Friday, October 09, 2015
Picking our free speech stories and heroes
Interesting discussion by James Wimberley (RBC) about Giordano Bruno, a Dominican friar burned for heresy in 1600. Bruno espoused all manner of contrarian ideas--often without proof--including that the stars floated in infinite space surrounded by their own planets and life. Bruno has been somewhat lost to history, overtaken by Galileo, who was convicted by the Inquisition 30 years later, as the great story to illustrate the importance of epistemological humility and of defending ideas that run contrary to those of the governing authorities. (The first episode of the Cosmos reboot, with Neil DeGrasse Tyson, told Bruno's story).
Wimberley argues that "Galileo is far too easy a test case for freedom of speech" and that the real challenge is a case like Bruno. Galileo was "demonstrably right" on a matter of scientific fact, meaning the censors were demonstrably wrong. Bruno was a "brilliant crank" who happened to be right about one thing, albeit without actual proof (Wimberley compares him to the people we regularly meet on the internet). Thus, the argument for defending Bruno's speech is different than for defending Galileo's--we defend Bruno "not on the grounds that he was right by chance on one thing, but simply that he was entitled to express opinions that were his own and not those of approved authorities." Moreover, Galileo suffered a forced and formal abjuration (Eppur si muove?) and a "fairly open" house arrest (among his many guests over the years was John Milton, who discussed the meeting in Areopagitica). That is nothing compared to being executed for the ideas one espoused.
Thursday, October 08, 2015
It's going to get pricey
Michigan has agreed to pay $1.9 million in attorneys fees to the plaintiffs who successfully challenged the state's same-sex marriage ban. That is in the same ballpark as Wisconsin paying $ 1.055 million in fees (that case only went to the court of appeals, not to SCOTUS).
Kim Davis must know that her stunt is going to get very expensive very quickly.
Rethinking Kitty Genovese
The New Yorker reviews a new documentary that screened this week at the New York Film Festival--a reexamination of the murder of Kitty Genovese, produced by and starring Bill Genovese, one of Kitty's younger brothers. The film attempts to reinvestigate the murder and the response to it. Similarly, a 2014 New Yorker story explored how the media created the "bystander apathy" narrative and how it almost immediately took hold, to the point that it actually affected the State's decisions in prosecuting the case.
That narrative remains sticky. In my 1L Crim Law class, we read an early New York Times story about the murder (The Times and editor A.M. Rosenthal was the great engine of the apathy narrative) for a discussion of the law/morality divide and when liability should attach to inaction. At a Torah study a few weeks ago, a participant referred to this story, and its common narrative, to illustrate some principle about how the Torah commands us to treat people.
Never mind that the best understanding of the story (as discussed in both of the New Yorker pieces and in the film) is that several neighbors did try to help. This includes at least two who called the police (police records show one call and that the response to that call was that the police were aware of the attack, suggesting at least one earlier call).
A few new themes emerge from the film and from the review.
One is that Kitty and her roommate, Mary Ann Zielonko, were in a lesbian relationship; interviews with Zielonko offer a portrait of gay life in New York in the early 1960s (when homosexual conduct was unlawful).
Another idea is that some neighbors explained that they believed the fight to be a lovers' quarrel and/or a drunken argument that spilled out of a nearby bar. Thus, the neighbors' (and the police) non-response may have been borne not of apathy, but of the common legal and social assumptions of the time--that domestic violence was not unlawful and not the concern of either police or neighbors, but was a private matter for the couple to work-out between them. In that regard, intervention would have been, in a social sense, wrong.
Of course, the apathy narrative is what has kept this story alive for fifty years. Indeed, Rosenthal (who died in 2006, but was interviewed for the film) continues to defend his coverage by the fact that it became a world-wide and historical incident. If it were just a story illustrating our then-benighted approach to domestic violence and gender issues, we probably would not still be talking about it.
Tuesday, October 06, 2015
JOTWELL: Walker on Cyr on judicial appointments in Canada
The new Courts Law essay comes from Janet Walker (Osgoode Hall), reviewing Hugo Cyr, The Bungling of Justice Nadon's Appointment to the Supreme Court of Canada.
Covering a colleague's class, or The Substitute
This morning, for the first time since I began teaching fifteen years ago, I covered a colleague's class. This presented some interesting issues, both substantively and stylistically, as to how much the class should sound like me and how much it should sound like my colleague?
Substantively, it presented the challenge of getting up to speed on the content. While I teach the same subject, I do not teach the same cases and my overall approach to the material is very different. I teach certain concepts differently or with different emphasis and in a different way. So I know I did not (and could not) run the class with the same confidence in the questions I ask, the points I make, and (certainly) my responses to their questions. There also was the question of base knowledge to be expected from the students. I cover material in a different order than my colleague. So I know what the class already knows (or should know) by the time I reach this topic in my own class; I was less sure of what these guys knew.
Stylistically, one big question was whether to use my colleague's PowerPoint slides, since that is both what she wants to do and what the students expect. I chose not to; I would not know how to interact with them, so they would have been more of a distraction than a help. The students were great about it--probably about 1/4-1/3 volunteered at least once. But it was like being a substitute teacher--everyone not knowing quite what to do with me, what to expect from the class, or what they were going to learn. I tried to make the class "mine," to the extent that is possible with a group of students who signed up for a different style of class.
Fortunately, no one threw spit balls.
Supreme Court Fellows Program – Call for Applications
The Supreme Court Fellows Commission is accepting applications through November 6, 2015, for one-year fellowships to begin in August or September 2016. The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission. Fellows gain practical exposure to judicial administration, policy development, and education. In each of the four placements, the fellow will be expected to produce a publishable paper and will have unique access to federal judges and to officers and staff of the federal judiciary in connection with the research project.
The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service.
Fellows will receive compensation equivalent to the GS-12/1 grade and step of the government pay scale (currently $76,378) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary. Appointments are full-time and based in Washington, D.C. A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2016, and finalists will be contacted on selection decisions within one to two weeks after interviews.
Saturday, October 03, 2015
"Landmark Cases" on C-SPAN
C-SPAN has produced (in conjunction with the National Constitution Center) a new weekly series called Landmark Cases. (H/T: Faculty Lounge). The series premieres tomorrow evening with Marbury and concludes on December 21 with Roe. In between, the series hits on Dred Scot, Slaughterhouse, Lochner, Schenck, Korematsu, Youngstown Steel, Brown, Mapp, Baker v. Carr, and Miranda.
Apparently there have been no landmark cases since 1973. And the choice of Schenck over Abrams (where someone at least stood-up for the First Amendment claimant) or New York Times (where the First Amendment claimant prevailed) is an interesting one.
Thursday, October 01, 2015
U.S. v. Klein returns to SCOTUS
I spent the better part of two years a few years ago writing about United States v. Klein, including a number of posts here. The Court this morning granted cert. in Bank Markazi v. Peterson on whether Klein's separation-of-powers principle is violated by a statutory provision blocking certain Iranian-controlled assets for use in satisfying U.S. terrorism-related judgments against Iran.
Section 8772 of Title 22 provides that certain Iranian-controlled assets are subject to execution or attachment to satisfy money judgments against Iran "for personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, or hostage-taking, or the provision of material support or resources." The assets described are specifically identified as the ones targeted in Peterson (which is mentioned by name) and which already had been restrained by the court in that case prior to enactment of the law. The statute requires that the court hold a hearing and determine whether Iran owns the assets, in whole or in part.
Bank Markazi argued below that the law violates the principle of Klein by improperly compelling the court to reach a preordained result--namely that Iran owns these assets. It emphasized that § (b) refers to the Peterson litigation by name and that the result of any judicial hearing is preordained, since Iran's interests in the assets was known and established before § 8772 was enacted. Nevertheless, the Second Circuit rejected the Klein argument, insisting that § 8772 changed applicable law for a pending case, but still required an independent judicial determination and application. Nor was it problematic that the law was drafted for a specific, identified litigation, something the Court had previously found did not equate with compelling an outcome. Section 8772 did not dictate an outcome; it only changed the law in a way likely to produce, through judicial application of the amended law, Congress' preferred outcome. But the likelihood of an outcome does not signal congressional dictation of an outcome; "[i]ndeed, it would be unusual for there to be more than one likely outcome when Congress changes the law for a pending case with a developed factual record."
Interestingly, the Second Circuit opinion contains some language that might have teed the case up for cert. In an act of understatement, the court acknowledged that the line between a valid change in law and an invalid legislative adjudication "is often difficult to draw." In fact, "there may be little functional difference between § 8772 and a hypothetical statute directing the courts to find that the assets at issue in this case are subject to attachment under existing law, which might raise more concerns." The court made clear that § 8772 did not cross the constitutional line because of the Court's guidance in Robertson.
So perhaps the Court is looking for a chance to reconsider Robertson and that line. Indeed, the ease with which courts can characterize just about any enactment as a change of law rather than a congressional compulsion is part of why Klein's "no dictating outcomes" principle carries so little force. This case might give the Court a chance to breathe some life into Klein.
