Thursday, April 26, 2018

Adler on same-day audio

Jonathan Adler argues that nothing bad happened after the Court released the Trump v. Hawaii audio the same day and there is no reason not to make same-day audio the regular practice.

Posted by Howard Wasserman on April 26, 2018 at 08:41 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Stand in the place where you work

I began using a standing desk about five years ago, when my colleague Eric Carpenter joined the faculty from the military, where he used a standing desk. About 5-10 people now use standing desks, including one who bought herself a treadmill desk. I bought StandStand, a portable standing desk invented and crowd-funded by Luke Leafgren, a professor at Harvard.

This story reports on recent studies suggesting that the cognitive benefits gained from walking (which might explain why I pace when teaching) are gained by standing while at your desk. Maybe while keeping my classroom laptop-free, I should give students the option of standing in class.

Posted by Howard Wasserman on April 26, 2018 at 04:50 PM in Howard Wasserman, Teaching Law | Permalink | Comments (5)

Wednesday, April 25, 2018

Cosmic injunctions

Not much discussion of universal injunction in Wednesday's argument in Trump v. Hawaii. The one real exchange occurred late in Neal Katyal's argument for Hawaii, prompted by Justice Gorsuch, who questioned the "troubling rise of this nationwide injunction, cosmic injunction." Gorsuch recognized that the issue was not geography, but district courts issuing a remedy "not limited to relief for the parties at issue or even a class action" and  "assert[ing] the right to strike down a -- a federal statute with regard to anybody anywhere in the world." Katyal acknowledged sharing Gorsuch's impulse, but argued that the Court should not address the issue in this case, because of its immigration context and the need to leave it to lower courts to figure out in the first instance.

I am curious whether the lack of interest in the scope of the injunction hints at where the Court will come down on the merits.

Posted by Howard Wasserman on April 25, 2018 at 08:59 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

What to cover and when

There is a connectedness among the pieces of the law-school curriculum, one that may have increased as we have expanded course offerings, eliminated required courses, decreased hours (at least in 1L), and varied the types of offerings. Sometimes this is personal--I used Fed Courts to cover stuff (such as the Grable line) I cannot get to in Civ Pro and Civil Rights to cover stuff (all of § 1983 and Bivens) I cannot get to in Fed Courts. Other times it is broader, as some courses rely on other courses for foundation and connection--we want students to know crim law and procedure before we send them to work in a prosecutor or PD office.

And sometimes this touches not only on what we teach in doctrinal classes, but the order in which we teach it. There is a never-ending debate in the Civ Pro world about whether to start with pleading and the FRCP or jurisdiction (and then whether subject matter or personal). I am in the former camp, initially because the person I learned Civ Pro from is in that camp and now because I believe it is the best approach, although I see the merits to the alternative. My FIU colleague who teaches the other section of Civ Pro begins with Pennoyer. In Evidence, I begin with Relevancy and do not reach Hearsay until the final month of the semester, again because that is how I learned the material. My FIU colleague who teach the course reaches Hearsay much earlier in the semester.

I was speaking with my colleague who runs our outstanding Academic Excellence Program, working with marginal spring 1L and fall 2L students (this program is a big reason for our Bar-pass success). He links his support class to particular doctrinal classes--Civ Pro for spring 1L and Evidence for fall 2L; the special extra assignments and close support he provides are for writing assignments linked to those classes. And this difference in order of coverage is causing him some headaches. If he assigns a question on Hearsay or P/J or discovery early in the semester, only half the class will know the material from the doctrinal course.

I am not sure how to resolve that problem. I have considered reasons for teaching in the order I do, as do my colleagues, and I doubt either of use will convince the other. Order, it seems to me, affects how I teach the material and changing the order changes how I teach. I can teach Hearsay a certain way because, by the time we get there, my students have a basic understanding of relevancy; I can teach Personal Jurisdiction a certain way because, by the time we get there, my students have a basic understanding of what a civil action and what it looks like. Again, my colleagues would say the same in reverse.

But our choices, however well-founded, have downstream effects.

Posted by Howard Wasserman on April 25, 2018 at 09:25 AM in Howard Wasserman, Teaching Law | Permalink | Comments (4)

Tuesday, April 24, 2018

I only want to see you working on your Civ Pro test

Zimmer as Trustee for the Kin of Prince Rogers Nelson v. Trinity Medical Center, a wrongful death action in Illinois state court by Prince's Estate against the hospital and doctors in Moline, Illinois that treated him, and failed to recognize a possible overdose, about a week prior to his death, and Walgreen's, two Walgreen's stores, and several Walgreen's pharmacists for prescribing him medications improperly.

Consider:

• All the defendants are from Illinois, except for the two Walgreen's stores, which are located in Minnesota (where Prince was a citizen prior to his death). Those defendants destroy complete diversity, keeping the case in state court. And that likely is the reason they were sued. Of course, even without the non-diverse defendants, the case is not removable because of the forum-defendant rule.

• It is not clear how there could be personal jurisdiction over the stores. I presume they filled prescriptions for drugs for Prince in Minnesota and had no obvious connection or direction to Illinois in their prescription activities. There are allegations in the Complaint that sound in obtaining jurisdiction over the stores through their connections to Walgreen, which is an Illinois corporation with its PPB in Illinois and subject to general jurisdiction. So it is the converse of Daimler--attempting to use a parent to get jurisdiction over the underling.  I suppose there is purposeful availment through owning a Walgreen's franchise (which presumably requires some contractual or other relationship with Walgreen's), but those contacts don't give rise to this claim. (The analogy would be if someone who choked on a Burger King fry sued Rudzewicz in Florida, based on his franchise agreement with BK). Expect the stores to move to dismiss for lack of personal jurisdiction (although, because of the F/D/R, dismissing them has no removal effects).

• There is an interesting state venue question. The lawsuit was brought in the Circuit Court of Cook County. But Prince was treated at a hospital in Moline, Illinois, in Rock Island County. Illinois law makes venue proper in the county of residence of any defendant, with corporate defendants residing in any county in which it has a registered or other office or is doing business. Walgreen's headquarters is in Deerfield, in Cook County.

• The case offers a simple illustration of the fact that conduct in one state injuring someone who is from another state does not, without more, create personal jurisdiction in the injured person's home state. Hence the Estate going to Illinois rather than making the defendants come to Minnesota.

Posted by Howard Wasserman on April 24, 2018 at 08:23 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, April 22, 2018

Universal injunctions in Trump v. Hawaii and Chicago v. Sessions

SCOTUS hears argument on Wednesday in Trump v. Hawaii on the constitutional and statutory validity of the third travel ban, including (perhaps) the validity of the universal injunction. Marty Lederman explores the scope-of-injunction issue; he concludes that if the court reaches the scope question, it may be entirely dicta. A Supreme Court decision declaring the ban constitutionally invalid will, in almost all cases, result in the government suspending enforcement across the board. So the Court passing on the scope issue will have no practical effect.

Meanwhile, a divided Seventh Circuit panel affirmed the universal injunction as to the sanctuary-city-funding regulations. Sam Bray critiques the ruling at the VC. I will be spending the coming week updating some writing on the subject.

A few thoughts after the jump.

Marty's argument that a Supreme Court decision has the same effect as a universal injunction is right as a formal matter, because the President tends to proceed on an assumption of judicial supremacy--the Court's constitutional word is the last constitutional word. Much of the public shares that assumption, so the President may be politically bound to do the same. But a committed judicial-departmentalist executive could make these questions interesting.

