Saturday, May 26, 2018

Contempt and the recalcitrant President

Paul Rosenzweig at The Atlantic games out what would happen if Robert Mueller subpoenas the President and the President refuses to comply.*

[*] TL/DR: A stalemate in which nothing can happen legally and the only hope is a political solution. This is where Trump's attacks, and GOP buy-in on those attacks, on Mueller and on the courts matter. Neither Mueller nor the courts have any credibility, so Congressional Republicans will not see disobedience as a crisis; they will see it as a heroic stand against an overweening prosecutor and judge.

But in considering the first step of civil contempt, Rosenzweig jumps right to the prospect of jail and the impossibility of pulling that off (because the Secret Service would never allow the U.S. Marshal to arrest the President, at worst resulting in a gun fight between officers of the two agencies). But the court has discretion to enforce contempt--to attempt to compel compliance--by other means short of jailing. One is monetary fines. So could the court impose a series of escalating fines against Trump? Could those be collected without having to go through and past the Secret Service, as by by attaching some assets? Would the threat to his wallet compel the President to comply? Or to do something really stupid?

Posted by Howard Wasserman on May 26, 2018 at 02:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, May 24, 2018

Universality as judicial impatience and control

Universal injunctions reflect judicial impatience and a desire of the court issuing the injunction to maintain control over a set of legal issues. Seeing disputes likely to recur, courts use the injunction to resolve all issues for all parties, rather than allowing other doctrines, designed to handle duplicative litigation, to do their work. And the reason is that those other doctrines may take awhile to reach a conclusion (that the issuing court believes is correct) and may leave control in the hands of another court.

In my forthcoming article, I argue that it is impatience with precedent. The Seventh Circuit recognizes Santa Clara will want to maintain its federal funding despite sanctuary policies, just as Chicago does. Rather than letting the process of precedent play out--having the district court or Ninth Circuit decide the issues in the separate action, perhaps using the Seventh Circuit decision as precedent; allowing courts of appeals to work through authority; allowing SCOTUS to resolve--the Seventh Circuit uses the injunction to get the singular result at once. This is both faster, because the process of building to consensus or resolution of precedent can take awhile. And it leaves the first court in control, rather than allowing another court to perhaps reject the first court's precedent.

This dispute over the contempt citation reflects impatience and a desire for control over a different limit on duplicative litigation--preclusion. The key to this case is the district court's conclusion that individual FLSA plaintiffs (and their attorneys) are in privity with the United States with respect to the validity of the overtime regulations, a dubious proposition (and, if I had to predict, the basis on which the Fifth Circuit will reverse the contempt order). But accepting that there is privity, the proper space for that analysis is issue preclusion--for Chipotle to argue in the District of New Jersey that the first court's decision as to the invalidity of the regulations has preclusive effect on the individual lawsuits. But this takes control from the first court, since "[d]eciding whether and how prior litigation has preclusive effect is usually the bailiwick of the second court."   By proceeding via injunction, the first court retains authority to decide all related issues under the guise of enforcing its injunction.

Posted by Howard Wasserman on May 24, 2018 at 07:26 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, May 23, 2018

Irony can be pretty ironic

Does anyone recognize the tragic irony that the Milwaukee Police Department released this (and got this response from the Milwaukee Bucks) on the same day the NFL announced this.

Posted by Howard Wasserman on May 23, 2018 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (4)

Contempt and the universal injunction

Last month, I wrote about a case in which a district court in Texas enforced a universal injunction barring enforcement of the Obama Labor Department's overtime regulations (issued in a case against DOL) by holding in contempt private attorneys who brought a private action claiming that Chipotle violated those regs. The law firms have appealed the contempt order to the Fifth Circuit, calling it an "extraordinary and concededly unprecedented use of the contempt power to dictate the legal arguments that a stranger to that court may advance in another federal court." The firms question the conclusion that DOL can be in privity with millions of individuals merely because they would make the same legal arguments.

Tellingly, however, the plaintiffs accept the power to issue universal injunctions. Their challenge is to the logical conclusion that every universal injunction "against the federal government would apparently be binding, in personam, against each of the tens or even hundreds of millions of Americans that the relevant arm of the government purports to serve."

Posted by Howard Wasserman on May 23, 2018 at 07:03 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Trumps' Twitter blocking violates First Amendment

District court decision here. Eugene Volokh comments. I agree with the First Amendment analysis. While a public official can speak on his own, the dispute here is over an interactive part of Twitter and who gets to engage on those features.

After the jump, I consider several procedural points.

