits all vetting and discretion in issuing visas or accepting refugees.
I agree that this is a wrong and intemperate way to criticize a court, a judge, and a judicial ruling and a wiser President would tone it down, focusing on the correctness of the decision rather than whether the judge was acting as a judge and thus had the power to render that decision (Will's point). But I am not convinced this reflects a threat or a shot across the bow of an independent judiciary. Nor am I convinced by how bound up the comments are with whether Trump might disobey or disregard a judicial order. Trump could disobey the order without verbally attacking the judge. These tweets perhaps prime the public to support and accept his disobedience, because they have been primed to understand the decision as non-judicial and thus not entitled to obedience. But they are not a necessary condition for a presidential showdown with the courts, should Trump choose to have one.
On the other hand, I worry that in seeing the President's tweets as so much noise that should not be taken seriously, I am falling into the very trap that a would-be authoritarian President needs--missing efforts to undermine the judiciary before it is too late.
Saturday, February 04, 2017
Nationwide TRO bars enforcement of immigration order (Updated)
A judge on the Western District of Washington has issued a nationwide Temporary Restraining Order barring enforcement of the main provisions of President Trump's immigration executive order. The order is short (7 pages) and cursory and lasts only until the parties can brief the preliminary injunction, which presumably will receive fuller analysis. Josh Blackman has a quick analysis, with which I basically agree. At the same time, a judge in the District of Massachusetts refused to extend the TRO issued on an emergency basis last weekend.
Some quick highlights:
The lawsuit was brought by the states of Washington and Minnesota. The court seemingly accorded them parens patriae standing, although courts generally do not allow states to assert their citizens' rights--Virginia tried unsuccessfully to use it to challenge the Affordable Care Act). The court also finds harm to the state itself, through its public universities, tax bases, operations, and public funds.
Standing to one side, I cannot see how the EO violates the rights of either State. The constitutional defects in the EO are that it violates the First and Fifth Amendment rights of those who would be kept out of the country. So this must be third-party standing on behalf of residents, although I do not yet see the connection between either state and the rights-holders (apart from through parens patriae). As with the other TROs that have issued, the focus is far more on irreparable harm and far less on the merits. Maybe in the early days that is appropriate. But the success of these lawsuits seems to rest on courts finding that the government's power over immigration is less than it was 100 years ago, because rights of equality and religious freedom are greater than they were then. Perhaps they are. But there needs to be more discussion of this following a fuller hearing and more time.
The judge made the order nationwide (more accurately, universal), rejecting the government's argument that the order should be limited only to the two states, citing Texas v. US and the need for uniform immigration rules. The politics of who is seeking and defending these universal injunctions to one side, the need for uniformity cannot justify such orders. Disuniformity pendent lite is an inevitable, perhaps even intended, consequence of dividing the lower courts regionally. Different lower courts might disagree on the same issues, producing momentarily different law in different places. Uniformity arrives at the end of the day from SCOTUS, which is why the Framers mandated that Court at the top. If one regional district court (or one regional court of appeals reviewing that regional district court) has the power to resolve the issue for the entire country, there would be no need for SCOTUS; uniformity would come from whichever court got there (and ruled against the government) first. While this does create some possible confusion and uncertainty in the interim, which would look bad to the public, I do not see how you avoid that problem without altering the nature of regional courts and judicial remedies.
For what it is worth, I am less troubled than Josh is by Washington arguing for a universal injunction, when it explicitly argued against that in the Texas DACA litigation. This is why we have presumptively transsubstantive rules--so repeat players who might find themselves on either side of a dispute cannot sit on rules favoring one side or another.
As expected, the White House responded in its usual reasoned and even-handed way. A WH statement decried the "outrageous" order, although quickly re-issued the statement without the adjective. The President himself was not so reserved--he tweeted (and did not delete) about the "so-called judge" issuing the "ridiculous" opinion. Ah, the new "conversation among the branches." [Update: The President also cannot understand why the lawyers are not "looking at and using" the order from the District of Massachusetts. I assume Bannon or Miller will calmly explain binding v. persuasive authority to our fearless leader.]
Josh reports that the government is working on an appeal to the Ninth Circuit and SCOTUS. Note that this is not an appeal of the TRO itself (which is not subject to immediate review), but seeking a stay of the TRO. The analysis is similar, but not the same.
Update: The United States has appealed. It appears the argument is that this is a de facto preliminary injunction, even though designated as a TRO. Ninth Circuit precedent allows the court of appeals to look below the label, especially where the order lasts more than 14 days. Alternatively, the government may try to turn the appeal into a petition for writ of mandamus, a frequent end-run for interlocutors appeals. It appears that no stay was sought.
Update: The Ninth Circuit treated the appeal as a request for stay of the TRO. It denied the request for an immediate administrative stay, then ordered briefing by Monday of the request for a stay pending appeal. Beyond the stay request, it is not yet clear how the court of appeals is characterizing the district court's order and how that affects appellate jurisdiction.
Friday, February 03, 2017
More on Eight is Enough--the Appointments Process
Some further thoughts on Eric Segall's proposal for an eight-person, even-partisan-divided Supreme Court. I believe it produces a functioning Supreme Court, so the objections that it cannot work--that it will create disuniformity and uncertainty in federal law--are overstated. But it does not resolve problems in the appointments process, leaving in place gamesmanship and perverse incentives that may create more. I alluded to these in my JOTWELL essay and want to flesh them out further.
Broadly speaking, Eric's proposal has four pieces (put aside how to codify this): Eight Justices; no more than four Justices from either major party and each seat must be filled by a member of that same party; 2/3 supermajority to appoint an independent or someone who refuses to disclose her party affiliation (to leave open the possibility of a highly qualified independent); approval by a majority of members on the Senate Judiciary Committee from the nominee's party.
