Thursday, March 31, 2016
Welcome to April.
Thanks to all our March visitors, who may be sticking around for a few extra days.
For April, we welcome Sam Bagenstos (Michigan), Andrew Ferguson (UDC), Stuart Ford (John Marshall-Chicago), Amy Landers (Drexel), Michael Rich (Elon), and Chris Walker (The Ohio State). And Eric Carpenter (FIU) has two more episodes of Serial to go.
Also, it's about time to begin lining up visitors for next year, beginning in July. If you are interested in a month-long guest stint, let me know.
Wednesday, March 30, 2016
JOTWELL: Thomas on Coleman on efficiency
The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Brooke Coleman's The Efficiency Norm (B.C. L. Rev.), which explores the way the concept of efficiency has been defined and applied in civil litigation.
Tuesday, March 22, 2016
Debating the Infield Fly Rule in Penn Law Review
In December, Penn Law Review published A Step Aside: Time to Drop the Infield Fly Rule and End a Common Law Anomaly, by U.S. District Judge Andrew J. Guilford and his law clerk, Joel Mallord. While there have been rumblings in many places against the Infield Fly Rule, this was the first full, sustained scholarly critique of the rule. My response, Just a Bit Aside: Perverse Incentives, Cost-Benefit Imbalances, and the Infield Fly Rule, has now been published on Penn Law Review Online.
Kar and Mazzone on Why President Obama Has the Constitutional Power to Appoint Scalia's replacement
Robin Kar and Jason Mazzone (both of Illinois) have posted Why President Obama Has the Constitutional Power to Appoint--and Not Just Nominate--a Replacement for Justice Scalia to SSRN. The abstract is after the jump.
The opportunities that SSRN, Law Review Supplements, blogs, and other sites provide for this type of immediate-and-scholarly work is a boon to legal scholarship.After Justice Antonin Scalia’s recent death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they will not consider or vote on any replacement nominees from the current President. In doing so, they have taken a position that may be constitutionally problematic in ways that have not yet been fully appreciated. Now that President Obama has nominated Judge Merrick Garland to the Supreme Court, this problem requires greater attention.
The crux of the problem is that an outright refusal on the part of the Senate to consider any nominee from President Obama arguably works a delegation of an elected President’s Supreme Court appointment power to an unknown successor. While the Appointments Clause of the Constitution allows Congress to delegate a President's appointment power in certain instances, it does not permit delegation with respect to Supreme Court appointments. Hence this delegation raises a potential problem of separation of powers. Historical practice also cautions against any effort to delegate to a future President the authority to nominate and appointment a member of the Supreme Court. We show that there are 104 cases in which an elected President has faced a vacancy on the Supreme Court and began the appointment process prior to the election of a successor. In all 104 cases, the sitting President was able to both nominate and, with the advice and consent of the Senate, appoint a replacement Justice. We explain why this is a better reading of historical precedent than any limited to consideration of the last 80 years. Hence, constitutional text, structure and history suggest that the Senate Republicans’ current plan not to act at all on any Obama nominee may violate the Constitution. Given this possible constitutional problem, there are also heightened prudential risks to the position Senate Republicans have taken.
None of this means that the Senate cannot vote against President Obama’s nominees on a wide range of grounds. The Senate also has broad discretion to determine its procedures for vetting a nominee. But the delegation problem identified in this Article provides a significant reason for Republican Senators, sworn to uphold the Constitution, to rethink their current position. They should instead consider and vote upon Garland or any other timely submitted nominee.
Bartnicki, Alvarez, and Hulk Hogan
Amy Gajda argues that Gawker (which, following Monday's punitive damages verdict, is on the hook for $140 million*) may not find the success it expects on appellate review, including if/when the case gets before SCOTUS. Amy tries to read the tea leaves from the various votes in Bartnicki v. Vopper, the Court's most recent privacy/First Amendment balance case; she concludes that the reasoning of five Justices in that case suggests a majority might have gone for Hogan. But we can do more with the vote-counting by looking at a more recent case--United States v. Alvarez (the Stolen Valor Act case). And all of it may tie into the Court's ongoing vacancy.
[*] Almost certain to be remitted, even if the liability decision stands.
Bartnicki applied the principle that government cannot punish the publication of truthful, lawfully obtained information on a matter of public concern except to serve a government need of the highest order. Although formally a 6-3 decision, in reasoning it was more of a 4-2-3. Justice Stevens wrote for a plurality of Kennedy, Souter, and Ginburg, applying that principle to its fullest. Justice Breyer, joined by O'Connor, argued for a much more even and flexible balance that, while supporting the free-speech position in that case, might not in different circumstances. Chief Justice Rehnquist, along with Scalia and Thomas, dissented. Gajda argues that, facing Hogan in 2001, a 5-4 majority may have affirmed the verdict.Of course, Bartnicki was a 2001 decision and only four Justices remaining on the Court. But Alvarez might provide a hint of where the current Court might go as to Gawker. Although not a privacy case, Alvarez involved a category of speech (knowingly false statements of real-world fact) that many believed was entirely without First Amendment value or any meaningful contribution to public debate. This was explicitly a 4-2-3 case with a similar line-up: Kennedy, with the Chief, Ginsburg, and Sotomayor; Breyer concurring with Kagan; and Alito, with Scalia and Thomas, dissenting. The two decisions are of a piece. The plurality in both cases adopted a strong speech-protective position, demanding a compelling government interest and finding that interest wanting. And Breyer's concurrences are of a piece--a call to avoid the rigidity of strict scrutiny in favor of the greater flexibility of intermediate scrutiny. In both, Breyer found the statute to violate the First Amendment as applied, while hinting that a different case might come out differently. (I was surprised that Kagan would go along with Breyer here).
To the extent we can read anything from prior case, I would argue that the voting in Alvarez and Bartnicki together suggests the following. At least four Justices--the Chief, Kennedy, Ginsburg, and Sotomayor--would be receptive to Gawker's First Amendment defense. Two Justices--Thomas (who dissented in both cases) and Alito (who dissented in Alvarez)--are generally unreceptive to most free-speech claims--will not be receptive. And two Justices--Breyer and Kagan--might apply less-exacting scrutiny to reject the First Amendment defense, given the greater privacy interests and the shakier news and information value of the video. And were Scalia still alive, Amy would be right that we might have a 5-4 Court affirming the jury verdict against Gawker.
Instead, we face a 4-4 Court. So like everything nowadays, it comes down to Maybe-Justice Garland or Justice Trump-Appointee. And what the Supreme Court of Florida does as the last court to hear the case before SCOTUS.
Monday, March 21, 2016
Saturday, March 19, 2016
Hulk Hogan and Complete Diversity
My best guess is that the $ 115 million verdict (likely to be substantially increased when the jury considers punitive damages next week) in favor of Hulk Hogan (ne, Terry Bollea) against Gawker will not stand. From what I have read, the judge made a number of questionable evidentiary rulings and gave a jury instruction that minimized the role of the First Amendment. And some facts will be subject to independent appellate review because they implicate the First Amendment.
But I want to discuss a different question that I missed two years ago--why the case was in a Florida state court at all, where Hogan seems to have gotten some home cooking. Hogan sued Gawker and Heather Clem, the woman in the video; Clem and Hogan are both Florida citizens, destroying complete diversity. Gawker removed anyway, but the district court remanded, rejecting Gawker's argument that Clem was fraudulently joined (as well as an argument that the First or Fourteenth Amendments were necessarily raised by Hogan's state tort claims, creating federal question jurisdiction).
The common defense of the complete diversity requirement, most recently reaffirmed in Exxon Mobil, is that the presence of non-diverse adverse parties eliminates the local bias that is the primary rationale for diversity jurisdiction; Hogan would not receive the benefit of local favoritism because a Floridian is on the other side of the case. But that argument ignores the risk of prejudice against the outsider (as opposed to bias for the local), which is not eliminated by the presence of a local co-party. This is exacerbated when there is disparity in the regard in which the locals are held in that community, such that one side is more of the local community than the other. And it is exacerbated when the outsider-defendant is the real target of the action, the deep-pocketed "big bad."
