PrawfsBlawg

Stupak Amendment and the Constitution

Marci Hamilton argues today that the Stupak Amendment is unconstitutional on three grounds: 1) It violates the Establishment Clause by imposing a minority religious worldview onto secular policy; 2) It violates Equal Protection, by imposing limits on one female-centered medical procedure, but not on male-centered ones, such as Viagra prescriptions or prostate surgery; and 3) It violates Substantive Due Process and Privacy, imposing an undue burden on reproductive choice that is unconnected to government funds (as with the Hyde Amendment).

I don't buy the Establishment argument, for many of the reasons implicit in Rick's "simmer down" post. But the other two strike me as potentially meritorious arguments.

Back from the hiring conference

Well, that was interesting and at least somewhat enjoyable. Of course, I have the beneift of being a member of (according to one anonymous candidate commenting at Faculty Lounge) a unique committee. Needless to say, I am free-riding on my colleagues on this one.

I concur in Michael's conception of FRC a series of "micro-workshops." Michael supplies the missing underlying key to my try-to-have-fun suggestion. Candidates can enjoy this not only because they can talk about themselves, but because they are doing, in miniature, one of the core fun parts of this job. And something they hopefully will get to keep doing once they join the academy.

I would add that Michael's perspective works for hiring-committee members as well. Being on the listening/interlocutor side in workshops also is a great part of this job, and that should be true for the micro-workshops we have invited each candidate to do for us. And at least we get some variety in our workshops--no two candidates even came close to talking about the same ideas.

Attending Hiring Conference

I am off today to the AALS Hiring Conference, where I am on our appointments committee for the first time. I am anxious to experience things from the other side of the table. And I hope to meet some readers (prawfs and candidates) over the course of the three days.

I have nothing to add to the various advice for candidates that has been floating around the blogs of late, except this: Try to have a little bit of fun with it. After all, you get to spend sessions talking about your scholarship, your teaching interests, and your ideas. Stakes aside, by definition you are getting to talk about something you are interested and enjoy--yourself and your work.

Good luck to all.

Lots of birther action

A whole lot happening today with the (futile and probably frivolous) efforts of the birther movement to use the federal courts to have Barack Obama removed from office on the ground that he is not a natural born citizen.

First, Orly Taitz, the lawyer who has become the main public figurehead in these efforts, to the tune of being sanctioned (I think $ 20,000) by a court in the Middle District of Georgia, has appealed the sanctions order to the Eleventh Circuit. She filed a Notice of Appeal (which is ordinarily a one-page document) that contains the same provocative language ("pervasively extreme and outrageous (extrajudicial) prejudice and bias;" "political lynching") that got her in trouble in the district court. I really don't see her still having a law license when this is all over.

Second, and more significantly, Judge Carter in the Central District of California dismissed (Download 21808122-Judge-Carter-Ruling-on-MTD), largely on justiciability grounds, the most comprehensive birther lawsuit. There were 44 plaintiffs in various positions--state legislators, active military, inactive military, 2008 presidential candidates, and (my favorite) a man who claims to be related to Obama and to need to know where Obama was born to better understand the family medical history.

Some thoughts after the break.

The court's analysis is pretty straight-forward, interrupted by some efforts to take shots at the plaintiffs and at Taitz, who represented all but two of the plaintiffs. The court wove political-question doctrine concerns into the redressability prong of standing, which was analytically interesting (i.e., the plaintiffs lack standing because their claims are not judicially redressable because they raise political questions). I was surprised and a bit disappointed that the court did not make more of the House, having accepted the Electoral College votes for Obama pursuant to its constitutional authority under the Twelfth Amendment, having made the textually committed determination as to Obama's eligibility. The court talked about this, but ultimately focused on the Senate having exclusive control over presidential removal.

Interestingly, the court criticized plaintiffs' counsel for waiting until January 20 (after the Inauguration) to file the lawsuit, when the only remedy would be a politically impossible injunction removing Obama from office and ordering a new election. But this creates an interesting wrinkle, at least for the small-party candidates. The court held that they did have a unique injury-in-fact, but lost on the redressability prong. But if the redressability problem is absent in a pre-election action simply to order the California Secretary of State to remove Obama from the ballot, will the court have to find them to have standing? Stay tuned to summer 2012.

Finally, the court (not sure if this is surprising or not) did not raise the issue of sanctions. But it leveled several criticisms at Taitz--including a suggestion that she urged political supporters to call and e-mail the court to tell him to decide the case a certain way and a suggestion (based on affidavits) that Taitz suborned perjury. So could some Rule 11 activity be far behind? Maybe we should start a pool on when Taitz loses that law license.

Law school on the "Block Plan"

For no particular reason, I was thinking today about the "Block Plan" (or "One-Course-at-a-Time") approach used at liberal arts colleges such as Colorado College and Cornell (IA) College. As the name suggests, students take (and professors teach) one class in an intensive 3 1/2- or 4-week block, take one week off, then move on to another single class. And at least Cornell plays up internship and other outside-the-classroom opportunities.

So: Any thoughts on whether law school could work on this model?

More on partisan media

Jack Balkin has a great post linking the White House-Fox News feud to the rise (or re-rise) of the adversarial partisan press in the early 21st century. Fox, Balkin argues, is the heir to the party press of the late 19th-century, when newspapers were owned, operated, and controlled by the various political parties. Although not party-owned, Fox is aligned with one party, so as to be a virtual political and policy mouthpiece for it. And there is no line between “news” and “opinion” and no real attempt to maintain one.

Balkin offers two conclusions, which I endorese, about the current contretemps. First, the White House is wrong to dismiss Fox as not a “legitimate” news-media organization. Fox is a perfectly legitimate news organization, but it is engaged in a different enterprise than The New York Times or the Wall Street Journal and other outlets that try to maintain the 20th-century journalism paradigm. And the White House is thus on fair ground treating Fox differently than other outlets, as well as in challenging the validity of what Fox reports—just as it would challenge arguments made by the rival political party. The White House would be better served by pitching the dispute at that level. Of course, Fox has been so successful in convincing the public (and other media outlets, see below) that it truly is "Fair and Balanced" that such a pitch may not work; the public still sees this as the Administration taking on a news outlet simply for reporting news.

Second, Balkin notes the irony of The Times and other outlets backing Fox against the Administration, by insisting that Fox is, in fact, no different than other news organizations. Fox and its brand of journalism are ascendant precisely because newspapers are dying. By backing Fox, The Times and others may be hastening their own demise.

Junior Federal Courts Conference

This Thursday and Friday, I will be at Michigan State College of Law for the second not-yet-annual) Junior Faculty Federal Courts Workshop, organized by MSU's Lumen Mulligan and UNC Visitor Philip Pucillo. It is organized as a true works-in-progress workshop, with each author having about 10 minutes to summarize and highlight and a senior scholar commenting for about 10 minutes, before opening the discussion up to the room.

There will be 21 people presenting and a crowd of about 35 attendees. I will be presenting an extremely early draft of my paper on Freedom of the Church and its substantive, rather than jurisdictional, nature.

Random pop culture for a Sunday afternoon

This is, to my mind, one of the best commercials of all time. Yet I saw it on TV exactly once, then it was gone. Anyone know why?

When Ricci Met Iqbal

Last term, SCOTUS held in Ricci v. DeStefano that a city could not use race-conscious measures disadvantaging non-minorities to avoid the risk of disparate impact litigation by minorities, unless the government had a strong basis to believe that it would lose that disparate-impact suit. The Court went on to say that, in that case, the City of New Haven did not have a strong basis in evidence to believe it would lose that lawsuit. Last week, an African-American firefighter who took the lieutenant's exam and was not promoted filed suit, alleging that the use of the exam violated Title VII.

So how does Ricci affect this lawsuit? As my colleague Kerri Stone pointed out, the Court's insistence of the lack of merit of this (at the time hypothetical) lawsuit was essential to SCOTUS's conclusion that the Ricci plaintiffs' rights had been violated. Ricci cannot be preclusive, since this plaintiff was not a party to the earlier case. It could be persuasive authority on the legal issue and the court must analyze the suit in light of Ricci. I would be troubled if it were binding authority on this point, since the lawsuit was entirely hypothetical and abstract at the time.

Here is where I think Iqbal and the new two-step pleading might come in. There is a good chance that, in doing the second-step plausibility analysis, the court's (discretionary) view of the plausibility of the plaintiff's allegations will be at least influenced by SCOTUS's insistence that recovery on disparate impact was so unlikely, and the city's fear of liability so misplaced, that its response to those concerns violated Title VII in the other direction. Iqbal suggests courts can decide whether a lawful explanation for the conduct alleged is as plausible as the unlawful explanation alleged and dismiss on its view of this "more plausible" lawful reason. So does the underlying conclusion in Ricci suggest this disparate-impact claim is implausible and thus insufficient under FRCP 8(a)(2)?

The role of lawyers in making the law

Slate's Dahlia Lithwick has a (as usual) good summary of today's oral argument in Perdue v. Kenny A., which considers how far above the baseline a court can go in awarding attorneys' fees to a prevailing civil rights plaintiff. Here, the district court tacked another $ 4+ million onto the lodestar, on a specific finding that the quality of plaintiff counsel's lawyering was so great. It could lend some interesting insight into the future of civil rights attorney fees.

There were some interesting exchanges involving Chief Justice Roberts about the role attorneys play in the process of making the law and whether good lawyering truly affects the outcome and how. Roberts commented that "The results that are obtained are presumably the results that are dictated or command or required under the law." He later asked "[W]hat does a judge say when you have achieved extraordinary results. That if you weren't there, I would have made a mistake on the law?"

These exchanges connect to the Roberts view of judging (last seen in the Sotomayor hearings) as mechanical application of obvious law to fact to reach the one clear answer. But his comments seem to suggest that, in his world view, lawyers do not have a significant role to play, since what they do does not (or at least should not) affect the court finding the "right" answer. Otherwise, why wouldn't the quality of the lawyers and their lawyering matter? This view is ironic, of course, because the courts have raised adversariness to an essential component of judicial decisionmaking and one of the cornerstones of whether a case is even justiciable--courts must decide cases in concrete factual situations involving truly adverse parties. Standing doctrine insists that courts should not act unless there are adverse parties with the expertise, competence, and interest to litigate vigorously--generally with the expertise and interest coming from counsel. But why do we demand vigorous litigation? Not for its own sake. Presumably because it will be informative and convincing to the court; the better the vigorous presentation of evidence and arguments (by lawyers), the more it helps courts reach the "right" answer. If that is true, then the premise of Roberts' questions seems wrong.

I can understand Roberts being uncomfortable with the idea that the brilliant lawyer will win out, regardless of law or fact (recall the cynical saying that juries simply find in favor of the lawyer they like more). But Roberts seems to be going much further, saying that the manner and quality in which arguments are made does not affect how the court comes to view the law (because there is only one right answer to be mechanically found) and facts or the conclusions courts will reach. But if so, why bother having lawyers?

Baseballs in the stands: End of the tradition?

In light of the controversy over Ryan Howard's home run ball, as well as past disputes over ownership of other record-setting and significant balls, I wonder if we are heading towards a change in how baseballs hit into the stands (at least fair balls) are treated.

It seems to me that MLB and individual teams control this. Fans keeping baseballs is a matter of tradition and historical practice, practice that is not followed in most other sports--football, basketball, tennis. The question of how a ball should be treated under state property rules depends on the teams--the owners of the stadiums--not simply declaring that all balls remaining within the stadium (or remaining within the stadium and in fair territory) remain the property of MLB and must be returned.

Such a move would not be popular, of course, as it flies in the face of the intrinsic joy of fans catching home run balls (that several commenters mentioned on my earlier post). But I wonder if teams might find it better than getting into legal disputes with fans when players want important balls, not to mention having fans committing simple battery in an attempt to catch a ball. Simply take away any "right" to keep the balls. Of course, would this mean teams would have to enforce the rules every time, not just on important balls? Or would it be enough for the teams to reserve the right to get a ball back whenever it wished to?

I am not a property scholar, so I invite those more in the know to weigh in.

Greedy athletes or greedy fans?

It must be Sports Week for me again. I find this story really sad--as a baseball fan and as a lawyer.

Short version: Ryan Howard of the Phillies hit his 200th career homer this summer in a game in Miami; the ball was caught by 12-year-old Jennifer Valdivia. Howard reached the 200-homer mark in the fastest time in history, so he wanted the ball. Phillies officials brought Jennifer in to the clubhouse, where they got her to give up the home run ball in exchange for a ball autographed by Howard. But the family decided they wanted the home run ball because, apparently on advice of counsel, it would be worth more. So on Monday, the family sued for rescission; the Phillies gave her the ball back.

