Wednesday, March 14, 2018

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

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

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

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

Wednesday, February 28, 2018

Judicial Nomination Cascades

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

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

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

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

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

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

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

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

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

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

Tuesday, February 27, 2018

The irrrepressible myth of Patchak v. Zinke

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

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

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

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

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

Thursday, February 22, 2018

Tinker wept

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

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

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

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

Tuesday, February 13, 2018

Counting on the Low Information Voter

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

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

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

(Cross-posted at The Interdependent Third Branch.)

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

Wednesday, February 07, 2018

Florida bans counter-speech, too

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

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

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

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

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

Thursday, February 01, 2018

Universal injunctions at the state level (Updated)

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

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

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

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

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

State-created danger in the Nassar case?

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

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

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

A competing voice on universal injunctions

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

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

Saturday, January 27, 2018

Congress makes procedure

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


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


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

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

Thursday, January 25, 2018

An old solution that misses the problem

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

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

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

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

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

Saturday, January 20, 2018

Cert granted in travel ban case

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

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

Thursday, January 18, 2018

National injunctions on NPR

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

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

Speaking truth to power v. exercising actual power

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

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

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

Sunday, January 14, 2018

Judging balls and strikes in Husted

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

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

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

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

* * *

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

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

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

Tuesday, January 09, 2018

Argument preview: Hall v. Hall (Updated)

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

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

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

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

Posted by Howard Wasserman on January 9, 2018 at 11:15 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, January 05, 2018

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

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

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

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

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

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

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

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

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

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


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

"Fire and Fury" is not The Pentagon Papers

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

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

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

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

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

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

Wednesday, January 03, 2018

Common theme: Insanity swirls around this administration

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

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

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

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

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

Tuesday, January 02, 2018

Indiana tries to stop NFL kneeling--and would fail

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

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

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

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

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

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

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

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

Sunday, December 31, 2017

2017 Year-End Report of the Federal Judiciary

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

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

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

Thursday, December 21, 2017

Zervos v. Trump, in federal or state court

Richard Primus discusses an amicus brief he wrote in Zervos v. Trump, the defamation lawsuit filed by a former Apprentice contestant in New York state court (Zervos claims Trump sexually assaulted her and that Trump's denials effectively defamed her as a liar). Trump has moved to dismiss, arguing that a sitting President enjoys immunity from suit in state court (stated differently, Clinton v. Jones applies only in federal court). Primus's brief (written for Steven Burbank, Richard Parker, and Lucas Powe) argues that state and federal courts are no different for purposes of the President's amenability to sue.

The existence of presidential immunity does not matter in this case, because Zervos will refile in federal court on diversity jurisdiction (Zervos is from California, Trump is probably from New York, but definitely someplace other than California). The surprise when Zervos filed suit was that she had filed in state court (in Trump's home state, no less) rather than federal court. It might have been a fear of anti-plaintiff federal procedure and a desire to take extensive (embarrassing) discovery that she is more likely to get in state court than federal court. But the same law applies and the jury pool in the Southern District of New York is the same (and as anti-Trump) as the County of New York, so it is not obvious Zervos is better off in state court than federal court.

From the other side, though, it is worth wondering why Trump is bothering to raise immunity in this case, because it will not end or even delay the lawsuit. Does he so badly want to be in federal court? Is he trying to protect the presidency apart from his personal interests (something he has not been inclined to do)? Is he trying to make Zervos work for it?

Posted by Howard Wasserman on December 21, 2017 at 10:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, December 20, 2017

Sexualized Misconduct

Michael Dorf has two posts on the Alex Kozinski saga. In discussing the various allegations against the now-former judge, Dorf uses the term "sexualized misconduct" to describe some of Kozinski alleged behavior. That term captures actions outside of employment (such as his comments and unwanted touching of women during visits to law schools) and conduct of a sexual nature that does not constitute harassment or discrimination. I want to consider the latter and figure out whether it exists.

Consider some of the things Kozinksi and others have been accused of doing: Showing or talking about porn to female clerks and employees, talking about sex and one's own sexual activity (although without explicitly propositioning the listener), asking about the listener's sexual activity (although without explicitly propositioning the listener), telling sexually explicit stories and jokes that are not at the expense of the listening employee.

This behavior is boorish and obnoxious. It is "sexualized misconduct"--misconduct that involves sex. But is it unlawful discrimination/harassment/hostile environment "because of sex"--what Title VII requires by its terms and the 14th Amendment requires by interpretation? And when does discussion of sexual things cross the line into unlawfulness? Are all discussions of anything sexual, at least between male supervisors and female employees, per se hostile environment? Or (as one law prof correspondent suggested) is it evidence of a hostile environment, but requiring a broader contextual judgment? Is sex and sexual activity different than politics or sports, so women are going to be disadvantaged by such talk? On one hand, many of the sexual conversations objectify women in some way (Kozinski's "knock chart," for example); so even if women are as willing and able in the abstract to talk about sex as men, they remain differently situated for purposes of such conversations. On one other hand, to say yes relies on stereotypes and assumptions about women and how they react to discussions of sex, sexuality, and sexual activity compared with men.

So how does or should the law treat sexualized misconduct in the workplace that does not involve unwanted touching or propositions? Is everything sexual off-limits and should it be?

Note some broader consequences if the answer to that question is no. It creates a divide between elite high-profile professions and workplaces and everyone else. Even if not prohibited by Title VII, sexualized misconduct disgusts the public and creates sufficient anger and backlash to drive a judge from the bench* or a television personality from the airwaves.** But it is not going to effect the manager at Wal Mart, whose misconduct would be outside the reach of Title VII but outside the public eye (or public interest) as to cause him to lose his job.

[*] Yes, Kozinski allegedly did far more than talk about sexual activity, so this is not the only reason he was driven from the bench.

[**] Ditto.

