Saturday, July 19, 2014

Chokeholds and clearly established rights

This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).

I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:

1) What will the court do with the video on summary judgment? As I wrote in a  draft paper for a SEALS discussion group, the Court last term in Plumhoff v. Rickard, just as in Scott v. Harris, was all too willing to interpret the video for itself and identify its single meaning (in favor of the defendant officer) as a basis for granting summary judgment. Will courts be similarly bold with potentially more damning video or will they be less willing to find a single message and leave it all to the jury? On that note, check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see. But it is veery different than what everyone (press, government officials, and courts) has done in, for example, describing video of high-speed chases.

2) According to The Times, chokeholds are expressly prohibited by NYPD regulations. How will that affect the qualified immunity analysis? In Hope v. Pelzer and Wilson v. Layne, the Court looked at department regulations and whether they endorsed or prohibited some conduct as indications of whether theright at issue is clearly established. While not conclusive, administrative regs can support a doctrinal consensus or demonstrate the absence of that consensus. Absent case law holding that chokeholds always violate the Fourth Amendment or violate the Fourth Amendment when in furtherance of arresting non-violent offenders, what will the court do with this officer violating clear departments regulations in dealing with a non-violent offender (they were trying to arrest the victim for selling loose cigarettes on the street).

3) What happens when the plaintiff tries to make his Monell claim against the city? On one hand, the express prohibition on chokeholds in department regs would seem to weigh against any argument that the city had a policy of allowing its officers to utilize such holds, since the very opposite is true--he really is the "bad apple" expressly disobeying how we told him to behave. On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. (Note that many of those complaints never go anywhere or are unsubstantiated--the point is that many citizens are talking about officers using chokeholds).

Posted by Howard Wasserman on July 19, 2014 at 10:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, July 08, 2014

Determining the effect of video

Just coincidentally, three stories are simultaneously in the news involving potential police misconduct caught on video. The recordings are after the jump (these are partial, although fuller recordings of some are available):

1) A California Highway Patrol officer (Erik Estrada never did this) takes a woman to the ground on the side of the highway.and repeatedly punches her, including in the head. The video was taken by a passing driver. The matter is under investigation.

2) A South Carolina state trooper arrests Sam Montgomery, an NFL player, for driving more than 25 m.p.h. over the speed limit. The officer threatens to TASE Montgomery for not cooperating. This is dashcam video. The trooper was suspended for failing to treat Montgomery with the expected courtesy.

3) A Lafayette, Indiana police officer shoves a man in a wheelchair with two hands, causing the chair to tip over and the man to go sprawling on the sidewalk. The shove occurred after the man rode over the officer's foot while departing an encounter with the officers, who had been called to the scene when the man allegedly told officials at a school that he had a gun. The department sought to fire the officer, but a civil service board reduced the punishment to a 30-day suspension without pay, demotion, and probation. This is dashcam video.

These three stories tell us a few things about video and its role in parsing events.

First, it should call into doubt the argument that allowing citizens free-range to video police in action will change officer behavior, making them over-cautious because of how things will "appear" on the video and the snap judgments people might reach. But video in two of these cases came from the officers themselves and, even knowing they were being filmed, they still engaged in some, at least, questionable behavior. So if officers are threatening and shoving people knowing they are being filmed by their own cars, there is no reason to believe that thei behavior will change by the possibility of being filmed or recorded by someone else. And that is before any argument that we want the chilling effect that the threat of video might have on officers.

Second, these videos show why the Supreme Court was wrong in its treatment of video on summary judgment in Scott v. Harris and this past term in Plumhoff v. Rickard. The videos do not "speak for themselves," as demonstrated by the wide range of responses to them, responses that seemingly confirm the Kahan thesis about how personal characteristics and political preferences affect perception of video. There likely is more that each video does not show or fully contextualize. If we would not grant summary judgment in favor of the arrestees in any of these cases (and I doubt we would), then we should not grant it in favor of the police in other video cases.

Third, I have to admit to feeling some sympathy for the trooper in # 2. Reading press accounts, it sounded like the officer simply started out acting in an overbearing and overofficious manner. But in watching the video,  Montgomery is not following the officer's instructions to put his hands behind his back with his palms up in the air, keep his feet apart, and face away from the officer. The reason appears to be not resistance but confusion about what the officer wanted and how to do several things at once (try putting your hands behind your back with palms up--it's not a natural position). So while the officer perhaps jumpted to the TASER pretty quickly, it sometimes is hard to distinguish confusion from disobedience. Of course, given my political and social views, my viewing the video in that way flies in the face of everything Kahan, et al. would have predicted.

And now the videos. Draw your own inferences as if you are a juror, think about inferences if you are a judge on a motion for summary judgment.

1)

  

2)

  

3)

 

Posted by Howard Wasserman on July 8, 2014 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, July 03, 2014

Federalism, RFRA, and Free Exercise in the next Hobby Lobby

Someone please tell me if I am wrong on the following points in the potential next round of Hobby Lobby-type litigation.

A major concern after Hobby Lobby is that similar closely held corporations will raise similar objections to legal obligations to hire (and not create hostile environments for) women, racial minorities, pregnant women, religious non-believers and other-believers, LGBTQ people, etc., as well as obligations to serve and do business with those groups.

Here is the thing. Protections for LGBTQ employees and customers are, at this point, not federal; they exist only in some states and/or some municipalities. But RFRA and strict scrutiny does not apply to state or local laws under City of Boerne. So any such claims to avoid those state or local obligations must be brought under the Free Exercise Clause and are likely to fail under Smith, since laws prohibiting discrimination in employment or public accommodations appear to be neutral laws of general applicability. The only way around that is if the company can tie some other constitutional liberty in (such as Free Speech in the wedding photographer case). So, ironically, LGBTQ people may be better off in this realm than women, since the corporation can rely only on the First Amendment, not a statutory strict scrutiny, to avoid its non-discrimination obligations.

Pushing it a bit further: Every state has a prohibition on race, gender, etc., discrimination that parallels federal law. So even if a hypothetical company could claim an opt-out from Title VII's ban on sex discrimination in hiring based on RFRA, that company still must comply with the state ban on sex discrimination in hiring, which, if challenged, again would only receive Smith-level Free Exercise scrutiny and the challenge likely will fail.

On the other hand, many states have their own RFRAs, which would require strict scrutiny of state anti-discrimination laws and might require analysis similar to Hobby Lobby. But that case at least would be litigated in state court, with the state's highest court having the last word; that court would not be bound by Hobby Lobby, may be less solicitous of accommodation demands (depending on the state), and might adopt the Ginsburg view on the question. Such a case would not be reviewable to SCOTUS, because a decision applying state RFRC would be an independent and adequate state ground for the decision. So the future of Hobby Lobby may produce some interesting federalism angles.

Posted by Howard Wasserman on July 3, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Sunday, June 29, 2014

Principles and political preferences in the First Amendment

Implicit in these comments is the suggestion that conservatives on SCOTUS are using the First Amendment as a "weapon" to further the conservative political agenda, a "trojan horse" swallowing every other right we cherish. Thus, supposedly speech-protective decisions such as McCullen, McCutcheon, and, everyone assumes, Quinn are wrong, if not illegitimate.

Some of the cricitism is fair, particularly as to Justice Alito, who is highly selective as to the free speech interests he votes in favor of and when. Emily Bazelon correctly points out the striking difference between how solicitous Alito was for the emotional fragility of funeral-goers faced with unwanted offensive speech in his dissent in Snyder v. Phelps, which did not carry over to women seeking access to reproductive health care. But this has always been true of Alito on many issues. During his confirmation hearings, he spoke at length about the difficulties his Italian-immigrant family suffered, although he has rarely voted in the direction of ethnic minorities dealing with, for example, voter suppression. On the other hand, the criticism is less warranted as to Justice Kennedy and, it increasingly appears, the Chief.

In any event, does that inconsistency mean the decisions are wrong? In the case of McCullen and, to hit the big one, Citizens United, I (and at least a few other people) would say no, as a matter of First Amendment principle. Alternatively, can we hurl the same inconsistency criticism at these critics, who are "breaking up" with the First Amendment because it now is being used to protect speakers and interests that they don't like? Alito is striking a balance among "cherished" rights, just as these critics are. But Sam Alito strikes the balance differently than Emily Bazelon or Dahlia Lithwick. Fair enough. But neither should be deemed more legitimate than the other.

Posted by Howard Wasserman on June 29, 2014 at 05:15 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (2)

Thursday, June 26, 2014

McCullen and intermediate scrutiny

The Court in McCullen v. Coakley invalidated Massachusetts' 35-foot buffer zone around abortion clinics. The Court was unanimous in the judgment, but not in the reasoning--the Chief (surprisingly, sans pithy quips) wrote for the Court; Justice Scalia concurred (angily) in the judgment, joined by Justices Kennedy and Thomas; and Justice Alito separately concurred in the judgment.

The point of departure was whether the buffer zone was a content-based restriction subject to strict scrutiny or whether it was content-neutral subject only to intermediate scrutiny. The majority held the latter, because on its face the legislature was concerned with public safety, patient access to clinics, and the unob­structed use of public sidewalks and roadways, none of which have anything to do with the content of the (anti-abortion) speech regulated; the majority did not rely on the rationale from Hill v. Colorado of a state interest in protecting clinic patients from having to deal with unwanted speech. Justice Scalia insisted the law was content-based, largely for the reasons he insisted the buffer zone upheld in Hill was content-based (Scalia is still fighting that case rhetorically). The law did not survive intermediate scrutiny, because there were alternative ways to ensure safety and access that would have been less speech-restrictive.

The Court stated at several points that the plaintiffs here were not abortion protesters, which it defined as people with signs and bullhorns, chanting and shouting about the evils of abortion. The plaintiffs were "counselors," who want to have a calm, quiet, compassionate, consensual conversation and to hand-out literature "informing" women of their options. Thus, the adequate alternative means of communication they needed were different. It was not enough that they could stand across the street beyond the buffer zone in order to speak as they wanted; they needed the time and space to have a calm, intimate, within-arms-reach conversation, which the buffer zone did not allow.

This marks just the fourth time since the creation of the modern content distinction that the Court has invalidated applied intermediate scrutiny to invalidate a content-neutral law (the others were Bartnicki, Gilleo, and Watchtower). Intermediate scrutiny requires that the regulation be narrowly tailored and leave open ample alternative channels of communication, as opposed to being the least restrictive means to serve the interest. But the majority seemsed to demand more than it typically does on the narrow-tailoring prong. It pointed to all the other legislative strategies that Massacusetts could have tried (and that the United States and other states have tried); it pointed to the state's failure to prosecute anyone for violating the old buffer-zone laws before moving on to this more-restrictive approach; it pointed to the fact that the law regulates all clincs, although there was a record only of problems at one Boston clinic on Saturday morning; and it pointedly rejected the justification that a blanket buffer zone is easier for the state to administer than a law requiring a showing of harassment or intent to obstruct. Such close review strikes me as an analyitcally correct approach to the First Amendment; it just does not sound like typical intermediate scrutiny.

The dispute between the majority and the Scalia concurrence arguably was less about this case and more about where we go from here. Scalia is still enraged by what he sees as an "abortion-speech-only jurisprudence," which has manifested in the failure to recognize as content-based restrictions that, whether facially or practically, only regulate anti-abortion speech. He made a similar point in his Hill dissent about the deck being stacked against those who oppose abortion rights. (Of course, it is similarly odd to see Scalia suggesting that the Court would and should vigorously scrutinize a law barring protesters from the streets and sidewalks outside the Republican National Convention). On the other hand, there are good arguments that courts place too much weight on the content-distinction, where identifying something as content-neutral seals the case for the government because intermediate scrutiny is so easily satisfied. Perhaps the majority opinion, while too easily concluding that the law was content-neutral, reflects a renewed vigor in reviewing content-neutral laws, rather than giving the government a free-ish pass once it is found that a regulation is not content-based. (Mike Dorf wonders how this might affect so-called "ag-gag" regulations prohibiting recording of conditions and treatment of animals on farms, which are similarly directed at a type of speech but also can be justified in terms of privacy, safety, and property).

The majority suggestsed that an alternative to this sort of blunderbuss legislation is to regulate clinic access through "targeted injunctions" once clinic blockage has become a problem; courts can better demand a record of a problem based on people's actual conduct and tailor the remedy to the specific clinic and its geography and needs. But such a stated preference for injunctions over legislation seems to fly in the face of established First Amendment doctrine, which generally abhors prior restraints on speech, even prior restraints based on a showing of past misconduct.