Three thoughts.

First, this seems like a bad trade for Ms. Valdivia and her family. If the Barry Bonds home run ball fiasco taught us anything, it is that "historic" home run balls do not have nearly as much value as many fans assume. Her attorney is described in the story as a "memorabilia enthusiast," so he probably knows something about value that I don't. But the ball is unique only because of the "fastest-to" mark that is a largely meaningless, made-up record. If Ryan Howard goes to the Hall of Fame (and I believe he will, at his current pace), will an autograph really be worth less than his 200th home run?

Second, Ms. Valdivia, her family, and her lawyer are hereby estopped from ever again complaining about greedy professional athletes who only care about money and not the game. Howard wanted the ball for his personal satisfaction, because it represented an accomplishment that, in the long run, is meaningful only to him. He offered something of value in return. And the girl's family sued because, in crassest terms, they wanted more money (or more value).

Third, I wonder what she did with the autographed ball the Phillies originally gave her in exchange. Did she keep it? That would give her quite a windfall, to which she is not entitled. Of course, if the Phillies had asked for it back in settling a rescission claim, we would be hearing all sorts of shouts about the greedy team/player taking back what they had given this innocent fan.

Why I hate the wildcard in baseball (a biennial reprise)

There is much celebrating this morning (at least outside of Michigan) of last night's amazing one-game playoff game between the Tigers and Minnesota Twins for the AL Central Division title, a 12-inning featuring three comebacks, which the Twins finally won 6-5. So let me play the curmudgeon here.

Two years ago, journalist Robert Weintraub wrote about the 1993 pennant race between the Atlanta Braves and San Francisco Giants and said "The drama of late-season baseball has been transferred from occasional but memorable all-or-nothing contests between great teams, to annual lower-stakes games between the good-to-mediocre." He blamed the wild-card system, adopted in 1995, because any do-or-die, win-or-go-home contests to win a division or wild card occur only among lesser teams, not among the top teams. I wrote in whole-hearted agreement, using the 2007 season as a perfect example.

Well, this year bears my argument out once again. Yes, last night was a great game and it was an exciting race. But it was between two teams that finished the 162-game schedule with 86 wins--fifth-most in the league entering last night's game. None of the top teams in the American League (the 103-win Yankees, 97-win Angels, or 95-win Red Sox) had any pressure at the end of the season--all were play-off bound, just as the top teams will be every year. The only other division "race" was in the National League West, where, entering Saturday's game, the Dodgers (93 wins--most in the NL) lead the Rockies (92 wins, tied at the time for second-most prior to Saturday) by a game and were playing each other, ostensibly for the division title. But the Rockies already had the wild card won and were play-off bound, since they had the second-best record in the whole league, so they had no pressure and no real incentive to catch the Dodgers and win the division.

Two years ago, I criticized the incentive structure this creates:

A wild-card system values having lot of teams in the play-off hunt and more times with post-season hopes later in the season, with a lot of win-or-else games. But it achieves that at the expense of having the best teams playing those win-or-else games. This is sound as a business decision--more fans in more cities will come out or watch in that final weekend, knowing their teams still are alive.

But as a baseball decision, it stinks that there is no chance to showcase the best teams in these high-stakes games, at least as part of a regular season that is long enough (162 games over six months) to create a meaningful competition. So while that was a great game last night, wouldn't it be nice to have a game like that played between two great teams?

Thanks for listening. Odds are, I will be back with a similar post in 2011.

GOP lawsuit to stop Senate appointment

The Massachusetts GOP has filed suit in state court, seeking an injunction against Gov. Deval Patrick's appointment of a replacement for the late Sen. Ted Kennedy, arguing that Patrick lacked the authority to declare the emergency that constitutionally allows him to make the appointment now, rather than having to wait 90 days. A hearing is set for 8 a.m. tomorrow; Patrick's appointee, Paul Kirk, is scheduled to be sworn in tomorrow afternoon.

This is a suit that pretty clearly would fail in federal court on both Article III standing (the state party is not injured by this appointment, other than having lost in the political arena, and certainly not differently injured than anyone else in Massachusetts) and political question doctrine (this seems like a decision vested in the governor's discretion, with which a court will not interfere).

But is anyone out there familiar with the law of Massachusetts and whether its standing rules are so much broader than Article III as to permit the party to bring this lawsuit?

Update, Friday evening:

The court denied the injunction and Kirk was sworn in this afternoon. No mention of standing; the four-page opinion focuses mainly on a state law question of when the governor can declare an emergency.

Learning from the P&T Process

This year marks my first time on the other side of the promotion-and-tenure process, which means I have to visit and evaluate my junior colleagues' teaching. This has been educational in several respects.

First, I am learning substantive law. After observing a contracts class, for the first time I understand Kirksey v. Kirksey ("Dear Sister Antillico"). It is fun to get a small taste of other substantive content--especially what I should have learned back in school.

Second, and more important, it is quite helpful to see other teachers and other teaching styles. There is both a comparative component to this--"How do I compare to this?"--as well as a learning component--"What things does she do that I might incorporate?" or "What things simply cannot work for me?". I always have believed that good teaching style is largely personal--you have to be yourself; this means it is going to be varied and not always transferable. But we can adopt things that we see that might jibe with our own style. Or we may have some ideas confirmed--watching a colleague conduct (very well) a seminar while sitting the entire time confirmed that I would not do well in that environment because I cannot talk while sitting.

Third, it is interesting to see how courses are integrated across the curriculum and how important it is that students not consider each subject in the curriculum in isolation, but come into each class with at least a basic familiarity with prior subjects. For example, for a discussion of the relative merits of trials and truth-and-reconciliation commissions, students should come armed with clear conception of the idea of the trial gleaned from, e.g., civ pro, crim law, evidence, and crim pro. I wonder if we do a good-enough job showing and emphasizing those intra-curriculum connections.

New Year's Thoughts

The following comes from John Q. Barrett's (St. Johns) excellent Jackson List, dedicated to the work of Justice (and Nuremberg Prosecutor) Robert Jackson (Barrett is writing a biography of Jackson). I found it a very affecting story.

To all our Prawfs readers and writers, celebrating, Happy New Year.

In the Hebrew year 5705, Erev Rosh Hashanah, the eve of the Jewish New Year, came at sundown on the 29th day of the month of Elul. On the Gregorian calendar, it was Friday evening, September 7, 1945.

In Allied-occupied former Germany that year, four months after Nazi Germany’s unconditional surrender, few synagogues were standing and functional, of course. In the Bavarian city of Fürth, however, the space that once had been the synagogue had survived. It was a ground floor room, built to hold 100 or so worshippers, in a big, four-story stone building that once had been a Jewish orphanage. During the Nazi period, the synagogue and orphanage, like virtually every Jewish space, facility and business in Germany, were closed. Other Germans used the upper floor rooms and turned the former synagogue space into a warehouse.

In late summer 1945, about two weeks before Rosh Hashanah, the United States Army, the occupying power in the region, returned this building to the Jews of Fürth. They—survivors who had returned—numbered only 30 or 40, out of 3,000 Jews who had lived in Fürth before the Nazis and the war. These survivors cleaned up and reconsecrated the nearby Jewish cemetery. (Allegedly, some knowledgeable persons dug up there the congregation’s Torah scrolls, which had been buried in the cemetery and thus saved during the war. Others say today that the Torahs of Fürth were saved in hiding places beneath the synagogue’s floor.) The survivors also cleaned and reconsecrated their synagogue, bringing it back to life by relighting the eternal candle (nair tamid), rehanging embroidered drapes on the holy ark (oron chodesh), and restoring other fixtures.

On that Erev Rosh Hashanah, services in the Fürth synagogue were overfilled. The worshippers included returned congregants, American soldiers and “displaced persons” who were living nearby.

Fürth is located just a few miles from Nürnberg. In that same month of September 1945, work crews, including German prisoners of war in U.S. Army custody, worked at the courthouse, the Palace of Justice, located on Fürtherstrasse between the two cities. They prepared that facility for the International Military Tribunal proceedings—the Nuremberg trial of the principal Nazi war criminals—that would begin that November in Courtroom 600.

For Jews on Justice Jackson’s United States prosecutorial team during 5706, the Fürth synagogue became their congregation.

Coaches teaching civ pro

I still am trying to get more legally oriented reports and documents, but it appears that the breach-of-contract dispute between the University of Kentucky and former men's basketball coach Billy Gillespie is going to turn into another object lesson in civ pro.

In July, Gillespie sued the University of Kentucky Athletics Association in federal court in Texas (where, presumably, Gillespie moved after he was fired). The Association has moved to dismiss for lack of personal jurisdiction, as well as (I would guess) improper venue or to transfer venue to the District of Kentucky.

Meanwhile, the University then sued Gillespie in state court in Kentucky and Gillespie has removed the case to federal district court in Kentucky, apparently on diversity grounds. This sets us up for a replay of the jurisdictional dispute between West Virginia University and its former football coach, Rich Rodriguez. WVU sued in state court to collect on a liquidated damages clause and Rodriguez removed; WVU moved to remand, arguing that as a state university, it was an arm of the State of West Virginia and not a citizen of the State for purposes of diversity jurisdiction in federal district court. The federal court agreed and remanded.

This same sequence could be repeated here. The outcome will depend on whether the University or the UK Athletics Association (an adjunct to the University established by the state to govern the university's intercollegiate athletics) is the plaintiff and whether either or both are deemed arms of the state.

Happy New Year

Rosh Hashanah, the celebration of the Jewish New Year, begins at sunset next Friday. Far away, but I could not wait to post this. Because it falls on Shabbos this year, we do not blow the Shofar on the first day. We do, however, take the day to "recall" the blowing of the Shofar.

This should help us recall:

Pleading and al-Kidd

Continuing with my thoughts on the Ninth Circuit decision in al-Kidd v. Ashcroft, the Ninth Circuit decision denying a motion to dismiss of claims challenging DOJ use of material-witness detention as a post-9/11 investigative tool. The final big issue, worthy of its own post, is what the court had to say about pleading in light of Iqbal.

The majority tried to apply a nuanced, but ultimately more-forgiving approach to pleading. It rejected as conclusory and insufficient the allegations as to Ashcroft's involvement with al-Kidd's conditions of confinement, for all the reasons discussed in Iqbal itself.

But otherwise, the court does not spend much time analyzing the Fourth Amendment allegations under Iqbal. The court merely says the following in finding the allegations sufficient:

al-Kidd alleges that he was arrested without probable cause pursuant to a general policy, designed and implemented by Ashcroft, whose programmatic purpose was not to secure testimony, but to investigate those detained. Assuming that allegation to be true, he has alleged a constitutional violation.

The real detailed Iqbal analysis was over the § 3144 claim--that Ashcroft enacted and supported a policy of violating the material-witness statute. The court emphasized how much more particular detail--specific, widely publicized statements by Ashcroft, FBI Director Mueller, and others about the pretextual and expansive use of § 3144--there was in al-Kidd's complaint as compared with the complaint in Iqbal. And clearly detail is demanded. From that detail, the court was willing to draw a number of favorable inferences as plausible and thus consistent with Iqbal and Twombly. For example, the court read the complaint to plausibly allege that Ashcroft knew of and did not stop misuse of the statute by underlings, based on the public nature of that misuse and statements explaining it. The court also read the complaint to plausibly allege that Ashcroft purposely instructed his underlings to do so, based on his public statements about the import of aggressive use of § 3144 in the War on Terror.

One lesson of this case is that specific, detailed examples of conduct and events are necessary to allege (inferentially) things such as knowledge, purpose, intent, agreement, and other state of mind. The allegation that someone "knew" X or did something "because of" Y almost certainly is not going to be sufficient. This is consistent with the Ninth Circuit's decision a few weeks ago in which allegations that Secret Service agents did something for viewpoint-discriminatory reasons were disregarded as conclusory.

I believe this undercuts arguments made by Adam Steinman in a CoOp post and in a great new article. He argues, for example, that in Iqbal, the following would be sufficient, without the need for greater detail (when they ordered it, the form it took, how they know):

Ashcroft and Mueller ordered that all post-September-11th detainees who are Arab Muslim men be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI, and they issued this order because of its adverse effect on this particular group.

But after reading the Ninth Circuit's analysis here (and in Moss), I am not so sure.

