Saturday, May 23, 2015

Preclusion, ascertainability, and civil rights classes

On this post about class certification in the Alabama marriage litigation, commenter "Hash" began an exchange about the scope of that class, whether it was properly defined, whether it was "ascertainable," and whether it allows for some gamesmanship by class members to avoid preclusion.

The class of plaintiffs is defined, in relevant part, as "all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex," with class members identifiable by their application for a license. Hash raises the following situation (I'm paraphrasing):

The plaintiffs lose and Judge Granade decides that Alabama's SSM ban does not violate the Fourteenth Amendment. A same-sex couple goes to federal court seeking an injunction against enforcement of the ban; the government argues preclusion, that the couple were part of a class in an action that already decided that the ban was constitutional. In response, the couple will argue that they were not part of the (unsuccessful) class because, at the time of the district court's ruling, they did not wish to be married. They only decided to get married afterwards, so the decision in the class action cannot be binding on them.

The problem, Hash argues, is that this couple will have no qualms about relying on the injunction to obtain the license, creating a one-way opt-out, claiming the benefits of the injunction if they win but avoiding the drawbacks if they lose.

My fuller thoughts after the jump.

First, Hash raises a genuine issue. All else being equal, this is how a couple would try to get around preclusion. And he is correct that the class definition should and generally will be merits-blind. True, it probably wasn't in this case, in part because, as another commenter notes, the class action is a follow-up to two previous individual injunctions in the same action, so we know exactly how Judge Granade comes out on the constitutional question. But it will not always be so.

Second, I do not believe this is unique to the marriage case, but rather is endemic to FRCP 23(b)(2) classes in constitutional actions. At pp. 7-8 of the class certification order, Judge Granade cites several 23(b)(2) precedents, with classes defined as, for example, "female students who seek to participate in varsity intercollegiate athletics" or "persons seeking abortions." These classes do not seem to be defined much differently than the class here, in that all are unspecified as to time. And I expect that, as Asher suggests in the comments to the earlier post, Judge Granade understood her injunction as applying to all people who wish to get married in the future. In fact, she cited one other case in which the class was defined as everyone who wished or expected to engage in some expressive activity in the future.

But does that raise due process concerns, in that someone will be bound in their future activity? Especially since 12(b)(2) requires neither notice nor opportunity to opt out of the class? I do not believe so for several reasons, somewhat tied to the nature of injunctive relief.

First, to the extent the government would argue issue preclusion, that generally does not apply to purely legal questions, such as the declaration that SSM bans do not violate the Fourteenth Amendment.

Second, even if the denial of the class injunction has claim-preclusive effect on every couple who may seek to marry in the future, this hypothetical couple will not be left without an option. Rather than filing a new action for an injunction--likely before Judge Granade, if in the Southern District--and having to face a preclusion defense, they could go back to Judge Granade as part of this action and seek relief from the judgment denying the injunction, under FRCP 60(b)(6) or (b)(5). The couple's arguments would be the same in both--the ban is, in fact, unconstitutional and the probate judge should be enjoined from enforcing it. And the trigger to both actions would be the same--some change in the law (for example, a decision from SCOTUS or the Eleventh Circuit) renders Judge Granade's denial of the injunction erroneous and inequitable. This, of course, is the converse of what defendants do to get out from under continuing injunctions and what the Alabama probate judges will do in Strawser if Obergefell comes out the opposite of what everyone expects. But it also is what an individual plaintiff would do, so why would it not work for class members?

Does this resolve the problem?

Posted by Howard Wasserman on May 23, 2015 at 04:18 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, May 21, 2015

Class certifcation in Alabama SSM litigation

Judge Callie Granade of the Southern District of Alabama took a giant step towards establishing marriage equality throughout Alabama. Judge Granade finally granted the motion for class certification in Strawser. She certified a plaintiff class of

all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have the marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama's laws prohibiting the issuance of marriage licenses to same sex couples and barring recognition of their marriages.

And she certified a defendant class of

all Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages.

In a separate order, she extended the preliminary injunction, previously entered against Probate Judge Don Davis, to Probate Judge Tim Russell and the rest of that defendant class, prohibiting them from enforcing the state's same-sex marriage ban and requiring them to issue licenses to any member of the protective class who follows the proper steps towards obtaining a marriage license. But Judge Granade then stayed the injunction pending SCOTUS resolution of Obergefell, which is "imminent."

Thoughts on the order and where this leaves us after the jump.

Assuming (as everyone expects) Obergefell establishes Fourteenth Amendment protection for same-sex marriage, Judge Granade will immediately lift the stay, establishing a binding injunction prohibiting enforcement of the Alabama SSM ban effective throughout the state and guaranteeing every same-sex couple a marriage license. That injunction is necessary to put Obergefell into effect in the state, since that decision will have nothing to say directly to Alabama law or to any Alabama officials. And because it protects all possible couples and binds alll possible probate judges, it spares couples the  trouble of having to initiate individual litigation against individual judges to obtain injunctions in light of Obergefell.

Judge Granade also swept aside various arguments that the federal court should defer to the state mandamus prohibiting probate judges from issuing marriage licenses to same-sex couples. Rooker-Feldman, the Anti Injunction Act, and every other abstention doctrine were inapplicable, since the plaintiffs were not parties to the state mandamus proceeding and, in any event, the federal injunction preceded the state mandamus.

Granade further insisted that, pursuant to the Supremacy Clause, the federal injunction enforcing the Fourteenth Amendment trumps state law and the state mandamus action, citing SCOTUS' discussion of the Supremacy Clause and Ex Parte Young from Armstrong. As she put it, the defendants "cannot be held liable for violating Alabama state law when their conduct was required by the United States Constitution."*

* I actually believe Judge Granade's analysis is wrong on this point. The conflict here is not between a state law and a federal injunction applying the Fourteenth Amendment against that state law. The conflict is between two judicial decisions and orders--one state, one federal--interpreting the Fourteenth Amendment. The Supremacy Clause does not raise the federal order above the state order. Judge Granade's view that the Fourteenth Amendment requires defendants to issuance of licenses does not trump the Alabama Supreme Court's view that the Fourteenth Amendment does not require, and in fact prohibits, issuance of those licenses. This analysis again reflects the erroneous view that one district court's declaration establishes the meaning of "the Constitution."

The correct answer is that there is, indeed, a potential conflict between the two orders. But the state mandamus expressly allows probate judges to show that they are under a conflicting federal obligation, offering a basis to be relieved from the state mandamus. In other words, the state court order itself eliminates any federal-state conflict, obviating the need for the federal court to avoid the conflict by staying its hand.

Of course, it would not be Alabama if someone did not misstate what is going on. Today, it was the Southern Poverty Law Center, which stated that this decision "ends the chaos and confusion that Attorney General Strange and Chief Justice Moore have intentionally caused through their reckless rejection of federal constitutional principles." As I have written and continue to write, I am not quite sure what "federal constitutional principles" Strange or Moore have rejected. That is, unless "any decision with which we agree, even a non-binding precedent from a single district judge, must be binding on everyone everywhere" is a federal constitutional principle.

Posted by Howard Wasserman on May 21, 2015 at 10:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Monday, May 18, 2015

CFP: 2015 Texas Legal Scholars Workshop

Would you like early-stage feedback on a research idea? Or late-stage feedback on an article ready for submission? Or something in between? Your colleagues at Houston and SMU invite you to join us for the first annual Texas Legal Scholars Workshop, to be held on August 28-29, 2015, at the University of Houston Law Center. The idea is to provide an intimate setting for early-career scholars (those with less than 10 years in a full-time faculty position) to receive feedback on an idea, work-in-progress, or a polished draft. We welcome legal scholars from all disciplines.

Each author will present a 5-10 minute synopsis of his or her paper, followed by 15-20 minutes of comments by a primary commenter, followed by a less structured discussion with other attendees.

This workshop will give participants the chance to meet other early-career scholars in Texas, share feedback on research, and enjoy a few social events. There is no registration fee. Attendees are responsible for their own hotel and travel expenses, but breakfast and lunches will be paid for by the University of Houston Law Center.
Who: Scholars with less than 10 years in a full-time law faculty position (including tenure-track, non-tenure-track, clinical, and legal writing positions) at a Texas law school.

When: The workshop will be on Friday August 28th & Saturday August 29th, 2015. The Friday session will run from approximately 1:00 pm – 6:00 pm, and the Saturday session will run from approximately 9:00 am – 5:00 pm. (These times may be adjusted slightly depending upon the number of attendees.)

The deadline for registering is Monday, June 1st. Please register at http://law.uh.edu/texaslegalscholarsworkshop/. When registering, please submit your written idea, abstract, work-in-progress, or polished draft. Updated drafts may be posted at the same web address as your paper progresses.
Each attendee is also expected to serve as the primary commenter on at least one paper. A sign-up form will be distributed once we have a list of attendees.

Where: University of Houston Law Center, 4800 Calhoun Road, Houston, TX 77004 (https://goo.gl/maps/ACpQJ)

Format: The author will present a 5-10 minute synopsis of his or her paper, identifying specific areas for feedback. Then, a primary commenter will speak for another 15-20 minutes. After that, other attendees may take turns commenting. Each session will last no more than 60 minutes.

Hotel: We have arranged discounted rooms with two local hotels for August 27-29, 2015.

The first, Hilton University of Houston, is located on the UH campus and is a 5-minute walk to the Law Center. Rooms are reserved at a rate of $129 per night, plus parking fees, and may be reserved by calling the hotel directly at (832) 531-6300.

The second hotel, The Westin Houston Downtown, is a 10 minute drive from the campus. A complimentary shuttle runs from the hotel to any location downtown, including the Law Center. Rooms are reserved at a rate of $119 per night, plus parking fees, and may be reserved by calling the hotel directly at (713) 228-1520.
Hilton University of Houston 4800 Calhoun Road, Houston, TX 77004 (832) 531-6300

The Westin Houston Downtown 1520 Texas Ave, Houston, TX 77002 (713) 228-1520

Questions:    Douglas Moll at dmoll@central.uh.edu
                        Nathan Cortez at ncortez@mail.smu.edu

Posted by Howard Wasserman on May 18, 2015 at 08:07 PM in Howard Wasserman | Permalink | Comments (0)

Justice Scalia was not pleased

Justice Scalia was not pleased with Monday's decision or with the petitioners in San Francisco v. Sheehan. The Court dismissed certiorari as improvidently granted on one question, involving application of a provision of the Americans with Disabilities Act to police affecting arrests, because petitioners ended up not briefing or pursuing that issue. The court then resolved the other question, holding that officers were entitled to qualified immunity for an incident in which officers entered the room of a mentally ill woman and shot her when she charged at them with a knife.

