Thursday, July 20, 2017

Opinions About Giving Legal Opinions

Nowadays, news reports resemble the sorts of crazy hypotheticals that law professors love (and law students loathe).  And since we love far-fetched hypotheticals, many law professors have taken to giving our legal opinions about the political news item of the day.

In addition to having our own opinions about the latest news, law professors are often confronted by the opinions of their colleagues.  Newspapers, blogs, and Twitter are full of divergent opinions on these topics, and many of us end up having strong opinions about our colleagues’ opinions. 

Given the ubiquity of legal opinions (and opinions about those legal opinions), I’d like to offer five opinions about how I think law professors ought to share their legal opinions with the public.

First, be careful when you offer opinions that are available to the general public.  It used to be that law professors had to wait for a media call or have an op ed accepted in order to share their views on the legal topic of the day.  Not so anymore.  Blogs and Twitter allow us to give our opinions easily – perhaps too easily at times.  And although these platforms might seem like social media, it is important to remember that the opinions you give in these fora are public statements.  Even if you have only 70 followers, and most of those are your family and college friends, something that you tweet could be shared and read by total strangers with no background in the law and no sense of who you are.

I say “be careful,” not only because you are stuck with whatever reputational fall out might occur from a publicly expressed opinion, but also because your public statements come with an implicit aura of authority.  When we identify ourselves as law professors, that signals that we are experts whose opinions ought to be taken seriously. We should remind ourselves about that explicit claim of expertise when offering a public opinion.  And if you aren’t actually claiming that expertise—say if you are offering an opinion outside of your field—make sure to offer that qualification, and seriously consider whether you ought to share the opinion publicly at all.

Second, certainty when expressing a legal opinion is rarely warranted.  Just as we often respond to student questions by saying “it depends,” we should also acknowledge the same uncertainty in our public statements.  I’ve found it useful, for example, to remind myself that a legal opinion is no more than a prediction about how a court will rule in a given situation.  I don’t mean to suggest that legal opinions should be nothing more than psychological predictions about how certain judges will rule.  (I personally find those sorts of opinions a little tedious and somewhat presumptuous.)  But most legal opinions are offered in circumstances that are not identical to prevailing Supreme Court case law, and so all that we are offering is a guess about how courts will decide a case using existing statutes and case law.

There is real temptation to project certainty.  It may make us feel more confident to sound certain. Or we may want to impress the journalist who has called us.  Sometimes reporters are just looking for a sound bite to drop into their article, and at least some of them want you to speak definitively in that sound bite.  But a journalist’s job is to inform the public; and if we make it seem as though the law is clear in areas where it isn’t, then we are misleading the reporter (and in turn, the public) rather than informing them.

Third, be willing to rethink your opinions and to admit your mistakes.  The law professors that I admire the most are those who have changed their minds.  For what it is worth, this is easier to do if you don’t initially express your opinions with too much certainty. If you couch your opinion in terms of “here is what I think at this point,” you leave your ego plenty of room to walk away from that opinion after further reflection or after new information comes to light.

Fourth, be measured and thoughtful when you disagree with the legal opinions expressed by others.  Law professors are human, and they are more likely to engage with you on the substance of an issue if you are respectful in your disagreement.   I don’t just mean avoid being a jerk. I mean you should go out of your way to frame your disagreement terms that couldn’t possibly be mistaken as hostile or aggressive.  It is easy to mistake tone online, so you are better off saying “I really enjoyed this interesting post.  Do you have any thoughts on X?” where X is a piece of information that contradicts a factual point the other professor made, or where X is an opinion by someone else that goes the other way.  A less conciliatory tone is likely to get the other professor’s hackles up, and if someone’s hackles are up, then he or she is less likely to engage your substantive concerns.

Fifth, don’t assume that people are acting in bad faith when they give legal opinions.  In particular, please stop accusing people of giving legal opinions only because those opinions happen to align with their political preferences.  This sort of finger pointing gives further ammunition to non-lawyers who insist that law and politics are indistinguishable.  That isn’t true, and it is extremely corrosive to the legal academy when those legal naysayers can point to law professors accusing each other of partisan hackery in their expert opinions. 

We should, of course, all be careful to push ourselves on our own opinions to ensure that those opinions are impartial predictions of legal outcomes rather than partisan preferences. (There is evidence suggesting that confronting our biases can lessen or eliminate their influence.)  But we should assume that our colleagues are smart enough and honest enough to have done this themselves.  And if you are genuinely worried that someone’s opinion can’t be supported as anything other than political wishful thinking, I recommend trying to have that exchange with him or her in a non-public forum.

There you have it – my five opinions about how to give legal opinions.  I’m interested to hear your opinions on legal opinions. And I am quite open to being convinced that my own opinions are wrong. (Except for number four --- I feel quite certain about that one.)

Posted by Carissa Byrne Hessick on July 20, 2017 at 09:12 AM in Blogging, Current Affairs, Law and Politics | Permalink | Comments (2)

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)

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)

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)

Sunday, June 18, 2017

More heckling

Great essay in The Atlantic by Thomas Healy (Seton Hall) arguing that some of the non-violent "intense pushback and protest" against right-wing speech on campus is itself constitutionally protected counter-speech, the Brandeisian remedy to be applied. Healy consider heckling as part of this:

Heckling raises trickier questions. Occasional boos or interruptions are acceptable since they don’t prevent speakers from communicating their ideas. But heckling that is so loud and continuous a speaker literally cannot be heard is little different from putting a hand over a speaker’s mouth and should be viewed as antithetical to the values free speech.

I have argued that some heckling is protected expression and where we draw that line raises an important First Amendment question. I have not yet figured out where that is, although I do not believe it is loud and continuous heckling, at least without knowing more--such as where the heckler is viz a vizt the speaker and the nature of the spaces in which both speech and counter-speech are occurring. But it is good to see someone stake out the basic position that protesters shouting over an objectionable speaker are not censors but themselves participants in a messy debate.

Posted by Howard Wasserman on June 18, 2017 at 11:19 PM in First Amendment, Law and Politics | Permalink | Comments (10)

Saturday, June 17, 2017

Ideological Diversity and Party Affiliation

Like many law professors that I know, I have long sought to advance ideological diversity in law faculty hiring.  I think that law schools flourish when academics come at problems from different vantage points.  Law professors improve our thinking and our work product when we have to contend with smart people who disagree with us.

In discussions about ideological diversity, I sometimes see people equate ideological diversity with political party affiliation.  Law schools cannot achieve ideological diversity, so the argument goes, unless there are a certain number of law professors who are members of each major political party.  And given that most (though certainly not all) law schools have more Democratic than Republican professors, the only way to achieve ideological diversity is to hire more Republican faculty.

I do not think that party affiliation is a useful metric for ideological diversity.  In order to explain why, let me first clarify what I mean when I use the term “ideological diversity.”  I use that term to mean people who approach legal problems differently.  Ideally, colleagues should use different methodologies, they should not always think that the same arguments are persuasive, and they should not necessarily think that the same outcomes are desirable.  In such environments, I think faculty are most likely to question their own assumptions, push themselves to consider different points of view, and as a result produce better scholarship.  Party affiliation is, at best, an imperfect proxy for these traits.

For example, I think it is a good idea for each faculty to have at least one faculty member who takes the law and economics methodology seriously.  And conventional wisdom tells us that L&E folks tend to be politically conservative.  But not all Republicans are L&E devotees, and not all L&E folks are Republican.  And while ensuring that a faculty has an L&E faculty member is (in my opinion) important for ideological diversity, if the L&E professor that a law school hires doesn’t self-identify as a Republican or donate to Republican candidates, then the school won’t get “credit” for increasing ideological diversity.

Or let’s take a different example.  Imagine that a law school faculty takes seriously the need to increase ideological diversity, and it decides to hire a criminal law professor who self-identifies as Republican and who donates only to Republican candidates.  This hypothetical Republican criminal law professor is a devout Catholic who is morally opposed to the death penalty, and she spends her career writing about how capital punishment cannot be morally justified.  Given the state of criminal law scholarship today, that hypothetical law professor would not increase the ideological diversity of the field, but rather would add to an already-overwhelming imbalance.  And yet the school would get “credit” for increasing ideological diversity.

I also think that it is important to distinguish someone’s personal policy preferences from their legal views.  I can, for example, think that juvenile criminal defendants should be treated differently than adult defendants as a matter of policy. I can donate money to political candidates who agree with that policy view.  And at the same time, I can think that there is no credible constitutional argument that juveniles must be treated differently, and I can criticize the Supreme Court decisions that say otherwise.  For ideological diversity purposes, the second set of views ought to matter, not the first.  It is my views on law that form the backbone of my discussions with colleagues and my scholarship.

Now, you might say that ideological diversity matters for things other than legal scholarship.  Some have said that they think ideological diversity matters so that conservative students feel as though they have someone that they can talk to who shares their political views or to help them secure jobs with conservative groups or politicians.  I’m highly skeptical of these arguments.  The “feeling comfortable” argument assumes not only that our students know our party affiliations, but also that we have created an environment that is only open and welcoming to those who share our politics.  I know that not all faculty agree with me that it is inappropriate to share your political views with students.  But I hope that we can all agree that it is incumbent on us to make sure that students don’t feel as though they can’t talk to us because of our political views.  As for the jobs point, again I think that party affiliation is a poor proxy for these sorts of professional connections.  Some conservatives don’t have any good job connections for students, and some liberals have great Republican connections.  So if it is these connections that we care about for hiring, then that should be the criteria, rather than party affiliation. (And we should, in my view, all try to cultivate relationships with people on both sides of the political spectrum so that we can help our students make these connections.)

Some might also say that something is lost at faculty meetings or in personal interactions among faculty if there are no faculty that take the other side of controversial issues.  If all faculty members are Democrats, for example, then the faculty might adopt an affirmative action policy without considering arguments on the other side.  Even assuming that affirmative action breaks down along party lines (in my experience, it doesn’t), the idea that a faculty can’t or won’t consider views that conflict with their own policy preferences strikes me as wrong.  To the contrary, I find many faculty members eager to play devil’s advocate on faculty governance issues at faculty meetings.  Being a contrarian skeptic is one trait that crosses party lines on law faculties.