Of course, that divide exists even if sexualized misconduct is because of sex and even as to conduct that moves into propositions and touching. Plaintiffs must show that harassment was "severe and pervasive" as to change the conditions of employment. Susan Estrich's defense of Kozinski warned about "bringing men down for conduct that, even if true, does not rise to the level of harassment," which I (perhaps in a forgiving mood) interpret as referring to conduct that is not sufficiently severe and pervasive to be a violation of Title VII or the Constitution. The public becomes disgusted and angry about misbehavior that might not rise to the level of a violation, driving out those in high-profile positions. Meanwhile, the manager at Wal Mart gets away with conduct that may be far worse because of difficulties of proof and the imbalances in the legal system. One way of thinking about this is that the public is holding those in positions of power to higher standards--it is not enough to refrain from unlawful conduct, they also should refrain from disgusting, boorish, and obnoxious conduct (at least of a sexual nature). Another way is that the law, as it is being applied at all levels, has not caught up with where public attitudes are moving (at least for the moment).

Posted by Howard Wasserman on December 20, 2017 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Monday, December 18, 2017

Petersen withdraws

Story here.I am happy to be wrong (if surprised) about that one.

Stories about the signs of his lacked of qualification have focused on his lack of trial experience and have quoted defenders rejecting the premise that experience as a trial lawyer is a "precondition" to being a district judge. But as I argued, his lack of trial or litigation experience was not the real problem (although commenters here have disagreed). The problems were his lack of knowledge of basic legal concepts and his arrogant believe that he did not need that legal knowledge. Petersen tried to minimize this as his "worst two minutes" that should not have outweighed his 20 years of public service. But those worst two minutes revealed so much (about his legal knowledge or his character) that the balance seems appropriate.

Posted by Howard Wasserman on December 18, 2017 at 07:19 PM in Howard Wasserman, Law and Politics | Permalink | Comments (13)

Sunday, December 17, 2017

Glossary of Judicial Terms

From Garrett Epps in The Atlantic.

Posted by Howard Wasserman on December 17, 2017 at 10:27 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, December 15, 2017

About that Judiciary Committte Hearing

Matthew Spencer Petersen, an FEC commissioner and a nominee to the United States District Court for the District of Columbia, had a rough time at his confirmation hearing Wednesday when he was unable to answer probing legal questions requiring nuanced analysis (asked by Republican Sen. John Kennedy). These included "Do you know what a motion in limine is," "Do you know what the Younger abstention doctrine is," and "How about the Pullman abstention doctrine."* Kennedy also asked Petersen if he had "read" the FRCP and FRE.

[*] I am proud to say that I teach each of those things in my courses. My new pitch to upper-level students during course-selection time will be "If you want to be a federal judge, take my courses."

A couple of thoughts about the entire thing:

1) Kennedy began by asking the full panel of Petersen and four other nominees whether any had tried cases to verdict or taken depositions. The "never tried a case" thing has been a recurring theme with several of Trump's district-court nominees, but I am not a fan. There is benefit to having judges from various backgrounds on all courts, including legislative-branch and non-judicial executive-branch experience (which would not allow a nominee to have tried or litigated a case). That a district-court judge has never litigated a case (not "tried," since most cases do not go to trial) should not be disqualifying.

2) Petersen sort-of tried the latter move by describing his role in supervising the FEC attorneys who litigate on behalf of the FEC and who thus deal with the FRE and FRCP and motions before judges--"no, I have not argued the motion, but I have overseen the lawyers who do and I am familiar with this work." But that set him up for the questions revealing he did not know anything about what these lawyers do.

3) The problem is that Petersen apparently had never heard of basic legal concepts. It was not that he could not ask answer questions about their appropriate scope or how they should apply. He could not give basic definitions or describe the basic ideas behind these doctrines. The real revelation here was less Petersen's unfitness (although he is unfit), but his arrogance. He was so certain he will be confirmed and that this was a dog-and-pony formality that he did not take two hours to look up the basic definition of legal issues or become less-than-minimally conversant about basic procedural issues that he hopes to spend the next forty years dealing with. He believed he could walk in, sit through the couple hours before the committee members, and be home free to a lifetime appointment. And that may be more disqualifying that not knowing basic legal principles. Watching Petersen, he did not appear embarrassed or bothered or ashamed by the spectacle.

4) No one "reads" the FRCP or the FRE, so the question itself was bad. Were Petersen smarter, he might have responded "I have not read them like a book, because that is now how one deals with a code. But I am happy to answer questions about specific rules or overarching ideas contained within the FRCP." That might have stopped Kennedy in his tracks (see below). But Petersen could not have answered those next-level questions, so this option was not open to him.

5) [Added thought]: The questions Kennedy asked were effective in making Petersen look stupid. But the questions could not have shown much about Petersen's qualifications, regardless of his answers. He would not have shown himself fit by saying "A motion in limine (Latin: "at the start", literally, "on the threshold") (Latin pronunciation: [ɪn ˈliːmɪˌne] in LEE-min-ay) is a motion, discussed outside the presence of the jury, to request that certain testimony be excluded" or "Younger abstention, named for Younger v. Harris, 401 U.S. 37 (1971), is less permissive to the federal courts, barring them from hearing civil rights tort claims brought by a person who is currently being prosecuted for a matter arising from that claim in state court" (those are cut from the first sentences of the Wikipedia definitions). Yet he did not do that basic work (see # 3).

6) Am I alone in doubting that Sen. Kennedy knows what Younger or Pullman is? Or, at least, that he would be unable to have asked more than "have you heard of it" questions?

7) Petersen will be confirmed. Kennedy will vote in favor, both in committee and on the floor. So I will not even be able to use this as a sales pitch, because the students can always say "well, Matthew Petersen is on the D.D.C. and he doesn't know Younger, so why should I."

8) Here is the video, if you have not seen it. Regardless of outcome, it is worth watching



Posted by Howard Wasserman on December 15, 2017 at 10:47 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (13)

Sunday, December 10, 2017

Nazis and free speech

Apropos of nothing: Nazis are the focal point for all sides in the debate over free speech. Those seeking a narrower approach to free speech want a rule that specifically and explicitly excludes actual Nazis from First Amendment protection; consider one comment to this post and the repeated  position of Elie Mystal in this RadioLab "More Perfect" Debate. Those who defend the current expansive understanding of free speech consider protection for Nazis, especially in Skokie, as a high point in the fight for free speech.

No conclusion to be drawn; just an observation.

