Saturday, June 27, 2015

Always read beyond the headline

Admit it. How many of you see this headline--Alabama judge: Marriage ruling worse than segregation decision--and thought Roy Moore was talking about Brown?

Posted by Howard Wasserman on June 27, 2015 at 11:21 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

More of what happens next (Updated)

A follow up to this post and more details:

1) According to this story, Roy Moore is being . . . Roy Moore. He said Obergefell was worse than Plessy; continued to insist that there is no such thing as same-sex marriage in the Constitution; and he "can't say" whether same-sex marriages will happen in the state. This story shows Moore going even further around the bend, now accompanied by his wife, a conservative activist: Moore insists the Court not only lacked authority to issue the ruling, but that Ginsburg and Kagan should have recused, calling into question the validity of the decision. There is a good chance that someone in Alabama is going to be held in contempt.

2) But the same story indicates that Alabama Governor Robert Bentley said he disagrees with the decision, but he would "uphold the law of the nation and this is now the law."

3) I want to say a bit more about the remarks by Mississippi Attorney General Jim Hood that "the Supreme Court's decision is not immediately effective in Mississippi until the Fifth Circuit lifts the stay" on a district court injunction. I said this was inartfully stated, but basically right. And it goes to the basic distinction at work here, between precedent and injunction (and the question of its scope).

The Supreme Court's mandate requires district courts in four states to issue injunctions against enforcement of the laws in four states by some defendants as to certain plaintiffs. None of them are in or about Mississippi. There is an injunction barring the Governor and A/G of Mississippi from enforcing that state's ban as to two couples; that injunction is presently stayed, meaning they are not obligated to comply with the injunction and to issue licenses to the two named couples until that stay is lifted. So Hood is correct as a matter of the law of injunction.

But Obergefell is precedent, binding on all courts, even those in Mississippi, that bans on same-sex marriage are unconstitutional. So any other couple in the state could have filed a new lawsuit against Hood seeking an injunction prohibiting continued enforcement of Mississippi's ban and compelling issuance of licenses; that court would have to issue the injunction, under the binding authority of a SCOTUS decision. The judge might be swayed by the continuing Fifth Circuit stay, but perhaps not; since the stay was in place pending Obergefell, the district court might feel free to issue a new injunction now that SCOTUS has spoken. So Hood is incorrect as a matter of the law of precedent.

The point is it is not as simple as saying Hood is wrong or issuing dangerous advice, as someone says in this article. Hood is right that the existing injunction does not take effect until the stay is lifted--but that only applies to two plaintiff-couples. He is wrong that SCOTUS precedent is not yet effective in the state, as a matter of influencing a court in a new case.

According to this story, Louisiana Governor (and GOP presidential candidate) Bobby Jindal essentially made the same argument as Hood--no mandate has issued for Louisiana to issue licenses, thus Louisiana officials are under no obligation to issue licenses to same-sex couples. And like Hood, he is right, unless and until a federal judge slaps an injunction on Jindal and others.

Posted by Howard Wasserman on June 27, 2015 at 11:03 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, June 26, 2015

What happens next?

I still have not had a chance to read Obergefell, but I wanted to throw together a quick post on what is happening in the decision's immediate aftermath. This Slate piece collects responses from governors and AG's in several states; in ten states, the executives announced that they would immediately implement the decision and begin issuing licenses, which happened almost this morning and afternoon in a few places (includes photos).

Other states appear ready to at least demand that the process run its course. As a commenter on my earlier post noted, Mississippi's A/G, Jim Hood, told circuit clerks not to issue licenses; he said "the Supreme Court's decision is not immediately effective in Mississippi until the Fifth Circuit lifts the stay" on a district court injunction, which Hood suggested might take longer than many expect. This is inartfully stated, but actually correct. The Court's actual mandate is not directly binding on anyone in Mississippi with respect to anyone in Mississippi, who were not parties to the case. Hood overstates it, however, in that any new couple could initiate a new lawsuit against Hood and a circuit clerk and obtain an injunction in light of Obergefell as binding precedent. In any event, it should not take long--the attorney for the plaintiffs has already indicated his plan to file a motion to lift the Fifth Circuit stay, which should be immediately granted.

And what about Alabama, my favorite bastion of procedural nuance? No official word yet. The probate judge in Pike County announced that he would no longer issue marriage licenses to anyone, insisting that the state law empowering probate judges to issue licenses uses the word "may," giving the judge the discretion whether to issue licenses (so long as he does not discriminate). The Alabama Association of County Commissions recommended that probate judges accept applications but delay issuing licenses until resolution of both the Supreme Court mandamus and the stayed federal injunction. I expect the federal plaintiffs to quickly lift ask Judge Granade to lift her stay of the injunction, against a defendant class of all probate judges in favor of a plaintiff class of all same-sex couples; doing so will immediately bind all probate judges to issue licenses on equal terms to all couples. And I imagine someone will ask the Supreme Court of Alabama to vacate its mandamus, since its reasoning has been superseded and cannot stand after Obergefell. And if the court declines, look for someone to ask SCOTUS to stay the injunction, if not to summarily reverse it.

Stay tuned.

Posted by Howard Wasserman on June 26, 2015 at 08:41 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Marriage equality

For those of you who are inexplicably here rather than at SCOTUBlog, here is the 103-page opinion in Obergefell. Kennedy for five; dissents from each of the Chief, Scalia, Thomas, and Alito.