• The court did not rely on the "one good plaintiff" approach to standing. After finding that the four individual plaintiffs had standing, the court considered whether the Knight Foundation had standing on its own (based on wanting to read comments from one of the blocked individuals).

• The Court linked standing to Ex Parte Young and recognized that Young allowed for claims for prospective relief against federal officials as much as state officials. The latter can be based on § 1983 while the former are based on the judicially created equitable claim. But the precedents overlap.

• The big standing issue involved Trump's aide Daniel Scavino, who has the power to control access to the account (including blocking or unblocking users), but did not block the individual plaintiffs. But the plaintiffs remained injured so long as blocked. Because Scavino could unblock, their ongoing injury was traceable to him.

• The court discussed whether the President or Scavino were state actors in managing the account, although the analysis was buried in the public-forum analysis. By contrast, in Davis v. Loudon County Board of Supervisors, involving a local official blocking members of the public from her Facebook page, the court focused on state action.

• The court gave a lengthy discussion of whether a court can enjoin the President. It rejected the categorical argument that the President cannot be enjoined, acknowledged that courts must hesitate and balance separation-of-powers concerns, and found that an injunction here would only compel the President to act constitutionally without interfering with executive discretion. The court declined to resolve the issue, because an injunction against Scavino and a declaratory judgment offered sufficient relief. (The court's decision to issue only declaratory relief without an injunction highlights a point Sam Bray made--declaratory relief is a sufficient remedy where limited judicial oversight or management is necessary).

• The court's decision not to issue an injunction deprived it of an opportunity to make the injunction universal and prohibit Trump and/or Scavino from blocking anyone from his Twitter account, in a case in which such a non-particularized remedy is unwarranted. But this reminds us that a declaratory judgment should be as party-particularized as an injunction. If Trump or Scavino block people other than the plaintiffs from the account, they would not act inconsistent with the judgment and it would not alone be a basis for converting the D/J into an injunction. New Twitter users must sue to assert their own rights to their own judgments, regardless of whether the judgment is a declaration or an injunction.

Posted by Howard Wasserman on May 23, 2018 at 06:37 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Antony Page appoined dean at FIU

I am delighted that Antony Page (Indiana-Indianapolis/McKinney School of Law) is the new dean at FIU. Antony had been Vice Dean at IU for the past six years. His job here is going to be continuing recruiting great students while helping get the word out about what we are doing here.

The FIU press release is below.

MIAMI (May 23, 2018) — Antony Page has been named dean of the Florida International University College of Law. Page joins FIU Law from the Indiana University Robert H. McKinney School of Law in Indianapolis, where he was vice dean and a professor of law.
 
“Today marks a significant moment in FIU’s history,” said Provost Kenneth G. Furton. “FIU Law is already a leader among Florida law schools, and Dean Page shares our enthusiasm for continuing its rise in the national rankings as well.”
 
Page is distinctively qualified to lead FIU Law into its next era of ascent among top American law schools. His tenure at McKinney followed years of public service, including as a diplomat in the Canadian Foreign Service. As vice dean, he played a key role leading McKinney, from launching new graduate interdisciplinary programs to developing initiatives that improve access to legal education. He is also an acclaimed teacher and scholar in corporate law and related subject areas, with publications in high impact journals like the Michigan Law Review, Emory Law Journal, and Boston University Law Review.  His previous legal experience includes private practice as a transactional attorney in the London and Los Angeles offices of New York-based law firm Sullivan & Cromwell and clerking for Judge Harry Lindley Hupp of the Central District of California and Judge Arthur Lawrence Alarcón of the U.S. Court of Appeals for the Ninth Circuit.
 
“I’m honored to be entrusted with leading FIU Law at this most important juncture for legal education,” said Page. “Significant transformations are taking place in the legal profession and FIU Law is developing a reputation as one of the country’s most forward-thinking law schools.”
 
Page will bring his ambitious vision to a law school that quickly is earning national acclaim. FIU Law graduates have finished number one on four of the past five Florida Bar Examinations. The College’s acceptance rate ranks 30th in the nation – and number one in Florida – according to U.S. News & World Report, and it was recently named the nation’s 17th Best Value Law School by The National Jurist
 
“We will maintain our student-centered focus, while also exploring new avenues to ensure that our students are prepared to thrive in a rapidly evolving profession,” said Page. “FIU is one of the world’s most globally minded universities, and it’s located in one of the nation’s most entrepreneurial and innovative cities.  We are ideally positioned to serve the legal profession and the community in Florida, the United States, and internationally.” 
 
Page’s term formally begins on July 30, 2018, but he is already beginning his first order of business: getting to know FIU Law’s students, faculty, alumni, and other stakeholders. “Our people are our greatest asset,” he said. “We’ll go as far as they will propel us.