Not only do I think that party affiliation is a poor proxy for ideological diversity, but I also think that there are serious downsides in equating the two.  When we say that we can have ideological diversity only by hiring people who belong to different political parties, then we are implicitly endorsing the view that law and politics are equivalent.  Law is not politics.  When law and politics are seen as indistinguishable, then the legal arguments of law professors can be dismissed as nothing more than fig leaves for preferred political outcomes.  I’ve seen far too much of that recently, and I think law professors should do all that they can to resist that view.

Different people are obviously free to use terms in whatever way that they see fit.  But I hope that I’ve convinced at least some of you that ideological diversity should not be defined in terms of party affiliation.

Posted by Carissa Byrne Hessick on June 17, 2017 at 04:11 PM in Culture, Law and Politics, Life of Law Schools | Permalink | Comments (12)

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)

SCOTUS Symposium: Most significant volume of U.S. Reports

Something fun to consider: What volume of United States Reports has the greatest number of canonical or important cases, whether legally or historically?

My nominee: Volume 403 (OT 1970), which contains:

Bivens; Cohen; Lemon; New York Times v. US (Pentagon Papers); Griffin v. Breckenridge (§ 1985(3), part of the KKK Act of 1871, reaches private conspiracies); Palmer v. Thompson (this one is anti-canon: Closing community pool to avoid integration OK); Rosenbloom v. Metromedia (no longer good law, but the high point of the expansion of New York Times v. Sullivan); Clay v. United States; and Coolidge v. New Hampshire.

That is a pretty strong batting lineup.

Defend alternative nominees in the comments.

Posted by Howard Wasserman on June 13, 2017 at 09:31 AM in 2016-17 End of Term, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, June 12, 2017

SCOTUS Symposium: Remedies and constitutional litigation (updated)

I do not teach or write in Remedies, except to the extent that basic remedial principles arise in more general Civ Pro or § 1983 work. Even in that context, I had not considered the special problems of ensuring equality through an injunction. In the First Amendment context, it is easy: Stop enforcing the prohibition on nude dancing or leafletting on the sidewalk and let the plaintiff have nude dancing in his bar or leaflet on the sidewalk. When the claim is that the laws are treating one group differently than the other, there are two choices: Extend the advantageous treatment to the disadvantaged group or extend the disadvantage to everyone. And that depends on statutory design.

This was the problem for the Court in today's decision in Sessions v. Morales-Santana. Federal law must provide rules for when to accord citizenship at birth to children born outside the U.S. where one parent is a citizen. The law imposes on the citizen parent a five-year (two years since age 14) pre-birth residency requirement in order for the citizen parent to transmit citizenship at birth to the child. And that rule controls three situations: Married parents where the father is the citizen; married parents where the mother is the citizen; and unmarried parents where the father is the citizen. The statute then frames an exception to that rule for unmarried parents where the mother is the citizen, who only must have lived in the U.S. for one year pre-birth. The majority held that this less-favorable treatment for unmarried fathers violated equal protection.

But then what?

Morales-Santana was born in the Dominican Republic to a U.S. citizen father and a Dominican mother; the father was 20 days short of satisfying the statutory requirement for transmitting citizenship at birth. What Morales-Santana wanted from the Court was to apply the unmarried-mother rule to unmarried fathers, which his father satisfied, and which would make him a citizen at birth.* He would get that relief if the Court followed its ordinary equal-protection approach of extending the benefit (one-year residency) to the disadvantaged person. But the Court could remedy the equal protection violation a different way: Eliminate the favorable treatment to the differentially treated group (unmarried-mother citizens) and subject everyone to the five-year/two-year rule. That eliminates the equal protection problem, but does not make Morales-Santana a citizen at birth or entitle him to a suspension of removal.

[*] Morales-Santana was trying to avoid deportation as a result of some state criminal convictions.

The Court chose the latter, because the former would be inconsistent with congressional intent and the structure of the law and would disrupt the statute. The rule for unmarried-mother citizens is framed as an exception to the general rule, suggesting that Congress saw the five/two residency rule as the norm. And if the Court extended the one-year rule to unmarried-father citizens (Morales-Santana's preference), it would have produced a system in which married parents were treated less favorably than unmarried parents, itself raising constitutional problems. And the Court believed that Congress would not have wanted all parents (married and unmarried, mother or father) subject to the one-year rule, otherwise Congress would have made one year the rule, not a one-provision exception.

But does the Court ordinarily look to groups not before the Court in creating remedies? The provisions for married parents are in 8 U.S.C. § 1401, while the provisions for unmarried parents are in § 1409. So the Court could have said the equal protection problem is in § 1409, extended the favorable rule to all, then worried about the equal protection problems as between § 1401 and § 1409 in a later case. But that still left the problem within § 1409, in which the provision for unmarried-father citizens was in (a) and for unmarried-mother citizens was in (c) and written as an exception to (a) ("Notwithstanding the provision of subsection (a) of this section . . .").

Update: From Mark Tushnet at Balkinization:

[M]y initial reaction is that that argument is incomplete, because it doesn't take account of the Court's statement that, pending a statutory revision, the "Government must ensure that the laws in question are administered in a manner free from gender-based discrimination." What could that mean? My (relatively uninformed) take is this: Where (a) the gender-based provision would have immediate legal consequences (as in triggering Morales-Santana's eligibility for removal), and (b) the law gives the government discretion in administering the law (for example, discretion to suspend removal), that discretion should be exercised in a way that would eliminate the legal effects of the gender-based discrimination. So, in short, if there's discretion to suspend Morales-Santana's removal, he should get to stay in the United States.
Mark quotes from p.2 of the slip op., the end of the Introduction. But at the end of the body of the opinion (p.28 of the slip op.), the Court says "[i]n the interim, as the Government suggests, § 1401(a)(7)'s now five-year requirement should apply prospectively to children born to unwed U.S.-citizen mothers." It seems to me that means the government is free to remove Morales-Santana, because he is not a citizen-at-birth under the applicable provision. And that provision is no longer discriminatory; the discrimination was removed by the order/agreement not to treat as citizens at birth those born to unmarried-mother citizens. The Court did not order the government to suspend Morales-Santana's removal or order the lower court to consider that. And the provisions at issue do not allow of executive discretion.

Posted by Howard Wasserman on June 12, 2017 at 02:26 PM in 2016-17 End of Term, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Sunday, June 11, 2017

A different scope-of-injunction question

The Texas Department of Health and Human Services enacted a regulation requiring clinics to bury or cremate fetal remains; a district court enjoined enforcement of the regs. The Texas legislature then passed (and the governor signed) a comprehensive statute imposing new abortion limitations, including requirements that clinics bury or cremate fetal and embryonic remains (§ 697.004). Slate's Mark Joseph Stern argues that this move is "treading dangerously close to a conflict with a federal court order." He explains:

Technically, SB8 does not directly conflict with Sparks’ injunction, which only prevents the state from implementing the Health and Human Services rule. In practice, though, the law looks a lot like defiance of a federal court order. By way of analogy, imagine if a court struck down Texas’ constitutional amendment outlawing same-sex marriage and the legislature simply replaced it with an identical statute. That game of whack-a-mole might be hypothetically legal, but it would also be constitutionally indefensible.

Stern interviewed a lawyer from the Center for Reproductive Right who said the district court's decision would "seem to clearly proscribe this law," but declined to discuss their litigation strategy for responding to the new law.

Is this right?

In a judicial-departmentalist world, a state government can disregard judicial precedent but cannot disregard a court order. A court order halts "this conduct" by "this defendant" (and those working with this defendant)  as to "this plaintiff." The question is what is "this conduct" when talking about attempts to restrict reproductive choice and an action seeking to enjoin that restriction. The answer depends on whose perspective we adopt. From the plaintiff's standpoint, it is the state seeking to require it to do something (dispose of fetal remains) in a way that injures its business and deprives its female patients of their Fourteenth Amendment rights. From the defendant's standpoint, each involves different forms of government conduct and the enforcement of different legal rules that must be scrutinized and analyzed separately in determining constitutional validity. We can do the same with Stern's same-sex marriage hypothetical. From the defendant's standpoint, these are distinct legal enactments and enforcement of distinct rules that must be scrutinized and analyzed separately in determining constitutional validity. From the plaintiff's standpoint, the state is prohibiting her from doing something (marry a same-sex partner) in a way that deprives her of her Fourteenth Amendment rights.

My inclination is that we look from the government's perspective and that this does not implicate the existing injunction. The government acts through grants of authority to enforce legal rules. And enforcement of a different legal rule from a different source is a different action, even if the rules are identical, even if they injure the same people in the same way, and even if they share the same constitutional defects. HHS enforcing a regulation is a different official action than HHS enforcing a statute. There also is the possibility that the government would argue that a statute should get greater deference or leeway than an administrative regulation. I would reject the argument in this context--if it imposes an undue burden, it does not matter who in the state enacted the ruel--but it is something Texas could argue. And that makes the statute different than the reg and thus not a violation of the injunction.

The difference is largely procedural--how, in an ongoing litigation (the parties are under preliminary injunction but no final judgment has been entered), to challenge the constitutional validity of the new law. If enforcing the statute represents the same governmental conduct as enforcing the reg, the plaintiff can proceed via a motion to enforce the injunction, perhaps along with a motion for contempt. If this is different government conduct, the plaintiffs must proceed via a motion to "extend" the injunction, likely in conjunction with an amended complaint adding a new constitutional claim against enforcement of the new legislation.

So I believe the answer is straightforward. But it presents a different issue for how we determine the scope of an injunction in constitutional cases--looking not only to the parties,  but also the legal rule challenged.