One goal of the plan is to fix the appointments process. The theory is that because no appointment shifts the Court's ideological balance, the stakes are not as high. A Justice of one party always will be replaced by a Justice of the same party, with only a difference of degree depending on the party of the appointing President. Segall also hopes it will produce less ideological Justices--as a President of one party will seek out a moderate from the other.
The problem is that an ideological balance remains at stake with the appointment, just in reverse--while a seat is vacant, there is a 4-3 Court, tilted to one side ideologically. And that may affect the desire to appoint or confirm anyone at all or how willing an actor in the appointments process is to negotiate over a Justice from the opposite party.
After the jump, thoughts on how the game might play out in four situations, all with a President from Party A. The game changes depending on four variables. The result might not be what we expect.Situation I: Senate Majority A, Justice A: This is the situation of maximum political control. The A's can appoint whoever they want and probably will look for an extremely A Justice. The only check is a B filibuster, but I do not expect the filibuster to survive the Gorsuch nomination. Franky, this is the only situation in which confirmation is possible anymore. Segall's proposal might not change that.
Situation II: Senate Majority A, Justice B. This is the situation that theoretically produces more-moderate, less-ideological nominees, as the President and Senate Majority look for the least B-ish/most A-ish B Justice they can find (a BINO--B In Name Only--if you will). The requirement that a majority of the B members of the Judiciary Committee approve the nominee tempers this somewhat, producing someone within the B mainstream.
But another perverse incentive arises here. As long as that B seat remains empty, there is a 4-3 Court with an A majority. President A (and Senate A) probably like that status quo and would be happy to maintain it as long as possible. This gives them an incentive to delay--or avoid altogether--any nomination or confirmation. It also gives them incentive to play hardball with the B members of the Judiciary Committee--accept our BINO or we are happy to leave the seat open and retain the partisan advantage.
Situation III: Senate Majority B, Justice A. Now the President and Senate majority at odds, with the B-majority Senate happy to keep the seat open, prompting the President to nominate a less A-ish Justice who is acceptable to the B Senate. This reflects the current system in periods of divided government, with Presidents often nominating a less-preferred choice to appease the opposing party in the Senate (think Anthony Kennedy or, perhaps, Merrick Garland--we do not know what Obama was thinking there). But the Senate holds greater power, because it benefits more from the vacancy in this new scheme than under the current system. It can and might hold out for an especially less-A-ish Justice on threat of not confirming anyone, preferring the partisan status quo to the evenly divided norm. (Of course, that threat has always been present with divided government--but 2016 showed that the threat is real).
Situation IV: Senate Majority B, Justice B. This is the flip of III, with the President lacking real incentive to fill the vacancy, happy to retain the 4-3 A Court. This gives him greater power to appoint a less-B-ish Justice., again with the take-it-or-leave-it position of not needing the vacancy filled if the B-majority Senate will not yield to his preferences.
So where does this leave us? In periods of divided government, power rests with any actor (President or Senate) from the opposite party of the seat to be filled, because he/they have no incentive to fill it. They can hold out for the least opposite-party Justice they can get, knowing that the vacancy status-quo favors their preferences. Or they can decide not to fill the vacancy at all by refusing to confirm anyone. In periods of unified government, actors will always be able to get the most their-party Justice, because nothing other than a filibuster will stop them. And they can get the least other-party Justice, because their lack of incentive to fill the vacancy allows them to overbear the limited check granted the other-party minority. In all, the new system either leaves existing or creates new perverse incentives that might break the appointments process further.
Power to limit such gamesmanship comes from the Court itself, in two ways. First, a retiring Justice can make her retirement effective on confirmation of a successor. This prevents that 4-3 split, even temporarily. But this is impossible if the vacancy is an unexpected one due to death, illness, or disability.
Second, the Court could limit by internal rule the decisions and judgments it will render in the event of a vacancy. For example: "In the event of a vacancy, the Court only can render judgment if five Justices [the number necessary to decide on an eight-person Court] agree; otherwise, the Court will DIG the case or hold it until back to full eight-Justice strength." The result is that no party benefits ideologically from a vacancy, because there can be no 4-3 purely partisan decisions. So both parties have incentive to make an appointment as expeditiously as possible, subject to (normal) negotiations over how A-ish or B-ish the Justice will be. It levels the bargaining positions between the President and Senate majority in times of divided government and between the President and the opposite-party Judiciary Committee members on an opposite-party appointment.
Unfortunately, such a rule would require the Court to take a position on a political controversy, something the Court (particularly this Chief) has been reluctant to do.
JOTWELL: Wasserman on Segall on Eight is Enough
I have the new Courts Law essay, reviewing Eric Segall's Eight Justices Are Enough: A Proposal to Improve the United States Supreme Court, which proposes codifying the current eight-Justice/even partisan divide on the Court.
We moved up publication on this piece to time it with the Gorsuch nomination, which either spells the death knell for the proposal or gives it life. I remain unsure whether I am sold on Segall's plan as a normatively best design or whether it just looks good compared with the political alternative. But it has some genuine merit. Iwill have more to say in a second post.
Wednesday, February 01, 2017
Framing the coming debate on the Gorsuch nomination
Neil Gorsuch will be on the Supreme Court. Nevertheless, speaking purely as a political partisan, I would like to see Democrats filibuster the nomination and force Republicans to own the decision to eliminate the procedure. Or that both sides agree to end the arms race and adopt Eric Segall's plan to hold the Court at eight.