Posted by Howard Wasserman on June 26, 2015 at 10:08 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Thursday, June 25, 2015

Cert justified?

I think the Court got it right in King v. Burwell, but I don't have anything to say on the merits. But I do want to briefly comment on how the majority explained its cert grant and some underlying procedure in the case.

On p. 7, at the end of Part I, Chief Justice Roberts, having summarized the decision of the lower court (the Fourth Circuit), says "[t]he same day that the Fourth Circuit issued its decision, the Court of Appeals for the District of Columbia [reached the opposite conclusion in a different case." The implication is that the Court granted cert for its typical reason--to resolve this circuit split. Sup. Ct. R. 10(a).

But that description is incomplete and arguably inaccurate. Two months after both circuit panels issued their opinions and two months before the Court granted cert in King, the en banc D.C. Circuit vacated that panel decision and granted rehearing en banc. As a result, at the time the Court conferenced and granted cert in King (in November), there was no circuit split, only one court of appeals decision interpreting the statute to allow for subsidies on all exchanges. In fact, the government used this to argue against cert in King, an argument the Court obviously rejected in taking the case.* The majority opinion does not even drop a footnote to give the bigger picture.

[*] Once SCOTUS granted cert in King, the D.C. Circuit held the Halbig appeal in abeyance, pending King.

None of this matters, of course. Cert in King was certainly justified as an important question of federal law that should be settled by SCOTUS. Sup. Ct. R. 10(c). But then why even mention the circuit split that really wasn't? Or why not offer the full procedural context and the fact that the split went away. And might the answer have something to do with suspicions about the decision of the D.C. Circuit (a court with a majority Democratic appointees) to vacate the panel?

Posted by Howard Wasserman on June 25, 2015 at 02:31 PM in Howard Wasserman | Permalink | Comments (4)

Singletons in film

A quick non-law post, apres les deluge of posts on ACA subsidies and disparate impact.

Much deserved praise is being heaped on the new Pixar film Inside Out, which is setting all sorts of box-office records and gaining all sorts of critical acclaim. It has earned praise for (finally) featuring a lead female character (arguably 3 of them) who is not a princess, who likes sports, and who seems like a typical kid. It is a comprehensible visualization of how emotions and the brain genuinely work--the producers consulted with neuroscientists, psychologists, and other smart people, who have talked about what the film captures. And it makes parents cry about their children (especially daughters) growing up.

I want to mention one side point, which is not central to the story or its consequences, but still worth noting: Riley, the 11-year-old lead character, in whose head the action takes place, has no siblings (I hate the term "only child" and find "singleton" better, if essentializing). And this is presented in the film without remark or commentary. This is a story about a "typical" preadolescent girl who is happy, good natured, well-adjusted, close with her parents, has friends--all traits not associated with the stereotype of the spoiled or lonely singleton (all of which have been debunked, but which still carry cultural resonance). What she experiences in the film--as she becomes moody and isolated--is depicted as the ordinary work of ordinary emotions and growing up. And I was happy to see that the filmmakers did not feel the need to throw in an annoying younger brother, either for comic relief or to create a "complete" family.

Parents and one child can a family, with a happy child, make. I just like to see pop culture catch up with that idea. Or better yet--not even have to mention it.

Posted by Howard Wasserman on June 25, 2015 at 10:32 AM in Culture, Howard Wasserman | Permalink | Comments (2)

Wednesday, June 24, 2015

Fifty Years of Criminal Procedure – the Subject and the Casebook

The following guest post comes from regular reader and commenter Orin Kerr (GW and The Volokh Conspiracy) and is sponsored by West Academic.

Fifty years ago, in 1965, a young professor named Yale Kamisar paired with a more established professor named Livingston Hall to publish a new casebook that introduced a new academic field. That casebook, Modern Criminal Procedure, was the first casebook about a then-new field of criminal procedure. When the first edition was published, the Warren Court was in the midst of its so-called “criminal procedure revolution.” Mapp v. Ohio was four years old, and Gideon v. Wainright was two. Massiah v. United States and Escobedo v. Illinois were hot off the presses (literally). Miranda v. Arizona would follow the next year, with Katz v. United States the year after that and Terry v. Ohio the year after that.

The many editions of the Kamisar casebook have traced and influenced the Supreme Court’s development of the field ever since.

This summer marks the publication of the 14th Edition of the Kamisar casebook. Kamisar remains an active author, as are Wayne LaFave and Jerold Israel, both of whom joined the casebook in 1969 for the 3rd edition. More recently, three new co-authors, Nancy King, Eve Brensike Primus and I have joined the book. In the new 14th Edition, the authors made extra efforts to make the book more user friendly while retaining its comprehensive coverage. The new book has slimmed down a bit, and the authors have added an online teacher’s manual.

Both Yale Kamisar and Jerold Israel will be discussing their work on the casebook, and the evolution of the field of criminal procedure more broadly, at the upcoming Southeastern Association of Law Schools conference, July 27 – August 2 in Boca Raton, FL. Here’s the panel description for those interested:

Teaching Criminal Procedure: Fifty Years of Experience Courses in Criminal Procedure have now been taught at U.S. law schools for half-a-century. Over that time, the nature of these courses has changed and evolved. The speakers on this panel, some of whom have taught Criminal Procedure from the beginning, will discuss how the course has grown and evolved over the decades.