Marty touches on the plaintiffs' Establishment Clause argument in favor of universality--that a limited injunction "fail[s] to 'remove the stigmatic harm that respondents suffer based on ‘the simple enactment’ of the Government’s policy.'”  Although I do not discuss it in my article, this argument has never made sense to me. The traditional conception is that the simple enactment of a law, regulation, or policy does not violate constitutional rights; only the (actual, attempted, or threatened) enforcement of the law, regulation, or policy violates constitutional rights. And I do not believe there is anything unique about the Establishment Clause in this regard. The E/C cases involving stigmatic harm have involved executive actions sending a message of exclusion--religious displays, football prayer, legislative prayer, etc. Stigmatic harm has not been a basis (to my recollection--I have not looked at this recently) for challenging the enactment and existence of the law itself. If it were, the injunction would have to compel repeal of the law or regulation, rather than prohibiting its enforcement. This logic, if it prevails, could not be limited to the Establishment Clause. It also should apply to speech cases, because the "simple enactment" of the law would have a chilling effect even on those not threatened with enforcement, justifying an injunction to protect them along with the threatened (so as to have standing) plaintiffs.

Hawaii also argues that it cannot identify in advance who might seek to study there so as to be protected by the injunction, so everyone must be protected. But the difficulty of identifying those with a sufficient connection with the plaintiff can be left for future enforcement of the injunction protecting Hawaii; it need not be decided at the point of issuance.

As for Chicago and sanctuary cities, the court deserves credit for offering a detailed and non-conclusory defense of universality, only the second court to do so (the other being the district court it was affirming). Sam captured the defects in the opinion. The problem remains the same. The attempt to allow this universal injunction while limiting universal injunctions to "rare circumstances" fails, because the limiting principles are not limiting principles and appear to justify a universal injunction in every case.

Posted by Howard Wasserman on April 22, 2018 at 05:59 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Saturday, April 21, 2018

More on PowerPoint

As one of the "Oh, I never use PowerPoint" people Derek mentions, I wanted to add on to a couple pieces of his post. Derek says he uses PP for three things: 1) The text of a rule or statute; 2) Visualizing a concept such as a flowchart; and 3) Photos and other AV material. And he and I teach some of the same classes.

First, not using PowerPoint is not the same as "simply sp[eaking], lectur[ing], engag[ing] in Socratic dialogue." While I (proudly) never use PP, I fill the dry-erase board with flow charts, key terms or phrases, hypothetical problems, and occasionally statutory text, especially if I want to break the pieces of the statute down. I recall a SEALS panel on using AV in class and one of the speakers presented his slide for the Erie flowchart. It was the same flowchart I use, just with more color and boxes and permanency. But the dry-erase board allows me to interact with the visuals, circling and underling things as we go, something that is impossible on the sterile slide (even with a laser pointer).

Second, the drawback to putting text on a slide is that students stare at the slide instead of the text in their books. I want them to learn to read and highlight or underline or mark-up the text as they go, by having the text right in front of them and being able to work with it. I have been aware this semester of how much students jot down what they hear about a statute in their notes and use the remembered language from their notes, rather than going back to the precise text and textual language. This is important when we are jumping around to multiple rules and they have to figure out how to read the rules together and fit them as parts of a whole. I prefer to read the rule together, with everyone looking in her own book, rather than presenting it in one spot for all.

Third, Derek says he does not churn through and read slide after slide. But the temptation to do so is overwhelming and commonplace, thus becoming expected by students and audience members.

Fourth (and this is going to be a matter of personal style), the question must be whether a visual adds something to the presentation and to the students' learning. When teaching Lujan, does it really add to the students' understanding of the case to flash a picture of the Nile Crocodile? It's nice as trivia or cocktail-party conversation--which certainly is important--but does it help the students understand the material? If my answer is no, it is something I leave out of the classroom, but perhaps present on the course-adjacent blog or web site.

Finally, while I believe I shared this story here years ago, it is worth repeating. It involves an academic talk rather rather than class, but it gets at the same thing. I was presenting my empirical study of the infield-fly rule , which had charts with numbers and pictures of fields showing location of batted balls, and the AV system was not working. The moderator told me to "do the best I can," which would have been "not at all," since the talk would have been incoherent without the audience being able to see what I was talking about. (They fixed the system by the time I got up there, so it worked out). That the moderator could believe the talk could work without the visuals tells me that many people are giving many talks using PP that adds nothing of consequence, probably with visuals that contain the text of what the speaker is saying and that are going to be read, but nothing more. If someone can do the same talk and be as understood without the visuals, the visuals add nothing essential and can be discarded.

Posted by Howard Wasserman on April 21, 2018 at 05:47 PM in Civil Procedure, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (9)

Thursday, April 19, 2018

Speeding cases

Last week I flagged Suja Thoma' JOTWELL review of the study by Miguel de Figeueirdo, Alexandra Lahav, and Peter Siegelman of the effect of the six-month list on judicial decisionmaking. Those authors criticize new regulations requiring immigration judges to clear a minimum number of cases to be evaluated as satisfactory. Based on their findings on the minimal-or-negative effects of the six-month list on the quality of judicial deisionmaking, they conclude that imposing such obligations on judges who lack life tenure will "cause their decisions to suffer even more."

I continue to wonder whether there are due process concerns with these regulations, by giving judges a personal or pecuniary interest in the case--if not in the outcome, then in the way in which it is litigated (which affects the outcome).

Posted by Howard Wasserman on April 19, 2018 at 07:00 AM in Article Spotlight, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

An even more unusual role

I have written before that Justice Thomas rarely assigns majority opinions, given seniority and the Court's ideological breakdown. Well, according to Slate's Mark Joseph Stern, Tuesday's opinion in Sessions v. Dimaya marked the first time in 25 years on the Court that Justice Ginsburg assigned a majority opinion, when Justice Gorsuch provided the fifth vote with the Ginsburg/Breyer/Sotomayor/Kagan block. That fifth vote, if it comes, usually comes from the Chief or Kennedy, both of whom are senior to RBG. In addition, Stern (citing Adam Feldman) says this was the sixth time a female justice assigned an opinion; the other five were by Justice O'Connor, who usually did not get to assign because she was in a majority with Chief Justice Rehnquist or Justice Stevens.

The assignment power remains an interesting future project. I have to figure out the different empirical routes that must be explored.

Posted by Howard Wasserman on April 19, 2018 at 12:35 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, April 18, 2018

What is a heckler's veto?

Paul's post about reexamining the doctrine surrounding the heckler's veto, in response to some comments on this post, leads to an open question: What is a heckler's veto and what is the doctrine surrounding heckler's vetos?

The phrase "heckler's veto" appears only 12 times in the U.S. Supreme Court's database, often in dissents or in passing, including in two non-free-speech cases. None involves the paradigm cases, which I think are the following: 1) Police arresting or restricting a speaker because the people around him become violent and threaten to hurt the speaker or damage property (this is TerminielloFeiner, and the Nazis in Skokie); 2) Laws setting a legal standard that burdens a speaker because of actual or anticipated audience reaction (this is Forsyth County); and true no-platforming, in which a university denies or rescinds a speaker invitation or permit in response to threats of disruption. Close to the center are cases in which police or other authorities do nothing and allow the hecklers to attack or otherwise physically disrupt the speaker (there might be a DeShaney problem here, unless the speaker can show the failure to act was because of his speech). The point is that overnment must do something (or refrain from acting for a speech-discriminatory reason) to create the veto. The doctrine is clear--such vetoes are impermissible,* at least outside of narrow contexts (such as the community standards prong of obscenity or the "disruption" concern for student speech) or if there is a compelling interest in not having to spend hundreds of thousands of dollars on security.

[*] Although Feiner famously came out the other way, the prevailing view is that this no longer is good law.

The question--and there is no Supreme Court doctrine on this--remains if and when literal heckling, as a form of expression, becomes a heckler's veto without government action to halt the original speaker. Is it a heckler's veto if police or government officials do nothing and two speakers talk over one another until one gives up or is unable to proceed? We have to answer that question before we can figure out whether the heckler's veto doctrine must be reconsidered, because it is not obvious how that doctrine applies to these situations in the first place.