Another lesson is that plaintiffs are going to have much less success with a claim involving conduct that received less publicity and media coverage than this one. Al-Kidd could point to specific statements in the public record allowing the inference of an intentional policy or high-level knowledge. Unlike many (most?) civil rights claims, he did not need discovery to learn about specific instances or acts that support his claim. But many plaintiffs will not be so fortunate. Indeed, that divide between classes of cases seems inconsistent with the use of Bivens and civil rights damages litigation as a supplemental tool for investigating government misconduct; discovery (and the opportunity for it) is supposed to be part of that.

Finally, this opinion demonstrates the tremendous, and seemingly inconsistent, discretion courts wield in deciding 12(b)(6) motions, especially when considered in conjunction with recent Ninth Circuit decisions in Moss (granting dismissal under Iqbal) and Padilla v. Yoo (denying dismissal).

Official liability for abuse of material witness warrants

Much MSM discussion of Al-Kidd v. Ashcroft, in which the Ninth Circuit held that former Attorney General John Ashcroft did not enjoy either absolute prosecutorial or qualified executive immunity from damages claims that he established policies or presided over a regime of misuse of material-witness warrants to detain individuals not for purposes of ensuring their testimony, but to investigate the detained witnesses themselves for terrorism-related activities.

The plaintiff, a natural-born U.S. citizen who converted to Islam, was arrested on a material-witness warrant in March 2003, allegedly because of contact he had with Sami Omar Al-Hussayen and an Islamic charity, the Islamic Assembly of North America, that purportedly gave financial and other support to radical Islamist activities. Al-Kidd was held (in custody or supervised release) for 15 months, although never called as a witness in Al-Hussayen's trial (Al-Hussayen was acquitted). The warrant was obtained on false, incomplete, or omitted information and al-Kidd alleges that the purpose in seeking the arrest was to question and gather more information on al-Kidd.

Coming as it does on the heels of Ashcroft v. Iqbal, where the Supreme Court created a difficult road for victims of unconstitutional War-on-Terror tactics to seek damages against Ashcroft and other high-level executive-branch officials from the Bush Administration, the fact that this case was allowed to go forward has drawn some media attention.

There is a lot of interesting stuff going on here, that I will hit here and in a couple of later posts.

Absolute Prosecutorial Immunity

The court held that, in establishing and overseeing a policy of using material-witness warrants to investigate or simply detain the target of the warrant, Ashcroft was acting as an investigator rather than a prosecutor (as were his underlings). The court recognized that the ordinary, appropriate use of material-witness detention in the wake of an indictment and in preparation for a forthcoming trial would be prosecutorial. Here, however, the court added a limited purpose element to the immunity analysis; while a prosecutorial function committed with an improper purpose does not strip a prosecutor of immunity, the "immediate purpose" behind an act helps define whether it is investigative or prosecutorial and an act done with an immediate investigatory purpose is investigative.

This is a fine, but important line. The court looked at largely objective facts in making this determination--the temporal distance between the warrant and the trial; the government's investigative history with the target of the warrant; what the government questioned the witness about while in custody (who they asked about and what conduct they asked about); and whether he was called to testify at the eventual trial. The complaint also contained public statements by DOJ officials (including Ashcroft) about the expanded use of material-witness warrants for largely investigative purposes. On these facts, at least at the 12(b)(6) stage, Ashcroft was functioning as an investigator (or the supervisor/policymaker over investigators).

Interestingly, the majority also responded to concerns about unadorned allegations of non-prosecutorial motive by plaintiffs by emphasizing the amount of detail in the Complaint. This is an Iqbal-triggered concern, obviously. And I will talk about this more next post.

But here, it reflects an unfortunate pleading confusion. Prosecutorial immunity is supposed to be an affirmative defense, with the burden of proof (as the court seems to acknowledge) on the defendants. But the burden of pleading also should be on the defendant. Thus, the plaintiff should not have to plead that the challenged acts were non-prosecutorial and why, consistent with Iqbal or otherwise. It should be on the defendant to plead that the acts were prosecutorial. The language of the decision seems to convert anticipation and rejection of the defense into an element of the plaintiff's claim. This confusion was sort of an underlying issue in Iqbal; it is now explicit here.

Qualified Immunity

The court next held that Ashcroft was not entitled to qualified immunity. True, it was not clearly established in 2003 that misuse of the material-witness procedures violated the Fourth Amendment. But, the court said, dicta in Ninth Circuit law at the time suggested that material-witness detentions must be linked to a primary need to obtain testimony. Further, the definition and history of probable cause under the Fourth Amendment were clearly established, which should put government officials on notice that arresting someone on mere suspicion of criminal activity runs afoul of the Fourth Amendment. Finally, the court pointed to a 2002 district court case that rejected this use of material-witness detention as an investigative tool, calling out Ashcroft by name.

There is a tone to the opinion that this use of detention was akin to a government policy of selling babies who are in foster care. This is Judge Posner's classic example of something that is so glaringly, obviously unconstitutional that the law is clearly established on general principle regardless of case law, because a case on all fours never will arise.

Supervisory Liability

There was some concern that Iqbal eliminated supervisory liability under Bivens/§ 1983, by demanding an intent to establish unlawful policy. The al-Kidd majority rejected that reading, limiting an intent requirement to those supervisory-liability cases in which the underlying constitutional right contains an intent element (as with the Equal Protection and religious liberty claims in Iqbal). Otherwise, pre-existing Ninth Circuit law controls, allowing supervisory liability on a number of theories, including failure to train, supervise, or control; for setting in motion unconstitutional acts of others; and for acquiescing in constitutional misconduct by underlings.

Damages for violating § 3144

One final, strange thing in the case is that al-Kidd sought damages because the government's misuse of the material-witness statute in this case violated the statute itself (as opposed to violating the Fourth Amendment). Yet there was no discussion in the case of how or why a person could sue for damages for a statutory violation of § 3144. I have found no case recognizing a private right of action for damages under § 3144 itself (a Westlaw search turned up nothing). And Bivens actions are permitted for constitutional violations, not statutory violations (one obvious way that Bivens and § 1983 differ). Did I miss something? How did this issue fall through the cracks?

In the next post, I will discuss the issues in the case relating to Iqbal and pleading under Rule 8(a).

Confusing Fed Courts doctrine, same-sex marriage, and DOMA

Arthur Bruno Smelt and Christopher David Hammer are a couple living in Orange County, California who have spent a big chunk of this decade trying to be the Mildred and Richard Loving of the same-sex marriage movement.

After applying for (and being denied) a California marriage license back in 2004 or 2005, Smelt and Hammer filed suit in federal court, challenging the constitutionality of the denial of the license, as well as the constitutional validity of the Defense of Marriage Act ("DOMA"). The Ninth Circuit ultimately affirmed the district court decision to abstain from the challenge to state law on Pullman grounds, deferring to then-pending state constitutional challenge to California's one-man/one-woman definition of marriage (what became the California Supreme Court's 2008 decision striking-down the state definition of marriage, subsequently overridden by Proposition 8, which was upheld by the court in the face of a state constitutional challeneg). The court also held that Hammer and Smelt lacked standing to challenge the non-recognition provisions of DOMA.

In the interim between the 2008 decision and enactment of Prop 8, Smelt and Hammer were married (and California still recognizes that marriage as valid). They then brought a constitutional challenge in California state court to DOMA and to the failure of the entire United States to eliminate distinctions as to who can marry. Named defendants were the United States of America, the State of California, Does 1-1000 (I have not found the complaint, so I am not sure who those are). The United States removed the action to federal court under 28 U.S.C. § 1442 (removal by the United States). The U.S. then moved to dismiss for lack of subject matter jurisdiction--arguing that the United States could not have been sued in state court in California because of sovereign immunity and the federal court's derivative jurisdiction after removal is the same as the state court's original jurisdiction. Last week, the district court agreed.

I am thoroughly confused by a number of decisions that Smelt, Hammer, and their lawyers (I assume there are lawyers; the district court opinion does not indicate that they are acting pro se) have made. From the outside looking in, they appear desperate to go it alone and to be heroes on this issue. But their strategic choices have been bizarre and have reflected ignorance of core Fed Courts doctrine.

1) Two things must happen for anyone to have standing to challenge DOMA: a) They must be married and b) They must try to do something that triggers the (allegedly) discriminatory limits of DOMA--namely, either attempting to gain federal benefits as a married couple or to have their marriage recognized in another state. Smelt and Hammer never have tried to do either of those things, as far as I can tell (either before they were married or since they have been married), so I am not sure why their lawyers continue to believe they could be successful in challenging DOMA this way, given existing standing doctrine.

2) Why did they sue the United States? If their lawyers went to law school (and took Fed Courts or Civil Rights), they should know you cannot sue the United States for constitutional violations. You must sue responsible executive officers.

3) For that matter, why did they go to state court, knowing that any federal defendant would simply remove? And any federal constitutional claim would be a basis for removal.

4) Last week's disposition of the case turned on the unique removal doctrine of derivative jurisdiction, under which the federal court to which a case is removed lacks jurisdiction if the original court lacked jurisdiction. That doctrine has been statutorily overridden in general removal cases, but not in federal-government or federal-officer removal cases such as this one. I am not entirely sure the benefits of the government's strategy of removing-then-dismissing, rather than just dismissing; maybe because the appeal now is in the federal system. Still, this case just seems so obviously defective, no strategy can go wrong.

5) At some level, I think Smelt and Hammer still are reeling from being screwed in the first instance. As I have argued, Pullman abstention was unwarranted in the first case because the federal court deferred to state law litigation of issues under parallel state constitutional provisions (equal protection and due process). But there is no rule (and should not be any rule) requiring a plaintiff to exhaust state constitutional arguments before moving to federal constitutional arguments where parallel substantive rights are at issue. They should have been able to go forward on their original constitutional challenge to the denial of a marriage license.

6) A bit of patience, strategy, and knowledge of the doctrines could permit Smelt and Hammer to move forward in a real challenge to parts of DOMA. They need to apply for some federal benefits as a married couple (social security, whatever); have those benefits denied because; then sue the responsible federal officer who denied those benefits (not the United States), arguing the unconstitutionality of that portion of DOMA that defines marriage as between one man and one woman for federal law and federal programs, which likely was the cause of the denial of benefits.

7) It will be tougher to challenge the state-recognition provision of DOMA, just because of how the provision is written and its limited function beyond symbolism. It provides that no state is required to recognize an otherwise-valid same-sex marriage from another state; it kicks-in to justify the decision of one state to decline to recognize a another state's same-sex marriage. But states do not need DOMA to decline to recognize that out-of-state marriage; the Full Faith and Credit Clause has recognized a public-policy exception to recognition of foreign judgments. So even a federal court willing to say that, say, Utah acted unconstitutionally in failing to recognize the Smelt/Hammer California marriage could do so without having to touch DOMA, depending on the arguments the state made.

8) Ironically, Smelt and Hammer have run against a preference for big group impact litigation of constitutional issues. This partially explains the stretch to use Pullman in the first case--the court could avoid litigating this individual claim in deference to major impact litigation over the issue as a whole brought by knowledgeable cause lawyers. Thus, if Davoid Boies and Ted Olson go forward in litigating their intended federal constitutional challenge to same-sex marriage, we might see the court hearing any case by Smelt and Hammer to defer to the larger, group litigation. Despite the insistence (especially recently) on a return to the individual model of litigation and away from cause-oriented litigation, courts still seem aware of cause-centered cases and the completeness and expertise that goes into those cases. Similarly, I imagine leaders in the SSM movement have not been thrilled with Smelt's and Hammer's continued litigiousness, particularly given its incompetence.

Update, Tuesday:

My timing was good, because this has been a big week for DOMA discussions.

First, as noted in the comments, the National Law Journal had a story yesterday about a challenge to DOMA that just might work, brought by several people in Massachusetts who already have applied for, and been denied, some federal benefits (health insurance, disability, survivors' benefits) that ordinarily are available to married persons. No standing problems; no naming-the-wrong-defendant problems. And it might have legs. Mike Dorf also commented on a parallel challenge to DOMA, brought by the Massachusetts attorney general.

Second, Hillel Levin has a new paper on the conflicts-of-laws issues underlying same-sex marriage, which states are going to have to wrestle with, with or without DOMA.

Third, an interesting Fed Courts thought experiment: The plaintiffs in the Massachusetts case actually sought and were denied benefits. But at what point might they have been able to get into court? If they could have alleged a present intent to seek benefits or to claim marital status on their 2010 tax returns, would that have been enough to establish standing and to create a ripe controversy? Ordinarily, yes, a plaintiff can bring such an anticipatory, pre-enforcement challenge to an existing law, on a showing of specific intent to engage in conduct that triggers the unconstitutional law so as to satisfy standing.