Moderator: Professor Stephen Singer, Loyola University New Orleans College of Law

Speakers: Professor John Burkoff, University of Pittsburgh School of Law; Professor Steven Friedland, Elon University School of Law; Professor Jancy Hoeffel, Tulane University Law School; Professor Jerold Israel, University of Michigan Law School, University of Florida, Levin College of Law; Professor Yale Kamisar, University of San Diego School of Law, University of Michigan Law School; Professor Ellen Podgor, Stetson University College of Law

Posted by Howard Wasserman on June 24, 2015 at 11:37 AM in Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

Monday, June 22, 2015

Walker meets Wooley

In last week's Walker v. Sons of Confederate Veterans, SCOTUS held that specialty license plates constitute government speech, meaning the state can exclude or include whatever groups or messages it wishes, regardless of how viewpoint discriminatory it is being. This basically resolves controversies currently pending in several states over pro-choice/anti-choice license plates--the state can do what it wants. It can allow for both messages, exclude both messages (albeit for different reasons than the Second Circuit relied on in upholding New York's blanket exclusion of messages relating to controversial political subjects, such as abortion), or exclude one and include the other. The Fourth Circuit is currently considering a challenge to North Carolina's program, which offers a "Choose Life" plate but rejected a plate in support of reproductive freedom. Walker ends that dispute and requires that the state's program be upheld The Fourth Circuit last year held invalidated North Carolina's program allowing for a "Choose Life" plate but not a corresponding plate in favor of reproductive freedom; a cert petition is pending.

So is there any way for a person in North Carolina to use a license plate to display a message in support of reproductive rights when the state refuses to allow that specialty plate? How about this: Pay for the "Choose Life" plate, then make a conspicuous show of placing tape or something else to cover the anti-choice logo. The First Amendment allows a driver to cover the state-speech motto on the plate, as the state cannot compel a driver to serve as a "'mobile billboard'" for the State's ideological message." Under Walker, "Choose Life" is the state's ideological message for Wooley purposes, which a driver cannot be compelled to display. The obvious way not to display the state's message is to not purchase the "Choose Life" plate, which the state does not compel (unlike New Hampshire's general "Live Free or Die" plate). On the other hand, if the state did compel that as its sole license plate, a person unquestionably could cover the logo.

It follows that First Amendment should also protect a person who combines those options: Pay the extra money for the specialty plate specifically so she can cover the state's message.* Covering a state-sponsored message with which a person disagrees involves a protected message that is different from declining to purchase and display that message in the first instance. Additional meaning flows from the person not just counter-speaking to the state message, but using the state message as the vehicle for the counter-speech. For a stark comparison, an individual is not obligated to purchase or display an American flag, although she may choose to purchase it so she can set it on fire. Each presents a different message that a speaker is entitled to put forward. Given that difference, the state should not be able to successfully argue that the driver lost her right to cover the slogan, a la Wooley, because she willingly paid extra for the plate with that slogan.

[*] There is a separate question of whether anyone would want to do this. My understanding is that in some states, a portion of the money for some specialty plates goes to the cause reflected on the plate. So a supporter of reproductive freedom will not buy the "Choose Life" plate, even to make the statement of covering the logo, if the money is going to anti-choice causes.


Posted by Howard Wasserman on June 22, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Thursday, June 18, 2015

First Amendment Day at SCOTUS

SCOTUS on Thursday decided the final free speech cases of the Term.

In Walker, the Court held that the messages on specialty license plates constitute government speech rather than private speech is a government-created public forum. The Court split 5-4; Breyer wrote for Thomas, Ginsburg, Sotomayor, and Kagan, while Alito dissented joined by the Chief, Scalia, and Kennedy.

When this issue first began bubbling up in the '90s, my quick conclusion (even before Summum, the case at the heart of the dispute between the majority and the dissent) was that specialty plates were government speech. Governments used these plates for their own messages ("Live Free or Die" "Famous Potatoes" "The Lone Star State") and the specialty-plate programs simply expanded the range of message government would adopt and present as its own.* And a viewer can understand that a driver with one of those plates agrees with that message.

[*] By contrast, I believed--and still do--that alpha-numeric codes used in vanity plates constitute individual speech in a limited public forum that should be subjected to closer First Amendment scrutiny.

But Alito's dissenting opinion was quite convincing, particularly in that it was an excellent and very accessible read. I was particularly moved by the two hypotheticals he presented--1) an electronic highway billboard containing some government messages, but on which government opens space for private speakers to rent space for their own messages and 2) a public-university campus bulletin board or listserv which includes some government messages and is open to private messages. Alito's point is that, under the majority's analysis, these speech locations could as easily be called government speech and government "adoption" of certain paid-for private messages.

The second decision is Reed v. Town of Gilbert, holding that a municipal sign ordinance that imposed less-favorable conditions on "directional" signs compared with "ideological" or "political" signs was content-based and did not survive strict scrutiny. Thomas wrote for the Chief, Scalia, Kennedy, Alito, and Sotomayor, with Alito, joined by Kennedy and Sotomayor also adding a concurrence; Kagan, writing for Ginsburg and Breyer, concurred only in the judgment, with Breyer adding his own concurrence-in-the-judgment. Based on some listserv discussions, this could line up as a significant case on the ground.

