Tuesday, October 10, 2017

Argument: Hamer v. NHSC

Here is my SCOTUSBlog recap of Tuesday's argument Hamer v. NHSC. Justice Ginsburg was as engaged in this argument as I think I ever have seen her. She even had some love for the arguments of Scott Dodson (Hastings), who filed an amicus brief putting forward his theory that a jurisdictional rule is any rule, regardless of source, that places a case in one court and out of another. She asked petitioner's counsel about Scott's argument; his response was that Scott's formulation is "incorrect" because inconsistent with prior cases and the Rules of Civil Procedure, although without explaining whether or why that formulation is normatively wrong. No one else followed on Ginsburg's question.

Posted by Howard Wasserman on October 10, 2017 at 10:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Sunday, October 08, 2017

Police as prosecutors

A lawsuit in Manhattan civil court is challenging a program in which NYPD lawyers prosecute summons cases, pursuant to a delegation by the Manhattan DA. The apparent impetus for the move was that the DA generally does not send attorneys to summons court, resulting in many cases being dismissed, in turn forming the basis for constitutional claims arguing that officers lacked probable cause to issue the summons. The police department requested the delegation so it could litigate summons cases or offer a resolution would require the defendants to admit liability, barring a subsequent lawsuit. Plaintiffs claim this is a conflict of interest for the police, which violates due process, undermines the adversary system, and raises a hint of selective prosecution. Plaintiffs allege that the police are pursuing only claims against those cited while engaged in expressive activity (the plaintiffs were cited for actions during a police-reform march, and the charges against one of them were dismissed when the judge found the arresting officers' testimony contradicted by video of the events).

For you crim/crim pro/PR scholars in the audience: What is the problem here, as a legal or ethical matter? Because I do not see it. A lot seems to be about the intent of the delegation and the police lawyers' strategy--to protect officers from subsequent civil suits. But that seems like one, valid influence on prosecutorial discretion, whether the DA or its delegee is exercising that discretion. As for the focus on people cited for expressive conduct, that sounds in selective prosecution, a defense that is hard to prove and as much of a problem (or non-problem) with or without the delegation. What am I missing? 

Posted by Howard Wasserman on October 8, 2017 at 11:49 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Saturday, October 07, 2017

University of Wisconsin bans counter-speech

An intentionally provocative headline, but not too far off. The Board of Regents adopted a policy that "students found to have twice engaged in violence or other disorderly conduct that disrupts others' free speech would be suspended. Students found to have disrupted others' free expression three times would be expelled." (H/T: Steven Lubet). The  linked article contains quotations capturing both sides of this: The regent who says the policy promotes listening and that "drowning out another speaker" does not qualify as freedom of speech, compared with the student who argues that the First Amendment is supposed to be messy and contentious.

The policy is glaringly vague (what is "disorderly conduct," what is "disruption"), etc.).  I expect the university to try to clear that up in its implementing regulations. Meanwhile, I wonder if a constitutional challenge now would be deemed unripe, since the policy is not yet at the point of implementation. In any event, I do not see how the university could write regulations that are clear enough to pass constitutional muster. If the counter-demonstrating, where the counter-demonstrators outnumber and outshout the original speakers, does that necessarily become disruption? Even if listening is a worthy goal to promote, can the state give people a choice between listening (which sounds compelled) or staying away, with talking back no longer an option?

Posted by Howard Wasserman on October 7, 2017 at 02:59 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (17)

Barnette and flag-related speech

Video in this post shows a female fan at last night's Lakers game (played in Ontario, CA) throwing a drink and swearing at two fans who knelt during the Star Spangled Banner. As John Q. Barrett pointed out last week, next year is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, a high point of First Amendment jurisprudence.

But Barnette's legacy has split in unfortunate ways. Barnette stands for the prohibition on compelled expression, an idea that is popular and thriving, expanding to all manner of expression and expressive conduct, such as baking cakes. But Barnette also stands for a prohibition on compelled participation in flag-related ceremonies, which carries with it the right to express one's own message through that non-participation. The actions described above and the general public reaction to and controversy over the anthem at sporting events shows broad public rejection of that piece of Barnette. The public seems less accepting and tolerant of flag counter-speech, derived from Barnette, now than it was 13 years ago, when I wrote this in the early days of Iraq War. And recall that several Justices changed their minds on this issue from Gobitis to Barnette in part because of the violence directed against Jehovah's Witnesses following the first decision; the shift to protecting the right to opt-out was designed to protect dissenters.

We are organizing a symposium at FIU on Barnette's 75th anniversary for next fall. The seeming demise of this part of Barnette could be an important point of discussion.

Posted by Howard Wasserman on October 7, 2017 at 12:00 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1)

Friday, October 06, 2017

ACLU, free speech, and discrimination

The New York Times writes about soul-searching at the ACLU in the wake of Charlottesville. Two items of note.

First, Executive Director Anthony Romero discusses the new policy of not representing protesters who plan to march while armed. Romero ties this to early ACLU policies opposing permits for Nazi groups "drilling with arms." He argues that the ACLU has come full circle with respect to Nazi groups. The analogue to Charlottesville is not Skokie, where counter-protesters outnumbered Nazis 70-to-1, the Nazis were unarmed, and the danger was angry spectators attacking them. Charlottesville is more like the 1930s, when fascism was ascendant in Europe and sufficiently popular in the United States to draw large crowds.

Second, the article describes an open letter by around 200 staffers, arguing that the ACLU's "broader mission — which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment — continues to be undermined by our rigid stance" on hate speech. It is easy to criticize the 200 (as some have) for not understanding what the ACLU is about, given its history, and to tell them to find a different advocacy group. But the signatories are onto something. The modern ACLU has made certain forms of equality part of its core mission. And absolutist protection for free speech does conflict with certain visions of racial justice that would not protect speech advocating for inequality or against equality. It is not the first time this potential conflict has caused the organization problems--in the early '90s, the organization was only lukewarm in its opposition to hate-speech laws and it supported sentence enhancement for racially motivated crimes. And recall the ACLU's 2015 Workplan of major civil-liberties issues, which did not say much about the First Amendment. The signatories have exposed an internal tension of the organization's own making. The usual response to the tension is that speech must be protected for all, lest government turn its censoriousness on equality-promoting groups (consider that the Supreme Court case declaring sentence-enhancement valid involved a prosecution of African-Americans for assaulting white victims). But many racial-justice advocates reject that idea.

The focus on this tension reminds me of the potential tension between "civil liberties" (commonly understood as individual rights as against government, such as free speech) and "civil rights" (commonly understood as equality--both in the face of government discrimination and government efforts to stop private discrimination by legislation). I recall the Harvard Civil Rights-Civil Liberties Law review publishing a symposium on whether its name is an oxymoron. The ACLU may be facing the same problem, as some of its staffers and supporters recognize that they signed up the equality rather than the speech.

Posted by Howard Wasserman on October 6, 2017 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Tuesday, October 03, 2017

Hamer Time

I wrote a SCOTUSBlog preview of Hamer v. Neighborhood Housing Services of Chicago, to be argued next Tuesday; the case considers the jurisdictionality of FRAP 4(a)(5)(C), which limits extensions of time to appeal to 30 days beyond the original appeals period.

Although I did not discuss this in the preview, it bears watching how Justice Gorsuch approaches jurisdictionality. He demonstrated some iconoclastic views on procedural issues in his few cases from the April sitting last Term, often running counter to the rest of the Court, to the Court's recent doctrinal trends, and to recent precedent. Might he be inclined to return to drive-by jurisdictional rulings, counter to the Court's trend of the past decade?

Posted by Howard Wasserman on October 3, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, October 01, 2017

More from Bray on universal injunctions

Two weeks ago, the Northern District of Illinois imposed a universal/nationwide injunction against the new funding conditions imposed against "sanctuary cities." The court justified the scope because there was "no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction." In a WaPo op-ed, Sam Bray argues that this represents the next step in making the universal/nationwide injunction the new, unjustified, default in constitutional litigation against federal law. An injunction should be nationwide unless the challenged law and legal issues are limited to the plaintiff or to the jurisdiction in which the action is brought--which never will be true of federal law. Sam calls on someone--Congress, the Advisory Committee, or SCOTUS--to stop the "remedial irresponsibility." This injunction is of a piece with another low-profile universal injunction issued in May in the Western District of Washington in a challenge to federal regulations of attorneys in immigration proceedings--the government's stated desire to continue enforcing the regulation was sufficient to justify the expanded scope, a basis that similarly applies to all federal law.

Unfortunately, I am not sure who is going to put the brake on this practice.

Expecting Congress to do anything is beyond wishful thinking.

SCOTUS has, implicitly and probably unthinkingly, approved the practice by affirming the universal injunction in U.S. v. Texas (the DAPA case) and by leaving the injunction in place as to those "similarly situated" to the plaintiff in IRAP (the travel ban case). Both decisions were bound-up with other procedural concerns. Texas was affirmed by an Segall-ian evenly divided Court . In IRAP the Court was trying to figure out how to remold the substantive injunction in the guise of granting cert. and staying the injunction pending appeal; it did not have the time or attention to consider injunctive scope in terms of plaintiffs protected. And with the case likely moot, we start all over again.

The Advisory Committee is an interesting actor that I had not considered. But it would take too long to get anything done, given the committee process. And the Committee may be as surprised as everyone else that this practice has become so pervasive--the current language of Rule 65 combined with the existence of Rule 23(b)(2) injunctive class actions should tell district courts that they cannot issue an injunction protecting everyone in a class without a class.

Posted by Howard Wasserman on October 1, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, September 27, 2017

Sports and Speech: From the ridiculous to the sublime

I have not weighed in on the craziness about protests in the NFL, because so much of this (from both sides) is more noise than signal. For now, I want to flag to recent pieces:

1) Jonathan Eig writes that the public hated Muhammad Ali when he was speaking (and acting) out against the war at the time he was the loudest and angriest; it was only after he became harmless (because of his medical condition) and less adversarial in his views that he became beloved. The same is happening with Colin Kaepernick, to a limited extent. As some people praise him for starting a movement, he remains out of a job. And the message he was trying to get across--inequality and systemic mistreatment of African Americans--has been replaced by a league-approved anodyne message of "unity" and objection to "division."* Perhaps Kaepernick will get a job, although I doubt it. More likely, he will be praised 15 years from now, when he no longer can play football (and have a high profile to make an expressive effect), for standing up for his beliefs.

[*] Hint: If the only goal was to be "united" and not "divided," we would not need a First Amendment.