Happy October. A farewell and thanks to our September guests, who may have a few final words.
And welcome to our October guests: Returning to Prawfs are Eugene Mazos (Wake Forest), Deborah Ahrens (Seattle), Andrew Siegel (Seattle), and Fredrick Vars (Alabama). And joining us for the first time are Rhett Larson (Arizona State), Andrew Kim (Concordia), and Kalyani Robbins (my colleague at FIU).
Monday, September 28, 2015
Monkeying around with copyright law
PETA has filed a copyright infringement action on behalf of a crested macaque; the defendant is a nature photographer who used selfies that the macaque "took" by pressing the shutter button on a camera that he grabbed away from the defendant.
The lawsuit raises an interesting (although I believe easy) question of statutory standing and the zone of interests of the copyright laws--namely, whether a non-human enjoys rights under the statute. This article explains why the answer should be no. The lawsuit is also reminiscent of a 2011 lawsuit that PETA brought against Sea World on behalf of five Orcas, claiming a violation of the Thirteenth Amendment. The court dismissed for lack of standing, concluding that the Thirteenth Amendment only protected human beings, although I argued it would have been more appropriate to dismiss on the merits for failure to state a claim. In the interim, SCOTUS decided in Lexmark International v. Static Control that whether a plaintiff falls within the "zone of interests" of a statute (and we can, I think, expand this to the zone of interests of the applicable substantive law) is properly a merits question. It should follow that, to the extent a macaque does not have rights under the Copyright Act, the complaint should be dismissed on the merits.
One other question: Is this worthwhile as a sample pleading for Civ Pro? While the lawsuit is a loser, and perhaps even frivolous, the complaint is well-drafted, includes a lot of factual detail, and illustrates the form and structure of a federal complaint. Is the content too off-the-wall for these purposes?
Thursday, September 24, 2015
Justice and fairness v. procedure
Judge Bunning declined to stay his order extending the injunction against Kim Davis to all eligible couples. (H/T: Marty Lederman). Bunning explained:
Had the Court declined to clarify that its ruling applied to all eligible couples seeking a marriage license in Rowan County, it would have effectively granted Plaintiffs’ request for injunctive relief and left other eligible couples at the mercy of Davis’ “no marriage licenses” policy, which the Court found to be in violation of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Such an approach would not only create piecemeal litigation, it would be inconsistent with basic principles of justice and fairness. Thus, when the need arose, the Court clarified that its ruling applied with equal force to all marriage license applicants in Rowan County, regardless of their involvement in this litigation. (emphasis added).
Perhaps he is right about justice and fairness. But he is flat wrong on the procedure. What Bunning describes as "piecemeal litigation" is simply "litigation," which adjudicates and resolves the obligations of parties, not the entire world. The way to avoid the feared piecemeal litigation is to certify the class, as the plaintiffs requested, a move Bunning continues to resist. Otherwise, new couples are free to file new suits or seek to join or intervene in the pending action. Short of that, Bunning lacks the power to broaden the injunction in this way. And this remains the one issue on which Davis might actually prevail.
Settlement in Tolan v. Cotton
Last year, SCOTUS summarily reversed a grant of summary judgment against a plaintiff in a § 1983 action, concluding that the district court had impermissibly resolved disputed facts in defining the factual context for purposes of qualified immunity. I wrote about the case, arguing that, through some procedural confusion, it might indicate a new scrutiny of this sort of sub silentio fact-finding on qualified immunity.
SCOTUS remanded the case to the Fifth Circuit to reconsider whether other, undisputed facts supported qualified immunity; the Fifth Circuit sent it back to the district court. In September, the court granted summary judgment in favor of the city and sent the individual claim to trial, commenting that SCOTUS would not "be satisfied if we didn’t take this case to trial." After one day of trial, the case settled for $ 110,000, a typical outcome for cases that do not go away on summary judgment and a typical settlement amount for a claim involving serious-but-not-life-threatening injuries. (H/T: Jonah Gelbach of Penn).
An interesting side note: Tolan sought to have District Judge Melinda Harmon recuse over comments she made at the pretrial hearing on the eve of trial. The basis for the motion was a newspaper article reporting on the conference; the article quoted Harmon as saying she was tempted to grant summary judgment on the individual claim, but read SCOTUS as hinting that the case should go to trial. The article also quoted her as saying she was "confident" and "had faith" in her opinion and thought she was right the first time.
The court rightly denied the motion. She stated that some of the statements were taken out of context and referred to the claim against the city, not the individual officer. Other statements involved legalities and interpretations of law, with no discussion of what material facts might be undisputed or not. Moreover, there is nothing improper with the judge stating that she continues to believe she was right about her initial summary judgment decision on the individual claim (the one SCOTUS reversed). My experience is that district judges always continue to believe they were right even after being reversed. But that does not impair their ability to apply and follow that decision, much less indicate favoritism or antagonism towards the party against whom they originally ruled. Otherwise, a case should be assigned to a new district judge whenever there is a reverse-and-remand, which would create all sorts of unworkable procedural problems in complex cases.
Wednesday, September 23, 2015
Yom Kippur, Sandy Koufax, and (the forgotten) Hank Greenberg
Something that had not clicked until my rabbi discussed it last night: This Yom Kippur marked the fiftieth anniversary of Sandy Koufax not pitching Game 1 of the World Series (it was October 6, 1965, on the English calendar). This story forms a big piece of Koufax's legend as one of the greatest pitchers of all time, the greatest Jewish player of all time, and a hero to American Jews who saw in his actions a place for their faith within American society (Three thousand years of beautiful tradition, from Moses to Sandy Koufax...).
My rabbi also told the oft-repeated addendum to the story. Don Drysdale (himself a future Hall of Fame pitcher, so it is not like there was such a drop-off in WAR by Koufax not pitching) started and lasted less than three innings. The story goes that when Dodgers manager Walter Alston came to the mound to remove Drysdale from the game, Drysdale said something to the effect of "Bet you wish I was Jewish, too." But a baseball historian told me there is some doubt about when this comment actually was made and by whom. One version is the common one. Another has Drysdale saying it in the clubhouse after the game. And in a third version, it was not Drysdale who said it, but a former Dodger player who was watching from the stands. The historian was unable to get underneath the most-common version of the story.
Koufax's decision has completely overshadowed a similar decision by the previous greatest Jewish player, Hank Greenberg, who played for Detroit and Pittsburgh in the '30s and '40s (his life, and this event, is covered in a wonderful 2000 documentary). In the heat of a close pennant race in 1934, Greenberg played on the first day of Rosh Hashanah (after obtaining permission from a local rabbi, who searched the texts to find that "play" was permitted on that day), but did not play on Yom Kippur. Although no one in 2014 marked the eightieth anniversary of Greenberg, in some ways, his stand was more courageous than Koufax's. For one, Greenberg was an everyday player who would have been expected to play every game; as a pitcher, Koufax only could pitch in one of the first two games, so holding him to Game 2 was not an enormous lineup change or loss. For another, the position of American Jews in 1934 was far more precarious than in 1965. While there was still anti-Semitism, both de facto and de jure, in 1965, it was far worse thirty years earlier. This was one year after Hitler came to power. And Greenberg played in Detroit, home of Henry Ford and Father Coughlin.
Greenberg was similarly lauded for his act of conscience and seen as similarly inspirational by American Jews. Yet his stand has been lost to history. Some of it is that the World Series is a bigger deal than a pennant race. Some of it is that Koufax is closer to being the greatest pitcher of all time than Greenberg is to being the greaterst first-baseman of all time, so all of his actions are magnified. Some may be recency bias.
In any event, with all the additional post-season rounds and games, no Jewish player will ever again have to skip a World Series game for Yom Kippur. It is more likely he would miss a World Series game for Thanksgivukkah 79811.
Tuesday, September 22, 2015
JOTWELL: Vladeck on Hart & Wechsler
The latest Courts Law essay comes from our own Steve Vladeck, reviewing the new Seventh Edition of Hart & Wechsler's The Federal Courts and the Federal System. I am a Low, Jeffries, and Bradley person myself, but Steve's review at least makes me want to take a look.
Sunday, September 20, 2015
Deparmentalism, popular constitutionalism, and constitutional politics
Joey Fishkin writes at Balkinization about the race among GOP presidential candidates to undo birthright citizenship. Fishkin identifies several approaches--an "old school" departmentalism espoused by Mike Huckabee, in which the President can ignore Supreme Court precedent, a moderate approached advocated by Donald Trump (and echoed by Rand Paul and Ted Cruz) that acknowledges the Court's "ultimate authority" in constitutional interpretation, and pure judicial supremacy suggested by Carly Fiorina, under which only a constitutional amendment can challenge Supreme Court precedent.
Fioria to one side, I am not sure the distinction between Trump et al and Huckabee is as sharp as Fishkin suggests. In fact, either approach envisions both the power of the President and Congress to disagree with and disregard SCOTUS precedent and the interpretive role for SCOTUS.