Posted by Howard Wasserman on June 11, 2017 at 03:47 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Thursday, June 08, 2017

Expressive legislation, legitimacy, and judicial departmentalism

Sherry Colb discusses pending Texas legislation that would ban Dilation-and-Extraction (D&E), the most common method of second-trimester abortions. If enacted, the law would restrict second-trimester abortion to a degree that it almost certainly would constitute an invalid undue burden on reproductive freedom under current Fourteenth Amendment doctrine and almost certainly will be declared invalid and unenforceable by the courts. Colb wonders why Texas would enact legislation so obviously likely to lose in court (noting how common it is for states to do this with abortion legislation) and argues that such legislation is a form of expression for the legislators. She  labels such practices "potentially legitimate but generating discomfort and possible problems;” it depends on how long the law would be in effect and how likely it is to have a chilling effect on Fourteenth Amendment liberties in the lag between enactment and injunction. Legislation-as-expression is better than violence, but inferior to other forms of anti-choice speech that would not have the same practical effect on doctors and women in Texas.

Colb does not mention or consider that the Texas legislators and governor (presumably) believe such legislation is constitutionally valid. This is where the model of "judicial departmentalism" I have been urging comes into play. Because the judicial interpretation or understanding of the Fourteenth Amendment does not bind any other branches, Texas lawmakers  remain free (and act consistent with their oaths) to act on their own constitutional views and understandings, even if those views run contrary to those of the judiciary. What they are doing here is in no way illegitimate and should not be regarded as such. It instead is what coordinate constitutional actors are entitled, and expected, to do--change the law of Texas to match their policy preferences (and, presumably, those of their constituents) and their constitutional vision.

Colb is right that a court, bound to follow the judicial understanding of the Fourteenth Amendment, will declare this law invalid and enjoin its enforcement. And she therefore is right that the practical effect of such legislation at the moment is symbolic and expressive, except to the extent that it sets-up an opportunity to argue for a change in judicial doctrine. In fact, laws such as this represent the only way to change judicial doctrine, making them not only legitimate, but necessary to the development of constitutional law. So judicial departmentalism recasts Colb's argument--in practice it is symbolic, in theory it should not be derogated as only contingently legitimate. It is not that Texas is ignoring the courts, but that Texas' constitutional vision conflicts with that of the federal courts. Neither party acts illegitimately in following its vision.

Posted by Howard Wasserman on June 8, 2017 at 07:02 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, June 06, 2017

SCOTUS Symposium: Thoughts on the assignment power

Last month's decision in Cooper v. Harris (declaring invalid two North Carolina congressional districts as impermissibly race-based) was notable for the rare lineup: Justice Thomas joined Justices Ginsburg, Breyer, Sotomayor, and Kagan. Less mentioned was that Thomas, as senior-most Associate Justice in the majority, assigned the opinion (draw your own conclusions from Thomas assigning the opinion to Justice Kagan, while Kennedy, placed in the same position, tends to keep the opinions for himself). This is similarly rare: Thomas generally agrees with the Chief (and if not the Chief, prior to last February, Justice Scalia), more-senior Justices who would assign opinions.

I am interesting in writing about the assignment power, particularly for Justices other than the Chief. I would like to look at those who have had long tenures as senior-most Associate Justice (either on the Court or on a segment of the Court) and had either a lot or a little assignment power in that role. I also am interested in the rare assignments, such as Cooper.

For now, I want to address a different point: In December, I argued that the loser in Mitch McConnell's successful Merrick Garland gambit (besides Never-Justice Garland) was Elena Kagan, who lost a chance to be the Justice Brennan of a new liberal-leaning majority. But also losing out on the exchange was Justice Sotomayor, who lost the chance to frequently wield the assignment power (query whether she would have relied on Kagan the way Chief Justice Warren relied on Brennan). Assume Hillary Clinton won and the following: a) Garland is confirmed; b) Ginsburg and Breyer retire within Clinton's first two years. By OT 2018, we have the following Court: Chief, Kennedy,* Thomas, Alito, Sotomayor, Kagan, Garland, Clinton I, Clinton II. That is a 5-4 Court on politically divisive cases--with the four most senior Justices in the minority and Sotomayor the senior-most Associate Justice in the majority, assigning many of these opinions.

    [*] For purposes of this exercise, Kennedy could have retired as well.

Posted by Howard Wasserman on June 6, 2017 at 09:31 AM in 2016-17 End of Term, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, June 05, 2017

SCOTUS Symposium: More on standing, intervenors, and Laroe Estates

I covered Town of Chester v. Laroe Estates for SCOTUSBlog and my recap is here. Since that forum is intended to be descriptive, this is my normative take.

The Court leaves in place what Andrew-Aaron Bruhl (who filed an amicus brief in the case) calls the one good plaintiff rule--so long as one plaintiff has standing, other plaintiffs (including intervenor-plaintiffs) can go along for the ride. Town of Chester limits that to plaintiffs and intervenors who assert identical claims for identical relief. The problem (as Aaron argued in an email and I agree) is that all relief is plaintiff-specific--a remedy for A is different than a remedy for B, even if they both want the same thing. So either the Court's own rule is universal or it is calling on lower courts to draw an impossible distinction in practice.

With respect to damages in this case, the Court distinguished two remedies: The first is Laroe asking for damages directly from the Town for the value of its property interest, which would require standing. The second is Laroe joining Sherman to ask for a single fund of money from the Town, after which Laroe and Sherman would fight over their portions of that fund (which would not). The latter theory is that Laroe and Sherman seek the same thing from Chester--$ 6 million, the value of the regulatory taking of property in which they both have an interest; thus, only one need have standing to get the entire pool from the Town. Who between Laroe and Sherman owns how much of that $ 6 million is between them.

The "one good plaintiff" rule arises most often in actions challenging the constitutionality of a law and seeking injunctive relief; courts do a standing inquiry for one plaintiff, then stop. But the plaintiff-specificity of the remedy remains, which is why Aaron argues everyone must have standing. Enjoining enforcement of a law so A can engage in some conduct (attend an integrated school, hold a rally, get married, not buy health insurance) is a different remedy from enjoining enforcement of a law so B can engage in the "same" conduct himself. This decision does nothing to end that practice. Courts generally understand this type of injunction as the equivalent of a single pie for each party to put to its own use, rather than a single order requiring something from the defendant to each plaintiff. (I am interested in this point (and in Aaron's article) because it ties into questions about the scope of judgments, the permissibility of universal/nationwide injunctions, and the process of constitutional litigation).

Ironically, Justice Gorsuch's testy exchange with respondent's counsel (this was the second argument on Gorsuch's first day on the bench) surrounded discussion of this point. Asked by Gorsuch to identify when an intervenor seeks different equitable relief from the plaintiff, counsel tried to explain that it depends on the scope of the injunction, implicitly invoking one-good-plaintiff cases; Gorsuch became increasingly frustrated by counsel's refusal to answer his non-"trick" question. But Gorsuch did not seem to recognize the real problem--that an injunction should never be so broad that a person can benefit from it as a judgment without having standing.*

[*] For purposes of this point, I bracket my Fletcherian insistence that standing is merits. [Update: On this tangent, Aaron responds with a great point: "One good plaintiff" exists because standing is not merits. Courts never would have developed a doctrine that says "so long as one plaintiff has a successful claim on the merits, we will grant relief to other plaintiffs even though they don't have successful claims on the merits." But because it is a jurisdictional threshold, courts have been ironically lenient on it (as long as someone can pass the heightened threshold).

Posted by Howard Wasserman on June 5, 2017 at 02:23 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, May 31, 2017

SCOTUS Symposium: Good hombres and legal positivism

I think this sort-of relates to Paul's definite contribution to the SCOTUS Symposium. In light of Paul's model, how should we understand the Ninth Circuit's denial of a stay of removal in Ortega v. Sessions, particularly Judge Reinhardt's concurring opinion?

Ortega came to the United States unlawfully as a teen; he has been here 28 years, gotten married, had 3 children (one of whom is in college), and become a successful businessman--he is, as Judge Reinhardt said, a "good hombre." Ortega has been under a stay of removal since 2014, until the government changed its position on the stay in March and ordered him removed (absent the stay, that happens next month. Reinhardt concurred in the denial of the stay, arguing that the court lacks the authority to grant it, even if it is not fair and just. He concludes with a flourish:

We are unable to prevent Magana Ortiz's removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government's decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

Assuming arguendo we agree with Reinhardt that this decision is unjust, what do we think of the decision generally and Reinhardt's opinion specifically? Is this a form of resistance or domestication--the hope that, even though the administration "wins" and its opponent "loses," the court's words of criticism might either calm the administration down going forward or rouse an opposition? Alternatively, this presents a third option for the courts--compliance, in that the administration's policies move forward, even if it is grudging compliance with a chip on the court's shoulder that might rally domestication or resistance.


Either way, it supports Paul's argument that the conversation must be about more than who wins or loses--if all the administration cares about is winning, the court's words are meaningless. They begin to sound in Fuller's critique of legal positivism and how that concept requires courts to validate immoral actions in the name of positive law.

Posted by Howard Wasserman on May 31, 2017 at 03:50 PM in 2016-17 End of Term, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, May 30, 2017

SCOTUS Symposium: General jurisdiction narrows further

I am glad we started our June symposium two days early, because the Court issued four of its remaining opinions, including BNSF R. Co. v. Tyrrell, one of two personal jurisdiction cases from the April sitting.

The question was whether a state court (in this case, Montana) can exercise jurisdiction over a FELA claim for an accident that occurred in another state. The Court unanimously (through Justice Ginsburg) held that FELA itself does not answer the question because the possibly relevant statutory provision did not speak to personal jurisdiction, but only to subject matter jurisdiction (making clear concurrent jurisdiction over FELA claims) and venue (for FELA claims in federal court).

The personal jurisdiction analysis therefore was covered by International Shoe. And here was see the same divide (Ginsburg for the Court, Justice Sotomayor dissenting alone) over the scope of general jurisdiction as in Daimler v. Bauman; Part III of the majority and all of the dissent are an in-miniature rehash of Diamler.