Finally, lower courts are left with the task of reconciling McCullen with Hill; although the parties briefed whether to overrule Hill, the majority did not address that issue (or even discuss that case). Justice Scalia suggested (and urged future parties to argue) that Hill has been sub silentio overruled. He emphasized that the majority here refused to rely on the avoiding-unwelcome-speech government interest (going for public safety, access, and avoiding obstruction instead) and that the majority acknowledged that a law is not content-neutral if the undesirable effects result from reactions to speech. Since that is the essence of the analysis and holding of Hill, it must not be good law.

Update: One last question to add: Under a principled application of today's decision, can the anti-Westboro funeral buffer zones be constitutionally valid? Most of those are much larger than 35 feet.

Posted by Howard Wasserman on June 26, 2014 at 03:53 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (0)

Wednesday, June 25, 2014

Standing and defendants

In affirming the district court and invalidating Utah's ban on marriage equality, the Tenth Circuit considered standing sua sponte. But, as with the D.C. Circuit's decision on the filibuster, the standing issue was not about the plaintiffs (who want to get married and are prevented from doing so, thus obviously have standing), but about the defendants--whether the governor and attorney general were proper defendants in this Ex Parte Young action.  (This was necessary as a preliminary to whether the governor and A/G could appeal, since the county clerk of Salt Lake County, a named defendant who is directly responsible for issuing marriage licenses to four sets of plaintiffs, declined to appeal).

Under Ex Parte Young, the named defendant must be the executive officer responsible for enforcing the challenged law. And the plaintiffs should lose if they sue an officer who is not responsible for enforcing that law. But the Tenth Circuit did not explain why this should be a component of the plaintiffs' standing, as opposed to the merits of the constitutional claim.

In fact, the unique position of the governor and A/G in this case illustrates why treating this as standing makes no sense. Under Utah law, the governor and A/G are not directly responsible for issuing marriage licenses (that rests with county clerks) or for doing things that require recognition or non-recognition of out-of-state marriages (not giving spousal benefits, not allowing joint tax returns, not giving marital deductions, etc.). But they are responsible for advising, supervising, and compellling the clerks and other state officials who refuse in recognizing same-sex marriages, which made them responsible defendants subject to suit. In essence, the court accepted "supervisory" Ex Parte Young liability (which makes sense, since executives delegate all the time).

But we regularly deal with supervisory liability in § 1983 damages actions, without ever invoking standing. For example, imagine Officer Y uses excessive force against A; A sues Supervisor X for failing to supervise Y, but it turns out that X is not Y's supervisor under state law. Without question, A loses. But the court would not say that A lacks standing; instead, that claim fails on the merits. Or compare this Eighth Circuit decision holding that an officer violated a person's rights by enforcing a flag-burning ordinance. The plaintiff also brought a Monell claim against the city for failing to properly train the officer, which the court rejected because, under Missouri law, cities are not responsible for training police officers. So the city could not be liable and the Monell claim failed on the merits. Again, no mention of standing.

So why if "you got the wrong guy" is a merits matter in these actions for retroactive relief, it makes no sense whatsoever for it to become a standing matter in Ex Parte Young actions for prospective relief.

Posted by Howard Wasserman on June 25, 2014 at 07:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Supreme Announcements

At this time of year, oral arguments are long over at the Supreme Court, but the justices nonetheless convene to announce opinions from the bench. This practice is unusual in the US judicial system. Federal courts of appeals, for example, do not orally announce their opinions. Moreover, the parties whose interests are being adjudicated have no way of knowing when their cases will be announced and so are rarely in attendance. Yet, tomorrow, the justices will ascend the bench anyway in order to read summaries of the Court's published opinions and, perhaps, salient dissents. Why would they do this? One important reason is to influence the public. Through opinion announcements, the normally apolitical Court sometimes acts much like a political institution -- with all the benefits and risks that that role entails.

On the surface, the Court's opinion announcements are simply wholesome celebrations of America's civic religion. There is pomp ("Oyez!"), circumstance (regal curtains), and grandeur (an array of somber marble facades). On each opinion day, a very small slice of the public gets to see a bit of history being made. Visitors also enjoy the unusual experience of having a direct impression of the justices, particularly those who happen to speak that morning. This traditional and generally banal picture is especially apt during early and mid-term announcements, which are typically free of the most controversial cases. To the extent that opinion announcements function this way, they are a cross between a civics lesson and the ceremonial turkey pardoning at Thanksgiving. Consistent with that view, Justice White often announced the judgment of the Court in a matter-of-fact style, without rhetorical embellishment or even significant explanation.

From another standpoint, however, the opinion announcements are canny press conferences. They give the justices a chance to gather members of the Supreme Court press corps and speak directly to them all at one moment. This gives those justices who speak a chance to accentuate certain details and shape media coverage. As if to ensure that the bench announcement garners attention, the Court releases full opinions online only after a short delay. The results can be interesting. Consider the Chief Justice's announcement of the healthcare case, NFIB v. Sebelius. Because of the way the Chief explained the opinion of the Court, the unusually A-list audience of in-court attendees was initially led to believe that the healthcare act had been invalidated. The audience had the experience of thinking the Act was doomed, and then of realizing that the Chief had sustained it.

Earlier this week, Justice Scalia used an opinion announcement to cut to the heart of a technical decision. While explaining the Court's opinion in Utility Air Regulatory Group v. EPA, Scalia made a prominent declaration that appeared nowhere in his opinion: "It bears mention that EPA is getting almost everything it wanted in this case." This statement shaped early media coverage, which painted the decision as largely a victory for the EPA, even though the Court had struck down part of the agency's regulation in a 5-4 ruling. To similar effect, the Chief Justice (for the Court) and Justice Breyer (in dissent) went out of their way in their oral statements in McCutcheon v. FEC to emphasize their respect for one another's opinions -- thereby helping to preserve the Court's public image in the face of yet another 5-4 campaign finance decision.

Using the same technique, dissenting justices sometimes speak from the bench in order to alert and rally public opposition to the majority's opinion. These oral dissents -- which aren't typically shared in advance with other justices -- can diverge from the written dissents in marked ways. For example, in Parents Involved v. Seattle School District, only Justice Breyer's dissent from the bench included the memorable line: “It is not often in the law that so few have so quickly changed so much.” This unpublished remark likely surprised other justices, and some accounts indicate that members of the majority reacted to it with consternation. (For more, see Lani Guinier's magisterial treatment of oral dissents here.) Remarks like these illustrate the special tensions that sometimes result from uncoordinated joint press conferences.

It's hard to shake the sense that opinion announcements, particularly the high-voltage ones near the end of the term, resemble political events. This is not to say that the opinion announcements are partisan. Rather, opinion announcements are political in the sense that they offer a uniquely powerful opportunity for the Court to interface more directly with the polity, through the media. And though the justices increasingly engage the public through speeches and books, those avenues of communication are no substitute for immediate commentary on the decisions that form the heart of what the justices do. Opinion announcements give the justices a special opportunity to be heard outside their marble palace.

The virtue of opinion announcements depends in part on their goal. To the extent that the justices aim to educate the public and help it to understand and evaluate the business of the Court, opinion announcements are all for the good. And success at that educational mission will inevitably entail persuasion, as well as (one hopes) lively writing. But it's possible to take a good thing too far. To the extent that the justices use their bully pulpit not just to advance legal arguments but to take an active role in public debate, they risk casting the judicial branch as just another part of the political scene in DC -- to the detriment of the Court's long-term image. So when the justices read from the bench this week, they won't just be addressing discrete cases of great importance. They'll also be helping to define the Court's distinctive institutional role.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on June 25, 2014 at 12:33 AM in Law and Politics | Permalink | Comments (2)

Tuesday, June 24, 2014

A victory for the rule of law - apparently not

I had to edit this blog because literally as I posted it, the news changed.  Monday, Meriam Ibrahim, a Sudanese mother of two young children who was facing a death sentence for adultery for marrying a Christian man and apostasy after refusing to denounce her faith was released by court order.  As I previously wrote, her imprisonment violated Sudanese law.  Her release was a victory for the rule of law.  International pressure influenced this outcome.   But the victory was very short (less than 24 hours).  The breaking news is that she was rearrested at the airport and was taken into custody along with her two children and husband.

Unfortunately, Ibrahim is only one of many who have suffered (and are suffering) in this way.  There are many who endure tremendous human rights violations because of the lack of rule but who do not receive media attention.  Ibrahim's story illustrates my previous point - international pressure is one way to help bolster rule of law in developing countries, however, that may not be enough as evidenced by the re-arrest of Ibrahim.  Perhaps governmental officials who are threatened with a charge of a crime against humanity for failure to enforce their countries own laws will feel the weight of international shame and act to uphold the rule of law.

Posted by Naomi Goodno on June 24, 2014 at 11:13 AM in Criminal Law, Current Affairs, Gender, International Law, Law and Politics | Permalink | Comments (1)

Monday, June 23, 2014

Goldstein on journalism and SCOTUSBlog's press credential

This morning, the Standing Committee on Correspondents denied SCOTUSBlog's request for a congressional press credential. Tom Goldstein's response is here.

Posted by Howard Wasserman on June 23, 2014 at 01:15 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Thursday, June 19, 2014

Standing is easier when you're Younger

An open issue in the standing discussion in SBA List is the extent to which the threat of an administrative proceeding, a la a complaint about false electoral speech before the Ohio Elections Commission, constitutes sufficient harm to allow standing for a preenforcement challenge to the underlying statute. The Court emphasized that adminstrative proceedings impose burdens on time, cost, and distraction to possible speakers and that a Commission finding that some speech was false may be viewed by the public as a state-imposed sanction--all genuine injuries-in-fact. The Court cited Ohio Civil Rights Commission v. Dayton Christian Schools for the proposition that "If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not." But the Court ultimately punted on the question because Commission proceedings might be followed by criminal prosecution, presenting an additional element of harm in this case.

But the Court's hesitancy or ambiguity on this point is unwarranted and potentially troubling. There should be no question that genuinely threatened administrative enforcement proceedings should be sufficient for preenforcement standing.

Dayton was a Younger case, which held that federal courts must abstain in deference to ongoing coercive enforcement proceedings before a state civil rights commission. The portion of Dayton quoted  in SBA List was from Footnote 1, in which the Court quickly disposed of any ripeness concerns, citing two other Younger decisions, both of which involved threatened criminal prosecutions, Steffel v. Thompson and Doran v. Salem Inn.

The key is recognizing that connection between standing and Younger. Younger requires abstention in deference to three types of pending state proceedings, including civil enforcement proceedings, especially those in which the state is party to the proceeding and in which the state initiates the formal process following some other preliminary investigation. The Sprint Court expressly recognized the administrative proceedings in Dayton as of the type to which a federal court must abstain. And the Court has never suggested that administrative proceedings must be supported by criminal prosecution to trigger abstention; a purely civil administrative proceeding is enough. Younger does not require abstention where those civil-enforcement proceedings are threatened but not pending. The issue then is one of standing or ripeness (or both)--whether there is a sufficiently credible threat (how sufficient is the point of Marty's post) that any such proceeding will be initiated. This creates a window for individuals to get into federal court--in the time between when the threat of initiation becomes real and when proceedings actually have been initiated.

So now we can frame the standing question for preenforcement challenges in those terms. If there is a credible threat of initiation of any proceeding and it is a proceeding from which Younger would require federal abstention once that proceeding is initiated, then the plaintiff has standing (or the action is ripe, whatever) for a preenforcement challenge. This now preserves that window for getting to federal court. Otherwise, if a genuine threat of a purely administrative proceeding is not sufficient to trigger standing, then a plaintiff is forever blocked from that federal forum--he cannot bring a preenforcement challenge and Younger kicks-in once the government initiates the administrative proceeding. In SBA List, it seems obvious that a federal court would abstain once Commission proceedings were pending against a speaker--that is what the district court initially held in the case (before other things happened procedurally). Therefore, the real threat of those Commission proceedings alone--whether or not supported by criminal prosecution--should be enough to establish standing.

Posted by Howard Wasserman on June 19, 2014 at 07:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, June 17, 2014

IRS: "sorry, can't produce" or a bad example of hiding the ball?

Last week, the IRS stated that it lost numerous emails from Lois Lerner concerning the targeting of conservative groups for tax exempt status because her computer crashed.  And this week, the IRS is now revealing that it has lost numerous additional emails from key IRS officials.  Politics aside, it is interesting to think how this discovery issue involving electronically stored information (ESI) would be addressed in a federal court under the Federal Rules of Civil Procedure (FRCP).

The facts surrounding this issue almost read like a law school exam hypothetical.  The IRS received a subpoena to produce emails between key IRS officials and other government agents that might suggest targeting.  The IRS knew months ago, in February, that it could not produce the emails, but failed to inform Congress that the emails were lost until just the last few days.  The IRS has taken the position that the emails were lost during a computer crash in 2011 but that the IRS has made a "good faith" effort to find them having spent $10 million dollars (of tax payer money) to deal with the investigation including the cost to piece together what could be found.  The IRS does not deny that the recipients, other government officials, may still be in possession of the emails.  The IRS, however, maintains that because the subpoena was only directed at the IRS, not other government agencies, the non-IRS recipients of the emails are not required to produce them.