Posted by Howard Wasserman on December 10, 2017 at 03:10 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, December 01, 2017

Drifting justices

Richard Primus takes down the arguments that Chief Justice Roberts has become (or always has been) a secret liberal and has "moved left." Primus argues that it is not Roberts who has changed but the questions presented to the Court--the questions have moved right, shifting the conclusions Roberts reaches and the Justices with whom he aligns, even without him have changed. And none of this could have been accounted for when Roberts was being vetted, so this should not be regarded as a case of failed vetting.

This is an intriguing argument to which I would add a few thoughts.

1) On the vetting point, Primus focuses on Roberts twice rejecting aggressive conservative theories surrounding ACA, which were not on Republicans' minds when vetting Roberts in 2005 (when the individual mandate was a Republican idea). Roberts has voted the straight conservative line on those issues for which he would have been vetted--reproductive freedom, religious liberty, affirmative action, same-sex marriage, and voting rights. Put differently, while the questions presented have moved rightward on these issues, they have not reached the point of outflanking Roberts to the right.

2) Primus' framing offers a new way of thinking about Justice Frankfurter, where the questions presented moved leftward, leaving him straddling, if not dissenting, on many. For Frankfurter, it was a shift of constitutional issues--from the scope of federal power to individual rights. But the basic idea of the legal questions moving and the Justice staying in place holds.

Posted by Howard Wasserman on December 1, 2017 at 09:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (21)

Wednesday, November 29, 2017

Carpenter – Post-Oral Argument Thoughts

The following guest post is by past guest-Prawf Andrew Ferguson (UDC).

Today, the Supreme Court heard oral arguments on the much awaited Fourth Amendment case of the term – Carpenter v. United States.  Fourth Amendment nerds from all over the country flocked to the Supreme Court like it was a constitutional solar eclipse. 

Carpenter involves the warrantless collection of historic cell phone records for location information covering 127 days.  Suspected of being involved in a series of armed robberies (ironically enough of cell phone stores), police used Timothy Carpenter’s cell phone location data to tie him to the crimes and obtain a conviction.  Carpenter appealed arguing that obtaining this information without a warrant violated his Fourth Amendment rights.

The reason for the buzz of interest is because the case presents a real legal puzzle.  In a world where almost all of our digital devices work through third parties, the idea that law enforcement can simply obtain the data from our smart devices without a warrant means that our modern culture of self-surveillance has also potentially created a governmental surveillance state.  At the same time, the third party records in Carpenter were owned, controlled, and used by the phone companies, raising questions of who owns this data, who controls it, and does sharing it for one purpose also mean sharing it for all other purposes including government investigation? 

Much (almost instant) commentary has already been posted on this case, but two things are clear: first, the stakes for the future of the Fourth Amendment are quite high and demand an answer; and second, no Justice or advocate has a completely coherent answer to how the third party doctrine should apply in the digital age.

As to the stakes – almost any digital device you can imagine connects to third party providers (and creates third party records) in order to make the magic of “smart” devices happen.  In an interconnected world filled with smartphones, smart cars, smart homes, and smart medical devices, ubiquitous communication by email, text, Tweet, or chat, you share your data with private companies.   In a world of data trails, you are a potential police target at all times.  Your smartphone, your smart car, your fitness band provide exact geo-locational clues to your whereabouts.  Your location is being tracked, and police have recognized the utility of this information to prove criminal acts and patterns.  Data trails provide a wealth of clues to past and present criminal activity

As to the debate in the high court, the Supreme Court was, perhaps not surprisingly, divided.  Questions of how to distinguish decades old precedent mixed with questions about new future-oriented technology.  Hypotheticals about modern subpoena power mixed with queries about the Writs of Assistance.  John Adams got a shout out.  So did Stephen Henderson’s idea of a Fourth Amendment time machine.  So did the empiricists’ amicus brief.  Again, for Fourth Amendment nerds it was a party. 

At least from the questions at oral argument, it can be intuited that some Justices wish to rethink the existing third party records doctrine, and others wish to see how to make it fit a digital age.  (As a disclosure, I helped author one of the amicus briefs on behalf of Mr. Carpenter).  Theories abounded, with no clear resolution of how the Justices would decide. 

But one question – signaling perhaps a new way of thinking about the Fourth Amendment – seemed to trouble at least a few members of the Court – namely what rights (property based or otherwise) do the consumers of smart devices have over their own data.  This is a huge question in the digital age.  How does the Fourth Amendment protect smart data?  How do we conceptualize who owns or controls the location data coming from Carpenter’s cell phone?  

Here is how Justice Gorsuch framed the question to Carpenter’s lawyer Nathan Wessler of the ACLU:

JUSTICE GORSUCH: Mr. Wessler, I'm sorry, one quick question. Focusing on the property-based approach, putting aside reasonable expectation for just a moment, what do we know about what state law would say about this information? So say -- say a thief broke into T Mobile, stole this information and sought to make economic value of it. Would you have a conversion -- would your client have a conversion claim, for example, under state law? Have you explored that at all?

Similar questions were put to the government’s advocate, Michael Dreeben:

JUSTICE GORSUCH: Mr. Dreeben, I'd like to -- I'd like to drill down on that and return to Justice Kagan's question. You know, the facts here wind up looking a lot like Jones.

One thing Jones taught us is -- and reminded us, really, is that the property-based approach to privacy also has to be considered, not just the reasonable expectation approach.

So, if we put aside the reasonable expectation approach for just a moment, Katz, Miller, Smith, and ask what is the property right here, let's say there is a property right. Let's say I have a property right in the conversion case I posited with your colleague. So that if someone were to steal my location information from T-Mobile I'd have a conversion claim, for example, against them for the economic value that was stolen.

Wouldn't that, therefore, be a search of my paper or effect under the property-based approach approved and reminded us in Jones?

            The question likely arises from a law review article written by William Baude and James Stern in the Harvard Law Review called The Positive Law Model of the Fourth Amendment and in Richard Re’s response essay, The Positive law Floor.  Both articles were cited in Carpenter’s brief and apparently caught the attention of the Court.  But, as anyone who has read those thoughtful pieces knows, positive law when it comes to the Fourth Amendment gets confusing and contested pretty quickly in practice.  It is not that the Positive Law model doesn’t offer some helpful ways to conceptualize the possible future rules, but it is hard to operationalize because positive law is messy. 