But the framing of the strategy is going to be essential. It is too easy to say (as the press already is saying) that a filibuster is extraordinary and unprecedented and this would be only the second time it has happened. Forget that the filibuster of Fortas's nomination as Chief was bi-partisan and done when the filibuster was an extraordinary step (as in the then-fresh filibuster of the Civil Rights Act of 1964), rather than a routine part of Senate business producing a de facto super-majority requirement. The year 1968 was the dark ages for Supreme Court confirmations and filibusters, no longer a meaningful historical analogue.
Similarly, the argument has to be more than that the seat was "stolen" from President Obama and Merrick Garland. Senate Republicans did not merely deny Garland a hearing, but did so for a purported principle--a President should not fill a SCOTUS vacancy in an election year/in the final year of his term (although I have never been clear whether that was the final year of a term or only in the final only of a second term).*
[*] That was the stated principle; I am not saying I believe it. Mitch McConnell would have led the Republicans to do the same thing had Scalia died on December 13, 2015 or August 13, 2015 (when the Republicans were already holding primary debates). Or, frankly, anytime after the 2014 mid-terms.
So the Democrats need to find their own principle beyond tit-for-tat.One principle is that, given longevity, the central role of the Supreme Court in the legal and political scheme, and the increasing polarization in society, Justices must command super-majority support to be confirmed. True, this principle is not found in Article III or history and the lone example of a filibuster shows it has not been used in this context. But the "no election-year confirmations" principle also had no basis in Article III and ignored a history of election-year appointments (including 100 years prior, the confirmation of Louis Brandeis). The (new) rules of the game do not appear to estop a Senate caucus from adhering to new principles; the only question is whether the principle sticks, as the GOP's move did, or not, as will happen when Senate Republicans eliminate the filibuster for SCOTUS nominations.
I would add that this principle flies less in the face of text than McConnell's. The idea of no appointments in the final year disregards that a President serves for four years (January 20, Year 1-January 20, Year 5) and that vested in him for the entire four years is the executive power, including the power to make appointments. McConnell's principle essentially says that power runs out sometime earlier, although it is not clear when (again, I expect it would be Election Day of Year 2).
Alternatively, Mark Tushnet suggests a principle of no appointments by a President who lost the popular vote. It last happened 1893, when lame-duck Republican Benjamin Harrison appointed a Democrat a month before newly (re-) elected Democrat Grover Cleveland took office. Again, however, we have had other election-year appointments in our history (and most more recently than 1893), all of which Republicans ignored last year.
Ultimately, the principle I believe we end with* is this: No one will be appointed to the Supreme Court except where the President and Senate majority are of the same political party. I do not necessarily believe that is a normatively good principle. But it is functionally where we now found ourselves in the current political circumstance.
[*] This assumes the Democrats decline to filibuster to save it for another day, which would be politically stupid. But then, Senate Democrats . . .
Update: But see Richard Primus' argument that the real threat is Donald Trump, not a judicial nominee who might have come from any Republican President.
Monday, January 30, 2017
Holocaust, Shoah, and unique group experiences
Lost amidst President Trump's offending Muslims the world over was his offending many Jews with his Holocaust Remembrance Day Statement. The statement spoke of the "depravity and horror inflicted on innocent people," without mentioning that more than half of those, the primary targets, and the raison d'être of the Nazi efforts, were Jews. Spokesperson Hope Hicks defended the statement by pointing to the 5 million victims of other groups, including "priests, gypsies, people with mental or physical disabilities, communists, trade unionists, Jehovah's Witnesses, anarchists, Poles and other Slavic peoples, and resistance fighters." Chief of Staff Reince Priebus tried to do the same on Meet the Press on Sunday, producing a fascinating three minutes of video (after the jump) in which he stares blankly ahead while concocting a word soup of adjectives to describe the Holocaust, including "horrible event," "miserable time in history," and "extraordinarily sad." All without ever saying, explicitly (as opposed to blandly agreeing with Chuck Todd's premises) that Jews were the central victims.
Jewish groups were outraged. Stripping away its uniquely Jewish nature is an element of denial--"many people died, not only Jews, and it entailed nothing programmatic or unique to history. And it divorces the event from 2000 years of unique anti-Semitism that made it possible. Fortunately, Preibus reminded us that Trump has Jewish family members, which will be his get-out-of-jail-free card for the next few years.
The question of universalizing affects what we even call this thing. I prefer the Hebrew word "Shoah" (literally, "destruction" or "total destruction"), although that word could isolate the event, and its victims, from the rest of the world and of world experience (not unaided by that historic anti-Semitism). On the other hand, a generic English word such as "Holocaust" allows for the Jewish element to be ignored, perhaps for those same reasons, just as Trump did here.
Updates: First is Deborah Lipstadt in the Atlantic, labeling this "de-Judaization of the Holocaust" as "softcore denialism."
Second is WH Press Secretary Sean Spicer, who was beyond annoyed by people nitpicking of the statement, insisting it had been "praised" (without mentioning by whom) and arguing that President Obama's "anti-Israel" policies of the last eight years are a bigger deal than a statement remembering the Holocaust. Three remarks. First, Spicer makes me long for Ari Fleischer. Second, every statement from the White House trying to defuse this keeps coming back, without acknowledging (or maybe even recognizing), the problem--that the statement is troubling because its memory of the Holocaust is historically wrong in significant ways that play on anti-Semitism. And third, the downshift of how much Trump loves Israel, because: 1) Israel is not the Holocaust and 2) what Trump loves is Benjamin Netanyahu and his government--which is not "Israel" in the same way that Donald Trump is not "America."