2) This story about a fan ejected from Yankee Stadium for shouting the location of pitches in Spanish. The umpire removed him for "cheating" by tipping the Yankee batters to the location of pitches. This is beyond stupid. First, the idea that he is remotely helping the batter to hit a 95-mph pitch is nonsense--the pitch is in the catcher's glove before the batter would hear anything. Second, there are 40,000 fans shouting the location of pitches--it is what fans do and are expected to do.

To the extent there is a lawsuit, I am curious how the status of current Yankee Stadium is resolved. Old Yankee Stadium (the one used, pre- or post-renovation, from 1923-2008) was owned by New York City and there were some good arguments that, in using the stadium, the Yankees acted under color and became bound by the First Amendment. A district court held that in 1978, in a lawsuit brought by female sportswriters who were barred from the lockerrooms during the 1976 World Series. And some good arguments were pled in a lawsuit filed by a fan who had been removed for failing to stand for "God Bless America," but the case settled. Public funds paid for more than 50 % of construction of the current stadium, although I do not know the details about ownership and control.

Posted by Howard Wasserman on September 27, 2017 at 02:09 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Monday, September 25, 2017

Barnette at 75

John Q. Barrett reminds us that next June is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, which makes the short list of most important First Amendment decisions, both for its principles and its rhetoric. Given everything going on in the world of sports since last week, both are being put to the test.

Posted by Howard Wasserman on September 25, 2017 at 04:37 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Sunday, September 24, 2017

Hecklers and counter-speakers (again)

Mark Tushnet, writing on Vox and Balkinization, argues that the counter-speakers/hecklers/audience members who attempt to shout down other speakers engage in constitutionally protected activities and the First Amendment is violated by many of a state university's efforts to stop hecklers. Mark argues that the speaker and the hecklers are "symmetrically situated with respect to speech" and that the intuitive "first come, first served" rule fails to capture the complexity of situations or to recognize that it is not always clear who is "first" in any situation. (If the speaker is inside the auditorium and the hecklers are outside, the hecklers are first in that outdoor space).

Mark captures well a lot of what I have been thinking and arguing about this, that deriding hecklers/protesters/counter-speakers as exercising the dreaded heckler's veto misses the mark. Labeling this  as "noisy interference" also is too simplistic, as it fails to capture the expressive nature of what many hecklers do. And all of this comes on the heels of a poll showing that a majority of college students believe it is ok to shout-down speakers.

Mark is searching for a rule or balance that does not inevitably take content into account. One answer might be that it depends on the precise forum,. On this, perhaps we distinguish between a limited-space auditorium that must be reserved and open areas on campus; audience members have greater counter-speech rights in the latter than the former. Or we distinguish between the speaker stage and the audience, so a heckler can shout from the audience, but not run on stage and grab the microphone.

But Mark's arguments show that the content problem arguably never goes away (something I had not crystallized previously). Consider audience members in an auditorium, with the speaker on stage. Mark argues that, even if the speaker has priority over the audience, all members of the audience are symmetrically situated. We can imagine a situation in which the crowd of speaker-supporters is loud and raucous, to the point that their cheering and shouts of "USA! USA!" or "you said it" cause the speaker to pause or make it impossible for him to hear. I doubt anyone would want these supporters removed. So what is the difference between audience members whose jeering and shouts of "fascist" (Mark uses  Joe Wilson's "You lie") cause the speaker to pause or make it impossible for him to be heard? Content and viewpoint.

We might get around the problem by distinguishing the nature of the forum and the expression in that forum0--an academic lecture as opposed to a political or partisan rally. But that highlights the complexity of the problem and the absence of easy answers--the precise point Mark is trying to make.

Posted by Howard Wasserman on September 24, 2017 at 06:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Saturday, September 23, 2017

(Final?) Posner-Rakoff dialogue

I am late on this, but here is the most recent (final?) dialogue between Richard Posner and Jed Rakoff, published a few weeks after Posner's resignation frmo the court.. The conversation began from the question of whether judges should rely on their “common sense” (what Posner has described as “pragmatism” in judging), a binary that Posner properly rejects. I like the conversation over the competing roles and competencies of trial as opposed to appellate judges, both in the U.S. and in other systems.

I also like that Rakoff threw in one of my favorite jokes about a trial judge, appellate judge, and Supreme Court Justice (I tell it with a law professor) who go duck hunting.

Posted by Howard Wasserman on September 23, 2017 at 10:42 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, September 22, 2017

Tocqueville and judicial departmentalism

Dahlia Lithwick wrote about the litigation of the Joe Arpaio pardon, with the district judge hearing from numerous amici about the constitutional validity and effect of the pardon. The article ends by quoting one amicus, Ian Bassin of Project Democracy: "Thankfully, in America it’s the courts who get the last say on what the Constitution allows."

As I have been arguing again and again in defense of judicial departmentalism, this is not  true as a normative matter, at least not in the absolute sense in which it is presented here, as simply the way it works in America. It may be true as a practical matter in a substantial number of cases, because many constitutional issues wind up in court and the court must decide the constitutional issue to decide the case and the executive does not have discretion to decline to enforce that resulting judgment. When constitutional questions end up in court, the judiciary will get the final word.

This got me thinking of Alexis de Tocqueville, who famously said that "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (Mark Graber in 2004 revisited Tocqueville's thesis; he argued the statement was not as true as Tocqueville said, but may be more true in current times than it was during the Jacksonian Period in which Tocqueville was writing, as more political questions first get resolved into constitutional questions). Tocqueville's thesis affects just how much judicial supremacy we get in a judicial-departmentalist scheme. The more political questions that are resolved into judicial questions, the more the judiciary is going to get the last word, because the courts must decide the constitutional issues and the executive must enforce those judgments.

The political question of the Arpaio pardon is resolving into a legal question because the pardon touches on pending litigation. But that makes this pardon unusual--most pardons come before any charges have been brought (Nixon) or after the person has been convicted, sentenced, and served some portion of the sentence. So Bassin's comment about the judiciary getting the last word is accurate in this case, because of the unique posture of the pardon. But he is correct only to the extent Tocqueville was correct.

Posted by Howard Wasserman on September 22, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, September 18, 2017

JOTWELL: Smith on Baude on Qualified Immunity

The new Courts Law essay comes from new contributor Fred Smith (Emory), reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev.  (forthcoming 2018). This is a great article that Justice Thomas citing in his concurring opinion in Ziglar and that I cited to extensively in updating the immunity sections of Civil Rights book.

Posted by Howard Wasserman on September 18, 2017 at 04:14 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Friday, September 01, 2017

Judge Posner retires

Effective Saturday, September 2 (tomorrow). Official Seventh Circuit announcement is here.

Posted by Administrators on September 1, 2017 at 06:19 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, August 29, 2017

Palin v. NYT dismissed

Judge Rakoff of the Southern District of New York has dismissed Sarah Palin's defamation action against The New York Times, concluding that the allegations of actual malice, in conjunction with the testimony heard in questionable evidentiary hearing, showed that Palin had not pled facts plausibly showing that the editorial-page editor knew or recklessly disregarded the truth of statements about the connection between Palin's PAC publications (which featured gun-sites over "targeted" congressional races) and the Gabby Giffords shooting.

The order includes a lengthy footnote explaining the use of the evidentiary hearing. He justified it because a "court must have some knowledge of the context in which the underlying events occurred in order to carry out the function with which the Supreme Court has tasked it" --the "context-specific task" of evaluating plausibility. Also, neither party objected, the facts established by the testimony in the hearing are not in dispute, and no credibility determinations were made. And although he did not mention it, it appears that none of the testimony contradicted anything in the complaint. The testimony in the hearing was combined with the facts in the complaint and used to measure whether the facts showed actual malice.

But all this ignores FRCP 12(d), under which a court converts a 12(b)(6) to a motion for summary judgment when materials beyond the four corners of the complaint are used. Iqbal did not overrule or repeal 12(d), so the need for knowledge of the context cannot necessitate such hearings. It also would have been simple enough for the court to take the evidentiary hearing and convert to summary judgment (although perhaps the parties would have demanded some discovery, if only on actual malice). In short, obtaining and using information beyond the allegations of the complaint cannot be justified under the current rules without converting.

The merits discussion also appears to make the hearing unnecessary, because much of the analysis suggest that the problem with the complaint was legal insufficiency rather than plausibility-factual insufficiency. The problem was not a dearth of facts or the conclusoriness of the facts, but that the facts alleged, even if detailed, could not establish actual malice. For example, allegations of hostility towards Palin, economic motive to criticize Palin, and failure to comply with journalistic practices--alleged, in varying degrees of conclusoriness--all are insufficient, as a matter of law, to show actual malice.

All-in-all, a good First Amendment decision (I should add that there is some great language about the First Amendment, political speech, and the narrowness of actual malice), but reached in a procedurally incorrect way.

Posted by Howard Wasserman on August 29, 2017 at 06:30 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Sunday, August 27, 2017

The process of the Arpaio pardon and civil-rights enforcement under Trump

Josh Chafetz (Cornell) has a Twitter thread and WaPo op-ed arguing that the focus should be on the underlying racism, sadism, and abuse of power motivating the Arpaio pardon, not the fact that the pardon was for a criminal contempt conviction. In other words, the problem is that Trump pardoned a racist, sadistic serial abuser of state power, not that he pardoned someone who had been held in contempt. Josh suggests that we might want a President to pardon someone convicted of contempt, at least in some circumstances.

His example is the facts underlying United States v. Cox (5th Cir. 1965). Two African-American men testified in a federal suit against a state official, saying the official had refused to register them as voters; when he denied discriminating, the federal judge presiding over the case recommended that the two men be charged with perjury. DOJ investigated, but found no grounds for a perjury charge. Nevertheless, the judge ordered the case submitted to a federal grand jury, which convicted. When the US Attorney (acting on orders of Acting AG Nicholas Katzenbach) refused to pursue the indictment, the judge held the US Attorney in contempt and ordered Katzenbach to show cause why he should not be held in contempt. On direct review, the 5th Circuit reversed the contempt order, but refused to grant a writ of prohibition to Katzenbach, who had not yet been placed in any risk of contempt.

Procedure does matter, because of the circuitousness of that hypothetical pardon. The orders in Cox were for civil contempt, so a pardon would not have made a difference. To get to criminal contempt for a racist federal judge requires so many additional steps, including the cooperation of the US Attorney and Department of Justice. So you would need not only a racist judge, but a racist DOJ, with all its layers of review, that a subsequent President would choose to rebuke through a pardon. That all seems unlikely.

A second procedural issue involves civil contempt. To the extent this pardon sends a signal about civil rights enforcement, the effect may be federal judges relying more on civil contempt, including fines and jail for recalcitrant prison officials. Arpaio and Maricopa County had been held in civil contempt, but the judge chose not to enforce the citation against Arpaio (wisely, given the risk that it would have turned him into a martyr). Criminal contempt became necessary when nothing else worked and when Arpaio was voted out of office. But how plaintiffs frame cases affects available approaches to contempt going forward. Big structural-reform cases are brought against the entity, but courts are reluctant to impose sanctions such as fines or jail against non-parties, except as an extreme last resort. So expect civil-rights plaintiffs to spread the scope of their complaints to top officials in addition to the entity.