President Trump must initiate birthright citizenship as a live constitutional issue--for example, signing a law providing that children of undocumented immigrants are not citizens and are subject to removal or commencing removal proceedings against U.S.-born children of undocumented immigrants. Either move would be in so-called "defiance" or "disobedience" to (admittedly old) precedent on the meaning of "subject to the jurisdiction" in § 1 of the Fourteenth Amendment, based on President Trump's independent assessment (supported by constitutional "experts") of the meaning of § 1. That interpretive independence is a key feature of departmentalism, which holds that the President does not violate his "Take Care" obligations or his constitutional oath by acting contrary to even SCOTUS precedent. Either move also triggers a role for the Court, as the judiciary almost certainly will be called on to consider the issues, whether in reviewing a removal decision or in evaluating the constitutional validity of the statute in a pre-enforcement challenge, and render a judgment in a specific challenge, based on the court's own constitutional analysis.
The difference among the candidates may be what happens next. Under a middle-ground departmentalism, the President must abide by and enforce the judgment in those specific cases. But he can continue to act in disagreement with the opinion underlying that judgment (as by, for example, initiating new removal proceedings against new individuals), until a new judgment bars him from doing so as to particular individuals. Eventually, the repeated losing will become politically and financially expensive and he will stop the cycle. This does seem a middle ground between where Fishkin places Huckabee (who seems to believe obeying an individual judgment constitutes "judicial tyranny") and Trump (whom Fishkin seems to presume would fall in line with SCOTUS precedent after the first decision).
For present purposes, I would be content to hear Trump argue, in essence: "My constitutional vision, supported by constitutional experts, is that § 1 does not guarantee birthright citizenship to the children of non-citizens, I am unconvinced by the Supreme Court's 120-year-old decision to the contrary, and, as President, I will act on that constitutional vision in the following ways. I do not need a constitutional amendment in the first instance."
But Fishkin offers a way in which departmentalism and popular constitutionalism overlap. The judiciary can be influenced and ultimately swayed by "experts" whose advocacy (in and out of court) make heretofore unexpected constitutional positions seem reasonable and proper to the public and thus to the court. Those experts similarly can influence the popular branches in their departmental constitutional analysis and their subsequent actions (described above) to put the issues in play and in front of the courts. In other words, I describe above a process of the executive repeatedly losing. Fishkin suggests that departmentalism, girded by popular constitutionalism, may lead to an ultimate constitutional victory in the courts.
Saturday, September 19, 2015
Lederman on Kim Davis
At Balkinization, Marty Lederman discusses whether Kim Davis is violating the district court order, issued when she was released from custody, prohibiting her from interfering with the efforts of deputy clerks to issue marriage licenses to all eligible couples. Lederman questions whether some changes Davis has made to the forms--removing her name, the name of her office, the name of the county, and the position of the deputy clerk--constitute interference.
I trust Marty's analysis. But then we have two questions. The first is whether there is interference (and thus contempt) if the altered licenses are deemed valid, as the governor announced last week. The other is whether, even if Davis is interfering and thus is in contempt, Bunning will jail her, given the circus that surrounded it the last time.
Friday, September 18, 2015
Sixth Circuit denies Kim Davis another stay
The Sixth Circuit on Thursday denied Kim Davis a stay pending appeal of the order extending the original injunction to bar her from denying licenses to any eligible couples (the extended injunction was issued the same day Judge Bunning jailed Davis for contempt). (H/T: Religion Clause Blog and Josh Blackman) Davis never asked the district court for a stay pending appeal, as required by Federal Rule of Appellate Procedure 8(a)(1)(A), and the court of appeals refused to accept "extraordinary doggedness of the district court to expand the Injunction, without jurisdiction or fair notice and opportunity to be hearing" as basis for finding that it would be "impracticable" to move in the district court, as required by FRAP 8(a)(2)(A)(i).
The latter conclusion is fair, I suppose, since the argument basically accuses the district court of having it in for Davis. Nevertheless, there is something strange about asking a district court to stay an injunction that he just entered by finding that the defendant has a substantial likelihood of success on appeal--in other words, there is a substantial likelihood that the district court was wrong. We do not require trial courts to make a similar confession of likely error in any other context. It also seems like a waste here--Davis will now ask Bunning for a stay, he will deny it, and the issue will be back with the court of appeals in a week or two.
It is notable that the extension of the injunction was not, as plaintiffs requested and many (including me) assumed, in anticipation of class certification. Instead, the district court extended the injunction in recognition of two other individual actions challenging Davis' no-marriage policy. (H/T: Marty Lederman for the analysis). I am not sure that is a valid basis for extending the injunction (where as expanding in anticipation of class status would be), so Davis may actually have one small argument that is not doomed to total failure.
Thursday, September 10, 2015
Art for law's sake
Scott Dodson and Ami Dodson have a fun contribution to a Green Bag micro-symposium on A Top Ten Ranking of the U.S. Supreme Court. They identify the "most literary" justice by citation to great works of literature (Spoiler Alert: It's Scalia, by a lot). I was surprised that Roberts was low, citing literary work in only two of 135 opinions. Given Roberts' often-florid writing style, I would have expected literary references to be part of that.
Then I realized that Roberts' focus seems to be more visual art than literature. Without looking it up, I recall him citing Jackson Pollack, Sargent's Gassed, and Delacroix's Liberty, to say nothing of The Wizard of Oz (depending on how one categorizes motion pictures).
Tuesday, September 08, 2015
Kim Davis released from custody
Kim Davis has been released from custody and had the contempt sanction lifted, based on the plaintiffs' report that they had received marriage licenses and that deputy clerks were issuing licenses to "all legally eligible couples." The court furthered barred Davis from interfer[ing] in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples." (H/T: Marty Lederman).
As written, however, the new order brings us back to the recurring problem we have seen with most district court injunctions: This has not been certified as a class action, so the injunction was satisfied when the named plaintiffs received their licenses. Further, Davis cannot properly be held in contempt for interfering with the issuance of licenses to other couples; those licenses are not formally happening on the strength of the court's order, so Davis would not formally be defying the court's order. Of course, if she attempts to push that point, the plaintiffs will simply ask Judge Bunning to certify the class, thereby expanding the injunction to that scope. The wiser move is for Davis to stand aside and let her deputies voluntarily comply.
Monday, September 07, 2015
What if it doesn't pass and other questions about Lessig 2016
Larry Lessig successfully crowd-funded his $ 1 million and is running for President as a single-issue "referendum candidate"--he will serve as President only until passage of the Citizen Equality Act of 2017, after which he will resign and have his Vice President (preferably a liberal such as Elizabeth Warren or Bernie Sanders) become President.
I generally think this is silly. And I say this while supporting pretty much all of the substantive provisions of the Act and as someone who might support a Lessig-type as a presidential candidate (if I thought he could win a general election, which I don't). But a few questions--none of them new or original, but I throw them out here:
1) What if the law does not pass in his first term? Would he seek reelection in 2020?
2) What does it mean for the law to "pass"? Must every piece pass? If not, how many pieces? Must it pass in the current form or are amendments permissible? If not, how watered-down can a version be to still constitute "passing" so as to trigger his resignation?
3) Does he resign after the legislation is signed? Or does he wait around for completion of judicial review? Nothing in the Act seems constitutionally questionable. Of course, in 2009, we all would have said that the health-insurance market affects interstate commerce. And what happens if some (or all) pieces are declared invalid.
4) If he fails to resign as promised, is that an impeachable-and-removable offense?
5) Accepting that legislation takes months even in a functioning Congress (which we surely do not have), how will Lessig handle all the other presidential responsibilities or who will he delegate them to? Will the VP be handling most of these other presidential duties? How will he fill judicial and executive vacancies? Is it fair to question whether he cares about these "mundane" aspects of the presidency and to be concerned that he doesn't?
6) Is it fair game during the election and "debates" to prod Lessig about his views and plans on other issues, accepting that he will have to do other things as President, at least for some period of time? Will he answer these questions and will he answer them well?
7) Are substantial numbers of Democratic voters this detached from political reality? At least part of the frustration with the Obama presidency involved the extraordinary (and unrealistic) expectations when he entered the White House, which he could not possibly meet.* And he began his presidency with substantial majorities in both houses and a filibuster-proof majority in the Senate. And he still could not get done everything he wanted or tried to do, at least not in the absolute way he wanted.
* No, that was not the only problem. But it has played a role in the perception of his achievements as President.
What makes Lessig (or those who would support him) think he will have any more success, especially since he definitely will not have a House majority and almost uncertainly will not have a Senate majority. Does he (or his voters) believe putting the word "referendum" into his candidacy will actually give him more of a mandate than Obama enjoyed despite having received 70 million votes and 365 Electoral votes? Does he (or his voters) believe Mitch McConnell, John Boehner, or any of the representatives who might lose their seats under a non-gerrymandered proportional representation scheme will care?
8) Aren't all the incentives for Republicans to oppose and drag their feet on this (beyond even the ordinary perverse incentives of divided government)? The longer it drags on, the longer they keep in office someone who really does not want to be President. And the longer it drags on (or the legislation does not pass), the easier to run against Lessig in 2018 and 2020 as a failure who could not achieve his one (and only) presidential goal. "Presidential failure," not "congressional recalcitrance," is always the narrative on which the press, and thus the public, seize.
Sunday, September 06, 2015
Many other takes on the Kim Davis mess (Updated)
Both from Balkinization. Marty Lederman parses Kentucky law and suggests that either the deputy-issued licenses are invalid or there was no need to hold Davis in contempt it was improper to throw Davis in jail (the contempt order was proper). Mark Graber discusses a "class bias in rights" (which Paul already commented on), under which rights that inure, in whole or in part, to the wealthy are more easily implemented than those that inure largely to the less wealthy.
Both are worth a read.
Update: Mike Dorf adds his take, arguing that a district court has broad powers to remedy constitutional violations, even where those remedies might otherwise violate state law. Thus, even if Davis's name/consent ordinarily is necessary, once it became necessary for licenses to issue without her name (in order to ensure compliance with the underlying injunction), those licenses could be made valid. Note that Mike and Marty agree that it was unnecessary to put Davis in jail.
Further Update: More from Sam Bagenstos (Michigan) in The New Republic.
Friday, September 04, 2015
Out George Wallace-ing George Wallace
I was quoted (mostly out of context) in yesterday's New York Times on Kim Davis; I said that Davis was "out George Wallace-ing George Wallace." Wallace's stand in the schoolhouse door, and accompanying speech, remain one of the signature moments of Massive Resistance to Brown and integration. But after making his speech, Wallace stood down when facing the Attorney General, rather than being hauled off by a federalized National Guard or facing a contempt charges (the University had been enjoined to allow Vivian Malone and James Hood to register and Wallace had been enjoined not to interfere with the prior injunction). Wallace made his point and had his moment, but in the end chose not to defy the forcible execution of a court order or to go to jail for a lost cause.
What does it say about society, this issue, current politics, and attitudes towards the judiciary that Davis believed it necessary or proper to take that next step? Is it that she believes she is fighting for conscience rather than secular principles such as federalism? Is her stand less popular locally or nationally than was Wallace's, necessitating the bigger step in order to be heard? Is her stand more popular locally or nationally, such that she garners more support and sympathy by going to jail than Wallace would have? How does the relative popularity of Obergefell as opposed to Brown affect the respective choices each make.
Does Davis go down as this generation's George Wallace? She might, if only because she is proving so rare. According to this WaPo story, citing the group Freedom to Marry, there are only a handful of counties (fewer than 20) in Southern states refusing to issue licenses, at least as a matter of formal office policies.*
* And 13 of those are in Alabama, where probate judges are waiting for the Supreme Court of Alabama to lift the mandamus prohibiting them from issuing licenses (or for SCOTUS to quickly reverse if the Supreme Court of Alabama refuses to lift the mandamus).
Marriage licenses issuing in Rowan County
Here and here. The first couple--William Smith and James Yates--were not parties to the litigation. No word on whether the license was issued in Kim Davis' name or whether it is valid if issued over her command not to. That probably is moot; it would arise only if a marriage officiant refuses to recognize the license or someone somewhere down the line refuses to recognize the marriage as valid, neither of which is likely to occur.
Davis remains in jail, probably until next week. It may come down to whether, if she returns to her job, she intends to order her staff to again stop issuing licenses.
By the way, note the rhetoric floating around here: Davis's husband is quoted as saying "Just because five Supreme Court judges make a ruling, it’s not a law." Now regardless of how silly that statement is on its own, it is notable that blame for his wife being in jail is being placed on the shoulders of the Supreme Court and Obergefell. But the problem is not that Davis ignored the Supreme Court, at least not directly; the problem is that she ignored a district court order directed at her.
Thursday, September 03, 2015
Kim Davis (not Jim or Garfield) jailed for contempt
Judge David Bunning has held Kim Davis in contempt and had her jailed. Bunning apparently pointed to the fact that members of the public are raising money to cover the fines (damn crowd-funding) as evidence that fines alone would not work. This is civil contempt, so she will be released as soon as she agrees to comply with the injunction and issue licenses.
So Davis is now a martyr to the cause, probably what she and her lawyers wanted. It raises a couple of questions: 1) Does this provide grounds for the governor or other state-level official to remove her from office (a question of Kentucky law)? 2) Is Davis now "unable" to issue licenses, opening the door for the county judge to do it, as a commenter to an earlier post suggested? 3) If the county judge begins issuing licenses, does that get Davis out of jail? 4) If the county judge begins issuing licenses, does it moot the case once the plaintiffs get their licenses from the judge (the answer to this one is probably not, because I expect Bunning to go back and certify a class).
For what it is worth, the judicial process is working as it should in all of this. No one said it should be pretty.
Update: Five of the six employees of the office (all but Davis's son) have promised to issue licenses beginning tomorrow, filling out the forms in Davis' name. Bunning also indicated he will lift the contempt order in a few days if employees issue licenses. Davis could have stayed out of jail by agreeing not to interfere with her employees issuing licenses, but she said she could not do so consistent with her conscience. There may be a question of whether those licenses can be valid if issued in defiance of office policy. But I suppose it will be enough that the form is properly completed with Davis' name on it by a duly employed clerk.
Tinkering with the machinery of marriage
Jonathan Adler explains why Kim Davis cannot, and should not be able to, use her personal religious beliefs to refuse to issue licenses to same-sex couples; if her conscience prevents her from doing this, she must resign. Adler points to a 2002 essay by Justice Scalia, in which Scalia explained why, if he believed capital punishment immoral, he must resign from the bench--his personal morality cannot override his judicial obligations. Adler argues that Davis similarly cannot use her personal religious morality to refuse to participate in (paraphrasing Harry Blackmun) the machinery of marriage.
But is there a middle ground between violating religious beliefs and resignation--recusal. Could a Justice Scalia whose religious views prevent him from affirming a death sentence recuse from all such cases? If so, that seems to be what Davis is doing here--recusing herself from the one function that runs afoul of her beliefs, while being ready and willing to perform other functions, even as to same-sex couples.
I am not suggesting Davis should win--she shouldn't. But does the reason have less to do with an absolute prohibition on this type of moral refusal to perform a public function and more with whether the attempted accommodation sufficiently protects the rights of couples seeking marriage licenses?
Tuesday, September 01, 2015
(Repost): Section on Fed Courts: Annual Award for Best Untenured Article
The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY.
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2015 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2015), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School (firstname.lastname@example.org). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2015. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Tara Leigh Grove (William & Mary), Caleb Nelson (Virginia), Judith Resnik (Yale), and Amanda Tyler (Berkeley), with the result announced at the Federal Courts section program at the 2016 AALS Annual Meeting.
Contempt proceeding in Rowan County
The ACLU today moved to hold Kim Davis in contempt for refusing to allow her office to issue marriage licenses, asking for "financial penalties" seemingly tied to the compensation she continues to receive from the state despite not performing her functions. The motion does not ask for jail time, likely realized that is what she and/or her attorneys want. Judge Bunning has scheduled a hearing for Thursday.
More interestingly, the ACLU also moved the court to clarify the preliminary injunction to "state unambiguously that the preliminary injunction applies not only to future marriage license requests submitted by the four named Plaintiff couples in this action, but also to requests submitted by other individuals who are legally eligible to marry in Kentucky." The motion states that the action was filed as a "putative class action," although the court has never addressed or resolved the class certification issue. So the motion appears to be asking the court, in the guise of clarifying its injunction, to convert it into a class-wide injunction without ever doing the FRCP 23 analysis of whether certification is appropriate. Can the court do this?
Monday, August 31, 2015
Serving two masters in Rowan County, KY? (Further Updates)
I am not a fan of Slate's Mark Joseph Stern, who I think has been both wrong and shrill about the procedure in the marriage-equality litigation. But I wonder if he is onto something with this piece about the connection between Kim Davis, the Rowan (Ky) Clerk of Court who is ignoring a federal injunction (and no, even under the view of departmentalism I have been pushing, you can't do that), and her attorneys from the Liberty Counsel, a religious-conservative advocacy group.
Stern posits that the lawyers are taking her for a ride, using her to push their legal-ideological agenda without regard to her best legal interests, recalling Derrick Bell's famous discussion of attorney-client conflicts in desegregation litigation. One commenter on Stern's post posited that she was offered a ride and willingly accepted. And I have suggested that Davis would be perfectly happy to become a martyr to this cause--although who knows if this is her lawyers or her. Either way, if Stern is right that the lawyers advised Davis to ignore the injunction and be held in contempt, that is troubling, since it raises the possibility that she will be unable to challenge any contempt sanctions later on.
Stern reports that Davis has moved for a stay of the injunction from SCOTUS, in a petition that attempts to minimize the effect of Obergefell and to treat the dissents as binding authority. No way four justices sign-off on that. So now we see what happens when the whole thing is back in the district court.