If this issue arose in federal court, under FRCP 26, parties are required at the outset to submit a "discovery plan" that includes how ESI will be retained and exchanged in order to prevent unnecessary expense and waste.  The FRCP requires the parties to take reasonable steps to preserve relevant ESI (a litigation hold) or face possible sanctions.  Under Rule 37's so-called safe harbor provision, however, "absent exceptional circumstances, a court may not impose sanctions ... for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."  The IRS is hanging its hat on this safe harbor rule by arguing that, despite a good-faith effort, the emails were lost.  Did the IRS, in fact, make a good faith effort?

While there is confusion among the courts on how to apply the good faith standard, there is precedent for a court to monetarily sanction the IRS if the court found that the IRS acted negligently when it lost the emails.  The court would also have the authority to issue an adverse inference instruction (inferring that the lost evidence would have negatively impacted the IRS's position), if it determined that the IRS acted grossly negligent or willful. 

An important fact which will probably be discussed during the next few hearings is whether the IRS violated its own electronic information retention policy.  The IRS was put on notice of the investigation last year, and so had a duty to put a litigation hold on the emails at that time (the very essence of what "good faith" means).  It seems that the general IRS retention policy of ESI was six months (although now it is longer), but emails of "official record" had to have a hard copy which would never be deleted.  Whether these emails constituted an "official record" is hard to determine since Lerner won't testify to their content. 

Even assuming the emails were lost before a litigation hold could be placed (or despite a litigation hold being in place), at the very minimum, it seems "good faith" means that the IRS should have notified Congress in February that it lost the emails.  Rule 26 would have required Congress to do so.  Indeed, such notice would have brought this issue to the forefront and could have saved a lot of money - the money it apparently has already cost to piece together some of the emails, and the money it will cost as the parties argue over whether the IRS negligently or willfully destroyed evidence.  If the IRS had been upfront from the beginning, then subpoenas could have been issued months ago to other agencies who, as employers of the lost email recipients, might have copies of the missing emails.

If this discovery issue had arisen in federal court, the IRS would have likely been subject to monetary sanctions and possibly an adverse inference instruction.  Shouldn't the IRS be held to these standards?

 

Posted by Naomi Goodno on June 17, 2014 at 06:03 PM in Civil Procedure, Current Affairs, Information and Technology, Law and Politics, Tax | Permalink | Comments (7)

Monday, June 16, 2014

Standing, ripeness, and SBA List

Not surprisingly, SCOTUS in Susan B. Anthony List v. Driehaus reversed the Sixth Circuit and held that the First Amendment challenge to Ohio's prohibition on knowingly or recklessly false campaign speech was justiciable; Justice Thomas wrote for a unanimous Court in a challenge brought by a group that wanted to run ads suggesting that supporting the Affordable Care Act means supporting taxpayer funded abortions. A few things of note (in addition to Richard's comments).

Injury-in-fact is established for purposes of a preenforcement challenge when the plaintiff alleges an intention to engage in some conduct "arguably affected with a constitutional interest" that is prohibited by the challenged statute where there is a credible threat of prosecution. That threat be shown by past prosecutions against similar conduct by the plaintiff or others similarly situated and by the absence of any disavowal of intent to prosecute. Threat may also include bringing administrative proceedings (such as those at issue here), at least when combined with a threat or risk of criminal enforcement (the Court left open whether administrative proceedings alone is enough of an injury to create standing).

Although this is a free speech case and the Court relied on many free speech cases (especially Steffel v. Thompson and Babbitt v. United Farm Workers), the Court spoke about all preenforcement challenges generally. It did not suggest, as some lower courts have said, that there is a lesser standard or reduced burden for free speech cases, but that more is required as to other constitutional rights. This arguably could change lower-court analysis of challenges to, for example, some abortion regulations.

At the same time, the Court did not demand the certainty of injury (i.e., state enforcement of the law) that the Court appeared to require just last year in Clapper v. Amnesty International. The Court did cite Clapper's statement that "allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a 'substantial risk’ that the harm will occur," but it focused more on substantial risk and did not demand a similar level of certainty. Although the Court does not discuss it, I think the difference lends support to my idea that the Court silently treats standing differently when the challenged law regulates primary conduct of individuals (i.e., whether they can engage in some political expression) as opposed to laws regulating what law enforcement officers can do in investigating oro pursuing criminal activity (i.e., whether they can surveil calls or use chokeholds).

Note that the Sixth Circuit had also analyzed the imminence of the threat of prosecution, concluding it was not sufficiently imminent. But it held that the lack of imminence meant the case was not ripe, while SCOTUS addressed the same question in standing terms. Justice Thomas noted Medimmune's footnote 8 that both standing and ripeness "boil down to the same question," and insisted on speaking in standing terms because that is what prior cases have done.

But the Court did not explain what is the proper realm for these doctrines and how litigants and courts are to know. To the extent standing and ripeness remain distinct aspects of justiciability, how are we to know which to argue? Lea Brilmayer long ago argued that standing arose when the plaintiff wanted to challenge a no-lawn-sign ordinance because his neighbor wants to post the sign, while ripeness arose when the plaintiff did not want to post the sign until next year. But standing cases (certainly since Lujan and including SBA) have focused on plaintiff's present intent and immediate plans to engage in some conduct (such as going to see the Nile crocodile), which sounds like ripeness as Brilmayer has defined it. Or we might say that the plainiff's immediate intent to engage in some conduct goes to standing, while the likelihood that the government will act to enforce goes to ripeness. But SBA discussed both of those as distinct elements that together went to standing.

The Sixth Circuit did consider two additional "prudential" elements for ripeness beyond imminent threat of prosecution--whether the factual record is sufficiently developed and the hardship to the plaintiffs if judicial relief is denied at this stage. SCOTUS cited its decision in Lexmark to suggest that such prudential factors no longer are part of any justiciability analysis, including ripeness (the focus of Richard's post). And even if they were, the Court disposed of both in a short paragraph, hinting that, at least where there is a legitimate threat of prosecution (creating standing), a preenforcement challenge to the constitutionality of a law always will be ripe.

So what role, independent of standing, if any, does ripeness continue to play in constitutional litigation?

Posted by Howard Wasserman on June 16, 2014 at 04:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, June 13, 2014

The Two Newest Faces of the Problem with the Lack of the Rule of Law - a Newborn and a 20-month Old

As a tangential follow-up to my previous post concerning the use of a crime against humanity charge as a way to bolster the rule of law, another heart-wrenching story is gaining international attention. 

Meet Maya, the first U.S. citizen to be born in a Sudanese prison while her mother was shackled to prison walls.  Meet Martin, Maya's twenty-month old bother, who is probably the second youngest U.S. citizen to be sitting in a Sudanese prison.  Their father is a U.S. citizen.  Their mother is Meriam Ibrahim, a doctor and a Sudanese citizen, who has been sentenced by a Sudanese court to 100 lashes for adultery because she married a non-Muslim man and to death by hanging (once Maya is weaned) for apostasy for refusing to denounce her Christian faith.  Ibrahim was found guilty of apostasy because it was determined that she was Muslim even though she testified she was Christian and raised by her Christian mother when her Muslim father abandoned the family.  The trial raises due process issues since three of Ibrahim's witnesses were not allowed to testify.  

There are clear human rights violations and violations of Sudanese law.  Ibrahim's imprisonment violates the International Covenant on Civil and Political Rights, which, since Sudan has ratified the treaty, guarantees that all Sudanese citizens "have the right to freedom of thought, conscience and religion" and due process of law.  Sudan has also ratified the African Charter on Human and People's Rights which also guarantees freedom of religion and due process.  Indeed, Sudan's own 2005 interim constitution specifically guarantees the "right and freedoms enshrined in international human rights treaties" ratified by Sudan.  Ibrahim's case (and the impact on her children) graphically illustrates the rule of law problem - the laws are in place but not enforced.

The pressure from the international community caused some movement, albeit ineffectual as it currently stands.  A few weeks ago the Sudanese government pledged Ibrahim's release, but recanted a few days later.  This probably is not surprising given the government is headed by Omar al-Bashir who has an outstanding ICC warrant for CAH for his actions in Darfur.  What can be done?  What should be done?  Perhaps with continued and more world-wide pressure (which should be headed by the U.S. given that some of the youngest U.S. citizens - Maya and Martin - are sitting in deplorable conditions), there might be another small step forward even if it simply means more discussion about and attention given to the lack of the rule of law and the consequential human rights violations of women and children.  More legal attention and monetary support should be put in place to uphold the rule of law. 

Posted by Naomi Goodno on June 13, 2014 at 05:25 PM in Criminal Law, Culture, Current Affairs, Gender, International Law, Law and Politics, Religion | Permalink | Comments (1)

Thursday, June 05, 2014

'Bring Back Our Girls' - Failure to Enforce the Rule of Law as a Crime Against Humanity

The media has been saturated with stories of violence against children and women in developing countries and the lack of meaningful action by government officials.  As a recent example, hundreds of girls in Nigeria were kidnapped from a boarding school and Nigerians have criticized the government for failure to sufficiently act.  In India, two girls were raped and hung from a mango tree while, villagers allege, the police stood by.  In Pakistan, a pregnant woman, while literally standing on the courthouse steps of a high court, was stoned to death by relatives even though such "honor killings" are illegal. 

Many developing countries have well-written laws dealing with such issues as violence against women and children, bonded labor, property grabbing, and the general administration of justice, but a large swath of the most vulnerable part of the population (the poorest, the women, and the children) fail to receive protection or justice.  No doubt, there is a rule of law problem.

Rule of law issues are complex.  Developing countries do not have the funds to enforce laws.  Citizens of developing countries are often unaware of their rights and protection under the law.  Corruption is a problem throughout law enforcement agencies and the justice system, from the police to the prosecutors and the judges.  The international community needs to do more to help battle this corruption (of course, this is not to say that we don't have our own major corruption problems on the domestic front).  The rule of law problem is so pervasive in some of these countries that all the good NGOs do by providing food, education and health care is overshadowed by the violence that the most vulnerable populations face daily.  Focus (and funds) should be shifted away from simply providing material aid, and instead more attention should be given to establishing the rule of law. 

It doesn't matter how healthy or educated a young girl is if she is raped without any recourse or murdered without any justice.  This is the subject of my current research project where I argue that the failure by high ranking government officials to enforce their countries' laws could establish a crime against humanity under the Rome Statute.  A systematic failure to protect a large portion of the population (i.e., women and children) from murder, rape and other inhumane acts fits the definition of a crime against humanity.  There are some potential problems with this analysis, though. 

Even if the failure to enforce laws (an act of omission) could constitute a crime against humanity, could anyone really be charged?  Many developing nations (including India and Pakistan) have not ratified the Rome Statute.  However, the U.N. Security Council has referred a few matters (Sudan and Libya) to the International Criminal Court.  In the Sudan matter, the ICC issued an arrest warrant for the leader of Sudan under the Rome Statute even though Sudan is not a party member.  With enough international pressure, perhaps the Security Council would act again.  Even if it did not, some of the countries where gender and children violence is pervasive are parties to the Rome Statute (like Nigeria).

Second, and perhaps more important, even if a government official is charged with a crime against humanity, so what?  The ICC is struggling with number of issues, including the problem of enforcement.  Despite the issues surrounding the ICC, however, the shame brought upon an individual with a crime against humanity charge (or investigation) might send a strong message that the international community believes in the rule of law.

Posted by Naomi Goodno on June 5, 2014 at 03:39 PM in Criminal Law, Current Affairs, Gender, International Law, Law and Politics | Permalink | Comments (2)

Monday, June 02, 2014

Please stop, Chief

From Bond v. United States:

"[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard." (in fairness, the kitchen cupboard language was in the Third Circuit's opinion). Earlier, Roberts posed a hypothetical about "[a]ny parent . . . when, exasperated by the children’s repeated failure to clean the goldfish tank, he considers poisoning the fish with a few drops of vinegar." (Seriously? Seems like extreme parenting).

I have wondered before whether Robert's penchant for these flourishes makes for good writing or whether it is incredibly distracting. I am still wondering.

Posted by Howard Wasserman on June 2, 2014 at 02:23 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Saturday, May 31, 2014

Donald Sterling v. NBA: Your new Civ Pro exam

Donald Sterling sued the NBA to stop his league-imposed punishment and the forced sale of his team. A $ 2 billion offer from Steve Ballmar was accepted by Sterling's wife, Shelly on behalf of the trust that owns the team, having had Donald declared mentally incompetent; the NBA has approved that deal and canceled a planned hearing of the Board of Governors (the other 29 owners) to strip Donald of ownership. The lawsuit, with Sterling and the trust as plaintiffs against the NBA, asserts claims for a violation of the state constitution, federal antitrust, and various breach of contract claims; it seeks damages and an injunction halting the NBA-imposed punishments (a $ 2.5 million fine and lifetime suspension from the NBA) and the hearing to terminate his ownership.

