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.
Sunday, April 23, 2017
Justice Alito, funny man
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.
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.
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.
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.
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.
Wednesday, April 05, 2017
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].
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.
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.
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?
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?
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.
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.
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.)
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.
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!
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?
Friday, February 24, 2017
Who Speaks for the Courts? Who Should?
The President’s recent (and not-so-recent) tweets about the federal judiciary have spurred discussions among legal academics about whether the courts can really defend themselves in the public sphere—and if not, whether one or more (presumably self-appointed) groups should do it for them.
I admit to being of two minds about these types of efforts. On the one hand, the third branch certainly needs good public advocates. Judges must maintain an air of impartiality to preserve their legitimacy, and that typically precludes them from responding to attacks, even if a response would ordinarily be justified. On the other hand, standing up for the courts must be done carefully or it can become counterproductive. In an age where almost anything can be politicized, the wrong choice of words, or the advocate’s own political views, can cause more harm to the court than good. As is often the case with public advocacy, the direction and tenor of the conversation is not entirely within the advocate’s control.
To sort through this issue more carefully, I like to remind myself of some facts about court and judicial “speech” generally.
First, courts often do speak on their own behalf, albeit primarily on issues related to their performance and resource requirements. The Chief Justice’s Year-End Report—really a glorified statistical report invariably wrapped in an odd piece of historical trivia and wierdly embargoed until the evening of December 31—provides an opportunity to highlight some issue of importance to the federal court system each year. Other federal judges, usually under the mantle of the Judicial Conference of the United States, testify before Congress from time to time on issues related to funding, staffing, and grants of authority. At the state level, Chief Justices commonly present a formal State of the Judiciary speech to the legislature, which addresses similar topics. Those speeches sometimes wade into political waters, as Texas Chief Justice Nathan Hecht did earlier this month when he briefly advocated for an end to that state’s partisan elections. Moreover, both state and federal court systems have public information officers and, increasingly, a presence on social media.
Individual judges also occasionally advocate for their professional interests in court. In recent years, federal judges have sued the government for having received inadequate compensation, and state judges (and judicial candidates) have sued to clarify their First Amendment rights of speech and association.
For the most part, however, American judges at every level are exceedingly cautious about speaking out on their own behalf. The ABA’s Model Code of Judicial Conduct broadly and affirmatively discourages political speech or activity. Canon 2 provides that “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” And Canon 5 states that “A judge or judicial candidate shall refrain from inappropriate political activity.” Because “impropriety” and “inappropriate political activity” are such open-ended terms, and because even nearing the line of impropriety might be damning, most judges stay far away.
This has created some difficult moments for judges, particularly at the state level. Over the past decade, several judges facing retention elections have been targeted for removal by special interest groups with widespread television advertising. In other instances, statewide initiatives designed to politicize or punish the judiciary (including, most notoriously, South Dakota’s "JAIL 4 Judges" initiative) have appeared on the ballot. But a formal response to these efforts from the judiciary is impractical and dangerous: even a cautious and thoughtful reply would be spun by its detractors. Judges have never wanted a war of words; Heaven forbid they find themselves in a war of tweets.
In these circumstances, bar associations, law professors, and various special interest or good government groups often do step in to defend the courts. Their messaging can be effective if the message is simple and clearly bipartisan or nonpartisan. For example, in 2006 an initiative in Colorado would have imposed retroactive term limits on state supreme court justices, effectively retiring five of the seven members of the bench. If passed, the initiative would have destroyed institutional knowledge, broken up a collegial court, and undermined legal predictability. A coalition of groups, led by the state bar association, drafted respected public figures from both parties to publicly oppose the effort and distilled its opposition into a simple message: "Bad Idea, Serious Consequences." The straightforward message and coalition-building worked, and the initiative failed.
Courts assuredly wish that no one would have to speak for them, but that is not the reality. Better civic education can help cool popular passions, and educational efforts are being made at the federal level, the state level, and even by Sandra Day O'Connor. In the meantime, those who support fair and impartial courts should think strategically about the timing and tenor of their advocacy, lest their protective sentiment—however sincere—simply create a new round of mudslinging.
Hernandez v. Mesa argument
Just finished the argument in Hernandez v. Mesa (shooting across the Mexican border). A couple quick notes:
The argument was dominated by Justices Breyer and Kagan, with fewer questions from the Chief or Kennedy and even fewer from Justice Alito, who I would have expected to challenge the petitioner more than he did. On that note: At one point, the transcript shows Kagan beginning to ask a question when the Chief jumped in to call on Justice Kennedy (who, according to the transcript, had not begun to say anything). I want to hear it on audio. The Chief often plays traffic cop during arguments,* although this was the first time I have seen him do it without an apparent verbal signal that someone was trying to speak.
[*] An interesting research question: Is he more likely to "call on" a male Justice, especially over a female Justice? It feels that way from the individual examples I notice. I wonder if a regularized study would bear that out.
Qualified immunity was not discussed much, only a couple of questions from the Chief and Kennedy. One of them asked whether qualified immunity accounts for different plaintiffs--that is, if case law establishes that X violates the Constitution, can courts distinguish that precedent (to find the right not clearly established) when the identity of the plaintiff subjected to X is different.
Finally, Kagan and Breyer both pushed back against the idea that Bivens must be "extended," at least for Fourth Amendment excessive-force claims to recognize a cause of action. Kagan suggested that Bivens should be understood as allowing Fourth Amendment claims unless it arises in the military context. And Kagan pushed hard on the absence of an alternative remedy here, seeming to suggest that we should not even look at special factors if the plaintiff is left entirely without a remedy. These ideas, if followed, would pull the Court back from where it has gone with Bivens in the past two decades, similar to the vision Justice Ginsburg espoused in her dissent in Wilkie v. Robbins.
Wednesday, February 22, 2017
Burning your own cross on your own lawn?
A couple in Stamford, CT had a racial slur spray-painted on their garage door. Convinced that the police are not doing enough to investigate the incident, they have refused to paint-over or cover the word. In response, the town is moving to cite them for having blighted property, which would result in a fine of $100/day. The NAACP has gotten involved, although the stories do not (yet) mention the First Amendment.
That citation and fine should raise First Amendment problems. Although the blight ordinance is content-neutral, leaving the word on the garage is expressive in several respects: 1) the word has obvious political content; 2) the homeowners can be seen as reappropriating someone else's hate speech;and 3) the purpose behind their actions is itself expressive, as an act of protest against what they see as police wrongdoing. Plus, the blight ordinance is not being applied content-neutrally here--the conclusion that the garage is blighted is justified only with reference to the content or message expressed by that word.
Friday, February 17, 2017
Why Is It So Hard For the (Federal) Courts To Innovate?
Earlier this week, the House Judiciary Committee held a hearing which touched on a wide range of court transparency issues. Of particular interest to me was the testimony of Mickey Osterriecher, the general counsel of the National Press Photographers Association, who renewed the push for broadcast access to federal court proceedings. He noted that the recent live audio stream of the Ninth Circuit’s telephonic hearing on President Trump’s travel ban garnered more than a 137,000 connections on YouTube, with millions more tuning on cable TV news.
Given that the other branches of the federal government have long broadcast many of their proceedings (CSPAN has been on the air for nearly 40 years), and that courtrooms are traditionally open to the public anyway, there is no obvious reason reason why the federal court system would not provide video and audio access to their proceedings on a much more regular basis. Yet the Judicial Conference of the United States and the Supreme Court have repeatedly blocked efforts to do just that. Indeed, two years ago the Judicial Conference let lapse a nationwide pilot program that allowed volunteer district courts to record selected civil proceedings and make those recordings available to the public. (Only three district courts in the Ninth Circuit have been permitted to continue the project.) That pilot, whose success I documented here, and carried significant benefits for the legal profession and the public.
So why did the Judicial Conference end it?
The U.S. Courts website offers little guidance, only noting dryly that the "Committee on Court Administration and Case Management ... agreed not to recommend any changes" to the general policy of prohibiting cameras. The real reason for ending the cameras program--left unstated by the Judicial Conference--is that the introduction of cameras on a regular basis is seen as too risky. To understand why, it is helpful once again to think about the federal court system as a large organization.
Courtroom broadcasts would be an innovation, and organizations do not naturally innovate. Innovation is disruptive and places the organization's resources at risk. Therefore, innovation is typically justified only if: (1) the change will distinguish the organization from its competitors in the field (thereby allowing it to attract more resources), or (2) the change will conform the organization’s practices to those in the field (thereby allowing it to look more legitimate). The distinction incentive is more prominent in the private sector, where introducing a new product or new marketing campaign could garner new customers or new investors. The conformity (or isomorphism) incentive is more prominent in the nonprofit and public sector, where legitimacy is often tied to looking and acting like other respected organizations in the field.
The distinctiveness incentive is not very strong here. Broadcasting courtroom proceedings does not distinguish the federal courts from other court systems (where cameras are already allowed), and likely does not distinguish them positively from arbitrators or other private ADR providers.