Posted by Howard Wasserman on May 23, 2018 at 10:01 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, May 21, 2018

JOTWELL: Steinman on Davis and Whytock on human rights litigation in state court

The new Courts Law essay comes from section co-editor Adam Steinman (Alabama), reviewing Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018), which considers how human rights violations can be litigated and redressed in state court.

Posted by Howard Wasserman on May 21, 2018 at 11:54 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, May 17, 2018

Open Letter from Jewish Law Professors Protesting the Treatment of Professor Katherine Franke

Katherine Franke (Columbia) was detained and denied entry by Israeli authorities earlier this month. The incident sparked a number of open letters objecting to her treatment. The letter, after the break, is from (some) Jewish law professors.

We, the undersigned, write to protest the refusal of the State of Israel to permit entry to Professor Katherine Franke of Columbia University Law School, along with Vincent Warren, executive director of the Center for Constitutional Rights. Franke and Warren arrived to meet with Israeli and Palestinian colleagues. They were questioned for 14 hours before being sent back home without entry. As colleagues of Professor Franke, we know her as a serious scholar of gender, sexuality, civil rights, and human rights and as the author of one book, numerous well-regarded law review articles, and a second forthcoming book. She holds a chaired professorship at Columbia Law School, where she has also served as vice dean, and she has testified before congress and contributed to several edited volumes.

While much of her work has focused on gender equality and civil rights for African Americans, Professor Franke has been deeply engaged in and concerned about the status of Palestinians both within Israel and under the Israeli occupation. She has worked as a mentor to colleagues in human rights at Al Quds University in Jerusalem. Professor Franke had travelled to Israel as part of a civil rights delegation with the Center for Constitutional Rights and as an academic to meet with Columbia graduate students in Haifa and Ramallah and to meet with faculty at An-Najah University about a possible master’s program in human rights. She previously served as a member of the academic advisory council of Jewish Voice for Peace, an organization that supports elements of the Boycott, Divestment, Sanctions (BDS) movement.

Presumably, it is Professor Franke’s former affiliation with Jewish Voice for Peace and its position on BDS that led to her exclusion. The Knesset has passed a series of laws, most recently in 2017, directed against those who support a boycott, including those who support a boycott of settlement products in the occupied territories. In addition, and with the support of Prime Minister Netanyahu, the Knesset has passed several bills in recent years limiting the right to open and free expression. While some of us agree with Professor Franke’s substantive views, and some of us do not, we are united in our serious concern at her recent exclusion from the country, and the growing trend to exclude visitors based on their viewpoint and beliefs. Denying entry to those with dissenting views is a worrying sign of the erosion of democratic foundations in Israel.

A critical measure of a society’s commitment to democracy lies in its willingness to tolerate political views at odds with those of the ruling regime. We have seen examples around the world, from Turkey to Hungary to Venezuela, of increasing intolerance for dissenting views—and for the very principles of liberal democracy. By its latest action against Katherine Franke and Vincent Warren, the Israeli government has registered its own indifference to the core values of democracy and a deeply concerning unwillingness to tolerate dissenting viewpoints. As Jewish law professors dedicated to democratic values and academic freedom, we call on our academic communities and our academic institutions to stand in support of Professor Franke and the principles which were violated by the denial of entry. We also call on the Israeli government to reconsider its recent steps and permit Katherine Franke and all those who support peaceful political dialogue and engagement to enter the country.

  1. Richard L. Abel, Connell Distinguished Professor of Law Emeritus and Distinguished Research Professor, UCLA Law School
  2. David Abraham, Professor of Law, University of Miami Law School
  3. Kathryn Abrams, Herma Hill Kay Distinguished Professor of Law, UC Berkeley School of Law
  4. Libby Adler, Professor of Law and Women's, Gender, & Sexuality Studies, Northeastern University
  5. Erez Aloni, Assistant Professor, Allard School of Law at the University of British Columbia
  6. Scott Altman, Virginia S. and Fred H. Bice Professor of Law, University of Southern California
  7. Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
  8. Jon Bauer, Clinical Professor of Law and Richard D. Tulisano '69 Scholar in Human Rights, University of Connecticut School of Law
  9. Paul Schiff Berman, Walter S. Cox Professor of Law, The George Washington University Law School
  10. Susanna Blumenthal, William Prosser Professor of Law and Professor of History, University of Minnesota Law School
  11. Linda Bosniak, Distinguished Professor, Rutgers Law School
  12. Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley Law School
  13. Brenda Cossman, Professor of Law, University of Toronto
  14. Anne C. Dailey, Evangeline Starr Professor of Law, University of Connecticut Law School
  15. Joshua Foa Dienstag, Professor of Political Science and Law, UCLA School of Law
  16. David R. Dow, Cullen Professor, University of Houston Law Center
  17. Peter Edelman, Carmack Waterhouse Professor of Law, Georgetown University Law Center
  18. Sam Erman, Associate Professor, USC Gould School of Law
  19. Catherine Fisk, Barbara Nachtrieb Armstrong Professor of Law, UC Berkeley Law School
  20. Carole Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA School of Law
  21. Ariela Gross, John B. and Alice R. Sharp Professor of Law and History, USC Gould School of Law
  22. Bruce Hay, Professor of Law, Harvard University
  23. Deborah Rosenfield Hensler, Judge John W. Ford Professor of Dispute Resolution, Stanford Law School
  24. Morton Horwitz, Professor, Emeritus, Harvard Law School
  25. Paul W. Kahn, Robert W. Winner Professor of Law and the Humanities, Yale Law School
  26. Hila Keren, Professor of Law, Southwestern Law School
  27. Jeremy Kessler, Associate Professor of Law, Columbia Law School
  28. Karl Klare, George J. & Kathleen Waters Matthews Distinguished University Professor, Northeastern University School of Law
  29. Diane Klein, Professor of Law, University of La Verne College of Law
  30. Pnina Lahav, Professor of Law and Law Alumni Scholar, Boston University School of Law
  31. Sanford Levinson, W. St. John Garwood and W. St. Garwood, Jr. Centennial Chair in Law, University of Texas Law School
  32. David Luban, University Professor and Professor of Law and Philosophy, Georgetown University Law Center
  33. Michael Meltsner, Northeastern University School of Law
  34. Naomi Mezey, Professor of Law, Georgetown University Law Center
  35. Frank Michelman, Robert Walmsley University Professor, Emeritus, Harvard Law School
  36. Jennifer L. Mnookin, Dean and David G. Price and Dallas P. Price Professor of Law, UCLA School of Law
  37. Samuel Moyn, Professor, Yale Law School
  38. Judith Resnik, Arthur Liman Professor of Law, Yale Law School
  39. Darren Rosenblum, Professor, Pace Law School
  40. Tanina Rostain, Professor Georgetown Law Center
  41. Lawrence Sager, Alice Jane Drysdale Sheffield Regents Chair of Law, University of Texas
  42. Susan R. Schmeiser, Professor of Law, University of Connecticut School of Law
  43. Hilary Schor, Professor of English, Comparative Literature, & Law, USC Gould School of Law
  44. Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
  45. Amy Sepinwall, Professor of Legal Studies and Business Ethics, Wharton School, University of Pennsylvania
  46. Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law
  47. Jed Shugerman, Professor of Law, Fordham Law School
  48. Dan Simon, Richard L. and Maria B. Crutcher Professor of Law and Psychology, USC Gould School of Law
  49. Jonathan Simon, Professor of Law, UC Berkeley School of Law
  50. Joseph William Singer, Bussey Professor of Law, Harvard Law School
  51. Abbe Smith, Professor of Law, Georgetown University Law Center
  52. Brad Snyder, Professor of Law, Georgetown University Law Center
  53. Clyde S. Spillenger, Professor of Law, UCLA School of Law
  54. Carol Steiker, Henry J. Friendly Professor of Law, Harvard Law School
  55. Beth Stephens, Distinguished Professor, Rutgers Law School
  56. Simon Stern, Associate Professor of Law, University of Toronto
  57. Nomi Stolzenberg, Nathan and Lilly Shapell Chair in Law, USC Gould School of Law
  58. Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
  59. Adam Winkler, Professor of Law, UCLA School of Law
  60. Gideon Yaffe, Professor of Law & Professor of Philosophy and Psychology, Yale Law School
  61. Jonathan Zasloff, Professor of Law, UCLA School of Law
  62. Noah Zatz, Professor of Law, UCLA School of Law

Institutional affiliations listed for identification purposes only.

Posted by Howard Wasserman on May 17, 2018 at 04:45 PM in Howard Wasserman, Teaching Law | Permalink | Comments (15)

Monday, May 14, 2018

Mootness in Sanchez-Gomez

SCOTUS on Monday decided United States v. Sanchez-Gomez, unanimously holding (per the Chief) that the constitutional challenge to a district-wide policy of shackling all pretrial detainees was moot when the prosecutions of the four defendants ended; neither the special treatment of class actions (where there had been no class certification) nor capable-of-repetition kept the case alive. My opinion analysis is on SCOTUSBlog.