So, in the spirit of the ongoing debate, I offer my own thoughts to the intuition that Justice Gorsuch was reaching for – that there is some property-like element to our smart data – but with a different conceptual hook.  

My argument is not about positive law, but about the ownership/security interests we have in the data we create.  Smart data (including location data) is partially ours, and because it comes from our effects, we can claim some control over it.  The argument turns on the simple principle that the Fourth Amendment protects not simply the physical integrity of “persons, papers, homes, and effects” but also the information that comes from those constitutional derived sources (which would include Timothy Carpenter’s cell phone – as an effect – and its smart data).  As I wrote in The “Smart” Fourth Amendment:

The Fourth Amendment--at its core--protects “informational security” …. Underlying the protection of persons, papers, homes, and effects and behind the expectation of privacy lies a desire to guard personal information from government intrusion.

In other words, it is not the corporal person, alone, that deserves protection, but also the information about the person. It is not the sheaf of papers, but the revealing personal details in those words that matter. It is not the physical home that is as important as what happens in the home. …

In this longer work on how the Fourth Amendment should adapt to new “smart” technologies, I developed the idea of “informational security” the principle of why the Fourth Amendment should protect smart data, again similar to Justice Gorsuch’s intuition that there is some property/security right to control the locational information created by individuals through the use of smartphones.  [In the following excerpt from the article, I deleted the footnotes for easier reading.]


[I]nformational security is not an abstract concept, but arises from those particular constitutionally referenced sources. The Fourth Amendment secures someone, something, or somewhere. Information obtained from a constitutionally recognized source--effects, houses, persons, papers--gains derivative protection due to the source of the information. Focusing attention on a derivative constitutional source provides a useful and relatively easy guidepost to identify which types of information deserve constitutional protection.

Such derivative protection also covers information at some remove from the actual constitutionally protected interest. Charlie Katz's voice exited the closed glass door and was captured by the microphone taped on top of the phone booth. Antoine Jones's travel coordinates left the car and was captured by satellite technology. David Riley's smartphone communications data existed both on the phone and outside of it (in the cloud). Yet, the protections of the Constitution carried to these intangible, invisible, separate pieces of personal information. The constitutional protections of persons, houses, papers, and effects might, thus, be better characterized as protections of the information emanating from those constitutionally protected interests.


As laid out in more detail in the article, one can trace through the history of the Fourth Amendment and see this emphasis on protecting informational details arising from constitutionally protected sources (effects, homes, persons, papers).  For questions about whether we have any property rights in our own smart data, this can be an important consideration. 

            For example, in terms of effects:

Central to the protection granted effects has been securing personal information about those effects. The sparse Founding Era literature suggests a focus on protecting objects which revealed something about the owner--religion, culture, status, or family associations. Searching and seizing a colonist's religious objects was not offensive simply because it interfered with property rights, but because searching revealed personal information about family and faith. Rummaging through bedroom drawers was not solely about the inviolate nature of property but, as the early history suggested, also about revealing information that might be contained in those drawers. Interpreted one way, the protection of effects has largely been the protection of what the personal effects revealed or contained.

Similarly, while Justice Scalia attempted to ground his Jones argument in property rights, the harm of affixing the GPS device was not in any real sense to physical property (the car was undamaged). The real harm was exposing the revealing personal data about the effect (car). Placing the device on the car might have been a seizure, but what made it a search was collecting the locational data intercepted by police (the “use of that device to monitor the vehicle's movements”). The “use” in that case was the capturing of data trails via satellite transmissions communicated by cell phone to a government computer. By using the car to track its owner, the government invaded the informational security of the effect. Justice Scalia's Jones analysis requires both parts--trespass plus use--and as Justice Alito argues in his concurrence, neither alone should constitute a search under Scalia's reasoning. In holding that this interception/collection was a Fourth Amendment search, Justice Scalia implicitly acknowledged the centrality of informational security. What mattered was securing the information coming from the effect, not just securing the effect itself.

The concurring Justices in Jones also focused on the personal information revealed from the GPS device. The reason a twenty-eight-day tracking of locational data became a search rested solely on the informational exposure that resulted. Such collection of personal data points (touching on associational, health, and other private travels) became of constitutional significance when the data trails could be revealing of private, personal actions. The expectation of privacy was not about expectations from the effect (the car) itself, but the information to be inferred about the travels of the car. This personal information essentially radiating off the car is what created the constitutional harm.

The article goes on to discuss the other constitutionally protected terms and the quirks and problems with the theory of informational security, but at its core the article offers a way to get to a property-oriented approach to data protection without diving into positive law.  (Although, candidly, there are 84 pages of my article not excerpted that add a whole host of complexity to it). 

So, if the Supreme Court is looking for a reason to protect smart data under the Fourth Amendment, it offers a starting point for debate.  And, the best thing about the Carpenter argument day was that for one shining moment, everyone was focused on thinking about the Fourth Amendment and how it should apply to the digital age.  Can’t wait for the decision. 

Posted by Howard Wasserman on November 29, 2017 at 06:41 PM in Constitutional thoughts, Criminal Law, Law and Politics | Permalink | Comments (13)

Sunday, November 26, 2017

Who heads the CFPB and how to find out?

Marty Lederman deconstructs (and questions) the OLC memo concluding that the President's appointment of Mike Mulvaney was lawful and controlling. Sam Bray argues that the answer is a quo warranto action filed by the AG or the US Attorney for the District of the District of Columbia.

On Sunday, Leandra English filed suit in the District of D.C., seeking a TRO and declaratory judgment (with a passing reference to a writ of mandamus) that she is the lawful Acting Director and that the Mulvaney appointment is invalid. The suit names Trump and Mulvaney as defendants, for a declaration barring Trump from appointing any other Acting Director and barring Mulvaney from asserting the authority of the office.