Update: Justice Kagan (the Sixth Circuit Justice) referred the petition to the full Court, which denied it without comment or published dissent. So now we see whether Davis is really willing to go to jail (or pay hefty fines) over this.
Further Update: Davis continued refusing to issue licenses, this time on video. The irony (which no one is going to catch) is that the couple in the video--David Moore and David Ermold--are not among the eight (four couples) named plaintiffs. So Davis actually is not in contempt in denying them the license.
Gabilondo on the Cuba embargo
My FIU colleague Jose Gabilondo explores how the Obama Administration might unilaterally end the Cuba embargo, or at least set it up to be challenged by a private party. It is an elegant solution, tied to the connections between legislation and administrative rulemaking.
The standing question he mentions is interesting, but seemingly manageable. If the sole basis for the embargo is regulations enacted solely pursuant to a constitutionally defective statute with no inherent executive discretion and that statute is the only thing legally prohibiting a company from doing business in Cuba, then standing to challenge the statute seems plain. And after Zivotofsky and Bond (interestingly, both Kennedy opinions), it is clear that a private plaintiff can raise pure separation-of-power and federalism arguments in challenging the validity of federal statutes.
Thursday, August 27, 2015
The Sixth Circuit has declined to stay the injunction against the County Clerk of Rowan County, Ky; her office is refusing to issue any marriage licenses, citing religious liberty, to avoid having to issue licenses to same-sex couples. The court was emphatic that there was "little or no likelihood" that the clerk would prevail on her appeal. Because the injunction runs against the clerk in her official capacity and thus against the clerk's office, "it cannot be defensibly argued that the holder of the Rowan County Clerk’s office . . . may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court."*
[*] I would have put this point slightly differently, although the basic idea--the clerk is going to lose--is right.
So we now are set for the clerk to be held in contempt, which, as I said before, is what she and many others in this post-Obergefell crusade probably have wanted all along. Look for her to be featured in a new Ted Cruz video very soon.
Wednesday, August 26, 2015
Do not go gentle into that Nebraska night
Nebraska has asked the Eighth Circuit for rehearing en banc on whether the challenge to its same-sex marriage ban is moot in light of Obergefell and its promise to comply. The court earlier this month rejected the argument, concluding that Obergefell only spoke to the bans from Kentucky, Tennessee, Ohio, and Michigan and that whatever the state's promises not to enforce, the marriage ban remains on the books. Interestingly, the rehearing petition is even more explicit that this is all about denying the plaintiffs prevailing-party status and eligibility for attorneys' fees.
I have written previously about why I do not believe these cases are moot--or at most the appeal is moot, but plaintiffs retain prevailing-party status because they previously obtained a preliminary injunction. I will add here that under my conception of departmentalism and the nature of precedent, Obergefell is largely beside the point for the state. Because precedent (even from SCOTUS) is not legally (as opposed to practically) binding on state officials' real-world conduct, that decision is not compelling them to do anything. What we have here is simple voluntary cessation, prompted by precedent and the state's voluntary choice to follow that precedent (rather than waiting until a court applies Obergefell and enjoins them). And voluntary cessation is generally not sufficient to moot a case. Ironically, then, this approach--which most civil-rights supporters likely would find anathema--is beneficial to plaintiffs trying to avoid mootness caused by new precedent.
One more thought, courtesy of Josh Blackman, my co-author: The state seems to spending a lot of money on this side issue. Simply put, the state is gambling: If it works, they lessen (and perhaps, although likely not, eliminate) all attorneys' fees; if it doesn't, they are driving those fees up even more. Of course, as Joanna Schwartz suggests, having to pay may not matter much to the government.
Monday, August 24, 2015
Clerkship hiring and changing clerkships
Aaron Nielson (BYU) has published The Future of Federal Law Clerk Hiring (Marq. L. Rev.). The article traces the fall of the 2003 clerkship hiring plan and discusses some possible strategies and concerns in trying to get it under control. Definitely worth a read.
I want to focus on one feature of clerk hiring that Nielson discusses as a piece of the problem and of the search for a new hiring process: The increase in judges hiring only "experienced" clerks, clerks coming into chambers after several years doing something else. Sometimes it is another clerkship, which has long been the case and makes some sense for both judge and clerk. But more and more the "something else" is working at a law firm for a year or more, with the clerk not applying until she is well into practice. This trend seems to be increasing in recent years, particular on the Southern District of Florida, the district in which I live and where my students tend to look for federal clerkships.
But I believe this is an unfortunate trend.
First, as one of my colleagues pointed out, it puts the clerk in a bad spot in a number of ways. She must choose between a clerkship and continuing at a firm where she already has put in time and effort towards advancing. The firm may not be happy about losing a person into whom it has sunk time and money, even if only for a couple of years. Although the clerkship is a theoretical positive for the firm when the person returns (especially if it is a prestigious appellate clerkship), the partners are likely to be dubious that the person is going to come back. And the benefits of having a former clerk still might not be worth the costs of being down an associate in a very different legal economy. And even if she does return to the firm, there remains a risk that some will doubt her commitment.
This interaction has several effects. First, it may affect employment at the start--perhaps the firm will avoid even hiring someone knowing there is a chance she will be applying for--and taking--a clerkship within a year or two. There also is a financial disincentive for the person--it is easier to make (relatively low) law-clerk wages for a year right out of school than to make those wages after a year or two of higher law-firm wages. It also may have a disparate effect on women, as Nielson points out. Many women know that they may be taking time off at some point (perhaps soon) for one or more parental leaves, which has already been shown to negatively affect chances for partnership. That same person is going to be less willing to take additional time away from the firm to clerk, which would further damage partnership and advancement chances.
Second, and relatedly, there is a geographical constraint. It is a lot harder to look nationally for a clerskship once you have been ensconced in the professional world of one city for two or three years and potentially put down some roots. Looking everywhere in the country made sense when the clerkship was an extension of the already-itinerant experience of law school. This is more of a concern for students at top-tier law schools, but it remains an issue. And this again has disparate gender effects--women may be less able to pick up and move to a new city for a year, having already settled some place for a place for a couple of years.
Third, using experienced clerks changes the nature of the job. A clerkship is (was?) like a post-graduate fellowship--an extension of the legal education. It was an opportunity for a newly minted lawyer to spend a short period studying at the feet of an accomplished figure in the legal world--an extraordinary research assistantship--and gaining a particular perspective on the law. She then carried that extra education into a more-permanent job (which made her more attractive to those employers).* And the longstanding practice of stacking clerkships was more of the same--it was multiple fellowships. But that changes when the judge is hiring someone with genuine practice experience and knowledge. Such a clerk, who knows more than a recent graduate, may be of greater help to the judge in chambers. But she also becomes less of a mentee or student-trainee. So the question, I guess, is what do we (systemically or institutionally) want a clerkship to be.
* I recall a Prawfs post years ago--I cannot remember who wrote it--comparing working for Dr. Gregory House to clerking for a particularly nighmarish judge.
There always have been some judges who preferred (even insisted) on hiring someone out of a prior clerkship. But as more judges move to wanting that experience in their own clerks, that initial (no-experience-required) clerkship becomes harder to come by. That is why more clerks have to go to law firms first, triggering the concerns I mentioned above.
Another change in the nature of the job is the loss of the two-year district court clerkship. These were somewhat in decline when I clerked in the late '90s/early 00s and, from what I can tell, have continued to disappear. Back then, it was becoming harder to attract people because the opportunity cost ($150k starting salary in some markets, plus a $10k-$20k clerkship bonus) was too high. Now, it would be harder to attract people because someone who is already two or three years into their time at a firm is not interested in stepping away for two years. Nor is the firm likely to allow her to leave for two years. So a district judge wanting to appeal to the broadest applicant pool is not going to require a two-year commitment. But I would not have wanted to have left my district-court clerkship after one year; I needed and wanted two to get everything I could out of the experience.**
[**] Judge Leonard Garth of the Third Circuit (who also had been a district judge) once said that the ideal clerkship length is 18 months, so the question for the judge is whether to structure her clerkships for less than the ideal or more than the ideal. Judge Garth argued that a district court should do more than the ideal, because there is enough variety to justify the extra time without too much boredom setting in. I am not sure about the ideal point, but I do believe two years on the district court were essential.
I should close by saying that all of the concerns I am raising as a professor hoping to place students might have worked against me when I was the student/new lawyer looking to clerk. I started my first clerkship (on the EDPa) after one year at a law firm in Chicago. (Although I interviewed and was hired for the clerkship while still in school--this was when judges interviewed in winter/spring 18 months before the clerkship would begin--so the judge was interviewing a current student and likely was not thinking specifically that I would be coming to chambers with a small bit of practice experience). I interviewed and was hired for my second clerkship (on the Third Circuit) while I was eight months into my first one and the judge especially liked (although did not require) that I would come to chambers from a prior clerkship.