The majority reiterates several things: 1) General jurisdiction is where the defendant's contacts are so "continuous and systematic" as to be "essentially at home"; The "paradigm" of the essential home is the entity's principal place of business and state of incorporation; 3) there may be "exceptional" cases in which general jurisdiction will be available outside those two states; 4) a company doing business in many states cannot be home in all of them and the analysis must consider its in-state contacts in light of its overall activities in other states; 5) Shoe was a specific, not general, jurisdiction case, so any discussion of general jurisdiction there is dicta. The Court added something new: It pointed to Perkins as exemplifying a company essentially at home other than its state of creation and P/P/B, hinting (according to Sotomayor's dissent) that this exhausts the exceptional cases and only a similar set of facts* will qualify.

[*]Unlikely, as Japan is unlikely to invade the Philippines.

Thus, 2000 miles of track and 2000 employees in Montana is not sufficient to make BNSF essentially at home, where it is incorporated and has its PPB elsewhere and where it does similar amounts of business in other states.

The significance of this case in reaffirming the narrowness of general jurisdiction may not be clear until the Court decides Bristol-Myers. The narrowing of general jurisdiction has forced courts to find ways to expand when a contact "gives rise" or "relates to" a claim, thereby expanding specific jurisdiction.

Posted by Howard Wasserman on May 30, 2017 at 10:51 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 28, 2017

In my opinion, my Electoral College margin was 538 votes

The President on Twitter this morning: "It is my opinion that many of the leaks coming out of the White House are fabricated lies made up by the media." And "it is very possible that those sources don't exist but are made up by fake news writers." A few commentators have suggested that these hedges signal that Trump has "lawyered up" and has someone in the White House counsel vetting his tweets.

But any lawyer knows that slapping "In my opinion" or "I believe" or similar hedges in front of verifiable assertions does not render them something other than statements of fact. It certainly would not get him out from under defamation liability (presidential immunity to one side). And it probably would not work politically to say that it was only his opinion that the leaks were fabricated when it turns out that these leaks were, in fact, coming from the WH. No good lawyer would think or advice otherwise.

If anything, this sounds like what a non-lawyer would think is enough to create a statement of opinion.

Posted by Howard Wasserman on May 28, 2017 at 11:53 AM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

Thursday, May 25, 2017

Scope of injunction in the 4th Circuit travel ban decision

The Fourth Circuit divided 10-3 in affirming the district court and enjoining the second travel ban. The court agreed to keep the injunction nationwide, but reversed the part of the injunction that ran against the President personally (although the injunction stands as to other federal officials involved in its enforcement). I will leave substantive analysis to others, but check out here, here, here, and here. Given my interests, I want to address two points about the scope of the injunction.

1) The court affirmed the nationwide scope of the injunction and actually gave reasons: Plaintiffs are dispersed throughout the country; congressional desire for uniform immigration law; and an interesting Establishment Clause hook--because the EO violates the Establishment Clause, its enforcement as to anyone sends the identical  message that plaintiffs are outsiders and unwelcome in the community.

The first concern is satisfied by a true nationwide injunction, which is to say an ordinary injunction--protect named plaintiffs everywhere they are. It does not justify this injunction, which is universal--protecting everyone everywhere. The second argument proves too much. Congress wants all federal law to be uniform; that is the point of having federal law in some areas. There is nothing special about immigration law in that respect. That the law might go through periods of disuniformity while courts figure out the meaning and validity of some law is inherent in a tiered federal judiciary and unavoidable, given that SCOTUS does not have original jurisdiction in all constitutional challenges to federal law, meaning any challenge must work its way through multiple (possibly disuniform) courts before SCOTUS can offer a final, uniform conclusion. It does not justify a regional court acting as SCOTUS and having the nationally controlling (even if temporary) word on an issue.

The third argument is interesting and would seem to make the Establishment Clause special for injunction purposes. But that Clause also is special for standing purposes, so it offers an interesting way to tie the front-end standing concerns with back-end remedial concerns.

 2) If the President cannot be enjoined in an Ex Parte Young action such as this one, it really means he is immune from suit, should not be named as a defendant at all, and should have been dismissed from the action at the outset. But he wasn't and courts entertain these lawsuits with the President as a named defendant all the time.

The Fourth Circuit relied on Franklin v. Massachusetts, including Justice Scalia's concurrence. Scalia argued that it was enough to enjoin the Secretary to stop unlawful executive action, just as we enjoin the executive to stop unlawful legislative action. But the reason is that legislators enjoy absolute Speech-or-Debate immunity from all suits for all remedies. In fact, we have EPY at all because of sovereign immunity-- the sovereign (the United States) cannot be sued, so we sue the executive acting on behalf of the sovereign. The President purportedly is not immune, at least not from an injunction, so there should be no reason to look elsewhere. Or, if he is immune, say so and proceed accordingly.

The Fourth Circuit also cites Franklin for the proposition that this does not leave the President free to act unconstitutionally. The secretaries through whom he acts are enjoined. And "[e]ven though the President is not directly bound by the injunction, we assume it is substantially likely that the President . . . would abide by an authoritative interpretation" of the EO.

Why is that so in a departmentalist world? The key to functional departmentalism is the difference between an injunction/judgment and precedent--the President is bound by the former, not by the latter. But if the President cannot be enjoined, there is no way to compel him (beyond persuasion) to the judicial interpretation. I suppose the answer is that the President cannot enforce the EO himself, but only through his secretaries, aides, and federal employees--all of whom are enjoined. Still, it adds an unnecessary step that is inconsistent with EPY, unless the President enjoys an as-yet unrecognized immunity.

Posted by Howard Wasserman on May 25, 2017 at 05:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, May 23, 2017

Another unwarranted universal/nationwide injunction

Last week, Judge Jones of the Western District of Washington issued a nationwide TRO against enforcement of a federal regulation barring attorneys from providing limited limited legal services for otherwise-pro bono litigants in immigration proceedings. The regulation requires attorneys to file a formal appearance as counsel of record in order to provide any representation, something the plaintiff Northwest Immigrant Rights Project, a nonprofit advocacy organization, cannot afford to do in all cases for all clients. NWIRP argued that the regulation violated the First Amendment.

As always, the court made the order nationwide: "Counsel for the Government represented during the hearing on the TRO that it desired to continue issuing cease and desist letters to non-profit organizations providing legal services to immigrants. As such, the Court grants this TRO on a nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. § 1003.102(t) during the pendency of this TRO on a nationwide basis."

Even if universal injunctions might at times be warranted, this is not one of those times. NWIRP represents clients only in the Pacific Northwest, so it would be sufficiently protected by an injunction prohibiting the issuance of cease-and-desist letters to it in Washington. We could even extend that to the issuance of letters to NWIRP anywhere in the country (a real "nationwide" injunction). But NWIRP's is in no way deprived of complete relief if the government issues C/D letters to any other lawyers or nonprofit organizations anywhere else in the country. There is no reason, and no basis in principles of equity and judgments, for one district court in a non-class action to freeze enforcement as to every other person everywhere in the country.

But we have reached a point where universality is automatic and unthinking. Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal.

Posted by Howard Wasserman on May 23, 2017 at 06:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Monday, May 22, 2017

Police in changing communities

Some good stuff in this lengthy Buzzfeed piece on the tensions between the (overwhelmingly white) police and the increasing Black and minority communities in Troy, New York. Two items to pull out that are common in these types of stories, but illustrate some things I have been thinking about:

1) Describing the cycle that multiple incidents followed: "a stop for a low-level infraction; an interaction that escalates; use of force by officers; a charge of resisting arrest, dismissed by prosecutors or acquitted at trial; and then a lawsuit settlement with the city that allows officers to deny the allegations of misconduct." And four officers involved in multiple incidents remain on the police force. And the city works these (relatively small) settlements into the cost of doing business, so civil damages litigation produces no political or accountability pressure to change its policies or the behavior of its officers.

2) Among the reforms the chief of police proposed were dashcams, which were opposed by the union and ultimately rejected. Again, a common reaction--police unions are the one stakeholder not enamored of cameras and many unions are going in the opposite direction of moving away from initial support.

Posted by Howard Wasserman on May 22, 2017 at 08:06 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, May 19, 2017

Questioning DOJ Independence

Recent new stories suggest that part of the conflict between James Comey and President Trump arose out of Comey’s desire to keep the FBI independent from the administration.  Comey’s goal was not an idiosyncracy; there are regulations that limit and channel contact between the White House and officials at the Department of Justice.

Given the events of the past several months, a debate has emerged over how independent the FBI can or should be from the administration.  Most of what I read seems to assume that such independence should exist, and that it is an unmitigated positive.  I am not so sure. 

To the extent that the FBI is independent from the administration, the FBI is not democratically accountable.  Of course, most democratic accountability in the Executive Branch is indirect.  The primary democratic check on executive officials is the presidential election.  The president can select the individuals he or she wants to appoint to various positions, the president can tell that official which policies to pursue, and the president generally has the ability to fire the official.  But indirect accountability comes at a price: independence from the administration.

Years ago, when the legal community was in an uproar about whether the Department of Justice had become too politicized under George W. Bush’s administration, I had the good fortune to attend a panel on the U.S. Attorney firings.  The panel consisted of all of the former U.S. Attorneys who had been fired at the beginning of President Bush’s second term.  One U.S. Attorney said he had been fired for refusing to seek the death penalty in a particular case.  Another said he’d been fired for refusing to move quickly on political corruption charges against Democratic officials.  And a third said that he had been fired for refusing to bring obscenity charges against internet providers.  The prevailing sentiment, both at the panel and also in the press, was that, although the President had the power to fire those U.S. Attorneys, the decision to fire these particular attorneys was inappropriate because it had been done for “political reasons.” 

The panel was fascinating, but I had the same question then that I do now:  If prosecutors, the FBI director, and other executive officials derive their legitimacy from their indirect democratic accountability, then why is it a scandal to fire such an official for “political” reasons.  How do you draw the line between a legitimate “policy” reason and an illegitimate “political” reason? 

Because I apparently do not lack self-confidence, I asked the panelists this question.  And the answer that I got was, essentially, that general policy directives are okay, but any attempt to influence decisions in individual cases are off-limits.  At the time, I thought that this was a satisfying answer.  But now I am not so sure.