While agreeing with the decision to DIG the first issue, Scalia, joined by Justice Kagan, argued that the Court also should have dismissed the second question as improvidently granted, because the Court never would have granted cert on a fact-bound qualified immunity issue standing alone. Scalia argued that while non-independently certworthy issues often are decided alongside connected certworthy issues, where the certworthy issues is dismissed, the Court should not decide the otherwise unworthy subsidiary issue. And he placed the blame squarely on the city and county; he threw around terms such as "induce," "bait-and-switch tactics," and "reward[ing]" petitioners by giving them "all they seek" to describe what San Francisco did and what the Court was allowing it to do. Scalia worried that future litigants will be encouraged to "seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court's docket, we will consider whatever workaday arguments they choose to present."

Otherwise, Justice Alito's opinion for six justices (Justice Breyer recused) was a straightforward restatement and application of the emerging modern law of qualified immunity, in all its unfortunate development. The Court again questioned, without deciding, whether binding circuit precedent or a "robust consensus of cases of persuasive authority" could clearly establish a right. And it showed how precedent-bound the analysis has become, with clearly established being all about how factually analogous or distinguishable prior cases are. At one point, the Court spoke of reasonable officers "carefully read[ing]" precedents and what officers could know from that precedent--giving voice to the fiction that police officers actually read case law and are put on notice and guided by the factual specifics of prior cases compared with the situation they currently face.

Posted by Howard Wasserman on May 18, 2015 at 05:51 PM in Civil Procedure, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Sunday, May 17, 2015

We've come a long way, but in which direction?

It appears that a political science professor at Duke University is under the gun, and perhaps has been placed on leave, over an online response to a New York Times editorial about racism and Baltimore. It is not entirely clear what has happened-the professor has told some media outlets that he was placed on leave; Duke declined to comment on his status, while condemning the remarks as "noxious, offensive, and hav[ing] no place in civil discourse" and calling on the Duke "community to speak out when they feel that those ideals [of inclusiveness] are challenged or undermined, as they were in this case."

Because Duke is a private institution, the First Amendment is not in play here. Nevertheless, I hope that principles of free expression, academic freedom, and tenure prevail and keep Duke from sanctioning Hough. In fact, I hope Duke would borrow a page from my alma mater.

For years, Arthur Butz has been an electrical engineering professor at Northwestern, despite having authored a 1976 book denying the Holocaust. In 2006, Butz supported Iranian President Mahmoud Ahmadinejad's Holocaust denial, prompting sixty engineering professors to call for Butz's censure. The response, from then-President Henry Bienen, is reprinted in full after the jump. Importantly, it includes lines such as "he is entitled to express his personal views" and "we cannot take action based on the content of what Butz says regarding the Holocaust - however odious it may be - without undermining the vital principle of intellectual freedom that all academic institutions serve to protect."

It will be interesting to see whether Duke understands intellectual and academic freedom in similar terms.

Update: This Washington Post story, echoing what several people said in comments, states that Hough himself has disavowed reports (such as the Slate piece) that he was placed on leave following the comments, telling an area newspaper that he already had been on academic leave this year and that he is due to stop teaching in 2016. So, I guess, good for Duke.

Northwestern University Associate Professor Arthur Butz recently issued a statement commending Iranian President Ahmadinejad's assertion that the Holocaust never happened. Butz is a Holocaust denier who has made similar assertions previously. His latest statement, like his earlier writings and pronouncements, is a contemptible insult to all decent and feeling people. While I hope everyone understands that Butz's opinions are his own and in no way represent the views of the University or me personally, his reprehensible opinions on this issue are an embarrassment to Northwestern.

There is no question that the Holocaust is a well-documented historical fact. The University has a professorship in Holocaust Studies endowed by the Holocaust Educational Foundation. Northwestern offers courses in Holocaust Studies and organizes conferences of academic scholars who teach in areas relating to the Holocaust. In addition, Northwestern hosts a summer Institute for Holocaust and Jewish Civilization. And most recently, a fellowship in the political science department has been established in my name by the Holocaust Educational Foundation. In short, Northwestern University has contributed significantly to the scholarly research of the Holocaust and remains committed to doing so.

Butz is a tenured associate professor in electrical engineering. Like all faculty members, he is entitled to express his personal views, including on his personal web pages, as long as he does not represent such opinions as the views of the University. Butz has made clear that his opinions are his own and at no time has he discussed those views in class or made them part of his class curriculum. Therefore, we cannot take action based on the content of what Butz says regarding the Holocaust - however odious it may be - without undermining the vital principle of intellectual freedom that all academic institutions serve to protect.

Posted by Howard Wasserman on May 17, 2015 at 01:40 PM in First Amendment, Howard Wasserman | Permalink | Comments (12)

Wednesday, May 13, 2015

Muslim cartoons and Nazis in Skokie

Here is a nice post from Ron Collins (CoOp) on several different angles and issues in the controversy over Pam Geller and the cartoon contest. Interestingly, Collins compares this controversy to the Nazis marching in Skokie in 1977, which similarly divided the left on the appropriate protection for hateful, deliberately provocative speech that might provoke violence. Collins points out that the National ACLU has been unequivocal as to Geller, insisting that "it’s not even a tough question" that what she is doing is protected by the First Amendment. The ACLU famously lost money and members over its decision to represent the Nazis back in the day.

Collins also links to this piece in Reason comparing The New York Times' op-ed page position on Skokie with its position on the cartoons. It includes excerpts from last's week's editorial and from January 1, 1978's Nazis, Skokie and the A.C.L.U. The comparison reveals the shifting "yes, but" that Paul identified. Thirty-seven years ago, The Times never felt the need to suggest that Frank Collin's stunt was "not really about free speech," but instead was "an exercise in bigotry and hatred posing as a blow for freedom." Rather, that piece placed the burden on the People of Skokie to "demonstrate their respect for the law" by not engaging in violence.

Again, none of this affects the legal protection of anyone's speech. But there is a rhetorical and narrative difference that does make a difference.

Posted by Howard Wasserman on May 13, 2015 at 01:31 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

JOTWELL: Coleman on Carroll on class action reform

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Maureen Carroll's  Class Action Mypoia (forthcoming Duke L.J.), which argues that efforts at class-action reform must recognize the differences among types and forms of class actions.

Posted by Howard Wasserman on May 13, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 12, 2015

More catalyzed fans

Sports fans are certainly being catalyzed to spend money in crowdfunding efforts. But the focus of fan spending seems to be less on player recruitment and retention, the focus of our discussion, and more on one-shot efforts to handle team crises. The latest example: New England Patriots fans started a GoFundMe campaign to pay the $ 1 million fine the NFL levied against the team over the use of under-inflated balls during last year's conference championship game. In the first 22 hours, 500 people donated just over $ 7200.

Dan, Mike McCann, and I nodded toward this form of fan funding, although we recognized the obvious moral hazard problems. Still, these efforts are increasingly common, at least on a small scale.

Posted by Howard Wasserman on May 12, 2015 at 04:53 PM in Howard Wasserman, Sports | Permalink | Comments (3)

Move to Strike?

Accused rapist, former Florida State football star, and overall top pick in the recent NFL draft Jameis Winston filed a counterclaim (for defamation and tortious interference with business) in the federal civil action brought by his accuser (she filed in state court, Winston removed to federal court, and just filed his Answer). The pleading begins with a "Preliminary Statement" that runs 17 pages (of a 63-page document) in narrative form and recounts, in detail, all of the proceedings, statements, and evidence in the various proceedings over the sexual assault allegations. It also explicitly calls the plaintiff a liar. These pages read not like a pleading, but like the statement of facts in a trial or appellate brief.

Under the rules, this portion of the pleading is unquestionably improper. FRCP 10(b) is clear that a "party must state its claims or defenses in numbered paragraphs." And about the only thing that FRCP 12(e) Motions for More Definite Statement are still used for is challenging complaints that are written in narrative rather than paragraph form. These sorts of narrative preliminary statements are increasingly common in complaints. But they usually take up only a paragraph or two at the top of the complaint, not over 1/4 of the pleading. And Winston's lawyers realize the requirement of numbered paragraphs, since they repeat most of the key details, in numbered paragraphs, in the statement of the counterclaim in the third part of the pleading.

So should the plaintiff move to strike this introductory portion under FRCP 12(f)? It seems an appropriate move. It is redundant, since it all gets repeated, in a proper manner, later in the pleading. It is impertinent, since it gets into some direct and somewhat personal attacks. And it plays no role in the pleadings themselves, since the plaintiff need not respond to them. We also can at least speculate that Winston's lawyers intentionally drafted the complaint this way to ensure that the media noticed and reported the attacks on the plaintiff's character and credibility; the counterclaim allegations otherwise come at the end of the document (since new claims always come last in a responsive pleading) and thus likely would have been lost. The question is whether it is worth cost, especially since it has no practical effect beyond media reporting.

After the jump, a few more interesting Civ Pro features to this action that might make it a good teaching and/or testing case.

• The basis for removal was diversity. The complaint alleged that Klinman resides in Florida and Winston resides in Alabama (assume for the moment that "resides" was used as shorthand for "citizen," the operative word in the jurisdiction statutes). Winston grew up in Alabama and although he spent the last two years at FSU, it is not clear that he changed his domicile to Florida. Many students don't change domicile while they are students (as we all know from teaching Mas v. Perry). And Winston likely had no intent to remain in Florida, but was going to go wherever he was drafted. Ironically, he was drafted by Tampa Bay, so he may now become a Florida citizen. But the draft was two weeks after the complaint was filed, which is the relevant point in time to determine citizenship. Winston's subsequent change of domicile, if it happens, does not affect jurisdiction.

• The case was removed to the Middle District of Florida (which encompasses Orange County). But the Notice of Removal stated that Winston would seek to transfer venue to the Northern District of Florida (which encompasses Tallahassee) and consolidate the action with Klinman's Title IX lawsuit against FSU, which also was filed in the Middle District and transferred to the Northern District. My guess is that the court was swayed, and will be swayed again, by the fact that the relevant events, and thus witnesses and evidence, are located in Tallahassee.