The law firm I worked at during that pre-clerking gap year had given me the offer in the fall of my 3L year following a summer associateship. Partners were not pleased when I told them I was going to be leaving to clerk--for another city, no less--after a year and were convinced I was not coming back. Of course, I knew by that point that I wanted to teach, so I was not as rooted in Chicago or the life of practice in Chicago as other attorneys might be; moving around for a clerkshipswas just a step in what I expected would be more moving around for academia. Nor was I concerned with whether the firm would want me back when I finished clerking.*** But if my goal had been private practice in Chicago, taking that two-year clerkship (to say nothing of pursuing a second clerkship on top of it) in a different city would have made a lot less sense professionally and personally.
[***] The firm dissolved eleven months after I left, so there would have been nothing to go back to in any event.
Saturday, August 22, 2015
The hole in Mireles v. Waco
One of the cases that sets students off in my Civil Rights class is Mireles v. Waco, in which the Court held that a judge enjoyed absolute immunity from a § 1983 suit that he ordered courtroom deputies to use excessive force in bringing a lawyer into the courtroom. They are particularly put off by the suggestion that the judge' absolute immunity means the plaintiff should sue the officers who used excessive force and who are not entitled to absolute immunity (although they likely can succeed on qualified immunity, as they reasonably could have believed their conduct was lawful because ordered by a judge).
That gap leads to Demuth v. County of Los Angeles, in which a Ninth Circuit panel (per Judge Kozinski) held that a deputy sheriff was not entitled to qualified immunity when he arrested an assistant public defender (at her own snarky request) in carrying out a judicial order to bring the attorney into the courtroom. There are a number of distinctions between this case and Mireles, including, as the court emphasized, that the judge did not order the deputy to arrest or otherwise force the attorney into the courtroom (the precise order was to bring the attorney and, if she refused, to bring her supervisor). The implication is that the deputy would have had immunity had the judge ordered the arrested.
Judge Kozinski closes the opinion by insisting that the case was an unfortunate waste of time and money over damages that "seem hardly more than nominal," which could have been resolved by "an admission that the deputy violated Demuth's constitutional rights, followed by mutual apologies and a handshake." (In fact, the deputy conceded that he did violate Demuth's rights in arresting her). The sticky point was qualified immunity, which officers assert even to avoid nominal damages. So while this seems an extreme case, it is a good example supporting Jim Pfander's argument that if a plaintiff explicitly seeks only nominal damages, the action should be treated as one for an injunction and qualified immunity should not be available. This gives us deterrence of this sort of small-scale violations* without imposing the fear of personal liability and chilling effect that justifies qualified immunity.
[*] In the absence of physical injury or wrongful incarceration, many constitutional claims involve small-money injuries for brief-but-unconstitutional detentions or encounters. But those encounters are at the heart of the policing problems in Ferguson and elsewhere, which eventually blow up to something larger. So perhaps making it easier for plaintiffs to prevail on those claims offers a step towards eliminating constitutional violations, large and small.
By the way, I do not want to sound too optimistic about the decision. The court cited no similar case law, instead relying on general, well-understood principles of when an arrest is forbidden to reach the conclusion that no reasonable officer could have believed this arrest was valid. So this case feels like a good candidate for a summary reversal of a denial of qualified immunity.
Thursday, August 20, 2015
Infield Fly Double Play
On Wednesday night, the Royals turned a double play on an Infield Fly (video in link). With bases loaded and one out, a fly ball was hit near the first-base line, even with the mound; the rule was put in effect, the ball was not caught, and the runner on third made the instinctual move of running when the ball hit the ground and was tagged out at home. This is about the third or fourth time I have seen a double play on an I/F/R call in the six seasons I have been tracking.
Although the non-catch here was unintentional (the pitcher and first baseman had a miscommunication), a play such as this shows why the I/F/R does not entirely eliminate the perverse incentive for infielders to intentionally not catch the ball. There is always a chance an infielder could con the runner into taking off when the ball hits the ground and the runner's instinct takes over. And because not catching the ball is costless to the defense (since the batter is out anyway), it could be worth a shot. But this possibility does not undermine the I/F/R. The rule exists because base runners would be helpless if forced to run on a non-catch; it does not exist to save the runners from the consequences of running without thinking. And, of course, had the catcher forgotten to tag the runner (i.e., had the catcher been the one to have the brain cramp), the runner would have scored. In any event, I have only seen two instances of intentional non-catches in six seasons, so clearly the likelihood of success is not high enough to convince infielders to try this on a regular basis.
Tuesday, August 18, 2015
Settlement in Hood County, TX
On one hand, as I argued here, the availability of attorney's fees will make "resistance" to Obergefell quite expensive and, eventually, unpopular. On the other hand, how did the plaintiffs in this case rack up that much in attorney's fees? The office issued them the license a few hours after the complaint was filed, so the only expenses to that point should have been drafting and filing the complaint, which could not possibly cost that much. And settling seems an odd move by the county here, since the case should have been moot once the license issued.
Monday, August 17, 2015
NLRB declines jurisdiction in Northwestern football case
The National Labor Relations Board finally ruled on the efforts of Northwestern football players to unionize, declining to exercise jurisdiction without deciding whether college athletes are statutory employees. The Board determined that "it would not promote stability in labor relations" for it to get involved. It emphasized the unique circumstances of the case and the problem of ruling on union efforts by players in one sport at one school. Professional athlete-unions were sport- or league-wide, not team-wide. FBS schools, including all other Big Ten schools, are public and thus not subject to Board jurisdiction, meaning Northwestern (and 16 other FBS schools) might be able to unionize but not any of its competitors. This also would undermine the NCAA and the Big Ten Conference, which member schools formed to create the uniformity and level playing field that a Northwestern-only union would undermine.
At Workplace Prof, Jeff Hirsch briefly discusses the opinion, arguing that the NLRB's conclusion about instability is understandable, but ignores the way that unionization might have pressured the NCAA to make needed changes. I would make that point even more specifically--unionization is the only way to ensure student-athletes have real power in creating new policies for the NCAA, as opposed to being given a voice that can be easily overridden or ignored by other interests. For example, under the proposed revised governance structure for Division I athletics, student-athletes would hold one vote on a 21-person Board of Directors and two votes on a 38-person Council (the legislative body), a body on which 60 % of the Council must be athletics directors. The NLRB identified some changes that have been made since the filing of the petition, perhaps suggesting its view that things are improving for student-athletes and even a small number of unions is unnecessary to further NLRA policies.
Matt and I have been waiting for this decision for a year-and-a-half and had planned on writing a short essay on the decision and the underlying normative issues. Given this resolution, I doubt there is much to say.
Show Me a Hero
If you don't think civil rights litigation can make a good mini-series, check out HBO's Show Me a Hero, co-written by The Wire's David Simon. The series tells the story of the housing desegregation litigation in Yonkers, N.Y., in the 1980s and efforts by the city to fight an injunction requiring the building of 200 units in the white part of town. The six-hour program airs in three two-hour blocks on Sundays; the first aired last night (and will be repeated throughout the coming week). Some highly positive reviews here, here, and here. SCOTUS got one crack at this case in Spallone v. United States, in which the Court reversed a district court order imposing contempt fines against individual members of the city council for refusing to vote to approve a long-term housing plan that would spend federal dollars as required by the original injunction.
Based on the first two hours, this is definitely worth the viewing time.
Friday, August 14, 2015
Why marriage licenses?
A question about the religious opt-out arguments surrounding same-sex marriage. Note that I ask this question as someone who does not believe such opt-outs should be allowed and who believes that clerks and other public officials should lose these cases. I also ask as someone who does not share the particular religious views driving the discussion:
What is so special about issuing marriage licenses?
All of the action has been around clerks and clerks offices having to issue licenses to same-sex couples and demanding opt-outs from that ministerial task based on deeply held religious beliefs. But it seems to me that public officials and employees are required to process and handle all sorts of forms, requests, and documents that require them to recognize and treat as married same-sex couples. And this would seem to be just as much in violation of their deeply held religious beliefs. To name just a few:
• Granting a second-parent adoption to a same-sex couple (which requires a finding that the adopting parent is the spouse of the biological parent)
• Processing a death certificate listing a same-sex spouse (this was the claim at issue in Obergefell itself)
• Processing the paperwork for a person to receive health insurance and benefits from her state-employee same-sex spouse
• Processing a name change on a drivers' license for a same-sex couple who married and want to combine names or where one person wants to take the other's name
• Processing a joint tax return for a same-sex couple
I am sure there are others that I am not thinking of. And that is before we get into private actors and public-accommodation laws. Or less misiterial issues, such as police officers responding to domestic-violence calls or hospital staff allowing a person to make medical decisions (without a written advance directive) from a same-sex spouse. Yet we do not hear about similar opt-out requests in any of these contexts. And when state officials, such as Texas AG Ken Paxton, endorse these accommodations, they only spoke about protecting against having to issue licenses and never these or similar duties.
Wouldn't the religious-objection logic apply equally to each of these situations? And if not, why not?