The opinion contains a fair bit of language emphasizing the individual nature of constitutional litigation, thereby supporting the view that injunctions must be particularized to the parties and not accord universal protection or limitations to non-parties. The Court emphasized the "usual rule that litigation is conducted by and on behalf of the individual named parties only" and that the "'mere presence of . . . allegations' that might, if resolved in respondents' favor, benefit other similarly situated individuals" does not matter. The Court was talking about Article III mootness and when disputes remain alive. But the principles carry to questions such as the scope of an injunction.

Posted by Howard Wasserman on May 14, 2018 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, May 12, 2018

Eighth Circuit on municipal liability

In Webb v. City of Maplewood, a class challenged various practices relating to unpaid traffic fines (H/T: Volokh Conspiracy's weekly round-up). The Eighth Circuit affirmed denial of the City's defense of sovereign immunity, which was correct. The city tried to obtain immunity by emphasizing the role of the municipal court, a separate, immune entity, in enacting and carrying out the challenged practices. But the court said that the municipal court's separate liability or immunity, if any, did not shield the city from its liability. "If the municipal court rather than the City is responsible for the practices, the City will have a defense on the merits but not immunity from suit."

On that last point, many courts would treat the last point as a matter of Article III standing--the plaintiffs would be said to lack standing to sue the City, because the injury was not traceable to the City nor redressable by an injunction against the City.*

[*] This happened in many marriage-equality cases. Plaintiffs would sue the governor or attorney general, who would argue that he is not the responsible executive officer for things such as marriage licenses or vital records such as death certificates. The dismissal always was framed as 12(b)(1) lack of standing.

I have long believed that position was wrong, that suing a non-responsible defendant should be treated as grounds for the defendant to prevail on a 12(b)(6) or summary judgment. I am glad the court got this right, although with little analysis or explanation for why this should be a matter of merits (and likely because the City failed to frame it as standing).

Posted by Howard Wasserman on May 12, 2018 at 12:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, May 11, 2018

On mixing academic and journalistic writing (Updated)

Olga Khazan at The Atlantic summarizes a new article by Austin Frakt, Aaron Carroll, Harold Pollack, and Keith Humphreys--all academics who write for newspapers, blogs, and other popular outlets--discussing the rewards and challenges of writing for popular journalistic outlets and audiences as an academic.

From my limited experience writing regularly here and at SCOTUSBlog and dabbling with op-eds in newspapers or magazines, it seems to me there are two issues--one is style/tone, the other is level of detail and support. The latter obviously decreases in these formats--writing 500-1000 words on a germinating idea that will get 20,000 in a full article means less detail and support. A blog post or opinion recap is not meant to be a full scholarly analysis. I find style/tone to be trickier--I assume readers here are law-trained, which I sometimes forget when writing for a different audience that is law-interested but not law-trained.

Update: I also agree with Frakt, et al. about speed, which is unnecessary for academic projects. I am a slow reader and processor, so the process of quickly turning around a report on an argument or opinion is painful for me. I also tend to rush when pressed for time and make bad grammatical mistakes or fail to provide the right links (as happened in this post--the link to Khazan's piece is fixed).

Posted by Howard Wasserman on May 11, 2018 at 02:20 PM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Thursday, May 10, 2018

Because it's International *Shoe*

For the third straight year, most of my Civ Pro students completed extra-credit "creative projects," including video skits, parody songs, board games, poems, and crossword puzzles. I stole this idea from former GuestPrawf Josh Douglas and I love how it has caught on. Students know about it from year to year and they seem to have a good time with it.

Among my favorites this year was a series of buttons that one student made. One button read "Certain Minimum Contacts," then the rest contained a drawing of a different type of shoe bearing the name of one of the tests for purposeful availment ("stream of commerce," "Effects," "Seek to Serve," etc.). Pretty cool-I can wear the appropriate one to class when we cover each of the tests.

But until someone pointed it out to me today, I did not understand why the student drew shoes.

I need a vacation.

Posted by Howard Wasserman on May 10, 2018 at 05:46 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

To Dismiss or Transfer a Mockingbird

My recently-administered-but-still-to-be-graded  Civ Pro exam was built around the lawsuit over the Aaron Sorkin-penned stage adaptation of To Kill a Mockingbird, including questions on personal jurisdiction. On Monday, as my students were taking the exam, the district court denied Rudin's motion to dismiss for lack of personal jurisdiction. The court concluded that there was purposeful availment given the contract with Lee (an Alabaman) and her ongoing influence over the script, along with the fact (downplayed in Rudin's brief) that Rudin pursued Lee in Alabama (through emails to Lee and her Alabama attorney) for some time to get her to enter into negotiations. But the court transferred the action to the Southern District of New York under § 1404, finding that the private interest factors (mainly the location of witnesses) favored New York and that Lee's choice of forum received less deference because of her inequitable action in suing rather than meeting with Rudin to discuss concerns with the script.