For jurisdictional purposes, this case looks very much like New York Times v. Sullivan: You have a well-known southern local plaintiff suing a New York-based media outlet, with a locally unpopular individual defendant thrown-in to destroy complete diversity and keep the case in state court. And you have a jury rendering a verdict that sends a pretty clear message about what it regards as outrageous speech. The problem for Gawker is that SCOTUS is unlikely to bail it out the way it did The Times. So Gawker will be relying on the Florida courts to get it out of this First Amendment bind (from all reports, paying anything close to this amount will bankrupt the company).
Video and getting a call "right"
I have always been against instant replay, being one of those who enjoys the "human element" and the "flow" of the games. I recognize the countervailing argument for getting it "right" by available means. But this play, from St. Joseph's NCAA Round One victory over Cincinnati last night, calls into question what we mean by getting it "right." Cincy's game-tying dunk at the buzzer, initially called good, was waved off following video review. Beginning at the 2:00 mark, you can see the extreme slow-motion/frozen video that showed he still had his hand on the ball (pushing it down through the rim) when the red light went on.*
[*] Leave to one side the oddity that dunking the ball worked to the player's disadvantage in this instance, by requiring him to keep his hand on the ball longer than if he had shot a lay-up or dropped the ball through the hoop from above the rim (as players did during the NCAA's absurd no-dunking days from 1967-76).
But we only could see the "right" call via video slowed to a speed so far beyond the ability of the human eye and brain. Do we really need college basketball games to be decided by such super-sensory means that establish correctness at a meta-physical level? Is it fair to say the refs got the call "wrong" initially, when the wrongness could be established only by this extreme use of video? And should we understand the "truth" of what happened by what we can perceive with our senses or by what video reveals at that heightened meta-physical level?**
[**] Recall that the lawyers who successfully defended the LAPD officers in the Rodney King beating in state court did just this with that video: Slowing it down to the frame level so as to reveal movements by King that might have shown continued resistance, even if there was no way anyone could have perceived them. This strategy has only become easier with the advances in video technology.
Thursday, March 17, 2016
Parliamentary politics and judicial apppointments
Sen. Orrin Hatch has said he would be open to holding a hearing, and confirming, Merrick Garland during the lame-duck session in November/December, should Hillary Clinton wins the election. Ryu Spaeth at TNR reads this to mean it is not really about The People, at least if The People choose Hillary Clinton*--then we should accord the appointment power to the lame duck the Senate has been ignoring for eight months.**
[*] This is not to endorse this The People argument. The people spoke in 2012 when they re-elected Barack Obama and vested in him the executive power for a four-year period from January 20, 2013-January 20, 2017. Suggesting that this power should not be exercised during the election cycle defies that constitutional fact.
[**] I believe the President spoke with Clinton prior to making the nomination, on the chance that some late-year activity would fill the vacancy before Clinton, if elected, took office--whether through a recess appointment or through a lame-duck confirmation.
Hatch's position shows how far we have descended away from a separation-of-powers system and into a partisan/parliamentary system. It is not really about the new President making the appointment; it is only about some Democrat making the appointment, once the voters have indicated that they want a Democrat as new President. There is no difference between Obama and Clinton occupying the White House and making the appointment; the point is only their party affiliation. Of course, this ignores the reality that individuals matter--Obama at the end of two terms (although more popular than he has been since just after his reelection) is situated very differently in terms of power and politics from a newly elected President Clinton (something Hatch almost certainly recognizes). But this also shows why the system is so dysfunctional right now--the key to a party-based system is that the executive must have a workable/working legislative majority, so he can exercise his constitutionally vested powers.***
[***] This lends a different perspective to this piece by Dahlia Lithwick discussing the meeting between Obama and new Canadian Prime Minister Justin Trudeau, who ran on a similar "hope" theme, but who seems to be getting more slack from the public. Part of it is that Trudeau has a working legislative majority and while he no doubt faces criticism from the opposing party, it cannot stop him from doing anything. Obama has not had a working legislative majority (because of the filibuster) since February 2010.
Update (3/20): After the jump is video of Sen. Al Franken challenging what he calls the "absurdity" of the lame-duck-session confirmation argument. But, as described above, the Republican position is based on the idea that all Democratic presidents are the same--the election of Hillary Clinton represents The People approving of Barack Obama exercising the appointment power. Franken is right that this is absurd, but the absurdity is consistent with this new model of understanding partisan government.
Wednesday, March 16, 2016
Quick news commentaries
Two completely unrelated items, in one post.
1) The Ferguson City Council reversed itself, voting 6-0 to accept all the provisions of the proposed DOJ consent decree. DOJ now will drop its § 14141 suit, pending judicial approval of the settlement.
2) Merrick Garland is an interesting choice for SCOTUS in a number of respects. His age makes him a good compromise candidate for the times--he is unlikely to serve for 30-35 years, which might be a selling point. Given that Bill Clinton appointed Garland to the court of appeals, Garland also might be particularly acceptable to Hillary and someone she would renominate if this nomination goes nowhere and she is elected in November (or if Obama makes a recess appointment in anticipation of a Clinton victory). I still do not believe Senate Republicans are going to change their minds (or at the very least, they will not confirm, even if they hold hearings). But this is the type of nomination that might increase the political pressure. Politically, I hope I am wrong.
JOTWELL: Mulligan on McCuskey on Submerged Precedent (again)
The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Elizabeth McCuskey's Submerged Precedent (Nev. L. Rev.). This is the second reviewof McCuskey's article, following on Brooke Coleman's review last month. McCuskey has obviously struck a chord with Fed Courts/Civ Pro types.
In January, I wrote about a Wisconsin high-schooler who was suspended for criticizing new state "guidelines" regarding cheering at sporting events. Among the proscribed cheers was "air ball." Josh Levin of Slate properly calls this the greatest taunt in sports and explores the most common version of its history, which traces to an infamous game between North Carolina and Duke in 1979.
Tuesday, March 15, 2016
Twiqbal boldly goes where no man has gone before
In late December, Paramount and CBS filed a copyright infringement action against a small company making a short fan-fiction (Kickstarter-funded) movie, a prequel to the Original Recipe series featuring a one-off character from one episode who also has appeared in some expanded-universe books. The producers moved to dismiss, arguing that the complaint relied too much on information-and-belief allegations and did not specify what works were infringed or how. The plaintiffs have now amended their complaint to include 28 pages of details and photos that serious Trek fans (I confess to having stopped with Original Recipe) will love, including the origins of the Klingon language and the structure of the Federation and Klingon governments.
Litigate long and prosper.
Monday, March 14, 2016
This should not be surprising
Mark Joseph Stern at Slate reports on Republican-activist "smears" against Jane Kelly,* an Eighth Circuit judge believed to be on the short-list for Obama's not-to-be-acted-upon SCOTUS nomination, through ads attacking her past work as a public defender representing a child molester. Stern decries this as an "attack on the Constitution itself," since it basically makes defending an accused and vindicating his constitutional rights into a disqualifying act.
[*] Some believe Kelly, being from Iowa and having a connection to, and support from, Judiciary Committee Chair Chuck Grassley, is the one Obama nominee for whom the committee will move off its promise of non-action.
But this should not be surprising. It was only two years ago that Republicans, and a number of Democrats, blocked President Obama's nominee for the Civil Rights Division explicitly because he had represented convicted cop killer Mumia Abu-Jamal. This line of opposition is even more expected for a judge, given that it allows for the "soft-on-crime/return-of-the-Warren-Court" attack. Given that, I am surprised that a former PD would even get this far (judges with criminal experience appointed over the past two decades have overwhelmingly come from the prosecutor side).
Thursday, March 10, 2016
Why does it matter (redux)?
In December, I wondered why it mattered whether Donald Trump was "a racist," as opposed to just a person who said racist things. That question is back, thanks to questions at last night's Democratic presidential debate. Both Clinton and Sanders were asked whether they consider Trump a racist; both condemned the things he said, while refusing to put a label on him.
But, again, how cares? If someone says racist things, I know not to vote for him for President. Why does it matter whether the label is formally attached to him? And, in particular, why does it matter whether his potential political opponents attach the label to him?
Tuesday, March 08, 2016
Nixon, Burger, and timing of nominations
In an earlier post and comments, I predicted that there would not be someone in Justice Scalia's seat, ready to hear arguments, until the beginning of OT 2017. That prediction, which I discussed on a Fed Soc panel this afternoon, rests on three assumptions: 1) The Senate will not confirm an Obama nominee; 2) The new president will not nominate someone on Day 1 or 2 of her presidency and it may take a few weeks or months; and 3) confirmation, even with a Senate majority of the same party, will take about 2-3 months from nomination. This means it is highly unlikely we will have someone confirmed by the end of April, the date of the Court's final sitting for OT 2016. The next opportunity for the new Justice to participate in arguments and conferences is September (with the Long Conference) and October (the new term).