Posted by Howard Wasserman on November 26, 2017 at 10:28 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, November 19, 2017

Reminder: Discovery is a two-way street

Attorneys for Alabama Media Group responded (copy of letter, free from typos and grammatical errors, in story) to the insane and incoherent letter from Roy Moore's attorney. In addition to standing by the story and denying the claims in the initial letter, AMG's lawyers say they expect litigation "would also reveal other important information about your clients" and makes a counter-demand that Moore preserve and maintain documents, materials, and information that "is or could remotely be relevant in any manner to any of the claims that you have made." This includes information relevant to Moore's "romantic relationships or physical encounters (whether consensual or not)."

This was not as brazen as the New York Times letter from October 2016, which expressly dared Trump to sue. But both are interesting examples of an emerging genre of legal writing.

Posted by Howard Wasserman on November 19, 2017 at 11:46 PM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

154th anniversary of Gettysburg Address

This remains funny and this is newly funny. And this is the perfect day for Lincoln's successor to demonstrate his unique ideas of government and presidential leadership--leaving American citizens in foreign jail because the father of one of them is not sufficiently appreciative or supportive of him.

Posted by Howard Wasserman on November 19, 2017 at 03:20 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, November 16, 2017

The Irrepressible Myth of David Boies?

Much has been written about David Boies representation of Harvey Weinstein and the conflicts with his representation of The New York Times as representing the fall of a liberal legal icon and of one of the great lawyers of his generation.

But a question asked out of genuine ignorance: What is the basis for that reputation and is it earned? I know of Boies from three cases: US v. Microsoft, Bush v. Gore, and Hollingsworth v. Perry; I do not believe I knew his name before the first of these. He lost the first (and one of my memories of listening to that argument was that he sounded as if he was caught off-guard by an equal-protection question). He had the second reversed on appeal. In the third, he won an important trial-court victory that enabled millions of Californians to marry, carried symbolic weight,* and perhaps catalyzed the litigation movement that led to Obergefell two years later. But it did not achieve the single great judicial declaration on marriage equality that he (and Ted Olson) set out to achieve and for which he is often given credit in movies, books, and other media. It was an important case on the path to marriage equality, but far from the important case. As legal precedent, it carried less weight than, for example, the case brought in Utah, Oklahoma, Wisconsin, or Indiana, all of which produced binding circuit precedent.

[*] The symbolism arguably cut in both directions. On one hand, it was the first federal-court declaration that same-sex marriage bans violated the federal Constitution (following several state-court/state-law decisions) and it affected the biggest state in the country. On the other hand, California.

I am not suggesting that Boies has not been a successful lawyer; he clearly has been. And I am sure that he took on and won many other big (and perhaps even historic) cases. But he is being described as the Clarence Darrow of his generation, now fallen in his final act. And I wonder about the reality of that.

Posted by Howard Wasserman on November 16, 2017 at 01:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (12)

Tuesday, November 14, 2017

Two hours of First Amendment training

Greg Thatcher, a professor of public health at Fresno State, has settled a First Amendment lawsuit claiming he erased students' chalked messages on campus sidewalks. Thatcher will pay $ 1000 to each of the students, pay $ 15,000 in attorney's fees to the Alliance Defending Freedom, and undergo two hours of "First Amendment training" with ADF. Two thoughts.

I hope "First Amendment training" does not become the new "diversity training" or "sexual harassment training."

I think there is an interesting under-color-of-law question here. Is everything a professor does on a public-university campus during school hours under color? He was not in the classroom, his office, or his building. He is dressed like he is going to the gym (although, in fairness, so do I on non-teaching days). In the encounter, he sometimes strikes a position of a competing speaker and sometimes strikes a position of an authority enforcing (erroneously understood) campus-speech regulations. And it is not clear enforcing those rules is any part of his job, although students may not understand that. He did tell/order/ask some of his students to erase the messages with him, which reflects an exercise of his obvious authority.

Posted by Howard Wasserman on November 14, 2017 at 08:42 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, November 13, 2017

First Amendment Day at SCOTUS

SCOTUS granted cert in three First Amendment cases today. The big one is National Institute of Family and Life Advocates v. Becerra, a challenge to a California law requiring that crisis pregnancy centers provide notice that publicly funded family-planning services are available elsewhere and that unlicensed clinics are unlicensed; the Court took it as a compelled-speech case and a vehicle to resolve a circuit split over the standard for "professional speech" (the Ninth Circuit applied intermediate scrutiny, while the Fourth Circuit applied strict scrutiny in invalidating similar regulations in Maryland.

The political valance of the case is interesting, as Dahlia Lithwick argues. The plaintiff here is a crisis-pregnancy center, resisting regulations that, in the name of protecting women's health, require the clinics to disclose information about the limits of their services (not providing abortion or contraception) and directing patients elsewhere for those services. But if these regulations violate the First Amendment, so should regulations in many states requiring clinics to provide pre-abortion counseling or to provide arguably false medical information about links between abortion and breast cancer, suicide, and mental-health consequences, designed to dissuade women from going through with the procedure.

Incidentally, this case meets the procedural posture I was looking for: The trial court denied a preliminary injunction, the court of appeals affirmed, and SCOTUS granted cert (to reverse, if I had to predict).

Posted by Howard Wasserman on November 13, 2017 at 07:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, November 09, 2017

The overwhelming effect of stays pending appeal

The Second Circuit denied a stay pending appeal of the denial of an injunction barring suspension of NFL running back Ezekiel Elliott. The court referred to it as an "injunction pending appeal," which is wrong and the improper terminology makes the media reporting on this more confusing than usual.

Tracing the history of this case is a Fed Courts or Remedies problem all its own: 1) Elliott was suspended for six games and an arbitrator upheld the suspension; 2) a judge in the Eastern District of Texas issued a preliminary injunction barring enforcement of the suspension (allowing Elliott to play); 3) the Fifth Circuit reversed, holding that the district court lacked jurisdiction, grounds that were arguably incorrect, although the result was probably right (barring Elliott from playing); 4) the union and player filed suit in the Southern District of New York; 5) a district judge granted a TRO (allowing Elliott to play); 6) the same judge refused to grant a preliminary injunction (barring Elliott from playing); 7) the Second Circuit granted a temporary stay of the denial of the preliminary injunction (allowing Elliott to play) pending fuller consideration of the motion to stay; 8) the Second Circuit today denied a full stay pending appeal, allowing the judgment denying the preliminary injunction to go into effect, meaning the suspension goes into effect and Elliott will not be able to play on Sunday (unless SCOTUS gets involved).