Oddly, these claims are either not ripe or about to become moot, depending on what happens with the sale. The NBA has not yet held the hearing to terminate his ownership, so he has not yet suffered any damages from it. And since the league will cancel the hearing if the sale goes through, that claim becomes moot. If the sale goes through, expect the league to rescind the fine, mooting that element of relief. It might even lift the lifetime suspension--what involvement will Sterling have with the league if he is no longer an owner?--mooting that claim. And assuming the sale goes through, what damage will Sterling have suffered? Two billion dollars will be more than double the sale price of any NBA franchise and likely more money than he would have earned from continued ownership of the team. So, at best, maybe he can get the non-economic value of being an NBA owner--except he is such a pariah now among NBA owners that it would be hard to put any real value on this.

What Sterling really wants is an injunction halting the sale of the team, at least pending outcome of the litigation. But to get that, Shelly Sterling needs to be involved in the case, since she claims an interest in controlling the trust and pushing through the sale. So either she has to be joined under FRCP 19 or she will try to intervene under FRCP 24. (Note: I don't do much more than lecture on these two rules, just to show other ways of bringing parties into cases But Rule 19 confuses students, who think it applies more broadly to cover simple joint-tortfeasor situations; having a nice clear example, purely involving injunctive relief, is helpful).

Jurisidction here hinges on the antitrust claim and § 1331; there is supplemental jurisdiction over the state law claims (although Sterling's lawyer--who in an ongoing media blitz has come across as the worst kind of slickster lawyer who does not actually care about things like law and procedure--did not mention that or any other basis for jurisdiction over the non-federal claims). But, here is where it gets fun. Antitrust experts generally agree that the antitrust claim is nonsense--Sterling signed a series of agreements and contracts to become owner of an NBA franchise and cannot claim harm if those contracts harm the public or competitors. Sterling really is arguing that, by violating its own Constitution and By-Laws in punishing him (arguments that are not entirely frivolous), the NBA has breached those agreements; in other words, this is really a state-law case. So perhaps the court declines supplemental jurisdiction under § 1367(c)(2) because the state claims predominate. Moreeover, the court is going to have to figure out who controls the trust (Donald or Shelly) and, perhaps, whether Donald is competent. Those sound like potentially complex issues of state law, warranting the court to decline jurisdiction under § 1367(c)(1). Finally, and most obviously, if the antitrust claim is that weak and the court dismisses it relatively early, it could decline jurisdiction simply for that reasons under § 1367(c)(3).

Update: An alert reader emails with another way Shelly Sterling could be brought into this case: She agreed to indemnify the NBA for any judgments arising from the sale of the team, including for lawsuits by her husband. So, having been sued, the NBA could now implead Shelly and the trust to enforce the indemnification agreement in the same action. Sterling then could assert claims against Shelly relating to any injunction of the sale.

Posted by Howard Wasserman on May 31, 2014 at 11:02 AM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Thursday, May 29, 2014

More statutory interpretation from Donald Sterling

Donald Sterling filed his Answer in the NBA's proceedings to force him to sell the LA Clippers. And as before, it involves a wealth of statutory interpretation questions.

Sterling leads off by challenging the NBA's reliance on the secretly recorded conversations as evidence, which gets interesting. He points to California Penal Code § 632(a), which prohibits recording confidential communications without consent, and § 632(d), which excludes "evidence obtained as a result of eavesdropping upon or recording a confidential communication . . .  in any judicial, administrative, legislative, or other proceeding." From this, Sterling insists he has a constitutional right not to have his private conversations recorded or having the evidence of his conversations used against him. That seems overstated--that the state offers a statutory protection against being recorded in furtherance of the constitutional right of privacy does not convert the right against being recorded into a constitutional right.

The interesting statutory question is whether internal dispute-resolution proceedings of a private organization constitute an "other proceeding" under § 632(d). On one hand, the language seems to contemplate public proceedings, since the three enumerated types of proceedings are all public in nature. So under ejusdem generis, that catch-all should be read to cover only similarly public proceedings. It also makes sense that the criminal code would regulate evidence in public but not private proceedings. On the other hand, are there any public proceedings that are not judicial, administrative, or legislative? If not, then "other proceedings" must mean something not public. Perhaps it refers to something like arbitration or mediation, which can be considered quasi-public--they are privately controlled processes to which parties agree to send otherwise-public disputes. But this proceeding still seems different. This is not a situation in which the NBA established an outside-but-private process (such as arbitration of appeals under the CBA with the players' union). This is the collection of 30 owners establishing their own internal processes controlled by the 30 owners, for regulating who stays within their own ranks. Even if § 632(d) goes beyond public proceedings, the NBA process still seems fundamentally different.

Finally, the answer may be affected by the 2001 decision in Bartnicki v. Vopper. Bartnicki held that Congress could not punish publication of an illegally intercepted and recorded phone call, where the publishers were uninvolved in the unlawful interception or recording. The First Amendment protects publication (and, implicitly, other uses) of truthful lawfully obtained information on matters of public concern, except where the government is serving a need of the highest order. So perhaps the NBA could argue that it is entitled under Bartnicki to use the laefully obtained (and thus constitutionally protected) recording in its private internal proceedings, meaning California law is limited only to public, California-established proceedings, but not to whatever private proceedings private persons and entities may adopt.

Posted by Howard Wasserman on May 29, 2014 at 09:31 AM in Current Affairs, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Tuesday, May 27, 2014

The awfulness of Wood v. Moss

OK, if Town of Greece did not get me too worked up, Tuesday's decision in Wood v. Moss (summary here), while not surprising, is so bad as to have me going the other way. And this was a Ginsburg opinion for a unanimous Court, so I am all alone on the island on this one. The Court held that two Secret Service agents enjoyed qualified immunity because no case law had held that agents engaged in crowd control were obligated to ensure that competing groups are at comparable locations or given equal access at all times when reasonable security concerns are in play. Sounds simple enough, but inside the opinion is a lot of really bad stuff.

First, the Court makes explicit (it previously was implicit) that the absence of qualified immunity is an element of the claim, rather than qualified immunity being an affirmative defense. The Court stated that the plaintiff must plead facts, under the Twiqbal standard, showing that the defendants violated a constitutional right and that the right was clearly established. So this means qualified immunity is the default starting point--a plaintiff must carry the burden of persuasion both as to the facts on the ground and the state of the law.

Second, for the third time, the Court assumed without deciding  that a Bivens could be used for First Amendment claims (the issue was not preserved below). Eventually some defendant will be smart enough to preserve this issue (the hints are there) and the Court will resolve it--and likely not in a good way.

Third, while the Court purported to resolve the case on the second prong of the qualified immunity analysis (no clearly established right ) rather than the first (no right violated), the analysis kept conflating the prongs and moving back and forth between them--there was a lot of discussion about why there was no violation here because the agents were motivated not by viewpoint discrimination but by security concerns. This is partly a consequence of the Court's insistence that the second prong must consider the right in the particular factual context and not at too high a level of generality, which invites entwinement of the two prongs. But the analysis (particularly at pp. 14-end) is all about why the agents were justified in moving the anti-Bush protesters (but not the pro-Bush protesters) in this case, not about anything having to do with prior case law. That sounds like the Court saying the plaintiffs did not sufficiently plead a violation.

Fourth, the decision does not leave any obvious room for protesters to ever challenge Secret Service decisions regarding crowd control (which is what Justice Scalia urged during argument). The Court pays lip service to the principle that "government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views those persons express." And it insists (as the defendants conceded) that the First Amendment might be violated if the agents moved some protesters with "no objectively reasonable security rationale." But that principle will virtually always be trumped by the overriding concerns for protecting the President and it is impossible to imagine a case in which a court would find that the Secret Service lacked an objectively reasonable security rationale while protecting the President. Indeed, the only purported security rationale in this case was keeping the protesters out of "weapons range" of the President (Ginsburg repeats that phrase four times), even though there is no indication on the facts pled that anyone had or planned to use a weapon. Someone being in range raises, per se, a valid security rationale.

But the Court then summarily dismissed any significance of allegations regarding the diners permitted to remain inside the restaurant--obviously in "weapons range" of the President--as undermining the security rationale. The justices simply accept the defendants' argument that the diners “'could not have had any expectation that they would see the President that evening or any opportunity to premeditate a plan to cause him harm,'" and thus were not a security risk, even if within weapons range. Of course,the anti-Bush demonstrators also did not expect to see the President in the open courtyard; they originally only expected to be able to stand along the path of the President's motorcade as it drove by (with pro-Bush protesters on the opposite sidewalk). So they, too, could not have had any opportunity to premeditate a plan. If the diners were not security threats because they were not expecting to be near the President, then neither should the protesters be security threats. Except for one difference--the protesters held anti-Bush views and were there to express those views. So is the Court saying that everyone who disagrees with the President is a security threat if in weapons range and thus can constitutionally be kept from getting "too close" to the President (at least when he is outside his secure car)?

Fifth, the Court does a lot of factfinding (without acknowledging as much, of course) on a case that remains at the pleading stage. The Court finds and accepts the defendants' security rationale, even though the defendants still have not answered the complaint or offered their own factual allegations or evidence. The Court makes determinations about what maps of the area, included as part of the Complaint, show (perhaps another example of plaintiffs pleading themselves out of court by providing the additional information needed to comply with Iqbal). And the Court rejects inferences about differential treatment of the protesters as compared with the diners. It appears to be apply Iqbal's "obvious alternative explanation," although without saying so. Otherwise, these at least should be matters for discovery and summary judgment, if not the factfinder.

Finally, the plaintiffs alleged past instances of viewpoint discrimination by other Secret Service agents; they were trying for an inference from these past instances to an informal agency policy of viewpoint discrimination to the individual defendants acting pursuant to that policy. The Court rejected this out of hand, insisting that Bivens liability can attach only to the officer's own misconduct and declining to accept the plaintiffs' inferences. Putting aside that reasonable inferences should be drawn in the plaintiffs' favor on a 12(b)(6) motion, this seriously cramps the ability to ever plead viewpoint discrimination in the absence of an agent dumb enough to announce that he is moving speakers because of their viewpoint. Moreover, the Court points to the agency's official policy--which expressly prohibits viewpoint discrimination--as evidence that the agents did not act improperly. But repeated past instances of ignoring official policy at least raise an inference that officers regularly ignore official policy, suggesting that these officers also ignored the policy. At the very least, that should be enough at the pleading stage.

As I pointed out previously, at oral argument Justice Kennedy mused that "it seems to me that if this complaint doesn't survive, nothing will." And given what the Court finally said in this case, nothing will.

Posted by Howard Wasserman on May 27, 2014 at 08:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, May 26, 2014

Legal movie recommendation: "Shenandoah"

My wife's late father grew up in Shenandoah, PA (apparently, pronounced Shen'-en-doe-uh), a coal-mining town in east-central Pennsylvania populated (like many of these towns) by people of eastern European descent  (Poland, Lithuania, etc.). Back in the day, there was a small Jewish population in town that was received about as you would expect for the '40s and '50s; my father-in-law told of suffering anti-Semitic bullying (and worse) growing up and of rocks being thrown at the houses that were not decorated at Christmastime. My wife has not visited since she was a teen-ager (her family is gone from the area).

So she was struck to learn, belatedly, about a documentary called Shenandoah: The story of a working class town and the American dream on trial, released in 2012. It tells the story of the 2008 beating death of Luis Ramirez, an undocumented immigrant from Mexico living in town, by six white members of the high school football team (who shouted ethnic slurs during the attack) and the ethnic, xenophobic, divisions it created in the community. Two players were tried on third-degree murder and related charges in state court, but acquitted on all but simple assault; they then were convicted of federal hate crimes (here is the Third Circuit opinion affirming those convictions). One player pled guilty to federal hate crimes and testified against the other two. And a fourth attacker was a juvenile and not tried as an adult; he cooperated and received probation. (Several police officers also were charged with various federal crimes for helping the players cover-up the crime, with mixed results).

The movie simultaneously tells the story of the murder and the subsequent state court proceedings, of the football's team's unsuccessful season following the attack (playing without several key players), and of a struggling industrial town and how it is dealing with changing demographics. It is definitely a film worth seeing. A couple of thoughts on the film and the story.

