Saturday, May 26, 2018

Contempt and the recalcitrant President

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

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

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

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

Thursday, May 24, 2018

Universality as judicial impatience and control

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

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

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

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

Wednesday, May 23, 2018

Irony can be pretty ironic

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

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

Contempt and the universal injunction

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

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

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

Monday, May 14, 2018

Mootness in Sanchez-Gomez

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

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

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

Saturday, May 12, 2018

Eighth Circuit on municipal liability

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

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

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

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

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

Sunday, May 06, 2018

Judicial departmentalism and U.S. v. Nixon

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

So how does this stand-off play out?

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

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

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

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

Friday, May 04, 2018

Elites and elitists

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

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

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

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

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

Thursday, May 03, 2018

A solution for the wrong problem

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

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

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

Tuesday, May 01, 2018

Adjudicative jurisdiction and substantive merits under the ATS

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

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

Saturday, April 28, 2018

U Va Law bans non-students from library during exams

Story here (forwarded to me by a colleague with the subject line "Glad I'm Not a Dean"). Nothing wrong with that policy on the surface--many schools do that to ensure that law students have sufficient study space during the high-stress period. The potential problem is that the policy change was enacted in response to white-supremacist leader Jason Kessler using the library, which triggered a wave of protests, public forums, and demands for the school to take action. So what happens with a content-neutral policy enacted for blatantly viewpoint-discriminatory reasons?

Posted by Howard Wasserman on April 28, 2018 at 11:03 AM in First Amendment, Law and Politics, Teaching Law | Permalink | Comments (7)

Thursday, April 26, 2018

Adler on same-day audio

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

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

Wednesday, April 25, 2018

Cosmic injunctions

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

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

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

Tuesday, April 24, 2018

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

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

Consider:

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

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

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

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

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

Saturday, April 21, 2018

More on PowerPoint

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

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

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

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

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

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

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

Thursday, April 19, 2018

Speeding cases

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

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

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

An even more unusual role

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

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

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

Wednesday, April 18, 2018

What is a heckler's veto?

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

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

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

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

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

Tuesday, April 17, 2018

Foley on appointing a special master in the Cohen case

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

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

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

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

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

Saturday, April 14, 2018

If everyone is a Nazi . . .

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

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

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

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

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

Thursday, April 05, 2018

Erie and litigation financing

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

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

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

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

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

Thoughts?

 

 

 

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

Class certification and universal injunctions

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

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

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

Tuesday, April 03, 2018

Yet another qualified-immunity summary reversal (Link Corrected)

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

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

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

Sunday, April 01, 2018

The danger of universal injunctions

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

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

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

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

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

Saturday, March 31, 2018

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

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

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

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

Tuesday, March 27, 2018

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

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

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

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

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

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

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

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

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

Jurisdictionality of presidential immunity

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

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

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

Monday, March 19, 2018

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

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

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

Wednesday, March 14, 2018

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

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

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

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

Wednesday, February 28, 2018

Judicial Nomination Cascades

Earlier this month, University of Colorado law professor Melissa Hart was sworn in as the newest Justice of the Colorado Supreme Court. Her appointment to that seat was made possible when Allison Eid left the court to join the Tenth Circuit Court of Appeals, which itself was made possible when Neil Gorsuch left the Tenth Circuit to join the Supreme Court of the United States.

This is an example of a nomination cascade – the opening of a position on the bench made possible when a sitting judge is nominated for another court. These vacancies are almost always filled by appointment; even in state courts where judges are elected, governors typically have the ability to make interim appointments.

The Gorsuch-Eid-Hart example is in fact a double cascade, with the Gorsuch nomination leading to two further openings. That fact alone makes it unusual: usually the first or second opening is filled with a nominee who is not already a judge. But it is also unusual because of its speed: three seats were filled, in cascading order, in less than one calendar year. 

To get a sense of how frequently judicial cascades occur, I took an admittedly quick look at all federal appellate court (including Supreme Court) nominations for the Trump, Obama, George W. Bush, and Clinton administrations. I focused on appellate nominations because they seemed most likely to trigger cascades, although it is certainly the case that a federal district nomination or a state appellate court nomination can trigger them as well. A few interesting things jumped out.