The incentive to conform might seem more promising because it is so closely tied to an organization's legitimacy. As I noted in a previous post, legitimacy is perhaps the single most important resource to the federal courts. If the courts are not perceived as legitimate, they risk losing other key resources: funding, jurisdiction, a steady flow of disputes needing resolution, and goodwill. We might expect, therefore, that isomorphic pressures might push the federal courts toward conformity with other branches of the federal government, and many state courts, by allowing cameras to broadcast hearings in a regular basis. If isomorphic pressures are powerful enough, the courts would gain legitimacy from permitting cameras in the courtroom, and would lose legitimacy by resisting them.
Isomorphic pressures come in three forms. Coercive pressures come from the state, usually in the form of legislation or regulation. (A federal law requiring broadcasts of court proceedings would be an example.) Mimetic pressures are pressures to copy peer organizations, on the theory that a behavior signals legitimacy just because everyone else is doing it. Normative pressures derive from the culture and expectations of the professions associated with the organization. (For example, in making policy the federal courts often consult with the ABA, the American College of Trial Lawyers, and similar prominent bar groups.)
Here, however, the isomorphic pressures are not sufficiently powerful to induce change--at least, not yet. The coercive pressures on the courts are moderate at best: Congress has introduced a Sunshine in the Courts Act in almost every recent session, but they have never picked up serious steam. The mimetic pressures are also weak: state courts may use (and benefit from) cameras, but at least in this field the federal courts do not seem to view the state courts as peers worthy of imitation. And the normative pressures are too scattered: the arguments touting the benefits of broadcast proceedings come not from the organized bar, but rather from the media, politicians, and academics. It’s not accurate to say that courts find these views meaningless, but it is certainly safe to say that they do not find them powerful enough to move from a stable level of public legitimacy.
Conditions and external pressures can change. I hope that the federal courts will eventually come to recognize that the benefits of the cameras program outweigh the risks, and will adopt a full program on their own. In the meantime, friends of the court might want to rally the normative forces that counsel for such a change.
Thursday, February 16, 2017
Whittington on Trump and the courts
This Balkinization piece by Keith Whittington. I have been trying to figure out why Trump's comments about the judiciary have rankled, especially given my (newfound) adherence to departmentalism. Keith's answer is that they are content-free and rest on a rejection of judicial authority (and an attempt to scapegoat judges for whatever might happen in the future), rather than a substantive critique of why the judiciary, while authorized, was wrong.
Tuesday, February 14, 2017
Could Jeff Sessions Stifle State Marijuana Reforms?
Proponents of state marijuana reforms are concerned about Jeff Sessions’ confirmation as Attorney General. Sessions has spoken critically of those state reforms. For example, in April of 2016, he was quoted as saying that “We need grown-ups in Washington to say that marijuana is not the kind of thing that ought to be legalized . . . ., that it's in fact a very real danger.” The chief fear among reform proponents is that Sessions will renew enforcement of the federal marijuana ban in reform states, for example, by initiating federal prosecutions of state licensed marijuana suppliers. Federal laws criminalizing the behavior of these suppliers remain on the books, even if the DOJ refrained from enforcing them vigorously under the Obama Administration. (He might also challenge state reforms as preempted, but as I've argued elsewhere, I think a challenge to most reforms would clearly fail.)
However, I want to suggest that the risk Sessions poses to state marijuana reforms is quite limited, for at least three reasons.First, since 2014, Congress has barred the DOJ from using appropriated funds “to prevent . . . States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The quoted language has been inserted in riders to omnibus spending bills for the last couple of budget cycles. Although the rider language is not terribly clear, the Ninth Circuit has interpreted it as barring the DOJ from prosecuting anyone for actions that comport with state medical marijuana laws. This means that, at least until the current rider expires later this year, the DOJ probably couldn’t initiate legal action against state licensed medical marijuana suppliers. Even recreational marijuana suppliers might be off limits under the Ninth Circuit ruling if they also serve the medical market (as they do in several states) -- though that's an untested proposition.
Second, even if AG Sessions demands a crackdown on marijuana, it’s not clear that the 93 United States Attorneys – i.e., the ones who can actually bring prosecutions – will necessarily oblige him. For the time being, many of those USAs are holdovers from the Obama Administration, and they might not share Sessions’ antipathy toward marijuana. But even after Trump has a chance to replace them, there is no guarantee that his USAs would necessarily heed Sessions’ demands regarding marijuana enforcement. USAs have a degree of independence from the AG and central DOJ. And if asked to do something that is locally unpopular – like crack down on the marijuana industry in a legalization state – some USAs might balk, either because they believe it's the right thing to do or because they aspire to local political office and fear alienating large local constituencies who support state reforms.
Third, the DOJ has very limited resources. The DEA, the unit within the DOJ that has primary responsibility for enforcing federal drug laws, has only about 5,500 agents total – and they’re responsible for policing all drugs (licit and illicit), worldwide. As I have written elsewhere, even before the Obama Administration first adopted a deferential enforcement policy toward marijuana in 2009, the DOJ couldn't take on all of the marijuana cases that had previously been handled by reform states. The task facing the DOJ has not gotten any easier in the intervening years. There are now 44 states (including DC) that have legalized some form of marijuana, including 29 that have full-fledged medical marijuana laws (and 9 of those have recreational marijuana laws). That’s an awful lot of ground for the DOJ to cover with only limited resources, especially when the agency is also attempting to crack down on various other offenses (immigration, etc.). To be sure, the DOJ could (eventually) make life difficult for some marijuana suppliers. But I think the number of prosecutions (and other legal actions) the agency could undertake would be too small to make much of a dent in the state legalized marijuana market (even given harsh sanctions).
Ultimately, AG Sessions might be able to forestall reforms at the federal level –– assuming he has some clout in Congress. For example, he might be able to block or at least delay passage of federal legislation that would enable banking with the marijuana industry. However, I don’t think Sessions will be able to stifle state marijuana reforms.
Friday, February 10, 2017
Managing the Vacancy Crisis: An Example of Resource Dependence in Federal Courts
One of the fundamental premises of modern organizational theory is that most organizations are resource-dependent; that is, they rely on the external environment for goods, labor, financing, or other resources necessary to complete their mission. Factories require raw materials, nonprofits require sources of funding, and government agencies require taxpayer dollars and at least some modicum of public support.
Court systems are heavily resource-dependent in their own right, perhaps unusually so. To serve their mission (which, we’ll stipulate for now, is the resolution of legal disputes brought before them), courts require a wide range of both tangible and intangible resources: funding, staffing, physical space, constitutional and statutory authorization to conduct their business, a regular flow of cases into the system, public participation (in the form of jurors), and public support (in the form of legitimacy). If any one of these resources dries up, a court’s ability to perform its mission is compromised.
Perhaps no resource dependency is as striking as judicial staffing. Many organizations depend on others for the resources or permission to hire key employees, but typically they have some say in who actually gets hired. Courts, by contrast, are at the mercy of the public and/or the other branches of government when it comes to adding or replacing their own members. In most state court systems, periodic judicial elections (whether contestable or of the retention variety) at least provide the judicial branch with some regularity as to the timing of replacing judges, although elections can also create massive turnover on the bench.
In federal courts, where a sustained vacancy crisis has led to nearly 120 unfilled Article III judgeships as of this writing, the deficiency is especially pronounced. Barack Obama showed little interest in quickly filling lower court judgeships during the first year of his presidency, and Donald Trump has not indicated much greater interest in the early weeks of his administration.
Still, the courts are expected to do their job. And over the years, the federal courts as an organization has developed a variety of ways—some public and direct, others more private and subtle—for managing inconsistent periods of this particular resource flow.
A few examples, from most direct to most subtle:
Lobbying Congress. The Judicial Conference of the United States has formally lobbied Congress for additional resources, including more judges, since at the least the 1950s. Other forms of lobbying may be less formal but no less obvious: the Chief Justice, for example, dedicated his 2008 Year-End Report to describing the resource deficiencies in the federal judiciary.
Lobbying may seem an straightforward strategy, but it must be attempted carefully. First, any lobbying must be done so as not to compromise the courts’ public legitimacy. Legitimacy is the single most important resource for all courts (as it is for many organizations; more on that in a later post), and if courts are viewed as too demanding, greedy, or insensitive to public needs, asking for additional resources may backfire. As a result, a typical strategy for the courts is to argue that they are already working at peak efficiency given the circumstances, and are simply requesting the minimum additional resources necessary for them to serve the public adequately. But the “we are doing more with less” argument itself must be carefully tailored. It is not enough to show efficiency; it must be the kind of efficiency that Congress approves of. Demonstrating, for example, that the federal courts guided lawsuits challenging federal legislation to trial at record speed probably won’t impress Congress or encourage it to allocate more resources to the judiciary.
Internal allocation of existing resources. The courts have developed a number of strategies for reallocating judicial resources internally when judgeships remain unfilled. They rely extensively on judges with senior status to handle cases. They increasingly ask magistrate judges or special masters to handle particular pretrial matters or ADR, freeing up district judge time for dispositive issues and trial. Some district judges (or even appellate judges) sit as visitors in other districts, often handling matters by telephone and videoconference. Internal procedures to consolidate cases or create MDL actions also permit the courts to shuffle cases to the judges equipped to hear them quickly.