Even more than in the marriage-equality litigation, the stay question dictates the result in these cases. Although the Second Circuit granted expedited appeal, it is not clear that the case will be resolved before Elliott has missed six games. The question is the weight the likelihood-of-success prong bears in these cases--it is hard to overturn an arbitrator's decision, so Elliott was not likely to succeed in having the denial of the injunction reversed. And that may have convinced the court of appeals there was no irreparable harm in having the suspension take effect.

Posted by Howard Wasserman on November 9, 2017 at 05:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, November 08, 2017

More jurisdictionality from SCOTUS

My opinion analysis for Hamer v. NHSC is up on SCOTUSBlog. As I predicted, the Court unanimously (through Justice Ginsburg, who cares most deeply about these issues) held that FRAP 4(a)(5)(C)'s 30-day limit on extensions to file notices of appeal was not jurisdictional, then punted issues of waiver, forfeiture, and equitable exception to the Seventh Circuit for initial consideration. A few additional thoughts.

Despite mentioning it at argument, the Court did not mention or cite Scott Dodson's arguments that the rule is jurisdictional because it allocates cases between courts, but the label matters less than the consequences (waiver, forfeiture, equitable exception, etc.) that a rulemaker attaches to the rule. Jurisdictional rules are mandatory only if Congress makes them mandatory; non-jurisdictional rules can be mandatory if Congress makes them mandatory. The Court did speak of timing rules "governing the transfer of adjudicatory authority from one Article III court to another," which smacks of the allocation concept that Scott uses. But the Court could not move past the label above the effects of the rule (which are not dictated by the label).

The "clear and easy" rule of decision the Court announced is that "If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category." This does not mention the Arbaugh rule that a rule is jurisdictional only if Congress speaks in jurisdictional terms. But the synthesis is that Congress can speak in jurisdictional terms, while the Court under the REA never can speak in jurisdictional terms.

In an email, Scott identifies some problems and open questions from describing the issue as the timing for transferring adjudicatory authority from one court to another. This would make timing limits in transfer-of-venue statutes or statutes governing the time for filing cert. petitions jurisdictional. Another question is whether the same rule applies to transfers of authority from state court to federal court, which would make timing requirements for removal and cert. petitions from state courts jurisdiction. Or it would mean that the time for filing a petition from federal court would be jurisdictional, while the time for filing a petition from state court might not be. Scott argues that these open questions show that the rule is not so "clear and easy."

Posted by Howard Wasserman on November 8, 2017 at 08:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Saturday, November 04, 2017

Are The Bangles no longer welcome at Reed College, either?

Read the intro. Whatever else is happening, this demonstrates a point that came out in the comments to this post: The level of offense and the level of evil that protesters see in objectionable speech is beyond what we saw previously, which explains the more-intense reactions and confrontations between speech and counter-speech.

Posted by Howard Wasserman on November 4, 2017 at 05:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Monday, October 30, 2017

New ACS Brief on Local Voting Rights

The ACS has just published my new issue brief -- a condensed version of a longer GW Law Review article -- on local expansions of the right to vote. Here is the abstract:

The right to vote is a fundamental right inherent in the U.S. Constitution and all state constitutions. Most scholarship on this right focuses on only federal or state law and omits discussion about how local law may also confer this right. In his new Issue Brief, “Expanding Voting Rights Through Local Law,” Professor Joshua A. Douglas of the University of Kentucky explores how cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. He argues that municipalities can serve as “test tubes of democracy” that may experiment with different voting rules, and these expansions can then spread to other municipalities and even up to states or Congress. Douglas concludes that when examining these local laws, courts should defer to those that expand the franchise, while training a more skeptical eye on laws that restrict voter access.

If for no other reason, you should read it because it starts with a reference to The West Wing! (Ah, if only Jed Barlet was our president...)


Posted by Josh Douglas on October 30, 2017 at 03:35 PM in Article Spotlight, Law and Politics | Permalink | Comments (2)

Sunday, October 15, 2017

An overbroad defense of universal injunctions

Judge Leinenweber of the Northern District of Illinois denied a stay pending appeal of a universal (he called it nationwide) preliminary injunction barring enforcement of certain funding conditions against sanctuary cities. This is the first extended defense of universal injunctions (more than in the original order granting the injunction).  (H/T: Josh Blackman)

The gist of Judge Leinenweber's defense is that the attorney general's authority does not vary by jurisdiction. And similar universal jurisdictions have been upheld, in which relief inured to non-parties as well as parties. The court also finds support from the per curiam in Trump v. IRAP, where the Court allowed the injunction to stand as to those "similarly situated" to the plaintiffs, which matches the injunction here applying to cities and states similarly situated to Chicago. Most tellingly, the court rejected the argument that similarly situated plaintiffs can file their own lawsuits and use the first decision as precedent because "judicial economy counsels against requiring all these jurisdictions (and potentially others) to file their own lawsuits to decide the same legal question." The court recognized reasons to be "cautious" before entering such injunctions and that they should not be the "default," citing the recent work of Bray, October guest Michael Morley, and UCLA's Michigan's Maureen Carroll. He pointed to concerns for forum shopping, conflicting injunctions, and interference with law development within a circuit, then explained (in a sentence or two) why those "not insignificant concerns" do not overcome the benefits of a universal injunction in this case.

The problem remains that the argument prove too much. As Sam Bray argues, it logically requires (or at least permits and encourages) a district court to issue a universal injunction in every constitutional challenge to federal law. Because the proposed funding conditions challenged here do not differ from any federal law.  The authority of federal officials to enforce every federal law does not vary by jurisdiction. Judicial economy always favors one lawsuit over many lawsuits. There would be a flood of similar lawsuits by everyone affected by every federal law.* Federal uniformity and the unfairness of disparate application of federal are present with respect to every federal law. Despite the court's rhetorical attempt to limit such injunctions to "extraordinary" cases, every case is extraordinary as he defines it; the reasoning applies to federal immigration laws, federal regulations of immigration attorneys, and federal law regulating any conduct.