• The defendant's goal of consolidating this case with the FSU case raises some issues. There obviously are common questions of fact to Klinman's claims against both FSU and Winston--the underlying alleged sexual assault and everything surrounding that. So limited consolidation--for discovery or other pretrial matters, for example--seems clear. The more interesting question is whether the cases could be consolidated for all purposes. Cases can be consolidated for all purposes only if they could have been joined in the first instance, which requires, in addition to the common question, that the claims arise "out of the same transaction, occurrence, or series of transactions or occurrences." This answer depends on how we conceptualize the transaction or occurrence giving rise to the claims against FSU. Is it the sexual assaul? Or is it the botched investigation and the school's alleged failure to enact and enforce Title IX-compliant policies protecting female students against sexual assault on campus.

Update: One more thing: The defendant makes several typical, although improper, moves in the answer: 1) Asserting a bunch of affirmative defenses, with no factual support and no possible basis in reality; 2) "Reserving" the right to assert other affirmative defenses; and 3) "Reserving" the right to assert other claims that discovery may reveal. The last two are harmless, but entirely legally meaningless. The right to amend is governed by FRCP 15(a). If that rule is satisfied, a party can amend even if he did not reserve the issue in original pleading reserved anything; if the rule is not satisfied, he cannot amend even if he reserve the issue. The first does not matter, because judges never care.

Posted by Howard Wasserman on May 12, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, May 09, 2015

The First Amendment's Burden of Persuasion

In his post on that NYT editorial about Pam Geller and the cartoon contest. Paul says the following:

But their typical "yes, but" editorials on the subject would generally have ended with the civil libertarian point: yes, the speech is contemptible, but, followed by cut-and-paste quotes by Holmes and Brandeis. This is a "yes, but" editorial with the opposite orientation: yes, the speech is protected, but....

Of course, it is not only The Times that  has long utilized that first "yes, but" structure; courts do it, as well. Consider Chief Justice Roberts in Snyder v. Phelps:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But . . .

Or Roberts' former boss, Chief Justice Rehnquist, in Hustler v. Falwell:

There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard  . ..

Several years ago, Erica Goldberg wrote at CoOp that she regretted the continued need for that "yes but" structure: "The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus." In fact, really, it always has been thus.

This is why I believe Paul is onto something that reflects a change in how we think and talk about the freedom of speech. In a comment to Paul's post, I described this as shifting the burden of persuasion. The first orientation acknowledges the speaker and the speech as contemptible, but celebrates First Amendment principle; the second orientation acknowledges the First Amendment, but focuses on condemning the speech and the speaker. Put another way: The first version focuses on celebrating First Amendment principle while accepting the speaker/speech as the cost of that; the  second version focuses on condemning the speaker/speech while accepting the First Amendment as the cost, but one that demands the forceful condemnation as more necessary and more essential. Put a third way: The first structure seems to say "We don't like these speakers, but we have the First Amendment;" the second structure says "We're stuck with the First Amendment, but we really hate this speaker, he should not have spoken, and he may have even brought any injury on himself."

Compare that with how Roberts closed in Snyder: "As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case." That is different in tone, if not substance, from what The Times and others are saying about Charlie Hebdo, Pam Geller, the cartoons, etc. Now, I am not suggesting that it is not ok to criticize offensive speech and speakers even while defending their right to speak; the First Amendment does not immunize Pam Geller from criticism.

The point, I think, is a shift in which of those things we highlight. Perhaps this shifted burden will not make a difference doctrinally. But how we perceive the First Amendment affects how we talk about it, which perhaps  affects how free speech controversies play out. If the focus is on condemnation, does the constitutional principle lose some of its luster? If the focus is on condemnation, will speakers be less willing to speak or less willing to pursue efforts to protect these principles? This, in turn, may affect how the courts eventually come to think and talk about the First Amendment.

Posted by Howard Wasserman on May 9, 2015 at 07:39 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, May 08, 2015

Is public litigation better than private litigation?

The Obama Justice Department, first under Eric Holder and now under Loretta Lynch, is taking § 14141* out for a spin, opening broad investigations into an increasing number of local police departments. The most recent (and unsurprising) investigation is about to be opened in Baltimore.

* Update: Sidenote: How do you pronounce this section orally? Is it "one-four-one-four-one"? Is it "fourteen-one-four-one"? is it "fourteen-one-forty-one" (which is my preference)?

Section 14141 allows DOJ to file a civil action and obtain an injunction to stop patterns or practices of unconstitutional behavior by state and local law enforcement. In a sense § 14141 is a public counterpart to private actions under § 1983. The "pattern or practice" language of § 14141 mimics the judicially imposed standard for establishing municipal liability and the liability standards basically overlap. Both actions result in potentially broad structural injunctive relief (or a consent decree) requiring judicial monitoring of a local law enforcement agency and significant, sometimes costly changes to agency practices. Both may involve wide-ranging investigations; DOJ conducts a broad independent investigation pre-litigation, while a private investigation only can be conducted through post-filing court-supervised discovery. But this seems like a small difference. Yet there is much greater resistance to private than public litigation of this type, even though the result will be the same. Complaints about "government by judicial decree" are frequently leveled at § 1983 litigation, but not as much as at § 14141 claims.

So the objection, it seems, is not to federal injunctions against local police departments, but to injunctions entered through private litigation and at the urging/advocacy of private parties. Put differently, many people are opposed to (or at least less comfortable with) injunctions entered through the efforts of private attorneys general than through the efforts of the real attorney general. But why should that be? Both causes of action are established by Congress, so they have the same underlying political legitimacy. The resulting decree will not necessarily be different. Private attorneys general undertake the investigations for which DOJ may lack the resources, time, or political will. Consider that the amount of § 14141 activity in the Obama Administration is substantially greater than the activity during the GWB Administration.** And consider that DOJ is going into places--Ferguson, Baltimore, Cleveland--where long-simmering tensions created by longstanding (unconstitutional) police policies and practices finally exploded, creating the type of large problem that warrants intervention by the federal government. Perhaps, however, if private litigants had more leeway to pursue smaller systemic violations, they could stop them before they reach this breaking point.

** The head of the Civil Rights Division for several years of the Bush Administration is now my dean. His division preferred informal negotiated cooperative resolution or letters of understanding rather than the adversarial, confrontational approach entailed in litigation and formal decrees.

This expanded use of § 14141 makes some sense in historical context. It was enacted in 1996 1994 (sorry for the typo), so the law is less than 100 years old. The last four years of the Clinton DOJ was still trying to make heads or tails of the law. The Bush DOJ had other enforcement priorities and, as noted above, a different approach. The current Department understands how the law works, should work, and can work, along with a renewed interest on local policing that has become a flashpoint. But the question remains whether it would have become less of a flashpoint were more private litigation possible.

Posted by Howard Wasserman on May 8, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Thursday, May 07, 2015

New York Times joins ACLU in giving up on free speech

I discussed the ACLU's strange ambivalence here and here. And that is the only way to explain this strange and appalling op-ed from The Times editorial board. (H/T: Thomas Baker). Apparently, the board can recognize the difference between "hate speech" and "free speech" (it seems to have something to do with motivation). And thus the government and/or powerful institutions--such as The New York Times--can be trusted to recognize and apply that distinction between "an exercise in bigotry and hatred" and "free speech."

I am at too great a loss to pick apart the piece's reasoning and its seeming surrender of most of the underpinnings of the First Amendment doctrine that allows The Times to be The Times. I will make three points. First, the difference between Charlie Hebdo and Pamela Geller (the head of AFDI and who organized the recent Texas Draw Muhammad event) seems to be that Hebdo satirize everyone, while Geller only goes after Muslims. I guess this means that "viewpoint neutrality" applies not to government regulation, but to speakers. Second, does the board realize that, if the term existed 55 years ago, Birmingham City Commissioner L.B. Sullivan almost certainly would have described The Times' criticism of him and southern officials as "hate speech." Three, under this "bad motive" test the op-ed suggests, Hustler v. Falwell comes out the other way, carrying with it much political cartooning and satire.

Posted by Howard Wasserman on May 7, 2015 at 10:32 AM in First Amendment, Howard Wasserman | Permalink | Comments (16)

Twelve Angry Men Inside Amy Schumer

If you have not seen Twelve Angry Men Inside Amy Schumer--Schumer's 12 Angry Men parody that brilliantly satirizes male attitudes about female attractiveness--check it below or wherever you can find it. The homage to what is often regarded as one of the great legal dramas is impeccable, the dialogue is hilarious, and the political messages (about gender issues and a host of other things) are clear without being didactic.

 

Posted by Howard Wasserman on May 7, 2015 at 01:52 AM in Culture, Howard Wasserman | Permalink | Comments (2)

Wednesday, May 06, 2015

A vigorous defense of free speech

On Tuesday, the writer's free speech organization PEN held its annual Literary Gala and Free Expression Awards. One award recipient was the surviving staff of Charlie Hebdo, a decision that triggered some controversy, as Steve Lubet has discussed. During his opening remarks, PEN President Andrew Solomon eloquently defended Hebdo, the decision to give it the award, and general principles of free expression. Worth a read (and a viewing--his remarks begin around 3:00 on the video above).

Posted by Howard Wasserman on May 6, 2015 at 05:42 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 05, 2015

The next Erie/Hanna issue for SCOTUS?

The applicability of state anti-SLAPP provisions (specifically those that allow for a special motion to dismiss, in which a plaintiff must show a likelihood of success on the merits) in federal court. Last week, the D.C. Circuit held that such measures do not apply in federal court. The court held that two Federal Rules--FRCP 12 and 56--form an "integrated program" for granting pre-trial judgment onto which state law cannot add.

This creates a circuit split--at least three circuits (1st, 5th, and 9th) hold that state law does apply in federal court under an "unguided Erie analysis," while four judges from the Ninth Circuit (including Kozinski) reached the same conclusion as the D.C. Circuit in dissenting from denial of rehearing en banc.

Posted by Howard Wasserman on May 5, 2015 at 09:31 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (3)

Walk-off Infield Fly Rule

Great story about a Japanese baseball game on Monday that ended with a walk-off infield fly (H/T: My FIU colleague Ediberto Roman). This is a welcome new story for my hoped-for book on the IFR.

With the bases loaded and one out in the bottom of the ninth, the batter hit a pop-up right in front of home plate. The third-base umpire (although not the home plate umpire) signaled Infield Fly (you can see him in the background at the 0:57 mark). The ball fell to the ground between two players. One of them picked up the ball and stepped on home, looking to get the force out on the runner on third. But he did not tag the runner, who continued across the plate. The batter being called out on the IFR removes the force play at home; the runners can advance at their own risk and any play at a base becomes a tag play. After an argument and a conference, in which the third-base umpire presumably told the plate umpire that he had called IFR, the runner was called safe at home, and the game ended.