When it comes to police and prosecution, policy statements don’t seem to mean very much.  Policy statements, like the charging memos that Attorney Generals regularly disseminate to federal prosecutors, are necessarily general.  And they invariably leave room for professional judgment.  In fact, you might say that the true policies of a prosecutor or law enforcement office can be discovered only by assessing how that professional judgment is employed in different circumstances.  To use one of the examples from the U.S. Attorney firing, it doesn’t tell you much to know that a particular prosecutor supports capital punishment; what you really care about is the circumstances under which he or she will seek the death penalty.

Of course, the news accounts of the interactions between Director Comey and President Trump are not a simple example of law enforcement independence.  Because the investigation at issue involved the President’s own campaign, there are a multitude of other issues at play.  But whatever we take away from the Comey affair, I don’t think it should be a lesson of absolute independence for the Department of Justice.

Posted by Carissa Byrne Hessick on May 19, 2017 at 11:30 AM in Criminal Law, Law and Politics | Permalink | Comments (6)

Tuesday, May 16, 2017

Conspiracy theory of the day

In July 2016, after Trump selected Mike Pence as his running mate, Pence visited James Comey at FBI headquarters and said, "I want you to help me become President of the United States."

Posted by Howard Wasserman on May 16, 2017 at 07:57 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Parlor Games and the FBI Directorship

Mitch McConnell (following the lead of Utah's Mike Lee) is urging President Trump to nominate Merrick Garland for FBI Director. McConnell insists that Garland would provide the nonpolitical professionalism needed for the position, plus he would get Democratic support, which would be a benefit for this appointment. And, of course, although McConnell does not say so, it also would give Trump a vacancy on the D.C. Circuit.

But Garrett Epps argues that it need not create any vacancy. Nothing in the Constitution or federal statutes prohibits a judicial officer from holding executive-branch office (I wrote in January wondering whether Garland would have had to resign his seat had Obama made a recess appointment). Epps cites numerous examples of simultaneous work, including Justice Jackson taking a one-year leave from SCOTUS to serve as Nuremberg prosecutor and Chief Justice Warren simultaneously chairing the commission investigating the Kennedy assassination. Epps argues that Garland could take a leave of absence from the D.C. Circuit to head the FBI for a few years (long enough to investigate Russia and anything else that comes down the Trumpian pike), then go back to the court after a few years in the Hoover Building* All it takes is the approval of the Chief Judge of the Circuit--and the Chief Judge of the Circuit is Merrick Garland.

[*] Although how much administrative trouble would it create when Garland came back to the D.C. Circuit. Would he have to recuse from nearly every federal criminal case in which FBI agents investigated?

Of course, McConnell is politically savvy and would ensure that Garland agreed to resign from the bench as a condition of confirmation. But Democrats might still score some political points, showing that McConnell's desire for bipartisanship is a ruse to create a judicial vacancy for a Republican president. If McConnell is  serious about wanting Democratic support and a non-partisan figure for the FBI, he should not insist on the new partisan gain of the judicial appointment

Ultimately, this is a parlor game (hence the title of the post) that makes for fun musings but will never come close to reality.

Posted by Howard Wasserman on May 16, 2017 at 02:23 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, May 09, 2017

A new definition of chutzpah?

In The Joys of Yiddish, Leo Rosten offers the classic definition of chutzpah: The man who, having killed his parents, begs the court for mercy on the ground that he is an orphan.

But might we have a new definition: Donald Trump--who spent months insisting that Hillary Clinton's handling of emails constitutes a jailable offense (if not treason), spent part of the election criticizing FBI Director James Comey for coddling Clinton, and was elected president at least somewhat (studies are unclear how much) with the help of Comey's three public announcements about the FBI investigation (two in the final weeks of the campaign)--has fired Comey [ed: purportedly] for his disclosures about the email investigation.

Posted by Howard Wasserman on May 9, 2017 at 06:33 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, May 04, 2017

Should we explain bicameralism to President Trump?

And a question asked in all seriousness: When, if ever, has a President held a Rose Garden ceremony, surrounded by his party's house caucus, to celebrate one house approving a piece of legislation?

Update: A different question: What is the procedural equivalent of what Trump and the caucus did here in celebrating something that has no legal effect, but is a necessary step towards a conclusion that will have legal effect? Celebrating the denial of summary judgment or a motion to dismiss? Celebrating an indictment (this one is common in high-profile cases, but an indictment arguably has more legal meaning than passage in one house)? Celebrating (depending on which side you are on) the grant or denial of a motion to suppress evidence?

Posted by Howard Wasserman on May 4, 2017 at 06:20 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Sport and speech, part 766

Two news stories, submitted largely without comment:

1) The Boston Red Sox banned a fan from Fenway Park for life for using a racial slur in a conversation with another fan, describing the Kenyan woman who had sung the national anthem. The fan who heard the slur complained to an usher, the speaker was removed from the park, and on Wednesday the team announced the ban.* The Red Sox are private and there is not even a whiff of public funding surrounding Fenway Park, so the First Amendment is nowhere in play. But let's suppose, just for sake of argument, that there were state action. How is this not protected speech? It is not incitement. It is not fighting words, because an insult about someone else is not likely to induce the listener to punch the speaker in the face. There is no general "harassment" exception to the First Amendment, and even if there were, I am not sure it would apply for the same reason this is not fighting words.

[*] Separate question: How do they enforce the ban? Tickets do not have names on them and we do not have to show ID to enter a ballpark. Will his picture be posted at every entrance? And will ticket-takers have the time or patience to look when 35,000 are streaming through the turnstiles?

2) LSU ordered its student-athletes to abide by certain guidelines when participating in any protests of the decision not to bring civil rights charges against the police officers involved in the shooting of Alton Sterling. Among the guidelines (although phrased as a request) is that they not where LSU gear or branding while engaging in these activities. To its credit, the Athletic Department expressed its "respect and support" for the players' right to speak. They just want to control what the athletes wear--itself a form of expression--when they speak.

Posted by Howard Wasserman on May 4, 2017 at 12:11 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (21)

Tuesday, May 02, 2017

Two steps back on jurisdictionality

On Monday, SCOTUS unanimously (through Justice Breyer) held that plaintiffs must prove, not merely make non-frivolous allegations of, the elements of the exception to the Foreign Sovereign Immunities Act for cases where "rights in property taken in violation of international law are in issue." The plaintiff must prove and the court must find that the case involves property rights and that the property was taken in violation of international law--if the claim fails on either point, the court lacks jurisdiction. This must be the approach even if the findings overlap with the merits of the claim and even if the findings are not made until later in the case (although the Court also said resolution should be made "as near to the outset of the case as is reasonable possible").

This is the first time in a while the Court has declined to draw a sharp separation between jurisdiction and everything else and to adopt the narrower conception of jurisdiction. The Court was swayed by the foreign-relations and international-comity implications of the contrary result, under which sovereigns would have had to litigate the merits, which may have caused litigation to continue for longer. The Court rejected the plaintiff's analogy to § 1331, emphasizing the different language and the textual import of consistency with international law as to FSIA but not to § 1331. The Court was unconcerned with merits-jurisdiction overlap, emphasizing that in most cases the jurisdictional facts (property and violation of international law) are not part of the merits.* These facts thus were more like the fact of citizenship in diversity cases than whether a claim is created by federal law.

[*] The court of appeals tried a middle ground--proof of jurisdictional fact was necessary where the merits did not overlap, while nonfrivolous allegations were sufficient where they did. SCOTUS said this approach was contrary to the text of FSIA.

I am not convinced by the distinctions with arising-under jurisdiction, although that is informed by two conclusions: 1) Jurisdiction and merits never can overlap, even by the accident of Congress slapping the label of "jurisdiction" on some issue; 2) Sovereign immunity, again regardless of label, is better understood as a merits defense, going to who can be sued and for what conduct. The Bolivarian Court at times plays loose with that jurisdictional nature, distinguishing § 1331 because it does not involve sovereign immunity--but if sovereign immunity is jurisdictional, then it is doing the same thing as § 1331 in limiting judicial authority.

Two of the Court's arguments as to § 1331 are, I believe, especially weak. First, the Court emphasized that the "arising under" language of § 1331 is unconcerned with consistency with international law. But the FSIA exception requires that rights in property taken in violation of international law be "in issue." Nonfrivolous allegations that property was taken in violation of international law should place those facts "in issue," just as a claim "arises under" when the nonfrivolous allegations suggest a right and right of action created by federal law. The Court never addresses the "in issue" language, what it might mean, or how it might be comparable to the § 1331 language.

Second, the plaintiffs had argued that their approach would not burden sovereign litigants, who could move under 12(b)(6) or 56 on these issues and would not necessarily (or even likely) be forced to litigate to the "bitter end." Breyer responded that foreign sovereign immunity is immediately appealable under the collateral order doctrine. If these were treated as merits facts, however, they would not be immediately appealable, because Cohen requires the issue be separate from and collateral to the merits. But several non-jurisdictional defenses (notably individual immunities in § 1983 actions) are subject to C/O/D review. And the Court's recent cases have focused on the effectively unreviewable prong and the effect on and importance of  the interests lost if immediate review is unavailable--considerations that should break in favor of  C/O/D applying even if these are treated as merits facts.

Posted by Howard Wasserman on May 2, 2017 at 08:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, May 01, 2017

Genuine dispute as to any basic fact

In response to my posts on the cert denial in Salazar-Limon, a civil procedure colleague blames Celotex, calling this decision a logical extension of the opening of summary judgment. The explanation was as follows: 1) Defendant can move by "pointing" to a lack of evidence, here of not reaching for the waistband; 2) plaintiff could not offer proof of his version, because he did not say at his deposition (because he was not asked) whether he reached for his waistband; 3) plaintiff bears the burden of persuasion, so defendant wins.

I do not find Celotex problematic--having the exchange of evidence on summary judgment resemble the exchange of evidence on judgment as a matter of law at trial makes sense. But I agree that the lower court was wrong in Salazar-Limon.