[*] The solution is supposed to be FRCP 23(b)(2) class actions. But the growth of universal injunctions makes that rule superfluous.

Leinenweber closes with a paean to the rule of law and the role of the courts in ensuring the rule of law is enforced, which is undermined (in reality or in perception) if the attorney general can enforce "likely invalid" laws against other persons even while under an injunction as to some. Several responses. That is true of every federal law, making such injunctions the norm. The rule of law also includes limitations on the scope of a district court's lawmaking and remedial authority as compared with a court of appeals or SCOTUS; it therefore is as undermined by one district judge barring enforcement of federal law as to everyone in the world in all circumstances everywhere in the world. And without saying so, it also rests on a model of pure judicial supremacy--the Article III judge has spoken and the attorney general's authority to disagree, outside of that litigation, ceases to exist.

Posted by Howard Wasserman on October 15, 2017 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Saturday, October 14, 2017

Argument on ATS in Jesner v. Arab Bank

SCOTUS heard argument on Wednesday in Jesner v. Arab Bank, considering whether a corporation can be sued under the  common law cause of action under the Alien Tort Statute. I listened to the audio and have a few thoughts on the procedure, without getting into the substantive question of corporate liability.

The Court a good job (certainly better than four years ago in Kiobel) talking about the issues without conflating jurisdiction and merits. Everyone spoke about causes of action and the scope of the norms that are part of federal common law and can be enforced through that cause of action, without speaking about jurisdiction in a sloppy way.

Justice Gorsuch asked petitioner/plaintiff counsel what the continued point of the ATS is, given that § 1331 grants jurisdiction over claims grounded in federal common law incorporating international law. Counsel explained that the ATS is like the maritime-jurisdiction grant, a more specific grant in the Judiciary Act of 1789 through which Congress could make absolutely clear that such cases could be brought in federal court. What neither mentioned (and what you would expect Gorsuch to remember, given his Originalist obsession) is that the 1789 Act did not include general "arising under" federal-question jurisdiction, necessitating these subject-specific grants. To the extent § 1350 is vestigial or superfluous with modern § 1331, it is not alone.

Posted by Howard Wasserman on October 14, 2017 at 10:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, October 10, 2017

Argument: Hamer v. NHSC

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

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

Monday, October 09, 2017

"Thanks, Iowa Supreme Court!"

Today in my Election Law class we covered state regulation of false or misleading campaign advertisements. (The doctrine is generally that even blatantly false ads enjoy First Amendment protection.) It is one of my favorite class periods of the semester because I show some pretty incredible political ads. The one below is perhaps the most outlandish. It aired during the Iowa judicial retention election in 2010, just after the Iowa Supreme Court had issued a ruling that effectively legalized same-sex marriage. The ad is worth two minutes of your time. (All three justices up for retention lost.)

(Although I find the ad amusing, I also think it's offensive and harmful.)

The debate during this class is always spirited, with some students arguing that the government should be allowed to regulate patently false campaign speech -- especially if it is about the election itself (such as "Republicans should vote on Tuesday; Democrats should vote on Wednesday") -- while other students take a more absolutist First Amendment approach. The debate has perhaps become even more interesting these days given the current tenor of our political discourse.

Posted by Josh Douglas on October 9, 2017 at 02:17 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (2)

Sunday, October 08, 2017

Police as prosecutors

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

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

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

Gill and Congressional Authority (A Response to Prof. Morley)

It's October, so that means two great things: baseball playoffs (go Nationals!) and continued commentary on election law.

Michael Morley starts us off with some interesting commentary on Gill v. Whitford, the partisan gerrymandering case that the Supreme Court just heard last week. His conclusion is basically that if the Court recognizes a standard for partisan gerrymandering under the Fourteenth Amendment's Equal Protection Clause, then that could open the door to substantial congressional intrusion into state and local redistricting, particularly allowing Congress "to attempt to influence and reshape the partisan outcomes of state and local races."

My response? Not bloody likely!

First, it is somewhat unlikely that Congress would even gain this extra power. Virtually everyone agrees that the case will come down to Justice Kennedy's vote, and he has indicated before -- and indicated again during the oral argument -- that a claim for partisan gerrymandering should rest within the First Amendment, not the Fourteenth Amendment. Congress does not have an explicit enforcement power under the First Amendment. If the plaintiffs win this case and the Court recognizes a judicially manageable standard to root out the most egregious gerrymanders, it is more likely to do so under the First Amendment's protection of free speech and free association. That would not give Congress any extra powers. [UPDATE: In the comments Howard correctly notes my error in not thinking about incorporation, in that Congress would have the power to enforce the First Amendment against the states via the Due Process Clause of the Fourteenth Amendment. (And geez, I even teach incorporation in Con Law II! How could I overlook it here?!) Perhaps the argument for Congressional authority would be, textually-speaking, stronger if the Court recognizes the harm under the Equal Protection Clause. Either way, this just shows why I shouldn't try to blog and watch baseball at the same time! My apologies for the mistake.]

Second, even if the Court recognizes the injury under the Fourteenth Amendment, it is highly unlikely that Congress would try to "enforce" this new standard to influence state and local elections, as Prof. Morley suggests. Joey Fishkin, in a comment to Prof. Morley's post, noted that Congress gained the power to "enforce" the one-person, one-vote standard after Baker v. Carr (1962) and Reynolds v. Sims (1964), and yet Congress has never tried to legislate under that standard. There is nothing to suggest that Congress would suddenly decide to use its newfound power to influence state and local elections when it has not done so in other contexts.

Moreover, Congress already has the power to dictate rules against partisan gerrymandering for congressional elections. Justice Scalia explicitly pointed to this power in his decision in Vieth, the 2004 case that split the Court, as one reason the Court should stay out of partisan gerrymandering claims. Congress certainly has the constitutional power to try to influence the outcome of federal elections by enacting rules about partisan gerrymandering, yet it has never done so. If it has not attempted to influence its own elections (such as by passing rules intending to protect incumbents), there is little reason to think that a newfound power after Gill would cause Congress to decide to use this power for state and local elections.