The cornerstone of Thomas' opinion is a broad construction of what constitutes a content-based (in the sense of subject-matter-based) restrictions subject to strict scrutiny. He identified four categories of content-based regulations: 1) Those that are content-based on their face by defining the regulated speech by its subject-matter; 2) those that define the regulated speech by its function or purpose; 3) those that are facially content-neutral, but that cannot be justified without reference to the content of the regulated speech (that is, the underlying harms only arise because of the content of the speech); and 4) those that are facially content-neutral, but that were adopted by the government because of disagreement with the message conveyed by the regulated speech. For those who view the content-neutrality requirement as an important means of protecting First Amendment interests, there is a lot to like in this. If Thomas is serious about this taxonomy, it could be used to look under the hood of a significant number of seemingly content-neutral regulations that really were enacted to limit certain speech and certain speakers, especially speech and speakers associated with a particular location.** The last two categories also will prevent government from pleading "pure" legislative motive so as to avoid strict scrutiny. [Update: Some email discussions raise the possibility that Thomas's taxonomy eliminates the "secondary effects doctrine" for regulating nude dancing and other sexually explicit speech, one of the clearest examples of a facially content-based regulation treated as content-neutral]

[**] While I hate playing amateur psychologist, one obvious example would be the buffer-zone and other regulations on reproductive-health clinic protests, such as in McCullen and Hill, which were treated as content-neutral, but which would seem to fall into the fourth category.

Kagan, Ginsburg, and Breyer were troubled by this seeming expansion of non-neutrality, perhaps because of concerns for what this might mean for commercial regulations or other innocuous regulations that do not pose meaningful threats to public debate (for example, allowing for permanent "Hidden Driveway" signs but not other permanent signs). Breyer even offered a new, more even balancing test placing less of a thumb on the scale of free speech, asking whether the harm to First Amendment interests is disproportionate in light of the state's regulatory interests (he offered a similarly soft balancing test in his concurrence in the judgment in Alvarez). Kagan insisted that it was unnecessary to determine whether the ordinance was content-based, since it could not even survive intermediate scrutiny as a content-neutral regulation; the ordinance was both overbroad and under-inclusive and the government offered no reasons for the distinctions or limitations it imposed.

Posted by Howard Wasserman on June 18, 2015 at 01:25 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Tuesday, June 16, 2015

Veep does the Constitution

Veep is a hilarious show, described by one former Obama adviser as the most accurate depiction of Washington and definitely the most hilariously profane (reflecting the sensibilities of creator, and departing showrunner, Armando Iannucci). The season finale, which aired on Sunday, takes place on Election Night and ends on a constitutional cliffhanger related to presidential elections and presidential succession, a common theme for political TV shows.

More (with spoilers) after the jump.

The election ends in a 269-269 Electoral College tie,* sending everyone scrambling to figure out, and discuss in expository dialogue, what happens; it became a  mini Con Law lecture, although there did not seem to be a practicing lawyer in the room. The show explains that the House selects the President, voting by state delegation, and the Senate selects the Vice President, voting as a body of the whole; they get that part right. But then the narrative reveals uncertainty over numerous close House races** and over what the make-up of the House will be, with everyone raising the possibility of a tie in the House. What happens then? The show posits that the Vice President becomes President. This sets-up the dramatic twist that Meyer's running mate, Tom James (who is seemingly more popular and more competent than Meyer***), will "backdoor" his way into the top spot; one of the last beats in the episode has James asking Meyer to serve as his VP.

[*] This allows for a nice riff about the stupidity of having an even number of electors--blame the Twenty-third Amendment. The tie also results from a bizarre electoral map for current politics. Selina Meyer, whose party is unnamed but who seems to be a Democrat, wins Virginia, Pennsylvania, Florida, and Wisconsin, but loses Minnesota and Ohio. 

[**] Also unlikely in current politics, given gerrymandering practices creating vast numbers of "safe" seats.

[***] And ambitious. Earlier in the episode, James insists that, in addition to serving as VP, he wants to be Secretary of the Treasury. I do not believe there is a constitutional bar to the VP holding a cabinet position, although I cannot see the Senate going for it.

That last part seems both constitutionally wrong and factually unlikely, at least as presented. So the mini Con Law lecture did not quite get it right.

First, whatever the uncertainty of the makeup of the next House,the possibility that twenty-five state delegations will be controlled by one party and twenty-five controlled by the other seems like an implausible logical leap. It would be a fun narrative twist to actually show happening; it just seemed a strange place for Meyer's aides to go in predicting right then. Second, and related, why does nobody consider the possibility of a tie in the Senate (historically, a more likely occurrence) or even of James losing in the Senate (if the opposing party has a majority). It is not discussed, even to explain away that the Senate make-up is not unknown and that the Meyer/James party will control the Senate.

Third, under the Twelfth Amendment, if the House has not yet chosen a President by the appointed date (as further amended, January 20), "the Vice President shall act as President, as in the case of the death or other constitutional disability of the President." The Twentieth Amendment further provides that "[i]f a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified." In other words, contrary to what the show says, James would be Acting President, not President; he would not enjoy an inauguration, he would not be listed in the line of Presidents, and he certainly would not be able to appoint a Vice President.