My explanation for those conclusions is something I suggested but did not fully elaborate on in my first post and the comments. Courts on summary judgment are insisting on contradictory direct evidence (i.e., contradictory testimony) on a basic fact. What courts are supposed to do is dive into the record, identify the material fact to be inferred from any basic facts, and determine whether all the evidence allows a reasonable jury to find that material fact in either direction. In other words, courts are asking if there is a genuine dispute as to a basic fact. Courts are supposed to look for a genuine dispute as to a material fact, a dispute that can arise because of a dispute over a basic fact or because of other evidence of the material fact that does not rely on the same basic fact.

So consider Salazar-Limon. The officer testified that he saw the the plaintiff reach for his waistband; the lower courts concluded that the absence of evidence contradicting that testimony meant there was no genuine dispute as to whether the plaintiff posed an imminent threat justifying deadly force.* But the plaintiff did testify to a different version of events--"I was walking away, he yelled 'stop', then shot me in the back a few seconds later, before I had a chance to do anything." That testimony should do two things: 1) Allow the reasonable inference that there was no imminent threat, if it believes the plaintiff that he was walking away and got shot before he could do anything; and 2) Allow the reasonable inference that he did not do any other things (including reach for his waistband, threaten the officer, recite Jabberwocky, whatever) that he did not mention doing in his testimony. But the courts ignored it.

[*] Put to one side whether the move from reaching for the waistband to imminent threat to deadly force is justified.

The lower courts' analysis here elevates the basic fact (waistband) over the material fact (imminent threat). The court did not examine all the evidence or all the reasonable inferences that could be drawn from all the evidence. It looked for a single basic fact the defendant identified, looked for contradictory evidence as to that basic fact, and, finding none, granted summary judgment. That is not how this should work. It may be, of course, that a jury will not believe the plaintiff's story that he was walking away and was shot before he could respond to the officer's commands. But the question on summary judgment is supposed to be whether the plaintiff could win. Whether the plaintiff will win is for a factfinder.

Posted by Howard Wasserman on May 1, 2017 at 04:59 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Wednesday, April 26, 2017

Problems of scope and nomenclature in nationwide injunctions

Judge Orrick in the Northern District of California preliminarily enjoined President Trump's Executive Order stripping "sanctuary" cities of federal funds. As per usual in these cases nowadays, Judge Orrick made the injunction "nationwide," rejecting government arguments that it be" issued only with regards to the plaintiffs." The court supported that conclusion by citing Califano v. Yamasaki for the proposition that the "scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff." The problem is that Orrick excludes the important next word in the quoted sentence--"class." Califano was a 23(b)(2) injunctive class action. Thus an injunction that prohibited enforcement of the challenged law as to multiple people was appropriate--because everyone in the class was a plaintiff. And it makes sense that the injunction should follow the plaintiff nationwide--if the government cannot enforce a law against a plaintiff (whether an individual or a municipality), it cannot enforce it regardless of where in the country the plaintiff goes.

This illustrates that the proper term for what the court did here is "universal injunction"--an injunction that covers the defendant's conduct (here, prohibiting enforcement of the EO) with respect to everyone, party or non-party. A "nationwide injunction," on the other hand, is an injunction that protects the appropriately protected persons (the plaintiffs) nationwide. The former, which is what courts have been issuing, is inconsistent with general principles of equity and the law of judgments, which limit the binding effect of a judgment to the parties. And Califano does not establish the contrary, because that was a class action, so the parties who could be protected by the injunction (consistent with the law of judgments) included everyone in the class. In other words, Califano involved a nationwide injunction for a nationwide class. It did not involve a universal injunction protecting everyone in the universe, even non-parties.

And this does not seem a situation in which the injunction must protect non-parties to be given its full scope. To protect Santa Clara and San Francisco from enforcement of this unconstitutional order, it is not necessary that the court also protect other sanctuary cities from enforcement. Those cities can bring (and some have brought) constitutional challenges prohibiting enforcement as to them, now with the benefit of Santa Clara v. Trump as persuasive precedent. Other than a desire for simplicity, there is no reason that the first decision on a legal issue should also be the last on the way to SCOTUS. Rather, it runs contrary to the assumption that multiple lower courts and multiple lower-court judges are going to take passes at legal issue before those issues reach SCOTUS.

The less said about the White House statements, which drips not only with contempt for the judiciary (a well-established theme), but a misunderstanding of how the federal judiciary and constitutional litigation operate (one listserv member wondered whether a competent lawyer came anywhere near these press releases. But one notable point: The statement uses some form of the phrase "single unelected district judge" three times. I know the White House is engaging in demagoguery and not series legal argument there.

But let's take it at its word--the problem is the injunction being issued by the single district judge. What would the WH like to do about that? Return to the old system of 3-judge district courts for all actions seeking to enjoin enforcement of federal laws? Amend Article III to give SCOTUS original jurisdiction of actions challenging the constitutionality of federal law? Always have the government win because everything the government does is constitutionally valid? (actually, that is the preferred option). Always have the government win in the lower courts? This may be what disturbs me the most about the administration's statements towards the judiciary--they reflect not substantive disagreement, but disregard (or lack of understanding) of the judicial processes that produce constitutional decisionmaking.

Posted by Howard Wasserman on April 26, 2017 at 12:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Monday, April 24, 2017

Counter-speech or heckler's veto?

There are some troubling aspects to this edition of FIRE's So to Speak podcast on the Manhattan Institute's Heather MacDonald being a victim of a heckler's veto. MacDonald was shouted down at Claremont-McKenna College, where she had been invited to give a talk on her new book on policing. In the interview, she describes speaking to an empty room, because student protesters outside had blockaded the entrance, and the talk ending early because the university refused to let police disperse the protesters. MacDonald wrote about her experiences.

My free-speech positions generally align with FIRE's, so I was surprised by the problems I found with the discussion:

1) It does not appear they have grappled with the protected nature of some of the protesters' activities (MacDonald allowed at one point that they were "arguably" within First Amendment protection). All heckling seems to constitute a heckler's veto in their telling. Except heckling a speaker is constitutionally protected, including to the point of trying to shout down or drown out that speaker, with the hope that she will give up and go away. (I like to point to the scene in Casablanca with the competing songs). So is asking snarky questions during the Q&A. So is pounding on drums and chanting. There is a line to be drawn somewhere and I admit to not knowing precisely where that is. Blockading the entrance or pounding on the glass is over the line. So is invading the speaker's space or trying to grab the microphone. But shouting from across the way must be protected. And there is an ocean between those.

The  undercurrent to the interview is that the First Amendment (as opposed to civility or a Platonic ideal of polite exchange of ideas) requires those who oppose ideas to allow those ideas a polite hearing. But this privileges the position of the invited speaker (MacDonald) to say what she wants and she wants to, imposing  on others to give her a polite listen and only engage in counter-speech (supposedly the remedy to be applied) on her terms. Rather, counter-speech, no less than "original" speech, may be vehement, caustic, and unpleasantly sharp. Counter-speech, no less than "original" speech, can produce the verbal tumult, discord, and dverbal cacophony that is not a sign of weakness but of strength.

Again, do not hear me as saying that the protesters were entirely in the right. Only that there is a First Amendment element that went almost entirely unacknowledged throughout the interview and MacDonald' narrative.

2) At one point the podcast host describes the right to free speech as a two-sided coin--the right of the speaker to speak and the right of willing listeners to listen, both of which were undermined by the protesters. But this, again, ignores the third side (making this a triangular dreidel?) of the rights of the protesters to counter-speak.

3) A different theme in MacDonald's comments, especially in the interview, is that she is in the right because the protesters attempting to shout her down are "arrogant" and "ignorant" (and arrogant in their ignorance). They are wrong about Black Lives Matter and the problem of police-involved shootings. And if they only knew what she did--such as the story of one elderly person in Chicago who would like to see a greater police presence--they would shut up and listen to her. And their failure to shut up and listen to her and her correct ideas (as opposed to their ignorant ones) represents their abandonment of respect for the First Amendment.

4) MacDonald called out the CMC faculty for not getting involved. Her solution is that when a controversial speaker is coming to campus, faculty members should take class time, regardless of subject, to give a talk to students explaining that they are expected to "maintain the highest ideals of civilization, which is rational discourse." That lecture should take place in a chemistry class or a philosophy class or a literature class.

But isn't the great conservative criticism of academia and academic that professors ignore what they are supposed to be teaching in the classroom (the atomic weight of Bromide or whatever) to instead "brainwash" (a word MacDonald used several times in the interview) students about that prof's favored political ideals. That seems to be what MacDonald is urging here. Except instead of brainwashing them about Marxism, she wants them to brainwash them about her vision of free expression. So I guess it is ok, as long as the professor is brainwashing the student about MacDonald's preferred political ideal.

5) Somewhat related, I would flag this piece in the Chronicle of Higher Ed (subscription required) by my colleague Stanley Fish, who attempts to separate the values of the university from free speech values. He argues that the guest speakers and protests and everything else have nothing to do with academic or university values. They represent political speech to which the university has chosen to open its doors and spaces. Which is fine, but has nothing to do with academic freedom or the core purposes of a university.

6) And this post from Max Stearns' Blindspot, which develops a "vaccine" theory of public debate, in which there is value to exposure to small amounts of noxious ideas. Again, as a model of public debate, this is interesting. But it leaves many open questions about how to account for counter-speech within a model of First Amendment jurisprudence.

Posted by Howard Wasserman on April 24, 2017 at 09:31 AM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (13)

Sunday, April 23, 2017

Justice Alito, funny man

Former GuestPrawf Jay Wexler (BU) has written extensively on who on SCOTUS gets laughs during argument, pointing out that there has been less laughter this Term without Justice Scalia.

Well, perhaps Justice Alito is looking to fill-in the gap. Alito was, relatively speaking, a laugh riot last Monday. During the argument in Perry v. MSTB, Alito got laughs for asking who had written the CSRA, whether it was someone who enjoyed pulling wings off flies. And in the subsequent argument in Town of Chester v. Laroe Estates, Alito got laughs with an extended riff on how defendant standing makes no sense, that a defendant would be perfectly happy for the court to tell it that it must leave the case for lack of standing.