All of which became moot today, when the Estate and Rudin "amicably settled" the litigation.

Posted by Howard Wasserman on May 10, 2018 at 05:28 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, May 08, 2018

"Nationwide" Injunctions Are Really "Universal" Injunctions (Revised)

The updated/revised draft of my article on universal injunctions (complete with new, and more descriptive, title) is on SSRN (hoping the article will be published by June). The new version adds four new developments to the discussion: the Seventh Circuit affirmance of the universal injunction prohibiting enforcement of the sanctuary-city regulations in Chicago; a third district court decision enjoining DACA rescission (this one from D.D.C.); the brief discussion from Justice Gorsuch of cosmic injunctions during Trump v. Hawaii arguments; and an excellent new article by Jonathan Mitchell (VAP at Stanford) exposing what he labels the "writ-of-erasure fallacy," the incorrect belief that declaring a law unconstitutional erases the law, when what it actually does is prohibit enforcement of the law. (I would add prohibit enforcement of the law against the parties to that case, although Mitchell takes no express position on that).

Posted by Howard Wasserman on May 8, 2018 at 11:49 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, May 07, 2018

Heckler's vetos and equal protection at Colorado State

Heckling becomes a heckler's veto when government action ratifies private preferences; ratification is necessary to create a First-Amendment-violative veto as opposed to a stand-off between competing speakers. That framing helps explain the real problem underlying the recent incident involving two Native-American prospective students on a tour at Colorado State. And it exposes the key shortcoming and blindspot in the lengthy, heartfelt letter on the incident from CSU President Tony Frank.

Two Native-American high schoolers from New Mexico were part of a CSU tour group. A woman on the tour became nervous around the two and called university police, complaining that the students' dress, manner, and quietness showed that they were definitely not part of the tour. Police questioned the boys (the body cam video is linked in the President's letter) for about five minutes before letting them go, at which point the campus group had moved on, so the two left campus. Watching the video, the officers are polite and never aggressive, although the questioning ("why didn't you answer the questions of others in the tour group when they asked") reflect a baseline of suspicion. The President expressed regret for the events and related how the school was using social media to reach out to the family because other attempts to contact them have been unsuccessful (read "we are publicly demagogueing them into responding to us and accepting our apology"--the weakest part of the letter).

The President uses his letter to call attention to the "battle with hate within our communities," to insist that "[t]here is no place for hate at Colorado State University," and to urge people to return from summer break "with a commitment to be a little kinder, a little better, to work a little harder at seeing each other’s point of view, and to use our voice." This emphasis on stopping private bigotry among members of the CSU community ignores  the role of government, particularly police, conduct. Private bigotry is inevitable and, in some contexts, constitutionally protected; it becomes a problem when government lends force to that private bigotry, even if only in a five-minute Terry stop. If the woman caller (who remains anonymous) wants to be suspicious and nervous around teen-age boys of color, that is, and should be, her business. The problem arose because CSU lent its coercive power to her bigotry, thereby causing an injury to the two boys. By shifting the emphasis on what everyone else can do to battle prejudice, Frank's letter exonerates his own governmental entity.

Posted by Howard Wasserman on May 7, 2018 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (5)

Sunday, May 06, 2018

Bray on conflicting universal injunctions

One of the problems with universal injunctions is the risk of conflicting universal injunctions--Ct I enjoins government to do X universally, while Ct II enjoins government to refrain from doing X, universally. This almost happened with DAPA--after affirmance of the Fifth Circuit injunction prohibiting enforcement of DAPA, lawsuits were filed in federal courts in Illinois and New York, seeking declarations that the Fifth Circuit injunction did not affect enforcement of DAPA in states that were not party to Texas; those cases were dismissed before courts reached that point.

The situation may arise again over DACA rescission--judges in the Northern District of California, Eastern District of New York, and District of the District of Columbia have issued universal injunctions requiring the federal government to continue enforcing the DACA policy and granting or renewing DACA status for eligible recipients. As Sam Bray discusses, seven states have filed suit in the Southern District of Texas (naturally), seeking a universal injunction prohibiting the federal government from granting or renewing DACA status. If issued, it would create imposing directly conflicting obligations on the government--required by one court to continue granting DACA status to all persons everyone, required by one court to refrain from granting DACA status to any persons anywhere.