He also would act as President only until "a President shall have qualified," that is, until the House is finally able to resolve any stalemate and pick the President. This presents the fourth problem with the show's constitutional narrative--the assumption that there would be one House vote, it would end in a tie, and that would be the end of the discussion. But the House may (and will) take multiple votes and engage in a lot of politics to resolve the question--it took 36 ballots and political pressure from Alexander Hamilton for the House to elect Jefferson over Burr in 1801. So even if the initial vote were tied (again, unlikely), the House likely would not stop at a tie and leave an elected VP to serve four years as acting President; the House would feel public and political pressure to continue negotiating and holding votes until someone is elected President from between the two**** top-of-the-ticket candidates for whom the public had just cast millions of votes.

[****] The Twelfth Amendment provides that the House may consider up to the top three Electoral College vote-getters, unnecessary here, since no third-party candidate received College votes. The show might have tried to really go all the way on E/C confusion by throwing in a third candidate who won two three-elector states (one from each candidate), producing a tie without a possible majority.

None of which is to dampen my enthusiasm for the show. But if the writers are deliberately showing a constitutional possibility, I just want them to get the small details right (especially when those details involve legal issues I am interested in).

Posted by Howard Wasserman on June 16, 2015 at 09:31 AM in Constitutional thoughts, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Friday, June 12, 2015

Three-judge district courts in constitutional reform litigation

At Balkinization, David Gans discusses the use of three-judge district courts in conservative-leaning impact litigation challenging campaign-finance reform and voting rights rules. Gans argues it reflects "a long term conservative strategy for getting blockbuster campaign finance and voting rights cases to the Supreme Court. It is a strategy that has paid off time and again as John Roberts and his conservative colleagues have made it easier for corporations and the wealthy to spend unlimited sums of money on elections, and harder for Americans to vote in them."

I do not buy the argument that the three-judge district court procedure is in any way relevant or to blame for the doctrinal trends Gans is decrying. First, as Gans notes, the most significant recent case--Shelby County--did not come from a three-judge court, but SCOTUS took the case anyway and a narrow majority gutted the Voting Rights Act. Second, and more importantly, the three-judge district court does not benefit conservatives or liberals as much as it benefits whoever happens to be bringing the legal challenges. As Gans himself acknowledges, three-judge district courts were a central feature in litigation challenging Jim Crow and other discriminatory policies during the Civil Rights Era, with the NAACP and other litigators designing legal strategy specifically to get into a three-judge court; this  enabled plaintiffs to avoid hostile individual district judges in favor of a broader panel and to get cases to SCOTUS more quickly. But that current challenges are being brought by conservatives and creating constitutional doctrine that Gans obviously dislikes does not reflect anything about the wisdom (or lack thereof) of the three-judge process. If we accept constitutional impact litigation as a legitimate use of the courts, it cannot matter who is bringing the challenge or the positions they are urging; the complaint can only be about the doctrine, not the process that got us there.

For the best history of the three-judge process, including its role during the Civil Rights Era and its restriction in the '70s (based on the perception that they no longer were necessary), see Michael Solimine's 2008 article.

Posted by Howard Wasserman on June 12, 2015 at 12:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, June 11, 2015

The Chief, the First Amendment, and the assignment power

At CoOp, Ron Collins writes about Chief Justice Roberts' emergence as the Court's leading voice on the First Amendment, a voice that "is already towering over that of others on the Court." Collins emphasizes the number of free speech majority opinions Roberts has authored in his decade on the Court--13, far more than the next two Justices (Scalia and Kennedy) combined, usually (with several notable exceptions) upholding the free speech claim, whether for better or worse.

But as I wrote in a comment to Ron's post, counting majority opinions is confounded somewhat by the fact that, as Chief, Roberts wields the assignment power whenever he is in the majority. And one reason he writes so much more than any other Justice is that he keeps assigning these cases to himself. Obviously, Roberts must hold a generally highly speech-protective vision of the First Amendment (perhaps Collins is correct that it is the most protective on the Court) in order to be in the majority and thus in position to assign the opinion. But Chief Justice Warren also was consistently in the majority in free speech cases, also usually to uphold the constitutional claim. The difference is that Warren assigned many of these cases to Justice Brennan, which enabled Brennan to emerge as the Court's second great First Amendment voice.

Roberts could as easily have assigned some of these cases to, for example, Kennedy--who has joined most of Roberts' free speech opinions and thus shares a similar First Amendment vision--in the same way. That he has not done so could tell us many different things. It could be about Roberts' unique views of the First Amendment and his specific desire to carry the First Amendment mantle. But it also could be about Roberts' unique views of the assignment power.

Update: A reader shares this 2013 Judicature essay by Linda Greenhouse exploring Roberts' self-assignment practices, which notes the prevalence of First Amendment (including religion) cases that Roberts has kept for himself.

Posted by Howard Wasserman on June 11, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (8)

Wednesday, June 10, 2015

One-stop Civ Pro shopping

I am not sure it would be possible to write a better Civ Pro exam than Newberry v Silverman, a recent decision from the Sixth Circuit (H/T: Alex Stein of Cardozo). The case has almost everything we cover in the 1L course--removal, transfer of venue following removal, personal jurisdiction (and its effect on transfer of venue), choice of law following transfer, FRCP 9(b) pleading for fraud, and the granting of leave to amend factually insufficient pleadings.