Third, as Prof. Morley acknowledges (and Asher Steinberg echoes in his comment), the Supreme Court is highly likely to apply City of Boerne's "congruent and proportional" test to any Congressional "enforcement" under Section 5 of the Fourteenth Amendment, tempering a partisan-based congressional action. Thus, there would be a high burden for Congress to justify any regulation of state and local elections in the name of enforcing a new rule about partisan gerrymandering. In fact, the Supreme Court has generally been less deferential to Congress, as compared to states, in its election rules. States have a much easier time justifying their election rules than does Congress, notwithstanding Congress's plenary power to override state rules under Article I, Section 4. Surely any federal laws that have the intent or effect of influencing the outcome of state and federal elections would face this same close judicial scrutiny.

Finally, even if Congress both had this power and used it to pass new election laws, would that be so terrible? The likelihood of a new law that has a clear partisan valence is highly unlikely given that, at least under current Senate rules, it takes 60 votes to pass legislation. A party would thus need a supermajority to engage in such blatant overreach. Moreover, most congressional regulation of the election process has been a net positive: from the Voting Rights Act to the Help America Vote Act, Congress has legislated to fix clear problems in the election system, not to engage in partisan warfare. The most likely use of congressional power, then, would be to eliminate the worst abuses of state and local partisan gerrymandering.

In sum, while Prof. Morley is theoretically correct that a decision recognizing a new test for egregious partisan gerrymanders could increase Congress's power, there is little reason to think that, practically speaking, Congress would ever actually use this power in the way that Prof. Morley fears.

(Full disclosure for me: I signed onto Pam Karlan's amicus brief in favor of the plaintiffs in this case.)

Posted by Josh Douglas on October 8, 2017 at 10:26 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (10)

Saturday, October 07, 2017

University of Wisconsin bans counter-speech

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

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

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

Friday, October 06, 2017

Cy Vance, Campaign Contributions, and Decisions Not to Prosecute

In the past few days, two stories have broken about Manhattan District Attorney Cy Vance and questionable campaign contributions.  In two separate cases—a case involving two of President Trump’s children and a case involving film studio executive Harvey Weinstein—Vance decided not to pursue criminal charges against high profile individuals, and he also accepted campaign contributions from lawyers associated with those individuals.

I do not know what will end up happening to Vance (some are calling on the NYS Attorney General to investigate him). But I wanted to sketch a few thoughts about the larger issues implicated by these stories.

First, contributions in prosecutorial campaigns are worthy of significant scrutiny.  We’ve seen a little bit of scrutiny in recent months—notably some sustained scrutiny over the donations of bail bondsmen in the Brooklyn DA race. But that scrutiny has been sporadic, and incomplete.  I recently began a project looking at prosecutorial campaign contributions across the country, and my preliminary results show that contributions from the bail industry are more the exception than the rule.  Of the races I’ve looked at so far, lawyers represent the largest class of donors.  This isn’t surprising—I imagine most candidates for local office rely on their personal network for campaign contributions, and because candidates for district attorney are necessarily lawyers, their personal network will contain a lot of lawyers.  But relying on lawyers for campaign contributions can be problematic because those lawyers may end up representing clients whose matters will come before the candidate if he or she becomes the DA.  Can we trust DAs to assess those cases fairly if the defense attorney is a past or potential future donor?

That brings me to my second thought—whether we can rely on campaign finance reporting laws to control these conflicts of interest.  Hypothetically, if a prosecutorial candidate takes a campaign contribution from a potential defendant or his attorney, then the press could write about it and voters could vote that prosecutor out of office.  But I’m not optimistic.  Although information about who has donated to a prosecutor’s campaign is ordinarily public, information about which cases a prosecutor decides not to prosecute often is not.  Unless an alleged crime is the subject of public attention—as Harvey Weinstein’s arrest was, or as Ivanka and Trump’s business dealings have become—it may be nearly impossible to identify cases in which a DA has declined to prosecute an individual who is suspected of criminal wrongdoing.  Unlike campaign contributions to elected judges—where the identity of all parties and attorneys appearing before the judge is public knowledge—the press and the public generally do not know (and often cannot find out) what cases a prosecutor decides not to pursue.

To be clear, there are very good reasons why prosecutors don’t ordinarily explain their reasons for not charging an individual.  Among other things, case-by-case explanations could be quite harmful to the individual in question.  As James Comey’s comments about his recommendation not to prosecute Hillary Clinton illustrate, such an explanation can include very damning information and commentary about an individual and her actions.  And if criminal charges are not filed, then the individual may not be able to clear her name (especially if the individual is not as prominent or as powerful as Clinton).  But when the public does not know that an individual has been under investigation, then the donor status of that person’s lawyer (or the person herself) may loom even larger in the decision not to prosecute.  DAs don’t have to worry about the appearance of impropriety if no one knows enough to pay attention. 

Now, in light of the Trump and Weinstein stories, more reporters may decide to dig into Cy Vance’s decisions.  The list of his campaign donors is publicly available and if line prosecutors in Vance’s office are willing to leak to the press, we may see more stories that link campaign contributions and decisions not to prosecute.  But I’d be surprised if we ever get all of the stories.  And we may never get any stories about prosecutors in cities that don’t have as many investigative reporters as NYC.

Because of this, I think that it is worth talking about reform in this area.  Some have suggested that private campaign contributions ought to be forbidden in prosecutorial elections.  And the Supreme Court’s decisions about campaign contributions to judicial campaigns tell us that there are due process limits on these issues.  If you have any other ideas, feel free to share them in the comments or to email me directly.  My study of prosecutors and campaign contributions is just getting underway, and so I’ll be thinking about these questions for a long time to come.

Posted by Carissa Byrne Hessick on October 6, 2017 at 10:23 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink | Comments (14)

Tuesday, October 03, 2017

Hamer Time

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

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

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

Sunday, October 01, 2017

More from Bray on universal injunctions

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

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

Expecting Congress to do anything is beyond wishful thinking.

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

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

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

Wednesday, September 27, 2017

Sports and Speech: From the ridiculous to the sublime

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

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

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

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

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

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