Bray describes a "fight to the death" between universal injunctions and the principle that a judgment resolves issues between parties to a lawsuit, but does not conclude the rights of strangers to those proceedings.

Posted by Howard Wasserman on May 6, 2018 at 11:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Judicial departmentalism and U.S. v. Nixon

The potential controversy over the special counsel issuing a grand-jury subpoena for President Trump offers a nice illustration of judicial departmentalism, outside my usual focus of constitutional litigation. The theory of judicial departmentalism is that Supreme Court precedent is binding within the judiciary but not on other branches and other actors, who remain free to engage in their own, independent legal and constitutional analysis, even if it diverges from controlling judicial authority and sets non-judicial actors on a contrary course of action. A corollary  is that the executive is not bound to follow precedent with which he disagrees, but must obey a judgment entered against him in a specific matter.

So how does this stand-off play out?

Step One: The President, his lawyers, and the executive-branch lawyers can decide, in their own best constitutional judgment, that a President is not subject to a testimonial subpoena (which is not precisely covered by United States v. Nixon) or even that Nixon was wrong. They also can give controlling weight to non-judicial sources of advice, such as OLC opinions. And they can act on their constitutional understanding by refusing to comply with the subpoena, without being said to be "disobeying" or "ignoring" the courts or acting contrary to law or to their oaths.

Step Two: Faced with that response, the special counsel will move in federal court to enforce the subpoena. All federal courts will be bound to follow Nixon and other judicial precedent and will order the President to testify. All levels of the federal judicial hierarchy are similarly bound, unless SCOTUS wants to overrule Nixon, which I doubt, or the document subpoena/testimonial subpoena distinction is a meaningful one. Now Trump is compelled to obey. And his refusal constitutes disregard for the courts and to his oath.

A wise lawyer at Step One will be aware and will advise his client as to what will happen at Step Two, perhaps prompting different behavior at Step One. A wise political adviser might do the same. The point of judicial departmentalism is that compliance with precedent is a matter of prudence, choice, and political incentives, not legal compulsion. Legal compulsion comes only from Step Two.

Posted by Howard Wasserman on May 6, 2018 at 09:52 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Friday, May 04, 2018

Elites and elitists

This piece by Elizabeth Drew of TNR makes no sense. Drew attempts to rebut President Trump's criticism of reporters, especially the D.C. press corp, as "elitists" or "snooty elites." But there are so many problems with the argument.

Drew conflates elitist with elite--one represents a position in society, while the other reflects an attitude. One can be part of society's (or sub-parts of society's) elite without being elitist. I have heard the President and others use both terms, so it is not clear which she is responding to.

Drew cites "numerous indicators" showing journalists are not elite. These include not inheriting jobs (although a family name "might get you in a door" she concedes understadedly); not making a lot of money; not becoming famous (except for a few); working long hours; and not enjoying job security. But she never explains why those indicators define elite status. I can think of many careers that we regard as elite on some level that lack all or most of those indicators. Drew also ignores other indicators or enablers of elite status. One is education, which most D.C. journalists have. Another is some modicum of power or influence, which journalists unquestionably have, because their spoken or written words are going to be seen and read by thousands or millions of people.

There are good reasons to fight back against Trump's rants against the media. Denying the elite status of political journalists within U.S. society seems, well, elitist.

Posted by Howard Wasserman on May 4, 2018 at 02:37 PM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

Thursday, May 03, 2018

A solution for the wrong problem

At National Review, James Lucas argues argues for special procedures to limit the effects of nationwide injunctions, including automatic stays, de novo review, and some form of mandatory SCOTUS review. The problem is not nationwide injunctions, but their issuance by single district judges working within a narrow geographic area.

But the issue with these injunctions is not their nationwide scope, it is their universal application beyond the named plaintiffs  in individual actions, without class certification or broad third-party standing. So Lucas' proposals offer solutions to the wrong problem. (That is not, in fact, a problem at all. Injunctions should be nationwide, in the sense of protecting the named plaintiff everyone in the nation).

Posted by Howard Wasserman on May 3, 2018 at 02:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, May 02, 2018

Lewis & Clark faculty statement on free expression

Jeff Schmitt argues that speech norms should be different in law schools, given the style and manner of legal education in compelling students to engage with disagreeable ideas. Jeff's argument is similar to Heather Gerken's argument, last summer, explaining why we had seen fewer disruptions and counter-protests in law schools. That was before Josh Blackman at CUNY and the protest/disruption of Christina Sommers at Lewis & Clark.