Posted by Howard Wasserman on August 27, 2017 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, August 25, 2017

More on pardoning Arpaio (Updated)

Thanks to Paul for flagging Marty Redish's NYT op-ed on the potential Arpaio pardon. Like Paul (and Marty), I do not know if the argument works. But I wanted to flag how his argument interacts with the version of "judicial departmentalism" I have been urging. My framing relies on Gary Lawson's version of departmentalism--the president can ignore judicial precedent as precedent he believes gets the Constitution wrong, but cannot ignore court orders. That includes the orders by which he is bound by as a defendant (e.g., the challenge to the travel ban) and the orders he must enforce on behalf of the federal courts involving other officials,even if he disagrees with the underlying constitutional judgment.*

[*] Lawson allows that the president might ignore a court order in extraordinary circumstances, but I put that to the side for the moment.

Marty's argument gives Gary's (and my) distinction a Fifth Amendment grounding. There is no functional difference between the president ignoring or declining to enforce a judgment and a president pardoning (or promising to pardon) another official who ignores court orders. If one violates due process, so does the other. And if departmentalism does not extend to one, it does not extend to the other.

Finally, if this becomes a concern, consider the federal courts' counter: Stop using criminal contempt and rely on civil contempt to enforce injunctions, including by jailing the recalcitrant official. There is no crime or conviction from which to pardon.

Update: Trump pardoned Arpaio on Friday.

Posted by Howard Wasserman on August 25, 2017 at 01:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, August 24, 2017

The emptiness of "judicial activism"

The latest Slate Dialogue between Judge Posner and Judge Rakoff considers the meaning of judicial activism and judges using the bench to effect social change. Neither Posner nor Rakoff is having it. Both reject the idea that there can be judicial activism, that there is some clear "existing law" to be departed from in an activist decision, and that common law courts do not "make" policy. It ends up as a somewhat silly conversation, with the moderator putting forward every bromide about activism and misuse of the judicial power (even quoting Wikipedia's definition of judicial activism) and Posner and Rakoff rejecting the premise at every turn. But it shows the emptiness of the term and the concept of activism, which Rakoff labels a "myth."

Posted by Howard Wasserman on August 24, 2017 at 11:26 PM in Howard Wasserman, Law and Politics | Permalink | Comments (13)

Tuesday, August 22, 2017

"Revisionist History," power, and Alabama v. Tom Robinson

Malcolm Gladwell has a podcast called Revisionist History, which finished its second 10-episode season. Four of the episodes in Season 2 dealt with civil rights and the Civil Rights Movement, including episodes 7 & 8, which are about Donald Hollowell, an African-American attorney in Georgia, and Vernon Jordan, who assisted him. The podcast is great (unless you are predisposed against Malcolm Gladwell, then it likely confirms what you do not like about him) and these two stories were highlights.

Episode 7 focuses on the story of Nathaniel Johnson, an African-American man executed for raping a white woman (with whom he claimed to be having an affair) in 1959 Georgia. Gladwell compares this case to Tom Robinson in To Kill a Mockingbird, where a white woman's romantic interest in an African-American was turned into rape. Gladwell focuses on some bits from the book not included in the movie: Robinson's testimony that Mayella Ewell said she had never kissed a man before and that what her father did to her didn't count and that Bob Ewell's first words when he saw them through the window were "you dirty whore".

Gladwell's theme in these two episodes is power. And he argues that, with that bit of testimony, Atticus' defense became clear: To ask the jury not to be racist against Tom but to be sexist against Mayella (a different type of powerless person), who is portrayed as (Gladwell's words) a participant in incest. (So Atticus was a sexist, on top of the reveal in Go Set A Watchman that Atticus was, even in his time, a racist--it's been a rough couple of years).

But I thought this missed the mark in three respects.

First, even as an 11-year-old, I did not read Mayella as a participant in incest but as a victim of sexual abuse at the hands of her father. I also read him as forcing her to testify untruthfully. Perhaps that interpretation is unreasonably favorable to Mayella or against her father. And perhaps an all-male jury in 1930s Alabama would have seen it the same way as Gladwell. But I read it as Atticus trying to put Bob on trial, not Mayella. Consider the evidence (more of a focus in the movie) designed to show that Bob beat Mayella, whereas Tom (who did not have use of one of his arms) could not have done so.

Second, even if Bob was Atticus' real alternate target, Gladwell missed another power dynamic involving class and education. The Ewell's were "poor white trash" within that society. All the evidence that Atticus presented against Bob Ewell was designed to play to what the jury, the judge, the prosecutor, and the sheriff already believed about him.

Third, it shows race as the overwhelming power dynamic. No matter how badly the jury and every other institutional player disliked and disbelieved Bob Ewell, he had more credibility than an African-American. At the end, everyone was willing to bury how Ewell was killed because he had it coming, but not before allowing an African-American to be sacrificed for Bob's misconduct.

Posted by Howard Wasserman on August 22, 2017 at 12:00 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (0)

Saturday, August 19, 2017

Heckler's Veto?

According to reports, tens of thousands of counter-protesters showed up in marches and rallies in Boston, vastly outnumbering the few hundred people attending the the planned rally in Boston Common, which disbanded after an hour without planned speeches. From what I have read, there were so many more counter-protesters than ralliers that the latter could not be heard. And that was the goal of the counter-protesters.

So: Heckler's veto? And if not, how is it different from some of the campus incidents in which crowds outside the lecture hall have made it impossible for the invited speaker to be heard inside the hall?

Posted by Howard Wasserman on August 19, 2017 at 05:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (4)

Friday, August 18, 2017

Trick plays and baseball rules

This is a great story about a trick play in a high-school baseball game. Called the "skunk in the outfield," the play arises with runners on first-and-third. The runner on first walks into right field, hoping to confuse the defense into doing something stupid about that runner, allowing the runner on third to score. It did not work, because the defense kept its cool. It instead produce a 152-second standoff, an ongoing "play" on which nothing happened and no one moved--one fielder stood with the ball and stared at the runner standing in right field. And everyone--players and fans--became increasingly angry.

Posted by Howard Wasserman on August 18, 2017 at 10:44 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Tuesday, August 15, 2017

Random thoughts for the day

Two items for the morning, not particularly related.

1) President Trump is "seriously considering" pardoning  Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt for repeatedly ignoring injunctions against his department's Fourth Amendment-violative practices. Trump believes Arpaio has been a strong actor against illegal immigration. But Arapio's department was found to have engaged in systematic constitutional violations and then Arpaio intentionally and repeatedly disregarded court orders designed to stop that behavior. So it seems to me this pardon signals a lot--that federal, state, and local officials can be freer to ignore civil rights injunctions and that Trump, who does not hold the federal judiciary in much regard, may resist both obeying and enforcing future injunctions.

2) In the wake of Charlottesville, there has been discussion about driving into crowds of liberal protesters who move into the streets, with several states proposing laws that would immunize drivers for doing so. Florida's bill would 1) make it a second-degree misdemeanor for a person to "obstruct or interfere" with street traffic "during a protest or demonstration" for which there was no permit and 2) immunize any driver who unintentionally injures or kills someone who was in the street in violation of the first section.

My question: Does such a law violate the First Amendment? Florida law already prohibits obstructing public streets (it is a pedestrian violation), so this law would impose special heightened penalties when the obstruction occurs during an unpermitted protest or demonstration. Florida is a comparative negligence state, so a driver who unintentionally injures or kills someone who is wrongfully in the street (e.g., crossing against the light) may bear some liability for his negligence--unless the victim was in the street during an unpermitted protest or demonstration. In other words, the penalty for obstruction is greater and the protection against negligent drivers less when the person was in the street for expressive purposes than other purposes. This sounds like what Marty Redish and I called a "gratuitous inhibition on speech"--a law that treats more harshly activity done for expressive purposes than for non-expressive purposes.

Posted by Howard Wasserman on August 15, 2017 at 10:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (14)

Sunday, August 13, 2017

Article Submissions: W&L Journal of Civil Rights and Social Justice

The Washington and Lee Journal of Civil Rights and Social Justice (JCRSJ) is conducting a direct article review for submissions to our Fall 2017 Book, Volume 23, Issue 1. Any article submitted to the journal by Sunday, August 27 at 10:00 p.m. will be reviewed and evaluated before September 4.  If you have submitted an article to JCRSJ previously, please resubmit your article for consideration in this direct review.

By submitting your article, you agree to accept a publication offer, if extended by the journal.  Any articles accepted will be published in Volume 23, Issue 1, scheduled for publication in December 2017.

If you wish to submit an article, please e-mail an attached copy of the article, along with your CV, to JCRSJ@law.wlu.edu.  Please include “2017 Direct Article Review” in the subject line. Thank you so much and we look forward to reviewing a number of articles.

Posted by Howard Wasserman on August 13, 2017 at 01:52 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, August 11, 2017

First Amendment procedure

Sarah Palin sued The New York Times for defamation over a June editorial (following the congressional ballgame shooting) that linked Palin's rhetoric to the 2011 Gabby Giffords shootings. Palin alleges The Times writers acted with actual malice, in part because the paper had published numerous news stories showing there was no link between Palin's rhetoric and Jared Loughner. The Times moved to dismiss, arguing that the complain did not plausibly plead actual malice. In a brief order yesterday, Judge Rakoff ordered the author(s) of the editorial to appear at an evidentiary hearing next week, for questioning about their awareness of these prior news stories.

The prevailing view among civ professors online seems to be that the order is inappropriate.

The point of Twiqbal is that a plaintiff must plead sufficient facts, without the benefit of discovery, to allow a reasonable/plausible inference of the elements of a claim. If the plaintiff cannot do that, the complaint must be dismissed and, perhaps, the plaintiff given a chance to replead. That is a problem for facts such as actual malice, that go to the defendant's state of mind, but that is the regime the Court has set-up. The court has discretion to convert a motion to dismiss to a motion for summary judgment if matters beyond the complaint (such as testimony) are considered. But Judge Rakoff did not do that here. He is using this testimony, not including in the complaint, to rule on a 12(b)(6). Unless, of course, he converts later, although conversion must include notice and an opportunity to present material, which might require an opportunity to take discovery.

This case somewhat illustrates the problems with the Twiqbal regime. Courts are supposed to decide plausibility based on "judicial experience and common sense," which essentially requires a form of judicial notice. We might understand Rakoff as trying to enhance his experience and common sense, one of many work-arounds courts have developed. But the point of Twiqbal is to keep defendants from having to deal with any discovery, even a few hours of testimony. Rakoff seems to be trying to have it both ways--get enough information to evaluate the factual assertions, without deeming the complaint sufficient (which it seems to be) and allowing the case to move forward to full (or at least sectioned) discovery. To the extent Rakoff is doing something necessary to make an intelligent plausibility determination, it reveals the problem and impossibility of implementing such a standard at the pleading stage.

This offers a nice example of when a party might be tempted to use a writ of mandamus to challenge an interlocutory order. Mandamus is limited to exceptional circumstances in which the trial court clearly overstepped its bounds. Ordering discovery before deciding a motion that is designed to keep cases out of discovery might qualify. The drawback, as someone pointed out, is that a mandamus requires The Times to formally sue Judge Rakoff (or the Southern District), who will preside over this litigation; a party's reluctance to wield this tool is understandable.

Alexi Lahav has a new paper describing how courts disregard the FRCP's procedural design (complaint/dismissal/discovery/summary judgment), but moving pieces and skipping steps. This seems another example.

Posted by Howard Wasserman on August 11, 2017 at 12:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Teaching via treatise

Classes begin at FIU on Monday.*

[*] Although I must confess to wishing we had another two weeks of summer this year. This is unusual for me--I enjoy the semesters more than summers, because I like the rhythm and routine of teaching. But I am in the midst of three projects and believe I could finish all with an extra two weeks before having to balance teaching time. 

I am trying something different in Federal Courts this semester. I am not using a casebook, but instead am working primarily from two treatises (Erwin Chemerinsky's comprehensive Fed Courts treatise and Jim Pfander's Principles treatise), along with the Constitution, statutes, a handful (maybe 10) of recent cases, and some problems. I have been toying with this for a couple years and finally decided to pull the trigger this year. A few thoughts went into this. I sensed that in upper-level classes, many students used the treatises to prep rather than reading the cases.  My class discussion is organized in a treatise format--we do not work through individual cases, but discuss the doctrine at a macro-level whole, so it may be better to have them read and prepare in a similar format. And the author of one of the books convinced me that my spoon-feeding concerns ("the students are not having to figure out the rules of standing for themselves, Chemerinsky and Pfander are telling them the rules") were overstated and that the class discussion can be as rigorous. Plus, as I will remind the students on Monday, they will have more total pages of reading this way, and while it may take less time or require less re-reading, they still must read with care and preparation to engage in the discussion.

If I like how it works, I plan to follow the same format in Civil Rights in the spring, using my treatise (new edition forthcoming).

Posted by Howard Wasserman on August 11, 2017 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (21)

Tuesday, August 08, 2017

SEALS faculty recruitment

SEALS is considering whether to establish a faculty recruitment conference for member and affiliated schools.* Details--whether it should be for laterals, entry-levels, or both; whether it should be in conjunction with the August annual meeting--are yet to be hashed out. The organization will appoint a committee to study the question.

[*] Motto: "Every school is southeast of somewhere."

Faculty at member and affiliated schools who are interested in serving on the committee can contact Russ Weaver at Louisville. If you have thoughts on the idea and how to implement it, leave them in the comments.

Posted by Howard Wasserman on August 8, 2017 at 09:31 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (4)

Monday, July 31, 2017

Self interest or political stand?

One strand of criticism of media coverage of the 2016 election was that outlets such as CNN only called out Donald Trump's behavior when he started criticizing and attacking the press and its members. The institutional media, it was argued, was not a bulwark of liberty; it was a bulwark of the First Amendment, committed to criticizing attacks on free speech because they directly affected reporters and the press as an institution.

I had the same thought reading this piece by Dahlia Lithwick arguing that Trump's staunchest allies may be pushing back against his excesses, if not outright abandoning him. Her evidence: 1) the Boys Scout's apology for Trump's Jamboree speech; 2) the Joint Chiefs' announcement that they would give no effect to Trump's tweet announcing that transgendered people no longer could serve in the military; and 3) statements by the Suffolk County Police Department, and other departments and police associations, disavowing Trump's encouragement of unnecessary force against arrestees. Dahlia wonders whether "it's fair to ask whether everyone’s had enough of all this racist, homophobic, lawless, and violent “truth-telling,” and whether this trend of American institutions holding Trump to account for his spoken words might continue."

Bracketing the military example for now, it is difficult to view the others as examples of standing up to Trump as opposed to institutional self-interest and self-preservation. BSA issued a passive-voice sort-of apology ("sincere apologies to those in our Scouting family who were offended by the political rhetoric that was inserted into the jamboree"). It neither accepted responsibility for a predictable occurrence, assigned responsibility to the President for overstepping, nor apologized for behavior (e.g., booing the former President) that departed from the organization's avowed principles.  BSA did not abandon the President; it distanced itself from the negative reaction to his speech. This half-statement reflected the minimum necessary to assuage angry current members and to attract potential new members. As for the Suffolk County P.D. and other police organizations, their statements were necessary to avoid the appearance of endorsing excessive force in order to avoid legal liability, both for themselves as municipalities and for their officers. People recognized that speech might become an issue in future excessive-force cases; these statements were the minimum to rebut a suggestion of condoning what the President described and the officers cheered.

It is telling that none of these statements mentioned or criticized the President or his specific words or actions or the organizations' members. BSA did not say it was not ok to boo the former President; Suffolk County P.D. did not criticize its officers for cheering the use of force. The statements were abstract and passive--political rhetoric was asserted into the Jamboree, stories about using excessive force were told--designed to express disagreement with an idea, but not criticism of the idea or the person who expressed it. We will be where Dahlia suggests only when that begins happening. Until then, it strikes me as wishful thinking to see this as more than self-interest.

Posted by Howard Wasserman on July 31, 2017 at 08:51 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, July 28, 2017

Excessive force

Following the President's speech today, the Suffolk County Police Department found it necessary to announce to the public (and remind their officers) about the Fourth Amendment and strict department policies regarding use of force and handling of prisoners and the lack of tolerance for roughing up prisoners. So the higher-ups realize there is at least a perception problem. (The International Association of Police Chiefs also issued a statement, declaring that treating all people with dignity and respect is the "bedrock principle behind the concepts of procedural justice and police legitimacy"). On one hand, the exchange shows institutions pushing back against presidential lawlessness. On the other, the disconnect between police executives and rank-and-file is striking.

But I could see discovery in the next excessive-force civil rights claim against the Department becoming interesting, because a good plaintiff's lawyer could make hay out of this event. Cane she use the video and the department response to suggest the officer knew the force was wrong and used it anyway, defeating qualified immunity? Does the cheering rank-and-file show a departmental custom? What if the next involved officer is one of those sitting behind the President, identifiable, and visibly cheering/laughing/clapping officers are identifiable--can that be used to overcome immunity? Can a plaintiff's lawyer make a failure-to-[blank] claim by showing that the department did nothing to discipline or retrain the officers who visibly cheered/laughed/clapped?

Posted by Howard Wasserman on July 28, 2017 at 07:04 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, July 22, 2017

Update on late-game fouling and the "Elam Ending"

In April I wrote about the proposal from Nick Elam to eliminate late-game fouling basketball by making the end of the game untimed and playing to a target score (+7 of the leading team when the clock is turned off in the final minute). The Basketball Tournament implemented the Elam Ending for its 16-team pre-tournament; it now reports on the results--there was no late-game fouling, some exciting comebacks, and the final time time lasted between two and five minutes of game time.

Posted by Howard Wasserman on July 22, 2017 at 04:13 PM in Howard Wasserman, Sports | Permalink | Comments (7)

CFP: National Conference of Constitutional Law Scholars

The Rehnquist Center is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16-17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Adrian Vermeule will deliver a keynote address. Distinguished commentators for 2018 include:

  • Jamal Greene
  • Aziz Huq
  • Pamela Karlan
  • Frank Michelman
  • Cristina Rodriguez
  • Reva Siegel
  • Robin West

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by September 15, 2017. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by October 15, 2017. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan (acoan@email.arizona.edu). For logistical questions or to register for the conference, please contact Bernadette Wilkinson (bwilkins@email.arizona.edu). The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches.

Register here.

Conference Organizers

Andrew Coan, Arizona

David Schwartz, Wisconsin

Brad Snyder, Georgetown

The Rehnquist Center

The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

Posted by Howard Wasserman on July 22, 2017 at 11:19 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, July 19, 2017

The lawyer, the addict, and the law professors

What did people think about The Lawyer, the Addict in last weekend's New York Times? The piece was written by the ex-wife of a lawyer who died of an overdose; in investigating her husband's drug use and death, the author found a legal profession with high rates of substance abuse.

For now, I want to focus on one small section of the piece, sub-titled "The Law School Effect," which suggests that law school is part of the problem. Prior to law school, future law students are healthier than the general population--they drink less, use less drugs, have less depression, and are less hostile; they also begin with a stronger sense of self and values. Then it all changes in law school, which "twists people’s psyches and they come out of law school significantly impaired, with depression, anxiety and hostility." Following the start of law school, students show "a marked increase in depression, negative mood and physical symptoms, with corresponding decreases in positive affect and life satisfaction."

The piece points to a few factors. One is the way law school encourages students to remove emotions from their decisions. Another is the focus, and the shift in student focus, to status, comparative worth and competition, looking at things such as grades, honors, and potential career income, and away from the idealism that had motivated them to come to law school. The result is that young lawyers succumb to substance abuse when "the reality of working as a lawyer does not match what they had pictured while in law school."

I focus on this because it is the one part of this I might affect in my professional life. But I wonder what we as law professors can or should do about this. Start with the three big things mentioned in the article:

   • I am not sure law school encourages students to remove emotion from their decisions as much as to learn that emotion cannot be the basis for the decision. I like when students feel passionately about something. The problem--and the thing law school must teach--is that the whole of the analysis cannot be emotion and emotion cannot get in the way of everything else; they must move past emotion and go where the law does, can, or should lead, which is what I think law school tries to do. I also believe many professors and courses try to get students to think not only descriptively but also prescriptively about what the law should be or about how they would counsel a client to behave. But if it is all emotion--this is how I feel it should be--we are doing cable news or Twitter, not law.

   • Is law school more focused on grades, honors, and career income than other professional schools? Also, is this focus coming from law schools or from the profession? And, in any event, what can we do about it? Students go to law school to get jobs as lawyers--a central criticism of legal education is that we are producing too many lawyers who will not get jobs (or at least not good jobs) as lawyers. So career focus seems seems built into the education process. As to grades and honors, those are the signals that the job market uses in giving out jobs as lawyers. I suppose it would be nice not to give grades (grading is every prof's least-favorite part of the job), but that obviously is not happening. Students are aware of the import of grades and honors because they know they are the keys to getting jobs. At least within the curriculum, most professors are focused on students learning the subject rather than getting good grades, although the two ideally run together.

   • Loss of idealism is inevitable and, by definition, unrealistic. This is not unique to law or law school. (The author's ex-husband worked  as a chemist before law school, but found the work tedious--I imagine it departed from what he expected when he went to grad school for chemistry). Loss of idealism seems akin to the removal of emotion--idealism should not be eliminated, but it cannot control the game. We live, and will practice law in, the real world.

Another obvious factor, not mentioned in the article, is that law school is a lot of work--a lot of reading, a lot of preparation, and a lot of assignments going on at once. And it is not structured passively, with students sitting and listening to us lecture, so it is difficult to just skate by (at least in first year). Again, however, so is legal practice. Even if one wants to argue that the traditional law school classroom is ineffective and should be replaced by other methods, those other methods still require to read and be prepared for class, so the amount of work and preparation does not change. And, again, is law school more work than med school, engineering school, etc.?

So what can law schools and legal education do to not be a gateway that, by its nature and structure, starts students into this potential danger (according to the article)? (In answering, we must assume no changes to the legal profession or what life is like for practicing lawyers--law schools cannot make unilateral changes that would create more of a disconnect between education and the profession).

Posted by Howard Wasserman on July 19, 2017 at 12:28 PM in Howard Wasserman, Teaching Law | Permalink | Comments (33)

Wednesday, July 12, 2017

Judge Wood is not happy with Jeff Sessions and other appellees

Seventh Circuit Judge Diane Wood issued a fed-up in-chambers opinion, calling out two appellees, including Jeff Sessions, for inadequate jurisdictional statements. The order called out appellees for failing to state in their briefs that the appellants' jurisdictional summary was both "complete and correct" (both appellees certified only one but not the other) and struck appellee briefs in two cases--one by Sessions (or DOJ) and one by the Airline Pilots Association.

Judge Wood identified routine problems with appellants' jurisdictional statements that appellees waive away; many are common problems  in the jurisdictional statements in district-court pleadings that I discuss in class:

in federal question cases where jurisdiction depends on 28 U.S.C. § 1331 , the failure to specify the particular statute or constitutional provision at issue, and in diversity cases, failure to distinguish between citizenship (required by 28 U.S.C. § 1332 ) and residency (irrelevant) and, for organizations such as partnerships, LLPs, and LLCs, the failure to work back through the ownership structure until one reaches either individual human beings or a formal corporation with a state of incorporation and a state of principal place of business.

This is worth sharing with students, who often do not recognize or accept how important these details are. (I also use an Easterbrook opinion, in which he sanctions both sides for botching jurisdictional treatment of LLCs--Update: Per a request, the Easterbrook opinion is Belleville Catering v. Champaign Marketplace from 2003).

Posted by Howard Wasserman on July 12, 2017 at 07:14 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (10)

Tuesday, July 11, 2017

Colllege football coaches and diversity jurisdiction

Here is an interesting diversity jurisdiction puzzle, for anyone looking for one (and you know you are).

Penn State sued Bob Shoop, its former defensive coordinator, to recover close to $ 1 million on the buyout clause, after Shoop left PSU to take a similar job at Tennessee. Penn State filed in Pennsylvania Commonwealth Court, then Shoop removed to the Middle District of Pennsylvania, based on diversity. And this confused me. Penn State is a state university. And a "state" is not a "citizen of a state" for diversity purposes; when a state brings a non-federal claim against a citizen of another state to federal court, original jurisdiction rests with SCOTUS (concurrent with state courts). The case thus should not be removable, because the district court lacked subject matter jurisdiction. This looked to me on all fours with a case from about ten years ago--involving West Virginia University's attempt to enforce a buyout clause against its former head football coach--in which the university filed in its state courts and the coach removed, but the district court remanded for lack of jurisdiction because the university was the state.

It turns out that Penn State (along with the larger public universities in Pennsylvania, such as Pitt and Temple) is a "state-related" university, as opposed to a state university. Although I am not sure of all the differences, state-related universities receive less funding and are entities created by state law that maintain affiliations with the state (sufficient to make them act under color for Fourteenth Amendment and § 1983 purposes), but are not treated as alter-egos of the state. District courts in Pennsylvania have held that Pennsylvania's state-related schools do not enjoy Eleventh Amendment immunity.

This matters because most circuits use the same analysis to identify an entity as an arm of the state for Eleventh Amendment purposes as for § 1332 purposes--that is, if an entity is an arm of the state entitled to Eleventh Amendment immunity, it is an arm of the state and not a citizen of the state for diversity purposes. That is how the federal court involved the West Virginia case. Because the prevailing view is that Penn State does not enjoy Eleventh Amendment immunity, it should follow that the district court has jurisdiction in this case.

I am curious to see if Penn State at least tries to move to remand or if it knows it will lose on the point. A recent possible comparison is Haywood v. University of Pittsburgh, a suit brought in federal court by--you guess it--the former football coach. Haywood included three claims--two for breach of contract (with jurisdiction under § 1332) and one for a violation of due process (with jurisdiction under § 1331); Pitt did not contest jurisdiction and the court reached the merits. This would suggest that a state-related university can be sued in federal court on diversity. But Haywood may be of limited use. The due process claim gave the district court original jurisdiction, with supplemental jurisdiction over the state claims, all regardless of diversity (Haywood did not assert § 1367 in the Complaint, which may just be unwise drafting). So it may have been that Pitt knew there would be jurisdiction anyway, regardless of the basis, so there was no point in contesting. The Penn State case squarely presents the question of the university's status for § 1332 purposes.

Posted by Howard Wasserman on July 11, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (9)

Sunday, July 09, 2017

Citizen video and other § 1983 puzzles

In Fields v. City of Philadelphia, the Third Circuit joined the parade of courts of appeals recognizing a First Amendment right to record police in public in a non-interfering way, subject to time, place, and manner limitations. It is now the Fifth, First, Seventh, Eleventh, and Ninth Circuits, with none going the other way (prior to this, the Third Circuit had avoided the issue by twice holding that the right was not clearly established without addressing the merits). The case arose from two separate actions--one by a woman who was physically moved and held to keep her from recording the arrest of a protester, the other by a man who was arrested and charged with obstructing a public passage for recording officers from a sidewalk across the street.

Two thoughts.

In explaining the need for and importance of this First Amendment right, the court included this line: "To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately." Recent experience with body cameras and police shootings shows this statement, at least in the absolute form presented in the first sentence, is wrong. Not that recording is not or should not be protected; only that it does not present "objective fact" or eliminate subjectivity. In fact, subjectivity likely is why the police officers involved in the incidents in this case stopped the plaintiffs from recording--they did not want video getting out that could be viewed by the public in an adverse way, even if they might have found a way to explain it away.

Second, this decision may be as significant for its discussion of § 1983 doctrine, showing how qualified immunity makes damages liability difficult, if not impossible.

The City asked the court to pretermit the merits and grant qualified immunity (as had two prior Third Circuit panels) because the right was not clearly established. The court declined to "take the easy way out." In justifying this approach, the court pointed to several considerations that SCOTUS identified as benefits to merits-first: the importance and frequency of the constitutional issue, the need of police departments for guidance on the issue, the purely legal, non-fact-bound nature of the issue, and the quality of the briefing (with amicus briefs from several advocacy organizations, a group of First Amendment professors, and DOJ's Civil Rights Division).

Nevertheless, after recognizing the right, the majority held that the officers were entitled to qualified immunity because the right to record was not clearly established. There was no Third Circuit precedent and precedent from other circuits and from district courts was factually distinguishable (some of those cases based the right on the presence of expressive intent by the recorder, while the Third Circuit recognized a right to record, regardless of what the recorder planned to do with the recording). The court also refused to find the right clearly established based on Philadelphia Police Department policy recognizing a First Amendment right to record. The problem was that the plaintiffs sought municipal liability based on the failure of those policies to effectively instruct officers about this right; if the policies were ineffective, then they could not clearly establish the right so any reasonable officer would know there was a First Amendment right to record, as most officers did not know of the right.

Judge Nygaard dissented on qualified immunity. He argued that the right was clearly established given the unanimity in other circuits, Department policy, and 2012 DOJ recommendations that local departments establish policies to affirmatively set forth the First Amendment right;* those three things placed the right to record "beyond debate" and placed officers on unambiguous actual notice that they must allow members of the public to record their activities. Nygaard also argued that a reasonable officer's "lived experience" informed him of the pervasiveness of recording devices and their routine integration into daily lives, with the resulting First Amendment implications.

[*] Recent consent decrees with cities such as Ferguson and Baltimore included provisions requiring police departments to recognize and not interfere with the First Amendment right to record in public.

The majority's analysis demonstrates the unfortunate breadth of qualified immunity. Factual distinctions are always possible with precedent--the Third Circuit had previously accepted (or at least had not flatly rejected) that there might be a meaningful distinction between filming a sidewalk encounter and filming a traffic stop. It thus is possible that this decision will do nothing for the next case in which an officer prevents someone from recording, if the officer can find some small distinction to the incidents in this case--the recorder was on the same side of the street rather than across the street, the person was momentarily stopped from recording but not arrested, the plaintiff was recording a physical altercation rather than an arrest. The possible distinctions are boundless.

I also do not buy the reasons the majority rejected reliance on department policy as a basis to clearly establish the right. There is nothing inconsistent with saying that department policy should have placed a reasonable officer on notice that there was a constitutional right to record (thus clearly establishing the right) and that department policy was constitutionally insufficient because officers were ignoring it and department officials were not providing further training (thus establishing municipal liability). They go to different issues involving different standards.

On the other hand, SCOTUS' recent string of summary reversals rejects the big-picture approach to qualified immunity that the dissent took in relying on broad legal principles divorced from specific facts, with no applicable SCOTUS precedent. So while normatively preferable, Judge Nygaard's approach would  draw more attention and a possible summary reversal.

Posted by Howard Wasserman on July 9, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, July 07, 2017

The district court's injunction (Updated Twice)

Judge Watson in the District of Hawaii last night refused to rule on the plaintiffs' Motion to Clarify the Scope of the Preliminary in the travel ban case. The plaintiffs, he ruled, were asking him to clarify the meaning of language in the Supreme Court's opinion and order, not his order; that request should be directed to SCOTUS. Ilya Somin criticizes the ruling, pointing out that interpreting and applying the language of rulings from higher courts is what district courts do. Lyle Deniston questions whether there is a procedure for asking SCOTUS to clarify language in the opinion, short of a motion for reconsideration. Michael Dorf is a bit more forgiving, arguing that Watson's ruling is not crazy, given the confusion involved when cases are moving up and down the hierarchical judicial system.

I agree that Judge Watson was wrong, for the reasons all three commentators describe. I want to make explicit one point that I believe is implicit in their posts (and that Remedies guru Doug Laycock made on a listserv): The injunction, albeit as modified by SCOTUS, remains Judge Watson's order and it remains his duty to enforce that modified injunction. And that entails figuring out the scope of the injunction, which means figuring out precisely how SCOTUS modified it, which means figuring out what SCOTUS meant in its opinion. The trial court must do that in the first instance--SCOTUS can reverse that interpretation on appeal if it disagrees. My point is that this goes beyond the ordinary situation of lower courts determining and applying SCOTUS precedent to a new case or even to the same case (for example, applying a new legal standard to evaluate the merits of the claim). This is about a district judge enforcing his own injunction going forward.

The plaintiffs have appealed the denial of the motion, presumably because this is an order refusing to modify an injunction. My best guess is that the Ninth Circuit summarily reverses and tells Judge Watson to determine the scope of his injunction.

[Update, Saturday, July 8: I want to say I was half-right. The Ninth Circuit dismissed the appeal for lack of jurisdiction, because the order did not do anything of the things enumerated in § 1292(a)(1), because it sought a declaration rather than an injunction, and because the plaintiffs could still seek injunctive relief in the district court. The Ninth Circuit added that the district court "does possess the ability to interpret and enforce the Supreme Court's order, as well as the authority to enjoin against, for example, a party's violation of the Supreme Court's order placing effective limitations on the scope of the district court's preliminary injunction." In other words, plaintiffs filed the wrong motion. They should have moved to enforce the district court's injunction-as-modified or to hold the government in contempt of the district court's injunction-as-modified--and in the course of resolving those motions, the district court must decide what the Supreme Court said and meant. Presumably, that is what the plaintiffs will do in the district court. [Second Update, Saturday afternoon: Motion to Enforce, or in the alternative, to Modify]

The Ninth Circuit's was surprisingly rigid. Courts of appeals typically take jurisdiction under § 1292(a)(1) if the order is within sniffing distance of an injunction or its enforcement. Plus, it was obvious that the plaintiffs were asking the district court to enforce the injunction according to its proper terms (based on SCOTUS modification) by determining those proper terms. In some sense, the Ninth Circuit did tell the district court it was wrong and that it did have power to decide what SCOTUS meant; the plaintiffs simply captioned their motion incorrectly. This is different than what the district court said, in directing all issues to SCOTUS.]

Posted by Howard Wasserman on July 7, 2017 at 01:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Sunday, July 02, 2017

SCOTUS Symposium: The Gorsuch Court (Updated)

Eric Segall reflects on the passing of the moment to instantiate his proposal for an evenly partisan eight-person Supreme Court, which died* with the arrival of Justice Gorsuch. Eric writes that many of the post-Term analyses have described it as a quiet Term, marked by consensus and an absence of late-Term drama.

[*] I suppose the dream remains alive if the next retirement were Justice Kennedy or Justice Thomas.

[Update: New reports are that Kennedy has hired only one clerk for OT 2018 and has told candidates he may not hire more because he may retire (retired Justices have one clerk). That vacancy would come four months before the mid-Term elections in which Democrats hope to retake the Senate. Of course, the chances that Senate Republicans unilaterally disarm in that situation are even less than they were prior to the Gorsuch nomination.]

But that narrative is accurate only until the April sitting, when Gorsuch took his seat for arguments. One could feel a palpable change in the Court; it reflected in arguments, with his dominant and sharp questioning, and in his seven separate opinions. All this offers clear indications that he is pushing his way to the front as a voice on the Court, seniority be damned, and that he is less interested in consensus and compromise than other members of the Court. (Some have suggested that this split with the conservatives more interested in compromise--the Chief and Kennedy--explains the odd result and per curiam opinion in the travel ban case).

Eric argues that the change we have witnessed since April reflects another point in favor of his proposal: "[W]hen five Justices share a common ideology, whether left, right or center, the temptation to impose that ideology is too great for mere mortals to resist." Three months in, and we already are seeing that point.

Posted by Howard Wasserman on July 2, 2017 at 12:31 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (6)

Saturday, July 01, 2017

The Cult of Nina Totenberg?

Dahlia Lithwick offers advice to the White House Press Corps. on how to do the job without cameras, now that the White House has barred recording of press briefings. The piece is mainly tongue-in-cheek (she urges TV news organizations to adopt John Oliver's dog-centered visuals), but I want to push back on two of her serious points.

Dahlia urges the press to stop covering the press gaggle, to "cover what happens, as opposed to the spin." I agree that the press should stop covering these briefings, which have become forums for lying and obfuscation, exacerbated by the inability of many reporters to ask effective and direct questions (as opposed to convoluted multi-part questions that enable obfuscation). She likens the press briefings to the "drama and theatrics" of oral argument, which the SCOTUS Press Corps. has learned to ignore in favor of focusing on the opinions as the "work product that emanates from the Court." Two problems. First, the SCOTUS Corps. does not ignore oral arguments, in-depth, as displays of the Justice's personalities and styles and with the attendant tea-leaf reading. Second, I am not sure how practices in covering the Court translate to covering the White House, because much of what happens in the White House never produces concrete "work product" that the reporters can read, parse, and analyze. The alternative to the press briefings is more informal interaction with WH staffers and more speaking with people off the record, as well as more reporting on the President's latest tweets. Which is not a bad thing, as it produces a more honest picture of what is happening.

Dahlia also urges WH reporters to be nerds, like the SCOTUS reporters: Ego-free, writing about the opinions, and not striving to be among the "competing cults of personality" that "tower over the news in America." There is no Cult of Jess Bravin (who covers the Court for the Wall Street Journal). But there long has been a Cult of Nina Totenberg (especially during the '90s, when she did double duty at NPR and ABC) and there long was a Cult of Linda Greenhouse--they were as known as much as personalities and commentators as for the cases on which they reported. The journalists who cover the Court do a marvelous job, and I have no reason to doubt that it is a "kind" and "ego-free workplace." But in writing about the Court, they offer not only cold analysis of the case, but opinion and commentary, which makes them as much a part of the story as are WH reporters.

Posted by Howard Wasserman on July 1, 2017 at 08:41 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, June 26, 2017

SCOTUS Symposium: Perry v. MSPB

I wrote an analysis for SCOTUSBlog of Friday's opinion in Perry v. Merit Systems Protection Board. My post-argument prediction that Justice Gorsuch would dissent was correct, although I predicted a solo dissent and he got Justice Thomas to come along. I describe the opinion as Gorsuch announcing his presence with authority on statutory interpretation. This is a minor case, but it portends some sharp divisions in the coming years.

Posted by Howard Wasserman on June 26, 2017 at 07:49 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Sunday, June 25, 2017

SCOTUS Symposium: The final week

We enter the final week of June and the final week of the Term. Six cases remain, with Monday the final scheduled opinion day, so expect a flurry. I am most interested in Hernandez v. Mesa, which could produce either further contraction of Bivens or further expansion of qualified immunity. Plus, the Court  has full briefing on the travel ban cases. Plus, rumors of Justice Kennedy's retirement are heating up. Or maybe it is Justice Thomas.

So as we enter the final week and the wrap-up to our End-of-Term Symposium, let's talk about everything that happens on Monday, as well as some broader lessons, conclusions, criticisms, praise, and perspectives from the Term as a whole, and some predictions about what might happen in OT 2017.

Posted by Howard Wasserman on June 25, 2017 at 10:28 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (2)

Wednesday, June 21, 2017

Beckman v. Chicago Bears

Russell Beckman is a Green Bay Packers fan who holds season tickets with the Chicago Bears only so he can attend the Bears-Packers game. Season-ticket holders earn points allowing them to purchase "experiences," including going onto the field during pre-game warmups. But the Bears prohibit these fans from going onto the field in the opposing team's gear; they would not let Beckman participate during the Bears-Packers game last season, and, he alleges, will not let him do it at the game next season. Beckman has sued the Bears, alleging that the no-opposing-team-gear rule violates the First Amendment and seeking an injunction against enforcement of the policy. Beckman is appearing pro se (he and I exchanged emails about the situation a few weeks ago).

The Bears play at Soldier Field, which is owned by the Chicago Parks District and rented to the team for its use. That, I believe, raises the possibility the Bears act under color. If the case involved the Bears stopping fans from wearing opposing-team gear in the stands, this would be an easy case, with the Bears subject to Burton's symbiotic relationship test, just as the New York Yankees were at the old Stadium. But I have been reluctant to say that teams playing in publicly owned arenas act under color for all purposes, as opposed to for the limited purposes of operating expressive fora (the stands, press access, etc.). A team should retain leeway in its organization and operations, including its interactions with customers. Playing at a publicly owned arena would not stop the Bears from being viewpoint-discriminatory in, for example, deciding what people could wear or who could attend a Lake Michigan cruise for ticket holders. The question is where the playing field (ordinarily not part of the expressive forum) falls on the spectrum. I am not sure I know the answer to that question.

Interestingly, the Yankee Stadium lawsuit was brought by the NYCLU in conjunction with NYU's Civil Rights Clinic. It is surprising (telling?) that neither the Illinois ACLU nor a Chicago-based clinic would take this on. Did Beckman never ask around? Does it say something about how that state-action question will be resolved when we move from the stands to the field?

Or are Green Bay Packers fans less popular in Chicagoland than Nazis?

Posted by Howard Wasserman on June 21, 2017 at 11:58 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, June 20, 2017

Resolved, not moot

In Campbell-Ewald v. Gomez, SCOTUS held that a case does not become moot when the defendant makes an unaccepted offer of judgment. The Court expressly did not decide "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount." In Fulton Dental v. Bisco, the Seventh Circuit said the result is not different, that a defendant can no more force a settlement by putting money in the court under FRCP 67, unaccepted by the plaintiff and with no judgment from the court, than offering the money and having the plaintiff reject the offer under FRCP 68. (H/T: Alert reader Asher Steinberg).

The Seventh Circuit tried to push back against characterizing this as mootness, saying it was more like the affirmative defenses of payment or accord and satisfaction. But the court was limited because SCOTUS discussed Campbell-Ewald as a mootness concern, rather than following the position urged by the S.G. that this is a merits concern. Like Campbell-Ewald, Fulton involved an action for damages for past harm incurred; such a case cannot become moot because the past injury remains and never goes away. Mootness should be limited to claims for prospective relief, where the plaintiff's injury is ongoing and something stops the injury.  The payment and acceptance of money as settlement of a case over a past injury means there should not be further litigation between these parties over this transaction-or-occurrence. But that is because the case was resolved, not because it became moot.

Posted by Howard Wasserman on June 20, 2017 at 03:10 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, June 19, 2017

SCOTUS Symposium: Happy talk and revolutions of historic proportions

I am going to discuss the two free speech cases--Matai v. Tam and Packingham v. North Carolina--together as unanimous, broad reaffirmations of a libertarian, highly protective model of free expression.

A couple of interesting points:

1) Justice Kennedy and Justice Alito in some kind of tit-for-tat? Alito wrote the Opinion for the Court in Tam, but Justice Kennedy did not join pieces addressing government subsidies, government programs, or commercial speech. He wanted to hang his analysis on viewpoint discrimination, which rendered unnecessary discussion of those other issues; even commercial speech cannot be restricted on viewpoint-discriminatory bases.  Kennedy at least tried to praise the pieces of the Alito opinion that he joined, especially on viewpoint. Meanwhile, Justice Kennedy wrote the Opinion for the Court in Packingham, but Justice Alito did not join the opinion (he concurred only in the judgment) because of its "undisciplined dicta," "loose rhetoric," and failure to "heed its own admonition of caution" regarding the internet.

It is not surprising that Kennedy would take a broader approach to free speech than Alito or that Alito might bristle at Kennedy's speech-protective rhetoric. What is somewhat surprising is how the rest of the Court divided. In Tam, Ginsburg, Sotomayor, and Kagan went with Kennedy; in Packingham, the Chief and Thomas went with Alito.

This brought to mind one similarly divided free-speech case in United States v. Alvarez; there, the Chief, Ginsburg, and Sotomayor followed Kennedy's  broader and looser approach, while Kagan (with Breyer) followed a narrower course (Alito and Thomas dissented). So we see in these cases a slight shift in who is willing to pursue the broadest free-speech approach. I am not trying to overread anything, because every case is different. But these were interesting lineups.

2) I want to highlight Rick's argument (an idea I have seen reflected elsewhere) that the paeans to viewpoint neutrality in both Tam opinions signal where the Court would come out on public controversies over offensive or outrageous speech--racist speech on campus, hate speech, severed heads, productions of Julius Caesar, etc. And it seems everyone on the Court is on a similar page as to offensiveness and viewpoint discrimination.

3) On that point, note how broadly both opinions in Tam define viewpoint discrimination. It is not enough to allow "both sides to speak;" the First Amendment requires that both sides be allowed to utter the full range of views in the manner of their choosing. As Justice Kennedy put it, "a subject that is first defined by content and then regulated or censored by mandating only on sort of comment is not viewpoint neutral;"[m]andating positivity"--allowing every side to say nice things about everything but not say mean things about everything--still is viewpoint discriminatory. In other words, it is viewpoint discrimination to prohibit critical speech, even if both Republicans and Democrats are prohibited from criticizing. Or as Justice Alito explained, the challenged provision "is not an anti-discrimination clause; it is a happy-talk clause." And mandating happy talk is viewpoint discriminatory.

4) Justice Kennedy's Packingham opinion is about the communicative "revolution of historic proportions" that is the internet--the "forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow." Justice Alito's Packingham opinion is about the "dark internet" in which bad people are lurking on web sites.

5) Part II of the Alito opinion in Tam addressed and rejected Tam's argument that the disparagement clause did not apply to disparagement of groups of persons as opposed to individual real or juridical persons. It considered this despite Tam not raising it below and despite the Court declining to grant cert on it when presented in the opposition to cert. The Court justified this on avoidance grounds. But does that mean that even an unpreserved statutory argument is always subsumed in a grant on a constitutional issue? Justice Thomas did not join this piece of the opinion.

Posted by Howard Wasserman on June 19, 2017 at 07:59 PM in 2016-17 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

SCOTUS Symposium: Setting fire to House Bivens

"If you're cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not  set fire to the house." So said Justice Breyer in dissent in Ziglar v. Abbasi, in which the Court rejected Bivens claims against high-level executive officials brought by mistreated post-9/11 detainees (although left a small glimmer of hope for a claim against the warden), and in the process may have limited Bivens to claims against line officers for immediate violations of a small group of rights. In other words, the majority may have set fire to the House of Bivens.

 Some thoughts after the jump.

1) This was a 4-2 decision, with Justice Kennedy writing for a majority of the Chief, Thomas, and Alito, and Justice Breyer dissenting with Justice Ginsburg. Justice Sotomayor recused because she was on the  Second Circuit when earlier iterations of this case were heard, Justice Kagan recused (because she was SG when earlier iterations of the case arose), and Justice Gorsuch did not participate (he was not on the Court). It remains to be seen how much weight a decision from such a small Court will gain. Everyone likely assumes that the judgment would have been the same with a full Court, with Gorsuch joining the majority and Sotomayor and Kagan joining the dissent.

2) Two themes have been floating around the recent Bivens cases. One is the idea of "extending" Bivens to new contexts beyond the three cases in which SCOTUS recognized a claim and how the Court should hesitate to do so. The other is the connection between Bivens and implied statutory rights of action and the Thomas/Scalia position that Bivens was a "relic of the heady days in which this Court assumed common-law powers to create causes of action. Both ideas came home to roost today.

3) As for the second theme, Justice Kennedy timed the creation of Bivens to the rise of the implied right of action doctrine, noting that Justice Harlan relied on those cases in identifying an implied constitutional claim. It followed that the Court's narrowing of implied statutory rights makes "expanding" Bivens a "disfavored" activity. Both rest on separation-of-powers principles under which Congress, not the courts, should decide whether a damages remedy exists. If the Court is not implying rights of action, then it should not recognize "new" Bivens claims.

4) As for the first theme, this led the Court to crystalize a three-part test for whether a Bivens claim is available (both the majority and dissent agree on this test):

   a) If the case is different in a "meaningful way" from previous cases decided by SCOTUS, then the context is new. Factors that suggest meaningful differences include the rank of the officers, the constitutional rights involved, the generality or specificity of the right involved, the extent of judicial guidance of how the officer should respond, the statute under which the officer operated, the risk of disruption of other branches, or the presence of new special factors not considered in past cases. As to the high-level executive officers, this was a new context, involving high-level policy following a terrorist attack; as to the warden, this case involved a new right (Fifth Amendment rather than Eighth), less guidance as to constitutional obligations, and congressional action suggesting intent not to provide a remedy--all small differences, but "even a modest extension is still an extension."

   b) There is consideration of alternative remedies, although it is unclear how. The majority several times emphasized the availability of alternative remedies for the constitutional violations here, namely habeas and injunctive relief. Breyer treated this as its own second step. [Update: I will link to Steve's post at Just Security pointing out that habeas likely is not available to challenge conditions (as opposed to fact) of confinement and Kennedy himself hedged on whether habeas was available in this kind of case]

   c) Special factors counseling hesitation. Here, these include the national-security context, that this case entails challenges to and inquiry into federal policy discussions and decisions, that the claims go beyond ordinary law enforcement, that Congress has done nothing in its post-9/11 litigation to provide any remedies for detainees challenging their mistreatment, and that injunctive and habeas remedies are available (again, it is not clear where this belongs in the analysis). To the extent there is a balance to be struck between these special factors and the needs for deterrence of executive misconduct, it is for Congress to strike that balance. The Court did remand for the Second Circuit to do the special factors analysis as to the warden.

5) Justice Breyer was explicit that the above is the three-step test, but he saw the factors going the other way. He did not see this as a new context, or, if it was, the claim survived steps two and three.

6) Breyer calls the majority on what I believe has been a problem in the recent Bivens cases: the confounding of the constitutional merits, qualified immunity, and cause of action. Breyer works through the list of factors that the majority identifies for defining when a context is new, insisting that some go to whether a constitutional right was violated, some go to whether that right was clearly established so the officer enjoys qualified immunity, and some are better case as special factors for step three. But none should go to the cause of action. The majority makes this worse with its consideration of alternative remedies, which hangs around the analysis throughout the case, not belonging in any clear place. The majority seems to be in a hurry to get rid of cases such as this, but it does so by focusing so much on the cause of action rather than the substantive merits and substantive defenses. Or consider how the majority uses national security as a special factor counseling hesitation before recognizing the cause of action. That factor can be taken into account at other points--in pleading requirements, on the merits, in assessing immunity, and in shaping discovery. Given these existing safeguards, there is no need to double-count it at the threshold--that is setting the house on fire.

7) That last point gives rise to another problem Breyer addresses: The "anomaly" of different analysis for claims against state/local officers as opposed to federal officers (we might also call this a lack of parallelism between claims against the former compared with the latter). A plaintiff can pursue a § 1983 claim against a mayor or governor but not a Bivens claim against a high-level DOJ official, for the same conduct violating the same right. And even if claims fail, they fail for different reasons: The claim against the federal officer fails because there is no cause of action, while the claim against the state/local official fails because the right was not violated or because it was not clearly established. That distinction makes no sense.

8) Breyer closes his opinion with a point he made during argument about the special need for damages actions in the national-security context. Damages claims can be resolved after the emergency has passed, with more information about the situation and a cooler eye towards the facts. And courts may be less likely to to issue injunctive or habeas relief in the middle of an emergency. It therefore makes no sense to rely on those remedies to preclude the later damages remedy--damages play a special role, with courts able to consider after passions have died down. The majority's approach reflects the general favoritism towards injunctive rather than damages relief in the constitutional context.

9) Justice Breyer cites Jim Pfander's new book on Bivens and GWOT, at one point seeming to adopt Jim's view that Congress' decision not to immunize individual officers under the FTCA for constitutional violations reflects an intent to leave Bivens in tact as the means for remedying constitutional violations, while putting non-constitutional torts through the FTCA.

10) Steve Vladeck had a Twitter thread on this case, pointing out that Hernandez v. Mesa, another Bivens case, remains undecided and could pull back on some of what the majority did here. But he suspects if that were to happen, the opinions would have issued at the same time. I wonder if Hernandez will be resolved on qualified-immunity rather than Bivens grounds.

11) As I said in my earlier post, I now have to rewrite my Bivens chapter. Oh well.

Thanks for wading through a long post.

Thanks for sitting through a long post.

Posted by Howard Wasserman on June 19, 2017 at 03:04 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS Symposium: Narrowing specific jurisdiction

The post-2010 revival of personal jurisdiction in SCOTUS (after a two-decade absence) has been defined in part by narrowing general jurisdiction, including last month in BNSF. In Bristol-Meyers Squibb v. Superior Court, an 8-1 Court (per Justice Alito) turned the screws on specific jurisdiction. The Court held that there was no jurisdiction in California over claims by non-residents for non-forum injuries, even when caused by the same nationwide conduct. Justice Sotomayor again dissented alone, as she has been in the general-jurisdiction cases, continuing to play the Justice Brennan role of finding personal jurisdiction in almost every case. She criticized the decision as the "first step toward a similar contraction of specific jurisdiction." 