 Plus, the audio teaches us that the term "Infield Fly" is the same in Japanese. Great stuff.

Posted by Howard Wasserman on May 5, 2015 at 12:22 AM in Howard Wasserman, Sports | Permalink | Comments (4)

Monday, May 04, 2015

The Federalist Structure of Trademark Law Fosters Robust Public Debate

The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is their third guest post on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog.

 In recent days, following a Federal Circuit ruling in one disparaging marks case (“the Slants”) and briefing in another (“Redskins”), civil libertarians and artists have joined forces to cry that the applicable provision in federal trademark law suppresses speech.  But does it?  In this post, we wish to suggest that the ban on registering disparaging marks not only does not suppress any high value speech, but might actually enhance freedom of expression.

Strong First Amendment regimes are valuable when political, social, or artistic creativity is endangered by direct regulation.  Weaker First Amendment regimes are more sensible when a complicated mix of government objectives and expressive risks is at stake. In our view, whatever doctrinal tools are ultimately used (e.g., government speech or commercial speech), a weak role for the First Amendment is most sensible in this area.

We begin with the observation that trademarks are expressive in a specific but limited commercial sense:  they are distinctive words, names, or symbols used to designate the source of a good or service and distinguish it from others in the marketplace.  Most marks by themselves are not coherent enough to constitute political or social expression.  Occasionally, one comes across a symbol that might have artistic value, but even then its contribution to public debate on matters of public importance is likely to be extremely limited.  Thus, regulation of brand names does not implicate the core of the First Amendment.

Then, there is the most obvious point: denial of registration does nothing to prevent the owner of a mark from using that mark.  We have already detailed the ways in which the registration framework does not actually suppress speech.  Beyond the fact that the Lanham Act does not inhibit speech directly, however, it also contemplates a federalist structure that helps to promote free speech.  Federal law does not create trademark rights, but merely seeks to streamline this area of law by building new federal remedies on the edifice of state law.  As the Supreme Court explained in the Trade-Mark Cases, “This exclusive right was not created by the act of Congress, and does not now depend upon it for its enforcement.”  Because federal law did not preempt state trademark law, the absence of Lanham Act remedies does not extinguish state law claims.

When no federal registration exists, a trademark owner can sue an alleged infringer in the jurisdiction where the mark is used and where the infringement occurred.  It is said that under the common law, one cannot protect a trademark that violates public policy.  But it would be up to each state to determine whether certain kinds of marks contravene that state’s established public policy.  Maine, for instance, apparently has no trouble with disparaging marks, barring only marks that are “obscene, contemptuous, profane or prejudicial… [or i]nappropriately promotes abusive or unlawful activity.”

Most states have adopted the model trademark bill patterned on the Lanham Act.  This is true in California, which also prohibits the registration of immoral, scandalous, and disparaging marks.  A trademark owner such the Slants can argue that the mark is not disparaging under California law. Even with identical statutory provisions, different outcomes in different jurisdictions are possible.  State law may base determinations on local perceptions of the mark, which may deviate from national views, and may develop different doctrines such as taking into account the mark owner’s intent to re-appropriate slurs.  Thus it is conceivable that states may reach a different conclusion about the same mark.

Does refusal to register raise the costs of enforcement?  It might very well do so, but such differences in enforcement regimes has never been enough to raise constitutional difficulties, especially in a federal system of laws that includes many built-in inefficiencies. 

These inherent inefficiencies could actually enhance liberty better in the long run than a First Amendment dominated system.  Some states would surely follow the federal government’s lead by broadly disallowing registration/enforcement of certain slurs as trademarks.  They would prefer to withdraw the state’s imprimatur from illiberal ideas and hope to discourage their use.  The fact that copycats and counterfeiters might make widespread use of the same design or logo, perhaps even to coopt the ideas for benevolent goals, would be taken as evidence of healthy public discourse.  

On the other hand, other states might see value in granting legal protection to certain taboo ideas disallowed by the federal government, by finding that particular terms are not offensive to local communities.  Or perhaps states might do so on the theory that legal protection of coopted epithets promotes dissent within ethnic communities.  Madhavi Sunder has made just this kind of argument, but the rationale does not depend on a nationwide rule.  States themselves could decide to strike their own path on how to determine when a mark “disparages.”

The key to a system characterized by a weak First Amendment is that no jurisdiction—neither federal nor state—has the obligation to reject or endorse disparaging marks.  Rather, the government’s power to ensure broad participation in the marketplace and guard against illiberal business practices are treated as just as important as an individual right to expression.  It is worth remembering that even in a weak First Amendment regime, the Constitution would still remain powerfully available in the background, protecting against direct efforts to stamp out disparaging ideas.

This more nuanced approach that can only flourish if the First Amendment is not deployed in a one-size-fits-all manner requiring government to protect whatever a trademark applicant demands.  If the strong First Amendment position prevails, then state and federal restrictions on trademark content would be swept aside, across the board.  By operation of the Fourteenth Amendment, every level of government would have to endorse and subsidize morally repugnant marks.

The people of each state would no longer be allowed to determine public policy in this domain or to express their view that certain commercial practices are illiberal.  In such a world, free speech principles might reign nationally in trademark law, but one should wonder whether they would really promote robust debate.       

 

Posted by Howard Wasserman on May 4, 2015 at 12:57 PM in First Amendment, Howard Wasserman, Intellectual Property | Permalink | Comments (0)

Sunday, May 03, 2015

Scalia's Joke

During the break between the petitioner and Solicitor General arguments on the first issue in Obergefell, a protester began screaming about how the Bible tells us that supporters of gay marriage will burn in hell,  it's an abomination, etc. After the guy was pulled out of the courtroom (apparently it took four officers), the Chief offered Donald Verilli an extra minute to compose himself; Verilli first accepted, then declined. As Verilli was moving to the podium to begin his argument, Justice Scalia said "It was rather refreshing, actually," which was met with laughter from the gallery. (The whole thing is at pp. 27-28 of the transcript and at the very end of the petitioner's argument on the audio).

Jeffrey Toobin argued that the real ugly part was not the outburst, but Scalia's "shameful" joke. According to Toobin's article, expanded upon in this Political Scene Podcast, what Scalia found "refreshing" was that someone inside the courtroom was finally making the real argument against same-sex marriage--moral condemnation of homosexuality and LGBTQ people--rather than the sterile and ultimately incoherent arguments about accidental procreation and "biological moms and dads." Scalia was not joking; he was endorsing the viewpoint expressed by someone intentionally disrupting the proceedings and regretting that viewpoint's absence from the actual proceedings. Toobin even suggested that the response was not real laughter, but shock at what Scalia had said.

Honestly, it never occurred to me that Scalia was suggesting that this was the "real" argument that he wished would be made in the case. I heard this as genuine laughter rather than shock at Scalia's provocativeness (the advantage to being able to hear the argument, not just read it). It certainly is unusual for a justice to comment on courtroom protests, much less through a joke--and perhaps it is inappropriate. Perhaps Scalia meant that the protest broke the tension of the argument. If so, we can note that Scalia never finds the anti-Citizens United protests "refreshing," suggesting he simply was reacting to the rare protester who is not on the opposite side of an issue as he is. And that, too, might be inappropriate.

But was Scalia really "endorsing" the views expressed? Is Toobin right about this? Or is this another example of simplistic and reductivist coverage of the Court? And am I being too forgiving of Scalia?

Posted by Howard Wasserman on May 3, 2015 at 10:18 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Friday, May 01, 2015

Rotations

Welcome to May. Thanks to all our April visitors, as well as those who chimed in for our Tenth Anniversary Mini-Symposia (I think Dan would have appreciated the ideas that were shared). And I still owe a post from the final week.

And please welcome our May visitors: Adam Zimmerman (Loyola-LA), Jenny Carroll (Alabama), Andrew Pollis (Case Western), Brooke Coleman (Seattle), and Laura McNally-Levine (Case Western).

Posted by Howard Wasserman on May 1, 2015 at 01:27 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Thursday, April 30, 2015

Upon further review . . .

I am rethinking my two posts on what happens in the lower courts outside the Sixth Circuit if the Court rejects marriage equality in Obergefell. I stand by my earlier suggestion that state officials will go back to the district court to dissolve the injunction.

But on further consideration, I am not sure this is significant or even necessary. And the reason goes back to the limited scope of the actual injunctions. None of the cases involved class actions; all were individual plaintiffs (generally 3-4 couples). Thus, when SCOTUS denied cert., state officials were obligated by the injunction only to issue licenses to the named plaintiffs, which they did. They were not obligated by the injunction to issue licenses to anyone else and no one else was entitled by the injunction to a license. So it is not the injunction that obligates state officials in California, Illinois, Utah, etc., to issue licenses to same-sex couples--it is the circuit precedent and the knowledge that they will be sued, enjoined, and made to pay attorneys' fees if they do not issue the licenses to new couples.

So there is no pressing reason for Scott Walker to get the Wisconsin injunction dissolved after Obergefell, at least in avoiding issuing new marriage licenses, although he will do it anyway. The injunction is not imposing any current obligations on him.

Posted by Howard Wasserman on April 30, 2015 at 11:01 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Shutting down the forum

When government opens a traditional or designated public forum, viewpoint-based restrictions are virtually per se unconstitutional and content-based restrictions must survive strict scrutiny. The risk is that, faced with having to permit objectionable speech in the forum, government will shut down the forum altogether for all speakers or redefine the designated forum to remove the objectionable speech from the forum's scope. These restrictions receive less (at times no) constitutional scrutiny. And the result is a dramatic decrease in the overall amount and level of expression.

The latest example comes from New York and the ads on its trains and buses. Last week, Judge Koeltl of the Southern District of New York held that MTA violated the First Amendment in rejecting a billboard from the American Freedom Defense Initiative, a pro-Israel/anti-Islam group that engages in highly provocative rhetoric in ads on public transit facilities (the latest ad featured a purported quotation from Hamas-connected media saying "Killing Jews is Worship that draws us close to Allah"). Judge Koeltl held, correctly, that MTA's ad spaces constitute a public forum, the ad was neither fighting words nor incitement, and rejecting the ad did not survive strict scrutiny.

On Wednesday, MTA responded by voting 9-2 to no longer allow "viewpoint advertising" in MTA spaces. In other words, the government shut down the forum rather than allow some objectionable speech in. The Board ignored the urging of the head of the New York Civil Liberties Union, who argued in part that "The New York City transit system is our public square. It is where virtually all of us pass through day in and day out. And because of that, it is a central part of our free speech in New York City." He was joined by AFDI head Pamela Geller, who apparently used the same provocative rhetoric as in her ads.