The second assumption may seem contestable. After all, this vacancy is going to be an explicit issue in the campaign and the new president takes office aware of the opportunity to save or shift (depending on who is president) the ideological/philosophical balance on the Court. But it seems to me the new President has to deal with too many more pressing issues, particularly executive-branch appointments, that take precedence over even a Supreme Court appointment.
Moreover, we have precedent for this situation--Richard Nixon. Nixon took office in January 1969 knowing that he could replace Earl Warren as Chief whenever he wanted.* Nixon campaigned against the Warren Court, so he certainly was no less aware of this opportunity than President Trump or Clinton will be. Yet Nixon did not nominate Warren Burger until May (he was confirmed a month later). True, there is a distinction--the current nomination fills a vacancy and gets us away from a rump Court, while the Court in spring 1969 was working with the statutorily established membership, which may add some urgency to the former.. But Nixon no doubt wanted Warren off the Court as soon as possible, so he had as much of an incentive to make the appointment as soon as possible.
[*] Warren had tendered his resignation to Pres. Johnson in spring 1968, effective upon appointment of a successor. This meant that Warren would leave office as soon as a President--Johnson, Humphrey, or Nixon--appointed a successor.
Does anyone know the story of the dynamics in the White House regarding the Burger appointment? Does anyone have thoughts on why it might have taken so long? If it is simply that other things take priority, is there any reason to believe it would be so different this time around?
Monday, March 07, 2016
Jurisdiction, merits, and same-sex marriage
SCOTUS today granted cert and reversed the Supreme Court of Alabama, holding that under the Full Faith & Credit Clause, Alabama must recognize a Georgia second-parent adoption between same-sex partners.
SCoA had held that F/F/C was not required because the Georgia courts lacked subject matter jurisdiction to do a second-parent adoption for an unmarried couple, where the biological parent's rights were not terminated. But the propriety of the adoption was a matter of the merits, not jurisdiction. Georgia trial courts have general jurisdiction over "all matters of adoption," which this clearly was. The Court then turned to its usual jurisdictionality touchstones--the relevant statute does not speak in jurisdictional terms, does not refer to jurisdiction, has never been interpreted (by Georgia courts) as jurisdictional (Georgia courts recognize the line between whether a court has power and whether to grant relief), and the fact that the provision is mandatory does not make it jurisdictional. Georgia's rule of decision as to whether to allow an adoption does not speak to or limit the power of the state court to decide this type of case. SCoA thus was wrong (yet again, when it comes to marriage equality--it's been a bad week) in trying to squeeze this into the lack-of-jurisdiction exception to F/F/C.
Sunday, March 06, 2016
TRAP laws, rump SCOTUS, and the shadow docket
1) Based on arguments, one possible resolution in Whole Women's Health is a remand to build a better record as to 1) whether the state law caused the the clinic closures in the state and 2) whether the remaining clinics can meet the demand in the state. This would buy another year or more on the case, with enforcement halted in the meantime.
2) On Friday, the Court stayed enforcement of Louisiana's admitting-privileges laws (specifically--the district court had enjoined enforcement and declined to stay the injunction pending appeal; the Fifth Circuit had stayed enforcement of the injunction pending appeal, making the laws immediately enforceable even as the appeal proceeded; and SCOTUS vacated that stay, rendering the laws not enforceable.
3) WWH is one obvious candidate for a 4-4 split producing an affirmance by an evenly divided court, leaving in place the Fifth Circuit judgment declaring the state laws constitutional. Justice Kennedy has ruled in favor of the constitutionality of every abortion restriction the Court has considered since Casey and he is willing to buy even scientifically unsupported state justifications for restrictions (e.g., that women regret terminating pregnancies and the state can protect them against that regret by restricting their reproductive health options). Kennedy seemed at least somewhat skeptical of these laws during last week's arguments, although it is not clear whether he was skeptical enough to declare invalid these laws or the general concept of TRAP laws.
4) There will be no one in Justice Scalia's seat until, at the earliest, October 2017. And perhaps beyond, depending on how the November election goes. That means that this 4-4 split may remain for several years (unless, of course, one of the remaining three 75-and-over Justices leaves the Court).
5) This issue has the potential to reflect, in procedural terms, the marriage equality litigation: Many states enacting near-identical laws for similar reasons and purposes, such that a single SCOTUS decision necessarily knocks out the constitutionality of all laws, triggering a large state-by-state litigation campaign seeking that final decision.
So might the Court take the following out in the short-term?Remand WWH to the Fifth Circuit for further factfinding on causation and/or capacity of remaining clinics. Kennedy (and maybe even the Chief) might like the out. And faced with the alternative of affirming an adverse lower-court judgment, Ginsburg/Breyer/Sotomayor/Kagan might be willing to go along. Meanwhile, bar enforcement of the laws from other states as they are challenged, which has the effect of maintaining the status quo (clinics remain open); eventually, the lower courts themselves will get the hint and take steps to halt enforcement pending appeal. Eventually, a case will be teed-up for merits resolution by a fully staffed Court--again, depending on who wins the presidency, who replaces Scalia, and who else leaves the Court in the first two years of the new administration.
Friday, March 04, 2016
Alabama Supreme Court dismisses SSM mandamus
The Supreme Court of Alabama today dismissed the pending motions and petitions in the larger mandamus action filed by several advocacy groups to stop probate judges from issuing marriage licenses to same-sex couples. I have not had a chance to read it yet; it includes a lengthy opinion from Chief Justice explaining why he is no longer recusing himself from the action and why Obergefell is evil.
Update: The upshot is that there is no longer any state-court order obligating probate judges to act inconsistently with Obergefell. Some still might, of course, but they cannot rely on the state court to justify doing so. Marty Lederman's analysis captures the continuing confusion, given the seeming disconnect among the Order, the Certificate of Judgment, and the various concurring opinions, as well as the likely practical consequences (not many). Adding to the confusion--if the March 2015 mandamus order remains in effect, then what "petitions" (as distinct from various motions) were dismissed by Friday's order? [Further Update: Marty points to several separate petitions filed since March, including one by a probate judge asking the court to declare his entitlement to religious objections to issuing licenses to same-sex couples, in light of the jailing of Kim Davis.]
The interesting question is whether anyone can or will appeal the Alabama order. I expect it is unnecessary. If necessary, the federal court will enforce its injunction against any recalcitrant probate judges without regard to the continuing state order. To the unlikely extent Judge Granade refuses to enforce, plaintiffs can appeal the federal order and get the Eleventh Circuit (or SCOTUS, if things really go sideways) to enforce Obergefell and ignore the state court. All of which further supports Marty's point that SCoA's order will sit there, ignored but embarrassing in its existence.Finally, a quick comment on Justice Shaw's concurrence. He is dubious of departmentalism, which he calls "silly" and "rather nonsensical hairsplitting," since, even if Obergefell is not directly applicable, a later decision applying Obergefell will be. And he is correct in the sense that departmentalism rests on formalism--an executive official can resist Supreme Court precedent until that precedent is quickly applied in a case to which he is a party. At the same time, Shaw unwittingly captures the basic ideas behind what I have been calling "judicial departmentalism"--whatever executive officers can do, lower courts (including state courts) are bound by SCOTUS precedent (whether 5-4 or 9-0, whether the lower-court judges agree with it).
Thursday, March 03, 2016
JOTWELL: Sassman on Bray on the new equity
The new Courts Law essay comes from Wyatt Sassman, reviewing Samuel Bray's The Supreme Court and the New Equity (Vand. L. Rev.), which explores the Court's recent new approach to equitable cases and the equitable powers of the federal judiciary.
Tuesday, March 01, 2016
Read the text, Senator
If you want to score debater's points by claiming your fidelity to the text as against your interlocutor's atextualism, you need to make sure you actually get the text right.
Case in point: Republican Sen.. Charles Grassley's SCOTUSBlog commentary, responding to President Obama's own SCOTUSBlog commentary about his power and obligation to "appoint" a successor to Justice Scalia. Not so, Grassley insists--"The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent." Obama thus is under a "fundamental misunderstanding" of the constitutional text, which shows that any justice he will put forward will similarly disregard the text.