One is the role of narrative choice. A main participant in the film was Brian Scully, the juvenile who received probation for his role in the attack. Scully is portrayed very sympathetically in the film--he is remorseful and thoughtful about what they did and how wrong it was, and he is seen achieving some redemption in joining the school musical (the football coach would not allow him to play while charges were pending) and graduating. But the facts in the Third Circuit opinion describe Scully as being more centrally involved in the assault, including in shouting ethnic slurs. The movie shows that the state-court defendants tried to shift blame to Scully, but it portrays this as an unfair lawyer move (that was unfortunately successful).

Second the film portrays the ethnic tension as something new, a product of the town's relatively new economic struggles and the new wave of Mexican immigration. But my father-in-law's experiences suggest that this tension is nothing new; there always have been insiders and outsiders in this community and outsiders have not been treated well. And the smallness of the town (there was much "celebration" of the small town in the film) exacerbates those problems, because outsiders simply stand out more. One of the more disturbing events was a rally in support of the defendants, with attendees wearing shirts and carrying  signs with messages like "I'm American and I speak English" and singing "patriotic" songs. It degenerated into people shouting epithets and sexually offensive comments at the victim's (Anglo) fiancee, who was there as part of a counter-protest. The tenor of the rally was captured by a speaker who said something to the effect of "he didn't deserve to die, but if he had stayed in his own country, he'd be alive today." There concededly is no good way to protest on something like this without looking like a bigot. But you can help yourself by not saying and doing bigoted things.

Third, I did not know that the Fair Housing Act has a hate-crimes provision, which was the basis for the federal convictions of the two assailants. The provision criminalizes violence, threats, or intimidation because of the victim's race and because he is occupying a dwelling or with the intent to prevent him from occupying a dwelling. The goal would appear to be stopping cross burnings and other acts directed at keeping people from integrating neighborhoods. But in affirming the conviction, the Third Circuit made clear the statute reached all conduct motivated by dislike of particular people seeking to live in an area. Statements made during the attack about this being "our town" and telling the victim to go home to Mexico and that he did not belong in Shenandoah, along with evidence the defendants generally did not like the influex of Mexicans into town, all suggested an intent to intimidate him and other Mexicans from dwelling in Shenandoah.

Posted by Howard Wasserman on May 26, 2014 at 09:23 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, May 13, 2014

Uncommon Law: Social Welfare and Corporate Governance in the Common-Law World

 

Reports of the uniformity of corporate governance among common law jurisdictions are greatly exaggerated (at least when it comes to shareholder rights and security, anyway).  This is an essential descriptive thesis of Chris Bruner's Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power.  It also is undoubtedly an engaging topic for a book--one that demanded my attention and resonated with me almost immediately.  In research I did a few years ago for what ultimately became a draft paper and book chapter, I had explored the validity of claims of international convergence in insider trading regulation and found much the same thing that Bruner finds in this book: facial similarities in legal structures and doctrine may mask more interesting and telling differences.

The descriptive account is important, but it is not the heart and soul of the book.  Rather, the core value of the book is that it strikes out beyond culture, history, and economics to politics--specifically, social welfare politics--to explain the differences among the corporate governance systems in the four jurisdictions studied--the United States, the United Kingdom, Australia, and Canada.  By demonstrating that changes in shareholder power and protections vary with social welfare dynamics, the book begs a far more significant conclusion: that corporate governance oppresses and empowers the populace in much the same way that state government does and that the corporation therefore may be an arm of or a substitute for state government in promoting or effectuating policy.  This take-away is unsurprising to me; it is intuitive and sometimes obvious in other contexts.  Nevertheless, the weight of proof is hard to come by, and I am grateful for Bruner's work in providing it.

Many elements of the story are compelling.

 In light of debates here in the United States about the role of shareholders in the corporate form, it was of particular interest to me that the U.K. Companies Act (which I have not independently studied to an significant degree) casts shareholders in the role of principals that can dictate the activities of corporate directors.  I had seen evidence of shareholder centrism in takeover regulation in the U.K. (which I teach in Comparative Mergers & Acquisitions, when I get the chance to teach that course), but the revelation that this shareholder-friendliness extends to the broader management function of the firm helped to explain and normalize the pro-shareholder mergers and acquisitions doctrine.  

This observation about the doctrine also demonstrates a fundamental difference between the doctrine in the United States and the United Kingdom:  in the United Kingdom, the board is an agent of the shareholders.  While folks try to make that argument under U.S. law, the agency is not complete given, among other things, the inability of shareholders to direct the board (in most cases).  In this aspect, the book's account of U.S. corporate governance offers support, at least from a comparative perspective, for the descriptive accuracy of Steve Bainbridge's evolving director primacy theory.  At the very least, as Bruner notes, it is "explicable as a rejection of strict shareholder primacy."  See p. 44.  On that note, for those who haven't watched the videos of the recent UCLA Lowell Milken Institute event, A Conference and Micro-Symposium on Competing Theories of Corporate Governance, I highly recommend them.

I wonder (and I do not mean for this to be a mere rhetorical question) what, in light of Bruner's observations on U.S. corporate law, he might have to say about the introduction of social enterprise entities into state corporate law in the United States.  In the past few years, we have seen in the United States the rise of benefit corporations, flexible purpose corporations, and the like (following on the introduction of  B Corp certification and low-profit limited liability companies--L3Cs).  This social enterprise entity movement (if you will) is in part a response to the lack of shareholder power under U.S. law to manage the business and affairs of the corporation--specifically, to ensure that the directors take into account social and environmental concerns in addition to traditional, financial shareholder wealth maximization.  Yet, that account differs from Bruner's assessment in the book on other-constituency statutes like those in Indiana and Connecticut, see p. 44, which he characterizes as a "marginalization of shareholders."  See also pp. 171-73.  (I see Andrew also picks up on this thread.)  The cultural, historical, economic, and political aspects of the emergence of social enterprise entities raise interesting questions that I would find to be a fruitful subject for further commentary.  To the extent they may affect public companies (who may become and are acquiring social enterprise entities), the matter deserves thoughtful consideration.  I can see how a treatment of this issue could both substantiate and challenge Bruner's observations about shareholder power under U.S. corporate law.

On a lighter note, as a securities law teacher and researcher, I also enjoyed the brief part of the book that explained the allocation of securities regulation authority in the various federal systems represented by the United States, Australia, and Canada.  See p. 78.  The issue of where authority in securities regulation resides in state governments outside the United States is always troublesome for those of us who desire to teach foreign law but have spent our time in the thickets of U.S. securities law.  In other words, it's always difficult to find securities law in a new jurisdiction when searching for it from an ethnocentric perspective . . . .  Here, I was admittedly a bit chagrined that U.S. securities law was classified as national law both as a default and in practice.  Although the book only purports to address public companies (which admittedly are largely regulated under federal securities law in the United States), I would argue that a lawyer for a public company who forgets to check on the applicability of state securities law for a particular transaction is committing malpractice.  This is true notwithstanding the breadth of constitutional power under the Commerce Clause and the resulting strong preemption provisions in the National Securities Markets Improvement Act of 1996.  But I may be misunderstanding Bruner's analysis here.

No matter.  The book is a good read (well written and provocative) and promises to generate much conversation here at Prawfs and elsewhere.  It conveys a lot of information in a relatable and accessible way.  I recommend it for your summer reading list.

Posted by joanheminway on May 13, 2014 at 03:09 PM in Books, Corporate, Law and Politics | Permalink | Comments (0)

Tuesday, May 06, 2014

Town of Greece and Iqbal

A funny thing about Town of Greece v. Galloway: I am not outraged or panicked about the future, as I somehow feel I should as a Jewish liberal Democrat. (Update: Perhaps I am not alone). I would have dissented were I on the Court, but I do not see the majority as tragically wrong. Maybe because Paul is right. Maybe because I know I am a religious minority and am not bothered by being reminded about that. Maybe because I do not attend town council meetings. Maybe because I have never lived in the type of community likely to use this decision as a reason to start those council meetings with pervasively sectarian or proselytizing prayers.

I do find troubling the utterly illusory nature of the (already small) opening the plurality left for challenging legislative prayers. Justice Kennedy stated this opening three different ways: "If circumstances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course." And "[c]ourts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood." And "[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose," there is no constitutional violation.

But it seems unlikely that a plaintiff will ever be able to make this showing. More problematically, it seems extraordinarily unlikely that a plaintiff will even be able to even sufficiently plead this under Iqbal (perhaps not coincidentally, another Kennedy opinion over a four-Justice dissent) so as to have an opporuntity to make the showing. It is easy to imagine the Court sweeping the complaint aside by finding an “obvious alternative explanation” for the government practice that is more plausible than the conclusion of an Establishment Clause violation. So, as in Town of Greece itself, that decade-long streak of only pervasively Christian prayers are a result not of impermissible purpose, but of bureaucratic over-simplification (using the Chamber of Commerce's limited list of houses of worship) or the fortuity of geography (the synagogue is on the other side of the imaginary town line).

Update: Dahlia Lithwick reports that Al Bedrosian, a member of the Roanoke County (Va.) board of supervisors has announced that he will seek to impose a Christian-only prayer policy, admitting that he probably would not allow any other religions, because America is a Christian nation and adherents to other religions are free to pray on their own. Public statements such as this make it easy enough to state a claim. The problem is that most public officials are smarter, saner, or subtler than Bedrosian, or will quickly learn to be. Then, much as with employment discrimination, cases become more difficult to prove and plead.

Posted by Howard Wasserman on May 6, 2014 at 05:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Saturday, May 03, 2014

Sen Elizabeth Warren's New Memoir of Special Interest to Law Profs

There are a lot of reasons why law professors should read Senator Elizabeth Warren’s recently published memoir--“A Fighting Chance."  The top two are that it's well-written and frequently very funny.   (for full effect--I suggest the audio version that the Senator narrates herself).

Beyond that, not only is it a lucid explanation of the banking industry’s efforts to limit the ability of creditors to make a fresh start through declaring bankruptcy, it is an account of her extraordinary academic career--one that she achieved without any of the traditional criteria such as academic pedigree, powerful mentors, family connections, prestigious fellowships or judicial clerkships.  For those unfamiliar with her as Bankruptcy Professor-here are some posts she has made on the Credit Slips blog.

She also closely documents her struggles to balance family, both her children and elderly parents (and pets).   There is a lot for law professors to unpack here--including how her interest in the people behind the laws has shaped her career. 

But more generally, I look forward to discussing how critical it is for the future of legal education that Senator Warren succeed in convincing her colleagues of the need to reform the way higher education is financed.   Whether she herself has the best plan for fixing student loans—well different people have different views-including just eliminating them.   But unless we can stop the ever increasing cycle of debt that is making our students’ lives so difficult, any of the important changes that need to be made in legal education risk being about as effective as bailing out a sinking boat with a bucket that itself has a hole in it.

 As I will elaborate later, I’m very optimistic that we can all create a program about which students can say 5, 10, 15 years later that they are better off for having gone to our law school.  But we’re probably not there now.  Rather, we are in a situation similar to being attacked by a hive of bees.  Every individual bee, lack of job opportunities, bimodal salary distributions,  drop in state support for public institutions, lack of transparency about student outcomes, out dated curriculums, disconnect between the classroom and the practice of law, imposition of a value system that drives law students into disproportionate levels of depression that may well follow them  throughout their careers, is capable of inflicting painful or even lethal stings.   But the breach in the hive comes from a level of student loan debt that cannot be supported by any reasonably obtainable career path.  It’s not a perfect metaphor—student loan reform is necessary but not sufficient to developing a legal education that better prepares our students for the important role they will play in society. 

Posted by Jennifer Bard on May 3, 2014 at 01:33 PM in Books, Culture, Current Affairs, Law and Politics, Life of Law Schools, Teaching Law | Permalink | Comments (1)

Friday, May 02, 2014

Churches and marriage equality, ctd.

Chanakya Sethi at Slate reads the North Carolina anti-SSM stautes the same way I did -- as prohibiting civil ceremonies, not purely religious ones having no civil effect -- as do an expert on North Carolina family law and religious law scholar Doug Laycock.

Posted by Howard Wasserman on May 2, 2014 at 08:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Thursday, May 01, 2014

Two additional thoughts on the Sterling suspension

Yesterday I questioned the precise basis for the NBA's suspension of Clippers owner Donald Sterling. On further reflection, I want to consider some additional interpretive points.

First, I noted that the NBA Constitution and By-Laws contain two provisions--Article 35A(c) allows for a fine of up to $ 1 million for statements prejudicial or detrimental to the league and Article 35A(d) allows for a suspension and/or a fine of up to $ 1 million for conduct prejudicial or detrimental to the league. Commissioner Adam Silver must have relied on 35A(d), since 35A(c) does not allow for a suspension. But I questioned that usage. Sterling's misdeeds involved statements and the existence of distinct prohibitions--one regulating conduct and one regulating statements--suggests that the statement-specific provision should have been used here, which would make the suspension inappropriate.