First, one might expect double (or even triple) cascades to follow U.S. Supreme Court nominations, given that most of the current Justices were elevated from the U.S. Court of Appeals. In fact, Gorsuch was the only Supreme Court nominee in the last 25 years to trigger a double cascade. George W. Bush did not even get a chance to start a cascade for his two Supreme Court nominees: although John Roberts and Samuel Alito were both appointed and confirmed in 2005 (the first year of Bush’s second term), neither of their seats was filled until well into the Obama Administration. There were a number of double cascades early in each of the Obama, Bush, and Clinton Administrations, but all started with an opening at the U.S. Court of Appeals.  Some cascades were entirely federal (court of appeals-district-court-magistrate or bankruptcy), while others were a state-federal mix.

Second, most presidents took the opportunity to create cascades (by appointing lower federal and state judges) early in their first term. This makes some intuitive sense: a president coming off of an election vistory, with a significant amount of political capital, should be more willing to create additional openings in the federal judiciary with the expectation of filling them with his own nominees.  Presidents in their second terms clearly adopted a different strategy: Obama and Clinton largely nominated government and private practice attorneys for federal appellate positions, while George W. Bush went with a heavier dose of state judges. Both strategies avoided the possibility of creating a vacancy in the federal district courts which might remain open until the next administration.

I found one triple cascade in my early review, which occurred late in the Bush Administration.  In May 2008, G. Steven Agee was confirmed to the Fourth Circuit Court of Appeals, which opened a seat on the Virginia Supreme Court. That position was filled by Leroy Millette, which opened a seat on the Virginia Court of Appeals. That position was filled by Cleo Powell, which opened a seat on the Virginia Circuit Court. (I’m not sure who filled that seat –yet.)

One might ask whether nomination cascades are a good or bad thing for the judiciary and the public. One clear advantage is that nominees have a proven level of judicial experience, and are less likely to need time to get up to speed on the nature of judging. At the same time, looking only to existing judges creates a pipeline effect, in which judicial aspirants have to start at lower levels of the state or federal judiciary in order to get noticed for a higher court nomination. That would seem to be a mixed blessing.

My guest-blogging month is up, but I am going to continue to play with the historical data. I’ll post any interesting new findings in the comments. Thanks to the entire Prawfs crew for letting me hang out here once more.

Posted by Jordan Singer on February 28, 2018 at 12:00 PM in Judicial Process, Law and Politics | Permalink | Comments (2)

Tuesday, February 27, 2018

The irrrepressible myth of Patchak v. Zinke

The Supreme Court decided Patchak v. Zinke, concluding yet again that Congress' power to "change the law" to push pending litigation to its preferred conclusion is, in practice, unbounded. The purported "no dictating outcomes" principle of United States v. Klein does not impose a meaningful limitation, because nothing that Congress does (or is likely to do) is anything other than a change in the law. The law at issue in Patchak affected one case and no other cases had been brought or could be brought that would relate to that land. This will be as close as Congress will come to "In Smith v. Jones, Smith wins" without touching that third rail.

Justice Thomas wrote for himself (and also assigned the opinion) and Breyer, Alito, and Kagan; Ginsburg and Sotomayor concurred in the judgment (tying the result to sovereign immunity); the Chief dissented (as he had in Bank Markazi) for Kennedy and Gorsuch [Update: I should add that the Chief showed rhetorical restraint in this opinion, something often lacking from opinions in which he feels strongly about an issue].

An additional wrinkle was that the plurality deemed the statute a jurisdiction-stripping provision, which I am not convinced is correct. The statute says a suit relating to the proper "shall not be filed or maintained in a Federal court and shall be promptly dismissed;" that language also could describe a non-jurisdictional procedural rule or an element of the claim ("no action shall be filed or maintained against a company with less than 15 employees"), although the plurality insisted it could not be either.

So the opinion was a two-fer: Klein has no practical force and the Court overused jurisdiction.

Posted by Howard Wasserman on February 27, 2018 at 01:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, February 22, 2018

Tinker wept

upon reading this missive from the superintendent of the Needville (TX) School District. Some of the quotations reflect an unfortunate picture of the connection between education and the creation of an engaged People in a democracy. "A school is a place to learn and grow educationally, emotionally and morally," which somehow does not include caring or becoming involved in matters of public concern. Students must "[r]espect yourself, your fellow students and the Needville Independent School District and please understand that we are here for an education and not a political protest." So speaking on matters of public concern is not educational and is a sign of disrespect for oneself and other (perhaps respect is the new unity that I argue is anathema to free expression).

Rhodes can do this and get away with it. A student walk-out would constitute "disruption" by in-school speech that schools are free under modern student-speech doctrine to halt or punish. He couched it in an unfortunately over-officious tone and a genuine disrespect for students as individuals with First Amendment rights. It appears he believes students do shed their First Amendment rights at his schoolhouse gates.