Except: "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." So the President does not only nominate; he appoints, although with advice and consent of the Senate.
If Grassley's point is that both branches are involved in choosing a Supreme Court Justice, he is absolutely correct. And the Senate is perfectly within its constitutional power (if not necessarily its obligation to govern responsibly and effectively) to withhold that consent. But this is entirely a political calculation--the expectation that he (and the rest of the Senate GOP) will be ideologically opposed to any Obama Justice. Grassley was trying to avoid the politics by grounding his argument in constitutional text, as well as being a bit pedantic in the process. But if so, you cannot get the text wrong.
Monday, February 29, 2016
It seems as if it took a bit longer for March to come in like a lion this year.
Anyway, welcome to our March guests--Sam Brunson (Loyola), Brian Clarke (Charlotte), Seth Davis (UC-Irvine), Jose Gabilondo (FIU), Rhett Larson (Arizona State), and Mark Moller (DePaul). Also, my colleague Eric Carpenter will continue his weekly write-ups on Serial, Season Two. And thanks to our February guests, some of whom may be sticking around for a few extra days.
Sunday, February 28, 2016
More on libel, New York Times, and Donald Trump
I still do not believe we are in any danger of having President Trump open up our libel laws, but let me add a few more thoughts. After all, as Ronald Collins reminds us, this is SOP for Trump--in September, his attorney threatened a multi-million-dollar lawsuit against Club for Growth over ads critical of Trump.
NYT v. Sullivan arose in a period in which state officials were using civil libel suits to create something akin to seditious libel--a prohibition on criticizing government, government officials, and government policy. Heed Their Rising Voices triggered five defamation suits (including Sullivan's), seeking a total of $ 3 million; the Times was a defendant in lawsuits throughout the state seeking more than $ 300 million. Until recently, my instinct would have been that no modern-day public official, particularly a national figure such as the President (or someone aspiring to that office), would sue or threaten to sue his critics. Part of that is driven by NYT--that doctrine exists precisely to stop public officials from suing their critics. But another part is that suing or threatening to sue would make an elected official look weak, greedy, and ineffectual--his feelings are being hurt, so he is running to the principal to complain, rather than responding in the public debate.
But Trump turns every bit of conventional wisdom on its head. Rather than seeing a libel lawsuit as making him appear weak, Trump supporters would seem to look at it as a sign of strength, that he is a fighter and willing to stand up to evil newspapers. So Trump may unwittingly be showing why NYT is so important and why it is not going away anytime soon.
Saturday, February 27, 2016
Things not worth getting worked up about, Part 671
Donald Trump insisting that he wants to "open up our libel laws" so media outlets can be sued "like [they] never got sued before." First, there is no federal libel law and Congress, especially Democrats, are not going to allow one to be enacted. (I still cannot tell if Trump truly believes he can unilaterally do the things he talks about; I have no doubt his supporters do believe it). Second, this is an incredibly speech-protective Court, including as to New York Times v. Sullivan, so the likelihood of the Justices overturning NYT (regardless of who replaces Justice Scalia) is precisely nil. So like much of what comes out of Trump's mouth, it cannot be taken seriously.
Which is not to say that Trump's views on free speech, especially as to public protest and dissent and the power of police to physically manhandle peaceful protesters, are not genuinely scary. They are. But the right to protest in public has become incredibly constrained, especially when protest happens within sniffing distance of the President; I doubt things would be so much different (or worse) under President Trump, only more blatant. That does not make this a good situation, only a common and unsurprising one.
Friday, February 26, 2016
A great conversation on Justice Scalia
This edition of the National Constitution Center's We the People features a conversation with two of Justice Scalia's early law clerks--Larry Lessig (Harvard) and Steven Calabresi (Northwestern); it is one of the best discussions of his work and legacy that I have heard since he passed away.
One interesting piece is discussion of whether and why Scalia became nastier in his rhetoric and tone in the later years. Calabresi and Lessig agree on two possible, somewhat related, explanations. 1) Scalia moved away from his early practice of hiring at least one liberal-leaning clerk (obviously Lessig in that term), creating something of an echo chamber; 2) As Scalia got older, the age gap between him and his clerks became greater, making them less willing or able to talk him down from his lesser instincts. Calabresi relates how he and his co-clerks would read drafts and convince him to dial it back or to step away from the opinion for the night and come back to it, presumably to tone it down the next day. But surrounded by younger and less intellectually diverse clerks, no one was counseling him back from the rhetorical edge--whether because they did not believe themselves able to do it or because they did not see anything wrong with that excess.
The point about the growing age gap is obvious, but interesting. One of the things that keeps law profs feeling "young" (even as we increasingly are not) is that we encounter a new group of 22-year-olds in our classrooms every August. So at least within the context of work, we are less aware of getting older because we are still dealing with recent college grads. (A colleague who is in his early 60s confirmed this sense). I imagine it is the same for judges, who similarly have a new group of 25-year-old law clerks entering chambers every August. But while the new blood keeps us feeling young-ish, the dynamic inevitably changes as the numerical distance grows. And if Calabresi is right that it affected how Scalia judged, it surely affects how we teach.
Thursday, February 25, 2016
Len Strickman was the Founding Dean of FIU College of Law, serving in that role from 2001-2009 before joining the faculty for the past six years. Len is retiring and taught his final class ever this afternoon. To mark the occasion, some faculty members entered the classroom at the end of the period to applaud the end of class. This idea came from a colleague who attended Notre Dame Law School, where this was the common practice (is that still true, Rick?). It is a cool tradition and nice to be a part of.
Only 40 more years . . .
Wednesday, February 24, 2016
CFP: Rule of Law-Religious Perspecives
Journal of Law, Religion & State
International Conference: Rule of Law – Religious Perspectives
The encounter of religion with the rule of law may generate tension but also mutual inspiration. The rule of law implies law’s supremacy over other normative systems and personal commitments. It also implies that law applies to everyone equally. Religion represents a normative system that may in some areas be different from—and stand in opposition to—state law. Religion may deny the supremacy of state law and pose divine law as supreme instead. It may, alternatively, seek exemptions from state law in those matters where the two conflict.In this conference we seek to study this tension and discuss the following questions:
- Does religion (in general or a specific religion) accept the rule of state law?
- What are the boundaries (if any) of such acceptance?
- In what cases would religion challenge state law and in what cases would it seek exemptions?
- Can a policy of multiculturalism and of legal pluralism, which give more room to religious freedom, be reconciled with the rule of law or does it undermine it?
- What other policies should states follow in response to these tensions?
Religion may not only compete with state law but also inspire it, which leads us to investigate religion’s various understandings of the rule of law. Here is just one example. The concept of law in the context of the rule of law is ambiguous and open to different interpretations. Some (positivists) understand law as a set of rules fixed by social institutions, and others (natural law advocates) understand law as if it includes fundamental principles of justice and morality. Religions may take a position in that debate and contribute not only to the abstract understanding of law, but also to the identification of those moral principles that are part of law. We therefore also plan to explore the following:
- What is the position of religion with regard to the concept of law and the rule of law?
- Many religions developed partial or comprehensive legal systems of their own. Did religions also develop a concept of rule of law? What is its scope and meaning?
- The concept of rule of law also may be used in theological context as a metaphor to understand the boundaries of divine actions and intervention in the world. Is God constrained by law—and by what kind of law: law of nature, morality?
These and similar questions will be discussed in an international conference that will be held at Bar-Ilan University School of Law, Ramat-Gan, Israel, on November 20-22, 2016.
Submissions are invited on the themes outlined above. An abstract of 500 (max.) words should be sent to firstname.lastname@example.org no later than April 15, 2016. Please indicate academic affiliation and attach a short CV. The conference committee will notify applicants of papers acceptance by the beginning of June, 2016. The participants will be required to submit a first (full) draft of their papers three weeks before the conference. The final papers will be published in the Journal of Law Religion and State subject to review.
The organizing committee:
Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel
Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA
Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel
Monday, February 22, 2016
Recency bias, Scalia's successor, and the First Amendment
There has been a lot of discussion about the fate of various likely 5-4 cases from this term and recent 5-4 decisions should Scalia's successor be appointed by President Obama or President Hillary Clinton. Ron Collins has a post on the 5-4 free speech cases in which a Democratic appointee likely would vote differently than Scalia, perhaps leading to these decisions being overturned in short order.