Sunday, January 29, 2017
More on the immigration order
Events move quickly:
• Secretary of Homeland Security John Kelly issued a statement deeming "the entry of lawful permanent residents to be in the national interest," meaning "lawful permanent resident status will be a dispositive factor in our case-by-case determinations." The question was raised whether this moots the actions involving LPRs. Administrative/executive interpretation, not reduced to formal policy, typically is treated as "voluntary cessation" of unlawful activity that is not sufficient to moot a case. The government must show it is "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Given the public confusion over the meaning and scope of the order--with contradictory statements coming from officials within the White House over threee days--and that the policy could be changed tomorrow by a new announcement from the Secretary, this announcement should not meet the standard.• The rapid-fire litigation reminds me of the early days of the nationwide marriage-equality litigation, with district courts all over the country issuing orders, often ex parte, almost always against the government, and building a momentum in a given direction. It also reminds us of the power of district judges, at least in the short-term--ex parte T/R/Os and stays are not immediately appealable, unless a court of appeals wants to mandamus the district judge, which is unlikely. When we talk about the power of the judiciary, it is not only (or even primarily) about SCOTUS on the ground.
• More protests Sunday, with thousands of people turning out on the streets of several major cities and at airports, seemingly organized on short notice and growing organically, and despite some traffic blockages. Once again, few or no reports of arrests. But the constant protests and criticisms seem the thing that might drive the President over the edge. How long might it take for himto have had enough and to try to get protesters off the street, either working behind the scenes telling local police enough is enough, or by explicitly urging force to stop them?
Trump supporters bragged about what his first 100 days would achieve. We are 10% there and it has been a ride, although not in the way many expected.
Random thoughts on a Sunday
1) Judge Donnelly's temporary stay of removal of those at U.S. ports of entry who are legally authorized to enter the United States raises, from the other political side, the issue of nationwide injunctions against enforcement of U.S.policy. Darweesh purported to be suing on behalf of others similarly situated, although Judge Donnelly did not perform any part of the FRCP 23 analysis. But at the stage of a temporary emergency stay or temporary restraining order, this is less problematic than on a preliminary or permanent injunction entered after full briefing by the parties.
But here I want to distinguish between "nationwide" and "universal" injunctions (thanks to Tobias Wolfe of Penn for the distinction); the latter term better captures the remedial problems. An injunction is, and should be, "nationwide" with respect to the named plaintiffs--the United States should be enforced against them anywhere in the country. And the "parties" in a class action properly covers everyone in the class. A universal injunction, by contrast, bars action by the defendant with respect to anyone, including non-parties. This is remedially problematic. The DACA injunction was universal--although only Texas and about 25 other states were parties, the injunction barred the United States from enforcing DACA in, and with respect to, non-party states, even those who would not oppose the benefits granted to undocumented persons within its borders.
Now it remains to be seen whether this case is properly brought as a class action (reports are there are about 100-200 people with the status of the plaintiffs in Darweesh. I expect the class question will await fuller litigation, assuming the relevant agencies do not release the people affected. The point is that the "nationwide" label thrown around in the press is too imprecise.
And, for what its worth, TRO's are issuing in other courts (including the District of the District of Columbia, Western District of Washington, and District of Massachusetts), suggesting that Judge Donnelly's temporary stay is not doing as much nationwide work as it might.
2) Josh Blackman has his usual thorough analysis of the procedural aspects. I do not think I agree that Judge Donnelly's order is ultra vires for not having performed the FRCP 23 analysis. In that short time, I am not sure the court could do more than acknowledge the class allegations in the motion and save them for fuller briefing. But to not allow the fullest TRO* would love potential class members subject to removal.
[*] Although not styled a TRO, this seem to me the functional equivalent--staying enforcement of the law for a finite number of days pending fuller briefing.
3) There are some interesting enforcement issues, as reports come that officials at airports are refusing to abide by the orders. Judge Donnelly included a paragraph order the Marshals to take all steps necessary to notify agents on the ground about the order. But that takes time.
4) As I wrote last weekend, I have no idea when public protest will be permitted and when law enforcement will crack down. The New York Times described the genesis and evolution of Saturday's protests at Kennedy Airport (which, famously, is a nonpublic forum), including crowds making sidewalks outside the terminal unpassable. And all without permits, pre-event negotiations, and explicit or implicit understandings. And yet there were no arrests and no efforts to disperse or remove the protesters. Same in the parking garages. At one point, Port Authority police blocked protesters from boarding the train linking the subway to the terminals, until Gov. Cuomo ordered them to stand down, which they did only after a 15-minute delay.
5) There is a teaching moment here, apart from the substantive and procedural details of the controversy and the "this is why we need lawyers" narrative (since most of our students are never going to be on either side of such controversies). Reports are that this order was not vetted by the lawyers and policy experts at various agencies, including in the Office of Legal Counsel, but was thrown together by non-lawyer policy makers and some lawyers guiding them within the White House. So the teaching point is that lawyering matters and lawyering means care and precision and avoiding ambiguity and the chaos that ambiguity brings. And that is true not only as to major government orders that affect the entire world, but wills that affect an elderly widow.
Monday, January 23, 2017
JOTWELL: Mullenix on Stancil on rulemaking and economic theory
The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Paul Stancil, Substantive Equality and Procedural Justice (Iowa L. Rev., forthcoming), which applies economic analysis to the rulemaking process (contra, Linda argues, the many of us procedural scholars who are doctrinalists).
Peaceably to assemble
A question asked out of genuine curiosity and with no intent to disparage: How is it that more than 3 million people in multiple cities, including 1/2-million in D.C. and 1/4-million in NYC, marched without incident, without conflicts or confrontations with police, and without arrests? Meanwhile, so many other protest/march/rally/gathering everywhere for the past several years--all involving far fewer people--has seemed to devolve into violence, property destruction, and multiple arrests.