Posted by Howard Wasserman on June 10, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, June 09, 2015

JOTWELL: Thornburg on Schwartz on the information benefits of discovery

The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Joanna C. Schwartz, Introspection Through Litigation (Notre Dame Law Review), which explores the ways that discovery enables and incentivizes institutional litigants to examine and change their own actions and processes. I was particularly intrigued in how the substantive rules surrounding § 1983 litigation (notably Monell) actually undermine those information-gathering and "introspection" incentives.

Posted by Howard Wasserman on June 9, 2015 at 08:51 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, June 05, 2015

The return of summary adjudication?

For a long time, SCOTUS had a great deal of mandatory jurisdiction. Prior to 1976, actions to enjoin enforcement of constitutionally defective federal and state laws were heard by three-judge district courts with direct and mandatory review by SCOTUS. Prior to 1988, SCOTUS had appellate (mandatory) jurisdiction over state court judgments that invalidated federal statutes or upheld state statutes in the face of federal (usually constitutional) challenge. This obviously played some role (how much is an empirical question that I would like to explore someday) in the Court's docket being significantly larger from the '60s through the mid-'80s. One way the Court handled that larger docket was through summary and memorandum dispositions (both to affirm and to reverse) of some of these mandatory-jurisdiction cases (again, the numbers are for future exploration).

For now, I am wondering whether the Court's seemingly increasing practice of summary grant-and-reverse decisions--part of what Will Baude described as the Court's Shadow Docket and which Richard further discussed--reflects a return to this practice. Monday's decision in Taylor v. Burke (which I discussed Wednesday) is the latest example of the practice, which is especially prominent in certain types of cases (notably § 1983/qualified immunity and habeas) involving certain types of outcomes (predominantly, although not always, where the government/officer lost in the lower court). As before, summary procedures allow the Court to speak to and resolve a greater number of cases, even if not in the fullest fashion.

The difference is that the earlier practice was (at least arguably) necessary to handle the heavier caseload that Congress had imposed on the Court; the Justices could not address so many cases if they had to give plenary review to each of them. On the other hand, necessity does not dictate the current practice--the Court is not doing this because it has no other way to handle these cases or because it would be unduly burdened by giving plenary review to more cases. Instead, it reflects the Justices' strategic choice to reach more cases and issues, often towards a particular substantive end, but without expressly acknowledging an expansion of its jurisdiction or its certiorari practices and without, as Baude puts it, their "otherwise high standards of transparency and legal craft."

Posted by Howard Wasserman on June 5, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, June 03, 2015

Next Stop: Crazyville, AL

(H/T for the title: My colleague, Tom Baker)

As I believe I have written here before, my law school mentor, Marty Redish, used to tell us that when our legal analysis matched our political preferences, we should go back and rethink the legal analysis [ed: To be clear: The conclusion may remain the same, but we should do it again to be sure.] I thus can feel a slight sense of academic pride in defending the various moves by Roy Moore and other officials and advocates in Alabama--people with whom I agree on virtually nothing--trying to stop marriage equality.

But this move about ends that. The relators in the state mandamus action have moved for "Clarification and Reaffirmation" of the mandamus order, in light of Judge Granade's decision to certify and enjoin plaintiff and defendant classes, effectively making the federal injunction statewide. The relators argue that Judge Granade has made her injunction superior to the state mandamus, that she overruled the state supreme court, that she created an unnecessary conflict, and that her decision is a "direct assault" and "unprecedented attack" on the mandamus order and on the state judiciary. In other words, the identical criticisms that people on the other side leveled against the relators and the mandamus given the existing federal injunction--but if those arguments were wrong then (and they were), don't make them now.. They also argue that Judge Granade should have abstained in deference to the state proceeding, particularly under Burford. More problematic is the rhetoric in the motion, which uses some form of the word "legitimate" or "illegitimate" around fifteen times in seventeen pages, both in describing Judge Granade's decisions, as well as in describing the likely eventual decision from SCOTUS.

Ulimately, I am not sure of the point of the motion. No one doubts the mandamus remains in effect. And no one doubts that probate judges might find themselves under conflicting orders (once the stay on the class injunction is lifted), which is inherent in concurrent jurisdiction and not such an unusual occurrence (especially given that abstention is always discretionary). And the relators are genuinely deluded if they believe, as they suggest in a long footnote, that the mandamus will have any effect on SCOTUS's decisionmaking in Obergefell.

Posted by Howard Wasserman on June 3, 2015 at 12:35 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

What hath Pearson wrought?

Michael Dorf and Scott Michelman comment on Monday's summary grant-and-reverse in Taylor v. Barkes, another qualified immunity case. The Court held unanimously that the right at issue (to have jails create and implement sufficient suicide screenings) was not clearly established; no SCOTUS precedent established such a right, the lower courts were divided, and Third Circuit precedent, even if it could clearly establish, was not on point. The analysis sounded very much like San Francisco v. Sheehan, which Richard discussed at the time.

I want to pull on a small thread that both Michael and Scott raise--how 2009's Pearson v. Callahan makes Taylor (and other cases) possible. Pearson overruled Saucier v. Katz, rejecting the rigid "order of battle" in which a court must first decide whether the plaintiff's right was violated on the facts at hand (on summary judgment or in the complaint) before considering whether that right was clearly established. Pearson unanimously held that, while this order of battle is typically appropriate, it is not required. A court may save judicial resources and time by deciding that a right is obviously not clearly established without getting into the weeds of a possibly difficult constitutional question. It is not surprising that lower courts have taken Pearson at its word and regularly assume a violation and reject the right as not clearly established (I discuss two examples from the Fifth Circuit, although with a focus on summary judgment analysis, here).