One Board member countered by identifying the problems with "hateful speech" and the right of transit riders to reach their destinations in "safety and serenity." Both propositions are inconsistent with the prevailing vision of the First Amendment--hateful speech is constitutionally protected and members of the public do not have a right to avoid unwanted speech in the name of their "serenity." More importantly, these comments reflect the viewpoint discrimination underlying a nominally content-neutral regulation. Although all political speech is excluded from the forum, the move is justified and motivated entirely by the government's desire to prohibit only one side of that content. But because we generally do not get into the motive underlying a facially content-neutral restriction, none of that matters.

Of course, this is the paradox of the First Amendment's content distinction--the government is on safer footing the more speech it restricts. The MTA cannot restrict only AFDI's offensive political ads, so it restricts all political ads. In doing so, however, it removes a substantial amount of speech from the public space, deprives the public of a substantial amount of information and ideas, and deprives speakers of an important way to reach an audience. So long as we ignore even blatantly viewpoint-based motivations, this always will be the result.

Posted by Howard Wasserman on April 30, 2015 at 09:41 AM in First Amendment, Howard Wasserman | Permalink | Comments (5)

Wednesday, April 29, 2015

A new wrinkle on now-invalid injunctions

A colleague at an Oregon-based school offers a different twist on what happens to Article III-final injunctions if the petitioners lose in Obergefell: What happens if the relevant state actors (the Governor or the AG) favor same-sex marriage and decline to file the motion to dissolve the injunction? This would be most likely in Oregon and California, where state officials declined to defend the ban or appeal the district court's decision invalidating it. This, my colleague suggested, might offer state officials a "weird way" to get around their own state's laws.

I can see four possibilities, although I would like to hear more (or hear why my three are wrong).

First, the district court might raise the issue sua sponte and issue an order to show cause why the injunction should not be dissolved; the state officials will have to respond and either distinguish Obergefell (or the state laws at issue there) or acknowledge that changed legal circumstances require the injunction be dissolved. Judges are not obligated to raise merits issue in this way (contra subject matter jurisdiction). But they often will do so, especially when it means getting cases off their dockets. And the judge has incentive to do this, precisely to prevent state officials from not enforcing laws they do not like.

Second, someone might intervene in the district court and file the motion to dissolve. It might be a county clerk arguing that the injunction is compelling him to act in a way contrary to controlling Supreme Court precedent. Or it might be one of the sponsors of the voter initiative that produced the constitutional amendment (a Rule 24 intervenor need not have Article III standing).

This involves a couple of tricky FRCP 24 issues. First, it is not clear who would be able to intervene as of right under FRCP 24(a)--would a clerk or the initiative sponsor claim an "interest" relating to the case that will be impaired or impeded and is not adequately represented? If not, then intervention could only be permissive under 24(b) and subject to the court's discretion. In the initial Oregon litigation, the district court denied permissive intervention by the National Organization for Marriage, even on behalf of an anonymous county clerk who claimed a religious objection to having to issue licenses to same-sex couples. The question is whether the intervention analysis changes if the dispute is over the continuing validity of an injunction that is inconsistent with new Supreme Court precedent, as opposed to the validity of the underlying law. Certainly the district judge may be more willing to permit 24(b) intervention in this situation than in the underlying action.

Third, someone--again, probably a county clerk or the initiative proponents--goes to state court, themselves or on behalf of the state, seeking a mandamus ordering the Governor or AG to do their duty and file the motion to dissolve the federal injunction. Whether this option is available and depends on specifics of Oregon law.

Fourth, state processes in Oregon (another voter initiative or some other process to amend the state constitution) repeals the 2004 constitutional amendment, perhaps moving very quickly to do so. As my colleague argues, the political culture has so changed in Oregon in just a decade that no one wants to defend the ban or to reinstate it by taking steps to dissolve the federal injunction.

Thoughts? My original post assumed that state officials would be anxious to dissolve the injunctions. This example shows that there may be a few states where that will not be true.

Posted by Howard Wasserman on April 29, 2015 at 08:32 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Fontana and Braman empirically test the countermajoritarian difficulty

David Fontana and Donald Braman (both of GW) discuss their study showing that, on the question of marriage equality, people do not [ed: oops] care whether marriage equality is established by SCOTUS or by Congress. Opinions on same-sex marriage were unchanged by the institution that established it.

Posted by Howard Wasserman on April 29, 2015 at 10:58 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6)

What if SCOTUS rejects marriage equality?

I have not yet read/listened to the Obergefell arguments (I plan to get to it as soon as I finish writing this), although I have read some reports. I am fairly confident the Court will declare that SSM bans are invalid (and I am kind-of confident it will be a 6-3 vote).

But for now, suppose the Court goes the other way and holds that the Fourteenth Amendment does not guarantee marriage equality and does not require states to recognize out-of-state same-sex marriages. After the jump, I want to consider four procedural questions: 1) What do the states do where same-sex marriage has come via  federal court order that has become final (including all the cases in which SCOTUS denied cert. last fall, as well as California);  2) What do the states do where a district court judgment invalidating the state ban is pending on appeal but was not stayed? 3) What happens to the same-sex marriages that have been entered in those states where the federal decision has gone to final judgment? 4) What happens to the same-sex marriages that have been entered in those states in which the district court decision is on appeal but has not been stayed (e.g., Florida and the four couples in my beloved Alabama)?

1) The states return to the district court supervising the injunction with a motion to dissolve under FRCP 60(b)(5) or (b)(6). The argument is that there has been a "significant change" in the legal circumstances, in that the conduct the injunction prohibited (denying marriage licenses to same-sex couples) has become constitutionally permissible; the injunction thus is no longer equitable, as it is based on a judicial decision that is no longer valid in light of the prevailing understanding of the Fourteenth Amendment announced by SCOTUS. It seems pretty obvious that an injunction based on some extrapolation from Windsor, Lawrence, Romer, and general Equal Protection principles cannot survive a decision from SCOTUS expressly declaring that  same-sex marriage bans do not violate the Fourteenth Amendment. So the motion will be granted, the injunction will be dissolved, and the state law barring issuance of licenses to same-sex couples will again be enforceable.

2) This situation presents three paths to the same outcome. First, these states could simply present Obergefell to the court of appeals, which will apply it to reverse the district court judgments and to order final judgment entered in favor of the states on the constitutional issues. Alternatively, the court of appeals could shift the work back to the district court by summarily vacating and remanding for reconsideration in light of Obergefell, with the district court itself applying Obergefell to enter judgment in favor of the state. A third possibility is for these states to file the sameRule 60(b) motion in the district court. Under FRAP 12.1 and local rules in several Circuits (including the Eleventh, one of the places in which appeals are pending), a district court can make an "indicative ruling" on a motion (including a Rule 60(b) motion) that it otherwise lacks jurisdiction to resolve because the case is in the court of appeals; if the district court indicates its intent to grant the motion, the court of appeals can remand the case to allow the district court to grant the motion and to enter the revised judgment. Under any approach, the result is that the injunction will be dissolved and the state ban on same-sex marriage again becomes enforceable.

3) These marriages remain valid. The states granted licenses to these couples under a federal injunction that had been appealed and had become final. The state of the law in these states was that prohibitions on same-sex marriage were invalid and unenforceable, meaning these couples were legally entitled to those licenses and state officials were legally obligated to grant them. And that remained the state of the law until the district court dissolved the injunction.

4) I am not sure of the answer to this. Mike Dorf argued here that there is no basis in federal constitutional law to "grandfather" some marriages, which would effectively give permanent force to a judgment that has been subsequently reversed. The validity of these marriages ultimately would be a matter of state law, unhindered by the U.S. Constitution. That sounds right, but I welcome competing arguments.

Thoughts?

Posted by Howard Wasserman on April 29, 2015 at 12:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (19)

Tuesday, April 28, 2015

Aesthetic sports rules

Slate's Hang Up and Listen devoted its first segment to the (problem?) of a Hack-a-[Blank], thr strategy of intentionally fouling a poor free throw shooter away from the ball throughout the game. They discuss whether it works, whether it spoils the game, and what, if anything, can or should be done about it. The best solution is probably to give the offense the option of getting the ball out of bounds instead of taking the free throws (there used to be a similar rule in international basketball). By not making the bad shooter take the free throws, the incentive to keep fouling goes away.

So if this (or some other rule change) came about, should we understand it as a limiting rule grounded in cost-benefit disparity, a la the Infield Fly? As I wrote about soccer's offside rule, I don't think so. Instead, this would be a purely aesthetic rule, designed to make the game look better and be more enjoyable to watch. To be sure, there is an aesthetic component to the logic of the Infield Fly Rule; that rule disincentivizes teams from intentionally failing to catch easily playable balls, which is unappealing to watch. But the chief concern is the cost-benefit imbalance, of the defense getting two outs instead of one and the runner being unable to stop it. That is missing with Hack-a-[Blank], because the offense can overcome the strategy by making the free throws or rebounding the miss. Nevertheless, the game becomes unappealing when it involves nothing more than intentional fouls on DeAndre Jordan 25 feet from the basketball and a parade of missed free throws. So the rule change may seek to limit strategy solely in the name of the aesthetics of the sport.

Posted by Howard Wasserman on April 28, 2015 at 07:36 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Monday, April 27, 2015

Anniversary Topic # 4: What does the future hold?

We come to the final week of April  and the final week of our Tenth Anniversary celebration with the obvious question: What does the future hold?
 
Topics can include the future for:
 
• The legal profession
• Legal scholarship
• Legal education and law schools, including predictions of closures, mergers, etc.
• Prawfs and other blogs. This could include the question whether blogs themselves are obsolete in light of other online media like Twitter and FB, what function they ought to continue to serve if any, whether routes of access to those blogs are changing and how blogs should respond to this, the role of commenters, etc. 
 
Along those lines, we also would like to hear from readers and commenters about what we might change (or not change) on Prawfs, in terms of form, content, design, etc.
 
As always, guests can email posts to Paul or to me.

Posted by Howard Wasserman on April 27, 2015 at 08:01 AM in 10th Anniversary, Howard Wasserman | Permalink | Comments (0)

Sunday, April 26, 2015

Baseball reaches historic milestone

First

Posted by Howard Wasserman on April 26, 2015 at 04:23 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Saturday, April 25, 2015

If I've lost the media . . .

I have made pretty clear my view that the Alabama Supreme Court and Alabama public officials have not been defying federal courts or federal law over same-sex marriage, given the limited scope of district court orders and injunctions. And I thought I had convinced Emily Bazelon when she wrote this, based in part on interviews with  Orin Kerr and with me.

But then on Friday's Slate Political Gabfest, in a preview of next week's Obergefell arguments, Bazelon used the words "rebel" and "defy" to describe recent events in Alabama. Oh well. A subsequent email exchange indicated differences in views about the interaction between the mandamus and the federal injunction and the effect of each on the other. In my view (which I explain further here), the injunction only obligated one probate judge, Don Davis, to issue licenses to the four couples who are plaintiffs in Strawser, which he did. At that point, the mandamus did not impose any obligations on Davis or anyone else that competed or conflicted with obligations from the federal court. We are back to one (functionally) lower federal court disagreeing with another lower federal court about federal law. That is disagreement, not defiance or rebellion.

Posted by Howard Wasserman on April 25, 2015 at 11:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, April 24, 2015

Repost: First Annual Civil Procedure Workshop

The first annual Civil Procedure Workshop will be held at Seattle University School of Law on July 16-17, 2015.

Scholars have been selected to present their work in small panel sessions, with distinguished faculty providing commentary. Panels proceeding on Thursday, July 16 will cover a wide range of topics. On Friday, July 17, the Workshop will focus on the class action. In the morning, junior scholars will present work focused on aggregate litigation, and Judith Resnik will provide a keynote address over lunch. In the afternoon, scholars and members of the Class Action Rules Subcommittee of the Federal Civil Rules Advisory Committee will participate in a roundtable discussion of proposed amendments to Rule 23. Confirmed commentators include Stephen Burbank, Scott Dodson, Myriam Gilles, Suzette Malveaux, and Tobias Barrington Wolff.

We welcome all civil procedure scholars to attend this Workshop. The Workshop will provide meals for registrants, but registrants must cover their own travel and lodging costs. We have reserved a block of hotel rooms near the workshop at a discounted rate. Please contact Brooke Coleman (colemanb@seattleu.edu) if you would like information about reserving these rooms. Finally, if you are planning to attend, please register here.

Please feel free to contact us with any questions. Thank you and best of luck as the semester winds down.

Brooke Coleman (Seattle), colemanb@seattleu.edu

Liz Porter (UW), egporter@uw.edu

Dave Marcus (Arizona), dmarcus@email.arizona.edu

Posted by Howard Wasserman on April 24, 2015 at 10:28 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, April 23, 2015

Forum selection, upside-down

The family of Michael Brown has filed a civil rights action against the City of Ferguson, the former Chief of Police, and Darren Wilson. The complaint is a bit confusing. It appears to assert multiple individual, supervisory, and Monell counts for Fourth and Fourteenth Amendment violations, including a claim for loss of familial relationship under the Fourteenth Amendment, as well as excessive force. The complaint goes after Ferguson's larger patterns-or-practices of unconstitutional behavior, describing events going back as far as 2010. At the same time, the introduction describes it as a wrongful death action under Missouri law for violations of the U.S. and Missouri constitutions, even though the state Constitution is never mentioned again and no torts (battery, whatever) are asserted.

It is noteworthy--and puzzling--that the family filed in state rather than federal court. There is nothing state-based about the legal rights actually asserted in the Complaint; this is a straight-forward § 1983 claim asserting federal constitutional rights. The idea behind federal question jurisdiction was to offer parties the expertise and respect for federal law and federal rights that federal judges offer, as well as the freedom to protect those rights that comes with Article III protections. And that idea takes on special importance when asserting constitutional claims against local governments and local government officials that only became possible with the Fourteenth Amendment, where federal judges are insulated from the local pro-government pressures that might work against civil-rights plaintiffs. Indeed, arguments against congressional jurisdiction-stripping always have fought against the bogeyman of plaintiffs forced to pursue federal constitutional rights against local government institutions before an uninsulated local judiciary.* Has federal judicial procedure--Twiqbal, summary judgment, limits on discovery--become so hostile to civil rights plaintiffs and so pro-defendant that plaintiffs would prefer to litigate against a local government in state court? Consider that the two biggest hurdles that § 1983 plaintiffs regularly face--qualified immunity and the heightened demands for making a Monell claim--follow them into state court anyway. So why pick state over federal in this type of case?

Addition: Note that I am assuming the choice was strategic rather than familiar. The three lawyers on the case include one attorney from Clayton, MO and two from Tallahassee. The web site for the latter two indicates that they largely specialize in personal injury and automobile accident cases, although Civil Rights is listed as a practice area. I cannot find anything about the local attorney (who has been in front of the media since the fall). If all three are primarily PI lawyers who primarily litigate in state court, the choice of forum might simply have been an automatic move rather than a deliberate choice based on specialized understanding of § 1983 litigation.

The interesting question is whether the defendants remove, seeing as how they might see themselves as being in an advantageous position in either court.

Posted by Howard Wasserman on April 23, 2015 at 03:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (22)

Additional thoughts on Wong and June and the FTCA

I have a SCOTUSBlog opinion analysis on Wednesday's decision in U.S. v. Wong (along with U.S. v. June). A  divided Court (Kagan writing the majority, for Kennedy, Ginsburg, Breyer, and Sotomayor) held that the statute of limitations in the Federal Tort Claims Act is not jurisdictional and is subject to equitable tolling.

This is the right conclusion--both that the statute is not jurisdictional and that it is subject to equitable tolling. But I have some additional thoughts after the jump.

The problem is that the Court continues to erroneously conflate the concepts of jurisdictionality and mandatoriness--using "jurisdictional" as inaccurate shorthand for "mandatory" (or "non-tollable," to the extent that is word). Properly understood, a statute of limitations should never be jurisdictional, because it has nothing to do with vesting a court with authority to hear and resolve the issues in a case. Timeliness goes to whether the pleader can bring and move forward with the claim in a court of proper jurisdiction. But that leaves unresolved whether the statute of limitations is or should be mandatory--understood and applied as "brooking no exceptions," to use language from Justice Alito's dissent. And the Court's inaccuracy on this spawns inaccuracy in Congress, which continues to legislate with the jurisdictional/non-jurisdictional divided in mind, rather than thinking expressly and explicitly about mandatory/less-than-mandatory. Or better, thinking expressly and explicitly about a rule (timely filing) and exceptions to the rule.

The Justices at least recognized this gap in Wong and the possible need to shift the analysis away from jurisdictionality language and to a direct focus on mandatoriness. Justice Kagan dropped a footnote agreeing that Congress could preclude equitable tolling of a nonjurisdictional limitations period, but punted on the issue by insisting that the government had made no arguments for non-tolling independent of arguments about jurisdictionality. Justice Alito's dissent sought to separate the issues, at least in part. Acknowledging that the Court might want to avoid the jurisdictional label given everything it entails, he insisted that § 2401 is nonetheless not subject to tolling. As I explain in the review, Alito argued that "'Forever barred' must mean something. It is 'no weak-kneed command,' nor is it 'qualified or aspirational.' These words are absolute and 'brook[] no exceptions.'” While the right approach, Alito's textual argument does not support the conclusion. All statutes of limitations offer a textual command--the claim is barred if not filed withing X period. If the statute offered a textual basis for tolling (through less-emphatic language or through enumerated exceptions), then a court would not be utilizing equitable tolling, it would be applying statutory tolling provisions. Congress still needed to do something more than it did in § 2401 to foreclose a court from wielding its inherent equitable discretion to toll.

Posted by Howard Wasserman on April 23, 2015 at 09:53 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, April 20, 2015

Anniversary Topic # 3: How law teaching and law schools have changed

We now turn to our Third Anniversary Mini-Symposium: How has being a law professor, and law schools more generally, changed in the past ten years?

Topics might include:

• Changes in the profession.
• Trends in scholarship or teaching 
• The law school "crisis"
• More specifically, how were things different between the period before 2008, the economic period of crisis (including law school crisis) around 2008-2012, and the post-2012 era, in which there is still crisis but many or most students entering law school are well aware of it. I find a great difference between students who entered or graduated between 2009 and 2012 or so, who came to law school with one set of expectations and left them with very different expectations and often no job, and were embittered by it, and the newest students, who have a more pragmatic and much more chastened set of expectations and goals around law school. 
• How different these changes are from changes in the rest of the academy, or whether the law school exceptionalism about this is not actually so great. In this I'd be especially interested to hear from guests or permanent bloggers with PH.D.'s or connections to other disciplines and faculties, who can talk about their experience in both law and some other faculty or sector of the academy. 
• Changes in civility and in your dealings with students, commenters, and others.
• The rise of the VAP and other fellows.
 
Again, unsolicited posts can be sent to Paul or to me.

Posted by Howard Wasserman on April 20, 2015 at 08:01 AM in 10th Anniversary, Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, April 19, 2015

Lateral hires and PrawfsBlawg

Brian Leiter's updated list of tenured lateral moves features several from the Prawfs community. Steve is going to University of Texas in 2016 (where he and former GuestPrawf Bobby Chesney will have the national security market cornered).  Current guest Brian Galle is moving from BC to Georgetown. And another former GuestPrawf, Aaron Bruhl, is headed from Houston to William & Mary.

Congratulations and good luck to all.

Posted by Howard Wasserman on April 19, 2015 at 10:03 AM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

When blogging (and bloggers) get old

Let me try to pick up on some of the issues that Paul, Dave, Rick, and Kate raise in their symposium posts.

I explained in my first symposium entry how I have used blogging in my time here. Although I have not gone back to review  seven years of posts, I do not believe my writing here has changed all that much either in quantity or in content (law v. life, serious legal issues v. pop-culture asides).* This may be because I have not taken on as many administrative responsibilities as Rick and Paul have (I have never served as an associate dean, for example), so I have not lost the time to devote to writing here. And since I wrote less about legal education and law schools than Paul did, I probably became less disillusioned than he by the tenor of the discussion.

* Although to be frank, I have written so many posts here that I do not remember a lot of what I have written. I have on occasion reviewed old posts and thought, "Did I write this? And did I really mean that at the time?"

I am happy that blogging has developed into a "serious" forum and form of writing, both in terms of content and perception. That seriousness can be traced to the early waves of bloggers who started ten years ago as junior faculty. By doing a lot of good writing on a range of subjects on a lot of blogs that people were reading, it seems inevitable that some of it would come to be seen as somewhat serious and worth paying attention to. It also makes sense that law students and rising future and junior prawfs, raised on these fora, would view them as serious and also (hopefully) want to join in (exemplified by Richard's initial solo blogging and then his work here, as well as some of the junior and about-to-enter guests we have welcomed the past few years). And finally, in something of a feedback loop, as we have moved to the more senior ranks on our respective faculties, we are in position to both encourage and reward junior colleagues who take on blogging.

Perhaps Dave is right that what I just described also made it inevitable that posts on Tallahassee, pop culture, and Notre Dame football might fall by the wayside. After all, if I want a hiring or P&T committee to look on this as at least a somewhat worthwhile endeavor, I may not want to dilute the perception with too many frivolous posts about non-legal/non-serious subjects.

I am not on Facebook, although I probably should be. I think Rick gets the connection between blogs and Facebook about right--they are serving different roles, with Facebook somewhat taking over the light-short-and-fun posts as blog posts have gotten longer and more serious. Facebook is not necessarily the space for long posts or for working through scholarly ideas. Although perhaps the divide is not that sharp--when Dan was incubating the idea for what became Catalyzing Fans and this Atlantic essay, he initially went to Facebook rather than Prawfs.**

** When Dan called to pitch me on joining the project, he explained his idea and told me to read his initial musings. Since I was not on Facebook, my wife friended Dan, which then allowed me to read his initial discussions. Yeah, I probably should join already.

I will close with one question for consideration ten years in: Why haven't faculty blogs caught on or lasted? Dave mentioned the Chicago faculty blog, which I previously read regularly, but there has not been a post there for almost a year. Marquette and Loyola-LA both are thriving and Illinois just finished its first year. But that's basically it. Why hasn't that form of blogging worked as well as sites such as this one?

Posted by Howard Wasserman on April 19, 2015 at 09:59 AM in 10th Anniversary, Blogging, Howard Wasserman | Permalink | Comments (1)

Saturday, April 18, 2015

Eleventh Circuit flunks Civ Pro

We just started Erie last week and one of my students found this Eleventh Circuit decision from March. The Erie analysis (at pp. 25-31) is so utterly ridiculous and facile as to make me wonder if any of the judges (or their clerks) ever took Civ Pro. (Note: The conclusion is right; it's the analysis that would warrant an F on an essay exam).

Posted by Howard Wasserman on April 18, 2015 at 06:40 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (10)

Thursday, April 16, 2015

Ice cream Court of the United States

I missed this suggestion from a few weeks ago that Ben & Jerry's needed to name some flavors after women. Two proposals after the jump: Ruth Bader Ginger and Sonya [sic] Sotomayoreo Mint Cookie.

96                IMG_2440

Posted by Howard Wasserman on April 16, 2015 at 04:23 PM in Culture, Howard Wasserman | Permalink | Comments (1)

Tuesday, April 14, 2015

JOTWELL: Campos on Davis on standing for states

The new Courts Law essay comes from Sergio Campos (Miami, visiting at Harvard), reviewing Standing Doctrine's State Action Problem (forthcoming, Notre Dame L. Rev.) by Seth Davis (UC-Irvine) on who and when people have standing to assert governmental interests.

Posted by Howard Wasserman on April 14, 2015 at 11:21 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, April 13, 2015

Anniversary Topic # 2: What are Prawfs and blogging like today?

As the second (full) week of April dawns, it is time for our second Anniversary (Prawfsiversary!?) Mini Symposium: What are Prawfs, and blogging generally, like today?
 
Subjects may include (but are not limited t0:
 
• How your own approach to reading blogs has changed (including where you read blogs, if you read blogs at all anymore, etc.).
• How has your own approach to blogging changed over time? (including being more or less bold, how tenure has affected your blogging, whether and why you blog more or less, etc.)
• How has the legal blogosphere changed? (including the changes in the nature of commenters and conversations, the larger number of posts that ban comment altogether or that are more heavily policed, the use of anonymity, more talk about the law school crisis, in some cases more *avoidance* of talking about the law school crisis, less writing about some of the perks and "first world problems" of law professors and the costs and benefits of writing less about that, more or less civility between bloggers, more scholars pursuing arguments across a variety of platforms, ie. Randy pursuing his ACA arguments across briefs, blog posts, and elsewhere, in a more of a unified multi-front advocacy approach, less writing about general pop culture [I think many of us assumed we would do more of that when we started], and so on). 
• How much of your own changes in blogging approach have had to do with your own progress from junior to senior/mid-career/tenured professor?
 
Again, we welcome unsolicited contributions (or, by this post, we are soliciting them). So if you have something you want to say on this, write it up and send it to me (howard.wasserman@fiu.edu) or Paul (phorwitz@law.ua.edu).

Posted by Howard Wasserman on April 13, 2015 at 07:31 AM in 10th Anniversary, Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, April 12, 2015

Teaching citizens to video--and to exercise the First Amendment

This PBS story from Friday discusses the "Video as Evidence" program, begun by the international human-rights organization WITNESS, to teach people how to record video of police and other public government activities. The goal is to train people to document events not only for use on YouTube and in public discussions of police misconduct, but also for effective use in court, which is where any "accountability" must occur through criminal prosecution and civil litigation. Issues include training in how to properly frame and follow images and events, as well as how to ensure authenticity and a proper chain of custody. WITNESS's primary focus is outside the United States, but the idea could and probably should be recreated here.

Of course, if this stupid bill becomes law in Texas, could one argue that the program is actually facilitating unlawful behavior and thus itself without First Amendment protection?

Posted by Howard Wasserman on April 12, 2015 at 10:13 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, April 09, 2015

Lost faith in the courts

A quick sidenote on Paul's excellent Commonweal essay. Of the people panicking about state RFRAs, Paul writes:

But RFRA laws do not grant an unrestrained license to exclude or discriminate. With the exception of some state bills, which were opposed even by champions of religious accommodation and which failed, most RFRAs (including Indiana’s) do not compel any result. What they do require is balancing.

The problem is where left/liberal/progressive advocates are on judicial enforcement of individual rights right now and their attitudes towards the current Supreme Court. The assumption is that any balancing done by this Court--the Court that gave us Hobby Lobby*--will always, unavoidably, and automatically favor the religious believer against the woman or LGBTQ person being disadvantaged in the marketplace. Any balancing will be informed by the pro-religion preferences of that five-Justice majority and the claim for accommodation will always prevail over anti-discrimination statutes and principles. So saying that RFRA does not compel a result but only balancing is no comfort, because one side believes it knows how that balancing is going to come out.

* When does Hobby Lobby replace Citizens United as the single-case synonym for everything wrong with the Roberts Court?

Posted by Howard Wasserman on April 9, 2015 at 04:19 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Abandoning counter-speech

Update (Friday): According to this story, UM reversed course and planned to show the movie at the originally scheduled time and place on Friday evening; a university official said the decision to cancel was "not consistent with the high value the University of Michigan places on freedom of expression and our respect for the right of students to make their own choices in such matters." The story also reveals that new UM football coach Jim Harbaugh is proud to be an American and does not care if that offends anyone. Glad to hear that, Coach; I was concerned.

Original Post (Thursday):

Ron Collins at CoOp (who has become my go-to person for new First Amendment news) reports on a controversy at the University of Michigan. A university organization, in response to a petition, cancelled a planned screening of Clint Eastwood's American Sniper; in  response to a counter-petition started by a 3L law student, the university moved the screening to an alternate location. According to the Daily Caller, the university will show Paddington Bear instead. Collins quote Floyd Abrams as saying "Surely, this is the best evidence yet that a speech-destroying storm is sweeping across American campuses. The students who seek to ban speech have much to learn but a university that yields to their demands can hardly be trusted to teach them.”

The First Amendment's preferred response, Justice Brandeis would tell is, is counter-speech. And the objecting students could have engaged in all manner of it here--protest outside or around the building, take to various fora real and virtual fora to urge people not to attend, show a different, contrary movie at the same time and in a similar location. But that never seems to enter the picture; the objector's move is to jump directly to silencing the message to which they object.

Why?

One possibility is that the harm caused by the speech being heard is simply too great--the harm comes with the film and cannot be alleviated by alternative messages. This view is bound-up with unique concerns about identity, disadvantaged groups, and social power imbalances. This is not your grandfather's censorship of socialism and dirty movies--the sorts of speech that progressives sought to protect once upon a time. This is about racism and hate crimes and its utterance cannot be tolerated.* This is the default (and likely?) explanation that so worries Abrams and others (including me) about the state of the First Amendment, especially on campus.

* Drawing on a point from some comments to this post: The First Amendment does not distinguish between a racist epithet or rant and a serious, if ugly and even racist, political message--both are protected. But that may be necessary because opponents of speech do not distinguish when they call for silencing--American Sniper is not qualitatively different than a long racist rant that promotes racist rhetoric "contributes" to hate crimes. In other words, American Sniper is the same as the SAE chant is the same as the stupid woman at South Carolina.

A second possibility is that counter-speech is hard. It requires people to get out there, organize, protest, etc. Obviously these students worked hard to create the groundswell necessary for the university to cave, sending out messages and garnering support. But organizing new events and protests requires another level of commitment. Plus, your side may lose with counter-speech--you may not convince anyone to come over to your position and more people may choose to see the movie anyway. The only sure way to win is not to let the other side be heard.

Finally, a third possibility shifts the blame back to the university. Acting on concerns for safety, convenience, and "order," universities (and governments generally) make counter-speech incredibly difficult. Universities demand permits, push many protests into "free speech zones," impose restrictions on the numbers of protesters and where they can be and when, and generally create all manner of time, place, and manner limitations designed to ensure that public protest not last and that it not inconvenience or annoy anyone else. The result is to deter counter-speech--it simply becomes too difficult to do it and not worth the candle. (Note that I am speaking generally here--I do not know anything about the specifics of UM's protest-and-demonstration policies). So I will reapply Abrams' criticism of universities: By limiting the type of counter-speech in which protesting students might engage, the university itself leaves protesting students with no option but to call for silencing.

Posted by Howard Wasserman on April 9, 2015 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, April 08, 2015

Where are June and Wong?

Back on December 10, the Supreme Court heard arguments in US v. June and US v. Wong, which together raised whether the limitations periods for bringing claims against the United States under the Federal Tort Claims Act were jurisdictional and not subject to equitable tolling. (I covered the cases for SCOTUSBlog). Four months later, the cases remain pending--one of only two cases from that sitting yet to be decided and despite the Court having quickly and unanimously disposed of the other jurisdiction case from that sitting.

The obvious conclusion is that the Court is divided. The Court has generally been unanimous in its run of jurisdictionality cases over the past decade and almost always finds the issue to be non-jurisdictional. One glaring exception is John R. Sand, which involved the jurisdiction of the Court of Claims over an action against the United States (and thus on which the U.S. has waived its sovereign immunity). So while statutes of limitations ordinarily are not jurisdictional, tying them into a waiver of sovereign immunity potentially alters the analysis. My initial reaction to the argument was that the Court would treat the periods as non-jurisdictional fairly easily; the four-month delay has me rethinking the easy part, if not the conclusion.

Posted by Howard Wasserman on April 8, 2015 at 04:25 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

PrawfsBlawg and a scholarly career

I came to Prawfs relatively late. I first met Dan at a PrawfsFest! in Miami in fall 2006 (having been a VAP at FSU a few years prior, I knew many of his new colleagues and that facilitated the introduction). I did an extended guest stint in fall 2007 (the blog was about 2 1/2 years old) that turned into a slot as permaprawf the following spring. And seven years later (ten for the blog), here we are.

In thinking about this topic, my recurring thought is that Dan and this blog enabled my scholarly career. Some significant portion of my academic reputation (draw your own conclusions on what that may be) has been established through this blog and what I have written here. Several past, present, and future scholarly projects have begun as single or multiple posts; I was able to work out ideas in the early stages by writing them here and to obtain feedback from readers. I have written more words about more topics and ideas than ever would have been possible had Dan not given me this opportunity. Some have been about legal education, some have been related to my core scholarly interests, some have been on topics in which I am interested and have thoughts (or questions), even if not the full interest to pursue as larger projects; many of these are ideas that I never would have written, much less presented, but for this medium. Prawfs has offered a scholarly and creative voice and outlet that I never would have exercised or had the opportunity to exercise otherwise.

I share the belief (often articulated by Orin Kerr and others) that junior faculty should look for the chance to blog and that senior faculty are fundamentally wrong to advise pre-tenure mentees against it. Writing is a muscle--the more you use it, the more you are able to use. Rather than distracting from "real" scholarship, being on this site has allow me to fulfill the need to do "other stuff" while working on larger projects. (That is, if I spend five hours working on my current article in a given day, I easily have an hour or so to devote to a short post on something else, especially something touching on current events or something that might not make for a full scholarly treatment or something that I like thinking and writing about, but not enough for a deep dive).

I cannot remember what I did with my writing and my writing time before Dan invited me to join Prawfs. And I cannot imagine where my career would be without it.

Posted by Howard Wasserman on April 8, 2015 at 09:31 AM in 10th Anniversary, Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, April 06, 2015

University of South Carolina joins the mob

There may be more to this story than is reported here about the University of South Carolina suspending a student for writing a racial slur on a dry-erase board in a study room (as part of a list of complaints about the school). Based on the facts we have, this move is even more egregious than the expulsions at Oklahoma. The Fourth Circuit does not apply Tinker to universities; there is no remote possibility of this being a true threat, fighting words, incitement, or otherwise unprotected speech; and there is no suggestion that using the dry-erase boards in a study room is against university policies (so this cannot be likened to defacing university property). The school simply insists that "racism and incivility" are not tolerated and that the honor code requires everyone to "respect the dignity of all persons" and to "discourage bigotry." Those are all great ideas. But an institution that is subject to the First Amendment cannot further those values by removing from its community anyone who does not share them.

Again, however, if the student is not inclined to sue, the university's power grows.

Posted by Howard Wasserman on April 6, 2015 at 04:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (20)

Anniversary Topic # 1: What has PrawfsBlawg meant to you?

As I noted last week, April will feature a series of weekly mini-symposia to mark the tenth anniversary of PrawfsBlawg (the first post went up ten years ago yesterday).

So, here is the first topic: What has PrawfsBlawg meant to you?

Feel free to discuss anything within this broad subject. Some topics might include: What was your initial exposure and experience with PrawfsBlawg and what did you think? What were your first experiences blogging, whether here or elsewhere? How, where, and when did you meet Dan? What do you remember about Dan's early blogging work?

Again, if you would like to contribute, email your post to Paul (phorwitz@law.ua.edu) or me (howard.wasserman@fiu.edu).

Posted by Howard Wasserman on April 6, 2015 at 09:24 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, April 05, 2015

Getting law right on "BCS"

An interview with Better Call Saul writer Gordon Smith on getting the law right.

Posted by Howard Wasserman on April 5, 2015 at 12:03 PM in Culture, Howard Wasserman | Permalink | Comments (0)

Thursday, April 02, 2015

Where have you gone, Mary Beth Tinker?

Recent incidents of universities expelling students for racist or offensive speech have included an interesting feature--none of the students seem inclined to sue or otherwise contest the punishments as violating the First Amendment. The two guys from Oklahoma have been on a Regret Tour, seemingly apologizing to every African-American they can find (including random Oklahoma legislators). A story described one of them as having "withdrawn" from OU (interesting language given that OU President David Boren made it very clear that he had expelled them). The University of Maryland went after one student for sending racist emails and the student left, at least for a semester, by "mutual consent." This despite the fact that most commentators believe, doctrinally at least, that expulsion for the speech in these cases violates the First Amendment.

One explanation is that the social norms against racist and other offensive speech have so taken hold that people "caught" engaging in such expression do not want to own or defend it in public. Given the social reproach that they are subject to, ordinary people (as opposed to truly hateful sociopaths such as Fred Phelps) no longer want to fight for the right to say what they did or for the underlying principle that offensive speech is protected.  They instead run and hide to let the storm blow over. From a social standpoint, it perhaps is good for norms of equality to take hold.

From a legal standpoint, however, it is unfortunate. Legal rights are lost if not exercised and defended or if those who violate those rights are not called to account. In this context, that requires the speaker to challenge the punishment in court. Moreover, the reluctance to sue increases the power of university officials to impose constitutionally suspect punishment. As one emailer put it, a university president can impose any punishment he wants, "effectively daring the frat members to call his or her bluff."

I have no evidence for this notion, but I wonder if the students are not essentially settling--they agree not to sue, they step away from school for a semester or two, then they are allowed to return once things have quieted down.

Posted by Howard Wasserman on April 2, 2015 at 04:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, April 01, 2015

Ongoing conflicts over campus speech

Short story in the Chronicle of Higher Ed on various new controversies over offensive speech on college campuses, including at Oklahoma, Penn State, Maryland, Bucknell, and Mary Washington.

I would suggest the last two paragraphs, involving three students expelled for using racist epithets on the campus radio station, captures the disconnect and the inherent contradcition (yes, Bucknell is private and can do whatever it wants as a First Amendment matter, but it illustrates the prevailing attitude towards expression):

In an interview Tuesday, Bravman, Bucknell’s president, said that he and his university strongly support free speech and due process. He would not comment on the context of the language, but said that no matter the context, the three students crossed a line.

“There’s no question about that,” Bravman said. “This was hate speech. We own the station and the equipment, and the students were acting as agents of the university. They violated our community standards, and that’s really what this comes down to.”

Posted by Howard Wasserman on April 1, 2015 at 04:06 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Rotations

Welcome to April. Thanks to our March visitors, some of whom may be sticking around for the remainder of this week to tie-up loose ends.

And welcome to our April slate of visitors--Carissa Hessick (Utah), Tung Yin (Lewis & Clark), Amy Landers (Drexel), Brian Galle (BC, headed for Georgetown), Michael Waterstone (SouthwesternLoyola-LA, still visiting at Northwestern), and Jan OseiTutu (my FIU colleague).

In addition, April 2015 (the 5th, specifically) marks the ten-year anniversary of PrawfsBlawg, which DanZ"L launched as a forum for junior ("raw") law profs with this simple post. It has changed over the years as we all have grown with the site (only Richard is pre-tenure among the PermaPrawfs), while hopefully continuing to fulfill its goals. To that end, April will include a series of week-long mini-symposia on topics related to blogging, law teaching, and other matters near and dear to Dan and to this community. And, of course, it offers an opportunity to reflect on our continuing loss. We welcome guest commentaries and contributions, particularly from those who were involved, connected to, or engaging with Prawfs and with Dan a decade ago.

Paul will announce topics later this week and our first symposium hopefully will begin next Monday. Anyone wishing to contribute can email their posts to Paul or to me.

Posted by Howard Wasserman on April 1, 2015 at 06:59 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 31, 2015

Is § 1983 superfluous?

I do not have a whole lot to say about Tuesday's decision in Armstrong v. Exceptional Child Center, although I look forward to reading Steve's (no doubt blistering) comments. But I do wonder about the question posed in the title, as well as whether I need to rethink how I teach Ex Parte Young.

The majority and dissent agreed that Ex Parte Young--formally, an action for "injunctive relief against state [and federal] officers who are violating, or planning to violate, federal law"--is a long-standing creation of courts of equity, rather than a product of the Supremacy Clause. They disagreed over whether the Medicaid Act impliedly limited the availability of such an equitable action--Justice Scalia's majority opinion said it did, Justice Sotomayor's dissent said no. In particular, Sotomayor distinguished this type of equitable action from both § 1983 "and laws" actions and implied statutory actions, insisting that Congress must affirmatively override the former, while the latter are available only if Congress creates and permits them.

How does this affect § 1983? That statute allows for "an action at law, suit in equity, or other proper proceeding for redress" against a "person" acting under color of state law who deprives the plaintiff of a right secured by the Constitution. I generally explain Ex Parte Young, at least in constitutional actions, as an interpretation of § 1983--the state executive officer is a person, enforcing or threatening to enforce an unconstitutional law deprives the plaintiff of a right secured, and the request for injunctive relief makes this a suit in equity.*

* For similar reasons, I have always believed that using Young to enforce federal employment statutes (ADA, ADEA, FLSA) against states (thus easing the effect of the 11th Amendment) was incoherent, since the applicable statutes being enforced only regulated the employer, not the individual state official who would be enjoined.

But the position unanimously reflected today is that an individual could enjoin an executive officer from enforcing an unconstitutional or preempted law without § 1983. So what is the point of the "suit in equity" language if the equitable action predates 1871 and would exist without that statutory language? **This question is placed in sharper relief in the dissent, which acknowledges that § 1983 allows for many different remedies, but then lumps them all together under that statute in distinction to the free-standing equitable action.

** Just to clarify: My superfluousness concern is only as to the "suit in equity" clause, not for actions in law (i.e., retroactive relief), which still requires § 1983.

Posted by Howard Wasserman on March 31, 2015 at 06:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)