I am interested to see if and how students may respond to this if committed to engaging in protest. How might Rhodes respond to a silent protest with black armbands--is he going to ignore Tinker? And, whatever the trend in student-speech cases, is a court? Alternatively, if protests gain sufficient critical mass and Rhodes attempts to suspend hundreds of students, would his job survive the parental anger? Alternatively, what if students all stay home that day and then attend a protest at a dedicated time--would Rhodes challenge the decision of dozes or hundreds of parents to keep their children home and would his job survive the parental anger if he tried?

Posted by Howard Wasserman on February 22, 2018 at 11:40 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Tuesday, February 13, 2018

Counting on the Low Information Voter

The LSE Blog features some interesting new research by University of Texas Professor Brent Boyea on the intersection of partisan elections, campaign contributions, and professionalized courts. Looking at 12 years’ worth of data from state high court elections, Boyea found that campaign contributors are nearly twice as generous, on average, in states with partisan judicial elections than they are in states with nonpartisan judicial elections. He also found that “contributors support candidates more actively in states with professionalized courts where judges have higher salaries, advanced resources, and courts have freedom to decide their agenda.” And contributors are most generous when elections are partisan and courts are professionalized. This suggests, to me at least, that campaign contributors expect to get the most "bang for the buck" in states where a candidate's election is all but assured on partisan grounds, and the elected judge will later have some freedom to act in a manner consistent with the contributor's own agenda.

Somewhat related is this story out of Illinois, discussing how attorney Phillip Spiwack legally changed his name to Shannon O’Malley in advance of his campaign for a Cook County judgeship. Spiwack/O’Malley appears to be conceding to a stubborn reality of Chicago judicial elections: having an Irish woman’s name is an extraordinarily valuable commodity at the polls—more valuable, it seems, than professional experience, skill, or judicial temperament.

These items add to a growing body of evidence that in judicial election states, candidates and their financiers virtually expect citizens to come to the polls armed with no more information than a candidate’s party affiliation or surname.  How this advances the integrity, efficiency, or legitimacy of the judicial system is beyond me, but I welcome sincere and robust defenses of this system in the comments.

(Cross-posted at The Interdependent Third Branch.)

Posted by Jordan Singer on February 13, 2018 at 12:02 PM in Judicial Process, Law and Politics | Permalink | Comments (2)

Wednesday, February 07, 2018

Florida bans counter-speech, too

Parallel bills in the Florida House and Senate would do two things: Prohibit schools from establishing free-speech zones (while permitting content-neutral time, place, and manner restrictions) and prohibit students from "materially disrupt[ing] previously scheduled or reserved activities on campus occurring at the same time." Both rights are enforceable with a private action for damages and attorney's fees against the university. The ACLU opposed the second piece of the bill, arguing that it gives universities a financial incentive to halt counter-speech "out of concern that someone might boo too loudly." This bill sounds in similar efforts by the University of Wisconsin Board of Regents.

Give what I have been writing about hecklers and counter-speech, I believe the second piece is a terrible idea. It has a vagueness problem, since the bill does not define materially disrupt. It limits the disruption to "previously scheduled or reserved activities," trying to create some speaker priority within certain spaces. But it still faces the problem that counter-speakers have some First Amendment right to heckle and counter-speak and boo, including being louder and more audible than the "original" speaker. This bill defines one speaker as a speaker and the other as a material disruptor--and gives the state a financial incentive to limit the disruptor. But it does not explain when counter-speech ends and disruption begins or how the balance applies in different forums (e.g., counter-speakers in a reserved auditorium and seeking to rush the stage as opposed to counter-speakers in an outside public space).

The sponsor of the Senate bill argued that the universities should be able to impose rules for civil discourse just as legislatures do. Civil discourse might be a worthy goal. But the First Amendment does not allow government to impose that as a necessary obligation. Public debate should be more "uninhibited, robust, and wide-open" than what occurs in a legislature or other governing body. There is a power balance within a legislature--every member of the body stands on roughly equal footing and all can work the levers of institutional power within the body to achieve some ends. People in the public arena ork against a power imbalance, speaking against those who wield real power (government officials, police, private individuals who wield greater power and influence), where speaking is the only action available to them. The powerless need greater leeway, even to the point of "vehement, caustic, and sometimes unpleasantly sharp attacks."

In the public forum, in other words, speakers must be able to persist, even after being warned and given an explanation.

Posted by Howard Wasserman on February 7, 2018 at 11:56 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Thursday, February 01, 2018

Universal injunctions at the state level (Updated)

Judge Crabtree of the District of Kansas preliminarily enjoined, as violative of the First Amendment, a Kansas law requiring those who enter into contracts with the state to certify that they are not engaged in boycotts of Israel. The court enjoined the Commissioner of Education from enforcing any statute, law, policy, or practice that requires independent contractors to certify that they are not participating in a boycott of Israel. And the court enjoined "defendant from requiring any independent contractor" to sign a certification that they are not participating in a boycott of Israel as a condition of contracting with the state.

In other words, the court entered a universal injunction. The decision shows that judges are issuing these orders unthinkingly and automatically. And it shows that the problematic phenomenon is not limited to challenges to federal law. It also shows why universal better describes these injunctions. The non-particularized scope of the injunction's "who" remains whether the challenged law is a federal law applying to people across the nation  or a state law applying to people in one state--the injunction purports to protect the universe of people who might be subject to the law's reach, whatever that law's reach. The court again saw itself not as resolving a challenge by one plaintiff to threatened enforcement of a constitutionally suspect law against him, but as resolving the status of the law itself.* Even if universal injunctions are sometimes warranted, this does not appear to be an appropriate case--it is difficult to see how this plaintiff is denied complete relief if the state can enforce the certification requirement against other independent contractors.

[*] This vision affected the mootness analysis. The state had given the plaintiff a waiver from the certification requirement. But the court held that the waiver did not moot the case because the state could deny the same waiver to others. If the court properly understood the issue as the validity of enforcement as to the plaintiff, enforcement against others should not matter.

Update: Josh Blackman emailed to remind me that Judge Crabtree issued a similarly worded universal injunction barring enforcement of the Kansas same-sex marriage ban as to any and all couples seeking licenses.

Posted by Howard Wasserman on February 1, 2018 at 11:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

State-created danger in the Nassar case?

Two stories from Deadspin describe the mistakes by the police department in Meridian, Michigan, who received a sexual-abuse complaint against Larry Nassar in 2004, but dropped it (without referring it to prosecutors). Apparently, detectives were convinced by a PowerPoint presentation from Nassar about how what he was doing was a legitimate medical procedure to deal with Scoliosis. No one in the police department conferred with a medical expert to confirm what Nassar told them.

So, could one of Nassar's post-2004 victims make out a due process claim against the Meridian PD and these detectives? Perhaps on a state-created danger, that the police increased the danger to other athletes by not doing a competent investigation and perhaps implicitly suggesting to Nassar that he can get away with this. Or perhaps on an equal protection theory, that they did an incompetent investigation because they did not take sexual-assault against teenage girls seriously.

Posted by Howard Wasserman on February 1, 2018 at 06:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

A competing voice on universal injunctions

Amanda Frost on SCOTUSBlog. Amanda has been Sam Bray's designated interlocutor, on the AALS panel and in the Judiciary Committee. She and I shared the stage on a recent NPR segment.

Posted by Howard Wasserman on February 1, 2018 at 10:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, January 27, 2018

Congress makes procedure

The following was introduced in the Senate back in August:
S.1757 — 115th Congress (2017-2018)            
Building America's Trust Act
Sponsor: Sen. Cornyn, John [R-TX] (Introduced 08/03/2017) Cosponsors: (8)
 Cosponsors 
Sen. Barrasso, John [R-WY]*          08/03/2017
Sen. Johnson, Ron [R-WI]*  08/03/2017
Sen. Tillis, Thom [R-NC]*    08/03/2017
Sen. Heller, Dean [R-NV]*  08/03/2017
Sen. Scott, Tim [R-SC]*       08/03/2017
Sen. Inhofe, James M. [R-OK]*       08/03/2017
Sen. Wicker, Roger F. [R-MS]         09/18/2017
Sen. Lankford, James [R-OK]          10/04/2017
SEC. 564. APPROPRIATE REMEDIES FOR IMMIGRATION LITIGATION.
(a) Limitation On Class ActionS.—No court may certify a class under rule 23 of the Federal Rules of Civil Procedure in any civil action that—
        (1) is filed after the date of enactment of this Act; and
(2) pertains to the administration or enforcement of the immigration laws.
 

 

Critics of universal injunctions (myself included) have argued that FRCP 23(b)(2) class actions provide the basis for non-particularized injunctions and offer a reason that courts should not grant non-particularized injunctions in non-class cases. Allowing courts to issue broader injunctions in individual cases undermines 23(b)(2) (which, David Marcus has shown, was enacted precisely to allow broader relief in school-desegregation cases)--if a court can issue a universal injunction as a matter of course, the injunctive class action is superfluous. And having 23(b)(2) suggests that universal injunctions generally should not issue outside of a properly certified class.

 

This bill (which is unlikely to pass, so it will not matter) would cut-off that option, by limiting all constitutional cases to individual challenges of the plaintiffs before the court and thus individualized injunctions protecting those parties. On the other hand, perhaps it would make the court more likely to issue a universal injunction in individual cases, where the court believes the equities demand broader relief and a class is not an option.

Posted by Howard Wasserman on January 27, 2018 at 02:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 25, 2018

An old solution that misses the problem

On the Harvard Law Review Blog, Fifth Circuit Judge Gregg Costa proposes that cases seeking "nationwide" injunctions should be heard by three-judge district courts with direct and mandatory review to SCOTUS. Including multiple judges gives the decision greater gravitas, speeds ultimate resolution of the issue, and eliminates forum shopping.

But like most of the arguments, Costa's solution conflates geographic scope with party scope. The problem is not geographic limitations on the injunction or on the court issuing the injunction (in geographic terms, all injunctions are nationwide in protecting the protected person everywhere she is or goes). The problem is these injunctions protecting beyond the named plaintiffs by prohibiting enforcement of the challenged law to all persons--what I have been calling universality. That is not an issue about the number of judges deciding the case or the court's geographic reach. SCOTUS cannot issue an injunction prohibiting (on pain of contempt) enforcement of the challenged law against anyone beyond the named plaintiffs. And a three-judge court has no more power to do that than a single-judge district court.

Judge's Costa's solution does guarantee binding precedent and more quickly. SCOTUS's decision binds all courts to issue similar injunction to new lawsuits by new plaintiffs. And it prompts (although does not require) the federal government to stop enforcing the law. But that is as a matter of precedent,  not injunction or judgment. It also suggests that we should return to the pre-1976 regime of three-judge courts for all challenges to all federal laws.

We could recast Judge Costa's argument to require three-judge courts for those rare cases in which a universal injunction is warranted--truly indivisible rights and relief or 23(b)(2) injunctive class actions. That may offer a more direct solution to the real problem of the party scope of the injunctions--when the injunction must be broad, the case can be fast-tracked in this way. But it disconnects from the concern for the "importance" of the federal issues. For example, the sanctuary-city-funding regulations (which are the subject of two universla injunctions) are important, but the right and relief is not indivisible.

Posted by Howard Wasserman on January 25, 2018 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Saturday, January 20, 2018

Cert granted in travel ban case

SCOTUS granted cert in the Ninth Circuit case, out of Hawaii, challenging the third travel ban. Included in the questions presented is "whether the district court’s order applies too broadly," meaning the Court may address head-on the propriety of universal injunctions (unless, as I somewhat suspect, the Court declares the ban constitutionally valid, in which case it may never reach the remedy question).

Posted by Howard Wasserman on January 20, 2018 at 11:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 18, 2018

National injunctions on NPR

Earlier Thursday, I appeared on AirTalk on KPCC (Southern California Public Radio) with Amanda Frost (American) to debate universal/national/nationwide injunctions. (I was filling in as the extremely poor-man's Sam Bray).

Posted by Howard Wasserman on January 18, 2018 at 06:49 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Speaking truth to power v. exercising actual power

I appreciate Sen. Flake's words about Donald Trump and the rhetorical threat he poses to free-speech and republican values. But it is difficult not to see it as 1) something that hundreds of people have been saying for two years in the media, blogs, and other places and 2) empty words.

On the second point: Free speech is important because of its power to persuade. But a democratic theory of free speech recognizes that speech is a form of influence for those who lack formal political or governing power or influence. Words alone therefore ring hollow when unaccompanied by action by a person in a position of power. That is what I see with respect to Flake--he has repeatedly criticized the President, but like most other congressional Republicans has fallen in line with what he wants when (as in most situations) it aligns with Republican policy preferences. So the words are nice. But they do not achieve much when Flake's own voting conduct undermines them.

Posted by Howard Wasserman on January 18, 2018 at 06:35 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Sunday, January 14, 2018

Judging balls and strikes in Husted

I am a few days late on this from the oral argument in Husted v. A Philip Randolph Institute, on whether an Ohio process of removing voters from voting rolls based, in part, on failure to vote violated federal law. (I listened to the audio rather than reading the transcript, but could not to so until this weekend).

On a substantive point, it is interesting to hear Paul Smith, the respondent's attorney, the Chief, and Justice Alito repeatedly talk past one another. Ohio's program goes as follows--if a voter fails to vote in a two-year period, a notice is sent to the voter's listed address; if the voter fails to return the notice card and does not vote in the next four-year period, she is removed from the rolls. The Chief and Alito repeatedly pushed Smith as to whether failure to vote could be used to confirm other evidence that a person had moved or died, in this case, the non-return of the card; Smith argued that the program relied on failure to vote (in violation of federal law), because the non-return of the card was not reliable evidence of moving and the state had no other evidence of the voter having moved other than the failure to vote. The Justices never seemed to catch that argument or how it differed from what they were saying.

On a fun point, Smith and Justice Kagan showed that judging really is about balls and strikes with the following exchange, on proximate cause:

MR. SMITH: * * * And calling the non-return of the notice the proximate cause is like saying when you strike out, the only proximate cause is strike two. It just doesn't -- it doesn't really make sense.

* * *

JUSTICE KAGAN: I don't understand why it's just -- it is proximate cause, but both -­ strike one, strike two, strike three. They're all proximate causes of the strikeout.

MR. SMITH: Well, I agree with that, Your Honor, as well.

Posted by Howard Wasserman on January 14, 2018 at 03:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Tuesday, January 09, 2018

Argument preview: Hall v. Hall (Updated)

I have a SCOTUSBlog preview of next Tuesday's oral argument in Hall v. Hall, addressing when a judgment dismissing one action is final and appealable when multiple actions were consolidated for all purposes under FRCP 42.

On the papers at least, this one has the makings of a rout. The petitioner (who sought to appeal dismissal of one claim while another remained pending and who argues that consolidated cases remain separate for finality purposes) is represented by her trial counsel from the Virgin Islands, who does not appear to have argued before the Court; the respondent (who argues that there is no final judgment until all claims in the consolidated case are resolved) is represented by Neal Katyal. A group of retired federal district judges filed an amicus in support of the respondent.

Worse, the petitioner never engages on the critical issue in the case--how to treat actions consolidated for all purposes compared with actions consolidated for limited purposes, such as discovery or trial. The petitioner insists that consolidated actions retain their separate identities and that the case is controlled by the spare finality language of § 1291. There is no difference in the scope or nature of a consolidation,. But that position may be inconsistent with footnotes in Gelboim v. Bank of America (which involved a discovery-only MDL consolidation) that consolidation may be for all purposes and may require a different rule for finality and appealability. Rule 42(a)(2) contemplates consolidation as distinct from joining some issues for some purposes. And Gelboim seems to contemplate different types of consolidation. The question in Hall is how different types of consolidation affect finality. But the petitioner's lawyer never engages that question.

[Update: The petitioner's reply brief (which was filed after I submitted my piece) points to the trial court issuing separate Judgments in each case as evidence that the consolidation was for trial, not for "all purposes." It therefore does not matter how finality may be affected by consolidation for all purposes, because this consolidation was not for all purposes. As I noted in the preview, the nature of the consolidation is in dispute and something the Court may have to resolve. Given how loosely trial courts label orders as judgments or not, I am not sure this has as much explanatory power as petitioner hopes]

Posted by Howard Wasserman on January 9, 2018 at 11:15 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, January 05, 2018

First principles of lawyering: don't lie to your client.

Howard noted the swirl of insanity in recent news about the Trump administration. One of the things that is becoming increasingly clear is just how hard it is for the lawyers to do their jobs in this administration, where even the lawyers need lawyers and good legal advice is routinely disregarded.

Many sources are now openly questioning the President's mental fitness. Not being a physician (and never having spoken to President Trump), I don't know what his mental state is or isn't. But even the hypothetical question raises an interesting issue: how should White House attorneys treat a President that they believe may lack the capacity to make decisions in the interest of the office?

A recent New York Times article stated that one White House attorney felt obligated to "mislead the president about his authority to fire the F.B.I. director," because he "was convinced that if Mr. Comey was fired, the Trump presidency could be imperiled." The NYT reporter talked to Professor Stephen Vladeck, who concluded that the action "shows that the president’s lawyers don’t trust giving him all the facts because they fear he will make a decision that is not best suited for him."

Assuming the facts as reported are true, I would agree with Professor Vladeck's conclusion. But I would also note that the rules of legal ethics do not permit lawyers to manage their clients by intentionally misleading them--even when lawyers believe that doing so is in the client's best interest.

The Model Rules of Professional Conduct specify that when dealing with a client believed to have "diminished capacity," (that is, "when a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason"), then "the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client."

The rules acknowledge that a lawyer may have modify the attorney-client relationship in some ways. For example, if the client is at substantial risk of harm and unable to act in his or her own best interest, the lawyer may take protective action by seeking to appoint a guardian ad litem or other person to act in the client's best interest. The lawyer may do so even if it means disclosing otherwise confidential information, though "only to the extent reasonably necessary to protect the client's interests." And the lawyer may also delay sharing information with the client in some cases; a comment to Model Rule 1.4, "Communication," provides that "[i]n some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client." But even this exception is narrow in time and does not take precedence over the lawyer's duty to avoid engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation."

A lawyer cannot ethically make a unilateral decision about what is in the client's best interest or mislead the client about what the law allows. It may be that the NYT reporter misunderstood what had happened. And certainly, even though the article asserts that the lawyer "never corrected the record" after his legal research concluded that Trump did have the authority to fire to the FBI director, Trump exercised that authority anyway--either advised by other lawyers or on his own initiative. 

But of course, representing the president is not an ordinary attorney-client relationship, and the situation as presented by the NYT article raises very difficult questions. If a lawyer for the president believes that he is incapable of making decisions in his own best interest--and perhaps incapable of acting prudently on information about his own legal options--what is the lawyer's ethical obligation? Is it possible to maintain a normal client-lawyer relationship? Is it wise to do so?

And if the lawyer cannot maintain a normal client-lawyer relationship, then what would cause less harm--trying to unilaterally manage the information the president is given and making decisions on his behalf, or going public with concerns about the president's fitness?

 

Posted by Cassandra Burke Robertson on January 5, 2018 at 05:07 PM in Law and Politics | Permalink | Comments (9)

"Fire and Fury" is not The Pentagon Papers

There is a tendency (to which I have been susceptible) to treat Donald Trump's norm-breaking as a constitutional crisis. The latest is the response to the cease-and-desist letter that Trump's  private attorneys sent to the publishers of the forthcoming Fire and Fury: Inside the Trump White House. Ed Kilgore at New York Magazine paints the letter as the next step on the road to book banning and book burning, as reminiscent of the Nixon Administration's actions as to The Pentagon Papers (which are on everyone's mind).

That reaction seems overstated, even allowing that the President is a uniquely powerful figure. A cease-and-desist letter has no legal force; it is an act of bluster, allowing the lawyer to flash his fangs and sound smart.  The show of "force" behind it is not connected to Trump being President or wielding state authority, but to being a wealthy individual who can afford a high-priced blustering private lawyer and who has made a career out of this very tactic. There is no show of government force here. As Mike Dorf points out, the letter does not threaten to seek an injunction to halt publication of the book, so there is no explicit legal risk of prior restraint. It does float the possibility of suit for defamation or other torts.* But that suit could be based on excerpts already published (the demands retraction and apology for what has gotten out). And the letter reserves the right to even if the publisher caves to the threat and halts publication.

[*] Dorf shows the flaw in the threatened claim of tortious interference by inducing Steve Bannon to breaking his non-disclosure agreement.

So comparing this to DOJ obtaining an injunction barring publication, on pain of contempt of court, is way over the top. I do not see the difference between this letter and the letter Trump's lawyers sent during the 2016 campaign threatening to sue The New York Times for its reporting on the sexual-assault allegations against Trump. Both sought to make speech go away by the pressuring the speaker to retract and apologize for what already was out and refrain from publishing anything further, in addition to threatening a suit for damages. And even if the express demand to stop publication of a book constitutes a unique "prior restraint," the doctrinal treatment of prior restraint as categorically worse than post-publication liability has been questioned--the chill on speech and the threat to First Amendment values is no different, although there may be some procedural and proof differences.

In writing about the exchange with The Times during the campaign, I argued that threatening to sue critics in the press was another norm Trump was destroying--public officials do not threaten to sue their critics because it is legally difficult-to-impossible under Sullivan and politically weak. But I do not think it poses a greater First Amendment threat than any other powerful public person threatening to sue his critics.

Posted by Howard Wasserman on January 5, 2018 at 05:00 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, January 03, 2018

Common theme: Insanity swirls around this administration

About the only basis I could think of for one short post touching three disparate issues wafting from this administration:

1) Paul Manafort sued Rod Rosenstein and Bob Mueller, seeking a declaratory judgment and injunction invalidating Rosenstein's appointment of Mueller and the actions Mueller has taken in investigating and bringing charges against Manafort. Steve Vladeck is quoted in this Slate article arguing that the district may abstain on Younger/equitable grounds. I think Steve is right. Although not challenging the constitutionality of the statute of conviction (the typical Younger case), the action challenges the legal basis for a criminal prosecution and seeks an order that would require dismissal of the pending prosecution. The Slate piece is right--this lawsuit looks more political than legally sound.

2) Acting ICE Director Thomas Homan has asked DOJ to examine whether California Governor Jerry Brown and other officials in sanctuary jurisdictions are violating the federal law prohibiting harboring of aliens. This is far from my area. But it seems to me the statute requires a defendant to conceal or harbor a specific person; it is not enough to know that many aliens are present and not to do something to help the government some or all of them. It also seems that a state or local official should be able to assert a Tenth Amendment limitation on a statute that would criminalize officials for making state policy. If federal law cannot impress state or local governments to enforce federal law, it cannot allow for the arrest and prosecution of state and local officials who control those governments and who make and enforce those policies refusing to enforce federal law.

3) Does a news organization that receives one of the President's media awards wear it as a badge of First Amendment honor? As a Bizarro Pulitzer Prize?

Posted by Howard Wasserman on January 3, 2018 at 07:00 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, January 02, 2018

Indiana tries to stop NFL kneeling--and would fail

An Indiana legislator has introduced legislation that would require the Indianapolis Colts to grant fans a refund if players kneel during the national anthem. Fans would have to demand the refund during the first quarter. The article does not say whether the fan would be permitted to stay at the game upon receipt of the refund.* The sponsor insists the law is constitutionally valid, because it does not stop anyone from kneeling. But it seems to me the law suffers from three obvious problems. 

[*] Otherwise, think of the perverse incentives. I am not offended by players kneeling. But I might claim to be if I could get my $ 200 back, still watch the game, and screw one of the worst organizations in the NFL

As the ACLU said in the article, the law infringes the Colts' First Amendment rights by sanctioning them (or setting them up for sanction) if they do not prohibit their players from kneeling. If we understand the team as exercising its First Amendment rights when it decides what its players can do, the law abridges that right and for reasons of disagreement with the team's speech in allowing its players to kneel.

A law also can violate a person's rights even if it does not prohibit some actions, by empowering or obligating private persons to take certain steps that harm that person. For example, courts have declared invalid ordinances that fine landlords for 911 calls to their properties; the laws have been found to violate the rights of (usually female) tenants who are deterred from seeking police protection from domestic violence out of fear that a 911 call leads to a fine on the landlord which leads to the landlord evicting the tenant to avoid future fines. (And these are the second generation of such ordinances--the first generation required licensed landlords to evict or prohibited them from renting to individuals who had made multiple 911 calls). The same logic is at work with this statute--the Colts are essentially being fined for not stopping the players from kneeling and so will prohibit kneeling to avoid the fine.

A different version of that scenario might set the Colts up to be sued for a First Amendment violation by players prohibited from kneeling, by causing the Colts to act under color of law. A private entity acts under color when it engages in some conduct under the "overwhelming coercion" of the government. Here, the Colts would bar players from kneeling on pain of having to offer refunds to fans that ask, which the team would be required to do by state law. Although it is less direct than a law requiring the team to stop the players from kneeling, the loss of money could constitute the necessary coercion.

This is probably moot because the law will not be passed and/or the NFL is going to force the NFLPA to accept a rule requiring players to stand (as the NBA now has). But it gives me a chance to link to this article describing the letters written by citizens to USOC and IOC head Avery Brundage* about Tommie Smith and John Carlos following their protest at the 1968 Olympics, which sound identical to the complaints being made about Colin Kaepernick and his NFL brethren.

[*] One of history's truly despicable sporteuacrats.

Posted by Howard Wasserman on January 2, 2018 at 03:36 PM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, December 31, 2017

2017 Year-End Report of the Federal Judiciary

The 2017 Year-End Report of the Federal Judiciary was released at 6 p.m. Sunday. No dueling or lumberjacks this year, although the Chief could not help but throw in a history lesson about The Great Hurricane of 1780.

The primary theme this year was how the judiciary responds (and responded in 2017) to natural disasters. This was followed by a brief discussion of the "new challenge" for 2018 of dealing with workplace sexual harassment in the judiciary, discussing his called-for AO working group to examine policies and practices, including codes of conduct, employee education, confidentiality and reporting rules, and rules for processing complaints. He closed with an expression of confidence that the "overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies."

Posted by Howard Wasserman on December 31, 2017 at 06:41 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)