What is perhaps unexpected (I certainly did not anticipate it) is how the Justices themselves have used Pearson. It offers a simple, cheap, and powerful tool for protecting law enforcement officers and other government officials from judgments* the Justices regard as erroneous, without expending the time and resources on plenary review, necessitating substantive constitutional lawmaking (which Michelman discusses as something that can cut for or against civil rights plaintiffs), or violating the Court's self-imposed limit against granting plenary certiorari review solely for error correction. Pearson enabled the summary reversal in Taylor; the Court could get the defendants out from under the adverse decision in six pages, with little work and no need to engage in substantive Fourth or Fifth Amendment analysis. It similarly enabled Sheehan; the Court could hang onto and quickly resolve the "clearly established" issue, even while DIGing or avoiding the substantive issues and without having to really address the cert.-worthiness of that issue standing alone.

[*] Actually, not even judgments in most of these cases, but the erroneous denial of summary judgment or 12(b)(6) and the burden of having to litigate any longer.

Posted by Howard Wasserman on June 3, 2015 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, June 02, 2015


June is already two days old, so my apologies for being slow getting started.

For June, we have returning guests Hadar Aviram (Hastings), Andrew Siegel (Seattle), Deb Ahrens (Seattle), and Aaron Caplan (Loyola-LA). And joining us for the first time are Corinna Lain (Richmond), Megan LaBelle (Catholic), and Seth Davis (Irvine). Welcome (or welcome back) to all.

And a final thank you to our May visitors.

Posted by Howard Wasserman on June 2, 2015 at 10:33 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, June 01, 2015

What took so long?

The waiting is over, although still no indication of cause: SCOTUS finally decided Elonis v. US, six months to the day after argument. As expected, the Chief wrote the opinion, deciding the case entirely on statutory grounds and declining to reach the First Amendment question. Justice Alito concurs in part and dissents in part, Justice Thomas dissents.

Still working my way through the opinion. I may have more to say later, including perhaps some speculation about why what ended up as a statutory case took so long.

Posted by Howard Wasserman on June 1, 2015 at 11:37 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, May 30, 2015

Killing PowerPoint

This essay explains why PowerPoint should be banned and then killed, using PowerPoint slides to illustrate. I especially like the mocking "PowerPoint Karaoke" shows.

My experience at a conference last week leads me to one more thought: If the audience could follow and understand what you are talking about even without the PowerPoint, then you do not need it and should ditch it.

I was the third paper on a three-person panel. I was presenting my empirical study of the infield fly rule, which includes a number of tables, a photograph, and several charts marking the location of batted balls. The talk would be utterly incomprehensible without the slides (it may not be comprehensible with them, but that is another story). I cannot talk about the conclusions to draw from the location of a batted ball unless people can see where the batted ball is; I cannot talk about five seasons worth of data in four different game situations without the audience being able to look at the numbers in a chart.

Unfortunately, the projector was not working initially. The second presenter still managed to get through the talk perfectly clearly, which may prove the point. The moderator whispered that I should "do my best" without the slides, although I cannot imagine what that would have entailed. But the moderator thought it was possible, which shows that most PP is supplemental to the talk at best,  unnecessary at worst, and likely little more than extraneous in the main run of cases.

Fortunately, they managed to get things working right before I was to start, so I only had to deal with the threat of the other great risk of using technology--that likelihood that it will not work.

Posted by Howard Wasserman on May 30, 2015 at 06:12 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, May 26, 2015

Whither Elonis?

Another SCOTUS opinion day (and possibly another opinion week) has passed and still no Elonis v. United States, the true threats case argued on December 1. It is all-but-certain that the Chief has the opinion (he is the only one who has not released a majority opinion from the December sitting), which instinctively leads me to believe that the petitioner is going to win. But what could be taking the Court so long? And does the six-month wait hint at anything?

Conversations with some First Amendment colleagues have me thinking that the opinion is potentially significant to current free speech controversies over "hate speech," such as racist speech on campus or the anti-Islam messages of AFDI, etc. These controversies have shown that incitement and fighting words as categories of unprotected speech have been so substantially narrowed as to not provide a meaningful check against hateful speech (which I obviously do not find problematic, but many people do). A broad conception of "true threats"--for example, if the threatening nature is defined by what a reasonable listener would conclude rather than what the speaker subjectively intended--potentially fills that gap. On that former conception, the hypothetical that some have proferred in which the Oklahoma SAE bus stopped in front of a Black fraternity and sang a line such "you can hang them from a tree" potentially becomes an unprotected true threat.

Speaking of expansive applications of true threats, this Slate piece by David Cohen (Drexel) and attorney Krysten Connon discusses the recent death and legacy of Neil Horsley. Horsley was the founder of the "Nuremberg Files" website, which published personal information about doctors who perform abortions; posted photos of doctors in "WANTED" posters and called for justice against abortion providers akin to the justice meted against the Nazis at Nuremberg; and tracked those who had been wounded (by graying out their names) or killed (by striking through their names). A divided en banc Ninth Circuit affirmed a multi-million dollar judgment in favor of Planned Parenthood, concluding that the web site did constitute a true threat of violence against abortion providers. The court applied a "reasonable speaker" test, which asked whether a reasonable speaker would foresee that those to whom the message was directed would interpret as a serious expression of intent to harm.