Last month, the L&C law faculty issued a unanimous statement that "pluralism, professionalism, and First Amendment values are all essential to our mission, and we as a faculty reaffirm our commitment to each." Worth a read.

Posted by Howard Wasserman on May 2, 2018 at 08:49 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Tuesday, May 01, 2018

Adjudicative jurisdiction and substantive merits under the ATS

Michael Dorf explains the connection between the "only jurisdictional' understanding of the ATS and the narrowing of the judge-made substantive cause of action. Although the Court has never put it in these terms, Michael argues that it makes "internal sense" to understand the jurisdictional grant as the source of the implied right of action (a substantive, non-jurisdictional issue), so the right of action should not extend beyond the circumstances cognizable in 1789. I tried to get at the same idea in discussing Kiobel.

Posted by Howard Wasserman on May 1, 2018 at 08:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Rotations

May is upon us, and so is the start of visits from returning guest David Orentlicher (UNLV) and newcomer Justin Murray (Climenko Fellow). In addition, Adam Kolber and Derek Muller will continue their late-starting  April stint into May.

Posted by Administrators on May 1, 2018 at 08:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, April 30, 2018

Exclusive Submission: Dickinson Law Review, Volume 123

The Dickinson Law Review is now accepting exclusive submissions for Issue 1 of Volume 123. All articles submitted to the Law Review between now and May 11, 2018, at 11:59 PM Eastern Time will be evaluated and considered for publication by May 18, 2018. If you have previously submitted an article to the Dickinson Law Review, you must resubmit the article for consideration in this review.

By submitting an article via this exclusive submission track, the author agrees to accept an offer of publication, should one be extended. Articles that receive offers of publication will be published in Issue 1 of Volume 123.

To submit, please email your article manuscript in Microsoft Word format, along with your CV, to mxs1191@psu.edu. Please title the subject line “2018 Exclusive Submission Track.”

Posted by Administrators on April 30, 2018 at 05:03 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, April 26, 2018

Adler on same-day audio

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

Posted by Howard Wasserman on April 26, 2018 at 08:41 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Stand in the place where you work

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

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

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

Wednesday, April 25, 2018

Cosmic injunctions

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

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

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

What to cover and when

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

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

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

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

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

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

Tuesday, April 24, 2018

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

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

Consider:

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

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

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

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

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

Sunday, April 22, 2018

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

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

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

A few thoughts after the jump.

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

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

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

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

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

Saturday, April 21, 2018

More on PowerPoint

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

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

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

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

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

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

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

Thursday, April 19, 2018

Speeding cases

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

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

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

An even more unusual role

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

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

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

Wednesday, April 18, 2018

What is a heckler's veto?

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

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

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

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

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

Tuesday, April 17, 2018

Foley on appointing a special master in the Cohen case

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

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

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

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

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

Sunday, April 15, 2018

Naruto lives

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

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

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

Saturday, April 14, 2018

If everyone is a Nazi . . .

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

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

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

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

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

Monday, April 09, 2018

"To Kill a Mockingbird," by Aaron Sorkin

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

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

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

GILMER
Object!

TAYLOR
Counsel.

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

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

GILMER
Your Honor--

TAYLOR
That'll be all, Atticus.

FINCH
You beat up Mayella, using your left hand.

GILMER
Judge--

FINCH
You told her to lie about being raped.

GILMER
Damnit, Atticus.

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

TAYLOR

You don't have to answer that.

EWELL
You want answers?

FINCH
I think I'm entitled to them.

EWELL
You want answers?!

FINCH
I want the truth.

EWELL
You can't handle the truth!

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

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

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

FINCH
Did you order Mayella to accuse Tom of rape?

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

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

JOTWELL: Thomas on De Figueiredo on the pending case list

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

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

Thursday, April 05, 2018

Erie and litigation financing

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

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

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

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

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

Thoughts?

 

 

 

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

Class certification and universal injunctions

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

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

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

Tuesday, April 03, 2018

Yet another qualified-immunity summary reversal (Link Corrected)

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

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

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

Sunday, April 01, 2018

The danger of universal injunctions

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

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

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

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

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

Saturday, March 31, 2018

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

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

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

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

Tuesday, March 27, 2018

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

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

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

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

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

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

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

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

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

Jurisdictionality of presidential immunity

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

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

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

JOTWELL: Pfander on Nourse on statutory interpretation and democracy

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

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

Wednesday, March 21, 2018

Student suspended for uttering profanity to congressional staffer

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

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

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

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

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

Monday, March 19, 2018

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

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

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

Wednesday, March 14, 2018

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

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

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

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