Thursday, August 13, 2015
A first take on recalcitrant county clerks
Judge Bunning of the Eastern District of Kentucky preliminarily enjoined the county clerk of Rowan County from enforcing a policy of declining to issue all marriage licenses so as to avoid having to issue licenses to same-sex couples. This is the first detailed challenge to a county clerk refusing to abide by Obergefell and state orders to comply with Obergefell.
Update: The office turned away a same-sex couple (although not the plaintiffs) this morning (H/T: Josh).
Thoughts after the jump.
1) The policy involved here was especially broad. The clerk did not argue that she should not personally have to issue licenses but that another staffer in the office would. Rather, she objected to licenses being issued in her name as the county clerk, insisting that doing so both compelled her to speak and cause her to endorse and enable conduct that violates her religious beliefs.
2) The case was less about Obergefell than about the general fundamental right to marry (which, under Obergefell, applies equally to same- and opposite-sex couples). The right was substantially burdened for all couples either having to go to a neighboring county to receive a license or get the license from the county judge (who is authorized to issue licenses if the clerk is unable to do so). Interestingly, unlike the Fifth Circuit in the clinic-regulation cases, the court recognized that requiring people to travel (perhaps as long as an hour) to another county could burden those who like the financial, physical, or practical means to travel and thus should not be considered a less-burdensome alternative.
3) The court held that Kentucky county clerks act as state, rather than county, officials in making office policies with respect to issuing marriage licenses. This does not affect an action for injunctive relief. But it does affect the potential for plaintiffs to pursue damages against recalcitrant officials and offices, which is another tool for ensuring compliance with Supreme Court precedent. Damages are not available against state (as opposed to local) entities, so the clerk's office cannot be sued for damages,* although the clerk herself could be sued both for her own refusal to issue licenses, as well as for her role in supervising or ordering her employees not to issue licenses. But being able to sue the office means the plaintiffs would not have to deal with qualified immunity, which is not available to municipalities. The clerk herself can raise qualified immunity, which means damages are not going to be available, at least until a significant body of law builds up.
[*] The court here attributed it to the Eleventh Amendment, a common and unfortunate mistake. Section 1983 (the source of a constitutional damages action) is § 5 legislation that, at least in constitutional cases, is congruent and proportionate to the rights protected by § 1 of the Fourteenth Amendment. The problem is that the Court held that Congress did not abrogate sovereign immunity because "persons" in § 1983 does not include sovereigns. But, as the doctrine developed, Congress could have done so. Thus, the unavailability of damages against the state on constitutional claims is a product of statutory interpretation, not the Constitution.
Update: Note the nuance with respect to the couple denied the license this morning. The clerk is not in contempt because the injunction only protects the five named couples and only obligates her to issue licenses to those five couples. This new couple has to go back to Judge Bunning (either in a new lawsuit or by intervening) and have the injunction extended. Then someone can hold the clerk in contempt--which, frankly, is exactly what she is hoping will happen.
Further Update: This story reports that one of the plaintiff couples (including the named plaintiff) also tried to get licenses on Thursday and were denied. And now the clerk can be held in contempt.
Wednesday, August 12, 2015
Benforado on cameras and perspective
Adam Benforado (Drexel) has this Slate essay (excerpted from his new book). He discusses the role of perspective in evaluating video evidence and the need to "underst[and] how footage can influence perception," so "we can change how we use cameras to address that distortion." I have been making similar arguments, here and elsewhere. And I like some of Adam's suggestions about finding ways to obtain and use video with different or wider perspectives.
The Process of Marriage Equality
The Process of Marriage Equality, co-authored with Josh Blackman (South Texas), is now up on SSRN and coming to a journal office near you. This is a comprehensive take on the unique civ pro/fed courts/jurisdiction issues that arose during the litigation campaign leading to Obergefell. It incorporates and expands on my earlier discussions of some of these issues, published here and at Northwestern Law Review Online, and the stuff Josh has been writing at his blog.
The abstract is after the jump.
This article offers the first comprehensive history of the marriage-equality litigation process leading from Windsor to Obergefell. It explores how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality’s advance to the Supreme Court. First, we examine common misconceptions about how judgments, injunctions, and judicial precedent control real-world conduct and how litigation brings about legal reform. These misconceptions reached their nadir in Alabama in spring 2015. Guided by Chief Justice Roy Moore, Alabama officials properly declined to follow persuasive precedent, prompting unfortunate and inaccurate comparisons to George Wallace and Massive Resistance to Brown and desegregation. Second, we examine the pivotal, but underappreciated, role of stays pending appeal in constitutional litigation. In particular, we consider how denials of stays triggered concurrent races to the courts of appeals and to the altars. The Court’s transmission of signals through unexplained stays and denials of certiorari exacerbated the confusion in the lower courts and the states, highlighting a penumbra of what one scholar calls the Court’s “shadow docket.” Finally, we examine unsuccessful efforts by state attorneys to move marriage cases out of federal court by initiating state-court litigation and urging federal abstention. This article makes a first contribution to the scholarly discussion of marriage equality by focusing on the critical, but underdeveloped, procedural nuances of high-stakes civil rights litigation. By considering the process of marriage equality, we better understand this societal evolution and future constitutional revolutions.
Tuesday, August 11, 2015
Following Obergefell in the lower courts
Lots of action within the Eighth Circuit in the lower courts on how to apply Obergefell to bans in other states. Judge Crabtree of the District of Kansas* issued an initial order (H/T: Lyle Denniston at SCOTUSBlog, who has a nice summary of the decision, as well as some other development). The Eight Circuit issued substantially identical per curiam orders in appeals involving laws from Nebraska, South Dakota, and Arkansas, affirming preliminary injunctions or final judgments invalidating the laws in those states.
* Which is not located in the Eighth Circuit.
Some comments after the jump.
First, Judge Crabtree nails the connection between Obergefell and this case. The SCOTUS decision "considered same-sex marriage bans enacted in Michigan, Ohio, Kentucky, and Tennessee. It did not rule, at least not directly, on Kansas’ ban against such marriages. The Court’s job now is to apply Obergefell to the Kansas law." Once he reached the merits, the judge necessarily concluded that Obergefell resolves the plaintiffs' constitutional claim and entitles them to judgment on their claims for relief. The Eighth Circuit similarly applied Obergefell to conclude that the challenged laws are unconstitutional.
Second, the courts rejected the arguments that Obergefell moots these challenges. They all recognized that, because Obergefell itself compelled no action by officials in these four states, their mootness arguments amount to promises of voluntary cessation, which typically is not enough to moot a case. The marriage bans remain on the books in every state. At best, officials in Kansas seemed to be moving towards compliance with Obergefell, but had not yet gotten there (for example, it still was not clear a same-sex married couple could file a joint tax return or change names on drivers' licenses), but had not necessarily gotten there. And the fact that officials in every state are issuing licenses to same-sex couples is not sufficient, since that was being done on the strength of a district court's original injunction.
Third, in what might be an interesting development (one I had not previously thought of), the court of appeals and district court both suggested that the states' efforts at voluntary compliance perhaps affected whether permanent injunctive relief is unnecessary or impermissible. Judge Crabtree ordered further briefing on the question and the Eighth Circuit left it to the district courts on remand. Compliance was not a question of constitutional mootness, but of the court's discretionary equity analysis. Importantly, however, this did not affect declaratory relief, which remained proper and which will be entered in every case. This is significant for purposes of plaintiffs recovering attorney's fees--a declaratory judgment, even unaccompanied by an injunction, is sufficient to make them prevailing parties.
Fourth, Kansas tried to argue that the injunction requiring the state-employee health plan administrator to include same-sex spouses in the plan violated the Eleventh Amendment because it required money from the state in the form of benefits. But the court rejected this argument quickly and correctly--this falls into the "prospective compliance" exception, under which a purely prospective injunction is not barred by the Eleventh Amendment, even if compliance costs the state money.
Update I: In response to Maureen's comment, I shorthanded the point too much. A declaratory judgment alone will not always merit attorney's fees. But in the marriage cases, it should be, as there has been a change in the defendants' behavior and in the relationship between the defendants and the plaintiffs.
Update II: An alert reader points me to Sam Bray's The Myth of the Mild Declaratory Judgment (reviewed by Marin Levy here). Sam's theory is that declaratory judgments and injunctions represent alternative remedies, each appropriate in a different type of case. Under that theory, a D/J without an injunction is the appropriate remedy in the marriage cases, which require a change of behavior but minimal judicial oversight or monitoring.
JOTWELL: Malveaux on Porter on Rules interpretation
The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Elizabeth Porter's Pragmatism Rules (Cornell L. Rev., forthcoming), which unpacks competing methodologies and approaches to interpreting the Federal Rules.