But I wonder how much it will matter for many of these cases. Citizens United is still only doing the work started by Buckley v. Valeo (for campaign-spending generally) and Bellotti v. Bank of Boston (protecting corporate speech), while overturning one outlier case (Austin v. Michigan Chamber of Commerce). Morse v. Frederick was a bad decision and a wide expansion of what qualifies as "in-school" speech, but students were losing most cases (especially involving t-shirts) just under the Tinker balancing. Garcetti v. Ceballos categorically removed job-related-speech from the First Amendment's reach, but the prior requirements under Connick and Pickering still largely worked against employees. In other words, many of these cases did not revolutionize First Amendment law or dramatically depart from prior law, as much as they sharpened already-speech-restrictive doctrine. The one exception may be the union-fee cases--both this Term's Friederichs, as well as two other recent cases questioning the permissibility of union-fees and leading us to Friederichs.
Wednesday, February 17, 2016
Donald Trump is Jeb Bartlet. That is, Aaron Sorkin wrote Donald Trump as president/presidential candidate in Jeb Bartlet, in terms of the "game-on, don't stand on ceremony, tell the dummies how it is" approach to talking to everyone. Bartlet's first scene on the show had him telling a group of religious-conservative political activists to "get your fat asses out of my White House."* Can you not picture Trump saying the same thing? The only difference, of course, is that Trump is doing it in service of a conservative/populist/angry-alienation agenda rather than a '60s Great Society liberal agenda?
[*] Mind you, that scene also contained one of the great free speech quotations of all time. When one of the activists asked whether the fact that any child could buy pornography for $ 5 was too a high a price for free speech, Bartlet responded, "No. But $5 is too high a price to pay for pornography."
Tuesday, February 16, 2016
The West Wing may not be the best source for resolving political problems
Let me begin by saying that I loved The West Wing while it was on, before I decided Aaron Sorkin's writing was unbearable and repetitious. I even wrote something (no longer available online) about the show's many story lines about presidential and vice-presidential succession, which has always been a constitutional fascination. And in broad strokes, the show kind-of predicted the four players in the 2008 Presidential race.
Lisa McElroy (Drexel) writes in Slate about The West Wing's apparent solution to our current Supreme Court dilemma: Presented with a chance to replace a deceased conservative justice but facing a Republican Senate, second-term President Bartlet creates a bargain by making two ideologically extreme appointments--a very liberal woman as Chief and a very conservative man, hoping the Senate will go for the trade-off. I recalled the episode when I heard about Scalia's death last weekend. I do not remember if I believed this was a good idea when the episode aired in March 2004; I believe it is a terrible idea now (although that might just reflect how I feel about Sorkin's work).
First, it required that White House staffers create a second vacancy by convincing/coercing/strong-arming the Chief Justice into retiring. We no longer applaud (or should applaud) Johnson-esque tactics when it comes to the President and the Court. But Sorkin loves the "honesty" of such straight-talking methods and ends-justify-means strategies, even if in real-life they come across as noxious. I would not want an Obama aide directly lobbying Ginsburg or Breyer to retire.
Second, what the show depicts seems to me a terrible trade for the Democrats. Yes, the Democrats get to appoint the Chief (which has not happened since Fred Vinson in 1946). And that is significant for assigning opinions and perhaps for the future direction of the Federal Rules of Civil Procedure. But an even trade does nothing for the Democrats in terms of the cases that matter, since it does not alter the judicial-ideological balance on the Court.* Sorkin was decrying an influx of "moderates" on the Court and wanting something on the poles. But the current Court is all poles, with no real middle at all. That means that a single appointment truly changes the ideological balance. To put it in modern terms: I would not want to see Obama appoint, say, Goodwin Liu and then replace Breyer with, say, Brett Kavanaugh.**
[*] Updated: Lisa tells me that the dialogue does indeed reveal the Court's make-up: six "centrists," two staunch conservatives, and one clarion voice articulating a liberal vision who may have been close to retirement. This basically reflects the Court in October Term 1990: Rehnquist and Scalia as the conservatives, Marshall alone as the liberal voice (Brennan had just retired), and White, Powell, Blackmun, Stevens, O'Connor, and Souter forming the middle.
[**] The resulting Court--Roberts, Kennedy, Thomas, [ed: forgot him the first draft], Ginsburg, Alito, Sotomayor, Kagan, Liu, Kavanaugh--would leave us exactly where we are, only with the clock reset by a conservative who would be on the Court for another 30 years joining three conservatives likely to serve for another twenty. As a Democrat, it certainly would undermine one of the reasons I have been happy to control the White House these past seven years and why I believe this election is so important.
Worse, the new liberal chief was a decade older than the new conservative associate justice (going by the age of the actors at the time--Glenn Close was 56, while William Fichtner was 47). In actuarial terms, he was likely to remain on the Court, and thus to wield influence, longer than she was.
Third, the episode celebrates across-the-aisle disagreement, engagement, and friendship as a practical solution. Some have offered the friendship between Ginsburg and Scalia as a model for what Obama and Mitch McConnell and Paul Ryan might follow. But lost in all this is that, despite their friendship, Scalia and Ginsburg rarely agreed on key constitutional issues. And their friendship did nothing to enable either to sway the other. Recall Ginsburg's moving tribute to her friend: "when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation." Not that Ginsburg was convinced or moved to change her mind; only that she made the arguments for her position stronger. Which is, perhaps, good for the development of the law (that is Lisa's take-away). It does nothing for political impasse--Obama and McConnell can sing duets all they want, that is not going to produce any actual legislation. And it does not change the dynamics that five conservative Justices always get their way in the face of four liberal Justices. (This is as legal realist as I get, I think).
Finally, the episode bothers me because, put in a room together, the two federal judges/prospective nominees begin arguing constitutional law--as if this is what judges do when they get together in social settings (this was, of course, necessary for President Bartlet to see the benefit of two smart opposites engaging one another). Worse (and ironically, given the show's obvious political views), the dialogue made the conservative judge seem like he was right and smarter than the liberal. It included the following exchange (this is paraphrasing somewhat, from memory):
Lang (Close): If we followed your way [presumably meaning Originalism], we would still have slavery and women couldn't vote.
Mulready (Fichtner): And hence the Thirteenth, Fourteenth, and Fifteenth Nineteenth Amendments.
Lang: Well, thank you for that.
But that actually is the answer--consider the text and its meaning at the time, but when an amendment overrides some provision, follow the amendment. Yes, slavery was part of the Constitution, until those parts of the Constitution were overridden by the Thirteenth Amendment. And saying otherwise just makes the position sound silly.
I know, I know--it is only a TV show.
Monday, February 15, 2016
The Peter Principle and the Supreme Court
I have not waded into the discussion of Justice Scalia's death and what happens next, although I commend what others have written here. I am in complete agreement with three things Richard Friedman (Michigan) wrote on the ConLawProf listserv: 1) This debate is entirely political and if the partisan institutional positions were flipped, so would the partisan institutional arguments; 2) The President can nominate whoever he wants before January 20, 2017, and the Senate can reject or refuse to act on any nomination within that time; 3) Senate custom is dead.
Given that (especially # 2), some thoughts/questions as we go forward:1) (The question that gives the post its title): Does it really matter that some potential highly-qualified-to-force-the-Senate's-hand nominee (notably Sri Srinivasan) was confirmed to a lower court 97-0? Putting aside that this is all politics. Is it truly irrational for a Senator to conclude that someone could be qualified for a lower federal court and not for SCOTUS? For constitutional purposes, there is no difference in qualifications. (In fact, nothing in Article III requires appointment to any particular court, as opposed to confirmation as a federal judge). But Congress having established a statutory regime in which a judge must be separately nominated and confirmed to every seat, can't a Senator believe that someone who is good enough to be a lower-court judge is not acceptable as a SCOTUS justice? I am not saying that is the case with Srinivasan. It's just that the suggestion that Senate Republicans would accept (or be politically compelled, or embarrassed into accepting) someone because of the prior vote does not follow.
A recess appointment would likely be construed by a Republican-controlled Senate, not to mention Republican candidates for President, as subverting the intention of the nomination process laid out by the Constitution. That’s an argument—with some merit—that Obama surely wants to avoid as the White House simultaneously looks to lean heavily on the president’s constitutional responsibility to choose a justice and the Senate’s constitutional duty to confirm a reasonable selection.
But couldn't the White House successfully frame it as follows: "The Senate Majority Leader announced, within less than one day of Justice Scalia's death, that it would not even vote on any nomination the President makes, despite his constitutionally established term continuing for another 11 months. Given this, the decision to make a recess appointment reflects not a subversion of the process, but taking the Majority Leader at his word that no confirmation could happen with the Senate in session."
3) Here is an imprecise historical analogue that, at least in counter-factual, captures a lot of what is happening politically (Michael Dorf wrote about this at Dorf on Law, although I cannot find the post). Thurgood Marshall retired in summer 1991.* And while Marshall reportedly did not want to give the appointment to George H.W. Bush, at that point it seemed certain that Bush would be re-elected, so there was no point in waiting (plus, all indications are that Marshall stayed too long, anyway and his health was failing). Of course, things had changed dramatically just one year later--it was clear the President was in trouble and he would go on to lose that November. The counter-factual is always what if Marshall could have hung around for just one more term, until say, June 1992; no one suggests he needed to stay until June 1993, after Clinton had taken office (Marshall died four days after Clinton was inaugurated). The implication is that by June 1992, no nominee would have been confirmed until after November--and once Bush lost, the nomination would await the new President. Of course, this would have put us in our current spot in reverse--a soon-to-be-leaving-office Republican President and a Democratic-opposition Senate refusing to confirm any nominee until we see what happens in November.
[*] Yes, not an election year. But surely the line cannot be January 1, especially when elections have already begun, particularly by the party out of power, by the previous summer.
Wednesday, February 10, 2016
Ferguson consent decree falls apart, DOJ sues
The proposed consent decree between DOJ and the City of Ferguson has fallen apart, after the City Council on Tuesday night approved the deal, but demanded seven changes to the deal, mostly involving extended deadlines and limits on costs. DOJ wasted no team in filing a civil action today, alleging patterns and practices of various police abuses, in violation of § 14141 (via the First, Fourth, and Fourteenth Amendments) and Title VI. The complaint contains all the things we already knew from earlier DOJ reports.
I am somewhat surprised DOJ jumped to a lawsuit so quickly, rather than trying a bit of additional negotiation. My guess is DOJ was ticked that the Council would undermine seven months of negotiation in single night. Life imitating art imitating life?
Where do Republicans go?
The refrain among Democrats, liberals, and progressives on the eve of a presidential election is always "If [insert Republican candidate] wins, I'm moving to Canada." (Dahlia Lithwick offers guidance).
Where do Republicans and conservatives threaten to go if Bernie Sanders wins?
Kim Davis update
Judge Bunning of the Eastern District of Kentucky yesterday denied as moot the ACLU's motion to enforce the injunction against Kim Davis. The plaintiffs had requested that the court order the deputy clerks to issue the non-Kim-Davis-altered licenses, reissue the adulterated licenses, and order the deputies to ignore Davis's orders to issue any other type of license. But the court found that: 1) licenses are issuing to anyone who wants them; 2) Davis is not interfering; and 3) "there is every reason to believe" the altered licenses would be recognized as valid.
I suppose this is all the right outcome, although the court's ready assumption that these altered licenses are valid may be a touch presumptuous. We have no idea what an opportunistic litigant (say, in a future divorce or custody case) and rogue state-court judge might do with a marriage based on one of these licenses. Still, the Liberty Counsel's insistence that the ACLU wanted Kim Davis's "scalp" is just silly.
Friday, February 05, 2016
More intentional fouls
Following on my earlier post, NBA Commissioner Adam Silver now says he will have the league's Competition Committee explore ways to restrict the practice, explicitly recognizing it as an aesthetic concern. But any rule has to consider all responses and downstream consequences. For example, the first corrective was that off-the-ball fouls in the last two minutes of the game result in the fouled team shooting one free throw and keeping the ball; coaches have responded by having players jump on the bad shooter's back on a free throw attempt, which is considered a loose ball and not subject to that rule. Proposals have included limiting the number of times a team can do it, given the shooting team the option of getting the ball out of bounds (my preference), or giving the fouled team an extra free throw, to be taken by any player (a version of something suggested by a commenter to my earlier post).
Something to watch this off-season, especially to the extent the making of sports rules can tell us something about the making of laws.
Thursday, February 04, 2016
JOTWELL: Coleman on McCuskey on "submerged" decisions
The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Elizabeth McCuskey's Submerged Precedent (forthcoming Nev. L. Rev.), which examines the substantial body of reasoned district court decisions that are often not publicly available.
Sunday, January 31, 2016
Donald Trumps the 22d Amendment
have heard of the Twenty-Second Amendment?
Friday, January 29, 2016
Intentional fouls and limiting rules
The NBA practice of intentionally fouling a poor free-throw shooter away from the ball (and the entire play) is spreading. Last week, the Houston Rockets began the second half by having the same player foul an opponent's poor shooter five time in eight seconds. Last night, two different teams fouled someone before he could throw the ball inbounds. This season, 27 players have been subject to the "Hack-a-_____." In October, NBA Commissioner Adam Silver announced that, although the league has been studying the issue, it was not considering rule changes to stop the practice.
Critics of the Infield Fly Rule often point use this situation to argue against the IFR, insisting that the situations are the same and, if basketball does not require a special rule, neither should baseball. But the argument does not work because the situations are not the same. Like the infield fly, "Hack-a-____" involve teams intentionally acting contrary to their ordinary athletic interests (defenders ordinarily do not want to foul, especially a player who is uninvolved in a play and no threat to score); it gives one team an advantage over the other (statistics of points-per-possession show that a good offensive team is substantially worse off having its worst FT shooter shoot over and over than running its regular offense); and the advantage is great enough that teams have the perverse incentive to keep doing it (hence the reason the strategy is spreading). But "Hack-a-____" lacks the necessary substantial imbalance in control over the play--the fouled team can counter the strategy by making their damn free throws, or at least more of them to render the strategy no longer worthwhile. Limiting rules do not exist to save teams and players from themselves or their own shortcomings.
Instead, any rule to stop this practice would be for aesthetic purposes, not cost-benefit balance. The game becomes ridiculous and boring to watch (watching a parade of free throws is bad; watching a parade of missed free throws is worse). Eventually fans might get sick of what they are watching. To be sure, some aesthetic concerns underlie the IFR; we would rather see players catch easily playable balls than not catch them. But the IFR situation also involves an extreme cost-benefit imbalance. Aesthetics provide the sole basis for eliminating intentional fouls.
An interesting question is what any limiting rule might look like for the NBA. My proposal would be to give the offense a choice following an off-the-ball intentional foul--shoot the free throws or get the ball out of bounds. All fouling would give the defense is a chance to steal the ball on the inbounds play, although steals or turnovers on such plays are relatively rare, while incurring the cost of running up their foul totals. This change should eliminate the perverse incentive; there is no incentive for the defense to intentionally foul when the benefit is a small chance of getting a turnover on the inbounds play, but little or no chance that the offense will choose to have the bad shooter go to the line.
Thursday, January 28, 2016
Ferguson consent decree
DOJ has reached agreement with the City of Ferguson on a proposed consent decree resolving the threatened § 14141 action. It appears to attempt to address everything that went wrong there in 2014, as well as those practices that contributed to the general tension that had long existed. The order requires training and commitment to public First Amendment activity--peaceful protests, lawful public assembly, and video-recording of police activity--including a requirement that only the Chief of Police or Assistant Chief may declare an assembly unlawful and officers cannot disperse an assembly without that declaration. It limits and restricts "stop orders" or "wanteds," in which police initiate contact to enforce warrants. It requires the City to implement a body and dashboard camera program, with broad recording of most stops and interactions and public disclosure of recordings to the maximum extent allowed by state law. And it requires broad reform of municipal court practices and training and policies on use of force.
Monday, January 25, 2016
More judicial departmentalism
A few points in furtherance of the model of "judicial departmentalism" that Kevin Walsh coined and that I have been urging, beginning with the marriage equality litigation and its aftermath.