Posted by Howard Wasserman on May 26, 2015 at 11:58 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Law students’ most valuable experiences put them in the role of lawyer

The following post is from Paula Schaefer (Tennessee) and is sponsored by West Academic.

I spent the past three years chairing the review of the 1L curriculum at my law school, the University of Tennessee College of Law. As part of our committee’s research, we surveyed alumni about the law school classes and experiences that were most valuable to them in practice. Time and again, our alumni responded with stories about working in the law school’s clinics, writing briefs and making arguments in moot court competitions, and taking simulation-based classes like trial practice and legal writing.

As a civil procedure professor, I noted that no one listed “civil procedure” in response to our question about most valuable law school experiences. Even though many of their best experiences were litigation-related, civil procedure did not make the cut.  But it was not just civil procedure that was absent. Doctrinal classes were rarely listed in response to the survey.   

What is the difference between a traditional doctrinal class and the classes remembered (and used in practice) by our alums? The vast majority of “most valuable experiences” placed students in the role of lawyer. In those settings, students started acting like and feeling like lawyers. The experiences noted in response to the survey were transformative, and doctrinal classes generally did not fit the bill.

Integrating skills training into doctrinal classes – even first year classes - can provide students with a richer learning experience, akin to the experiences our alums found significant in practice. To place students in the role of lawyer, professors can develop their own materials or use one of the many books now on the market. In my Civil Procedure book in West Academic Publishing’s Developing Professional Skills series, students are asked to draft an answer based on information learned in a client interview, use Twombly and Iqbal to prepare an argument for dismissal of a counterclaim, negotiate the return of an inadvertently disclosed document, and address other simulated problems related to civil procedure. Self-assessment, peer feedback, and group discussion make it possible to complete these exercises in a large class.

These assignments do not displace the law, but provide students context to understand the law. In course evaluations, my students often note these mini-simulations as something that enhanced their learning in the class. Even if my students do not remember civil procedure as one of their most valuable law school experiences, I hope they will remember it as a course that helped them begin to understand the law and what it means to be a lawyer.

Posted by Howard Wasserman on May 26, 2015 at 11:16 AM in Howard Wasserman, Sponsored Announcements | Permalink | Comments (1)

LSA Panel in Memory of Dan Markel

At 11:30 a.m. this Friday at the Law & Society Association Annual Meeting in Seattle, there will be a Service Panel, entitled Combining Academic Work and Social Media Presence, held in Memory of Dan Markel. Panelists include former GuestPrawf Hadar Aviram. We hope any Prawfs authors and readers who are in Seattle can attend.

Posted by Howard Wasserman on May 26, 2015 at 12:25 AM in Article Spotlight, Blogging, Howard Wasserman | Permalink | Comments (1)

Saturday, May 23, 2015

Preclusion, ascertainability, and civil rights classes

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

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

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

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

My fuller thoughts after the jump.

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

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

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

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

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

Does this resolve the problem?

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

Thursday, May 21, 2015

Class certifcation in Alabama SSM litigation

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

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

And she certified a defendant class of

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

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

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

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

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

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

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

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

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

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

Monday, May 18, 2015

CFP: 2015 Texas Legal Scholars Workshop

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

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

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

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

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

Where: University of Houston Law Center, 4800 Calhoun Road, Houston, TX 77004 (

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

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

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

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

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

Questions:    Douglas Moll at
                        Nathan Cortez at

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

Justice Scalia was not pleased

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

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

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

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

Sunday, May 17, 2015

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

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

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

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

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

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

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

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

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

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

Wednesday, May 13, 2015

Muslim cartoons and Nazis in Skokie

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

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

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

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

JOTWELL: Coleman on Carroll on class action reform

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

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

Tuesday, May 12, 2015

More catalyzed fans

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

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

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

Move to Strike?

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

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

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

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

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

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

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

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

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

Saturday, May 09, 2015

The First Amendment's Burden of Persuasion

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

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

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

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

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

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

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

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

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

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

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

Friday, May 08, 2015

Is public litigation better than private litigation?

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

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

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

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

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

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

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

Thursday, May 07, 2015

New York Times joins ACLU in giving up on free speech

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

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

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

Twelve Angry Men Inside Amy Schumer

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


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

Wednesday, May 06, 2015

A vigorous defense of free speech

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

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

Tuesday, May 05, 2015

The next Erie/Hanna issue for SCOTUS?

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

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

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

Walk-off Infield Fly Rule

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

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

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

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

Monday, May 04, 2015

The Federalist Structure of Trademark Law Fosters Robust Public Debate

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Sunday, May 03, 2015

Scalia's Joke

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

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

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

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

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

Friday, May 01, 2015


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

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

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

Thursday, April 30, 2015

Upon further review . . .

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

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

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

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

Shutting down the forum

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

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

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

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

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

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

Wednesday, April 29, 2015

A new wrinkle on now-invalid injunctions

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

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

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

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

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

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

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

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

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

Fontana and Braman empirically test the countermajoritarian difficulty

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

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

What if SCOTUS rejects marriage equality?

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

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

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

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

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

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


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

Tuesday, April 28, 2015

Aesthetic sports rules

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

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

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

Monday, April 27, 2015

Anniversary Topic # 4: What does the future hold?

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

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

Sunday, April 26, 2015

Baseball reaches historic milestone


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