Without more, it seems too simplistic to say "these were peaceful, whereas those others were violent and met with appropriate force." There is a chicken-and-egg problem: Has conflict resulted from those protesters being angry, violent, and destructive and police responding with appropriate force and authority to lawlessness? Or have protesters become angry when met with massive resistance by police in riot gear limiting where in the public spaces they are allowed to move, trying to move them off the streets or pen them off into far-off "protest zones." Have other protests descended into lawlessless when police declared otherwise-peaceful gatherings unlawful assemblies to be broken up with force and detention? Not to excuse violence or say that no arrests have been warranted; only to say the spark of conflict is not clear. The consent decrees with Ferguson and Baltimore, with specific provisions requiring cities and policies departments to reassess how they respond to public protests, suggests a recognition that departments have not responded well.
So why was Saturday different, both in the sunny protesters and in the mild, cooperative police response? Was it that the world was watching? Was it that the terms of the gatherings had been negotiated in detail in advance and adhered to (which Tim Zick would argue is good for keeping the peace, but not what public expression should require)? Was it that the crowd was predominantly women, who are less likely to become violent or confrontational with police? Were police more restrained because the protesters were women? Was it that the crowd seemed largely (just based on photographs and TV coverage) white, which created a less heightened atmosphere among police? Was it some combination of all of these?
Finally, regardless of why Saturday was so peaceful, will cities learn anything from it? Will it demonstrate that public speech is possible, consistent with other municipal activity, and need not be restrained or pushed into confined areas or met with massive force? Will it demonstrates that public speech should be welcomed?
Sunday, January 22, 2017
Arguments in Ziglar v. Abbassi
Some thoughts on last week's oral arguments in Ziglar v. Abassi, the follow-up to Iqbal raising three issues: 1) Whether a Bivens action can be brought against policymakers on national-security matters; 2) whether the complaints were sufficient under Twiqbal; and 3) whether any of this was clearly established in 2001.
1) This case might give the Court an opportunity to re-emphasize and re-ignite "obvious alternative explanation" as part of the pleading analysis. Although mentioned in Iqbal, lower courts had de-emphasized it as part of the analysis, other than a bit rhetorically. Which is good, since such an inquiry contradicts the purpose of 12(b)(6). That motion asks whether, accepting everything the plaintiff says is true, he could win. For the court to explain the defendant's conduct as a result of something other than what the defendant alleges is for the court to act as factfinder based on the plaintiff's preliminary allegations. But the SG mentioned this standard several times during his argument on behalf of Ashcroft, Mueller, and James Ziglar (the policy-maker defendants); the core argument was that the decisions were based on their best judgment about national security given their lack of information, rather than invidious discrimination.
2) Justice Breyer (whose questions I usually cannot understand) asked a question that captured the connection between ex post damages and immediate court orders (namely habeas) as constitutional remedies and why the former maintains a special place in any judicial regime. Using Japanese internment as his hypo, Breyer pointed out that a judge was unlikely to find a constitutional violation in 1942, given the immediacy of the crisis, the recentness of the executive-branch determination, and the uncertainty of events. But later damages actions and remedies allow judges to act after the crisis has been averted and with an opportunity to cast a cooler eye on the constitutional question. It thus is not enough to argue, as the government did, that these detainees could have sought habeas relief (as some did) or relief under the Administrative Procedures Act or injunctive relief on a constitutional claim--that later judicial inquiry in a damages suit plays its own unique role. The sharp dichotomy the SG drew--constitutional challenges to government policy come only through injunctive actions, never through actions for damages--is not supportable (certainly not if we use § 1983 as an analogue) or the best scheme for judicial enforcement of constitutional rights.
3) The arguments and questions over the Bivens extension reveal an unfortunate conflation of what should be distinct issues--constitutional merits, availability of a cause of action, and qualified immunity. Government attorneys and questions from the bench (especially from the Chief) worried that the possibility of a suit for damages against policymaking officials would over-deter officials concerned about their conduct ultimately being determined. But that concern is already addressed by qualified immunity, a point respondent's counsel* nailed in her argument. And Justice Kennedy called for a targeted qualified immunity analysis for claims against national policymakers, seemingly recognizing that the immunity analysis was the locus for that consideration. Plus, the two-step immunity analysis allows damages actions to serve as a vehicle for developing constitutional law, at least when the Court chooses to undertake that inquiry--but only if Bivens allows the Court to examine and analyze the constitutional merits.
[*] Respondent's counsel was Rachel Meeropol of the Center for Constitutional Rights--and, I just learned, the granddaughter of Julius and Ethel Rosenberg.
This is not a new problem. In Wilkie v. Robbins, the Court pushed concerns about the scope of substantive due process as a reason to reject a Bivens cause of action.
4) Justice Kennedy, who has voted to reject the Bivens action in every recent case, seemed surprisingly sympathetic to the petitioner. Some questions to the government suggested concern that the respondents had no meaningful remedies and his questions to the respondent seemed to tee-up her arguments. Maybe that is how the Court avoids a tie. [Update: I should clarify--that is avoid a tie on the Bivens question. I expect a majority to find that all the defendants have qualified immunity]
Thursday, January 19, 2017
More on Zervos v. Trump
Or, as it will be called on my Civ Pro exam, Pervos v. Drumpf (really, you cannot make this stuff up):
Michael Dorf has a typically excellent analysis of the decision to sue in state rather than federal court He concludes that it was a strategic blunder, given the risk of a presidential immunity in state court.
There also have been interesting discussions on the Civ Pro listserv about a number of built-in issues, including:
• Trump's domicile and what happens to that on Friday, as well as how that might have affected the plaintiff's decision to file when she did, rather than waiting until next week.
• Removability, both under current removal statutes (which turns on the domicile question) and as a matter of Article III, were Trump to raise some sort of presidential immunity in state court.