First, the law imposes a number of incentives for governments and government officials not to push the departmentalist boundary, chief among them attorneys' fees for prevailing plaintiffs. This story discusses the fee awards from the marriage-equality litigation, which have topped $ 1 million in a number of states. The fee request in Tennessee (one of the states who defended in SCOTUS) is $ 2 million. Texas was ordered to pay about $ 600,000 (in a case that had limited briefing and a summary affirmance in the court of appeals), which the state plans to appeal. The point is, it will get pretty expensive for states if many of their officials decide to follow Kim Davis or Roy Moore and force couples to bring inevitably successful new litigation to obtain marriage licenses. [Update: A new report says Montana settled for $ 100k, bringing the national total to $ 13.4 million).]
Second, SCOTUS today in a per curiam decision in James v. City of Boise (pp. 13-14) held that the Supreme Court of Idaho was bound by SCOTUS interpretations of federal law--in this case, the limitation on § 1988 that prevailing defendants may recover fees only if a claim is frivolous, unreasonable, or without foundation. The state court had said that SCOTUS did not have the authority to limit the interpretive discretion of state courts, only of lower federal courts. The court made quick work of that argument, emphasizing the disuniformity it would engender (citing Justice Story in Martin) and insisting that "it is the duty of other courts to respect that understanding of the governing rule of law." Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.
Third, I like the way the Court described its authority--the Court says what a statute means and it is "the duty of other courts to respect that understanding." (emphasis mine). The Court did not say it was the duty of officers or offices other than courts. I am not suggesting this drafting was deliberate or that it reflects a sudden wave of departmentalism in the Court; more likely, it was written this way because that was how this case presented. Still, it captures what I believe is the appropriate scope of the Court's power to "say what the law is" and to whom.
Saturday, January 23, 2016
Harvard Hillel Conversation and Shabbat Dinner in Memory of Dan
After the jump is an announcement about an event on April 15, sponsored by Harvard Hillel and the Markel Family--a Law School Conversation and Shabbat Dinner in Memory of Dan. Spread the word. We will post additional announcements as the event draws near.
Harvard Hillel and the Markel Family present a
Harvard Law School Conversation and Harvard Hillel Shabbat Dinner
in Memory of Dan Markel
Martha Minow, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School
Noarh Feldman, Felix Frankurter Professor of Law, Harvard Law School
Friday, April 15, 2016
• Conversation at 5 p.m. in the Milstein East Room, Wasserstein Building, Harvard Law School
• Shabbat Dinner at 7:45 p.m. at Harvard Hillel's Rosovsky Hall (following optional Shabbat evening service)
A shuttle bus will be available before Shabbat for those who prefer not to walk across Harvard Yard from Harvard Law School to Harvard Hillel
Details, including registration links, will be forthcoming.
Show (audibly), don't tell
Because of the Court's practices of only releasing argument audio at the end of the week, I wrote my argument recap on last week's Heffernan v. City of Paterson based only on the transcript. It was clear from the transcript how much the petitioner's attorney struggled, especially when asked about the availability of alternative state-law remedies and what those remedies would be. Listening to the audio drives home just how great that struggle was.
Wednesday, January 20, 2016
SCOTUS on Wednesday decided Campbell-Ewald v. Gomez, holding that an unaccepted offer of judgment and offer of settlement do not moot a case. Justice Ginsburg wrote for herself and Justices Kennedy, Breyer, Sotomayor, and Kagan, stating that an unaccepted offer is like an unaccepted contract offer, having no legal force or effect and thus insufficient to moot the case. Justice Thomas concurred in the judgment, arguing that Article III should be read to incorporate common law principles of tender. The Chief Justice dissented for Scalia and Alito, with Alito adding a separate dissent.
Interestingly, only Justice Thomas mentioned (although even he did not particularly emphasize) that the plaintiff here sought retroactive legal relief (damages) for a past violation of his rights, whereas the Court's modern mootness cases all involved claims for prospective injunctive or declaratory relief from ongoing or future violations. And this omission reflects the flaw in how mootness is conceptualized, particularly by the Chief. Everyone keeps describing mootness as the point that "it is impossible for a court to grant any effectual relief whatever to the prevailing party." But the reason it becomes impossible for a court to grant any effectual relief is that the plaintiff no longer is injured as a result of the defendant's conduct. Thus, for example, the covenant-not-to-sue could moot Already v. Nike because, having promised not to sue, Nike no longer is harming Already with the threat of trademark infringement litigation; thus no judicial remedy can stop the injury that no longer is occuring. But in an action for retrospective relief for a past injury, the injury remains. The remedy makes the plaintiff whole by offering a substitute thing of value (money), but it does not uninjure him or stop the injury. It thus should be impossible for a claim for retroactive relief ever to become moot.
[Updated in response to comments]: At best, the court might enter judgment for the plaintiff in the appropriate amount when the defendant presents complete relief into an account payable or to the court. Justice Ginsburg leaves open whether that would moot the case what the result would be, while Justice Alito insists that paying the money to some third-party trustee would moot the case, without the need for a judgment. The case should not be moot, because you cannot have both an entry of judgment and a moot case--the entry of judgment ends the case, so there is nothing to be moot. Alito is wrong because payment of the money does not end the injury, it only compensates for it with a substitute good (money).
Individual right or government wrong?
I have a SCOTUSBlog recap of Tuesday's oral argument in Heffernan v. City of Paterson, which I had previewed. The issue is whether a public employee can state a First Amendment claim where he was demoted because the government believed he was engaged in expressive association, even though the government was actually wrong in that believe. In other words, if the government acts with the intent to retaliate but does not retaliate because there is nothing against which to retaliate, does it violate the First Amendment? Dahlia Lithwick describes the "extra-meta" tone of the argument.
It is interesting to look at this case in light of last week's argument in Friedrichs v. California Teachers Association. The Justices who seemed most critical of the petitioner's position in Heffernan (the Chief, Scalia, and Alito, and to a lesser extent Kennedy) were most solicitious of the employees in Friedrichs and seem most likely to hold that public employees cannot be compelled to pay agency fees to unions, even for collective bargaining activities. But if those positions hold, the practical results seem odd. It would free public employees from any compelled union participation because anything the union does (even negotiating higher wages) is potentially objectionable speech on a matter of public concern, then expand the circumstances in which public employees can be fired based on government presumptions about their associational activity, at least if those presumptions prove erroneous. It is as if that bloc of Justices views it as a greater First Amendment violation to be compelled to pay for another's speech than to be sanctioned for one's own speech
Tuesday, January 19, 2016
JOTWELL: Tidmarsh on Hill on financing class actions
The new Courts Law essay comes from Jay Tidmarsh (Notre Dame) reviewing a student note by Tyler Hill (Yale), Financing the Class; Strengthening Class Action Through Third-Party Investment (Yale L.J.).
Thursday, January 14, 2016
Final CFP Announcement: 2d Annual Civil Procedure Workshop
Here. Paper proposals are due on Friday, January 15.
Tuesday, January 12, 2016
SCOTUS Preview: Political patronage and misperceived association
I have a case preview at SCOTUSBlog for Heffernan v. City of Paterson, to be argued next Tuesday, January 19. The case concerns whether a public employee can state a First Amendment retaliation claim where the government demoted him explicitly because of his supposed political activity, but where he actually was not engaged in any activity. The most recent We the People Podcast features Burt Neuborne (NYU) and John Inazu (Wash. U.) discussing the Assembly Clause and they touch on this case.
Sunday, January 10, 2016
Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.
1) There is an interesting state-action problem here. According to reports, the WIAA was notified about the tweet, then contacted the school via email, which instituted the punishment (apparently for violating the school's anti-profanity policy). There seems to be some dispute as to what the WIAA said or who insisted on the suspension. Gehl's mother said she saw the WIAA's email to the school, which included a snapshot of the tweet "with limited direction other than to 'please take care of it.'" The WIAA's communications director insists there was no such language, but that the tweet was shared "shared with members for their awareness." The school's AD simply said they were contacted and dealt with it in accordance with board policy.
[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.
The school is obviously a state actor. State athletic associations may be state actors, depending on structure. We might (depending on who you believe) have a non-state-actor insisting that punishment be imposed by a state actor. So there is pretty clearly state action here, although how we get there could be a bit convoluted.