Hilarious.

Posted by Howard Wasserman on April 23, 2017 at 11:05 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, April 18, 2017

SCOTUS on inherent powers

I have a piece at SCOTUSBlog on Tuesday's unanimous decision (8-0, as Justice Gorsuch was not on the bench when the case was argued in January) in Goodyear Tire & Rubber v. Haeger, holding that there must be a but-for connection for an award of attorney's fees for bad-faith conduct under a federal court's inherent powers. The court remanded to determine whether Goodyear waived its challenge to a base award of $ 2 million or whether the district court must redo the entire fee calculation. I am a bit surprised by the outcome, although the Court announced a legal standard broad enough to support a similarly large award, if the court makes appropriate findings.

Posted by Howard Wasserman on April 18, 2017 at 01:38 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Notes on Monday's SCOTUS arguments

I covered two of yesterday's arguments for SCOTUSBlog--in Perry v. MSPB (considering where review is had for MSPB decisions) and Town of Chester v. Laroe Estates (considering whether intervenors must have standing). Some additional thoughts below.

First, the story for many commentators about Perry was how engaged Justice Gorsuch was with both sides in the first case on his first argument day (it is not clear from the transcript, but reports are he asked his first question about ten minutes in). What has been discussed less is that Gorsuch seemed poised to rejected everything the Court had said previously about mixed cases. While the Court as recently as five years ago in Kloeckner v. Solis had stated that mixed cases go entirely to a district court, Gorsuch pushed both sides to the conclusion that the CSRA does not authorize district courts to review MSPB decisions and that mixed cases must be split up, with discrimination issues going to the district court and CSRA issues to the Federal Circuit. It is not clear where and whether he will follow that position. I previously, mainly jokingly, predicted that Gorsuch would write Perry, because it seemed the kind of case assigned to the junior-most Justice and I expected it to be unanimous, in light of Kloeckner. I may prove partially correct about him writing--but it may be a solo dissent.

Second, Gorsuch showed a distinct style on the bench (I cannot tell the tone of that style from the transcript--I am anxious to listen to the audo). He is well prepared and able to dig into the minutiae of the case, including statutory language (contrast that with the 10,00o-foot professorial musings of Justice Breyer). And he does not let attorneys get away with half-answers or skirting his questions; he keeps coming back and demanding answers. An exchange in Town of Chester with respondent's counsel is illustrative. Gorsuch was asking about the line between an intervenor seeking his own relief and seeking to benefit from the same judgment that a plaintiff with standing is seeking. Counsel argued it depends on the scope of the judgment sought, in light of the "one good plaintiff" rule. When counsel tried to pivot, Gorsuch apologized for interrupting, but said "[i]if you would just answer my question, I would be grateful," later insisting "that's not a trick question." When counsel again returned to the one good plaintiff, Gorsuch said "I'll let you go."

Third, Town of Chester silently ties into debates about the proper scope of judgment. Everyone was getting tripped up by the "one good plaintiff" rule, under which a non-class judgment can work to the benefit of multiple plaintiffs so long as one has standing. But that rule may be problematic under Article III, as Aaron Bruhl argued in an amicus brief and a forthcoming article. And it may be problematic as a matter of the law of judgments, where a court should be limited to issuing a judgment that directly benefits only a named plaintiff (and a named plaintiff must, under Article III, have standing). The one good plaintiff rule reflects the same misunderstanding of judgments and injunctions that allows for nationwide/universal injunctions.

Fourth, the Justices keep dancing around the connection between standing and merits, without seeing (or wanting to see) the identity between them. In Chester, Justice Alito asked respondent's counsel for an example of a case in which an intervenor lacked standing. Counsel responded with Trbovich v. UMW, in which a union member, who would not have been allowed to sue under the LMRDA, was allowed to intervene. To which Alito responded "that's not an Article III question. That's a merits question. That's the scope of the claim." That it is, Justice Alito. That it is.

Posted by Howard Wasserman on April 18, 2017 at 01:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Monday, April 10, 2017

Did United Airlines act under color?

It strikes me as a question worth considering. Ordinarily, one private actor calling law enforcement to enforce private rights as against another private actor is insufficient. And properly so, otherwise everyone would act under color any time she called the police to remove trespassers or to protect her rights and things went sideways.

But does this situation go beyond that, since UA brought in the police specifically for purposes of physically removing this passenger from the plane? The use of force, perhaps excessive, was both UA's purpose in calling the police and a likely result. Is this the sort of "brutal joint adventure," in which police action is necessary to enable private actors to carry-out questionable or unlawful actions? Is dragging this guy off the plane in this manner equivalent to arresting Mrs. Adickes and her students?

UA is going to settle--and do so very quickly. So no court will reach this. Worth thinking about, though.

Posted by Howard Wasserman on April 10, 2017 at 05:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (13)

Upcoming procedure cases (Updated)

I have two previews at SCOTUSBlog today for procedure cases to be argued at the Court next Monday. In Perry v. Merit Systems Protection Board, the Court considers the proper court (the Federal Circuit or a district court) for reviewing a decision of the MSPB that some discriminatorily motivated adverse employment action is not appealable to the Board (this case follows on a 2012 decision, that I also covered, holding that such "mixed cases" are reviewed in district court). In Town of Chester v. Laroe Estates, the Court considers whether a person seeking to intervene  as of right as a plaintiff must have Article III standing.

Two quick additional points on Town of Chester. First, I want to flag the amicus brief of Aaron-Andrew Bruhl (William & Mary), urging the Court to hold not only that the Court should require intervenors to have standing, but also to hold that every original plaintiff must have standing and to reject the current doctrine that, so long as one plaintiff has standing, there is no need to inquire into standing of all other plaintiffs seeking undifferentiated relief (such as injunction barring enforcement of some law). The brief follows on Bruhl's article (forthcoming Duke L.J.) arguing that the doctrine of "one good plaintiff" violates Article III.

Second, this case, especially if the Court is willing to pursue Bruhl's argument, could be significant to the ongoing debate over universal (or nationwide) injunctions. The ongoing confusion over universal injunctions is over the permissible scope of an injunction. That, in turn, reflects confusion over who is (or can be) directly protected by the injunction as an enforceable judgment and who is (or can be) indirectly protected  by the injunction only as binding or persuasive precedent in a new lawsuit. Only parties enjoy the former benefits. By allowing people without standing to be plaintiffs, courts expand who is a party and thus who enjoys the direct benefits of the injunction. Pulling back on this conception of standing may go a way to correcting scope-of-injunction problems.

Update: These also will be the first cases heard by Justice Gorsuch, who was sworn in yesterday and will participate in the April sitting.* I will make a second, more-random prediction: Gorsuch will write Perry. It is the kind of cases that goes to the junior-most Justice (Kagan, then early in her third Term, wrote Kloeckner). It likely will be unanimous (although I cannot predict from the briefs which way) and there is a tradition of giving a new Justice a unanimous decision.

* My long-ago prediction that Scalia's successor would not be deciding cases until OT 2017 was off by two weeks, although I was right that the earliest anyone would be confirmed was mid-April. But I assumed that it would not be worth the candle for the new Justice to step-in for a week or two of cases, which turned out to be wrong. I also did not anticipate that the Court would hear 13 cases--about 20% of the merits cases for the Term--in these two weeks.

Posted by Howard Wasserman on April 10, 2017 at 03:31 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, April 05, 2017

Party control

I have not had a chance to read the en banc Seventh Circuit decision in Hively v. Ivy Tech Comm. College, holding that sexual-orientation discrimination is discrimination "because of sex" under Title VII. This sets up a circuit split with a panel of the Eleventh Circuit. Two broad thoughts, beyond the substance of the Title VII question.

First, Hively sued a community college, a state actor that also could have been sued for an equal protection violation under § 1983, although there is no indication the plaintiff did so (there is a § 1981 claim mentioned, but § 1983). At least in race cases, courts treat the substantive discrimination analysis under Title VII and the Fourteenth Amendment as co-extensive, is all prevent intentional discrimination. So if sexual orientation discrimination is "because of sex" for Title VII, must it also be for constitutional purposes, as well?

Second, there is a lot of discussion of how Hively tees this up for SCOTUS resolution, with focus turning to what the SG and the Bush Administration will do. But Ivy Tech has indicated, at least for now, that it will not seek SCOTUS review, but will go back to the trial court and litigate the factual questions of whether the school discriminated. So note the prospect this potentially creates--a clear circuit split and every ideologically interested person wanting the issue to go to SCOTUS, but no vehicle to pursue the split because the parties controlling the vehicle choose not to do so. SCOTUS should get this issue because the plaintiff from the Eleventh Circuit will seek cert in order to revive her dismissed claim. But the en banc Eleventh Circuit might review the case first and rule consistently with the Seventh Circuit, removing the circuit split. All of which provides reminds us that the power of federal courts (and the SG) often remain subject to the whims, strategies, and preferences of private or non-federal litigants. [Update: The plaintiff in the Eleventh Circuit has petitioned for rehearing en banc].

Posted by Howard Wasserman on April 5, 2017 at 11:55 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, March 27, 2017

Ornstein on election do-overs

In The Atlantic, Norm Ornstein proposes the creation of a mechanism for special presidential and vice-presidential election in "extraordinary circumstances," covering not only a terrorist attack or other catastrophic event, but also attacks on the electoral process itself, as well as "foreign interference in the election combined with a winning party’s involvement in or reinforcement of the interference." Ornstein's basic point is that if a cloud if illegitimacy hangs over the President and Vice President, everyone who might replace him within the line of succession sits under that same cloud. (This is the converse to the logic of having cabinet officers as primary successors--they enjoy what Akhil Amar calls "apostolic democratic legitimacy" should they be elevated to acting president, by virtue of having been appointed by the legitimate President. But if that President is not legitimate, then no one enjoys apostolic legitimacy).