• Whether Trump might go to SCOTUS and ask it to use its All Writs Act authority to rule that the President enjoys immunity from suit in state court and that any lawsuit against him only can proceed in federal court.
More civ pro in SCOTUS
SCOTUS today granted cert in Bristol-Meyers Squibb v. Superior Court, another personal-jurisdiction case. This one should provide an opportunity to define when contacts give rise or relate to a claim (and whether those two things mean the same thing) for general or specific personal jurisdiction.
Wednesday, January 18, 2017
Donald Trump and civil procedure
Donald Trump undoubtedly hates procedure, because it may interfere with his focus on substantive ends (unless procedure furthers his substantive ends--see College, Electoral). But all the litigation surrounding Trump and his businesses can be a boon for teaching and illustrating procedure. My fall Evidence exam was all Trump University. Now we have the defamation lawsuit by former Apprentice contestant Summer Zervos, alleging that Trump defamed her when he called her a liar in denying allegations that he sexually assaulted her. Merits aside, the case could be used to set-up and demonstrate a number of procedural issues.
For now, I want to focus on what the plaintiff's strategic choices tell us about diversity jurisdiction, at least from a plaintiff's standpoint. Diversity supposedly exists so the out-of-stater, forced to come into the state to litigate (I doubt Zervos could have gotten Trump into court in any other state), can find a neutral forum that will not favor the local over the foreigner. But here, a Californian filed a state-law action in New York against a New Yorker in state court. It is worth thinking about that choice. One possibility is that Trump is unpopular in New York, so the federal forum is unnecessary. Another is that federal procedure has become so plaintiff-unfriendly that plaintiffs would rather take their chances with state procedure, even against a local. Or maybe that original assumption--federal courts are better because more free of local bias--was never true. Or if it was, it is not anymore. As I said, good discussion and/or exam fodder.
Tuesday, January 17, 2017
Antitrust or corporate speech?
Is this supposed plan among San Diego-area (and possibly Los Angeles-based) moving companies not to take any jobs related to the Chargers move to L.A. an antitrust violation? I know consumer boycotts are protected free-speech. But isn't an agreement among members of an industry not to engage in certain business behavior the anti-competitive collusion the antitrust laws prohibit? Is it different if the collusion is for expressive purposes? And if so, wouldn't that swallow the antitrust laws, because companies always would argue that their business decisions were driven by political concerns?
Besides what better captures the sadness of a franchise relocation?
Monday, January 16, 2017
Sponsore Post: West Study Aids
The following post is by Anna Lawless-Collins, Associate Director for Systems and Collection Services at Boston University Law School, and is sponsored by West Academic.
The Fineman and Pappas Law Libraries at Boston University added the West Academic Study Aids Subscription in April 2016, just in time to help with end-of-year exams, and it was an immediate hit with our students. We went on a marketing blitz (aided by materials sent by West Academic) and set out table tents, posted flyers, added slides to the law school's slide show, blogged about it, and handed out materials at the circulation desk. We even wore buttons encouraging students to ask us about using the materials. Students told our library director, Ron Wheeler, that they find the online versions infinitely better than the print reserve materials - not least because they can use them anytime and anywhere. They don't have to worry about other students returning the materials late or the print versions going missing.
From the implementation end, we worked with the West Academic team to set up school branding on the page. Now, when students visit the page, it's clear that the library is providing access to the study aids. It also includes a "Most Popular at Your School" module that pulls real-time usage reports from our school. That, plus the "Recent Releases" module, shows students new and important content their peers are accessing. We are also using the free MARC record collection from OCLC to ensure discoverability in our catalog. We have had to do some tweaking to the records to make sure they are complete and to get the records to FRBRize with our print holdings, but that work is minimal when compared to the number of records we are adding with the monthly updates.
The platform initially was only accessible from the Westlaw home page, but recently moved to an independent platform with IP access. This allows students to browse the titles as a guest, but they still have the option to create their own account and sign in to their own account within the platform. If they do that, they can take notes, highlight passages, and keep track of important information in their own accounts. Students have told our Head of Access Services that this platform is the easiest to use of all our eBook platforms. The usability, good content, and new features being added (like audio lectures) has led to high usage. For Fall 2016, we saw our usage rise steadily over the semester, reaching a high of well over two thousand document views for the exam period in December.
The statistics themselves are very useful. We can see breakdowns by month, guest users by IP authentication, and unique visitors by month. We also get breakdowns showing which series are being used and how frequently, number of global searches, the top search terms, searches within books, and the top ten books searched. This gives us a good idea of what our students are looking for help with and we can use that to help guide our collections decisions in other areas.
The Study Aids Subscription from West Academic has been a great investment for us. It's helped our students access materials more easily during stressful times, it's eased the burden on our print reserves collection, and it's created an enormous amount of goodwill for the library.
Friday, January 13, 2017
Procedure returns to SCOTUS docket
SCOTUS granted cert in sixteen new cases today. Several involve procedure/fed courts issues, including:
• The scope of general personal jurisdiction over a U.S.-based company in a state.
• In what court a fired federal employee can challenge rejection of the Merit Systems Protection Board decision, when the Board concludes that it lacks jurisdiction over a "mixed case" involving both a firing and a violation of federal employment-discrimination law.
• Whether intervenors in federal court must establish Article III standing or whether it is enough that the original parties have standing. (This issue has been around for awhile and came up back during the marriage-equality litigation).
Looks like I will have some stuff to write about late in the Term.
Last of its kind?
DOJ has entered into a consent decree with the Baltimore Police Department in a § 14141 action. As with many of the consent decrees we have seen from the Obama DOJ, it requires extensive changes to department policies and practices with respect to use of force, community engagement, and respect for the rights of people to speak and protest in public and to observe and record police activity. It also requires development of new practices with respect to transporting persons in custody and dealing with people with behavioral disabilities.
The question is whether this is the last such consent decree we see for awhile. Jeff Sessions does not appear to see systemic unconstitutionality in state and local police departments, nor does he appear to believe that the federal government and federal courts should oversee the operations of local agencies. It is unlikely that whoever Bush Trump appoints to head the Civil Rights Division will take a much different view of the matter. Extensive use of consent decrees through § 14141 is not in the Republican playbook--the Bush DOJ brought few civil actions and entered few consent decrees, preferring to engage in informal negotiations and letters of agreement, a less-adversarial/more-cooperative approach that does not necessarily produce as comprehensive reforms.
Wednesday, January 11, 2017
Goodyear v. Haeger oral argument
Here, I want to highlight (as I do in the SCOTUSBlog piece) the analogy offered by Haeger's counsel between litigation and a train. He explains that most sanctionable conduct merely delays the train or causes a detour, although the train still arrives at the intended station. Here, the “train jumped track and it went in an entirely wrong direction.”
But does a train continue moving in any direction, right or wrong, once it jumps the tracks? Isn't it more like the beginning of The Fugitive?
Monday, January 09, 2017
Shorter White v. Pauly
Unless an officer walks up to an unarmed man and shoots him in the head while shouting that he knows the victim was not a threat, stop denying police officers summary judgment in excessive force cases.
Less Hollow Hope on the defensive side
Judicial appointments always seem to be less of a high agenda item for Democrats than for Republicans. At the voting level, polls show that voters who identified the composition of SCOTUS and the federal courts as the most or a very important issue broke strongly for Trump.*
[*] On an AALS panel about the presidential transition, Steven Calabresi argued that this means Trump's promises about judicial appointments, especially to SCOTUS, are the equivalent of Bush I's "read my lips," to which Republican voters will hold him. If Calabresi is right, this will affect the result of any systematic Democratic efforts to oppose any Trump nominee.
At the presidential level, Reagan appointed 50 more judges in his eight years than Obama did in his, and Obama leaves office with about twice as many judicial vacancies (more than 100) than Bush II left in 2009. (So however Obama transformed the federal judiciary likely will be undone by Trump, who has a significant number of lower-court vacancies to fill immediately, along with the Scalia seat). Although Obama nominated and praised Merrick Garland and did speak about the waiting nomination, he did not do it so loudly or so often to keep the issue from largely disappearing from the news. I do not know if more political heat would have changed anything--if Republican voters genuinely care more about the courts than Democratic voters, there was no constituency to force Republican hands on this.*
[*] Which may offer another reason that Democratic attempts to hold the Scalia seat open indefinitely will fail--the Republican voters outraged at the obstruction will be louder and more numerous than were the Democratic voters outraged over Garland.
Some of Obama's less-than-complete success is due to Republican obstruction and that the Republican-controlled Senate has confirmed virtually no nominees during the past two years. But Obama had six years of a Democratic Senate, the last two of those without a filibuster on lower-court nominees (although still blue slips), which might have allowed him to push through a bigger flood of lower-court judges into those vacancies, had he been so inclined. (And this is without getting into judicial ideology, where Obama's (and Bill Clinton's) nominees never appear to be as liberal as Bush's (and likely Trump's) have been conservative).
But Obama never seemed so inclined, at least not outwardly or forcefully. One possible explanation is that Obama adheres to the arguments of University of Chicago political scientist Gerald Rosenberg in The Hollow Hope that the courts are not effective agents of social and political change and that progressive activists must focus more on the political branches. (The greatest social-change success came during the 1960s, the one time in history when the courts and Congress were on the same page). Obama is, at heart, a believer in political activism on the ground, back to his days as a community organizer, rather than in the courts. And that seems to have affected his approach to filling judgeships.
But there is a defensive component to our hopes for the courts. Courts are essential to protect what activists achieve in the democratic process. Or, stated, differently, they offer the other side a great way to stop or reverse social change that comes from the political branches. Packing the courts with Democratic nominees is essential to secure those political-branch successes, even if the courts should not be the primary target for establishing rights in the first place.
And it is not only about protecting statutes and regulations from declarations of unconstitutionality.*
[*] See Voting Rights Act or the Medicaid expansion or DAPA. Or, historically, everything between 1933 and 1937. Or imagine if a Republican-controlled Court had come out the other way on the constitutionality of public-accommodations provisions.
It is, perhaps more importantly, about protecting against judicial interpretation and construction that sharply narrow the scope of those statutes and regs, thereby undermining their impact and social-change purposes.*
[*] See, e.g., restrictive interpretations of Title VII and other employment discrimination laws.
And we can add to that sub-constitutional procedural decisions closing the courthouse doors to those who would seek to avail themselves of statutory and constitutional rights.
[*] See Twiqbal or recent restrictions on class actions.
That is what Republicans achieve by dominating the courts and by making that dominance a central goal of every presidential administration. And what Democrats lose by not. The power to reverse that trend is what was lost by the failed Garland nomination, the failed Clinton candidacy,the failure of Obama to push more on judges, especially in his first six years, and the substantial number of vacancies he leaves to be filled by President Trump. (I recognize this reflects the "Disease of More": Obama achieved a lot with respect to the federal judiciary--it just never feels like enough).
And to put on a candidly partisan hat for a moment (remember, the banner says "almost always"): This, more than the probable loss of Roe as a constitutional doctrine or the loss of an opportunity to finally define and implement a vigorous liberal constitutionalism, is what saddened me most about the results of this election.
Saturday, January 07, 2017
Elevating judges during recess
Based on comments to my earlier post and some emails, the key question on elevation and resignation is more specific: Is a judge elevated on a recess appointment differently situated than a judge elevated through the ordinary appointment process.
It seems to me that a recess appointment is substantively the same as a regular appointment, but the process is flipped--the nominee assumes the office first and then the Senate confirms (or does not confirm). But during the recess-appointment period (the period between the appointment and Senate confirmation), the officer is in all senses identical to someone appointed through the regular process, fully occupying that office and exercising its powers to the same extent. That being the case, if acceptance of a regular appointment accompanies a resignation from the lower-court (however that happens and pursuant to whatever legal source), so should acceptance of a recess appointment.
The counter argument must be that the trigger for resignation of a lower-court judgeship (again, whatever the source of that requirement) remains Senate confirmation and acceptance of the commission to the higher court. On this view, a recess appointment is not substantively the same as appointment following Senate confirmation--it merely ensures that the work of the office gets done until the Senate returns and confirms, but does not alone alone fill the vacancy, impose the resignation obligation, or create the new vacancy on the lower court.
But that means Obama erred in not making a recess appointment. I had argued that it was not worth eleven months of Justice Garland (the longest he would have been able to serve, until December 2017) if the end result would be Garland on neither SCOTUS nor the DC Circuit. But my reasoning was that Obama would not want to create the lower-court vacancy and Garland is too young to want to no longer be a judge. But my conclusion rested on the premise that Garland would have been unable to return to the DC Circuit when the recess appointment ended. But if Garland's DC Circuit seat would have been waiting for him next December, then Obama had nothing to lose and everything to gain from this move.
Friday, January 06, 2017
Elevating judges and creating vacancies
On my prior post about the expired Garland nomination and the Scalia vacancy, my former professor Steve Lubet questioned why a Garland recess appointment would have created a vacancy on the D.C. Circuit. After much research, I am unable to find a provision expressly barring judges from simultaneously holding seats on two courts or declaring that accepting a seat on a higher court constitutes a resignation from the lower court. It simply is and seems to always have been.
A Congressional Research Service report from earlier this year declares, without citation, "[a] judicial vacancy is created by an incumbent judge['s] . . . elevation to a higher court." When nominating lower-court judges for a higher court, presidents since Washington have contemporaneously nominated someone to the lower court, although the nomination is contingent on the elevated judge being confirmed; if she is not, the contingent nomination is withdrawn because there no longer is a vacancy. And there is extensive political science and historical literature about Presidents elevating from the lower courts precisely because it allows them to fill two vacancies--the existing one on the higher court and the one they create on the lower court by moving a judge from the lower to the higher court.
But I cannot find a statutory basis for this. The relevant provisions regarding appointments or tenure make no mention of and none of the literature cites to anything. The assumption underlying the appointment process, seemingly for everyone, is (and always has been) that elevation means resignation and creates that new vacancy.
If anyone knows a basis for this that I am missing, please share in the comments.
Thursday, January 05, 2017
JOTWELL: Steinman on Delaney on avoidance
The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective (Duke L.J.), which explores ways that judges on different courts avoid difficult decisions.
Tuesday, January 03, 2017
MarkelFest! at AALS on Wednesday (Moved to Top)
We will continue a PrawfsBlawg tradition with another MarkelFest! Happy Hour at the AALS Annual Meeting in San Francisco. It will be at 9 p.m. on Wednesday, January 4, at Romper Room, 25 Maiden Lane in Union Square; go to the private room upstairs, called the Leopard Lounge (buy drinks at the bar downstairs). The bar is about a 10-minute walk from the Hilton (walk up O'Farrell, left on Grant, right on Maiden Lane).
Please spread the word. And come join us for drinks and conversation. See you all there.
Goodyear v. Haeger argument preview
At SCOTUBlog, I have a preview of next week's argument in Goodyear Tire & Rubber Co. v. Haeger, considering the causation requirements for a court to impose bad-conduct discovery sanctions (in the form of attorney's fees) under its inherent powers.
Sunday, January 01, 2017
Ode to a District Judge
The Chief Justice's 2016 Year-End Report on the Federal Judiciary is an extend paean to federal district judges and the yeoman work they do as judges, administrators, and managers,* particularly in working with the 2015 discovery amendments and being more actively engaged in managing dockets and individual cases. As I did last year, I will assign the report for the first day of Civ Pro next week, because it provides a nice overview of the focus of that class.
[*] And lumberjacks. As in a "lumberjack saves time when he takes the time to sharpen his ax," just as district judges save time when they are more engaged in case management. As I say, he cannot help himself.
A couple notable omissions. Roberts mentions active and senior judges, but not magistrates, who in many districts deal with discovery and case management, at least on the first pass. The Report thus downplays the extent to which much of this important work is delegated to judicial officers lacking Article III protections, with all the concerns that might raise. Similarly, it mentions settlement as a benefit of skillful exercise of docket administration and case management, but does not mention that this often goes through ADR processes, again through bodies lacking Article III protections. Finally, the Report's tone of respect for the work of trial-court judges stands in stark contrast to the late Justice Scalia's question during oral argument in Iqbal. In challenging the argument that careful case management and control over discovery was the better alternative to a heightened pleading standard, Scalia said "well, that's lovely. The ability of the Attorney General and the Director of the FBI to do their jobs without having to litigate personal liability is dependent on the discretionary decision of a single district judge." The last two Annual Reports reflect a very different attitude towards the work of district judges. Of course, one could read this (as some did the 2015 Report) as Roberts nudging district court judges to his preferred exercise of discretion--more restrictive discovery and more early case resolution.
Speaking of Justice Scalia, it is interesting that Roberts did not mention his death and the political games surrounding that vacancy. It seems that Roberts is not going to follow the paths of Chief Justices Taft or Hughes in jumping into expressly political fights, even where the work and functioning of the Court is implicated by the actions of the other branches.