For the majority, there was no purposeful availment as to the non-California plaintiffs because they were not prescribed, did not purchase, did not ingest, and did not experience injury from Plavix in California; that other plaintiffs were injured in California was beside the point. There must be a connection between the forum and each specific claim, with "claim" meaning one plaintiff, one defendant, and one right. Keeton v. Hustler did not help, because defamation hatmed the people of the state even as to an outsider plaintiff and because the issue there was whether one plaintiff could pursue a full claim against one defendant. The majority closed by rejecting the "parade of horribles" that plaintiffs raised, insisting that there were lots of other forums plaintiffs could go: New York and Delaware (where BSM is essentially at home and subject to general jurisdiction), "probably" in other states with lots of injured plaintiffs (there were dozens of plaintiffs from Texas who all could sue there), and maybe federal court (an open question, but probably not at the moment, because there is no statutory authorization for such jurisdiction).

Justice Sotomayor viewed the case as easy under the three-part Shoe analysis: 1) BSM purposefully availed given its massive sales and marketing in California; 2) the non-resident claims "related to" the forum because they have a "connection with" California, in that all plaintiffs in all states were injured by "the same essential acts" or "materially identical acts" to BSM's marketing and sales in California; 3) it was not unreasonable to make BSM defend the non-resident claims in California, since it already was defending the resident claims. Sotomayor also threw in an aside that she would measure jurisdiction first and foremost by fair play and substantial justice, elevating the third prong of the analysis to the first prong. She also pointed out, correctly, that the majority hasd no response to the "relate to" prong; it cited only Walden v. Fiore, a case that dealt with lack of minimum contacts, not whether those contacts gave rise or related to the claim. She also was correct as to Keeton--there is no meaningful distinction between a defendant haled into court by one non-resident plaintiff over nationwide conduct and haled into court by many non-resident plaintiffs over nationwide conduct. Sotomayor closed with her concerns about what this does to mass-tort litigation and the insufficiency of the alternative forums the majority suggests remain.

Some last thoughts:

1) I wrote after BNSF that BSM was the important personal-jurisdiction case for the Term. If general jurisdiction has narrowed, the solution is to broaden specific jurisdiction by broadening when a claim arises out of or relates to the contacts. But the majority did not go there, nor did it offer a good answer or guidance as to what arise out of/relate to means. Instead, it let the first prong--purposeful availment--do all the work by holding that BSM did not purposefully avail as to the non-resident defendants. But that is the problem. There should be no doubt that BSM purposefully availed, given its massive sales and advertising in the state (constituting both stream-of-commerce and seek-to-serve) and the fact that it is a nationwide corporation doing nationwide business; the question should have been whether those contacts gave rise to the non-res claims. But the majority did not frame the case in those terms. As in Nicastro (especially Justice Breyer's concurring opinion), the Justices seem unwilling to let the other two prongs of the analysis do any work.

2) What is Justice Ginsburg thinking? She wrote a sharp dissent in Nicastro. Otherwise, she wrote the three opinions narrowing general jurisdiction and joined the majority in the decisions narrowing specific jurisdiction. Sotomayor cited Ginsburg's Nicastro dissent in FN 3 in rejecting BSM's proferred narrow interpretation of relate to.

Update: A third point: The effect of this is to give large corporate defendants forum advantages over plaintiffs. A large group of plaintiffs wanting to pursue a corporate defendant must go to the defendant's home turn. Or they must go to federal court (maybe), which has shown itself to be more defendant-friendly in recent years. For many plaintiffs, neither is an enticing option.

Posted by Howard Wasserman on June 19, 2017 at 12:39 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

SCOTUS Symposium: Busy Day

SCOTUS came into today with seventeen remaining cases and two weeks to do. The Court cut a big chunk of that out on Monday, with five opinions, four of which were on cases I have been trying to follow:

Matal v. Tam: Declaring invalid under the First Amendment the disparagement provision in the trademark laws.

Packingham v. NC: Declaring invalid under the First Amendment a North Carolina statute prohibiting convicted sex offenders from using social media.

Bristol-Myers Squibb v. Superior Court: Rejecting an assertion of personal jurisdiction in a mass-tort action.

Ziglar v. Abbasi: Severely limiting Bivens, certainly in the national-security context and perhaps for everything beyond claims against line police officers. This one forces me to rewrite the Bivens chapter in my civil rights book.

McWilliams v. Dunn: Granting habeas relief and overturning a death sentence for failure to provide mental-health experts to the defense.

Our team of bloggers will be weighing in throughout the week. I will try to hit the procedure cases today and the speech cases tomorrow.

In addition, the Court announced that Thursday will be an opinion day.

Posted by Howard Wasserman on June 19, 2017 at 11:20 AM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (0)

Friday, June 16, 2017

JOTWELL: Leong on Mika on gender disparity before SCOTUS

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court (Am. U. J. of Gender, Soc. Pol'y & Law 2017), which measures the gender disparities among SCOTUS advocates.

Posted by Howard Wasserman on June 16, 2017 at 09:50 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Thursday, June 15, 2017

Responses

A response to two unrelated things, thrown into one post.

1) David discusses the "lower-court moment," in which lower courts are flexing their muscles and writing "aggressive opinions garnering public attention." Two responses. First, we saw the hints of this in the marriage-equality litigation, particularly with respect to decisions to stay (or usually not stay) injunctions, as Josh Blackman and I described. SCOTUS backed away from its typical role as "traffic cop" on constitutional issues and many lower courts ran with that. Second, the media environment contributes to this--there are so many more and different media outlets, some of which are dedicated to discussing high-profile political litigation from its earliest stages, leading to more coverage and more public awareness of what happens in the lower courts.

2) Gerard Magliocca considers that we lack a quick way to repopulate the House in the event of a mass-death event (UA 93 making it to the Capitol or an extreme version of yesterday's shooting). Proposals after 9/11 to amend the Constitution to allow for temporary House appointments in some circumstances never went anywhere; Gerard wonders whether it was because election of House members is sacrosanct or because the urgency was missing because the event was too far-fetched. I had the fortune to participate in some of these conversations, in my scholarship and in work the AEI's Continuity of Government Commission. Jim Sensenbrenner, who in the early 00's chaired the House Judiciary Committee, was steadfast that House members must be elected. And he was immovable on that point. The House did at least add a special quorum rule, which would allow a Rump House to conduct business until enough elections can be held. It does not get at the democratic problems of such a small body enacting emergency legislation, but at least there is a body to act.

Posted by Howard Wasserman on June 15, 2017 at 10:36 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, June 14, 2017

Remand in Haeger v. Goodyear

I covered Goodyearv. Haeger for SCOTUSBlog earlier in the Term, when the Court held that bad-faith attorney's fee sanctions must satisfy a but-for causation requirement. SCOTUS vacated the award (of $ 2.7 million) and remanded to the Ninth Circuit to decide whether Goodyear had waived its challenge to anything beyond $ 700,000 of the award. Last week, the Ninth Circuit remanded to the district court to redo the sanctions analysis, explicitly applying a but-for cause standard. Judge Smith dissented from the remand. He argued that the record as to waiver was complete and that the court of appeals could decide the issue. He suggested that there was a waiver. And he opined on why the $ 2 million award satisfies the but-for standard SCOTUS introduced.

Posted by Howard Wasserman on June 14, 2017 at 11:24 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Vehement, caustic, and sometimes unpleasantly sharp

This is correct.

Posted by Howard Wasserman on June 14, 2017 at 05:50 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Tuesday, June 13, 2017

SCOTUS Symposium: A departmentalist take on Morales-Santana

Richard's post about the Morales-Santana Court conflating judgment and precedent prompts a question: What if Congress and the Executive decide, in a fit of departmentalism, that the current differential treatment of unmarried-mother citizens is constitutionally valid? Congress refuses to amend the statute (or the President vetoes the proposed amendment) and the Executive continues removing people situated as is Morales-Santana by treating them as non-citizens, even while continuing to treat a comparable child of an unmarried-mother citizen as a citizen.

There is no judgment or order compelling Congress to change the law, something a court could not do in any event. There is no judgment compelling the executive to treat anyone other than Morales-Santana a certain way or declaring the rights of anyone other than Morales-Santana. A court cannot, through a declaratory judgment, adjudicate the rights of non-parties (I agree with Richard that this might be what the majority saw itself as doing). Departmentalism does not result in a constitutional stalemate (or devolves into judicial supremacy in practice) because at some point the judiciary has a final card in the form of a judgment in a particular case as to a particular person that government must follow on pain of contempt and that makes the Court's constitutional vision applicable to a person. The problem in this case, and in the cases likely to follow from it, is getting to that enforceable judgment that benefits some person in a way adverse to the government.

So let's play this out:

X is the child of  unmarried-father citizen who lived in the US for 4 years and 364 days, 1 year and 364 days after age 14, where the parents. The government seeks to remove. X cannot argue that removal is prohibited by a court order, because there is no judgment affecting him in place. So he goes into the BIA process, arguing that removing him as a non-citizen violates equal protection because unmarried-mother citizens (and their children) continue to be treated differently.  The BIA accepts his argument, following Morales-Santana (are BIA proceedings subject to the same rules of precedent as lower federal courts?). Or the BIA rejects his claim, but the court of appeals reverses, as it is unquestionably bound by Morales-Santana to hold that the differential treatment is unconstitutional. But now we are in the same place we are this morning--the statutory scheme is unconstitutional, but the court of appeals will be similarly reluctant to remedy by leveling up, meaning X remains subject to § 1409(a) (the 5/2 residency rule) and remains removable. And Congress and the executive remain free to ignore the precedential piece of the decision in X v. Sessions when it then seeks to remove Y, another child of an unmarried-father citizen.

How do we get out of this loop? One possibility is Mark Tushnet's suggestion that the court could/did order the government to exercise its discretion not to remove because the basis for removal was unconstitutional. If the government starts losing these cases and being unable to remove, it will amend the statute or change its enforcement mechanisms. A second possibility is that at some point the Court, tired of congressional or executive intransigence, remedies the violation in X's case by leveling up, requiring the government to subject X to the one-year exception and prohibiting removal. That will get Congress and the executive moving, to the extent they do not want one year to be the residency requirement for everyone.

This is all moot, because the government has agreed to level down for everyone going forward. But it shows the extent to which judicial supremacy has carried the day. The court can get away with an "order" such as the one in Morales-Santana because it knows that Congress and the executive will follow its declarations of constitutional law.

Posted by Howard Wasserman on June 13, 2017 at 10:23 AM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)