Norm knows more about presidential succession than just about anyone alive. I had the privilege of working with him a bit on the Continuity of Government Commission, an effort he co-chaired in the years after 9/11 to alter the rules of presidential succession to respond to a mass-destruction event aimed at Washington (recall that Flight 93 was headed to the Capitol). Those efforts went nowhere, as the political urgency subsided. His point now is that a different political urgency has presented itself.

Posted by Howard Wasserman on March 27, 2017 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Tuesday, March 21, 2017

Journalism, law, and asking questions

This piece, arguing that reporters undermine their checking function by asking complex, multi-part questions or burying a single question in a long lead-up, is spot-on. And the comparison to what we try to do in law school and law is apt. Effective cross-examination involves single, pointed questions. The same for effective questioning during oral argument--part of why Justice Breyer's questions are so incomprehensible and impossible to wade through is all the crap surrounding the question--which is usually just "respond to what I just rambled about for 3 transcript pages." It also what effective classroom teachers do, guiding the discussion with singular pointed and precise questions.

The result in journalism and law is the same: If the question is memorable because so beautifully and intricately phrased, the answer will not be memorable--because it will not have gotten a meaningful answer or even any answer, at the least not the one the questioner was hoping for.

Update: Needless to say, this also would make confirmation hearings far more bearable.

Posted by Howard Wasserman on March 21, 2017 at 04:14 PM in Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (1)

Whose money is it, anyway?

A manager's amendment to AHCA was submitted on Monday, containing several changes designed to get conservative and Freedom Caucus members on board. Under the new legislation, people will not be able to roll unused tax credits into health savings accounts. This change was made as a sop to anti-choice activists, who argued (as far as I can tell) that allowing tax credits to be placed in individual's HSAs would be for government funds to, potentially, be used for abortions. This is on top of a provision that prohibits tax credits from being used to purchase insurance plans that cover abortion.

But in Arizona Christian School Tuition Org. v. Winn, the Court rejected Establishment Clause taxpayer standing in a challenge to a state scheme of giving tax credits to individuals in the precise amount of their contributions to organizations that gave scholarships to students attending religious private schools. The linchpin of the Court's analysis was that the tax credit was not an expenditure of government funds, because the money never passed into government hands--it was money that the government never collected because it lowered that individual's tax bill (for whatever reason). There was no Flast standing to challenge what amounted to charitable expenditures by private individuals.

But doesn't it follow that these restrictions on the use of tax credits are imposing restrictions on the use of private funds (in a way that arguably constitutes an undue burden). The government is lowering the tax bill for individuals, but then limiting how that individual can spend their own money.

What am I missing?

Posted by Howard Wasserman on March 21, 2017 at 10:57 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, March 10, 2017

The forgotten police shooting?

The latest episode of NPR's Embedded explores the shooting of Jonathan Ferrell by a Charlotte police officer in 2013. This was the prototype for  the many "officer-involved shootings" around which Black Lives Matter has grown: Part of the encounter (not the actual shots, though) was captured on dashcam; the officer described fear of an unarmed black man impervious to weapons with "holograms" for eyes; the jury hung (8-4 in favor of acquittal, split roughly along racial lines) based on seeing different things in the video and the state did not retry; the officer resigned; and the city settled (for about $ 2.5 million).

First, the show explores the ambiguity of video evidence and the fact that different people see different things in the video. It notes the demographic correlations, but no more than that. The producers did not talk to Dan Kahan or about his studies of how people view and understand video evidence and the demographic connections. They instead let everything stand on one person's comments that "people see what they want to see," which is a simplistic way of describing a complicated process of perception and cognition that Kahan has tried to explain.

Second, Ferrell has somewhat become the forgotten police-shooting victim. In writing about police shootings and video the past few years, my paradigms are always the post-Ferguson victims--Eric Garner, Laquan McDonald, Walter Scott. I had not thought about the Ferrell case until I heard the program.

Third, I wonder what we should make of Ferrell settling for $ 2.5 million in 2015, whereas McDonald's settled for $ 5 million and Scott's and Garner's families settled for more than $ 6. Why the difference? Has the post-Ferguson environment created a settlement premium in these cases?

Posted by Howard Wasserman on March 10, 2017 at 03:17 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, March 04, 2017

Maybe it is seniority

Early in last week's argument in Packingham v. North Carolina, the Chief "called on" Justice Ginsburg over Justice Kagan. It does appear that the answer to who gets precedence is seniority. Which makes sense, given how everything else runs in that institution.

Posted by Howard Wasserman on March 4, 2017 at 10:50 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thanks -- and Predicting the End of One Marijuana Prohibition

Thanks to Howard and the other Prawfs for hosting me! I’ve enjoyed writing about a few of the legal topics now confronting state marijuana reforms.

Marijuana legalization has been one of the most notable law reform movements of the past two decades. The chart below, reprinted from Chapter 1 of my Marijuana Law, Policy, and Authority casebook, displays the proliferation of three types of state legalization from 1996 to 2016.

Chart

In this final post, I want to hazard a (new) guess as to when medical marijuana will be legal in all fifty states. I say “new” guess because a few years ago, using data from 1996-2013, I boldly(?!) predicted that medical marijuana would be legal in all 50 states by  . . . 2039. Based on the quickening pace of reforms, I now predict that medical marijuana will be legal in all states by . . . 2032, or roughly 46 years after California got the ball rolling. (To put that timeline in historical perspective, it took about 40 years for all of the states to repeal their prohibitions on alcohol.) 

Posted by Robert Mikos on March 4, 2017 at 01:08 AM in Criminal Law, Law and Politics | Permalink | Comments (0)

Monday, February 27, 2017

Qualified Immunity meets advisory opinions

One of my students flagged the Fifth Circuit decision in Turner v. Driver from two weeks ago. A divided panel held that the right to video-record police and police stations from the public sidewalk was not clearly established in September 2015. The court then went on to say:

Because the issue continues to arise in the qualified immunity context, we now proceed to determine it for the future. We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.

That section of the opinion was even titled "Whether the Right Is Clearly Established Henceforth."

There has always been something advisory-opinionish about the qualified immunity analysis. The court addresses the merits and finds a violation, but does not impose liability in this casebecause the right was not clearly established. Instead, that merits analysis serves (perhaps) to clearly establish the right for the next case, at least the next case involving largely similar facts.

But the majority here seems to have crossed over into a pure advisory statement of abstract legal principles. It was not even purporting to do a merits-first analysis (and not just because this part came after the clearly established prong). The court did not find that the officers violated Turner's rights in this case. Rather, it simply announced a First Amendment right to record in public (subject to reasonable time, place, manner restrictions), devoid of any facts or details to the case at hand. And the court did so expressly because the issue would continue to arise in the qualified immunity context, where courts otherwise would continually have to deny liability because the right would forever remain not clearly established. Of course, the need to establish constitutional law is one reason that courts may and often should abide by the merits-first approach, even if not mandatory. This goes beyond that--law divorced from any facts or any violation in the case at hand.

Moreover, it is not clear the majority did or could achieve what it wanted to do. As the dissent argued, future cases must look to factually similar cases for the clearly established analysis, not general principles of law. But the facts were not part of the analysis here. Thus, the dissent argues, "[b]ecause the majority does not hold that the officers actually violated the First Amendment, 'an officer acting under similar circumstances”' in the future will not have violated any clearly established law."

It is good to have another circuit weighing in on the First Amendment right to record. But the way the court got there was procedurally odd.

Posted by Howard Wasserman on February 27, 2017 at 02:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

ABA Ratings of Federal Judicial Nominees

The Wall Street Journal ran an interesting article* this weekend about the American Bar Association’s process for reviewing and rating federal judicial nominees.  (You can download a PDF version here if you do not have subscription access.)  The upshot of the article is that the ABA’s Standing Committee on the Federal Judiciary, a rotating group of fifteen lawyers, reviews and rates every Article III nominee before confirmation hearings begin.  The Standing Committee conducts confidential interviews of those who have interacted professionally with each nominee, ranging from co-counsel and opposing counsel, to judges before whom the nominee has appeared, to judicial colleagues if the nominee is already in the bench.  For Supreme Court nominees, the number of interviews can reach into the hundreds.  Each nominee is then rated well qualified, qualified, or not qualified, based on a committee vote.

The ABA’s role dates back to the Eisenhower Administration.  Its involvement has been controversial at times, but its general criteria for evaluating nominees—professional competence, integrity, and temperament—are wholly appropriate.  For district court nominees, whose daily interaction with litigants and attorneys requires a calm demeanor and unquestioned impartiality and skill, the ABA’s review is a welcome assessment of the nominee's temperament and ability.  For appellate nominees, the same focus on demeanor and skill is beneficial in a different way.  There is no question that policy considerations guide a President’s selection of a Supreme Court nominee, nor is there any question that the Senate is inclined to turn every Supreme Court confirmation hearing into excruciating political theater.  But however it ends, the process should begin with a strong vote of confidence that the nominee is professionally up to the job.

* Full disclosure: I was interviewed for, and quoted in, the article.  But that’s not why it’s interesting!

Posted by Jordan Singer on February 27, 2017 at 10:32 AM in Judicial Process, Law and Politics | Permalink | Comments (1)

Sunday, February 26, 2017

One more from Hernandez v. Mesa

The following exchange occurred toward the end of Petitioner's argument:

Justice Alito asked whether a plaintiff would have a § 1983 action if the shooter had been a state or local police officer; petitioner's attorney responded "You would not have a claim over the State officer, but if you don't --but a Bivens claim--a constitutional Bivens claim could apply to the State officer."

Did counsel misspeak? Or is he arguing that a plaintiff can enforce the Fourteenth Amendment (including the incorporated Fourteenth Amendment) through a Bivens action in situations in which § 1983 runs out (as everyone seems to accept here, where § 1983 protects citizens and "other person[s] within the jurisdiction thereof")? And can that be right, certainly descriptively, under the Court's recent Bivens jurisprudence, where § 1983 would be an alternative remedy?

Posted by Howard Wasserman on February 26, 2017 at 02:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)