Cooptation. Resource Dependence Theory, one of the branches of modern organizational theory, predicts that organizations will take on additional tasks outside of their core mission if doing so allows them influence and regularize the flow of needed resources. These additional tasks are known as buffering and bridging strategies. One such strategy is cooptation: the focal organization invites key members of outside groups to participate in its decision-making process in order to invest those outside groups in the organization’s survival. In the private or nonprofit sector, this may take the form of interlocking boards of directors or shared consultancies. Courts cannot adopt this particular framework (although Chief Justice Burger unsuccessfully floated the idea of a judiciary council with members from all three branches in the 1970s), but the federal courts have included representatives from Congress and the Department of Justice on various Judicial Conference committees, either through formal membership or regular observer status. Similarly, the courts’ relationship with the ABA and other groups can translate into explicit advocacy for more judicial resources, even without the courts explicitly requesting it.
Rulemaking. Organizational buffering activities cannot dictate the flow of resources by themselves, but they can flatten the impact of variations in resource flow. Another example of a buffering practice (and the topic of my current research) is court-controlled rulemaking. Procedural rules can be used as a docket control technique in times of high judicial vacancies, especially to the extent they allow the court to dismiss, resolve, or otherwise hand off the case without a significant investment of judicial resources. Federal Rules of Civil Procedure that increase judicial discretion in case management, discovery, and referral to alternative dispute resolution all give judges more flexibility to control their dockets; the structure of the Rules Enabling Act largely assures that the judiciary itself can drive the amendment process as needed.
To be clear, I am not suggesting that docket control is the sole (or even primary) motivation for rules amendments—the rules committees and Judicial Conference surely have all users of the civil justice system in mind when they propose amendments to existing rules. But the power to promulgate procedural rules should be recognized as giving the federal courts a rare outlet for docket management that is predominantly within their control.
This is already long for a blog post, but I could go on. The more general point is that uncertainty surrounding a single resource—active Article III judges—leads to a robust set of organizational responses. These responses all aim to increase certainty in the environment in which the courts operate, either by obtaining more resources or by creating mechanisms for coping with the inconsistent flow of those resources.
Next: What organizational theory teaches about the pressures on courts to conform to each others’ practices.
The process of challenging the travel order
The litigation in Washington v. Trump has become politically confused following Thursday's decision by the Ninth Circuit.
The district court issued a Temporary Restraining Order; while it was entered following an adversary hearing, it was on light briefing and without an evidentiary hearing. It was designed to maintain the status quo until there could be briefing and a an evidentiary hearing on a preliminary injunction, although the briefing schedule was set so that the TRO would last more than the 14 days allowed by FRCP 65(b)(2), although not substantially more than that. The order was, as many have noted, bare-bones and conclusory in the constitutional analysis, as befits a TRO.
The United States appealed, although it was not clear what or how. TROs are not subject to immediate appeal, although preliminary injunctions are. The purpose of the appeal appears to have been to get the Ninth Circuit to stay the district court order.
The Ninth Circuit panel recast the TRO as a PI (pursuant to Ninth Circuit precedent allowing the court of appeals to look through the label), granting it appellate jurisdiction, then denied the stay pending appeal. The Ninth Circuit has set a briefing schedule for the appeal (running into March), so we are done at the district court, at least at the preliminary injunction stage. At the same time, the panel left open the possibility that the merits panel could revisit the issue, decide this is really a TRO and that there is no appellate jurisdiction, kicking it back to the district court for the evidentiary hearing it was trying to hold. There also is the possibility that the Ninth Circuit panel will decide that it cannot review the decision without an evidentiary record and remand for that hearing.So consider where this leaves us: The case is in the Ninth Circuit to review a bare-bones order, entered without an evidentiary hearing and without giving an opportunity for an evidentiary hearing. This means, as described by one professor on the Civ Pro Listserv, the appeal will be nothing more than a replay of the stay motion with longer and more drawn-out briefing (and with the burden of persuasion shifted to the State), but with nothing more in the record to review. This reflects an insight Samuel Bray has made in his work criticizing nationwide injunctions--if the courts see their role as deciding whether to "strike down" a statute, then the narrow, party-specific work in the district court becomes less important. And litigants may view it that way, as well.
It did not have to proceed this way. The United States could have instead sought a Writ of Mandamus, which would have allowed the Ninth Circuit to look at the TRO to determine whether it was egregiously wrong, without being a run-of-the-mill appeal. And it could have done that without having to manufacture appellate jurisdiction, review a cursory order entered without a full record, or waste time remanding to obtain that full record. But the U.S. seemed so anxious to be able to enforce the E.O. pendent lite that it blew through many of these details.
A nice question to consider: Where did the decision to pursue the appeal in this way come from? At the time, there was no AG and no SG. So did the instructions and oversight come from the White House?
Monday, February 06, 2017
Criticizing v. Threatening--wither the line?
Where is the line between criticizing the judiciary and engaging in threats that potentially undermine the independence of the judiciary? That is the question following Donald Trump's tweets over the challenge to the travel order--where he first referred to District Judge James Robart as a "so-called judge," then said Robart and the judicial system had put the country in peril and would be to blame if there were a terrorist attack while enforcement of the order is enjoined. Will Baude, Eric Posner, and profs on various listservs have decried this as a genuine threat--undermining judicial independence and possibly inciting mob violence against judges should anything happen.*
[*] Threats aside, the comments also rest on a false premise--that there has been a dramatic increase in travel to the United States since the TRO was entered or that the TRO prohibits all vetting and discretion in issuing visas or accepting refugees.
I agree that this is a wrong and intemperate way to criticize a court, a judge, and a judicial ruling and a wiser President would tone it down, focusing on the correctness of the decision rather than whether the judge was acting as a judge and thus had the power to render that decision (Will's point). But I am not convinced this reflects a threat or a shot across the bow of an independent judiciary. Nor am I convinced by how bound up the comments are with whether Trump might disobey or disregard a judicial order. Trump could disobey the order without verbally attacking the judge. These tweets perhaps prime the public to support and accept his disobedience, because they have been primed to understand the decision as non-judicial and thus not entitled to obedience. But they are not a necessary condition for a presidential showdown with the courts, should Trump choose to have one.
On the other hand, I worry that in seeing the President's tweets as so much noise that should not be taken seriously, I am falling into the very trap that a would-be authoritarian President needs--missing efforts to undermine the judiciary before it is too late.
Thursday, February 02, 2017
Teaching and Writing About Marijuana Law
Greetings, y’all, and thanks for having me! In the coming weeks, I’ll be blogging about one of my core areas of interest: marijuana law. In this first post, I want to share just a couple of the reasons why I find this is such a fascinating and worthwhile field of study.
For one thing, state marijuana reforms and the federal response to them have sparked some of the most challenging and interesting legal controversies of our day. May the states legalize a drug while Congress forbids it? Even so, are state regulations governing marijuana preempted by federal law? Does anyone (besides the DOJ) have a cause of action to challenge them as such? Can the President suspend enforcement of the federal ban? Do state restrictions on marijuana industry advertising violate the First Amendment? These are just a handful of the intriguing questions that are now being confronted in this field.
Just as importantly, there is a large and growing number of people who care about the answers to such questions. Forty-three (43) states and the District of Columbia have legalized possession and use of some form of marijuana by at least some people. These reforms – not to mention the prohibitions that remain in place at the federal level – affect a staggering number of people. Roughly 40% of adults in the U.S. have tried marijuana, and more than 22 million people use the drug regularly. To supply this demand, thousands of people are growing and selling marijuana. In Colorado alone, for example, there are more than 600 state licensed marijuana suppliers. There are also countless third parties who regularly deal with these users and suppliers, including physicians who recommend marijuana to patients, banks that provide payment services to the marijuana industry, firms that employ marijuana users, and lawyers who advise all of the above.All of these people need help navigating a thicket of complicated and oftentimes conflicting laws governing marijuana. Colorado, for example, has promulgated more than 200 pages of regulations to govern its $1 billion a year licensed marijuana industry. Among many other things, Colorado’s regulations require suppliers to carefully track their inventories, test and label their products, and limit where and how they advertise. These regulations are complicated enough but doubts about their enforceability (highlighted in the questions above) only add to the confusion and the need for informed legal advice.
This short intro should give you a sense of why I now regularly teach a course on Marijuana Law and Policy at Vanderbilt, and why I have spent a large part of the last two years completing a first-of-its-kind textbook with Aspen on Marijuana Law, Policy, and Authority. The link provides more details on the casebook, which will be published in May of this year—i.e., in plenty of time for summer or fall 2017 classes! And if you are interested in teaching a course in any aspect of marijuana law, contact me – robert<dot>mikos<at>vanderbilt<dot>edu -- I would be happy to chat.
That’s it for now. In the coming days, I’ll write about several of the questions posed above.
Posted by Robert Mikos on February 2, 2017 at 09:54 PM in Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2)
Wednesday, February 01, 2017
Framing the coming debate on the Gorsuch nomination
Neil Gorsuch will be on the Supreme Court. Nevertheless, speaking purely as a political partisan, I would like to see Democrats filibuster the nomination and force Republicans to own the decision to eliminate the procedure. Or that both sides agree to end the arms race and adopt Eric Segall's plan to hold the Court at eight.
But the framing of the strategy is going to be essential. It is too easy to say (as the press already is saying) that a filibuster is extraordinary and unprecedented and this would be only the second time it has happened. Forget that the filibuster of Fortas's nomination as Chief was bi-partisan and done when the filibuster was an extraordinary step (as in the then-fresh filibuster of the Civil Rights Act of 1964), rather than a routine part of Senate business producing a de facto super-majority requirement. The year 1968 was the dark ages for Supreme Court confirmations and filibusters, no longer a meaningful historical analogue.
Similarly, the argument has to be more than that the seat was "stolen" from President Obama and Merrick Garland. Senate Republicans did not merely deny Garland a hearing, but did so for a purported principle--a President should not fill a SCOTUS vacancy in an election year/in the final year of his term (although I have never been clear whether that was the final year of a term or only in the final only of a second term).*
[*] That was the stated principle; I am not saying I believe it. Mitch McConnell would have led the Republicans to do the same thing had Scalia died on December 13, 2015 or August 13, 2015 (when the Republicans were already holding primary debates). Or, frankly, anytime after the 2014 mid-terms.
So the Democrats need to find their own principle beyond tit-for-tat.One principle is that, given longevity, the central role of the Supreme Court in the legal and political scheme, and the increasing polarization in society, Justices must command super-majority support to be confirmed. True, this principle is not found in Article III or history and the lone example of a filibuster shows it has not been used in this context. But the "no election-year confirmations" principle also had no basis in Article III and ignored a history of election-year appointments (including 100 years prior, the confirmation of Louis Brandeis). The (new) rules of the game do not appear to estop a Senate caucus from adhering to new principles; the only question is whether the principle sticks, as the GOP's move did, or not, as will happen when Senate Republicans eliminate the filibuster for SCOTUS nominations.
I would add that this principle flies less in the face of text than McConnell's. The idea of no appointments in the final year disregards that a President serves for four years (January 20, Year 1-January 20, Year 5) and that vested in him for the entire four years is the executive power, including the power to make appointments. McConnell's principle essentially says that power runs out sometime earlier, although it is not clear when (again, I expect it would be Election Day of Year 2).
Alternatively, Mark Tushnet suggests a principle of no appointments by a President who lost the popular vote. It last happened 1893, when lame-duck Republican Benjamin Harrison appointed a Democrat a month before newly (re-) elected Democrat Grover Cleveland took office. Again, however, we have had other election-year appointments in our history (and most more recently than 1893), all of which Republicans ignored last year.
Ultimately, the principle I believe we end with* is this: No one will be appointed to the Supreme Court except where the President and Senate majority are of the same political party. I do not necessarily believe that is a normatively good principle. But it is functionally where we now found ourselves in the current political circumstance.
[*] This assumes the Democrats decline to filibuster to save it for another day, which would be politically stupid. But then, Senate Democrats . . .
Update: But see Richard Primus' argument that the real threat is Donald Trump, not a judicial nominee who might have come from any Republican President.
Monday, January 30, 2017
Holocaust, Shoah, and unique group experiences
Lost amidst President Trump's offending Muslims the world over was his offending many Jews with his Holocaust Remembrance Day Statement. The statement spoke of the "depravity and horror inflicted on innocent people," without mentioning that more than half of those, the primary targets, and the raison d'être of the Nazi efforts, were Jews. Spokesperson Hope Hicks defended the statement by pointing to the 5 million victims of other groups, including "priests, gypsies, people with mental or physical disabilities, communists, trade unionists, Jehovah's Witnesses, anarchists, Poles and other Slavic peoples, and resistance fighters." Chief of Staff Reince Priebus tried to do the same on Meet the Press on Sunday, producing a fascinating three minutes of video (after the jump) in which he stares blankly ahead while concocting a word soup of adjectives to describe the Holocaust, including "horrible event," "miserable time in history," and "extraordinarily sad." All without ever saying, explicitly (as opposed to blandly agreeing with Chuck Todd's premises) that Jews were the central victims.
Jewish groups were outraged. Stripping away its uniquely Jewish nature is an element of denial--"many people died, not only Jews, and it entailed nothing programmatic or unique to history. And it divorces the event from 2000 years of unique anti-Semitism that made it possible. Fortunately, Preibus reminded us that Trump has Jewish family members, which will be his get-out-of-jail-free card for the next few years.
The question of universalizing affects what we even call this thing. I prefer the Hebrew word "Shoah" (literally, "destruction" or "total destruction"), although that word could isolate the event, and its victims, from the rest of the world and of world experience (not unaided by that historic anti-Semitism). On the other hand, a generic English word such as "Holocaust" allows for the Jewish element to be ignored, perhaps for those same reasons, just as Trump did here.
Updates: First is Deborah Lipstadt in the Atlantic, labeling this "de-Judaization of the Holocaust" as "softcore denialism."
Second is WH Press Secretary Sean Spicer, who was beyond annoyed by people nitpicking of the statement, insisting it had been "praised" (without mentioning by whom) and arguing that President Obama's "anti-Israel" policies of the last eight years are a bigger deal than a statement remembering the Holocaust. Three remarks. First, Spicer makes me long for Ari Fleischer. Second, every statement from the White House trying to defuse this keeps coming back, without acknowledging (or maybe even recognizing), the problem--that the statement is troubling because its memory of the Holocaust is historically wrong in significant ways that play on anti-Semitism. And third, the downshift of how much Trump loves Israel, because: 1) Israel is not the Holocaust and 2) what Trump loves is Benjamin Netanyahu and his government--which is not "Israel" in the same way that Donald Trump is not "America."
Sunday, January 29, 2017
More on the immigration order
Events move quickly:
• Secretary of Homeland Security John Kelly issued a statement deeming "the entry of lawful permanent residents to be in the national interest," meaning "lawful permanent resident status will be a dispositive factor in our case-by-case determinations." The question was raised whether this moots the actions involving LPRs. Administrative/executive interpretation, not reduced to formal policy, typically is treated as "voluntary cessation" of unlawful activity that is not sufficient to moot a case. The government must show it is "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Given the public confusion over the meaning and scope of the order--with contradictory statements coming from officials within the White House over threee days--and that the policy could be changed tomorrow by a new announcement from the Secretary, this announcement should not meet the standard.• The rapid-fire litigation reminds me of the early days of the nationwide marriage-equality litigation, with district courts all over the country issuing orders, often ex parte, almost always against the government, and building a momentum in a given direction. It also reminds us of the power of district judges, at least in the short-term--ex parte T/R/Os and stays are not immediately appealable, unless a court of appeals wants to mandamus the district judge, which is unlikely. When we talk about the power of the judiciary, it is not only (or even primarily) about SCOTUS on the ground.
• More protests Sunday, with thousands of people turning out on the streets of several major cities and at airports, seemingly organized on short notice and growing organically, and despite some traffic blockages. Once again, few or no reports of arrests. But the constant protests and criticisms seem the thing that might drive the President over the edge. How long might it take for himto have had enough and to try to get protesters off the street, either working behind the scenes telling local police enough is enough, or by explicitly urging force to stop them?
Trump supporters bragged about what his first 100 days would achieve. We are 10% there and it has been a ride, although not in the way many expected.
Random thoughts on a Sunday
1) Judge Donnelly's temporary stay of removal of those at U.S. ports of entry who are legally authorized to enter the United States raises, from the other political side, the issue of nationwide injunctions against enforcement of U.S.policy. Darweesh purported to be suing on behalf of others similarly situated, although Judge Donnelly did not perform any part of the FRCP 23 analysis. But at the stage of a temporary emergency stay or temporary restraining order, this is less problematic than on a preliminary or permanent injunction entered after full briefing by the parties.
But here I want to distinguish between "nationwide" and "universal" injunctions (thanks to Tobias Wolfe of Penn for the distinction); the latter term better captures the remedial problems. An injunction is, and should be, "nationwide" with respect to the named plaintiffs--the United States should be enforced against them anywhere in the country. And the "parties" in a class action properly covers everyone in the class. A universal injunction, by contrast, bars action by the defendant with respect to anyone, including non-parties. This is remedially problematic. The DACA injunction was universal--although only Texas and about 25 other states were parties, the injunction barred the United States from enforcing DACA in, and with respect to, non-party states, even those who would not oppose the benefits granted to undocumented persons within its borders.
Now it remains to be seen whether this case is properly brought as a class action (reports are there are about 100-200 people with the status of the plaintiffs in Darweesh. I expect the class question will await fuller litigation, assuming the relevant agencies do not release the people affected. The point is that the "nationwide" label thrown around in the press is too imprecise.
And, for what its worth, TRO's are issuing in other courts (including the District of the District of Columbia, Western District of Washington, and District of Massachusetts), suggesting that Judge Donnelly's temporary stay is not doing as much nationwide work as it might.
2) Josh Blackman has his usual thorough analysis of the procedural aspects. I do not think I agree that Judge Donnelly's order is ultra vires for not having performed the FRCP 23 analysis. In that short time, I am not sure the court could do more than acknowledge the class allegations in the motion and save them for fuller briefing. But to not allow the fullest TRO* would love potential class members subject to removal.
[*] Although not styled a TRO, this seem to me the functional equivalent--staying enforcement of the law for a finite number of days pending fuller briefing.
3) There are some interesting enforcement issues, as reports come that officials at airports are refusing to abide by the orders. Judge Donnelly included a paragraph order the Marshals to take all steps necessary to notify agents on the ground about the order. But that takes time.
4) As I wrote last weekend, I have no idea when public protest will be permitted and when law enforcement will crack down. The New York Times described the genesis and evolution of Saturday's protests at Kennedy Airport (which, famously, is a nonpublic forum), including crowds making sidewalks outside the terminal unpassable. And all without permits, pre-event negotiations, and explicit or implicit understandings. And yet there were no arrests and no efforts to disperse or remove the protesters. Same in the parking garages. At one point, Port Authority police blocked protesters from boarding the train linking the subway to the terminals, until Gov. Cuomo ordered them to stand down, which they did only after a 15-minute delay.
5) There is a teaching moment here, apart from the substantive and procedural details of the controversy and the "this is why we need lawyers" narrative (since most of our students are never going to be on either side of such controversies). Reports are that this order was not vetted by the lawyers and policy experts at various agencies, including in the Office of Legal Counsel, but was thrown together by non-lawyer policy makers and some lawyers guiding them within the White House. So the teaching point is that lawyering matters and lawyering means care and precision and avoiding ambiguity and the chaos that ambiguity brings. And that is true not only as to major government orders that affect the entire world, but wills that affect an elderly widow.
Monday, January 23, 2017
Peaceably to assemble
A question asked out of genuine curiosity and with no intent to disparage: How is it that more than 3 million people in multiple cities, including 1/2-million in D.C. and 1/4-million in NYC, marched without incident, without conflicts or confrontations with police, and without arrests? Meanwhile, so many other protest/march/rally/gathering everywhere for the past several years--all involving far fewer people--has seemed to devolve into violence, property destruction, and multiple arrests.
Without more, it seems too simplistic to say "these were peaceful, whereas those others were violent and met with appropriate force." There is a chicken-and-egg problem: Has conflict resulted from those protesters being angry, violent, and destructive and police responding with appropriate force and authority to lawlessness? Or have protesters become angry when met with massive resistance by police in riot gear limiting where in the public spaces they are allowed to move, trying to move them off the streets or pen them off into far-off "protest zones." Have other protests descended into lawlessless when police declared otherwise-peaceful gatherings unlawful assemblies to be broken up with force and detention? Not to excuse violence or say that no arrests have been warranted; only to say the spark of conflict is not clear. The consent decrees with Ferguson and Baltimore, with specific provisions requiring cities and policies departments to reassess how they respond to public protests, suggests a recognition that departments have not responded well.
So why was Saturday different, both in the sunny protesters and in the mild, cooperative police response? Was it that the world was watching? Was it that the terms of the gatherings had been negotiated in detail in advance and adhered to (which Tim Zick would argue is good for keeping the peace, but not what public expression should require)? Was it that the crowd was predominantly women, who are less likely to become violent or confrontational with police? Were police more restrained because the protesters were women? Was it that the crowd seemed largely (just based on photographs and TV coverage) white, which created a less heightened atmosphere among police? Was it some combination of all of these?
Finally, regardless of why Saturday was so peaceful, will cities learn anything from it? Will it demonstrate that public speech is possible, consistent with other municipal activity, and need not be restrained or pushed into confined areas or met with massive force? Will it demonstrates that public speech should be welcomed?
Sunday, January 22, 2017
Arguments in Ziglar v. Abbassi
Some thoughts on last week's oral arguments in Ziglar v. Abassi, the follow-up to Iqbal raising three issues: 1) Whether a Bivens action can be brought against policymakers on national-security matters; 2) whether the complaints were sufficient under Twiqbal; and 3) whether any of this was clearly established in 2001.
1) This case might give the Court an opportunity to re-emphasize and re-ignite "obvious alternative explanation" as part of the pleading analysis. Although mentioned in Iqbal, lower courts had de-emphasized it as part of the analysis, other than a bit rhetorically. Which is good, since such an inquiry contradicts the purpose of 12(b)(6). That motion asks whether, accepting everything the plaintiff says is true, he could win. For the court to explain the defendant's conduct as a result of something other than what the defendant alleges is for the court to act as factfinder based on the plaintiff's preliminary allegations. But the SG mentioned this standard several times during his argument on behalf of Ashcroft, Mueller, and James Ziglar (the policy-maker defendants); the core argument was that the decisions were based on their best judgment about national security given their lack of information, rather than invidious discrimination.
2) Justice Breyer (whose questions I usually cannot understand) asked a question that captured the connection between ex post damages and immediate court orders (namely habeas) as constitutional remedies and why the former maintains a special place in any judicial regime. Using Japanese internment as his hypo, Breyer pointed out that a judge was unlikely to find a constitutional violation in 1942, given the immediacy of the crisis, the recentness of the executive-branch determination, and the uncertainty of events. But later damages actions and remedies allow judges to act after the crisis has been averted and with an opportunity to cast a cooler eye on the constitutional question. It thus is not enough to argue, as the government did, that these detainees could have sought habeas relief (as some did) or relief under the Administrative Procedures Act or injunctive relief on a constitutional claim--that later judicial inquiry in a damages suit plays its own unique role. The sharp dichotomy the SG drew--constitutional challenges to government policy come only through injunctive actions, never through actions for damages--is not supportable (certainly not if we use § 1983 as an analogue) or the best scheme for judicial enforcement of constitutional rights.
3) The arguments and questions over the Bivens extension reveal an unfortunate conflation of what should be distinct issues--constitutional merits, availability of a cause of action, and qualified immunity. Government attorneys and questions from the bench (especially from the Chief) worried that the possibility of a suit for damages against policymaking officials would over-deter officials concerned about their conduct ultimately being determined. But that concern is already addressed by qualified immunity, a point respondent's counsel* nailed in her argument. And Justice Kennedy called for a targeted qualified immunity analysis for claims against national policymakers, seemingly recognizing that the immunity analysis was the locus for that consideration. Plus, the two-step immunity analysis allows damages actions to serve as a vehicle for developing constitutional law, at least when the Court chooses to undertake that inquiry--but only if Bivens allows the Court to examine and analyze the constitutional merits.
[*] Respondent's counsel was Rachel Meeropol of the Center for Constitutional Rights--and, I just learned, the granddaughter of Julius and Ethel Rosenberg.
This is not a new problem. In Wilkie v. Robbins, the Court pushed concerns about the scope of substantive due process as a reason to reject a Bivens cause of action.
4) Justice Kennedy, who has voted to reject the Bivens action in every recent case, seemed surprisingly sympathetic to the petitioner. Some questions to the government suggested concern that the respondents had no meaningful remedies and his questions to the respondent seemed to tee-up her arguments. Maybe that is how the Court avoids a tie. [Update: I should clarify--that is avoid a tie on the Bivens question. I expect a majority to find that all the defendants have qualified immunity]
Wednesday, January 18, 2017
Donald Trump and civil procedure
Donald Trump undoubtedly hates procedure, because it may interfere with his focus on substantive ends (unless procedure furthers his substantive ends--see College, Electoral). But all the litigation surrounding Trump and his businesses can be a boon for teaching and illustrating procedure. My fall Evidence exam was all Trump University. Now we have the defamation lawsuit by former Apprentice contestant Summer Zervos, alleging that Trump defamed her when he called her a liar in denying allegations that he sexually assaulted her. Merits aside, the case could be used to set-up and demonstrate a number of procedural issues.
For now, I want to focus on what the plaintiff's strategic choices tell us about diversity jurisdiction, at least from a plaintiff's standpoint. Diversity supposedly exists so the out-of-stater, forced to come into the state to litigate (I doubt Zervos could have gotten Trump into court in any other state), can find a neutral forum that will not favor the local over the foreigner. But here, a Californian filed a state-law action in New York against a New Yorker in state court. It is worth thinking about that choice. One possibility is that Trump is unpopular in New York, so the federal forum is unnecessary. Another is that federal procedure has become so plaintiff-unfriendly that plaintiffs would rather take their chances with state procedure, even against a local. Or maybe that original assumption--federal courts are better because more free of local bias--was never true. Or if it was, it is not anymore. As I said, good discussion and/or exam fodder.
Friday, January 13, 2017
Procedure returns to SCOTUS docket
SCOTUS granted cert in sixteen new cases today. Several involve procedure/fed courts issues, including:
• The scope of general personal jurisdiction over a U.S.-based company in a state.
• In what court a fired federal employee can challenge rejection of the Merit Systems Protection Board decision, when the Board concludes that it lacks jurisdiction over a "mixed case" involving both a firing and a violation of federal employment-discrimination law.
• Whether intervenors in federal court must establish Article III standing or whether it is enough that the original parties have standing. (This issue has been around for awhile and came up back during the marriage-equality litigation).
Looks like I will have some stuff to write about late in the Term.
The Blue Inhaler
I carry an albuterol inhaler as my quick relief medication for asthma. I use it infrequently, which is good news for me and good news for my asthma. Known in many other countries as the blue inhaler or the blue puffer, albuterol/salbutemol is a tremendously popular and effective relief inhaler. First brought to market in the 1980's, sales of the blue inhaler have grown as have rates of asthma diagnosis.
Traveling recently in the E.U., my albuterol inhaler stopped working short of its full number of available measured doses. And so I was off to my neighborhood pharmacy in Ponta Delgada, hoping that a licensed pharmacist might be able to prescribe inhaled albuterol over the counter and spare me the quest for the Centro de Saude on New Year's Day. Frequent travelers are no doubt aware that certain prescription only medications in the United States may be sold over the counter in other countries or dispensed at the discretion of a licensed pharmacist, even in the absence of a prescription, in still other countries.
One glance at the Pharmacia Moderna receipt found above will tell you I was successful. I was seen quickly by a licensed pharmacist who discussed my symptoms, examined my current inhaler (stunned, it seemed, that the United States would allow a relief inhaler to be packaged in bright red or anything other than the blue that is the color coded signal to asthmatics the world over that a rescue inhaler is at hand), and sold me a full size blue salbutemol inhaler for just under 3.75 Euros. I paid for it with pocket coins.
Today, I will not discuss drug pricing in the Açores beyond mentioning that Portugal (the Açores are an Autonomous Region of Portugal) uses a reference drug pricing system to set prescription drug prices. The reference involved is to drug pricing in several other countries (varying yearly, but often including Spain). Portugal, in short, is not interested in being an outlier in prescription drug acquisition cost nor an outlier in prescription drug cost to consumers. For some years, in fact, Portugal's citizens paid less than other reference countries for certain pharmaceuticals, something that has been increasingly altered by a Memorandum of Understanding relating to drug costs, promoted by the E.U. after the latest financial crisis.
The price to me was a remarkable ten percent of my U.S. commercially health insured co-pay cost for the differently-named albuterol inhaler. The contents, however, were the same, though the color of the casing on my damaged inhaler disturbed my Açorean pharmacist and the lack of a dose meter mechanism on the blue inhaler sold to me in Ponta Delgada disturbed me. I have written elsewhere about the problems of relief or rescue inhalers without dose meters.
What was equally stunning, however, was the ease of the entire encounter. I had a new relief inhaler in hand inside of ten minutes. No visit to the the clinic, no transferral of the prescription from the clinic to the pharmacia, no complicated health insurance negotiations over whether a new inhaler would be covered (it was broken) or not covered (my request for a new inhaler was untimely by calendar standards).
This made me want to know if the blue inhaler is an over the counter drug in other countries. Sure enough, the blue puffer can be bought in a U.K. supermarket, in a drug store without prescription in Australia and Spain, and elsewhere all for about the price I paid at Pharmacia Moderna. Tracking backward to check if a push had ever been made to allow Albuterol inhalers to be sold over the counter in the U.S., I learned of a relatively recent effort by the FDA to generate discussion about the possible creation of a third class of medicines: over the counter, over the counter with conditions of safe use, and prescription.
Last widely discussed in 2012, the FDA held hearings on the OTC/SCU category's appropriateness for formerly prescription only items like steroidal asthma inhalers. Multiple days of hearing on the idea produced varied positions, including AMA opposition to the encroachment on physician scope of practice. One AMA spokesperson supported pharmacist supervision of OTC/SCU prescribing, as soon as the relevant pharmacist had gone to medical school. The FDA proposal went nowhere.
I know of no place in the U.S. where OTC/SCU prescribing involving steroid inhalers has gained any traction after the 2012 blowup at
the FDA, though pharmacist prescribing is developing a bit of a track record in Canada and in the U.K. Our own state-based experiments with pharmacist prescribing authority are a mixed bag of programs based on dependent authority (collaborative practice with licensed physicians) and independent authority (think Oregon, Washington, and California's hormonal contraceptives statutes) but they have proven extremely limited in scope.
And the blue inhaler? Google it, if you like, and read all the apparently U.S. based articles and chat board discussions on how to survive an asthma attack without a relief inhaler.
Wednesday, January 11, 2017
Goodyear v. Haeger oral argument
Here, I want to highlight (as I do in the SCOTUSBlog piece) the analogy offered by Haeger's counsel between litigation and a train. He explains that most sanctionable conduct merely delays the train or causes a detour, although the train still arrives at the intended station. Here, the “train jumped track and it went in an entirely wrong direction.”
But does a train continue moving in any direction, right or wrong, once it jumps the tracks? Isn't it more like the beginning of The Fugitive?
Monday, January 09, 2017
Shorter White v. Pauly
Unless an officer walks up to an unarmed man and shoots him in the head while shouting that he knows the victim was not a threat, stop denying police officers summary judgment in excessive force cases.
Dialysis Care's Tangled Web
Thank you to PrawfsBlawg for the opportunity to guest blog this month.
Christmas Day was the perfect day for the New York Times to publish its article on interesting goings on at The American Kidney Fund, one of the largest charities in the United States. Why? Well, Christmas Day is usually a slow news day and even trying to understand how dialysis care is funded for Americans is a slow read. It may be that all health insurance topics that span government-funded insurance as well as commercial insurance in the U.S. are a slow read. This is because our health insurance systems are complex but also because our health insurance systems are under-discussed.
Renal failure patients have been a special disease group under Medicare since 1972, when Congress extended Medicare coverage to people of any age with kidney failure. The "kidney entitlement" (as it is sometimes known) is distinctive in this regard. The story of the movement of dialysis from experimental to medical treatment, the rise of the dialysis industry, and the sympathetic face of end stage renal failure patients all played a role in the dance of this legislation. Indeed, a dialysis machine was reportedly brought to a Congressional hearing, though the account that a patient was actually dialyzed before members of Congress may be the stuff of urban legend. The early 1970's was also a time of hope for comprehensive national health care reform, with the kidney entitlement seen by some as a stop-gap measure, not as an exercise in exceptionalism. For all these reasons -- and more -- we saw the development of the extension of Medicare coverage for dialysis to a disease group that included many who would formerly have been outside of the Medicare tent.
Dialysis evolved as did the dialysis industry. The nonprofit American Kidney Fund, from modest beginnings as a fundraising drive for a bankrupt dialysis patient, grew into a reportedly majority dialysis industry funded charity whose premium support program allowed the American Kidney Fund, federal health care fraud and abuse law notwithstanding, to expand the relationship between the dialysis industry and the charity through collection and distribution of funds in the form of health insurance premium payment, including Medicare and commercial insurance premium payment for end renal failure patients.
In health care delivery, payer mix is all. A health care delivery entity's business model necessarily revolves around a favorable payer mix. Fresnius and DaVita, for example, were reported to receive $300,000 per patient per year from the Oregon state insurance pool for a year of dialysis treatment in 2011 as compared with the $82,000 they were reportedly able to bill Medicare in the same year. Now, allegations have been made that the American Kidney Fund excludes applicants from health care entities that do not contribute to the Fund, though this would be an apparent violation of the terms under which the premium support program was found not to violate health care fraud and abuse law.
In addition, litigation by United Health tips us off to the fact that the dialysis industry may -- in light of the extraordinary reimbursement differentials -- have decided that the best use of premium support funds was to enroll renal failure patients in commercial insurance. In addition, it has historically been the policy of the American Kidney Fund to terminate all premium support if a patient pursues transplant and dialysis terminates.
In this tangled story of dialysis treatment we have the larger American health care system's incentives written on a grain of sand: each insurer determined to push risk and cost on its competitors; each provider entity determined to retain its market share and maximize reimbursement rates; and a charity program perhaps operating as a demand-enhancement reimbursement maintenance control center.
Less Hollow Hope on the defensive side
Judicial appointments always seem to be less of a high agenda item for Democrats than for Republicans. At the voting level, polls show that voters who identified the composition of SCOTUS and the federal courts as the most or a very important issue broke strongly for Trump.*
[*] On an AALS panel about the presidential transition, Steven Calabresi argued that this means Trump's promises about judicial appointments, especially to SCOTUS, are the equivalent of Bush I's "read my lips," to which Republican voters will hold him. If Calabresi is right, this will affect the result of any systematic Democratic efforts to oppose any Trump nominee.
At the presidential level, Reagan appointed 50 more judges in his eight years than Obama did in his, and Obama leaves office with about twice as many judicial vacancies (more than 100) than Bush II left in 2009. (So however Obama transformed the federal judiciary likely will be undone by Trump, who has a significant number of lower-court vacancies to fill immediately, along with the Scalia seat). Although Obama nominated and praised Merrick Garland and did speak about the waiting nomination, he did not do it so loudly or so often to keep the issue from largely disappearing from the news. I do not know if more political heat would have changed anything--if Republican voters genuinely care more about the courts than Democratic voters, there was no constituency to force Republican hands on this.*
[*] Which may offer another reason that Democratic attempts to hold the Scalia seat open indefinitely will fail--the Republican voters outraged at the obstruction will be louder and more numerous than were the Democratic voters outraged over Garland.
Some of Obama's less-than-complete success is due to Republican obstruction and that the Republican-controlled Senate has confirmed virtually no nominees during the past two years. But Obama had six years of a Democratic Senate, the last two of those without a filibuster on lower-court nominees (although still blue slips), which might have allowed him to push through a bigger flood of lower-court judges into those vacancies, had he been so inclined. (And this is without getting into judicial ideology, where Obama's (and Bill Clinton's) nominees never appear to be as liberal as Bush's (and likely Trump's) have been conservative).
But Obama never seemed so inclined, at least not outwardly or forcefully. One possible explanation is that Obama adheres to the arguments of University of Chicago political scientist Gerald Rosenberg in The Hollow Hope that the courts are not effective agents of social and political change and that progressive activists must focus more on the political branches. (The greatest social-change success came during the 1960s, the one time in history when the courts and Congress were on the same page). Obama is, at heart, a believer in political activism on the ground, back to his days as a community organizer, rather than in the courts. And that seems to have affected his approach to filling judgeships.
But there is a defensive component to our hopes for the courts. Courts are essential to protect what activists achieve in the democratic process. Or, stated, differently, they offer the other side a great way to stop or reverse social change that comes from the political branches. Packing the courts with Democratic nominees is essential to secure those political-branch successes, even if the courts should not be the primary target for establishing rights in the first place.
And it is not only about protecting statutes and regulations from declarations of unconstitutionality.*
[*] See Voting Rights Act or the Medicaid expansion or DAPA. Or, historically, everything between 1933 and 1937. Or imagine if a Republican-controlled Court had come out the other way on the constitutionality of public-accommodations provisions.
It is, perhaps more importantly, about protecting against judicial interpretation and construction that sharply narrow the scope of those statutes and regs, thereby undermining their impact and social-change purposes.*
[*] See, e.g., restrictive interpretations of Title VII and other employment discrimination laws.
And we can add to that sub-constitutional procedural decisions closing the courthouse doors to those who would seek to avail themselves of statutory and constitutional rights.
[*] See Twiqbal or recent restrictions on class actions.
That is what Republicans achieve by dominating the courts and by making that dominance a central goal of every presidential administration. And what Democrats lose by not. The power to reverse that trend is what was lost by the failed Garland nomination, the failed Clinton candidacy,the failure of Obama to push more on judges, especially in his first six years, and the substantial number of vacancies he leaves to be filled by President Trump. (I recognize this reflects the "Disease of More": Obama achieved a lot with respect to the federal judiciary--it just never feels like enough).
And to put on a candidly partisan hat for a moment (remember, the banner says "almost always"): This, more than the probable loss of Roe as a constitutional doctrine or the loss of an opportunity to finally define and implement a vigorous liberal constitutionalism, is what saddened me most about the results of this election.
Saturday, January 07, 2017
Elevating judges during recess
Based on comments to my earlier post and some emails, the key question on elevation and resignation is more specific: Is a judge elevated on a recess appointment differently situated than a judge elevated through the ordinary appointment process.
It seems to me that a recess appointment is substantively the same as a regular appointment, but the process is flipped--the nominee assumes the office first and then the Senate confirms (or does not confirm). But during the recess-appointment period (the period between the appointment and Senate confirmation), the officer is in all senses identical to someone appointed through the regular process, fully occupying that office and exercising its powers to the same extent. That being the case, if acceptance of a regular appointment accompanies a resignation from the lower-court (however that happens and pursuant to whatever legal source), so should acceptance of a recess appointment.
The counter argument must be that the trigger for resignation of a lower-court judgeship (again, whatever the source of that requirement) remains Senate confirmation and acceptance of the commission to the higher court. On this view, a recess appointment is not substantively the same as appointment following Senate confirmation--it merely ensures that the work of the office gets done until the Senate returns and confirms, but does not alone alone fill the vacancy, impose the resignation obligation, or create the new vacancy on the lower court.
But that means Obama erred in not making a recess appointment. I had argued that it was not worth eleven months of Justice Garland (the longest he would have been able to serve, until December 2017) if the end result would be Garland on neither SCOTUS nor the DC Circuit. But my reasoning was that Obama would not want to create the lower-court vacancy and Garland is too young to want to no longer be a judge. But my conclusion rested on the premise that Garland would have been unable to return to the DC Circuit when the recess appointment ended. But if Garland's DC Circuit seat would have been waiting for him next December, then Obama had nothing to lose and everything to gain from this move.
Friday, January 06, 2017
Elevating judges and creating vacancies
On my prior post about the expired Garland nomination and the Scalia vacancy, my former professor Steve Lubet questioned why a Garland recess appointment would have created a vacancy on the D.C. Circuit. After much research, I am unable to find a provision expressly barring judges from simultaneously holding seats on two courts or declaring that accepting a seat on a higher court constitutes a resignation from the lower court. It simply is and seems to always have been.
A Congressional Research Service report from earlier this year declares, without citation, "[a] judicial vacancy is created by an incumbent judge['s] . . . elevation to a higher court." When nominating lower-court judges for a higher court, presidents since Washington have contemporaneously nominated someone to the lower court, although the nomination is contingent on the elevated judge being confirmed; if she is not, the contingent nomination is withdrawn because there no longer is a vacancy. And there is extensive political science and historical literature about Presidents elevating from the lower courts precisely because it allows them to fill two vacancies--the existing one on the higher court and the one they create on the lower court by moving a judge from the lower to the higher court.
But I cannot find a statutory basis for this. The relevant provisions regarding appointments or tenure make no mention of and none of the literature cites to anything. The assumption underlying the appointment process, seemingly for everyone, is (and always has been) that elevation means resignation and creates that new vacancy.
If anyone knows a basis for this that I am missing, please share in the comments.
Tuesday, January 03, 2017
Goodyear v. Haeger argument preview
At SCOTUBlog, I have a preview of next week's argument in Goodyear Tire & Rubber Co. v. Haeger, considering the causation requirements for a court to impose bad-conduct discovery sanctions (in the form of attorney's fees) under its inherent powers.
Sunday, January 01, 2017
Ode to a District Judge
The Chief Justice's 2016 Year-End Report on the Federal Judiciary is an extend paean to federal district judges and the yeoman work they do as judges, administrators, and managers,* particularly in working with the 2015 discovery amendments and being more actively engaged in managing dockets and individual cases. As I did last year, I will assign the report for the first day of Civ Pro next week, because it provides a nice overview of the focus of that class.
[*] And lumberjacks. As in a "lumberjack saves time when he takes the time to sharpen his ax," just as district judges save time when they are more engaged in case management. As I say, he cannot help himself.
A couple notable omissions. Roberts mentions active and senior judges, but not magistrates, who in many districts deal with discovery and case management, at least on the first pass. The Report thus downplays the extent to which much of this important work is delegated to judicial officers lacking Article III protections, with all the concerns that might raise. Similarly, it mentions settlement as a benefit of skillful exercise of docket administration and case management, but does not mention that this often goes through ADR processes, again through bodies lacking Article III protections. Finally, the Report's tone of respect for the work of trial-court judges stands in stark contrast to the late Justice Scalia's question during oral argument in Iqbal. In challenging the argument that careful case management and control over discovery was the better alternative to a heightened pleading standard, Scalia said "well, that's lovely. The ability of the Attorney General and the Director of the FBI to do their jobs without having to litigate personal liability is dependent on the discretionary decision of a single district judge." The last two Annual Reports reflect a very different attitude towards the work of district judges. Of course, one could read this (as some did the 2015 Report) as Roberts nudging district court judges to his preferred exercise of discretion--more restrictive discovery and more early case resolution.
Speaking of Justice Scalia, it is interesting that Roberts did not mention his death and the political games surrounding that vacancy. It seems that Roberts is not going to follow the paths of Chief Justices Taft or Hughes in jumping into expressly political fights, even where the work and functioning of the Court is implicated by the actions of the other branches.
Thursday, December 29, 2016
Give us your huddled victims of flying scales
In the category of things I should have known but just learned: Justice Cardozo and Emma Lazarus were first cousins. Esther Nathan and Rebecca Nathan were sisters, Esther older by nine years. Esther married Moses Lazarus and begat Emma; Rebecca married Albert Cardozo and begat Benjamin. That piece of the family tree (from a family tree of the earliest Jewish families in America at the National Museum of American Jewish History) is here (forgive it turning sideways).
Wednesday, December 21, 2016
Ahead and behind in the Merrick Garland debacle
Merrick Garland will not be on the Supreme Court. Garland has resumed participating in cases on the D.C. Circuit (for the past 240 days, he had only been performing his administrative chief-judge tasks) and is scheduled to sit on a panel in mid-January. Some still hold out hope that President Obama will surprise everyone and make a recess appointment on January 3. But as I wrote previously: 1) that is not Obama's style and 2) because the Republican Senate will not affirm the appointment, it would end at the close of the next session of Congress in December 2017, leaving Garland without a job (since he will have given up his D.C. Circuit seat) at only 65 years old, a deal I do not see him taking. We might add as a # 3 that if Obama did this, Congress could enact a law in January declaring the first session of the 115th Congress over immediately, thereby terminating Garland's recess appointment immediately.
For now, I want to consider who within or around the Court comes out ahead and who behind in this debacle.
Obviously, Garland is worst off, as he never will take a seat on the Court despite being as qualified as any recent nominee. The other person who is worse off is Justice Kagan, whose role on the Court has changed, perhaps for the whole of her tenure. She is now the best, most engaging writer on the Court. Given the opportunity to work with a liberal majority with Breyer or Garland as the Court's median, Kagan might have assumed the William Brennan role of the intellectual heart of the liberal majority, crafting doctrine and decisions to hold that majority together and perhaps even appeal to the rest of the Court more broadly. Particularly once Justice Ginsburg left the Court, Kagan might have been the intellectual center of a liberal Court.
The obvious person to come out ahead is whoever Donald Trump puts on the Court, who otherwise would not have gotten there. The other is Chief Justice Roberts. He avoids the prospect of being a Chief regularly in the minority and assigning dissents rather than majority opinions (the scramble to find an historical example of a Chief in that situation landed on Charles Evans Hughes during the New Deal, although he was not a consistent vote in favor of the validity of New Deal legislation). Or the alternative prospect of regularly moderating his own constitutional views to join the majority in order to retain the assignment power.
Monday, December 19, 2016
Donald Trump plans to maintain a private security detail as President on top of his secret service team. If recent history is any guide, this group will overstep and violate someone's right. So: Do members of the detail act under color of federal law for constitutional purposes and, relatedly, are they subject to Bivens liability? And, if so, are they entitled to qualified immunity?
As to the first: One possible test is traditional public function, as protecting the President has, since 1901, been the exclusive domain of the Secret Service. A second is close nexus, which may depend on how much connection and collaboration there is between the private detail and the Secret Service or other White House and executive-branch personnel. A third possibility may depend on who is paying this detail--Trump himself or the government. Trump paid for the force during the campaign, much of it from campaign contributions; no word on whether that arrangement will continue. The trickier part may be Minneci v. Pollard, which could be read to reject "extending" Bivens to private actors, especially where state tort remedies (here, e.g., for assault) are available. At some level, this raises a situation of under-color-by-necessity: It would be intolerable for the President to be able to surround himself with a private security/intelligence detail operating above constitutional limitations.
As to the second: Filarsky v. Delia held that a private person hired by the government to perform public functions can claim qualified immunity. From this, it might follow that these private security officers enjoy the same immunity as federal agents (although it again may depend on who is paying and supervising them).
Update: Keith Schiller, a retired NYC cop and Navy veteran who heads Trump's security detail, will be named a personal White House aide. So that should clarify things: Schiller, as a federal employee, acts under color. And his close direction of private security personnel should be sufficient to place them under color.
Saturday, December 17, 2016
What is Obama supposed to do?
Many on the left are angry with Obama for not doing more, or at least shouting more, about the dangers of the looming Donald Trump presidency. The prevailing view is that this is not the time for Obama's "everyone chill the fuck out--I got this" style.
But what, exactly, should he be doing? One of the limitations of the office is that the current office-holder must ensure the peaceful transfer of executive power--screaming about the threat Trump poses to the nation and the world (or at least some parts of it) is not an option for someone in that office.* Nothing Obama does now can stop a Trump presidency or limit the power that Trump will wield as President (a la North Carolina). Perhaps if he had a Democratic Senate, he could at least put Merrick Garland on the Supreme Court (of course, he had a Democratic Senate, Garland already would be on the Supreme Court).
[*] There are some holding out hope that Obama will do that when the current Senate unavoidably ends on January 3. Putting aside that it is never been Obama's style. Because such an appointment would expire in December 2017, it would require Garland to give up being a judge for one year on SCOTUS. At 64, I do not believe he would make that deal.
Obama's power runs out on January 20 and there is nothing he can do to change that fact. Perhaps he believes that reminding everyone (including Trump) that actual power tends to sober people up is his best move. And if he is wrong about that, there is nothing he can do about it on December 16. The interesting question is whether Obama takes on an active opposition role as an ex-President; that is generally not done, even across party lines, but perhaps this will be the extraordinary exception. As for what he is doing about Russian interference, I assume that is happening behind the scenes.
Many believe that the transition from election to inauguration of roughly ten weeks is too long. Usually the complaint is raised because it delays the new President coming in during times of crisis, leaving a lame duck who cannot (or should not be the one to try) to handle the crisis. These complaints prompted passage of the 20th Amendment, which took effect in early 1933 during one of the two most obvious illustrations of the problem. Similar concerns were raised in 2008-09, with the economy cratering in fall 2008. Perhaps we now are seeing the flipside of the problem of the long transition--when there is nothing we can do to stop what looks like it is going to be a problematic presidency, the long delay in starting that presidency only exacerbates the fear and speculation. Let's get on with seeing what is going to happen and what we actually can do to stop the worst of it.
Think of it as the political version of ripping the band-aid off.
Tuesday, December 13, 2016
Pennsylvania recount rejected
On Monday, District Judge Diamond of the Eastern District of Pennsylvania dismissed the action filed by Jill Stein seeking a recount in Pennsylvania. (H/T: Arthur Hellman of Pitt, who recommends it as a possible Fed Courts final). The court found Stein and a voter co-plaintiff lacked standing and also dismissed on both Younger and Rooker-Feldman grounds. Some thoughts after the jump, but with one umbrella conclusion: This is a nice illustration of courts using jurisdiction and justiciability, mostly incorrectly, to avoid the merits of a dicey case.1) Stein lacked standing because she would not win even if a recount were ordered, meaning she cannot show an injury-in-fact or redressability. The voter lacked standing because he could not show that his vote was hacked or improperly tabulated. The possibility of hacking because voting machines were "hackable" was too speculative to support an injury.
The surprising piece of this was the court's unwillingness, without much explanation, to accord Stein third-party standing to sue on behalf of voters, as a district court in Florida did during the campaign. Campaigns and candidates often are accorded third-party standing to challenge state laws impinging on the right of members of the public to vote. But the court dismissed such standing as a plaintiff asserting someone else's generalized grievance. It seems the court could not get past the fact that Stein could not win Pennsylvania, no matter what, and thus was not a "proper" plaintiff. So, absent a change in result to favor the named plaintiff, any violations of the rights of individual voters did not matter. But I wonder if future candidates will now have to show some chance of success in establishing standing.
2) The Rooker-Feldman analysis was problematic. Stein and the voters initially filed an action in state court seeking a recount; they voluntarily withdrew that action when the court, pursuant to state law, required them to post a $ 1 million bond. In federal court, plaintiffs acknowledged that the state-court decision was effectively a decision not to allow the recount. But the federal action did not challenge or seek review of the state-court decision to require the bond; it challenged the state law requiring such a bond in any court, along with a number of other provisions of state election law. The plaintiffs complained of the statutory bond requirement, not the state-court decision imposing that bond. And the remedy they sought--a declaration of unconstitutionality of various state laws and a recount--was not a result of the state-court judgment. That distinction--between a challenge to the state decision enforcing a law and a challenge to the validity of the law itself--existed in Feldman itself--the Court held that jurisdiction was lacking over the challenge to the bar-admission decision, but not to the underlying bar-admission regulation.
3) The Younger analysis was flat-out wrong. The court dutifully recited the three-prong test from Middlesex County, but it ignored Sprint, which held that Younger required abstention in deference to only three types of cases: 1) pending criminal proceedings; 2) pending quasi-criminal proceedings initiated by the state (e.g., state public nuisance lawsuits); and 3) "certain orders . . . uniquely in furtherance of the state courts' ability to perform their judicial functions" (e.g., contempt orders). The pending proceedings were actions before several state trial courts and county election boards. None of these was initiated by the state, none was criminal or quasi-criminal, and none involved state efforts to enforce its own laws. And the third category does not fit, because a federal injunction against the enforcement of the challenged state laws would not interfere with the ability of state courts to function.
4) The court ignored the two better arguments for getting rid of the case. As to the bond order, this seems to be simply a matter of preclusion--plaintiffs bringing in federal court the same claims they brought (and had rejected) in state court. I do not know if preclusion was warranted, but that should have been the focus of the analysis. But that does not reflect a jurisdictional defect. And recent SCOTUS decisions have explicitly urged courts not to conflate the jurisdictional defects involved with Rooker-Feldman with common law preclusion limitations on relitigation.
As to the still-pending state actions, Colorado River abstention exists for this very situation--concurrent and parallel proceedings. True, Colorado makes clear that abstention on these grounds is the exception rather than the rule and the typical approach to parallel state and federal proceedings is to let both actions go and give preclusive effect to whichever finishes first. Still, Judge Diamond seemed pretty determined to abstain--it would have been better to abstain on grounds that made sense.
The downside of Bartnicki
In a short post, Slate's Ben Mathis-Lilly considers that journalists (including himself) abetted (likely) Russian interference with the presidential election by publishing leaked information. All adhered to the legal and ethical proposition that journalists can, should, and arguably must publish truthful, lawfully obtained information on a matter of public concern. And those principles do not distinguish among information leaked by an idealist whistle-blower, a bureaucrat with an axe to grind, or a hostile foreign government--indeed, Mathis-Lilly questions whether it is possible to draw such lines.
Monday, December 12, 2016
Defining terms and talkng past one another
A great frustration in the conversation (especially in the press) over torture during the George W. Bush years was the failure to agree on terms or to discuss the disagreement over terms. Bush declared that the United States does not torture and was telling the truth--the U.S. did not torture, as he defined torture. But what no one mentioned was that Bush defined torture to not include, for example, waterboarding. So the conversation never advanced.
It appears we are about to repeat the pattern in the Trump years. Various Republicans (Mitch McConnell, John Bolton, the like # 2 at State, and even Trump himself) present the reasonable (and necessary) position that Russian interference with the election will not be tolerated and will be dealt with swiftly and harshly. Great. Except no Republican--certainly not Trump--is ever going to be convinced there is sufficient evidence that the Russians interfere, always insisting that we just don't know (they seem more likely to insist it was the Obama administration). And so the conversation, and any investigation, will never advance.