But now I am wondering whether I am reading 35A(c) incorrectly. Perhaps the "statements" it prohibits are those that directly criticize the league or something about the league, for example game officiating (many a fine has been imposed on a coach or owner for doing that). But it does not reach statements about something else that, because of their viewpoint, happen to make the league look bad. That would instead be treated as "conduct" and pulled back within the more-general regulation of 35A(d).

Second, I am wondering if Silver simply jumped to the catch-all power of Article 24(l) to make decisions and impose punishments in the best interests of the NBA for all three sanctions, ignoring anything in Article 35A. Article 24(l)  allows for a range of penalties, including suspension and a fine up to $ 2.5 million. If so, it brings to even sharper light the question of how he could do that, since, again, 24(l) only operates when "a situation arises which is not covered in the Constitution and By-Laws." This means Silver should have at least glanced at 35A(c) and/or (d), which do seem to cover this situation.

Posted by Howard Wasserman on May 1, 2014 at 11:03 AM in Current Affairs, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1)

Sunday, April 27, 2014

Cheering speech

BmQFxDMCAAI9Qni(H/T: Deadspin)

Why I have spent so much time arguing about fan speech and stadiums as public forums--because it allows expression such as this. But I wonder two things: 1) Did ABC show this or did the NBAorder them not to? 2) Would the Warriors/the arena have taken the signs were the wave of public opinion not running so overwhelmingly against Sterling?

Posted by Howard Wasserman on April 27, 2014 at 05:33 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

On animal rights

Sunday's New York Times Magazine reports on efforts by the Nonhuman Animal Rights Project and attorney Steven Wise to establish rights for certain breeds of autonomous animals (chimps, orcas, dolphins, etc.), using state habeas petitions in New York. It's an interesting read; Richard Epstein is interviewed for the competing position.

Posted by Howard Wasserman on April 27, 2014 at 04:56 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, April 16, 2014

Standing and the proper defendants

To absolutely no one's surprise, a panel of the D.C. Circuit rejected the challenge to the constitutionality of the Senate's filibuster rule (shout-out to Josh Chafetz and Michael Gerhardt for the citation). The district court had found none of the plaintiffs (Common Cause, some members of the House, and some people who would have benefitted from certain filibustered bills, notably the DISCLOSE Act and the DREAM Act) lacked standing--none had not suffered any cognizable injury in fact, they could not show the bills would have passed but for the filibuster, and no injunction could have accorded them relief. Fed Courts 101 (and still a course everyone should take).

The circuit court took a different path: The problem was that the plaintiffs had sued the wrong defendants. The proper defendants were the Senate and the Senators who made, retained, and voted according to the filibuster rule with respect to the bills at issue. But all Senators would enjoy absolute legislative immunity, so they could not be sued. Nor could a court impose the remedy the plaintiffs wanted--an injunction prohibiting the 60-vote requirement and compelling the Senate to adopt a simple-majority rule.

To get around that, the plaintiffs sued Vice President Biden (in his role as President of the Senate) and a bunch of non-Senator Senate officers (Sergeant-in-Arms, Parliamentarian, and Secretary) as the people responsible for "enforcing" or "executing" Senate rules. (Powell v. McCormack being the obvious precedent). But that did not work here, because the named defendants did not do anything that caused the alleged injury, since the injury was the Senators' use of the 60-vote requirement.

This analysis adds a new wrinkle to the causation prong of standing by making the identity of the defendant an element of that prong. It requires not only that the defendants' action caused the harm, but also that these defendants caused that harm. Plaintiffs must show a link between conduct and harm and that they got the "right guys" in their suit. And causation--and thus standing--is absent if either one is absent.

But doing it this way shows-again-why standing makes so little sense as a jurisdictional rather than merits rule. In any other context--including constitutional claims, even constitutional claims for injunctive relief (where standing always comes up)--it is a merits dismissal when the plaintiff sues the wrong defendant.  Moreover, had the plaintiffs sued the Senators--thus solving the standing issue as viewed by the court of appeals--the legislative immunity defense would have produced a merits dismissal, not a jurisdictional dismissal.

At bottom, however, this is all about how plaintiffs structure their lawsuits--who sues, who they sue, what they sue for, what remedy they seek. It should have nothing to do with federal structural jurisdictional concerns.

Posted by Howard Wasserman on April 16, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, April 10, 2014

Law prawf letter on Adegbile nomination

A group of law professors is circulating this letter to Senators Leahy and Grassley [Updated verion] regarding the Senate's rejection Debo Adegbile to head DOJ's Civil Rights Division; several Senators expressly pointed to Adegbile's past representation of Mumia Abu Jamal as the basis for their opposition. While not asking the Senator to reconsider Adegbile's nomination, the letter expresses concern for what this rejection says about the right to counsel (issues I discussed), the obligations of lawyers to take-on pro bono representation, and what happens if lawyers are tagged with the sins of their clients (pointing not only to Chief Justice Roberts, as did several commenters to my earlier posts, but also to John Adams for his (successful) representation of the British soldiers charged in the Boston Massacre).

The authors are looking for law professors to sign on to the letter. If interested, you can do so online at this link. The deadline for signing is April 17.

Posted by Howard Wasserman on April 10, 2014 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (17)

Wednesday, March 26, 2014

Wood: So many ways for the plaintiff to lose

The Court heard argument today in Wood v. Moss, a "bit-of-everything" case that I have written about previously both on Prawfs and as an early illustrator of Iqbal's dangers. There are all sorts of issues and reasons flying around the case, and while I do not see anyway the plaintiffs will win, I cannot tell why they're going to lose.

Justice Scalia seemed to be itching to hold that the First Amendment cannot be enforced through Bivens. Or, at least, not against Secret Service agents charged with protecting the President. Or, at least, subjective viewpoint-discriminatory intent is irrelevant if there also is a subjective security rationale (i.e., applying Whren to the First Amendment). The government wants to skip the merits and simply conclude that the right against viewpoint discrimination at a presidential appearance was not clearly established.

The pleading discussion came largely in the Respondent's argument. He and the Chief had an interesting exchange about how to read Iqbal--Respondent's attorney hit on the "plausibility is not probability" language, while the Chief hit on the "obvious alternative explanation" language. Lower courts have not done much with that language, at least not rhetorically, but the Chief may be trying to revive it. Respondent tried to read that as one of degree-only if the alternative is so clearly obvious and right that it renders the pled explanation implausible (which, of course, is not the case here). There is also a nice exchange about how discovery can or will work here and (implicitly) whether or not the district court can control it, including whether there are secrecy concerns with disclosing practices and policies regarding how the President is protected.

Justice Kennedy summed the case up best--"it seems to me that if this complaint doesn't survive, nothing will." Indeed. And that is the problem.

Posted by Howard Wasserman on March 26, 2014 at 04:59 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7) | TrackBack

Tuesday, March 25, 2014

Clearing brush on standing and merits

While SCOTUS has successfully disentangled jurisdiction and merits over the past several years, it has not done much with standing and its unfortunate conflation with merits. Tuesday's decision in Lexmark int'l v. Static Control Components perhaps marks a first step toward drawing sharper distinctions. The issue in the case was whether Static Control could bring a false advertising claim under the Lanham Act against Lexmark, even though the companies are not competitors.

The parties and the lower courts framed this in terms of the "zone of interests" test for prudential standing. The Court unanimously rejected that framing (as well as the closely related "statutory standing"), saying it has nothing to do with subject matter jurisdiction or standing. Zone of interests goes to whether the plaintiff falls within the class of people whom Congress authorized to sue through the statutory cause of action. This is a pure merits inquiry, akin to whether a plaintiff is an "employee" under Title VII. The focus is on the pleading (citing Iqbal) and whether the plaintiff has sufficiently alleged a claim that falls within the scope of the congressionally created cause of action.

Moreover, in footnote 3, the Court potentially cast doubt on all "prudential standing" as an "inapt" label. Prudential standing has historically consisted of three doctrines: Zone of Interest; No Third-Party Standing; and No Generalized Grievances. This case establishes the first as a merits inqury. In FN 3, the Court said that recent cases have treated the third as a matter of the Article III case-or-controversy requirement rather than as prudential. As for the second, the Court noted that some cases suggesting it is "closely related" to whether the plaintiff has a right of action, although most cases have not framed it that way. It expressly left that question for another day, although the tenor of this opinion and this footnote suggest a reluctance to keep this category alive. In other words, something is either a true Article III inquiry or a merits inquiry, with no fuzzy middle ground.

As an admitted adherent to the William Fletcher "it's all merits improperly constitutionalized" view of standing, this is a move in the right direction.

Posted by Howard Wasserman on March 25, 2014 at 01:24 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5) | TrackBack

Saturday, March 15, 2014

Where are they now, St. Patrick's Day Edition

(or Winning by losing and losing by winning)

In 1995, SCOTUS unanimously held that the private organizers of Boston's St. Patrick's Day Parade (a group called the Allied Veterans' War Council) had a First Amendment right to exclude LGBTQ groups from the parade. That decision laid some important free-speech groundwork, particularly in the idea that speech need not have a particularized message to enjoy constitutional protection (citing to works such as Pollock, Schoenberg, and Carroll's Jabberwocky). Although the gay-rights position lost, many advocates appreciated the opinion for (arguably for the first time) speaking in generally positive (or at least not harshly negative) terms about homosexuality.

Fast forward two decades. That same organization, armed with a First Amendment right to exclude, still runs the parade. But it is facing increasing political and economic pressure to allow some LGBTQ groups into the parade. The group had been negotiating to allow in the LGBT  Veterans for Equality, although those stalled last week, with AVWC accusing a gay rights group of creating an ersatz veterans' group as a "Trojan Horse" to sneak into the parade. Now numerous corporate sponsors of the parade--including Gillette and Boston Beer Co. (makers of Sam Adams)--have withdrawn as parade sponsors.

So the AVWC has its constitutional rights. But so do other people and entities and they are exercising them in a very different direction and in support of very different ideas than they were in 1995. And so that hard-won constitutional victory may end up somewhat empty.

Posted by Howard Wasserman on March 15, 2014 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4) | TrackBack

Friday, March 14, 2014

Who will create an astute marijuana litigation and legal practice blog?

Regular Prawfs readers know that I have done some blogging here about marijuana laws, policies and reform because I see so many interesting general legal issues intersecting with the drug war generally and criminal justice approaches to marijuana specifically.   Indeed, I felt compelled to start a new blog, Marijuana Law, Policy and Reform, in part because I was interested in writing about broad issues of public policy implicated by modern marijuana reform efforts: as I have said in my marijuana seminar course description, "contemporary state-level reforms of marijuana laws have raised significant new constitutional, legal, political and practical issues; policy concerns relating to states' rights, local government law, race, gender, public health, crime, political economy, and bioethics intersect with modern marijuana law reform." 

Now, as the title of this post suggests and largely thanks to some terrific guest blogging by Alex Kreit over at MLP&R, I think the time may be right for an enterprising lawyer and/or law firm to start a blog focused particularly on marijuana-related litigation and emerging legal practice issues surrounding this new industry.  I say this based in part on these four new recent posts over at MLP&R which highlight the array of diverse issues and courts now dealing with  dynamic marijuana-related litigation:

In this Prawfs post a few months ago, I speculated that green (i.e., young/junior) lawyers may have a uniquely important role to play in the emerging marijuana "green rush" industry: not only may veteran lawyers be cautious and concerned about representing persons actively involved in state marijuana business, but marijuana reform often seems a "young man's game" for which junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena.  Now I am thinking, based in part on the posts above, that an especially effective way for a young lawyer or law firm to make a name in this arena (and to learn a whole lot) would be to start blogging astutely about the emerging challenges and opportunities that surround marijuana litigation and legal practice.

Posted by Douglas A. Berman on March 14, 2014 at 11:41 AM in Current Affairs, Law and Politics, Workplace Law | Permalink | Comments (0) | TrackBack

Saturday, March 08, 2014

Gambling v. PEDs and the Baseball Hall of Fame

Warning: Another sports-and-law post, this focusing on the internal rules of baseball as a business

Kostya Kennedy has a new book on Pete Rose, titled Pete Rose: An American Dilemma, excerpted in this week's Sports Illustrated cover story. Kennedy states that Rose's Hall-of-Fame worthiness has come under "renewed discussion" as players linked to PED use (Mark McGwire, Barry Bonds, Roger Clemens) come up for Hall consideration. TThe excerpt (and presumably the book) present the arguments that Rose' gambling is a lesser crime than PED use, so he should be a more worthy candidate for the Hall than a juicer. Will Leitch at Sports on Earth responds and basically blows up the argument, by pointing out the serious problems that gambling creates and the moral panic that surrounds PEDs.