But the right to do this (as discussed in Ex Parte Young) often is premised on the idea that the alternative is to wait for the law to be enforced, often through criminal prosecution and the risk of imprisonment, pretty big risks to take. So the pre-enforcement challenge allows persons to pursue the constitutional issue with less risk. But here, there is no risk of criminal punishment. The ability to trigger enforcement of DOMA rests entirely with the would-be challenger to the law--all he must do is request those benefits and have them denied. So would the courts have accepted an anticipatory challenge in this type of case?

The Libel Tourist is dead

Khalid bin Mahfouz, a Saudi citizen who brought several defamation lawsuits in Great Britain against United States writers and publishers who accused him of supporting and funding terrorism, has died at 60. (H/T: Greg Wallach of FIU College of Law).

Most recently (and famously), bin Mahfouz won a $200,000 default judgment against American journalist Rachel Ehrenfeld for her book Funding Evil: How Terrorism Is Financed — and How to Stop It. Ehrenfeld fought back by trying to get a federal injunction against U.S. enforcement of that judgment, which failed for jurisdictional reasons. Ehrenfeld then became a vocal advocate for Libel Tourism (or Libel Terrorism) laws at the state and federal levels. These bills would at a minimum make unenforceable in the United States any foreign defamation judgment against speech that is protected by the First Amendment. They would, at a maximum, establish special jurisdictional rules for domestic actions enjoining enforcement, and providing for "clawback" of the amount of any foreign judgment. I have written previously about the many problems with the more-expansive bills and was part of a panel on the subject at SEALS earlier this month.

I wonder what this news will do to either push the legislation or further dampen it as an issue.

More Iqbal: What's a plaintiff to do?

I am trying to put together an essay for a symposium on Iqbal for Lewis & Clark Law Review and am searching for a hook. I think I found it (finally) in last month's decision by the Ninth Circuit in Moss v. U.S. Secret Service.

The plaintiffs were part of a group of anti-Bush protesters who were moved away from the sidewalk directly outside and across the street from an inn where the President was eating (the order to move came from the Secret Service, although the actual moving was carried out by local police). The anti-Bush protesters were to be pushed a block east (they actually were pushed more than two blocks away, as well as subject to some rough policing). Pro-Bush counter-protesters, who had been a block west of the inn, were not made to move.

The plaintiffs brought First Amendment claims against the two agents on the scene, the former director of the Secret Service, and the Service itself (OK, that last one just shows the plaintiffs' lawyer did not entirely know what he was doing). The basic claims were that the plaintiffs were moved because they were presenting an anti-Bush viewpoint, consistent with a sub rosa Secret Service policy of suppressing speech critical of the President.

After the jump, take a look at Iqbal in action in a fairly straightforward Bivens action. It's not pretty.

1) The court followed the two-step approach described in Iqbal: a) Disregard (or at least not accord a presumption of truth to) conclusory allegation and b) Look at the remaining allegations to determine whether they "plausibly" give rise to an entitlement to relief, purportedly by accepting them as true and according reasonable inferences in the pleader's favor.

The court thus disregarded as bald and conclusory the allegations that the on-the-scene agents acted with an impermissible viewpoint-discriminatory motive and the allegations of a discriminatory policy in the agency.

This presents the first problem for the plaintiffs: What facts can they plead as to state of mind at this point, without the benefit of discovery? How can they know what was in the agents' minds until they have had a chance to depose them?* I suppose they might use FOIA to find out about formal Service policies regarding protesters. But the allegation was about a sub rosa policy--in other words, an agency-wide custom, accepted and enforced informally, having the force of law but without being formally established. No FOIA request is going to turn that up. Perhaps allegations about other examples of Service treatment of protesters would lend factual support. But it also would require that superiors knew about those other incidents--again, impossible to allege (in an acceptably non-conclusory manner) without discovery.

2) The court then looked to the remaining allegations and (surprise!) found they did not show a plausible violation. The court considered several distinct allegations. What is noteworthy is how unwilling the court was to draw inferences from these facts in favor of plaintiffs.

a) Only the anti-Bush protesters were moved. But, the court said, the police were ordered simply to move them to a distance equidistant from the Inn as where the pro-Bush protesters already were standing. So the end result (at least of the agents' orders) was pro- and anti-Bush protesters were one block over from the Inn (on opposite sides). Two problems. One is the counter-factual--what if it had been the pro-Bush demonstrators directly in front of the Inn--would they have been moved? We don't know; but is it a reasonable inference (looked at in the light most favorable to the plaintiff) that they would not have been? The other is that the fact that we had a viewpoint-neutral outcome (everyone equidistant from the Inn) does not mean that no viewpoint discrimination occurred--anti-Bush protesters still were moved and a plausible reason is it was because they were anti-Bush protesters.

b) Relatedly, the court insists that if the real purpose of moving the protesters was to suppress the anti-Bush message, the agents would have moved them more than a block away, to where they could not be heard. Hmm; I guess the court never has heard of pretext. It seems to me it is at least potentially a violation (certainly sufficient to withstand a 12(b)(6) motion) for government officers to move a group of speakers, because of their speech, out of the best speaking position and into a lesser one. Even if they could still be heard, they are further away, cannot be seen, and their expression has less impact because of that distance.

c) Plaintiffs alleged that diners and Inn guests were permitted to remain in close proximity to the President without security screening. But, the court said, that allows no inference about the motive behind moving the anti-Bush crowd, which only can be given meaning by reference to the pro-Bush protesters, not the non-protesters in the Inn. Again, I guess the court never heard of pretext. The stated reason for moving the protesters away from in front of the Inn was to keep them out of "firearms and explosives range" of the President. But that reason is belied by the fact that people inside the Inn remained within range of the President without any screening. This at least allows the inference that the concern was not really about firearms and explosives, but something else. And this gets us back to only the anti-Bushies being moved. If the firearms concerns fall away (as plausibly suggested by the non-screening of diners), we are left with the the fact that the antis were moved and there is an inference that the stated reason was not the actual reason. If they got to the spot first, there has to be some reason for moving them. What other reason is there? It is not a legitimate (much less substantial or compelling) government interest to keep the expressive marketplace balanced by making sure both sides are a block away, so that could not be a neutral justification. If the antis got to their spot first, there must be some reason

d) Plaintiffs alleged that they were moved by local police more than a block and subject to abusive police tactics. But these allegations involve local police (who were not named as defendants) and do not mention the Secret Service or the two agents. This seems right to me.

The point of all this is to show the discretion that Iqbal gives courts to ignore the ordinary admonition to draw all inferences in favor of the non-movant/plaintiff. This is where courts really have power in the context of motions to dismiss--in the inferences they draw (or don't draw) in reviewing the complaint and deciding what is or is not plausible based on the facts pled. None of the inferences I have argued for here are essential or necessary. But the inferences I have suggested seem to make a First Amendment violation plausible--certainly enough to get by 12(b)(6). Again, we come back to the question--what more could these plaintiffs have done? And how are they ever to get their claims before a jury?

The court did grant plaintiffs leave to amend, for the stated reason that the complaint was filed prior to Twombly and Iqbal. But as courts start finding more and more complaints factually deficient under Twombly and Iqbal, this is going to become an increasingly common practice.

Interesting stuff. In addition to writing about the case, I may assign the complaint (which, at 92 paragraphs, is reasonably short) as an example for Civ Pro.

• The defendants have vigorously, and thus far successfully, resisted all discovery. This created an interesting secondary issue on appeal, regarding immediate appealability of the trial judge's decision to delay ruling on summary judgment in response to a Rule 56(f) affidavit.

Dorf welcomes 1Ls

Michael Dorf offers words of welcome for 1Ls. In particular, he has thoughts about why legal education should be thought of as a continuation of undergraduate/liberal education and why students should try to enjoy learning the law and the ideas in the law, as much as they enjoyed learning history, biology, or literature while in college. At the very least, enjoyment means they will pay more attention and do better in school.

Go Figure: How Pandora works

When I was in high school, one of the New York radio stations had a program gimmick called "Go Figure," in which they would play three songs and callers had to guess the link among the three (which sometimes was pretty esoteric).

I was reminded of this while using the Pandora app this morning. Pandora works by taking a starting-point artist, then playing other songs by other artists that the listener would enjoy (according to the program), presumably because of some similarities among the artists and songs. So please explain the following:

The starting artist was ABBA (forgive us--we watched "Mamma Mia" last night). It played "Take a Chance," followed by the version of "Dancing Queen" from the Original Broadway "Mamma Mia" Soundtrack. So far, makes sense. We then got the following in order: 1) Cyndi Lauper ("Girls Just Wanna Have Fun"); 2) Pat Benatar ("We Belong"); 3) Carly Simon ("You're So Vain"); 4) The Beatles ("Here Comes the Sun"); 5) Fleetwood Mac ("Little Lies").

Now I will say that I genuinely like three of those five artists (not saying which ones). But how or why would an algorithm group those songs/artists for one listener?

More on casebooks

As I indicated in comments to Jessie's post on casebooks versus assigning full or self-edited cases, this has me thinking.

Suppose I taught Civ Pro as follows:

1) Rules pamphlet 2) Complete (unedited) cases in those areas in which there are major cases: Pleading (Iqbal/Twombley); Summary judgment (Trilogy and a good lower-court case); Erie; Personal Jurisdiction; Subject Matter Jurisdiction 3) Student-level treatise (there are a few good ones--two years ago, when I had only a few days to cover preclusion, I assigned treatise pages rather than material from the casebook) 4) Supplemental materials (sample complaints, sample discovery documents, etc.)

Help em out here, folks (especially Civ Pro geeks): Would this work? What's wrong with this approach? What (if any) are the benefits? What are the negatives?

How I spent my first day of the new semester?

Sitting in the jury selection room at the United States District Court for the Southern District of Florida. I assume I will be cut loose after tomorrow once I explain the burden of showing up everyday for two weeks during an academic term. I also don't see either side putting me on a jury once they learn what I teach.

In the meantime, the courthouse is a laptop-free zone (ironic, given my pedagogical predilections), so I am not sure what sort of work I am going to be able to get done while I am waiting around all day.

Arthur and the Law

As Dan adjusts to life with Cubby, the great question is how we balance scholarship with parenthood. One possible answer: You never know when legal scholarship will appear in unexpected places. Case in point:

Today on Arthur (my daughter's post-nap show of choice), an expensive cake plate was broken in the living room and a video/audio recording seemed to show that the plate had broken while Arthur and his friend were throwing a baseball around on their way to play outside. And everyone's immediate conclusion upon watching the tape was that Arthur was responsible for breaking the plate. But breaking the recording down, along with outside investigation, showed that conclusion was wrong.

In other words, the episode illustrated the central point in my recent article on video evidence. As I said, you never know.

Sotomayor Confirmed

The vote was 68-31; nine Republicans joined 59 Democrats (Sen. Kennedy did not vote).

Health-care protests and free-speech models

Recent stories about "tea-party" protesters shouting down Democratic Congresspersons trying to hold constituent meetings raises the question about whether the protesters' actions are appropriate in a freedom-of-speech, as opposed to a democratic governance sense. The answer depends on two competing models of how free speech should operate.

On one hand, Congresspersons are trying to recreate some version of Alexander Meiklejohn's Town Hall Meeting, in which democratic governance occurs via a form of the New England Town Hall meeting and the freedom of speech is designed to ensure that the meeting functions towards that end. (Actually, this is more of a republican adaptation--no governance is occurring at the meeting, but the meeting is designed to enable communication between representative and constituents, which in turn enables the representative to directly participate in the governance process). But the point about the rules of the meeting remains the same: They must be designed to ensure that the meeting can function for its governance purpose; there is no right in every person present to speak; speech can be restricted if it interrupts the ordinary course of the meeting, prevents others from being heard, or otherwise interferes with the meeting; rules can be used to maintain order to the meeting process (Meiklejohn anticipating what has become known as time, place, manner restrictions).

On this conception, the tea folks are acting wrongfully. The meeting should be open to the protesters and those protesters must be permitted to speak, ask hostile questions, and express (even in loud terms) their opposition to health-care reform (none of these Bush-Era faux town hall meetings stocked with handpicked supporters). What they cannot do is interrupt the meetings by booing and jeering, shout down the Congressperson or other attendees and speakers, or otherwise try to prevent the meeting from occurring or functioning as a public conversation.

On the other hand, a competing free-speech model is the person speaking on the public street corner. This ordinarily assumes the lone, powerless speaker alone on a soapbox, railing against authority and government corruption. But I think it is a flexible enough concept to capture a Congressperson out in public, meeting and talking with his constituents or even giving a public statement. This model of speech and the public speaker also carries with it counter-speech and the counter-speaker--someone standing on an adjacent soapbox, countering the first speaker's words, symbols, and ideas, trying to convince the listening audience that she is right and the first speaker wrong, and perhaps trying to get the first speaker to give up and shut up. One speaker attempting to shout-down another--while rude, not conducive to civil or meaningful discussion that can accomplish anyway, and perhaps counter-productive--is consistent with this model of speech.

The tea folks thus are behaving consistent with this model, particularly in less-formal settings (show-ups at restaurants, picnics in the park and other public spaces, etc.). Freedom of speech includes freedom to heckle and shout-down competing speakers; the public space is not the place for the organization Meiklejohn assumes. This idea of the extreme of counter-speech is captured in this scene from Casablanca--what's the difference?

Two final caveats on this. First, I do not suggest that the tea people are behaving in a way consistent with republicanism and democratic governance. Preventing a public conversation about an important issue of public policy is hardly conducive to effective governance. But sometimes there is a divide between speech and governance. Second, Meiklejohn's model, even if appropriate here, does not speak to remedies for those who refuse to play by the rules of the town-hall meeting. Because the reality is there are none. Having even harassing and uncooperative protesters removed from the meeting is not going to play well on TV or the Internet.

SEALS Panel: Enforcement of Foreign Defamation Judgments

For those of you at SEALS and looking for something at 4:30 to build an appetite for dinner, there will be a very good panel on the enforcement of foreign defamation judgments, the anchor panel for the two-day First Amendment Workshop. Speakers will critique the pending Free Speech Protection Act of 2009 (a subject I have written about previously) and general principles of how the First Amendment should affect domestic enforcement of foreign judgments against speech, where that speech is fully protected under U.S. law.

Enforcement of Foreign Defamation Judgments

The Free Speech Protection Act of 2009 would create a federal tort out of the filing of a defamation lawsuit in a foreign tribunal. In addition to the compelling speech interests involved in this libel tourism debate, there are a significant number of other relevant legal concerns (i.e., foreign relations, the viability of the Hague Conferences attempt to formulate a multilateral treaty on the recognition of civil judgments, etc.). In addition, the ALI has recently completed the final draft of its Foreign Judgment Recognition Act including a lengthy reporter’s note regarding foreign libel judgments.

Moderator: Professor Benjamin Means, University of South Carolina School of Law.

Speakers: Professor Doug Rendleman, Washington & Lee University School of Law; Professor Robert McFarland, Faulkner University, Thomas Goode Jones School of Law; Professor Howard Wasserman, Florida International University College of Law; Professor Michael Broyde, Emory University School of Law; Professor Louise Teitz, Rogers Williams University School of Law.

I will discuss some First Amendment and Article III problems with the proposed federal law.

Results of laptop ban survey

After banning laptops from the classroom last semester, I surveyed my students about the ban. I got about 65 responses out of approximately 200 students (not a great yield, but still). The questions and results, as well as my thoughts, after the jump:

My apologies for the formatting; I could not get them to line up.

1) What effect has the laptop ban had on your concentration in class?

Strongly positive: 33 Slightly positive: 17 Neutral: 13 Slightly Negative: 1 Strongly Negative: 0

2. What effect has the laptop ban had on whether you have found the course material interesting?

Strongly positive: 17 Slightly positive: 11 Neutral: 29 Slightly Negative: 3 Strongly Negative: 0

3. What effect has the laptop ban had on your ability to learn the material?

Strongly positive: 24 Slightly positive: 11 Neutral: 18 Slightly Negative: 6 Strongly Negative: 2

4. What effect has the laptop ban had on the usefulness of your notes for studying?

Strongly positive: 14 Slightly positive: 8 Neutral: 9 Slightly Negative: 22 Strongly Negative: 7

5. What effect has the laptop ban had on your overall enjoyment of the course?

Strongly positive: 21 Slightly positive: 13 Neutral: 16 Slightly Negative: 8 Strongly Negative: 1

So what do I make of these results? A few thoughts:

1) There were more neutral answers than I expected or, frankly, would have liked.

2) Students overwhelmingly recognize that they concentrate better and pay more attention when they are not allowed to use laptops. In other words, students recognize that the ban achieves one of its primary goals of increasing student attention and involvement. The limitation is that this does not tell us whether the reason for the increased concentration and attention is because the distraction of the internet/IM/e-mail has been removed or because, distractions aside, they are more involved when forced to listen and process the discussion rather than trying to transcribe it.

3) Students seem mostly positive or non-committal as to whether absence of laptops affected their enjoyment of the material or their ability to learn it. Which, of course, seems inconsistent with the overwhelming belief that they concentrated better. Better concentration does not equal great enjoyment or absorption? That seems counter-intuitive--if you pay more attention, don't you learn more (even if you find out you don't particularly like the material or the course)?

4) Students are split almost evenly positive/negative on the effect of the ban on note taking and the usefulness of class notes. My inference is that the negative on this is that students are accustomed to converting their typed class notes into an outline by cutting-and-pasting and reorganizing their class notes, rather than retyping those notes (one student specifically objected to having to retype). But I continue to believe that it is in the act of retyping, while putting all the divergent materials together in one whole, that real learning occurs and everything comes together.

I also asked some open-ended questions, including what students believe would be the best laptop policy. As with student evaluations generally, answers were all over the place. Only a few comments expressed a strong view that I was flat wrong to impose the ban; those who thought they should be allowed at least expressed an ability to see where I (and other banners) was coming from. Interestingly, several students suggested that laptops should be banned simply because enforcing a no-surfing/class-use only rule (which they supported) is impossible and the over-inclusive ban becomes the only way to halt inappropriate use of the internet. At least a couple of students commented that they were initially bothered by the ban, but came to appreciate the benefits of notetaking by hand.

On that last point, though, consider the following: About midway through the semester, I asked students in both of my 65-person Civ Pro classes how many were using laptops in their other classes in which use was permitted; all but 3-5 students in each class indicated they opened the computers back up when they were allowed. Which tells me that if I was expecting this to be an educational revelation--students would realize that laptop-free was the way to go and they would carry the lesson to the rest of law school--that was not happening. On the other hand, that finding is inconsistent with the anecdotal experiences of some prawfs who have banned laptops for the first month of class and given students the option after that and found that a substantial majority, having become accustomed to hand-notes, kept the computers closed.

So where am I on this? I definitely saw and felt the benefits in my classes and so did many of the students. The ban was neither wildly popular nor wildly unpopular; which means I am neither doing them a great favor nor flying in the face of overwhelming opinion. For now, students see this as just another "thing" you deal with in different prawf's classes--like lecture style, evaluation style, etc.

I will continue to exclude laptops this year (while still recording classes for them--just like at trial or deposition). And whether they take classes with him and the evaluations I receive in those classes, for now, seem unaffected by the ban.

Baseball, punishment, and Pete Rose

Reports are coming out that MLB Commissioner Bud Selig is considering reinstating Pete Rose to baseball, during the twentieth anniversary of Rose's permanent ban from Major League Baseball for gambling on games involving the team he was managing. Reinstatement virtually ensures Rose's induction into the Hall of Fame, perhaps as early as next year. The only thing that had been keeping Rose out was Hall of Fame Rule 3E, which bars from election and induction any person on MLB's Permanently Ineligible List.

Two sort-of law-related queries after the jump.

First, I would like to hear what crim-law and punishment scholars think about this as a matter of punishment theory and practice. Rose accepted permanent ineligibility from the game as part of a settlement, likely to avoid a formal finding that he had bet on games in which his own team was involved (the evidence against him is pretty strong). He later admitted to that conduct which, under Major League Rule 21(d) carries an automatic punishment of permanent ineligibility ("shall be declared permanently ineligible"). But now it appears he is going to get back into the game (and probably the Hall) within his lifetime, although the 20 years he lost as a manager, executive, ambassador, etc., certainly are nothing to sneeze at. Is this the equivalent of a commuted sentence--he served his time, he has reformed himself, let him get on with his life? Or is this more like a pardon--a subsequent statement that Rose did nothing wrong? Are the goals and theories of punishment and of MLB furthered by this move, which ultimately gives Rose everything he wanted, if a few years late? And what do we do with the arguments (which always have seemed counter-intuitive to me) that if Rose had admitted to gambling in 1989 or any time within the past two decades, he already would (and should) have been reinstated.

Second, what about the Black Sox, the eight members of the Chicago White Sox, who were permanently banned for their various roles in taking money from gamblers to throw the 1919 World Series. Reinstating Rose would establish precedent that a permanent ban for gambling-related activity is not, in fact, a permanent ban. If Rose can be reinstated after twenty years, is there any argument against reinstating the Black Sox players after eighty?

After all, some of them were suspended for arguably less-serious infractions than Rose. Shoeless Joe Jackson (the one Black Sox player whose reinstatement likely carries with it a debate about the Hall of Fame) took money but did nothing to lose games; Buck Weaver took no money and was punished only for knowing about the fix and not informing team and league officials. Reprehensible conduct to be sure; but Selig seems to be in a forgiving mood. Moreover, without excusing the Black Sox, context matters. Baseball during the first twenty years of the last century was a few steps above professional wrestling--gambling, fixed games, and general cheating were pervasive, constantly discussed, and mostly ignored. Talk of fixed World Series games went all the way back to the first Series in 1903 and there was talk of fixes in both the 1917 and 1918 Series, as well as late-season shenanigans from 1917-19. The hiring of Kenesaw Mountain Landis as commissioner reflected a conscious move by the Major Leagues to shed that image as entertainment and become a true, on-the-level competition. By the time Rose came along, on the other hand, the rules and the history were well-established and could not have been clearer--gambling, especially gambling on games involving your team, was the ultimate baseball sin; it even was posted on the wall of every Major League Clubhouse. That knowledge arguably makes Rose's conduct more unforgivable.

Can there be any rational distinction drawn between the Sox players and Rose that would justify reinstating the latter and not some or all of the former? And is Selig aware of the box he is opening?

What's in a (Jewish) name?

Ron Rosenbaum at Slate pens an open letter to Jon Stewart, urging him to use his given surname of Leibowitz professionally (Stewart's given name is Jonathan Stuart Leibowitz). Rosenbaum's argument is that Stewart's decision early in his career to change his name reflects the remnants of the now-antiquated, 20th-century belief that Jewish performers needed less-identifiably Jewish names to gain acceptance from the (subtly anti-Semitic) mainstream American society. See, e.g, Bob Dylan, ne Robert Zimmerman, or Kirk Douglas, ne Issur Danielovitch Demsky. Friends and family who are from my parents' generation (late '60s-mid'70s) have told me about being kids and playing the parlor game "Who's a Jew" for a sense of ethnic and religious pride--and the trick was figuring it out from very not-Jewish names.

But, Rosenbaum argues, 21st century America readily accepts "openly Jewish" (I don't know any other way to put that) celebrities--that Gentleman's Agreement anti-Semitism is mostly a thing of the past. And Stewart is pretty explicit about his Yiddishe identity and has parlayed that hamishness into replacing Walter Cronkite as the most trusted newsman in America.* So, Rosenbaum argues, if there is anyone who can get away with flaunting a Jewish name to the U.S. as a whole, it's Jon Leibowitz.

I am not sure what I think of this one. I am not sure the underlying issue that Rosenbaum is trying to engage--performers and celebrities overcoming their ethnic identities and whether that remains necessary in today's society--really is in play here. I never saw Stewart's name change as an attempt to hide his Jewishness. I always assumed he did it just because he had an unwieldy name for show business--the two syllables and seven letters of Stewart roll off the tongue (and take up less billboard and marquee space) than the nine letters and three syllables of Leibowitz. If he had a shorter but still-identifiably Jewish name (Rosenbaum points to Jerry Seinfeld), perhaps Stewart would not have changed it (although no one other than he knows). I can sympathize, actually. I am not sure I would have tried to make it as an actor/singer/comedian/broadcaster with a last name like Wasserman--not because I believed it was too Jewish, but because it is a mouthful. Plus, he settled on Stewart, which still strikes me as a very Jewish name; although we could wonder why, if he were not trying to pass, he did not go with say, Jon Leib.

Rosenbaum points to his own experience and the pride his father took when he became a writer and continued to use the family name. But writers, it seems to me, are different than entertainers and many Jewish writers, even of the last century, used their given, obviously Jewish names--Isaac Bashevis Singer, Philip Roth, Studs Terkel but see Saul Bellow (ne Solomon Bello), although that's still pretty close.

It is an interesting point. And Rosenbaum is working on a biography of Bob Dylan and wonders whether he could have become Dylan had he tried to make it as Zimmerman. Still, I doubt people would see the host as more Jewish or more prideful of his Jewish identity if it were The Daily Show with Jon Leibowitz.

• I am a huge fan of Stewart's and have been since he first took over The Daily Show in 1999. But his being the most trusted newsman just tells us the low esteem in which the public holds the news media.

Overturning Twombly and Iqbal

Sen. Arlen Specter this week will introduce the Notice Pleading Restoration Act to overturn Twombly and Iqbal and reinstate Conley v. Gibson and "no set of facts" as the controlling federal pleading standard.

This is a welcome move, even if I do not see it going anywhere. It raises a couple of interesting issues of congressional power, which I consider after the jump.

First, it is noteworthy that the proposal does not come through the Rules Enabling Act process. This might reflect a belief that the current Court would not approve of this change to the rules. Or it might reflect a belief, contra the original purpose and expectation of the REA, that the ordinary legislative process is quicker and less politicized than the REA process. In fact, I expect one objection to the bill will be that the matter should be referred to the Court and to the Rules Committee.

Second and relatedly, it is noteworthy that the proposal does not directly amend Rule 8 or Rule 12, but establishes a separate statutory rule that must be read in conjunction with the Rules. I am not sure the rationale for this choice. There are some marginal arguments that the REA is the only way that the FRCP can be enacted or amended and that Congress cannot pass ordinary legislation directly drafting a Rule. But the prevailing (and proper, IMO) view is that the Rules are a product of legislation. The Supreme Court ordinary enacts them because Congress delegated power to do so, but Congress always can take back some of the delegated power and make rules on its own.

Third, this proposal relates to something I argued in my work-in-progress on United States v. Klein. One principle for which Klein stands is that Congress cannot force courts to speak a constitutional untruth--cannot tell the courts to adopt a constitutional legal rule or standard different than what the courts, in their independent judgment, believe should be the legal rule. Larry Sager has argued that, under this principle, the Religious Freedom Restoration Act is unconstitutional; RFRA told the courts to apply strict scrutiny to claims that religious exercise was being substantially burdened and expressed specific disagreement with the Court's decision in Employment Div. v. Smith. The structure of this bill is similar to RFRA: Congress is telling courts to apply the old legal standard (identified by case name) that the Court "retired" in Twombly, rather than the new legal standard from more recent Supreme Court decisions which Congress is, effectively, overruling.

So, could there possibly be a Klein problem here? I would argue no and I am fairly certain that Sager would agree. The Supreme Court decision being overturned here is not a constitutional decision, but a statutory one (albeit indirectly statutory--the Court had interpreted a rule that it enacted pursuant to a congressional delegation). Congress is telling courts what FRCP 8 and 12 mean and the interpretive standard to be used, not what the Constitution means. As I put it, there is no such thing as a "statutory untruth"--the ultimate truth of statutory meaning is whatever Congress says.

Again, I do not see this bill going anywhere quickly. But clearly the wheels are turning.

Congress and Sports

Over at my non-domicile home at Sports Law Blog, I have a post seeking a metric for when Congress or individual members ought to get involved in matters relating to sports.

The trigger for my question is recent efforts by Rep. Steve Cohen to push the NBA to undo its 19-year age limit for entry into the league, which Cohen describes as "discriminatory." Perhaps because this has flown under the radar (Cohen is a second-term Democrat from Memphis, most known for surviving a nasty, racially charged primary and religiously charged general election challenge in 2008), Cohen has not been criticized on the "don't you have more important things to worry about than games" front, the way House members were after the various steroids hearings or that Orrin Hatch has been for his threats against the BCS.

So my question is where is the line between Congress stepping into a matter of legitimate federal concern and "worry about more important things"? Is it when members of the public are genuinely being injured, as by the age limit (although the number is incredibly small), while such harm (beyond psychic disappointment) is missing as to the BCS? Is it a difference between internal league matters and those touching on people outside the league? Is it the difference between acting towards the undefined "integrity of the game" (e.g., steroids) as opposed to dealing with the broader business of sports (where sports are not much different than other entities regulated by federal law)? Of course, federal law does speak to things such as gambling in sports, which is all about the integrity of the game.

So is there anything to guide legislators on when sports is a proper subject for involvement?

Final thoughts on the Sotomayor hearings

In no particular order, some final thoughts on the Sotomayor hearings. Start with the obvious: There will not be a filibuster and she will be confirmed handily (65-67 votes).

First, what are the chances that some GOP House member (likely a far-right backbencher looking to make a name for himself) argues that the House should impeach Justice Sotomayor? Might it happen just after she writes an opinion (probably within the next two years) that cites to foreign or international law or that supports an affirmative action program or that refuses to recuse from the non-Maloney Second Amendment incorporation case? This seems like the next step in the evolution of nasty confirmation politics. The hearings no longer provide any check on the President’s appointment authority; after Bork (and to a lesser extent Thomas), no nominee ever says anything beyond the sorts of bland platitudes we heard from Roberts and now Sotomayor; no one will say anything controversial (or meaningful) enough to give a critical mass of Senators (including Senators from the nominating President’s party) grounds to vote against her. And getting "tough" (or nasty) in questioning has become popularly counter-productive--as Republicans saw this week and as Democrats saw in 2005.

So what congressional check remains on these runaway activist judges? Impeachment. And, of course, the House member will not argue for impeachment because of Justice Sotomayor’s decisions (the line no one dare cross, post-Samuel Chase). Rather, it is because her actions on the Court are contrary to what she swore under oath to the committee. She cited foreign law when she told the Committee there was no constitutional warrant for doing so (although I explained yesterday why her answer studiously avoids this charge); she upheld affirmative action, which shows her letting her personal feelings as a "wise Latina" interfere with her decisionmaking. Obviously, the effort will not go anywhere. But it is a bad rhetorical road to even start down.

Second, have we bottomed out? Have the hearings devolved to such a low-level of discourse that the public will demand more—from both the nominee and the committee members from both parties—the next time? After all, if there is a consistent theme to all the coverage, it has been how inane and meaningless it all has been.

I keep relating this to the issue of past drug use by public officials. In 1987, marijuana use derailed Judge Douglas Ginsburg’s nomination to the Supreme Court (granted, the problem was that he was doing it with students while a law faculty member) and I seem to recall some controversy around members of Congress for past use. And I remember arguing at the time in a college course on the news media that, with the Baby Boomers (most of whom used pot in college, if not into young-adulthood as the only way to survive Disco) coming to political power and beginning to constitute an electoral force, this would be the last time that marijuana use could derail political ambitions. I was wrong as to timing. In 1992, Bill Clinton had to resort to a ridiculous lie to avoid the (believed politically damaging) admission that, duh, he smoked pot while going to college in the late 1960s. But by 2000, George W. Bush’s adult drug use was off-limits for the media and by 2008, no one blinked about Barack Obama’s admission in print of his youthful drug use.

So could this hearing be the judicial-confirmation equivalent of “I never inhaled,” the moment that pushes the public over the edge into demanding an honest and coherent discussion of judging, the courts, and the law? Into defined, non-buzzword questions and substantive answers? I am not sure. It might have been if the Democrats this time had pushed back on the Republican narrative about courts and judging, so that Judge Sotomayor had cover and the controlling theme was not “judging is passive mechanistic application of precedent”. As Dahlia Lithwick put it:

Democrats also came into these hearings with nothing to lose. They were going to seat this nominee, tee up the next two, and school the American people on why the Supreme Court matters and how it's letting them down and explain why balls and strikes are half the equation. They opted not to. When you think of it that way, beyond just being a waste of time, these hearings were also a waste of a thousand opportunities.

If Dahlia is right, that means the hearings on Obama’s next two nominees will be just as hard to watch as this one. Unless the Democrats finally find a judicial vision that they can voice for the public (which Dahlia doubts).

Third, President Obama could get three appointments this term (putting aside whether he is re-elected in 2012). So who’s next? I am guessing Elena Kagan (now having had a couple years as SG) and Diane Wood (believed to have been runner-up this time). Both likely will be less controversial (no "Wise Latina" albatross, no potential for race-baiting, and having Richard Posner and Frank Easterbrook or Jack Goldsmith, respectively, for support). Although, ironically, both may be more judicially liberal than Sotomayor. Thoughts?

[Cross-Posted at ACSBlog]

Misunderstanding Judging: Foreign Law

There is blame all around for the utter inanity of these hearings on the issue of the actual work of judging. An exchange Wednesday between Sen. Coburn and Judge Sotomayor on the subject of using foreign and international is a case in point.

At one point, Coburn asked whether anything in the Constitution granted judges permission or power to rely on foreign and international law. Coburn asked the judge to “cite for me the authority either given in your oath or in the Constitution that allows you to utilize laws outside of the country.”

The premise underlying these questions is silly. Of course neither the oath nor the Constitution says anything about utilizing laws outside of the country. But the Constitution also does not say anything about Originalism, Textualism, Living Constitutionalism, social science, canons of construction, precedent, interpretive methodology, history and purpose, or any other of the ordinary methods of judicial analysis. Article III vests the “judicial power” in the Courts of United States; enveloped within that term are all the tools by which judges interpret legal sources and find meaning, including resort to persuasive legal sources. The fact that nothing grants judges permission or power to use foreign law is meaningless, since nothing grants judges permission to look to state law (in federal cases) or to look at law review articles or to look at legislative history or to do anything that will help them interpret and determine applicable law. There is a nice question whether Congress could prohibit courts from relying on foreign or international law (Justice Scalia has emphatically said hell no; I argue the answer is different in constitutional and statutory cases). But absent a ban, judges don’t need permission to do the ordinary work of judging.

When Judge Sotomayor agreed that the Constitution was silent as to foreign and international law (without pointing out that it is silent as to all interpretive methodology), Coburn responded “so you stand by this statement that there is no authority to utilize foreign law in making decisions under the Constitution.”

Sotomayor then said “Foreign law cannot be used as a holding or a precedent or to bind an outcome of a legal decision interpreting the constitution.” Absolutely true. And this is the issue that most of the no-foreign-law politicians miss—no one is talking about being controlled by what French courts or the ICC do as binding authority.

But Coburn then asked her about a speech she made to the ACLU in which she said that “to suggest that you can outlaw the use of foreign law is based on a fundamental misunderstanding, and is “asking judges to close mind to ideas,” and demanded that she reconcile those ideas.

Sotomayor told the committee “What I pointed out in that speech is that there was a public misunderstanding of the word “use” in that discussion. What judges do is educate themselves, they build up a store of knowledge that one might consider. That’s just thinking.” And the key portion of her ACLU was as follows:

How can you ask a person to close their ears? Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think. And to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to some good ideas. …. Ideas are ideas. Whatever their source. Whether they come from foreign law or international law or a trial judge in Alabama or a circuit court in California or any other place, if the idea has validity, if it persuades you, then you’re going to adopt its reasoning. If it doesn’t fit, then you won’t use it.

And here is where, from the standpoint of wanting this hearing to be a somehow meaningful, or at least coherent, discussion of law and the judicial process, her answer falls flat. She insists that what she described in her speech does not constitute “using” foreign law, that looking to foreign law and other sources for ideas is not using it to make decisions under the Constitution.

Of course it is. Judges are using these “ideas” to figure out what some ambiguous legal concept (“due process,” “equal protection,” “cruel and unusual punishment,” “the freedom of speech”) means—to figure out what the law is—so they can apply that law to a set of facts. This is the essence of judging—interpreting vague or ambiguous text by resort to a range of sources and ideas and using those ideas to reach a conclusion as to legal meaning that can be applied in this and future cases. Foreign and international law is one source of ideas to use in that process; legal scholarship, social science, and the canons of constructions are other sources to use in that process. But the notion that this is not legal "use" is nonsense.

At some level, this is another example of what has been going on all week: The Republican/conservative minority (on the committee and talking in the press) has defined the boundaries of appropriate judicial behavior—here, that utilizing foreign and international law is inappropriate. And Judge Sotomayor answered the question by accepting and agreeing to that premise (“utilizing” international law is verboten), rather than pushing back on it and being able to define and explain what goes into judging, including resort to all sorts of persuasive sources. We teach first-year law students about the differences between binding and persuasive authority as a key concept of horizontal stare decisis, but no one ever suggests that persuasive precedent is not precedent that is being used in the legal analysis.