2) We need to give up the pretense that secondary-school students have First Amendment rights. Gehl was suspended for a tweet sent to the world, seen only by people looking on Twitter, that spoke about a matter of public concern (to a high school student). There is no indication it was seen by anyone while at school. It did not affect, much less disrupt, school activities--after all, the school did not even know about the tweet until later one. About the only link to make this "in-school" speech is that she sent the tweet from school. The problem seems to be the profanity, but profanity is supposed to be protected in non-school forums that do not cause an actual disruption. In any event, it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" (that is fewer than 140 characters). Yet one reason Gehl is not going to appeal is likely that she knows she will lose, because students are losing all of these cases.
Which is tragic. Government officials, the education system, and society cannot complain that "kids today" are apathetic, then punish them when they take stands on the things that matter to them, simply because those officials do not like the stance. That seems to be why we need a First Amendment in the first place.
3) Looking at the original sportsmanship request, the WIAA should do as Gehl suggests. Among the cheers that the WIAA now prohibits are "'You can’t do that,' 'Fundamentals,' 'Air ball,'** 'There’s a net there,' 'Sieve,' 'We can’t hear you,' the 'scoreboard' cheer and 'season’s over' during tournament play." In other words, it seems, any cheering directed towards the opponent. I guess students are limited to "Hooray, Team." In a different context (say, college sports), I would argue that these restrictions violate fans' free-speech rights (at least at a public school or arena), since they are not vulgar or lewd and do not cause disruption in the context of everyone screaming at a sporting event). Of course, then we go back to point # 2--students never win these cases.
[**] A study found that crowds chanting "air ball" all manage to hit the words in F and D, respectively, putting the chant in the key of Bb.
4) One additional thought: Gehl was suspended for the games, but not punished as a student. But what if the same tweet had come from a non-athlete (say, a student-fan or just a student who objects to stupid restrictions on protected speech)? Would the WIAA have cared? Would the suspension have been from school? Or was Gehl singled out because she is a student-athlete?
Friday, January 08, 2016
No one gets it
I am repeating myself, so I apologize. But this story on Chief Justice Moore's order to Alabama probate judges includes opinions from both sides of the issue--two law professors and the two United States Attorneys in Alabama criticizing the order and anti-marriage-equality advocates praising it to the heavens (in one case quite literally). None of them is right in their analysis.
And the common theme in all of this incorrectness is an overly simplistic approach to the process of constitutional litigation, particularly everyone's disregard for the role of lower courts and judgments. The Supreme Court, in the course of deciding one case, makes broad pronouncements about the law (e.g., the Fourteenth Amendment prohibits bans on same-sex marriage). But those pronouncements are not self-enforcing and do not, in and of themselevs, impose legally binding obligations on any non-parties or as to other laws. As to people and laws not party to the case that created that precedent, an additional step is necessary--separate litigation applying that precedent and producing a judgment as to this new law and these new parties. But we have that in Alabama--Judge Granade's class injunction (entered in May, stayed until the ruling in Obergefell, made effective by order applying Obergefell, and summarily affirmed by the Eleventh Circuit) requiring every probate judge in the state to issue marriage licenses to any same-sex couple that wants one. Thus, the problem with Moore's order is that he is compelling probate judges to act in contempt of court.The USAs insist that the "issue has been decided by the highest court in the land and Alabama must follow that law." Carl Tobias (Richmond) says Obergefell "was a national ruling and it applies nationally." While correct in the abstract, it makes it all sound automatic when it is not--the Court's opinion applies nationally, but the judgment of the Court does not. One of two things must happen: Either the extra step of a judgment against Alabama officials as to Alabama's law, based on Obergefell, is necessary, or Alabama officials must voluntarily comply with Obergefell in order to avoid the inevitable judgment. The point of Moore's order is to force Alabama officials to follow the first rather than second path. That my be unwise, obnoxious, and driven by Moore's pathological intransigence. There is nothing unlawful about it.
But the anti-SSM advocates are equally wrong because they ignore the judgment and injunction against the class. So one advocate can say that Alabama does not have to follow a Supreme Court decision that ruled on law in another state. Which is true, but irrelevant, because of the injunction. Unfortunately, they can argue that way only because Moore's critics (and most, but not all, reporters) talk about this as defying the Supreme Court in Obergefell rather than defying the injunction that applied Obergefell to Alabama law.
And the attorney for one of the probate judges insists that the Eleventh Circuit has not applied Obergefell as to Alabama law. This is wrong in several respects. First, the Eleventh Circuit affirmed the injunction.although the reasoning is convoluted and incorrect in some respects, including its understanding of how Obergefell affected Alabama. Second, regardless of what the Eleventh Circuit did or did not do, the class injunction is out there--it was was entered, took effect, has not been reversed by a higher court, and has not been stayed. This means probate judges are under an ongoing judicial obligation, imposed on them directly and on pain of contempt, to issue licenses. So Moore's order does not merely tell probate judges to wait--it is telling them to act in contempt of a federal judgment. Third, neither federal circuit nor district precedent is binding on state courts, thus, even if the Eleventh Circuit had not spoken, it would not matter because the Eleventh Circuit does not create a greater obligation on Alabama officials than a district court.
So if we are going to discuss this accurately, everyone needs to shift the focus to the district court and to Judge Granade's extant injunction. And with that focus, we see that Moore's order, if followed, sets probate judges (although not Moore himself) up for a potential Kim-Davis-like showdown.
Wednesday, January 06, 2016
Alabama (still) does not go gentle . . .
Chief Justice Roy Moore of the Supreme Court of Alabama is back. Today, he issued an order requiring Alabama probate judges to continue to refrain from issuing marriage licenses to same-sex couples, pending resolution of the mandamus action that has been pending in the Court since March. (H/T: Religion Clause Blog). Once again, Moore is sort of right, sort of wrong, and very short-sighted. A few thoughts after the jump..The linchpin of his analysis is that Obergefell is not directly binding on Alabama probate judges or as to Alabama law; this, Moore insists, is the "elementary principle" that a judgment only binds the parties to that case. Thus, no higher court has spoken to the validity of Alabama's same-sex marriage law or the obligation of Alabama officials to recognize same-sex marriages; instead, we are still waiting for SCoA to address the statutory and constitutional questions in the mandamus proceeding. Moore is right about the scope of SCOTUS's decision. Interestingly, he draws support from cases out of Kansas and the Eighth Circuit that rejected the argument that Obergefell mooted challenges to the laws in these other states; those courts all insisted that Obergefell was merely binding precedent in future litigation, but did not speak to laws or officials or couples in these states, thus leaving those cases as active disputes. In other words, Moore finds support for the position of the Alabama government in cases rejecting the position of these other state governments.
Unfortunately for Moore (or at least for some Alabama probate judges), he ignores the class certification in Strawser v. Strange in the Southern District of Alabama. There is an extant class-wide injunction in the district court declaring the state SSM ban unconstitutional and binding every probate judge to issue licenses to any same-sex couple that wishes to marry in Alabama. That injunction immediately took effect when SCOTUS issued its decision in Obergefell. Thus, while Obergefell is not binding on anyone in Alabama, the district court judgment is. So Moore's order is setting some probate judges up to be held in contempt of that injunction, as well as for damages liability, since Obergefell should clearly establish the right of a same-sex couple to a marriage license, barring outside issues (Ron Krotoszynski his a similar point in The New York Times). And, unlike with Kim Davis, no new federal litigation need be filed; a couple can jump straight to enforcing the injunction.
I am not surprised Moore would ignore that inconvenient piece of information. But I also have not been able to find any indication of activity or orders in Strawser since the summer. Probate judges in several parts of Alabama have been refusing to issue licenses all along, but I have not seen anything about plaintiffs or the court moving to enforce the class injunction. It will be interesting to see whether Moore's new order shakes loose some activity in federal court.
Update: That Times piece is notable because there is no mention of the Strawser litigation. That, not Obergefell, is the key to all of this. That is what binds and compels probate judges to issue the licenses, not Obergefell simpliciter. Will no one ever get this right?
Further Update: Yes, Chris Geidner at Buzzfeed, who generally does a good and accurate job of covering this stuff.
Further, Further Update: Based on Chris' report, in concluding that Obergefell "abrogated" the SCoA decision, the Eleventh Circuit dismissed the appeal as moot. Both of those conclusions are wrong (Marty is right about that in his comment), as well as inconsistent with the Eighth Circuit mootness cases that Moore cited in his order.