Middle ground on departmentalism
Michael Dorf discusses Mike Huckabee's (unwitting? incomplete?) endorsement of departmentalism during last week's GOP presidential debate. Huckabee explained that he considers fetuses "persons" for Fifth and Fourteenth Amendment purposes and, as Dorf understands him, would act on that constitutional understanding. And Huckabee spoke not just of pushing a personhood constitutional amendment, but of a "bolder" approach." But, Dorf argues, Huckabee did not seem to realize that "his 'bolder' option--acting to protect the rights of the unborn (rights the Supreme Court has never recognized), even when that abridges the rights of women (rights that the Court has recognized repeatedly)--was, in effect, advocacy of "uncivil disobedience by a president," bringing him into direct conflict with the Supreme Court.
But is it necessarily a conflict? And is any conflict problematic? And how might the conflict arise and play out?
In my current article (more on that in a few days), I discuss and endorse Gary Lawson's "middle ground" approach to departmentalism. Lawson distinguishes between judgments and precedent; he argues that the President must abide by and enforce the former, but remains free to disregard the latter if it conflicts with his independent constitutional vision. In other words, if the Court adopts a constitutional rule and issues an injunction requiring the President to act (or refrain from acting) in a given way, he must abide by that injunction, even if he disagrees with the Court's constitutional conclusions.*
[*] With respect to the President, there is a second component to judgments, because the President also is responsible for enforcing federal judgments even if not party to them (e.g., enforcing a federal judgment enjoining the state from enforcing an abortion ban).
But, as I have been arguing with respect to the marriage-equality litigation, the injunction applies to the specific parties in that case, but extends no further. Thus, the President's obligation to follow the Court extends only as far as the judgment in that case, but not to other cases, issues, and parties. Instead, the President can act on his independent constitutional vision, even in the face of competing Supreme Court precedent. Of course, the courts remain bound to apply Supreme Court precedent when the President's actions reach the stage of judicial challenge or enforcement. And they will apply that precedent to produce a judgment against him, which, under Lawson's theory, he will then be obligated to enforce and obey.
Lawson's departmentalism rests on the idea that what courts uniquely do is decide cases and issue judgments, which control everyone who is subject to them or their obligations. But the power to interpret the Constitution simpliciter is not unique to the courts; it instead resides in all public officials (federal, state, and local) who swear an oath to uphold the Constitution. Only when the judicial interpretation is reduced to a judgment does it become supreme--and then only within the limited scope of that judgment.
How this plays out with a President Huckabee committed to the belief that fetuses are constitutional persons depends on what he tries to do. The point is that none of the following examples should be labeled defiance or disobedience.
• Decline to enforce a law such as the Free Access to Clinic Entrances Act, thereby allowing protesters to make it impossible (at least as a matter of federal law) for women to gain access to clinics and to exercise their rights. No real conflict here. For one thing, the Constitution does not require F.A.C.E. or require that the federal government act to protect women seeking access to clinics. This is unlikely in any event, as Dorf notes that Huckabee has indicated his belief that the President must enforce all laws, even those he disagrees with)
• Pursue federal murder charges against a woman who terminates a pregnancy in the first month, because, in his view, this woman took a human life and should be prosecuted (put aside federal jurisdictional issues for the moment). This prosecution would be invalid under Roe. Charges are sure to be dismissed or any conviction almost certainly would be reversed or overturned. But Huckabee does not engage in "uncivil disobedience" in pursuing this prosecution. Although clear precedent renders the prosecution futile (which Huckabee certainly knows from the start), he can act on his constitutional vision in initiating and pursuing charges. Once the courts dismisses those charges in light of precedent, Huckabee must comply with that order, although he also could initiate a new prosecution against someone else until that case is also dismissed.
• Sign and enforce a bill outlawing all abortions in all circumstances. Again, this law would clearly conflict with Supreme Court precedent. But the point of Lawson's approach is that there is nothing unlawful about the act of signing the bill or taking steps to prosecute people under it, so long as he believes it is constitutional. This is so even if he can predict that courts will declare the law unconstitutional. Obviously, he would be immediately enjoined from enforcing the law by a district court applying Supreme Court precedent. And any efforts to enforce it almost certainly would result in dismissal of the charges. And the President must abide by those judgments as to all plaintiffs.
So why don't more presidents do this? And why would Huckabee himself likely not do this? One answer is that there are political limitations to these moves. The public perception and media reportage would be that Huckabee is disobeying or defying the Supreme Court.While incorrect (absent a specific court order in a specific case), the force of that narrative is strong and may overwhelm his constitutional convictions. The public would not countenance the President prosecuting women for murder or signing laws that everyone knows will be declared invalid. Fair enough. But Lawson's point is that this is precisely how the system should work.
The point is that it would be politics pushing Huckabee away from acting on his unique vision in the face of a competing judicial vision. Neither the Constitution nor the structure of the federal government has that effect solely on the strength of precedent, as opposed to an eventual binding judgment.
Monday, August 10, 2015
History of satire
I have been radio silent for the past couple weeks, trying to put the final touches on a new article for August submission (more on that in a few days, hopefully). So, in honor of Jon Stewart's final episode last week, I will do a "hey, check-this-out" post, recommending this week's Backstory podcast, National Lampoon: Satire in American History, and the accompanying essay on the role that satirical magazines played in the 1884 presidential election (Cleveland Defeats Blaine).
I stopped regularly watching Stewart (I would watch pieces online, but it stopped being appointment viewing), largely because at some point I became unable to watch satire of a media and political landscape that is so ridiculous as to be self-satirizing. Making fun of it seemed redundant. Still, I enjoy discussions of satire as a form, especially as it implicates the First Amendment (the podcast features Rod Smolla talking about Hustler v. Falwell) and current politics (there is a short segment on why conservative satire does not catch on to the same degree).
Tuesday, August 04, 2015
Call for GuestPrawfs, 2015-16
As the new school year looms, so does our annual need for a new slate of GuestPrawfs to keep this site moving. We are looking to fill slots beginning in November and for the rest of the academic year. If you are a past guest, please (please!) come back. If you have never been at Prawfs (or blogged at all) before and would like to give it a try, please join us. We especially encourage pre-tenure faculty--Dan & Co.'s original target--to join us.
If interested, please email me at email@example.com, along with two or three months that work for you. Also, if you have friends/colleagues who might be interested in blogging but might not see this post, please pass it along.
Saturday, August 01, 2015
August is upon us, which means that classes and submission season both loom and that it is time to say thanks and goodbye to our July visitors--Jeff, Catherine, Robin, Leigh, and Heather.
And it means welcoming our August visitors. Returning to Prawfs are Jessie Hill (Case Western), Ari Waldman (New York Law), and Shima Baradaran (Utah). Joining us for the first time are Fabio Arcila (Touro), Andrea Boyack (Washburn), and Bertrall Ross (Berkeley). Welcome and enjoy the month.
Thursday, July 30, 2015
I already have the title for a future paper--"Tie Goes to the Runner" and Other Myths of Baseball Rules. The paper will explore baseball rules that everyone believes/assumes are one way and that often are captured in a common, pithy cliche; in fact, they are entirely different, if not the precise opposite, from what everyone thinks. For example, the one from the paper title. As kids, we always yelled "tie goes to the runner" to justify having a runner be safe when the play was too close to call; in fact, the runner is out unless he affirmatively beats the throw--in other words, tie goes to the fielder (Bruce Weber's As They See 'Em has a great discussion of this).
Now I just need some content. So far, I have identified five rules that fit the bill, thanks in part to suggestions from participants in a SEALS discussion group earlier this week: 1) Tie goes to the runner; 2) Infield Fly Rule only applies to balls on the infield; 3) "One base on an overthrow"; 4) "Hand is part of the bat" (so getting hit on hand when hand on bat is a foul ball); 5) The runner cannot run out of the baseline (this rule, and the common misunderstanding of it, came up during the 2013 World Series).
Can anyone think of others? Suggestions welcome in the comments.
Wednesday, July 29, 2015
For a variety of geographic and other reasons, my SEALS participation this year involved just two days of driving the 50 miles to the Boca Resort. And I will have to miss the MarkelFest! Happy Hour. I did have two random thoughts after the jump.
1) I was struck by what I thought was the rise of the discussion group and an initial sense that discussion groups now outnumber panels. It turns out there still are more panels, although the numbers are almost even (excluding the New Scholars panels), but that still reflects a pretty significant increase in the number of discussion groups. And I see the benefits of having more discussion groups--they allow us to hear from more voices about more things and create more of a conversation than a panel of often-unrelated talks. Even the one panel I did (the SCOTUS Individual Rights Review) was conducted as more of a discussion format and was, I think, a lot of fun for just that reason.
2) Kudos to SEALS on the two-sided name tags, so that the name is showing no matter which side the plastic card is facing. Nothing worse than trying to place someone but their card is flipped over.
MarkelFest! at SEALS Thursday night
The annual MarkelFest! at SEALS will take place at 9:30 p.m. this Thursday, July 30, at the Palm Court Bar at the Boca Resort. Steve (unfortunately, the only PermaPrawf who will still be there on Thursday) will be your host.
Apologies for the late notice. But spread the word around SEALS and thanks to everyone for helping maintain this SEALS tradition.