On the other hand, I understand why she gave this answer. And as a rhetorical move, it was brilliant. By defining “use” (or “utilize,” as Coburn said) narrowly to mean only having foreign law dictate the outcome as binding authority (which no one believes is proper outside of treaty cases), she left herself perfectly free to cite foreign and international law as persuasive authority for her next 20-30 years on the Supreme Court, without being in any way inconsistent with her committee testimony. This, of course, once again shows why the intellectual battle between nominee (this nominee and pretty much anyone put up for the High Court) and almost all committee members is such a mismatch.

I just wish we could have a meaningful discussion rather than a politically charged battle of wits.

[Cross-Posted at ACSBlog, where I am guesting during the hearings]

On recusal

One of the sillier exchanges in yesterday's hearing came when Senator Kyl argued that Judge Sotomayor, if confirmed, should have to recuse herself from hearing any of the three ongoing cases involving the question of incorporation of the Second Amendment--not only Maloney v. Cuomo, on which she sat on the panel in the Second Circuit, but also the unrelated cases decided in the Seventh Circuit (which agreed with the Second that controlling nineteenth-century precedent says the Second Amendment is not incorporated) and the Ninth Circuit (which held the precedent no longer controlling in light of Heller). Since Judge Sotomayor cannot, under the ground rules that are in play in this farce, actually give a definitive, informed answer to any question, she was unable to explain the law of recusal and expose the inanity of the question. Of course she must recuse from Maloney, but nothing in the recusal statute or in our common understanding of judicial ethics requires a judge to recuse simply because she previously decided a similar (or even identical) legal issue in a factually unrelated case while sitting. She also might have explained that, in order to be avoid being tagged (by Kyl and his colleagues) as a judicial activist, judges consider cases only in a particular factual context; this means there is no connection between the factually distinct cases in the different circuits and therefore no conflict. Otherwise, as Mark Tushnet argues, a circuit judge who interpreted a statute five years ago would have to recuse herself now when a different circuit created a split that the Supreme Court was called on to resolve.

I would use a different example. During the 1996-97 Term, while Glucksberg (the physician-assisted suicide case) was either pending or on its way up to the Court, Justice Scalia gave a speech in which he said something to the effect of "Of course there is no constitutional right to commit suicide." Scalia did not recuse (if he was not asked, there certainly was noise about why he should recuse), a decision I believed then was correct. Can it really be that it is OK for Scalia to state a legal view in a speech but not recuse, but that Sotomayor must recuse when she states a legal view (actually,the Second Circuit did not give a normative view on the incorporation question, but held that it was bound by precedent to conclude that the right was not incorporated) in a judicial opinion on the lower court?

An honest and thoughtful legal discussion might genuinely grapple with whether and when recusal is appropriate on purely legal questions, but that is not what we have here. Kyl was only interested in signaling that Sotomayor was biased against all gun owners, so she should feel pressure to recuse herself from hearing that cause; Sotomayor was only interested in not offending or angering Kyl, so she gave an answer hinting that she might take his suggestion of recusal seriously.

Well, maybe we are making progress. At least no one has suggested (directly) that she might recuse herself in any discrimination case involving women or Latinas.

Update: Sen. Sessions pursued the recusal question again this afternoon, arguing that Sotomayor had prejudged the issue by concluding that the right was not fundamental so as to be incorporated, at least under binding precedent. This seems to be a big talking point for gun-rights advocates--and a disturbing one, if we hope to be able to appoint experienced lower-court judges to the Supreme Court. Did anyone ask Judge Alito if he must recuse from every case involving abortion waiting periods?

Value in hearings after all?

Leave it to Jack Balkin to find some legitimate benefit in the silly showmanship of the confirmation hearings. They are, he argues, not about the nominee, but about the Senators and their efforts to articulate a popular constitutional vision and a sense of what all "reasonable" or "mainstream" judges should believe and to signal that to the judiciary as a whole.

And in truth we have heard some of that (ironically, from a Democrat, I believ Sen. Schumer)--government should win most of the time in criminal cases, government should win most of the time in immigration cases, and most race-discrimination claims should be rejected.

Something else I wish I had written

Dahlia Lithwick perfectly captures everything I think and believe about the Kabuki theatre that is the upcoming Sotomayor hearings before the Senate Judiciary Committee.

Of course, I have agreed to be a guest commentator at ACSBlog this coming week, so I need to find something to say other than "this is a ridiculous charade."

Court of appeals reverses injunction on pharmacist regs

This week, the Ninth Circuit decided Stroman's v. Selecky, reversing the district court's grant of a preliminary injunction prohibiting enforcement of state regulations that would have required pharmacies and pharmacists to dispense Plan B contraception, despite pharmacists' religious- or conscious-based objections. (H/T: First Amendment Law Prof Blog). I write about this case for a largely personal reason: One of my earliest posts here at Prawfs, back when I was a bright-eyed and enthusiastic guest prawf, criticized the district court's decision enjoining the regulations.

The district court had subjected the regulations to strict scrutiny (which they, of course, failed), concluding they were not neutral laws of general applicability because they allowed pharmacists not to fill prescriptions for some reasons (such as time of emergency or the belief that the prescription is invalid or technical inability to fill) but not to refuse for religious reasons. I argued why this was wrong in my original post. The Ninth Circuit agreed the lower court was wrong, for basically similar reasons.

The court said that the law was neutral because it did not target conduct committed for religious reasons, but instead sought to eliminate all bases for refusing to fill a prescription other than those refusals that ensure patient health, safety, and access to medication. Importantly, the court recognized that the law disproportionately affected pharmacists with religious objections (because religious objectors would be the primary (only?) group likely to refuse to fill an otherwise-valid prescription), but held that this disparate impact did not render the law non-neutral.

The regs also are generally applicable; the district court erred by not focusing on the proper issue of whether the regs were impermissibly underinclusive. The court of appeals, again correctly, said that the regs required the filling of all lawful, proper prescriptions--no one may refuse to fill a lawful, proper prescription for religious or non-religious reasons. The exceptions in the regs (time of emergency, inability to pay, technical inability to fill, belief that the prescription is fraudulent) are narrow, limited to improper prescriptions or those that cannot be filled properly. The exemptions granted show that the state's purpose was to ensure access to all lawfully prescribed medications, including Plan B. The mere fact that some exemptions were granted does not render the laws not generally applicable. Nor does it require that all exemptions be granted where there is no similarity between the exemptions granted and the exemptions sought, in light of the statute's purpose.

The court of appeals remanded to the district court to reconsider whether the preliminary injunction should issue, applying the proper legal standard. So this case will continue.

Responsive musings on conference formats

Carissa raises some good points about the different types of conference formats. I wanted to add some comments here.

First, another conference format to consider is the roundtable or moderated discussion, in which there are no prepared papers or remarks, but an open-ended (and hopefully freewheeling) conversation among the panelists, usually with a moderator guiding the proceedings. I actually believe this is the most effective format for having a coherent, lively thematic substantive discussion. Even if all the papers are good and even if they manage to fit together, there is always something a bit boring about the typical panel: 3-4 presentations of 20 minutes, with people sitting and listening to one another for 60 out of 80 minutes, then about 10-15 minutes of Q&A. Not that interesting. Of course, this format serves a different purpose--it is about an overall substantive presentation, not about honing individual work.

Second, a panel format might indeed be helpful for brand-new projects that are at three-quarters baked. If I am in the early stages of a project, where I have done most of the research and have a rough idea of the arguments I want to make, I can put together a pretty good 15/20-minute presentation for a panel. I have used panel presentations (or faculty workshop presentations) as, essentially, a broad first draft of my paper. The effectiveness of this depends on how an individual author works--if your research and organize first, then throw your ideas down on paper, this could work. I will be doing something like this for a panel at SEALS.

Third, I do not consider practicing in the hotel room an act of vanity. For me, it is an act of time-keeping. I never know how much material I have and how long I am going to go unless and until I run through the paper. That is the only way I can know if I am going to be able to stay within the 20-minute time limits. The drawback, I have found, is that it comes out a bit more rehearsed than, for example, a classroom lecture.

Yankee Stadium "God Bless America" lawsuit settles

The Red Sox fan who was kicked out of (old) Yankee Stadium when he tried to leave the seating area during the playing of God Bless America back in 2008 has settled his lawsuit against the City and the Yankees. I wrote about the suit here and here.

According to news reports, the City will pay Bradford Campeau-Laurion $10,001 and the NYCLU $ 12,000 in attorneys fees. The Yankees will pay nothing, although they promise in the settlement agreement that the policy at the new Stadium is and will remain that people are free to get up and move around during the song.

Obviously, we should not read anything about the merits into the decision to settle, but consider two things. First, $ 10,001 is a significant amount, given the lack of apparent actual damages. Second, we might infer that both the City and the Yankees took the view that the state action point was not so obvious that it could be resolved on a 12(b)(6), meaning Discovery would be necessary and perhaps prompting defendants to settle.

Fun Civ Pro fact of the day

So there is a reason to watch Jeopardy other than when Paul is on: You might learn things, even about civil procedure. Yesterday, I learned that Tennessee Williams (a St. Louis native) used to work at International Shoe--according to the question (answer?), it was while working there that Williams met a man named Stanley Kowalski.

This would be a great factoid to mention in class--if I had any hope that a decent number of students would know who Williams was.

Litigating the War on Terror # 1: Telecom Immunity

Two recent cases of note involving efforts to litigate rights claims against the government for conduct in the WOT. I will discuss them in separate posts this week.

Today, we look at In re National Security Agency Telecommunications Records Litigation, MDL No. 06-1791. Judge Walker of the Northern District of California upheld the constitutionality of § 802, the telecommunications immunity provision of the FISA Amendments Act of 2008. Section 802 requires the dismissal of any lawsuits against telecom companies for their assistance in the Bush Administration's warrantless surveillance of U.S. citizens' phone calls, upon certification by the Attorney General that the telecom company had acted in support of an intelligence program and on written presidential request and assurances of the lawfulness of the warrantless surveillance, so long as the certification was supported by substantial evidence. The court dismissed (although without prejudice) all constitutional and statutory claims against the telecom companies. I previously defended the constitutionality of this provision.

The court rejected a number of due process and separation of powers arguments. Of particular interest to me was an argument based on the venerable-but-never-fully-understood United States v. Klein. The court adopted the (appropriate) view that Klein prohibits Congress from dictating legal and factual findings in a particular case or requiring resolution of particular cases in certain ways, although Congress may amend underlying substantive law and have that law applied even as to pending litigation. Judge Walker concluded, correctly, that this is what happened here. Congress amended substantive law by creating a new immunity (not an affirmative defense*) that protected the telecoms from liability for constitutional violations for acting on presidential request for a wiretap, but left it to the court to decide whether the certification was, in fact, supported by substantial evidence.

I was lead author on a scholars' amicus brief that argued that the immunity provision did not violate Klein and Judge Walker actually cited our brief at length and adopted part of our core argument. Klein (including § 802's validity under Klein) also is the subject of my current major writing project, coming soon to an SSRN mailbox and the desk of all you Law Review editors.

The closest constitutional issue was over non-delegation. Section 802 authorizes the AG to file the certificate, but it does not explicitly compel her to do so or establish any standard (discernable or otherwise) for when she should file a certification. The court ultimately rejected the non-delegation challenge for three reasons: 1) this was not an open-ended delegation of rulemaking authority to an administrative agency, but rather a narrow, focused command to an individual to take a specific, narrow action; 2) there is greater tolerance for more-open-ended delegations in national security, where there is greater legislative/executive joint action; and 3) the legislative history of § 802 gave enough content and context to guide the AG's discretion as to whether and when to certify. I do not know enough about non-delegation to opine as to how persuasive these arguments are; thoughts from readers who know this area?

The other interesting thing was that the court dismissed without prejudice. Plaintiffs represented to the court that newly disclosed documents suggested that the telecoms had engaged in warrantless wiretapping after January 7, 2007, the end point of the § 802 immunity (that is the date that Congress initially retroactively validated the wiretapping that the President had unilaterally authorized following September 11). So it may be that the plaintiffs can plead around the § 802 immunity.