But there is a different, more legalistic reason Kennedy's article gets Rose's Hall eligibility wrong, one I discussed eight years ago, just as the major PED suspects were beginning to retire. Rose is ineligible for the Hall because he voluntarily accepted a lifetime ban from baseball and placement on baseball's permanently ineligible list. Under Rule 3E of the BBWAA voting rules, "Any player on Baseball's ineligible list shall not be an eligible candidate." And that ends the inquiry. It actually does not matter whether Rose bet on baseball or on the Reds (he admitted gambling on baseball, although never on games involving his team)--he accepted the ban and thus the collateral consequence of the ban. On the other hand, no suspected steroid user has ever been assessed a lifetime ban or placed on the permanently ineligible list, thus none is subject to Rule 3E. Steroid users are being kept out of the Hall by the principled insistence (or priggish obstinance, depending on your perspective) of BBWAA members.

Of course, we might reconsider this ordering, which would require reconsideration of the comparative evil of steroid use and gambling. Under present rules, a person is banned for life for a third positive test or finding of PED use, but banned for life on one finding of having bet on games involving his team. Perhaps that should be flipped, or at least treated on equal footing. (On this, I agree with Leitch that we have the order right, that gambling is a far greater sin than taking drugs designed to help you play better and for longer). But none of that changes anything for Rose given the current rules and the rules under which he operated.

Posted by Howard Wasserman on March 8, 2014 at 04:43 PM in Current Affairs, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0) | TrackBack

Thursday, March 06, 2014

More on the Civil Rights Division

Dahlia Lithwick basically gets it right: The "notion that the head of the Justice Department’s Civil Rights Division should have ever fought for civil rights has now become disqualifying."

But this is not anything new--Senate Republicans have been doing this to Democratic nominees to the Civil Rights Division for 20 years. As Bill Clinton's first nominee for the position, Lani Guinier famously faced strong Republican opposition based largely on her academic writings; Clinton withdrew the nomination when it became clear she could not be confirmed. And Bill Lan Lee served Clinton's entire second term without Senate confirmation--2+ years as acting head and one year as a recess appointee. Senate Republicans explicitly opposed Lee because he was and would be "activist" on civil rights. (And I would add that using that word to describe a lawyer and an executive-branch official reveals just how utterly meaningless it is).

 

Posted by Howard Wasserman on March 6, 2014 at 08:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (8) | TrackBack

Wednesday, March 05, 2014

More Honest Bob Casey

I respect that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime
Read more at http://www.philly.com/philly/blogs/capitolinq/Casey-opposes-Obama-nominee-tied-to-Mumia.html#3x14xEPlm86ZAfIj.99

"I respect that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime."

[But any attorney who seeks to help guarantee that right, in a case in which I believe the crime is sufficiently heinous, becomes per se unqualified for high public office. So, hey attorneys, feel free to help guarantee that right to citizens.]

Posted by Howard Wasserman on March 5, 2014 at 02:48 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (9) | TrackBack

Tuesday, February 25, 2014

More personal jurisdiction from SCOTUS

SCOTUS today decided Walden v. Fiore, unanimously (per Justice Thomas) holding that a district court in Nevada lacked personal jurisdiction in  a Bivens action against a Georgia police officer who wrongfully seized money from plaintiffs at the Atlanta airport. Adam Steinman a the Civ Pro/Fed Courts blog has some excerpts.

No major new doctirnal ground broken. It does reframe the effects test to focus on the defendant's contacts with the forum, not with the plaintiff, although recognizing that they may be intertwined. But injury in the forum, even if the defendant knew the injury would be suffered there (arguably the case here), is not sufficient absent some conduct by the defendant that implicated the forum (physical entry, phone calls, affect on reputation or property there, etc.). Otherwise, the plaintiff otherwise controls where she lives and where she feels the harm, a unilateral act of the plaintiff that is insufficient to establish jurisdiction--the plaintiffs here were harmed in Nevada because they chose to live in Nevada when they wanted their money. At best, an injury felt in a state can show that the defendant formed a contact with that state.

The Court drops a footnote (n.9 on p. 13) that it once again is not deciding anything about internet-based contacts. The targeting that the opinion seems to demand could be read to mean that broad enough wrongdoing (say, a fraud scam over the internet) will not create jurisdiction in the victim's home, because the defendant targeted the world, not just that plaintiff's state.

Like Daimler v. Bauman, decided last month, this is another good teaching case, in that it simplifies things and discusses the doctrine as a whole. It shows clearly that the effects test is not a unique separate test (as some lower courts had suggested), but another way that a defendant creates minimum contacts. So my syllabus just got revamped (again) when I teach P/J in April--Daimler instead of Good Year or Helicol and Walden instead of Calder and Clemens v. McNamee (a 5th Circuit decision).

Posted by Howard Wasserman on February 25, 2014 at 04:14 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Sunday, February 09, 2014

Women and Title VII

From Slate, a brief history of the inclusion of protection for women in Title VII of the Civil Rights Act of 1964. Sen. Howard Smith, a Virginia segregationist, introduced the provision 50 years ago Saturday (Feb. 8, 1964) as a poison pill.

Posted by Howard Wasserman on February 9, 2014 at 07:18 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Wednesday, January 29, 2014

A decade of wardrobe malfunction

Next month marks the ten-year anniversary of the Janet Jackson/Justin Timberlake "wardrobe malfunction" at halftime of Super Bowl XXXVIII. ESPN The Magazine offers In the Beginning, There Was a Nipple, a retrospective on the "controversy."

There is a lot of interesting stuff on the FCC, then-Chair Michael Powell, and the regulation and punishment of broadcast indecency. CBS' owner was fined a little over $ 500,000, fines that ultimately were successfully challenged in the Second Circuit. The story quotes Powell as saying, essentially, that the commotion over 9/16th of a second is really silly, suggesting his position of public outrage at the time was more for politics and show than any real concern for the health and safety of our children. But he said he felt bound by law and lacking discretion to not pursue this fully. Powell also describes this is as the "last gasp" of the old broadcast regime and "last stand at the wall" for people who believe government can successfully keep objectionable material out of the home.

There also is a nice discussion of the different effects this had on Jackson and Timberlake and the obvious race and gender narrative that presents.

Posted by Howard Wasserman on January 29, 2014 at 05:03 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

Monday, January 27, 2014

Stephen Glass and the the California Bar

The California Supreme Court on Monday unanimously denied the bar application of former journalist Stephen Glass (of Shattered Glass infamy), a case I wrote about a couple years ago. David Plotz of Slate, who watched this all up close (Plotz's wife, Hann Rosin, was an editor at TNR at the time) and who admittedly does not like Glass, has a sharp takedown of the decision. I am not surprised by the reversal (the lower panels had recommended admission, so I could not see the court taking the case just to affirm), although I am a bit surprised by the unanimity.

I don't do PR and I generally question many of the character-and-fitness rules as irrelevant to the practice of law, so I do not have a lot to say about whether the decision is right or wrong. There is a damned-if-you-do-and-damned-if-you-don't quality to the decision--the court dismisses many of Glass' efforts at rehabilitation and restitution as selfish, motivated by a desire to improve himself and taking place while he had pending applications to the New York or California Bars. As I said previously, lawyers and journalists do very similar jobs, so I understand the particular apprehension with this candidate. But Plotz has a good response, grounded in the adversariness of the legal system--what judge and what opposing lawyer is not going to keep the sharpest of watch when Glass is involved in a case, scrutiny sure to catch any efforts by Glass to repeat his sins.

Posted by Howard Wasserman on January 27, 2014 at 11:32 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (5) | TrackBack

Monday, January 20, 2014

Recognizing Race on Martin Luther King Day

Over at Constitutional Law Prof Blog, Ruthann Robson has an interesting post about the way judges quote Martin Luther King, Jr.  The claim -- relying on a fascinating article by Jeremiah Goulka -- is that when judges quote MLK, they are usually doing so in the course of reaching a result that MLK would not support.

This discussion brought to mind a topic that I've discussed during my previous visit to Prawfs.  In my article Racial Capitalism, which came out last June, I defined racial capitalism as the process of deriving value from racial identity.  My article focused, in particular, on white people and predominantly white institutions deriving value from non-white racial identity.  An easy example is a school that photoshops a black student into its admissions brochure, or -- as a less extreme measure -- overrepresents the percentage of non-white students in its promotional materials.

In the article, I identify a judicial variant of racial capitalism, influenced by Justin Driver's work Recognizing Race.  (In Racial Capitalism, I discuss this on pages 2197-98.)  In a nutshell, Driver's work uncovers substantial variation in the circumstances when courts do and don't choose to explicitly identify the race of people discussed in their opinion.  In Ricci v. DeStefano, for example, the Supreme Court held that the New Haven fire department's decision to ignore standardized test results that disparately affected racial minorities violated Title VII.  Justice Kennedy's majority opinion discussed the testimony of three experts on standardized testing, yet only identified the race of one of the three -- the one whose testimony best supported the majority's result -- by stating that he "is black."  This is particularly striking because one of the other experts was also black, and yet the majority did not identify her by race.  As Professor Driver trenchantly explains:  "This identification is striking because, in a decision that cautions against the dangers of racially disparate treatment, it treats Lewis disparately by race."

Judges identify -- or ignore -- racial signifiers all the time, in ways that subtly buttress the result they reach.  In Whren v. United States, for example, the Court held stopping a motorist did not violate the Fourth Amendment so long as the officer had probable cause to believe that the the motorist violated traffic laws, even if an objectively reasonable officer would not have stopped the motorist in that situation.  The holding also meant that it didn't matter whether the traffic stop was pretextual so long as there was probable cause to believe that a traffic violation of some sort had occurred.  In the opinion, Justice Scalia identified the officer who arrested Whren as "Officer Ephraim Soto" and referred to him by name three times within the first two pages of the opinion.  While I have not been able to discover Officer Soto's racial or ethnic identity -- or, perhaps more importantly, how others would have perceived his race or ethinicity -- it appears relatively uncontroversial that Soto is a Spanish surname.  By emphasizing Officer Soto's surname, then, Justice Scalia implies that Soto might also be non-white, thereby distancing the events in Whren from the common pattern of white officers harassing black motorists that provoked outcry from civil rights advocates.

Of course, none of this is limited to judges.  More generally, it's quite common for white people and predominantly white institutions using the words of deceased black leaders to gain legitimacy and shield themselves against claims of racism.  Just today, Sarah Palin posted the following message on her Facebook page:

"Happy MLK, Jr. Day!

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character." – Martin Luther King, Jr.

Mr. President, in honor of Martin Luther King, Jr. and all who commit to ending any racial divide, no more playing the race card."

Although of course I can't be sure, my guess is that MLK probably would not want his words used by Sarah Palin to chastise our nation's first black president for "playing the race card" (whatever Palin means by that).

Of course, Palin is far from alone.  Some conservatives have recently dubbed themselves "Frederick Douglass Republicans."  As one forthrightly explained, if you invoke the name of a well-respected black family member like Frederick Douglass, "you can trump the race card."

These various examples are unified by the theme of white people and institutions invoking race -- whether that of a famous black person such as MLK, or that of a participant in a legal drama -- as a way of achieving moral legitimacy and shielding whatever argument they happen to be making from charges of racism.  Whether this is effective is, of course, another story, although at least sometimes it appears to be.  (When I last checked, Palin's post had over 32,000 "likes.")  Whether sucessful or unsuccessful, however, this use of non-white identity by white people is worth evaluating critically.  As Goulka says in the conclusion to his piece, "on this MLK Day and every other day, whenever a court invokes Dr. King," -- and I think this extends to invoking non-white people more generally -- "make sure to judge it by the content of their characterization."

Posted by Nancy Leong on January 20, 2014 at 08:51 PM in Culture, Law and Politics | Permalink | Comments (18) | TrackBack

Tuesday, January 14, 2014

Lawsuit over George Washington Bridge closings

The first lawsuit arising from the politically motivated closing of the George Washington Bridge was filed last week and John Culhane explains how more could be coming. This one is a purported class action by six plaintiffs who claim they were stuck in traffic on the bridge and late for work, causing them to lose wages and suffer other economic harms. Defendants are Christie, his former aide, two Port Authority officials, the Port Authority, and the State of New Jersey. It's a really poorly drafted complaint and kind of hard to figure out, with a lot of boilerplate and legal conclusions signifying nothing.

It does not identify any of the rights or sources of rights asserted. The first three counts appear to be § 1983 claims for 14th Amendment Substantive Due Process, Right to Travel, and failure-to-supervise/failure-to-train by Christie and the two entities. But this creates problems a number of problems. The plaintiffs cannot sue New Jersey and the Port Authority, which are state entities not subject to suit under § 1983. I suppose the conduct is conscience-shocking, although I'm not sure the right to travel includes the right to travel quickly or to get there on time. I'm also not sure Christie is in a supervisory relationship to the Port Authority workers (as opposed to the former aide) for failure-to-train purposes. And as for qualified immunity, is snarling traffic as part of a political vendetta equivalent to selling foster kids into slavery (the Posnerian paradigm of an obviously clearly established right for which no prior case law is necessary)?