Posted by Howard Wasserman on April 18, 2018 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Tuesday, April 17, 2018

Foley on appointing a special master in the Cohen case

At the Election Law Blog, Ned Foley questions the potential appointment of a special master to review and determine privilege of the materials seized from Michael Cohen. He concludes:

Thus, it seems to me that there should be an extremely strong presumption in favor of using conventional procedures to handle the Cohen case. If those procedures would be good enough if the client involved were a major business figure (like Mark Zuckerberg), or a major sports or entertainment figure (like O.J. Simpson), then they should be good enough if the client is a business and entertainment figure who later becomes president (like Donald Trump).

I would add two things in support of Ned's conclusion. First, one reason this is a "politically charged case" is that the President has been relentlessly attacking the Department of Justice, including over the seizure of Cohen's documents.There is an unfortunate irony, and perverse incentive, that the President's attacks on the prosecution politically charge the case so as to require special procedures.

Second, DOJ uses filter teams, not a special master, when reviewing materials seized from congressional offices for possible Speech-or-Debate-protected materials. Such cases are at least as politically charged as this one, with the added bonus that they implicate the Separation of Powers when the executive investigates the legislature.

Posted by Howard Wasserman on April 17, 2018 at 02:41 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Sunday, April 15, 2018

Naruto lives

Naruto v. Slater, the so-called "Monkey Selfie" case, lives. The Ninth Circuit denied the Joint Motion to Dismiss the Appeal and Vacate the Judgment, filed after the parties settled. In denying the motion, the court relied on cases in which courts have declined to dismiss appeals following briefing and argument, particularly where the judges suspect a party settled to avoid adverse precedent. Oh, and Naruto was not party to the settlement. (H/T: A Civ Pro student who is interested in the case, since the Complaint is one of the models we use in class).

So now we will get to see if Naruto loses on the merits (as he should, because the scope of a statute is a merits issue) or on standing grounds (as the argument sounded the court was heading).

Posted by Howard Wasserman on April 15, 2018 at 10:28 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Saturday, April 14, 2018

If everyone is a Nazi . . .

Josh Blackman wrote at length about being the target of protests at CUNY Law when he went to do a Fed Soc lecture on free speech on campus. Josh's post includes photos of the gauntlet of signs he walked in the hallway, as well as events inside the room. After several minutes of organized interruptions (including one law student exclaiming "fuck the law") and a warning from school administrators, Josh was able to engage with some audience members and the protesters left the room, after which Blackman did Q&A with the remaining students for more than an hour.

The underlying premise of many protests and attempts at "no-platforming" begin from the premise that the appropriate First Amendment rule, whatever the First Amendment's scope otherwise, should be "no free speech for Nazis and white supremacists." Putting aside the other problems with such a rule, its core problem is that it seems inevitable that everyone becomes (or at least everyone who disagrees with you) becomes a Nazi and white supremacist who must be shut down. Many of the protest signs reflect this misunderstanding.

Erica Goldberg tries to identify the line between the right to speech and the right to protest speech, drawing the line at "coordinated efforts to silence a speaker." Erica distinguishes "an errant 'hey, you're wrong'" from "an effective, premeditated campaign" to shout down a speaker invited to use a designated forum. She also suggests drawing a line around "[s]ubstantive, informed, respectful discussions" and "civil, open-minded, orderly discourse."

I have been trying to identify the same lines, focusing on location (protesters inside the forum v. protesters outside the forum). Erica suggests that some forms of protest, including some verbal protest, are permissible within the forum, which is broader than I had thought of going. But I question whether coordination or terms such as substantive, civil, and open-minded can do much work. The First Amendment does not trust the government to define these terms (and where they begin or end) anymore than it trusts the government to pay a principled line between unprotected outrageous caricatures and protected sharp political commentary. Or between a protected conservative and an unprotected white supremacist.

Posted by Howard Wasserman on April 14, 2018 at 04:18 PM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (16)

Monday, April 09, 2018

"To Kill a Mockingbird," by Aaron Sorkin

Aaron Sorkin is writing a stage play of "To Kill a Mockingbird," with Jeff Daniels set to star as Atticus Finch. The Estate of Harper Lee has sued Sorkin, objecting to the way Finch is written (he "grows" in his racial tolerance over the course of the story, rather than beginning and remaining paragon of virtue throughout).

As that legal drama plays out, some of the courtroom scenes from Sorkin's script leaked. It is reprinted after the jump.

FINCH
(continuing)
Mayella kissed Tom, didn't he? Because she wanted to prove a point to you.

GILMER
Object!

TAYLOR
Counsel.

FINCH will plow through the objections of PROSECUTOR and the admonishments of JUDGE.

FINCH
And when it went bad, you cut her loose.

GILMER
Your Honor--

TAYLOR
That'll be all, Atticus.

FINCH
You beat up Mayella, using your left hand.

GILMER
Judge--

FINCH
You told her to lie about being raped.

GILMER
Damnit, Atticus.

FINCH
Mr. Ewell, did you order Mayella to lie about being raped?

TAYLOR

You don't have to answer that.

EWELL
You want answers?

FINCH
I think I'm entitled to them.

EWELL
You want answers?!

FINCH
I want the truth.

EWELL
You can't handle the truth!

EWELL
(continuing)
Son, we live in a world that has walls between the races. And those walls have to be maintained by uneducated men with bad ideas. Who's gonna do it? You? You, Dill? I have a greater responsibility than you can possibly fathom. You weep for Tom Robinson and you curse the poor, racist whites in town. You have that luxury. You have the luxury of not knowing what I know: That this accusation, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives.
(beat)
You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You need me that wall. We use words like racist, ignorant, devaluin' my property...we use these words as the backbone to a life spent defending poverty and violent racism. You use 'em as a punchline.
(beat)
I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very racist and segregated society I provide, then questions the manner in which I provide it. I'd prefer you just said thank you and went on your way. Otherwise, I suggest you join the Citizens' Council and start mistreating Blacks. Either way, I don't give a damn what you think you're entitled to.

FINCH
(quietly)
Did you order Mayella to accuse Tom of rape?

EWELL
(beat)
I did what I had to do.

FINCH
Did you order Mayella to accuse Tom of rape?

EWELL
(pause)
You're goddamn right I did.

Posted by Howard Wasserman on April 9, 2018 at 10:31 AM in Howard Wasserman | Permalink | Comments (4)

JOTWELL: Thomas on De Figueiredo on the pending case list

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Miguel de Figueiredo, Alexandra D. Lahav & Peter Siegelman, Against Judicial Accountability: Evidence From the Six Month List (available on SSRN), an empirical study of the effects of the pending-case-and-motion list.

Posted by Howard Wasserman on April 9, 2018 at 10:02 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, April 05, 2018

Erie and litigation financing

Wisconsin enacted a law amending its discovery rules to require that a party's initial disclosures include "any agreement under which any person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on and sourced from any proceeds of the civil action, by settlement, judgment, or otherwise." (§ 12 of the legislation). The political valence is that this is a victory for business defendants over the plaintiff's bar (which is how it was fought in the state), although there is some broader support for disclosure of third-party funders in the wake of Peter Thiel's funding of Hulk Hogan's suit against Gawker.

There also is an interesting Erie/Hanna question of whether a plaintiff must disclose this information in state-law actions in federal court. Since I am afraid I am not going to reach Erie (at least not in-depth) this semester, it may have to wait until next year. After the jump, I take a stab at what I think should be the analysis.

The quick answer would seem to be no, it is not required. The disclosure requirement is in the state discovery rules. The Federal Rules contain a provision that covers mandatory disclosures and does not include funding arrangements. Rule 26 is a rule of practice and procedure because it at least arguably regulates the manner and means by which rights are enforced or the fairness and efficiency of the truth-finding process. And since no procedural rule has ever been held to abridge, enlarge, or modify a substantive right, it is unlikely this one does (especially since incidental A/E/M is permissible). Were Scalia on the Court, this would be his approach.

But the disclosure requirement is part of a broader state effort (pushed by the Chamber of Commerce) at tort reform (or "civil-justice reform," which now seems to be the lingo), in furtherance of substantive policies of protecting and encouraging businesses to relocate, expand, and remain in the state. This might raise an A/E/M concern, that applying FRCP 26(a) to not require this undermines the substantive rights created by state law. And to avoid that problem, a court might narrow 26(a) to be not controlling, as providing a list of materials that must be disclosed that does not exhaust other disclosure obligations from other sources. And that pushes us to the "relatively unguided Erie analysis." And while disclosure will not materially alter outcomes, it may affect plaintiff's choice of state or federal court. And the recognized state substantive policy at work means the analysis requires application of state law (as it almost always does). I could see Ginsburg doing something like this (this is basically how she resolved Gasperini).

On the other hand, maybe none of this matters. The real question may be whether funding arrangements are discoverable. So even if not subject to automatic disclosure, defense counsel know enough to ask for the information.

Thoughts?

 

 

 

Posted by Howard Wasserman on April 5, 2018 at 11:24 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Class certification and universal injunctions

Judge Chutkan of the District of the District of Columbia last week issued a preliminary injunction barring HHS and the Office of Refugee Resettlement from enforcing policies preventing pregnant unaccompanied undocumented minors in federal detention from obtaining services to terminate pregnancies. Wanting a broad injunction that would reach beyond the four named plaintiffs (all of whom had terminated their pregnancies) to all women who might be subject to the challenged regulations, the court did it the proper way. It certified a class and issued a class-wide 23(b)(2) injunction prohibiting enforcement of the policies as to all members of a class defined as "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government."

Unlike courts in many recent cases, Judge Chutkan  followed the middle step of certifying a broad class, then issuing an injunction protecting the entire class that is the plaintiff in the action. But the case illustrates an important point. If universal injunctions are readily available, no plaintiff would bother jumping through the class-certification hurdles, but will proceed directly to asking the court for the same broad injunction while keeping the action as an individual one.

Posted by Howard Wasserman on April 5, 2018 at 12:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, April 03, 2018

Yet another qualified-immunity summary reversal (Link Corrected)

SCOTUS on Monday summarily reversed the Ninth Circuit's denial of qualified immunity in Kisela v. Hughes, which resulted from an officer shooting a woman in the mistaken belief that she was threatening her roommate with a knife. Such summary reversals of denial of qualified immunity have become commonplace, as you recall. This one brought a dissent from Justice Sotomayor joined by Justice Ginsburg, who argued that, even if the lower court was wrong, it was not "so manifestly incorrect as to warrant 'the extraordinary remedy of a summary reversal.'"

I have not had a chance to read or digest the opinion. But Will Baude offers some comments, especially about the one-side nature of qualified immunity and its evolution into an absolute bar to recovery. So does Orin Kerr, who offers an explanation for why the Court has gone down this road with immunity grounded in the distincion between conduct rules and decision rules.

Posted by Howard Wasserman on April 3, 2018 at 04:41 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, April 01, 2018

The danger of universal injunctions

If you want to see the consequences of inappropriate universal injunctions, look no further than the contempt order imposed by Judge Mazzant of the Eastern District of Texas on the associates of a large firm.

Mazzant issued a universal injunction in 2016 against Obama-era minimum-wage regulations, in an action brought by several states against the Department of Labor. Lawyers representing an individual filed an action in the District of New Jersey against Chipotle seeking to enforce the regulations. Judge Mazzant ordered the attorneys to dismiss the New Jersey action and held the attorneys in contempt. Mazzant held that DOL represented the interests of the individual workers, such as the New Jersey plaintiff, who would be affected by the rule.

The problem here is  the court expanding the scope of the injunction rather than waiting for preclusion to do its work. The injunction should have been limited to DOL (and nationwide, by applying anywhere DOL attempted to enforce the regulations). But there was no reason for the injunction to extend beyond DOL or for this to be resolved as a question of contempt. To the extent DOL represented the interests of individuals (a questionable proposition), that should have been addressed as a matter of preclusion in the D.N.J. case, with the New Jersey court determining whether the second action was precluded.

This case also shows that allowing universal injunctions may harm individual non-parties rather than benefiting them. Proponents of universal injunctions argue that a district court ruling declaring a law or regulation invalid should protect other persons against whom the rule may be applied, without making them file their own lawsuits and obtain their own injunctions. This case presents the flip side--a universal injunction depriving potential rights-holders of any opportunity to litigate these issues themselves.

Posted by Howard Wasserman on April 1, 2018 at 08:23 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, March 31, 2018

12(b)(6) denied in Beckman v. Chicago Bears

I wrote last year about Beckman v. Chicago Bears, a First Amendment lawsuit by a Green Bay Packers fan who holds season tickets and a Personal Seat License ("PSL") at Soldier Field and was prohibited from participating in an on-field event for season-ticket holders because he was wearing a Packers jersey. The district court denied the Bears' 12(b)(6); Beckman plausibly pleaded a connection between the event and the Chicago Parks District to make the Bears a state actor and viewpoint discrimination. (The court granted the NFL's motion to dismiss on standing grounds).

The state-action analysis relies on a combination of the CPD retaining power to approve certain on-field events for PSL-holders and receiving revenues from certain PSL sales. Beckman filed the complaint pro se, so the court's Iqbal analysis bent-over backwards to draw inferences in the plaintiff's favor. The court identified several inferences as plausible despite no express allegations to fill the gap. For example, there was no allegation that CPD approved the event at issue or that Beckman held one of the PSLs from which CPD gained revenues, both facts necessary to the state-action analysis. But the court insisted that both inferences were plausible, which was sufficient.

Posted by Howard Wasserman on March 31, 2018 at 10:30 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, March 27, 2018

SCOTUS: Hall v. Hall and the limits of all-purpose consolidation

SCOTUS decided Hall v. Hall, unanimously (in a most-Robertsian opinion) holding that consolidated cases, even those consolidated for "all purposes," retain their independent identities for finality purposes, so judgment on one set of claims is final and appealable, even if other sets of claims remain in the district court. I called this one wrong, before and after argument. My SCOTUSBlog recap is here.

What I did not expect was the Court's seeming rejection of any distinction between limited and all-purpose consolidation, at least for appealability purposes. (The Court never discussed the scope of consolidation in the case, because it did not matter). Consolidation for all purposes should create a single action--as if separate sets of claims and parties had been joined in a single action in the first instance under FRCP 18 and 20.* In a single action, even complete resolution of some claims or some parties does not produce a final-and-appealable order (absent FRCP 54(b) certification). The Hall Court disclaimed any suggestion that all-purpose consolidation was not allowed. But it pulled finality and appealability out as issues affected by all-purpose consolidation; in other words, all-purpose consolidation does not create a single action for purposes of finality and appealability, although it may create a single action for other purposes. But that takes much of the force from all-purpose consolidation, which no longer produces the same procedural effect (in at least one respect) as if joined in the first instance. And without the finality benefit, it is not clear why else parties or courts would consolidate for all purposes, as all other benefits are available with limited-purpose consolidation.

[*] I teach that consolidation for all purposes is permissible only if the claims and parties could have been joined in the first place--not only because of a common question of law or fact (required in both Rule 20 and Rule 42(a)), but also where the claims arising out of the same transaction or occurrence.

Posted by Howard Wasserman on March 27, 2018 at 02:48 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (6)

"Bound and gagged in body armor, hung upside down"

My analysis of Monday's argument in United States v. Sanchez-Gomez is on SCOTUSBlog. It was a good argument--both attorneys were very good, the Justices asked probing-but-not-obnoxious questions, and the bench left room for both attorneys to answer. I believe the Respondents will win--Kennedy seemed inclined towards them. The title of the post (and of my SCOTUSBlog post) comes from a hypothetical from Breyer.

On a different note, what is going on with the male Justices and Justice Sotomayor. Justice Kennedy interrupted her three or four times yesterday. And in NIFLA v. Becerra (the clinic compelled-speech case) last week, the Chief cut Sotomayor off when she interrupted an answer to a question from Justice Breyer, snapping " Maybe could welet him finish the answer, please?", something the Chief virtually never does--and certainly not as sharply.

Posted by Howard Wasserman on March 27, 2018 at 10:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Jurisdictionality of presidential immunity

Michael Dorf writes about a mini debate with Josh Blackman over whether Congress could by statute grant the President a temporal immunity from suit while in office (overcoming by statute Clinton v. Jones and, for the  moment, Zervos v. Trump). They agree that Congress could do so, although depart over whether Congress could grant the immunity in federal court only (Blackman) or federal and state court (Dorf). The debate, Dorf argues, is over the nature of this immunity--would it be a substantive limitation on other rights or a jurisdiction strip? Dorf says the former, which means it is substantive federal law applicable in state and federal courts.

Count me in the Dorf camp on this. Most immunities are proprly characterized as substantive rather than jurisdictional--they affect who can be sued and for what conduct, core questions of the merits of the claim.

Posted by Howard Wasserman on March 27, 2018 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

JOTWELL: Pfander on Nourse on statutory interpretation and democracy

The new Courts Law essay comes from James Pfander (Northwestern-Pritzker), reviewing Victoria Nourse, Misreading Law, Misreading Democracy (Harvard Univ. Press 2016), arguing for a "legislative decision" approach to statutory interpretation that recognizes how the legislative process functions.

Posted by Howard Wasserman on March 27, 2018 at 01:13 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, March 21, 2018

Student suspended for uttering profanity to congressional staffer

A 17-year-old high schooler in Reno was suspended last week for using profanity in a phone call with a staffer of Nevada Representative Mark Amodei. The student, identified as Noah C., participated in the school walk-out (for which he received an unexcused tardy), during which participants called elected officials to advocate for gun control; Noah told the Amodei staffer that "congress people who are not acting on gun control reforms need to get off their fucking asses and do something." Amodei's office called the school, which suspended Noah (a suspension that also precludes him from serving in the class-council position to which he was elected).

The ACLU of Nevada sent letters to the school and to Amodei. The letter to the school laid-out the First Amendment argument the ACLU would make in a lawsuit. This could not have been in-school speech because it was made during a non-school-sanctioned event for which Noah was marked as being impermissibly out of school; if at school, it was non-disruptive because no one in school heard what he said; and the punishment was more severe because of Noah's viewpoint and his past expressive activities (during a school debate, Noah criticized Donald Trump, rather than talking about the assigned topic). I find the first point especially important--if speech made while a student is impermissibly outside of school is school speech, then the school can reach everything a student does. The letter demands rescission of the punishments imposed, which also presumably would be the remedy sought in the lawsuit, along with nominal damages.*

[*] This case illustrates a unique remedial and framing problem. Noah is presumably in 11th Grade, so he likely will have graduated by the time litigation is complete, allowing the school to vacate any remedy and avoid attorney's fees when the case becomes moot. The claim for nominal damages avoids the mootness problem. But a claim for nominal damages is subject to qualified immunity and there is almost certainly no robust consensus of authority arising from factually similar cases. Noah could sue the school, which does not enjoy immunity, but then the problem is whether the principal who imposed the suspension is the policymaker for the entire school board or school district. I will have to keep this in mind for class.

The letter to Amodei called for a public apology for retaliating against the student by enlisting the school to sanction him, ending with the rhetorical flourish that "[w]hat actions you take next will determine you and your office’s commitment to the First Amendment and the Constitution you swore to uphold and defend." The idea of a Bivens action against the congressman (which the letter did not threaten) raises two interesting problems: 1) causation and 2) Speech or Debate immunity (constituent interactions are viewed as political rather than legislative), but it would be fun to see the argument play out.

Posted by Howard Wasserman on March 21, 2018 at 04:20 PM in First Amendment, Howard Wasserman | Permalink | Comments (10)

Monday, March 19, 2018

Argument preview: U.S. v. Sanchez-Gomez

I have a SCOTUSBlog preview on next Monday's argument in United States v. Sanchez-Gomez, which considers issues of appealability, mandamus, and mootness in a case arising from a district policy of placing all defendants in five-point restraints for non-jury proceedings. (The Court denied cert. on the constitutional merits).

Posted by Howard Wasserman on March 19, 2018 at 12:07 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, March 14, 2018

(Edited)The Next Hanna/Erie issue for SCOTUS (redux)

Three years ago, I flagged a circuit split that I thought my draw SCOTUS' attention--on whether state anti-SLAPP statutes apply in federal court. Three circuits say yes, the D.C. Circuit sahys no. The Tenth Circuit this week joined the D.C. Circuit on the "no" side. Plus, the court divided on whether the denial of a SLAPP motion is subject to immediate review under the collateral order doctrine. SCOTUS has been interested in possible overuse of C/O/D, taking one case and poised to address in another until possible settlement delayed argument.

Another reason to take this is that the Tenth Circuit analysis bears no resemblance to how courts are supposed to approach Erie/Hanna questions (and how the other courts in this split have analyzed the question). The analysis begins and ends with the conclusion that a SLAPP statute is procedural. The discussion of whether there is a controlling federal statute and of Hanna and the "twin aims" of Erie is relegated to a footnote at the end of the opinion, described as the analysis for "more nuanced cases" that leads to the same result but is unnecessary in this case.

Posted by Howard Wasserman on March 14, 2018 at 10:22 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, March 13, 2018

Too clever by a cent

A student shared this story about a plaintiff who sued Southwest Airlines in Missouri state court for the "amount of $74,999.99 and nothing more." The author praises the plaintiff and his lawyer for their cleverness and creativity in keeping the case exactly one cent below the jurisdictional threshold to keep the case in state court. (According to the author, Southwest recently ceased providing service to Branson, so the plaintiff may benefit from the local controversy if the case remains in Taney County, MO, rather than moving 50 miles to the nearest federal court).

If the attorney's goal was to show off his cleverness in keeping the case in state court and his mastery of federal jurisdiction, however, he failed--by one cent. Section 1332 requires that the amount in controversy "exceeds $ 75,000." The federal jurisdictional minimum is $ 75,000.01 and the maximum amount to keep the case in state court is "$ 75,000 and nothing more," not $74,999.99.

I make sure to point this out in class, using the example of a complaint that pleads "the amount in controversy is $ 75,000" would not establish jurisdiction. It is nice to have a specific, erroneous, example to work with. It also shows the students that this stuff matters, at least to how the lawyer is perceived--if you are going to make a big show of cutting under the jurisdictional amount by one cent, make sure you get it right.

Posted by Howard Wasserman on March 13, 2018 at 01:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (27)

Monday, March 12, 2018

JOTWELL: Tidmarsh on Avraham and Hubbard on procedural flexibility

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Ronen Avraham and William Hubbard, Procedural Flexibility in Three Dimensions (unpublished draft, coming to SSRN soon), proposing markets in procedural entitlements (such as depositions or words in briefs). It is a fascinating idea and Avraham and Hubbard were gracious in allowing Jay to read and review an early draft. The piece should be on SSRN soon; we will add a link when it does.

Posted by Howard Wasserman on March 12, 2018 at 08:52 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, March 09, 2018

A quick word on the speech controversy at Lewis & Clark

A quick thought on the students at Lewis & Clark Law School protesting Christina Sommers earlier this week. I confess to knowing nothing about Sommers or why she generated such anger from the students. I was surprised by the heat the event generated--the discussion on the ConLawProf listserv became quite stark. People may have been a bit surprised to see this happening at a law school (recall Heather Gerken's argument last summer that the nature of legal education affects how students go about protesting). There was some discussion of whether the protesters' actions warranted school code-of-conduct charges, which must be reported to the Bar and can create longer-term professional headaches than they would for undergrads.

Having watched the several videos, it appears there were two groups of protesters, inside and outside the room and the building. So this case illustrates the vision of counter-speech and heckling I have been trying to formulate. The latter group was engaged in protected activity. Although they made noise and made it more difficult for Sommers to be heard, they were not interfering with her use of a reserved space in which one speaker had priority right. It appears they were in an otherwise public outdoor space (although I do not know the details or rules about spaces at L&C); if so, their speech in that space should receive equal footing with Sommers' speech in the classroom.

Posted by Howard Wasserman on March 9, 2018 at 12:32 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, March 08, 2018

The Immigration Nexus: Law, Politics, and Constitutional Identity (Updated)

I am in Portland today for the 2018 Spring Symposium of Lewis & Clark Law Review, The Immigration Nexus: Law, Politics, and Constitutional Identity. I will be talking about universal injunctions (and the paper will undergo significant organizational changes in the next draft, as I incorporate helpful reader comments and a different focus that I discovered in preparing my talk) and Amanda Frost will present her paper in support of them (we actually are close on a lot of the underlying issues).

Video of the Event is here.

Spring 2018 Law Review Symposium: The Immigration Nexus: Law, Politics, and Constitutional Identity

Date: 1:00pm - 5:00pm PST March 9 Location: Erskine B. Wood Hall

 

 
 
 

1:00 p.m. PANEL ONE

(Moderator: Associate Dean John Parry)

OPPORTUNITIES & ANXIETIES: A STUDY OF INTERNATIONAL STUDENTS IN THE TRUMP ERA

Kit Johnson

THE CONSTITUTION AND THE TRUMP TRAVEL BAN

Earl Maltz

UNIVERSAL NOT NATIONWIDE AND NOT APPROPRIATE: ON THE SCOPE OF INJUNCTIONS IN CONSTITUTIONAL LITIGATION

Howard Wasserman

IN DEFENSE OF UNIVERSAL INJUNCTIONS

Amanda Frost

 

3:15 p.m. PANEL TWO

(Moderator: Professor Juliet Stumpf)

WHO NEEDS DACA OR THE DREAM ACT?

Susan Dussault

THE IMMIGRATION-WELFARE NEXUS IN A NEW ERA?

Andrew Hammond

THE 20-YEAR ATTACK ON ASYLUM SEEKERS

Kari Hong

Posted by Howard Wasserman on March 8, 2018 at 11:50 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, February 27, 2018

The irrrepressible myth of Patchak v. Zinke

The Supreme Court decided Patchak v. Zinke, concluding yet again that Congress' power to "change the law" to push pending litigation to its preferred conclusion is, in practice, unbounded. The purported "no dictating outcomes" principle of United States v. Klein does not impose a meaningful limitation, because nothing that Congress does (or is likely to do) is anything other than a change in the law. The law at issue in Patchak affected one case and no other cases had been brought or could be brought that would relate to that land. This will be as close as Congress will come to "In Smith v. Jones, Smith wins" without touching that third rail.

Justice Thomas wrote for himself (and also assigned the opinion) and Breyer, Alito, and Kagan; Ginsburg and Sotomayor concurred in the judgment (tying the result to sovereign immunity); the Chief dissented (as he had in Bank Markazi) for Kennedy and Gorsuch [Update: I should add that the Chief showed rhetorical restraint in this opinion, something often lacking from opinions in which he feels strongly about an issue].

An additional wrinkle was that the plurality deemed the statute a jurisdiction-stripping provision, which I am not convinced is correct. The statute says a suit relating to the proper "shall not be filed or maintained in a Federal court and shall be promptly dismissed;" that language also could describe a non-jurisdictional procedural rule or an element of the claim ("no action shall be filed or maintained against a company with less than 15 employees"), although the plurality insisted it could not be either.

So the opinion was a two-fer: Klein has no practical force and the Court overused jurisdiction.

Posted by Howard Wasserman on February 27, 2018 at 01:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Monday, February 26, 2018

Facing imminent defeat

Is it possible to imagine more-certain defeat for a party before argument even begins than for the union (and the continuing vitality of Abood) in Janus v. AFSCME this morning? A Gorusch-less Court divided 4-4 on this issue two years ago. Alito is on record as wanting to overrule Abood; the Chief believes that every small thing a public union does--even negotiating a coffee break--is political, so compelling fees is compelling support of political speech; and Kennedy tends to go along with speech claimants. Gorsuch breaks the tie--and like most judicial (as opposed to academic) originalists, his originalist views invariably align with conservative and Republican anti-union political preferences.

The likely battle lines are known going in for most cases with this Court, although sometimes there is some room for play in the joints. But this issue has been so many years in the making. Scalia's death delayed it. But it feels as if it delayed the inevitable until this morning.

And for an advocate, how do you steel yourself for that situation?

Posted by Howard Wasserman on February 26, 2018 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (4)

Friday, February 23, 2018

JOTWELL: Wasserman on Schwartz on Qualified Immunity

I have the new Courts Law essay, reviewing Joanna C. Schwartz, How Qualified Immunity Fails (Yale L.J.), an empirical study on the actual frequency and success of qualified immunity in five federal districts.

Posted by Howard Wasserman on February 23, 2018 at 12:36 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, February 22, 2018

Tinker wept

upon reading this missive from the superintendent of the Needville (TX) School District. Some of the quotations reflect an unfortunate picture of the connection between education and the creation of an engaged People in a democracy. "A school is a place to learn and grow educationally, emotionally and morally," which somehow does not include caring or becoming involved in matters of public concern. Students must "[r]espect yourself, your fellow students and the Needville Independent School District and please understand that we are here for an education and not a political protest." So speaking on matters of public concern is not educational and is a sign of disrespect for oneself and other (perhaps respect is the new unity that I argue is anathema to free expression).

Rhodes can do this and get away with it. A student walk-out would constitute "disruption" by in-school speech that schools are free under modern student-speech doctrine to halt or punish. He couched it in an unfortunately over-officious tone and a genuine disrespect for students as individuals with First Amendment rights. It appears he believes students do shed their First Amendment rights at his schoolhouse gates.

I am interested to see if and how students may respond to this if committed to engaging in protest. How might Rhodes respond to a silent protest with black armbands--is he going to ignore Tinker? And, whatever the trend in student-speech cases, is a court? Alternatively, if protests gain sufficient critical mass and Rhodes attempts to suspend hundreds of students, would his job survive the parental anger? Alternatively, what if students all stay home that day and then attend a protest at a dedicated time--would Rhodes challenge the decision of dozes or hundreds of parents to keep their children home and would his job survive the parental anger if he tried?

Posted by Howard Wasserman on February 22, 2018 at 11:40 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Sunday, February 11, 2018

Why has bris survived?

I have been taking an adult Jewish learning class this year, examining the key events (milestones, holy days, etc.) of Jewish life. This week was about birth and brit milah. One question was why brit milah is observed by substantial numbers of Jews when other mitvot--keeping kosher, observing Shabbat, observing the festival days, wearing tzitzit--are not practiced in nearly as great numbers by Jewish people assimilated into modern U.S. society. Of all the mitzvot to survive modernity and assimilation, why that one?

My theory: Circumcision become so prevalent among the general population (especially in the U.S.) after World War II that it ceased to be a practice that made Jews different or apart from the broader society into which they were trying to assimilate. Keeping Kosher made a person different from broader society, because most people do not keep Kosher. Not driving or participating in activities on Shabbat made a person different from broader society (and made it impossible for his kids to play sports and participate in other widespread secular activities). Wearing a yarmulke or tzitzit made a person look different from those in the broader society. Missing school or work for Sukkot made a person stand out from his co-workers or fellow students.

But most males (Jewish and non-Jewish) were circumcised, so a circumcised Jewish male did not look different from those around him. It was easier for Jews to continue circumcision because it did not interfere with assimilation the way other mitzvot, which non-Jews did not also adopt as secular practices, did.

Posted by Howard Wasserman on February 11, 2018 at 05:39 PM in Howard Wasserman, Religion | Permalink | Comments (8)

Friday, February 09, 2018

JOTWELL: Levy on Epps and Ortman on a SCOTUS docket lottery

The new Courts Law essay comes from Marin Levy (Duke), reviewing Daniel Epps & William Ortman, The Lottery Docket (Mich. L. Rev., forthcoming), which proposes that SCOTUS increase its docket through randomly selected cases from the courts of appeals. A fascinating idea.

Posted by Administrators on February 9, 2018 at 12:39 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Wednesday, February 07, 2018

Florida bans counter-speech, too

Parallel bills in the Florida House and Senate would do two things: Prohibit schools from establishing free-speech zones (while permitting content-neutral time, place, and manner restrictions) and prohibit students from "materially disrupt[ing] previously scheduled or reserved activities on campus occurring at the same time." Both rights are enforceable with a private action for damages and attorney's fees against the university. The ACLU opposed the second piece of the bill, arguing that it gives universities a financial incentive to halt counter-speech "out of concern that someone might boo too loudly." This bill sounds in similar efforts by the University of Wisconsin Board of Regents.

Give what I have been writing about hecklers and counter-speech, I believe the second piece is a terrible idea. It has a vagueness problem, since the bill does not define materially disrupt. It limits the disruption to "previously scheduled or reserved activities," trying to create some speaker priority within certain spaces. But it still faces the problem that counter-speakers have some First Amendment right to heckle and counter-speak and boo, including being louder and more audible than the "original" speaker. This bill defines one speaker as a speaker and the other as a material disruptor--and gives the state a financial incentive to limit the disruptor. But it does not explain when counter-speech ends and disruption begins or how the balance applies in different forums (e.g., counter-speakers in a reserved auditorium and seeking to rush the stage as opposed to counter-speakers in an outside public space).

The sponsor of the Senate bill argued that the universities should be able to impose rules for civil discourse just as legislatures do. Civil discourse might be a worthy goal. But the First Amendment does not allow government to impose that as a necessary obligation. Public debate should be more "uninhibited, robust, and wide-open" than what occurs in a legislature or other governing body. There is a power balance within a legislature--every member of the body stands on roughly equal footing and all can work the levers of institutional power within the body to achieve some ends. People in the public arena ork against a power imbalance, speaking against those who wield real power (government officials, police, private individuals who wield greater power and influence), where speaking is the only action available to them. The powerless need greater leeway, even to the point of "vehement, caustic, and sometimes unpleasantly sharp attacks."

In the public forum, in other words, speakers must be able to persist, even after being warned and given an explanation.

Posted by Howard Wasserman on February 7, 2018 at 11:56 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Monday, February 05, 2018

Understanding Civil Rights Litigation (2d ed.)

I am happy to announce that the Second Edition of Understanding Civil Rights Litigation has been published by Carolina Academic Press (having taken over Lexis Nexis books) and is available at supermarket checkout counters near you.

This ended up a substantial rewrite from the first edition--the book I really wanted to write, the second time around. I included Puzzles (drawn from lower-court cases and lawsuits) for almost all sections and subjects in the book, for review and class discussion (I am using this as the sole text for my Civil Rights course this semester). I beefed up the discussion of substantial issues from recent litigation (such as the scope of injunctions and effects of stays of preliminary injunctions). Aping Jim Pfander's Principles of Federal Courts, I eschewed footnotes in favor in-text parenthetical references to case names, with detailed tables of cases and authorities, with citations, in the back of the book; I think it makes for an easier read.

I welcome comments and feedback.

Posted by Howard Wasserman on February 5, 2018 at 08:51 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, February 01, 2018

Universal injunctions at the state level (Updated)

Judge Crabtree of the District of Kansas preliminarily enjoined, as violative of the First Amendment, a Kansas law requiring those who enter into contracts with the state to certify that they are not engaged in boycotts of Israel. The court enjoined the Commissioner of Education from enforcing any statute, law, policy, or practice that requires independent contractors to certify that they are not participating in a boycott of Israel. And the court enjoined "defendant from requiring any independent contractor" to sign a certification that they are not participating in a boycott of Israel as a condition of contracting with the state.

In other words, the court entered a universal injunction. The decision shows that judges are issuing these orders unthinkingly and automatically. And it shows that the problematic phenomenon is not limited to challenges to federal law. It also shows why universal better describes these injunctions. The non-particularized scope of the injunction's "who" remains whether the challenged law is a federal law applying to people across the nation  or a state law applying to people in one state--the injunction purports to protect the universe of people who might be subject to the law's reach, whatever that law's reach. The court again saw itself not as resolving a challenge by one plaintiff to threatened enforcement of a constitutionally suspect law against him, but as resolving the status of the law itself.* Even if universal injunctions are sometimes warranted, this does not appear to be an appropriate case--it is difficult to see how this plaintiff is denied complete relief if the state can enforce the certification requirement against other independent contractors.

[*] This vision affected the mootness analysis. The state had given the plaintiff a waiver from the certification requirement. But the court held that the waiver did not moot the case because the state could deny the same waiver to others. If the court properly understood the issue as the validity of enforcement as to the plaintiff, enforcement against others should not matter.

Update: Josh Blackman emailed to remind me that Judge Crabtree issued a similarly worded universal injunction barring enforcement of the Kansas same-sex marriage ban as to any and all couples seeking licenses.

Posted by Howard Wasserman on February 1, 2018 at 11:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

State-created danger in the Nassar case?

Two stories from Deadspin describe the mistakes by the police department in Meridian, Michigan, who received a sexual-abuse complaint against Larry Nassar in 2004, but dropped it (without referring it to prosecutors). Apparently, detectives were convinced by a PowerPoint presentation from Nassar about how what he was doing was a legitimate medical procedure to deal with Scoliosis. No one in the police department conferred with a medical expert to confirm what Nassar told them.

So, could one of Nassar's post-2004 victims make out a due process claim against the Meridian PD and these detectives? Perhaps on a state-created danger, that the police increased the danger to other athletes by not doing a competent investigation and perhaps implicitly suggesting to Nassar that he can get away with this. Or perhaps on an equal protection theory, that they did an incompetent investigation because they did not take sexual-assault against teenage girls seriously.

Posted by Howard Wasserman on February 1, 2018 at 06:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

A competing voice on universal injunctions

Amanda Frost on SCOTUSBlog. Amanda has been Sam Bray's designated interlocutor, on the AALS panel and in the Judiciary Committee. She and I shared the stage on a recent NPR segment.

Posted by Howard Wasserman on February 1, 2018 at 10:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, January 29, 2018

The Story of Goodyear v. Haeger

This Jalopnik piece tells the story of the Goodyear G-159 tire, its problems, and Goodyear's efforts to avoid disclosure of those problems. This was the tire and litigation efforts underlying the OT 2016 decision in Goodyear Tire v. Haeger, in which the district court sanctioned Goodyear for its attorney's discovery abuses.

Posted by Howard Wasserman on January 29, 2018 at 01:27 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, January 27, 2018

Congress makes procedure

The following was introduced in the Senate back in August:
S.1757 — 115th Congress (2017-2018)            
Building America's Trust Act
Sponsor: Sen. Cornyn, John [R-TX] (Introduced 08/03/2017) Cosponsors: (8)
 Cosponsors 
Sen. Barrasso, John [R-WY]*          08/03/2017
Sen. Johnson, Ron [R-WI]*  08/03/2017
Sen. Tillis, Thom [R-NC]*    08/03/2017
Sen. Heller, Dean [R-NV]*  08/03/2017
Sen. Scott, Tim [R-SC]*       08/03/2017
Sen. Inhofe, James M. [R-OK]*       08/03/2017
Sen. Wicker, Roger F. [R-MS]         09/18/2017
Sen. Lankford, James [R-OK]          10/04/2017
SEC. 564. APPROPRIATE REMEDIES FOR IMMIGRATION LITIGATION.
(a) Limitation On Class ActionS.—No court may certify a class under rule 23 of the Federal Rules of Civil Procedure in any civil action that—
        (1) is filed after the date of enactment of this Act; and
(2) pertains to the administration or enforcement of the immigration laws.
 

 

Critics of universal injunctions (myself included) have argued that FRCP 23(b)(2) class actions provide the basis for non-particularized injunctions and offer a reason that courts should not grant non-particularized injunctions in non-class cases. Allowing courts to issue broader injunctions in individual cases undermines 23(b)(2) (which, David Marcus has shown, was enacted precisely to allow broader relief in school-desegregation cases)--if a court can issue a universal injunction as a matter of course, the injunctive class action is superfluous. And having 23(b)(2) suggests that universal injunctions generally should not issue outside of a properly certified class.

 

This bill (which is unlikely to pass, so it will not matter) would cut-off that option, by limiting all constitutional cases to individual challenges of the plaintiffs before the court and thus individualized injunctions protecting those parties. On the other hand, perhaps it would make the court more likely to issue a universal injunction in individual cases, where the court believes the equities demand broader relief and a class is not an option.

Posted by Howard Wasserman on January 27, 2018 at 02:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 25, 2018

An old solution that misses the problem

On the Harvard Law Review Blog, Fifth Circuit Judge Gregg Costa proposes that cases seeking "nationwide" injunctions should be heard by three-judge district courts with direct and mandatory review to SCOTUS. Including multiple judges gives the decision greater gravitas, speeds ultimate resolution of the issue, and eliminates forum shopping.

But like most of the arguments, Costa's solution conflates geographic scope with party scope. The problem is not geographic limitations on the injunction or on the court issuing the injunction (in geographic terms, all injunctions are nationwide in protecting the protected person everywhere she is or goes). The problem is these injunctions protecting beyond the named plaintiffs by prohibiting enforcement of the challenged law to all persons--what I have been calling universality. That is not an issue about the number of judges deciding the case or the court's geographic reach. SCOTUS cannot issue an injunction prohibiting (on pain of contempt) enforcement of the challenged law against anyone beyond the named plaintiffs. And a three-judge court has no more power to do that than a single-judge district court.

Judge's Costa's solution does guarantee binding precedent and more quickly. SCOTUS's decision binds all courts to issue similar injunction to new lawsuits by new plaintiffs. And it prompts (although does not require) the federal government to stop enforcing the law. But that is as a matter of precedent,  not injunction or judgment. It also suggests that we should return to the pre-1976 regime of three-judge courts for all challenges to all federal laws.

We could recast Judge Costa's argument to require three-judge courts for those rare cases in which a universal injunction is warranted--truly indivisible rights and relief or 23(b)(2) injunctive class actions. That may offer a more direct solution to the real problem of the party scope of the injunctions--when the injunction must be broad, the case can be fast-tracked in this way. But it disconnects from the concern for the "importance" of the federal issues. For example, the sanctuary-city-funding regulations (which are the subject of two universla injunctions) are important, but the right and relief is not indivisible.

Posted by Howard Wasserman on January 25, 2018 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, January 23, 2018

JOTWELL: Bookman on Effron on privatized procedure

The new Courts Law essay comes from new JOTWELL contributor Pamela Bookman (Temple), reviewing Robin Effron, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion (B.U. L. Rev. forthcoming), which describes how private procedure and judicial control come together.

Posted by Howard Wasserman on January 23, 2018 at 10:37 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, January 22, 2018

One easy fix in Artis

A 5-4 Court held in Artis v. District of Columbia that the filing of a state-law claim on supplemental jurisdiction tolls the limitations period; where the court declines to exercise supplemental jurisdiction over the state claim under § 1367(c), the plaintiff has whatever time remained on the limitations period at the time of filing plus 30 days under § 1367(d). Justice Ginburg wrote for the Chief and Breyer, Sotomayor, and Kagan; Gorsuch wrote the dissent.

Gorsuch's dissent emphasized a concern that arose during arguments--that state courts may now have to deal with claims that were untimely by many years. This assumes that a claim might have been filed with, say, two years remaining on the limitations clock, would sit in federal court for several years, then would be filed in state court many years after it otherwise could have been. That was the case in miniature here--Artis was fired in November 2010 (facing a three-year limitations period on the state claims that gave her until November 2013), filed suit in December 2011, had her federal claims resolved on summary judgment in June 2014, and had the court decline supplemental jurisdiction over her state claim at that time. As the Court resolved the case, Artis could have filed in July 2016, more than 2 1/2 years after she would have had to file had she not gone to federal court.

Such timing should not be a significant concern in the mine run of cases. A district court should be able to decide early in the litigation whether declination is warranted. It should be obvious near the outset of the case whether the state-law issues substantially predominate or raise novel or complex issues of state law--if not from the complaint then from the responsive pleadings that raise additional state-law claims.

The problematic case is this one under § 1367(c)(3)--where the district court "has dismissed all claims over which it has original jurisdiction," meaning the federal claims. But this problem arises only because of how courts have interpreted "dismissed" in (c)(3). The word seems to contemplate a 12(b)(6) dismissal,* a decision typically made in the early weeks or months of an action.

[*] It cannot include a 12(b)(1) dismissal. If the court lacks subject-matter jurisdiction over the federal claims, it never could have had supplemental jurisdiction over the state claims. The court would be dismissing the state claims for lack of jurisdiction, not declining supplemental jurisdiction. Refiling would depend on the state's savings statute.

But courts have interpreted dismissed to include resolved on summary judgment, including in Aris. That adds the additional months and years that concerned Justice Gorsuch, as summary judgment often must await discovery and the lengthy exchange of information. As Brad Shannon (Florida Coastal) argued a decade ago, however, summary judgment is not a dismissal. If courts limited (c)(3) to dismissals, such time lags would be less likely to occur. A district court could not decline supplemental jurisdiction following a grant of summary judgment, so a case such as Artis (declination 2 1/2 years after the suit was filed) will not result in a declination or the need to refile in state court after the period has run. Declination, and thus tolling, would arise only where the court dismissed federal claims, which typically happens early in the process and much closer to the limitations clock.

Posted by Howard Wasserman on January 22, 2018 at 01:21 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Saturday, January 20, 2018

Cert granted in travel ban case

SCOTUS granted cert in the Ninth Circuit case, out of Hawaii, challenging the third travel ban. Included in the questions presented is "whether the district court’s order applies too broadly," meaning the Court may address head-on the propriety of universal injunctions (unless, as I somewhat suspect, the Court declares the ban constitutionally valid, in which case it may never reach the remedy question).

Posted by Howard Wasserman on January 20, 2018 at 11:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 18, 2018

National injunctions on NPR

Earlier Thursday, I appeared on AirTalk on KPCC (Southern California Public Radio) with Amanda Frost (American) to debate universal/national/nationwide injunctions. (I was filling in as the extremely poor-man's Sam Bray).

Posted by Howard Wasserman on January 18, 2018 at 06:49 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Speaking truth to power v. exercising actual power

I appreciate Sen. Flake's words about Donald Trump and the rhetorical threat he poses to free-speech and republican values. But it is difficult not to see it as 1) something that hundreds of people have been saying for two years in the media, blogs, and other places and 2) empty words.

On the second point: Free speech is important because of its power to persuade. But a democratic theory of free speech recognizes that speech is a form of influence for those who lack formal political or governing power or influence. Words alone therefore ring hollow when unaccompanied by action by a person in a position of power. That is what I see with respect to Flake--he has repeatedly criticized the President, but like most other congressional Republicans has fallen in line with what he wants when (as in most situations) it aligns with Republican policy preferences. So the words are nice. But they do not achieve much when Flake's own voting conduct undermines them.

Posted by Howard Wasserman on January 18, 2018 at 06:35 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)