* Judge Walker pointedly rejected our description of § 802 as an "affirmative defense," insisting that it is an "immunity." I am not sure there is a difference. Most immunities are affirmative defenses (although not all affirmative defenses constitute immunities), in the sense of being a legal rule outside the plaintiff's claim that bars liability on certain new facts, which must be pled and proven by the defendant (or, here, the defendant and the government). I have been arguing that telecom immunity is analogous to official immunities under § 1983 (prosecutorial, judicial, qualified), all of which are immunities that also are recognized and treated as affirmative defenses.

Law Schools and the Freedom of the Church

As most legal academics undoubtedly know, three fired faculty members (one tenured) from Ave Maria Law School have sued the school for wrongful termination on a variety of tort and contract theories, litigation that has been going on for almost two years and has cost the school a great deal of money. The blog Ave Watch has closely monitored the litigation and the controversy, as well as being a general source of criticism for the school and founder Tom Monaghan. Rick and the rest of the folks at Mirror of Justice issued a joint statement two years ago, warning of the effects of the controversy there on Catholic legal education generally.

Last month, the school moved to dismiss the claims as to all defendants for lack of subject matter jurisdiction under the Church Autonomy Doctrine (or Ecclesiastical Abstention Doctrine) and its employment off-shoot, the ministerial exemption. There was oral argument a couple of weeks ago and a decision is expected, perhaps this week.

Some thoughts after the jump.

1) I again wish the parties and the court would not speak about this as a jurisdictional issue. Michigan courts are courts of general jurisdiction, meaning they can hear all claims arising under secular law, regardless of source. The plaintiffs have brought straight-forward tort and contract claims under Michigan law, plainly within the court's adjudicative authority. The Church Autonomy Doctrine prohibits secular law from controlling religious institutions and their management of ecclesiastical matters, such as selection and supervision of ministerial employees. The First Amendment limits the scope and reach of secular law. If applicable, the Doctrine defeats the merits of the plaintiffs' claims--they have no right under secular law to be free from certain actions at the hands of a religious institution and they cannot sue religious institutions under secular law for firing them. So, to the extent the school is right about being protected by Church Autonomy, particularly in the realm of employment cases, I wish we can start talking about this as a merits issue, not a jurisdictional one. Because this case arises in state court, it seems like a good vehicle for recognizing the truly substantive nature of the doctrine.

Actually, there is fairly limited Michigan law applying the ministerial exemption to this sort of wrongful termination, so the defendants rely on a lot of federal cases involving the ministerial exemption from Title VII, which is the subject of large circuit split on the substantive merits/jurisdiction question. Ironically, one of the cases that the defendants rely on is Petruska v. Gannon University, is a leading case for the merits view of the exemption.

2) There is case law applying the doctrine to bar a Title VII claim by a nun who was denied tenure in the Canon Law Department at Catholic University. But that case involved a Church-operated school, evaluation of explicitly religious teaching and scholar, and a plaintiff who herself was a member of an Order and thus subject to a high degree of Church control.

But this would be a very new and expansive application of Church Autonomy for two reasons. First, Ave Marie is not owned, operated, or controlled by the Catholic Church; it identifies itself as a "Catholic law school." In order to receive this designation, the school needed approval from the Diocsese of Lansing and Ave Maria insists this designation requires it to abide by certain ecclesiastical doctrines. But the Church exercises no control or authority over the school, including any role in evaluating whether the school or individual professors were comporting themselves with that purportedly pervasive Catholic vision. School officials make those determinations. Second, the professors did not teach religious or canonical classes; the school was founded with the goal of bringing the Catholic intellectual tradition to bear on every aspect of instruction, although it is not clear from the briefing papers how that was carried out or how that affected the nature of classroom instruction or the evaluation of professors. Interestingly, canon law experts believe this would be an inappropriate application of the doctrine.

3) I would love to hear from Rick and others who study Catholic legal thought and Catholic education (especially legal education) about this case. What is the link between Catholic legal education and the Freedom of the Church? At what point should the Catholic or religious nature of a law school (whose core job, of course, is to teach secular law and to train future lawyers) be deemed so pervasive that every faculty member becomes, at some level, a teacher of religious doctrine or religious ideas? Would a secular inquiry into that professor's performance thus involve evaluation of sectarian matters? In other words, imagine a prawf who teaches civil procedure, but nevertheless is obligated to bring some canon law or Church doctrine into the classroom. Does satisfaction and performance on the religious component become part of the evaluation of her teaching, such that a secular inquiry into the circumstances of any adverse employment action necessarily requires a forbidden inquiry into sectarian matters? And would it be different if that faculty member's teaching package includes Canon Law?

Quick thought on Sarah Palin

This post is explicitly partisan-political, so I know it may be violating our motto.

Last August, I wrote a couple of posts arguing that The West Wing had broadly predicted the rough political, personal, and ideological outlines of both halves of the presidential tickets for both major parties, including Republican VP candidate (social conservative small-state governor included to appeal to an unenthusiastic conservative base and balance a distrusted moderate at the top of the ticket). But I also suggested that "had the show's writers written Sarah Palin as the GOP nominee for vice president they would have been ripped apart by commentators as liberals stacking the narrative deck and making Republicans look unrealistically unserious."

That statement looked pretty good as the election played out in the following two months. After this weekend's events, that last statement is looking even more true.

Osborne and due process

Two weeks late to the party, but a few thoughts on District Attorney's Office v. Osborne, in which the Court declined to recognize a right under due process (procedural or substantive) to have DNA testing performed on evidence held by the state.

First, in answer to Dan's question: Going into the argument, I thought that any right should be asserted through § 1983, not habeas. The right to test DNA did not necessarily go to the validity of the conviction or sentence or suggest that the claimant was being held in violation of the Constitution and laws. It was a stand-alone right to gather information from the state, information that might (depending on the result of testing) form the basis for a state post-conviction challenge or trial-court motion to vacate conviction; it was not Heck-barred (and forced into the habeas framework) because simply obtaining access to DNA did not necessarily imply the invalidity of the conviction. That depended on the next step of testing the DNA and what the tests revealed.

The majority assumed § 1983 was a proper vehicle and jumped ahead to reject the underlying constitutional right. Justice Alito addressed the § 1983 issue in a concurring opinion for himself and Justice Kennedy (Justice Thomas did not join this portion). Alito (apparently quoting from the plaintiff's allegations in this case) framed this as a Brady claim--an argument that the state had failed to turn over exculpatory evidence. By definition, the failure to turn over exculpatory evidence necessarily implies the invalidity of the conviction and Brady is a classic and common habeas issue. And it did not matter whether that failure occurred prior to trial (the paradigm) or after conviction.

It was a strong opinion. But ultimately I think Alito was wrong to treat this as a basic Brady case. Osborne did not know if the evidence he wanted access to was exculpatory; he believed it might be, but much depended on the outcome of testing he then wanted to perform. This is not typical Brady material, which usually is evidence that on its face tends to exculpate--the names and statements of witnesses who corroborate the defendant's alibi, information showing bias of key witnesses, misidentification in a line-up, or (to keep it in the DNA realm) the results of DNA testing suggesting the defendant did not commit the crime. In fact, there is no constitutional duty on a prosecutor to turn over information unless it appeared to have a tendency to exculpate.

Whether DNA is potentially exculpatory cannot be known until after testing and the whole basis for the claim was to get the opportunity to perform the test. This was more like typical discovery, the hunt for information to analyze and then decide the next step. And, it seems to me, that extra step before the DNA evidence could be used to challenge the underlying conviction makes a difference as to the appropriate litigation vehicle. Unlike Alito, I believe the Court's 2007 decision in Wilkinson v. Dotson (holding that a challenge to the procedures used in parole-eligibility determinations were cognizable under § 1983 because the finding of a violation only meant a new parole hearing, not earlier release from custody) controlled. Where the asserted right was merely a first step towards a possible future argument against the validity of conviction or sentence, § 1983 was the appropriate choice.

Second, the Court's refusal to recognize a due process right shows how far we have come (for better or for worse, I would suggest for worse) from the Warren Court. Several year ago, Corinna Lain argued that the Warren Court was not as counter-majoritarian in the criminal procedure realm as the myth suggests; instead, by the time the Court got around to recognizing certain constitutional rights, most states already had done so. Walter Dellinger makes a similar point yesterday on Slate's annual Supreme Court Breakfast Table (read the whole multi-part exchange) in talking about when the Court will expand substantive due process: the Court was willing to invalidate sodomy laws on due process grounds because by 2003 3/4 of the states had eliminated such prohibitions, while the Court was unwilling to invalidate prohibitions on physician-assisted suicide in 1997 because zero states allowed the practice. A similar story can be told about Loving v. Virginia, where by 1967 Virginia was one of only a few retrograde states that still had such laws on the books. All reflect the same basic point: The Court constitutionalizes due process protections only after similar, sub-constitutional protections have been widely (but not unanimously) popularly established, the basic function to pull stragglers along and imposing some national floor of rights.

Forty-six states, the District of Columbia, and the United States all provide some form of DNA testing. This is precisely the situation in which the Court might use due process to bring the four recalcitrant states in line and set the floor. Instead, Chief Justice Roberts emphasized that most states had taken steps and the stragglers, including Alaska, were taking the issue under consideration. There was no need, in other words, for the Court or the Constitution to step into the matter. Justice Stevens somewhat picked up on this point in his dissent, emphasizing that the state of Alaska had not explained its refusal to turn over evidence for testing here (Osborne had agreed to pay for it himself, so cost was not the issue) and suggesting that substantive due process would, at a minimum, force the state to explain its refusal.

Ricci, politics, and the appellate process

Dan asked for initial thoughts on Ricci. I have not had a chance read it, but here are a few initial comments on the procedure and politics of the decision, piling on earlier comments from Media Matters and from Jonathan Adler.

First: Appellate courts get reversed; that's why we have a three-tiered judiciary (two in Nebraska) and appellate review. Reversal does not mean Judge Sotomayor was "wrong" in any normative sense; it means only that a majority of the higher court disagreed and (as Justice Jackson reminded us) is "right" only in the descriptive sense of having the last word. (I would recommend former guest Chad Oldfather's comments on lower-court error). Reversal does not reflect on Sotomayor's ability as a judge or her style of judging, anymore than her being affirmed would allow for the argument of "see, she was right". And I would hope that, at least, intelligent legislators and law-trained commentators will avoid making a mountain of a quite common event. [Update: Or not so much].

Second: Jonathan suggests that the short shrift the panel gave the case (originally wanting to affirm by non-precedential memorandum, then affirming with a one-paragraph precedential adoption of the district court's analysis) might reflect poorly on her judgment, but that it will not derail the nomination in the end. I am not sure I agree that it reflects poorly on her judgment any more than reaching a different conclusion reflects poorly on her judgment. The procedures through which appellate judges handle cases (argument or no, summary disposition or opinion, precedential or non-precedential) are one aspect of the resolution of those cases. And they may be just as disputed and just as subject to differences of opinion as the merits. There can be differences of opinion as to the importance or ease) of the case, just as to the merits. And just as disagreement with the outcome does not mean the appellate panel was wrong in any absolute sense, neither does disagreement with the process employed (or views about simplicity) mean the panel was wrong in any absolute sense in using (or attempting to use) that procedure. Especially since there are indications that the practice is quite common on the Second Circuit, suggesting other court interests and concerns (maintaining unanimity, something the Chief Justice purports to like) legitimately play a role in the choice of process. That the panel thought the case an easy one (and thus chose a particular procedure) and the Supreme Court disagreed does not tell me anything. And although I have not looked into this, I am fairly certain the Court occasionally takes cases that were subject to more-summary disposition below.

Third: The Media Matters piece points to several cases in which Alito was reversed while on the Third Circuit (including Planned Parenthood v. Casey), as well as Hamdan v. Rumsfeld, in which the Supreme Court reversed the D.C. Circuit panel (of which Roberts had been a member) after Roberts became Chief. No one suggested that those reversals made either unfit for the Court. Alito was probed about those reversals (especially Casey) to try to get a sense of his judicial philosophy; he also was asked about several cases in which the Supreme Court affirmed.

Fourth: To the extent Republican Senators and/or conservative commentators are able to make hay (whether real or just noise in the media) out of this reversal to cast doubt on Sotomayor's "judgment," I think it will be another illustration of why the conservatives and the GOP are better at the confirmation/judicial-politics game. Alito was reversed in Casey? Well that just shows how out of control the Supreme Court (especially Justice O'Connor, who Alito had been nominated to replace) is and why it was important to put good, smart "strict-constructionist," non-activist judges (such as Alito) on the Court. Sotomayor was reversed in Ricci? That just shows why she is an out-of-control activist who decided the case based on her own politics and not the law and who should not be on the Court.