Culhane gives the suit a chance, at least as a matter of state tort law. Because the alleged conduct was intentional, the plaintiffs may get around the economic loss rule. But since most of the complaint seems to be making constitutional claims, I am not sure how much that matters.

Posted by Howard Wasserman on January 14, 2014 at 11:35 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack

Monday, January 06, 2014

HuffPost Live on Utah SSM case

I appeared on HuffPost Live with Mike Sacks on Monday afternoon discussing the Supreme Court stay of the injunction in the Utah marriage equality decision. Also on the show were Michael Dorf (Cornell) and Neomi Rao (George Mason). It was a good discussion that also got into the Little Sisters case, which has a stay application (of the district court denial of an injunction) pending before Justice Sotomayor.

After the jump, one additional thing I did not get a chance to say on the Utah case:

A lot is being made of the approximately 950 same-sex marriage licenses that Utah issued under the force of the district court injunction, which now are in limbo. (Dorf argues that Utah could ultimately recognize these marriages as permanent, but is not constitutionally obligated to do so. SCOTUSBlog reports that it is not known how many those couples actually got married and that the state is trying to figure out what to do about any marriages). Sacks drew the obvious camparison to California, which recognized the thousands of same-sex marriages performed between the Caifornia Supreme Court decision in summer 2008 recognizing marriage equality as a matter of the California Constitution and enactment of Prop 8 in November 2008.

An important distinction involves finality within the judicial branch. When the California Supreme Court rendered its decision in 2008, that was the final word on the meaning of California equal protection and due process from the judicial branch of California. The state of California law was finally established--as a a constitutional matter, same-sex couples had an unquestioned right to marry, California had an unquestioned obligation to grant those marriage licenses, and an unquestioned obligation to recognize those marriages as legal for all purposes and in perpetuity. The only reason those marriages came into question was because the state of established California law subsequently changed when Prop 8 amended the state Constitution.

But that seems fundamentally different from marriages occurring during the pendency of litigation, before the "federal judicial branch" (the Article III system as a whole) has spoken. Here, we have heard from one judge in the court of original jurisdiction and the case is pending before the next judicial level. The rights of same-sex couples to marry and the obligations of the state to recognize those marriages have not been finally established by the judiciary. And the state of the law can easily change not through the extraordinary efforts of a constitutional amendment, but by the simpler step of a higher court reversing a lower court. Thus, should the Tenth Circuit (or SCOTUS) reverse the district court, Utah is under less of a legal obligation to recognize those ineterregnum marriages than California was.

Posted by Howard Wasserman on January 6, 2014 at 09:41 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Stay in Utah SSM case

SCOTUS without comment stayed the permanent injunction against Utah's ban on same-sex marriage, pending disposition in the Tenth Circuit. So we are back to no marriage equality in Utah, at least for a few more weeks (the Tenth Circuit agreed to expedite the appeal). Probably the correct result, although Mike Dorf makes a good argument the other way. In particular, the lay of the land has changed since I first wrote about the case--hundreds or thousands of same-sex couples have gotten marriage licenses since around Christmas, when the district court and court of appeals denied the stay, and this morning. So the thing a stay is designed to prevent--chaos in the status quo that may be difficult to undo--already has happened to some extent.

Posted by Howard Wasserman on January 6, 2014 at 11:23 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12) | TrackBack

Sunday, December 29, 2013

What effect pleadings?

The dueling decisions by two different federal district judges on the NSA surveillance program--one upholding it, one invalidating it--reminded me of a post I wrote in June comparing the two complaints. I argued that the complaint in ACLU v. Clapper (the Southern District of New York case) was better than Klayman v. Obama (the District of D.C. case). The latter had a lot of extraneous noise and "pleading as press release" nonsense, a number of legal mistakes, and asked for the ludicrous sum of $ 3 billion in damages; the former was cleaner, simpler, and legally sounder.

So what should we conclude from the fact that the plaintiff won in Klayman but lost in ACLU? Two possibilities jump to mind:

   1) Pleading-as-press-release works not just publicly but legally as well. Heightened, overstated, politicized pleading does affect the judge by impressing the urgency of a constitutional claim. That is lost in a complaint that lacks the "passion" we see in Klayman.

   2) Pleadings don't matter to the outcome, at least in constitutional cases. It's all about the legal arguments made in the subsequent motions related to injunctions, dismissal, or summary judgment.

Other possibilities?

Posted by Howard Wasserman on December 29, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8) | TrackBack

Wednesday, December 25, 2013

More on stays and injunctions, marriage equality edition

Last month, I wrote about when courts will or should stay negative injunctions ("this law is unconstitutional, stop enforcing it") pending appeal, pointing to marriage equality as a case in which a stay ordingarily would be appropriate. Well, perhaps not. Following last week's district court decision invalidating Utah's ban on same-sex marriage, both the district court and the Tenth Circuit declined, without explanation, to stay the injunction pending appeal. This means that, once state offices open after Christmas, same-sex couples will be able to get married in Utah.

Mike Dorf has a nice a take on this decision--he calls it legally and morally correct, but still wrong. Dorf makes the same argument I did about chaos and confusion (and, he adds, heartbreak) if marriages recognized in the interregnum are then declared invalid if the district court is reversed on the merits on appeal. In Dorf's view, this case came down to the likelihood of success on the merits prong--just as the Texas abortion case did last month--which here cut against issuing the stay. In light of Windsor, the state is not likely to prevail on the merits on appeal to the Tenth Circuit or SCOTUS; bans on same-sex marriage simply cannot stand. That overcomes any concerns for (or real risk of) chaos and heartbreak. Nevertheless, Dorf argues that decision not to stay still is wrong, just because one never knows what SCOTUS will do or when. I agree, which is why I would argue that risk-of-chaos should play a larger role than likelihood of success in cases such as this.

The next move could make for a fun Christmas. Step one is a petition to the Tenth Circuit Justice, Justice Sotomayor; she can either decide on the stay herself or refer the matter to the full Court. If she denies the stay, the state could file a renewed application with any Justice of their choosing.  Since it is Christmas, Justice Kagan may be the easiest one to find.

Merry Christmas to all who celebrate.

Update 12/27: Andrew Koppelman adds this tidbit: The Utah AG did not request a stay as alternative relief in its original pleading, which has been common practice in marriage equality cases. (Koppelman's post links to a transcript of the stay hearing in the district court, where the court says he did not enter a stay because no one requested one and the AG seems confused that the court did not enter a stay sua sponte). This explains the procedural rush over the stay, although I doubt it ultimately would have made a difference.

Posted by Howard Wasserman on December 25, 2013 at 08:11 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5) | TrackBack

Saturday, December 07, 2013

West on student censorship

Nice Slate essay by Sonja West (Georgia) on student speech, arguing that censoring students pervsersely teaches them that censorship is a good and acceptable idea, sort of the opposite of what we want future citizens and leaders to learn. She mentions that SCOTUS is considering the cert petition in the  "I [heart] boobies] case from the Third Circuit, which, given the Court's history with student speech, may not be a good thing. Finally, she highlights the current life of Mary Beth Tinker, who retired from nursing recently to become a student-speech-rights advocate through the Tinker Tour with the Student Press Law Center.

Posted by Howard Wasserman on December 7, 2013 at 08:36 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack

Monday, December 02, 2013

SCOTUSBlog: Attorney's Fees and Final Judgments

I have a new SCOTUSBlog preview on next Monday's argument in Ray Haluch Gravel Co. v. Central Pension Fund, which considers whether a district court judgment that leaves contractual attorney's fees unresolved can be a final and appealable judgment for purposes of § 1291 and Federal Rule of Appellate Procedure 4.

Posted by Howard Wasserman on December 2, 2013 at 04:32 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Tuesday, November 26, 2013

More pleading/qualified immunity

The big news from SCOTUS today was the unexpected totally expected cert. grant on the constitutionality of the contraception mandate. But the Court also granted cert. in Wood v. Moss, which involves qualified immunity and pleading.

The case arises out of a street protest against President Bush, where police and Secret Service agents moved protesters several blocks away from where the President was having dinner, while allowing pro-Bush protesters to remain in place. Two months after Iqbal was decided, the Ninth Circuit found the complaint insufficient, a decision I argued illustrated the negative effects Iqbal was likely to have on civil rights litigation. The plaintiffs were given a chance to replead and a later Ninth Circuit panel  held that the amended complaint sufficiently pled viewpoint discrimination.

That the Court took the case does not bode well, but I suppose I could be surprised.

Posted by Howard Wasserman on November 26, 2013 at 02:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

§ 1983 and the 11th Amendment

I wrote last week about Tyler v. Commonewealth of Massachusetts, the lawsuit by a woman contesting a state court order forcing her to engage in family law matters with the convicted rapist who fathered her child. A federal district court dismissed the § 1983 action. One of the cited reasons was the Eleventh Amendment, a decision I said last week was wrong. Here is why.

It is true that the original complaint impermissibly named the Commonwealth of Massachusetts as defendant. But one overlooked aspect of this jurisprudence is that the inability to sue a state, at least on a constitutional violation, is a matter of the text of § 1983, not the Eleventh Amendment. SCOTUS has twice held that a state (or state agency) is not a "person" within the meaning of § 1983; the ordinary meaning of person does not include a sovereign and Congress did not provide any text or history to suggest differently. In fact, it seems clear that under either the prevailing congruence-and-proportionality analysis or Justice Scalia's "enforce means enforce" approach, § 1983 is valid § 5 legislation. There is perfect congruence-and-proportionality between § 1983 and the Fourteenth Amendment rights being enforced. And Scalia has acknowledged § 1983 as the main example of permissible legislation that creates a remedy for existing constitutional rights. So the reason the plaintiff could not sue the Commonwealth is that the Commonwealth is not a person subject to suit or liability under the applicable substantive law. This approach also has the benefit of making clear that this is all a defect in the merits of the claim--the plaintiff sued a defendant who is not subject to the duties or liabilities under that substantive law.

The other problem with the Court's analysis is more fundamentally wrong. The plaintiff moved to amend the complaint in response to the motion, seeking to substitute the justices of the Superior Court (the trial court) as defendant. And since the plaintiff sought an injunction preventing current and future enforcement of the state court orders, this seems like it would be permissible under Ex Parte Young as an action against a responsible officer seeking prospective relief from an ongoing violation.

Amazingly, however, the district court held that Young did not apply. Tyler was not seeking prospective relief because the "sentence complained of has been imposed and is now an historical fact." But this seems to misunderstand what it means for relief to be "prospective." Yes, the challenged order is already entered. But the plaintiff's argument is that the order is presently causing her constitutional harm and will continue to cause her constitutional harm in the future. The injunction she seeks is to halt future enforcement of that state-court judgment. If that is not prospective, I am not sure what is. Under the court's apparent definition, no relief is prospective--it would be just as easy for a court in an action challenging the constitutionality of a statute (the typical Ex Parte Young case) to say  "the statute complained of has been enacted and is now an historical fact." The issue should not be the timing of the complained-of legal rule, but the effect of that rule and when the relief sought will take effect.

There are cases that distinguish "purely prospective" injunctions from other injunctions. But those are Younger cases; they hold that an action that seeks to enjoin future enforcement of a law without interfering with a pending prosecution are not barred by Younger. (Wooley v. Maynard is a good example). This has nothing to do with whether an injunctive is prospective for Ex Parte Young purposes.

Posted by Howard Wasserman on November 26, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Saturday, November 23, 2013

JFK and the CRA

Yesterday was the 50th anniversary of the assassination of John F. Kennedy (maybe you heard). Next summer will mark the 50th anniversary of passage of the Civil Rights Act of 1964. The proximity in time of the events is not necessarily coincidental, of course. One of the recurring narratives is that the assassination enabled the legislation. LBJ used the assassination and JFK's legacy to push Congress and the public to support sweeping legislation. And LBJ's legendary facility with Senate procedure, something Kennedy lacked, is often credited with enabling him to push the ultimate bill through in that house.

Many people are playing counter-factual history this weekend--what if Kennedy had not been assassinated (the subject of a book by journalist Jeff Greenfield)? So for everyone familiar with the 1964 Act and its passage, the legislative politics and procedure, and the history of the era--Would some version of comprehensive civil rights legislation (touching on voting, employment, education, and public accommodations) have passed had JFK remained president after Nov. 22, 1963?

Posted by Howard Wasserman on November 23, 2013 at 05:18 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack