PrawfsBlawg

Pleading and judicial-legislative conversations

A major criticism of Iqbal/Twombly (can we just start treating them as one case?) is that the Supreme Court functionally amended the pleading standard by judicial decision rather than through the required process of the Rules Enabling Act, with its greater opportunity for study, information-gathering, and deliberation. The Court had twice expressly, emphatically, and unanimously rejected arguments from litigants that it should raise the pleading burden in civil rights cases, the Court insisting that any such change must come through the rulemaking process it subsequently ignored. Which is why the about-face surprised so many people. An irony of Iqbal/Twombly is that the decisions actually short-circuited an embryonic study and reconsideration by the Rules Committee of notice pleading and whether it no longer was workable in modern federal litigation (especially in cases involving government officials and large businesses, where discovery costs may be high and burdensome). The Committee abandoned that effort in favor of watching how the new case-imposed standard plays out.

That adds a new gloss to the various efforts in Congress to overturn Iqbal/Twombly via statute, perhaps recognizing that the Court is not likely to sign off on an REA-based change. Proposals have ranged from reinstating Conley v. Gibson by name to an explicit rejection of any power to dismiss based on a judicial determination that facts or claims are not plausible to legislative reinstatement of Conley's "no set of facts" language to something akin to "damn it, we meant short, plain statement." The Senate Judiciary Committee yesterday held a hearing, titled Has the Supreme Court Limited Americans' Access to Courts? to address the matter.

One of the witnesses was Steve Burbank (Penn) who proposed a new statute. His version provides that motions to dismiss, motions to strike, and motions for judgment on the pleadings "shall be in accordance with interpretations of the Federal Rules of Civil Procedure by the Supreme Court of the United States, and by lower courts in decisions consistent with such interpretations, that existed on May 20, 2007" [the day before Twombly was decided and also my 39th birthday]. Burbank explained the proposal as an attempt to return pleading to the status quo ex ante--before the Court gummed up the works with (what he regards as) an inappropriate judicial amendment to the rules--to then provide the time (approximately three years) for appropriate study by Committee, Congress, or both as to the appropriate federal pleading standard. That pleading regime--whatever it ultimately may look like and even if it ends up looking like Iqbal/Twombly (although I doubt it would)--then would be enacted through the appropriate prospective rulemaking/lawmaking process. But first that process could do what it does better than courts acting in common law style: Gather and study information to make a reasoned policy choice about legal standards, without the shadow of a judicially created new rule with which lower courts must tangle.

It is an interesting approach because it is as neutral a proposal as we are likely to see in the debate over Iqbal/Twombly. By reinstating the old regime (as opposed to reinstating Conley by name), it implicitly recognizes that a pure Conley and "appears beyond doubt" were not the real standard on the ground, even if pleading was not a significant hurdle. More importantly, one can believe that the pleading standard ought to be ratcheted up and still support Burbank's proposal that any pleading rule be as thought-out and empirically supported as possible and that it be established through regular rulemaking channels. And that until the rulemaking process plays itself out, the judicial status quo should remain.

Think You're Attractive? Then Run for Office!

In their new article "Beautiful Politicians" published just last month (a non-subscription draft is available here), Amy King of Oxford and Andrew Leigh of Australian National University pose a provocative question: "Are beautiful politicians more likely to be elected?" Their answer is emphatically yes. Beauty does indeed matter, at least in Australia, which is the site of their fascinating social science study. 

It should perhaps come as no surprise that physical appearance can help candidates close the deal with voters. After all, quite apart from the Australian data, modern American presidential history demonstrates that the taller candidate typically wins. And there is some evidence that beauty matters to the American electorate, too.

So what? Well, if people find you physically attractive, you've got a good chance of winning an electoral contest. It might be worth a shot at a congressional seat--especially given perks like these or those. That's if, of course, you can first raise the $1.1 million or $6.5 million needed to win a House or Senate race, respectively, in the United States.

Architecture of Justice: Ideology in Stone?

I'm almost recovered from the physical consequences of a quick Thanksgiving weekend trip to Lincolnshire, England, where I attended a conference on the Architecture of Justice organized by Professor Nicholas Temple of Lincoln University, School of Architecture, and and Professor Renee Tobe of the University of East London, School of Architecture and the Visual Arts.  Having dinner in the priory of Lincoln Cathedral (a stunning medieval construction, the third largest in the UK) and standing in the positively panoptic chapel of the 19th century Victorian prison that still stands in the middle of a fortress and castle (itself begun by the Conqueror, two years afte the Battle of Hastings) would have made the jetlag worth it.  However the intellectual rewards of breaking outside my usual discourse silos were even greater.  I have attended conferences or given talks in the UK many times over the past few years without once breaking out of the silos of criminology and law (I still learn a great deal being outside the US).  With some four keynotes and some eighteen parallel sessions, there was more than I can hope to summarize in several posts.  One theme that was emerged again and again was the relationship between built structures of justice, especially courts, and the spatial relationships of cruelty and oppression that at times the architecture of justice seems intended to "cover up," and at other times to "exorcise."

One very clearly ideological exercise from the 19th century was documented in the photos presented by Jonathan Charley, of the University of Strathclyde, in his brilliant  historical and archtectural tour of the sites of oppression and justice, "Violent Stone: The City of Dialectical Justice."   Cities like Birmingham in England, and Brussels in Belgium in the 19th century, constructed grandiouse edificies of justice to house their central trial courts, right at the moment they were enjoying the most rapid enrichment from their highly specific exploitation of the slave trade and King Leopold's own version of slavery/genocide in the Congo respectively. 

Whether or not one stands with E. P. Thompson, to recognize the dialectical potential for the law to ultimately temper the exploitation of the powerful, it is hard not to recognize the bald  effort at legitimation involved in buildings like the Palais de Justice. 

On the otherhand, what about the recent efforts to build new courthouses that represent the aspiration to transparency of contemporary English courts with sweeping atriums of glass like the brand new Manchester Civil Justice Centre (whose principal architect, Stephen Quinlan, presented a plenary address)?  Or perhaps, most intriguingly of all, the new Constitutional Court in Johannesburg, South Africa, built directly across from a fortress prison where victims of Apartheid were incarcerated and sometimes executed on a hill at the margins of the city?

Lots of birther action

A whole lot happening today with the (futile and probably frivolous) efforts of the birther movement to use the federal courts to have Barack Obama removed from office on the ground that he is not a natural born citizen.

First, Orly Taitz, the lawyer who has become the main public figurehead in these efforts, to the tune of being sanctioned (I think $ 20,000) by a court in the Middle District of Georgia, has appealed the sanctions order to the Eleventh Circuit. She filed a Notice of Appeal (which is ordinarily a one-page document) that contains the same provocative language ("pervasively extreme and outrageous (extrajudicial) prejudice and bias;" "political lynching") that got her in trouble in the district court. I really don't see her still having a law license when this is all over.

Second, and more significantly, Judge Carter in the Central District of California dismissed (Download 21808122-Judge-Carter-Ruling-on-MTD), largely on justiciability grounds, the most comprehensive birther lawsuit. There were 44 plaintiffs in various positions--state legislators, active military, inactive military, 2008 presidential candidates, and (my favorite) a man who claims to be related to Obama and to need to know where Obama was born to better understand the family medical history.

Some thoughts after the break.

The court's analysis is pretty straight-forward, interrupted by some efforts to take shots at the plaintiffs and at Taitz, who represented all but two of the plaintiffs. The court wove political-question doctrine concerns into the redressability prong of standing, which was analytically interesting (i.e., the plaintiffs lack standing because their claims are not judicially redressable because they raise political questions). I was surprised and a bit disappointed that the court did not make more of the House, having accepted the Electoral College votes for Obama pursuant to its constitutional authority under the Twelfth Amendment, having made the textually committed determination as to Obama's eligibility. The court talked about this, but ultimately focused on the Senate having exclusive control over presidential removal.

Interestingly, the court criticized plaintiffs' counsel for waiting until January 20 (after the Inauguration) to file the lawsuit, when the only remedy would be a politically impossible injunction removing Obama from office and ordering a new election. But this creates an interesting wrinkle, at least for the small-party candidates. The court held that they did have a unique injury-in-fact, but lost on the redressability prong. But if the redressability problem is absent in a pre-election action simply to order the California Secretary of State to remove Obama from the ballot, will the court have to find them to have standing? Stay tuned to summer 2012.

Finally, the court (not sure if this is surprising or not) did not raise the issue of sanctions. But it leveled several criticisms at Taitz--including a suggestion that she urged political supporters to call and e-mail the court to tell him to decide the case a certain way and a suggestion (based on affidavits) that Taitz suborned perjury. So could some Rule 11 activity be far behind? Maybe we should start a pool on when Taitz loses that law license.

More on partisan media

Jack Balkin has a great post linking the White House-Fox News feud to the rise (or re-rise) of the adversarial partisan press in the early 21st century. Fox, Balkin argues, is the heir to the party press of the late 19th-century, when newspapers were owned, operated, and controlled by the various political parties. Although not party-owned, Fox is aligned with one party, so as to be a virtual political and policy mouthpiece for it. And there is no line between “news” and “opinion” and no real attempt to maintain one.

Balkin offers two conclusions, which I endorese, about the current contretemps. First, the White House is wrong to dismiss Fox as not a “legitimate” news-media organization. Fox is a perfectly legitimate news organization, but it is engaged in a different enterprise than The New York Times or the Wall Street Journal and other outlets that try to maintain the 20th-century journalism paradigm. And the White House is thus on fair ground treating Fox differently than other outlets, as well as in challenging the validity of what Fox reports—just as it would challenge arguments made by the rival political party. The White House would be better served by pitching the dispute at that level. Of course, Fox has been so successful in convincing the public (and other media outlets, see below) that it truly is "Fair and Balanced" that such a pitch may not work; the public still sees this as the Administration taking on a news outlet simply for reporting news.

Second, Balkin notes the irony of The Times and other outlets backing Fox against the Administration, by insisting that Fox is, in fact, no different than other news organizations. Fox and its brand of journalism are ascendant precisely because newspapers are dying. By backing Fox, The Times and others may be hastening their own demise.

Who Killed Kennedy? Memories of a Unique Class and Teacher

Scott Shane's story in last Saturday's NYTimes on the CIA's continuing resistance to disclosing its files on its relationship with anti-Castro Cuban militant groups, including some who clashed with Lee Harvey Oswald on the streets of New Orleans in the summer before the assassination, brought to mind my happy days in Miami and a remarkable class at UM Law taught be my friend, the late John Hart Ely.  Ely, who became a giant of constitutional scholarship, was as a young man was summoned by Chief Justice Warren (for whom he was about to clerk) to serve as staff for the Warren Commission.  Ely spent years defending the Commission's results by the late 1990s he had come to the conclusion that history had shown the Commission's sources to be deeply and deliberately truncated.  He doubted that any of the more sweeping conspiracy theories were credible, but he had come to conclude that someone, Castro perhaps, or a mob boss, had indeed played a role in setting Oswald in motion.  To satisfy himself, if not history, John organized a seminar on the topic of who killed JFK? at the University of Miami Law School in or around 2000. Along with a handful of curious students and very distinguished lawyer and friend of John's (whose name is eluding me this morning), I took the class.

The University of Miami, where I served on the faculty for 11 years and John for almost as long before his untimely death in 2003, was the chief location of the CIA's largest field station in the 1960s and 1970s, code named JMWave. It was easy walking amidst the tropical garden like grounds of the campus on hot humid nights to imagine all sorts of plots.  John rejected the theory that the CIA itself had killed Kennedy (let alone a vast military industrial conspiracy along the lines of Oliver Stone's JFK).  Because Kennedy had clearly tried to kill Castro, John found it plausible that Castro might have decided to turn tables.  John may have been influenced in this perspective by his wife, Gisela Cardonne Ely, a Cuban American jurist in Miami of great intellectual force.

My own views, ran along the lines of the conspiracy sketched by novelist Don Dellilo in Libra, a plot among a small group of anti-Castro militants and their low level CIA handlers.  These folks, like Castro, had personal reasons for revenge against the handsome young President.  They had seen scores of their brothers and colleagues lost during the failed Bay of Pigs invasion which many blamed on Kennedy's decision to withhold American air support, and which the President himself accepted blame for.  Unlike Castro or the mob, they were a loose and informal network of actors who presented no major target for backlash. 

It is very unlikely, in my view, that the top leadership of the CIA would have agreed to this conspiracy.  Indeed, they would have lacked all the emotional heat about the matter that murder requires, and probably highly identified with the dashing young President who shared their belief in a James Bond like war against Communism.  However, and this brings us back to Shane's story, it is  plausible that the CIA's top management would have conspired to cover up their relationship with the individual or individuals who belonged to the conspiracy and their failure to terminate this treasonous plot, (a motivation that could be shared even by their current leaders).  I did get John to agree to that plausibility, but he did not find it convincing.  

Does Kennedy's assassination deserve a place in law school curriculum's?  Perhaps not as a regular offering, but courses that use legal skills and materials to investigate pivotal moments of history might indeed have an important intellectual and even pedagogic role to play. 

When Ricci Met Iqbal

Last term, SCOTUS held in Ricci v. DeStefano that a city could not use race-conscious measures disadvantaging non-minorities to avoid the risk of disparate impact litigation by minorities, unless the government had a strong basis to believe that it would lose that disparate-impact suit. The Court went on to say that, in that case, the City of New Haven did not have a strong basis in evidence to believe it would lose that lawsuit. Last week, an African-American firefighter who took the lieutenant's exam and was not promoted filed suit, alleging that the use of the exam violated Title VII.

So how does Ricci affect this lawsuit? As my colleague Kerri Stone pointed out, the Court's insistence of the lack of merit of this (at the time hypothetical) lawsuit was essential to SCOTUS's conclusion that the Ricci plaintiffs' rights had been violated. Ricci cannot be preclusive, since this plaintiff was not a party to the earlier case. It could be persuasive authority on the legal issue and the court must analyze the suit in light of Ricci. I would be troubled if it were binding authority on this point, since the lawsuit was entirely hypothetical and abstract at the time.

Here is where I think Iqbal and the new two-step pleading might come in. There is a good chance that, in doing the second-step plausibility analysis, the court's (discretionary) view of the plausibility of the plaintiff's allegations will be at least influenced by SCOTUS's insistence that recovery on disparate impact was so unlikely, and the city's fear of liability so misplaced, that its response to those concerns violated Title VII in the other direction. Iqbal suggests courts can decide whether a lawful explanation for the conduct alleged is as plausible as the unlawful explanation alleged and dismiss on its view of this "more plausible" lawful reason. So does the underlying conclusion in Ricci suggest this disparate-impact claim is implausible and thus insufficient under FRCP 8(a)(2)?

GOP lawsuit to stop Senate appointment

The Massachusetts GOP has filed suit in state court, seeking an injunction against Gov. Deval Patrick's appointment of a replacement for the late Sen. Ted Kennedy, arguing that Patrick lacked the authority to declare the emergency that constitutionally allows him to make the appointment now, rather than having to wait 90 days. A hearing is set for 8 a.m. tomorrow; Patrick's appointee, Paul Kirk, is scheduled to be sworn in tomorrow afternoon.

This is a suit that pretty clearly would fail in federal court on both Article III standing (the state party is not injured by this appointment, other than having lost in the political arena, and certainly not differently injured than anyone else in Massachusetts) and political question doctrine (this seems like a decision vested in the governor's discretion, with which a court will not interfere).

But is anyone out there familiar with the law of Massachusetts and whether its standing rules are so much broader than Article III as to permit the party to bring this lawsuit?

Update, Friday evening:

The court denied the injunction and Kirk was sworn in this afternoon. No mention of standing; the four-page opinion focuses mainly on a state law question of when the governor can declare an emergency.

Pleading and al-Kidd

Continuing with my thoughts on the Ninth Circuit decision in al-Kidd v. Ashcroft, the Ninth Circuit decision denying a motion to dismiss of claims challenging DOJ use of material-witness detention as a post-9/11 investigative tool. The final big issue, worthy of its own post, is what the court had to say about pleading in light of Iqbal.

The majority tried to apply a nuanced, but ultimately more-forgiving approach to pleading. It rejected as conclusory and insufficient the allegations as to Ashcroft's involvement with al-Kidd's conditions of confinement, for all the reasons discussed in Iqbal itself.

But otherwise, the court does not spend much time analyzing the Fourth Amendment allegations under Iqbal. The court merely says the following in finding the allegations sufficient:

al-Kidd alleges that he was arrested without probable cause pursuant to a general policy, designed and implemented by Ashcroft, whose programmatic purpose was not to secure testimony, but to investigate those detained. Assuming that allegation to be true, he has alleged a constitutional violation.

The real detailed Iqbal analysis was over the § 3144 claim--that Ashcroft enacted and supported a policy of violating the material-witness statute. The court emphasized how much more particular detail--specific, widely publicized statements by Ashcroft, FBI Director Mueller, and others about the pretextual and expansive use of § 3144--there was in al-Kidd's complaint as compared with the complaint in Iqbal. And clearly detail is demanded. From that detail, the court was willing to draw a number of favorable inferences as plausible and thus consistent with Iqbal and Twombly. For example, the court read the complaint to plausibly allege that Ashcroft knew of and did not stop misuse of the statute by underlings, based on the public nature of that misuse and statements explaining it. The court also read the complaint to plausibly allege that Ashcroft purposely instructed his underlings to do so, based on his public statements about the import of aggressive use of § 3144 in the War on Terror.

One lesson of this case is that specific, detailed examples of conduct and events are necessary to allege (inferentially) things such as knowledge, purpose, intent, agreement, and other state of mind. The allegation that someone "knew" X or did something "because of" Y almost certainly is not going to be sufficient. This is consistent with the Ninth Circuit's decision a few weeks ago in which allegations that Secret Service agents did something for viewpoint-discriminatory reasons were disregarded as conclusory.

I believe this undercuts arguments made by Adam Steinman in a CoOp post and in a great new article. He argues, for example, that in Iqbal, the following would be sufficient, without the need for greater detail (when they ordered it, the form it took, how they know):

Ashcroft and Mueller ordered that all post-September-11th detainees who are Arab Muslim men be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI, and they issued this order because of its adverse effect on this particular group.

But after reading the Ninth Circuit's analysis here (and in Moss), I am not so sure.

Another lesson is that plaintiffs are going to have much less success with a claim involving conduct that received less publicity and media coverage than this one. Al-Kidd could point to specific statements in the public record allowing the inference of an intentional policy or high-level knowledge. Unlike many (most?) civil rights claims, he did not need discovery to learn about specific instances or acts that support his claim. But many plaintiffs will not be so fortunate. Indeed, that divide between classes of cases seems inconsistent with the use of Bivens and civil rights damages litigation as a supplemental tool for investigating government misconduct; discovery (and the opportunity for it) is supposed to be part of that.

Finally, this opinion demonstrates the tremendous, and seemingly inconsistent, discretion courts wield in deciding 12(b)(6) motions, especially when considered in conjunction with recent Ninth Circuit decisions in Moss (granting dismissal under Iqbal) and Padilla v. Yoo (denying dismissal).

Official liability for abuse of material witness warrants

Much MSM discussion of Al-Kidd v. Ashcroft, in which the Ninth Circuit held that former Attorney General John Ashcroft did not enjoy either absolute prosecutorial or qualified executive immunity from damages claims that he established policies or presided over a regime of misuse of material-witness warrants to detain individuals not for purposes of ensuring their testimony, but to investigate the detained witnesses themselves for terrorism-related activities.

The plaintiff, a natural-born U.S. citizen who converted to Islam, was arrested on a material-witness warrant in March 2003, allegedly because of contact he had with Sami Omar Al-Hussayen and an Islamic charity, the Islamic Assembly of North America, that purportedly gave financial and other support to radical Islamist activities. Al-Kidd was held (in custody or supervised release) for 15 months, although never called as a witness in Al-Hussayen's trial (Al-Hussayen was acquitted). The warrant was obtained on false, incomplete, or omitted information and al-Kidd alleges that the purpose in seeking the arrest was to question and gather more information on al-Kidd.

Coming as it does on the heels of Ashcroft v. Iqbal, where the Supreme Court created a difficult road for victims of unconstitutional War-on-Terror tactics to seek damages against Ashcroft and other high-level executive-branch officials from the Bush Administration, the fact that this case was allowed to go forward has drawn some media attention.

There is a lot of interesting stuff going on here, that I will hit here and in a couple of later posts.

Absolute Prosecutorial Immunity

The court held that, in establishing and overseeing a policy of using material-witness warrants to investigate or simply detain the target of the warrant, Ashcroft was acting as an investigator rather than a prosecutor (as were his underlings). The court recognized that the ordinary, appropriate use of material-witness detention in the wake of an indictment and in preparation for a forthcoming trial would be prosecutorial. Here, however, the court added a limited purpose element to the immunity analysis; while a prosecutorial function committed with an improper purpose does not strip a prosecutor of immunity, the "immediate purpose" behind an act helps define whether it is investigative or prosecutorial and an act done with an immediate investigatory purpose is investigative.

This is a fine, but important line. The court looked at largely objective facts in making this determination--the temporal distance between the warrant and the trial; the government's investigative history with the target of the warrant; what the government questioned the witness about while in custody (who they asked about and what conduct they asked about); and whether he was called to testify at the eventual trial. The complaint also contained public statements by DOJ officials (including Ashcroft) about the expanded use of material-witness warrants for largely investigative purposes. On these facts, at least at the 12(b)(6) stage, Ashcroft was functioning as an investigator (or the supervisor/policymaker over investigators).

Interestingly, the majority also responded to concerns about unadorned allegations of non-prosecutorial motive by plaintiffs by emphasizing the amount of detail in the Complaint. This is an Iqbal-triggered concern, obviously. And I will talk about this more next post.

But here, it reflects an unfortunate pleading confusion. Prosecutorial immunity is supposed to be an affirmative defense, with the burden of proof (as the court seems to acknowledge) on the defendants. But the burden of pleading also should be on the defendant. Thus, the plaintiff should not have to plead that the challenged acts were non-prosecutorial and why, consistent with Iqbal or otherwise. It should be on the defendant to plead that the acts were prosecutorial. The language of the decision seems to convert anticipation and rejection of the defense into an element of the plaintiff's claim. This confusion was sort of an underlying issue in Iqbal; it is now explicit here.

Qualified Immunity

The court next held that Ashcroft was not entitled to qualified immunity. True, it was not clearly established in 2003 that misuse of the material-witness procedures violated the Fourth Amendment. But, the court said, dicta in Ninth Circuit law at the time suggested that material-witness detentions must be linked to a primary need to obtain testimony. Further, the definition and history of probable cause under the Fourth Amendment were clearly established, which should put government officials on notice that arresting someone on mere suspicion of criminal activity runs afoul of the Fourth Amendment. Finally, the court pointed to a 2002 district court case that rejected this use of material-witness detention as an investigative tool, calling out Ashcroft by name.

There is a tone to the opinion that this use of detention was akin to a government policy of selling babies who are in foster care. This is Judge Posner's classic example of something that is so glaringly, obviously unconstitutional that the law is clearly established on general principle regardless of case law, because a case on all fours never will arise.

Supervisory Liability

There was some concern that Iqbal eliminated supervisory liability under Bivens/§ 1983, by demanding an intent to establish unlawful policy. The al-Kidd majority rejected that reading, limiting an intent requirement to those supervisory-liability cases in which the underlying constitutional right contains an intent element (as with the Equal Protection and religious liberty claims in Iqbal). Otherwise, pre-existing Ninth Circuit law controls, allowing supervisory liability on a number of theories, including failure to train, supervise, or control; for setting in motion unconstitutional acts of others; and for acquiescing in constitutional misconduct by underlings.

Damages for violating § 3144

One final, strange thing in the case is that al-Kidd sought damages because the government's misuse of the material-witness statute in this case violated the statute itself (as opposed to violating the Fourth Amendment). Yet there was no discussion in the case of how or why a person could sue for damages for a statutory violation of § 3144. I have found no case recognizing a private right of action for damages under § 3144 itself (a Westlaw search turned up nothing). And Bivens actions are permitted for constitutional violations, not statutory violations (one obvious way that Bivens and § 1983 differ). Did I miss something? How did this issue fall through the cracks?

In the next post, I will discuss the issues in the case relating to Iqbal and pleading under Rule 8(a).

Confusing Fed Courts doctrine, same-sex marriage, and DOMA

Arthur Bruno Smelt and Christopher David Hammer are a couple living in Orange County, California who have spent a big chunk of this decade trying to be the Mildred and Richard Loving of the same-sex marriage movement.

After applying for (and being denied) a California marriage license back in 2004 or 2005, Smelt and Hammer filed suit in federal court, challenging the constitutionality of the denial of the license, as well as the constitutional validity of the Defense of Marriage Act ("DOMA"). The Ninth Circuit ultimately affirmed the district court decision to abstain from the challenge to state law on Pullman grounds, deferring to then-pending state constitutional challenge to California's one-man/one-woman definition of marriage (what became the California Supreme Court's 2008 decision striking-down the state definition of marriage, subsequently overridden by Proposition 8, which was upheld by the court in the face of a state constitutional challeneg). The court also held that Hammer and Smelt lacked standing to challenge the non-recognition provisions of DOMA.

In the interim between the 2008 decision and enactment of Prop 8, Smelt and Hammer were married (and California still recognizes that marriage as valid). They then brought a constitutional challenge in California state court to DOMA and to the failure of the entire United States to eliminate distinctions as to who can marry. Named defendants were the United States of America, the State of California, Does 1-1000 (I have not found the complaint, so I am not sure who those are). The United States removed the action to federal court under 28 U.S.C. § 1442 (removal by the United States). The U.S. then moved to dismiss for lack of subject matter jurisdiction--arguing that the United States could not have been sued in state court in California because of sovereign immunity and the federal court's derivative jurisdiction after removal is the same as the state court's original jurisdiction. Last week, the district court agreed.

I am thoroughly confused by a number of decisions that Smelt, Hammer, and their lawyers (I assume there are lawyers; the district court opinion does not indicate that they are acting pro se) have made. From the outside looking in, they appear desperate to go it alone and to be heroes on this issue. But their strategic choices have been bizarre and have reflected ignorance of core Fed Courts doctrine.

1) Two things must happen for anyone to have standing to challenge DOMA: a) They must be married and b) They must try to do something that triggers the (allegedly) discriminatory limits of DOMA--namely, either attempting to gain federal benefits as a married couple or to have their marriage recognized in another state. Smelt and Hammer never have tried to do either of those things, as far as I can tell (either before they were married or since they have been married), so I am not sure why their lawyers continue to believe they could be successful in challenging DOMA this way, given existing standing doctrine.

2) Why did they sue the United States? If their lawyers went to law school (and took Fed Courts or Civil Rights), they should know you cannot sue the United States for constitutional violations. You must sue responsible executive officers.

3) For that matter, why did they go to state court, knowing that any federal defendant would simply remove? And any federal constitutional claim would be a basis for removal.

4) Last week's disposition of the case turned on the unique removal doctrine of derivative jurisdiction, under which the federal court to which a case is removed lacks jurisdiction if the original court lacked jurisdiction. That doctrine has been statutorily overridden in general removal cases, but not in federal-government or federal-officer removal cases such as this one. I am not entirely sure the benefits of the government's strategy of removing-then-dismissing, rather than just dismissing; maybe because the appeal now is in the federal system. Still, this case just seems so obviously defective, no strategy can go wrong.

5) At some level, I think Smelt and Hammer still are reeling from being screwed in the first instance. As I have argued, Pullman abstention was unwarranted in the first case because the federal court deferred to state law litigation of issues under parallel state constitutional provisions (equal protection and due process). But there is no rule (and should not be any rule) requiring a plaintiff to exhaust state constitutional arguments before moving to federal constitutional arguments where parallel substantive rights are at issue. They should have been able to go forward on their original constitutional challenge to the denial of a marriage license.

6) A bit of patience, strategy, and knowledge of the doctrines could permit Smelt and Hammer to move forward in a real challenge to parts of DOMA. They need to apply for some federal benefits as a married couple (social security, whatever); have those benefits denied because; then sue the responsible federal officer who denied those benefits (not the United States), arguing the unconstitutionality of that portion of DOMA that defines marriage as between one man and one woman for federal law and federal programs, which likely was the cause of the denial of benefits.

7) It will be tougher to challenge the state-recognition provision of DOMA, just because of how the provision is written and its limited function beyond symbolism. It provides that no state is required to recognize an otherwise-valid same-sex marriage from another state; it kicks-in to justify the decision of one state to decline to recognize a another state's same-sex marriage. But states do not need DOMA to decline to recognize that out-of-state marriage; the Full Faith and Credit Clause has recognized a public-policy exception to recognition of foreign judgments. So even a federal court willing to say that, say, Utah acted unconstitutionally in failing to recognize the Smelt/Hammer California marriage could do so without having to touch DOMA, depending on the arguments the state made.

8) Ironically, Smelt and Hammer have run against a preference for big group impact litigation of constitutional issues. This partially explains the stretch to use Pullman in the first case--the court could avoid litigating this individual claim in deference to major impact litigation over the issue as a whole brought by knowledgeable cause lawyers. Thus, if Davoid Boies and Ted Olson go forward in litigating their intended federal constitutional challenge to same-sex marriage, we might see the court hearing any case by Smelt and Hammer to defer to the larger, group litigation. Despite the insistence (especially recently) on a return to the individual model of litigation and away from cause-oriented litigation, courts still seem aware of cause-centered cases and the completeness and expertise that goes into those cases. Similarly, I imagine leaders in the SSM movement have not been thrilled with Smelt's and Hammer's continued litigiousness, particularly given its incompetence.

Update, Tuesday:

My timing was good, because this has been a big week for DOMA discussions.

First, as noted in the comments, the National Law Journal had a story yesterday about a challenge to DOMA that just might work, brought by several people in Massachusetts who already have applied for, and been denied, some federal benefits (health insurance, disability, survivors' benefits) that ordinarily are available to married persons. No standing problems; no naming-the-wrong-defendant problems. And it might have legs. Mike Dorf also commented on a parallel challenge to DOMA, brought by the Massachusetts attorney general.

Second, Hillel Levin has a new paper on the conflicts-of-laws issues underlying same-sex marriage, which states are going to have to wrestle with, with or without DOMA.

Third, an interesting Fed Courts thought experiment: The plaintiffs in the Massachusetts case actually sought and were denied benefits. But at what point might they have been able to get into court? If they could have alleged a present intent to seek benefits or to claim marital status on their 2010 tax returns, would that have been enough to establish standing and to create a ripe controversy? Ordinarily, yes, a plaintiff can bring such an anticipatory, pre-enforcement challenge to an existing law, on a showing of specific intent to engage in conduct that triggers the unconstitutional law so as to satisfy standing.

But the right to do this (as discussed in Ex Parte Young) often is premised on the idea that the alternative is to wait for the law to be enforced, often through criminal prosecution and the risk of imprisonment, pretty big risks to take. So the pre-enforcement challenge allows persons to pursue the constitutional issue with less risk. But here, there is no risk of criminal punishment. The ability to trigger enforcement of DOMA rests entirely with the would-be challenger to the law--all he must do is request those benefits and have them denied. So would the courts have accepted an anticipatory challenge in this type of case?

Sotomayor Confirmed

The vote was 68-31; nine Republicans joined 59 Democrats (Sen. Kennedy did not vote).

Health-care protests and free-speech models

Recent stories about "tea-party" protesters shouting down Democratic Congresspersons trying to hold constituent meetings raises the question about whether the protesters' actions are appropriate in a freedom-of-speech, as opposed to a democratic governance sense. The answer depends on two competing models of how free speech should operate.

On one hand, Congresspersons are trying to recreate some version of Alexander Meiklejohn's Town Hall Meeting, in which democratic governance occurs via a form of the New England Town Hall meeting and the freedom of speech is designed to ensure that the meeting functions towards that end. (Actually, this is more of a republican adaptation--no governance is occurring at the meeting, but the meeting is designed to enable communication between representative and constituents, which in turn enables the representative to directly participate in the governance process). But the point about the rules of the meeting remains the same: They must be designed to ensure that the meeting can function for its governance purpose; there is no right in every person present to speak; speech can be restricted if it interrupts the ordinary course of the meeting, prevents others from being heard, or otherwise interferes with the meeting; rules can be used to maintain order to the meeting process (Meiklejohn anticipating what has become known as time, place, manner restrictions).

On this conception, the tea folks are acting wrongfully. The meeting should be open to the protesters and those protesters must be permitted to speak, ask hostile questions, and express (even in loud terms) their opposition to health-care reform (none of these Bush-Era faux town hall meetings stocked with handpicked supporters). What they cannot do is interrupt the meetings by booing and jeering, shout down the Congressperson or other attendees and speakers, or otherwise try to prevent the meeting from occurring or functioning as a public conversation.

On the other hand, a competing free-speech model is the person speaking on the public street corner. This ordinarily assumes the lone, powerless speaker alone on a soapbox, railing against authority and government corruption. But I think it is a flexible enough concept to capture a Congressperson out in public, meeting and talking with his constituents or even giving a public statement. This model of speech and the public speaker also carries with it counter-speech and the counter-speaker--someone standing on an adjacent soapbox, countering the first speaker's words, symbols, and ideas, trying to convince the listening audience that she is right and the first speaker wrong, and perhaps trying to get the first speaker to give up and shut up. One speaker attempting to shout-down another--while rude, not conducive to civil or meaningful discussion that can accomplish anyway, and perhaps counter-productive--is consistent with this model of speech.

The tea folks thus are behaving consistent with this model, particularly in less-formal settings (show-ups at restaurants, picnics in the park and other public spaces, etc.). Freedom of speech includes freedom to heckle and shout-down competing speakers; the public space is not the place for the organization Meiklejohn assumes. This idea of the extreme of counter-speech is captured in this scene from Casablanca--what's the difference?

Two final caveats on this. First, I do not suggest that the tea people are behaving in a way consistent with republicanism and democratic governance. Preventing a public conversation about an important issue of public policy is hardly conducive to effective governance. But sometimes there is a divide between speech and governance. Second, Meiklejohn's model, even if appropriate here, does not speak to remedies for those who refuse to play by the rules of the town-hall meeting. Because the reality is there are none. Having even harassing and uncooperative protesters removed from the meeting is not going to play well on TV or the Internet.

Overturning Twombly and Iqbal

Sen. Arlen Specter this week will introduce the Notice Pleading Restoration Act to overturn Twombly and Iqbal and reinstate Conley v. Gibson and "no set of facts" as the controlling federal pleading standard.

This is a welcome move, even if I do not see it going anywhere. It raises a couple of interesting issues of congressional power, which I consider after the jump.

First, it is noteworthy that the proposal does not come through the Rules Enabling Act process. This might reflect a belief that the current Court would not approve of this change to the rules. Or it might reflect a belief, contra the original purpose and expectation of the REA, that the ordinary legislative process is quicker and less politicized than the REA process. In fact, I expect one objection to the bill will be that the matter should be referred to the Court and to the Rules Committee.

Second and relatedly, it is noteworthy that the proposal does not directly amend Rule 8 or Rule 12, but establishes a separate statutory rule that must be read in conjunction with the Rules. I am not sure the rationale for this choice. There are some marginal arguments that the REA is the only way that the FRCP can be enacted or amended and that Congress cannot pass ordinary legislation directly drafting a Rule. But the prevailing (and proper, IMO) view is that the Rules are a product of legislation. The Supreme Court ordinary enacts them because Congress delegated power to do so, but Congress always can take back some of the delegated power and make rules on its own.

Third, this proposal relates to something I argued in my work-in-progress on United States v. Klein. One principle for which Klein stands is that Congress cannot force courts to speak a constitutional untruth--cannot tell the courts to adopt a constitutional legal rule or standard different than what the courts, in their independent judgment, believe should be the legal rule. Larry Sager has argued that, under this principle, the Religious Freedom Restoration Act is unconstitutional; RFRA told the courts to apply strict scrutiny to claims that religious exercise was being substantially burdened and expressed specific disagreement with the Court's decision in Employment Div. v. Smith. The structure of this bill is similar to RFRA: Congress is telling courts to apply the old legal standard (identified by case name) that the Court "retired" in Twombly, rather than the new legal standard from more recent Supreme Court decisions which Congress is, effectively, overruling.

So, could there possibly be a Klein problem here? I would argue no and I am fairly certain that Sager would agree. The Supreme Court decision being overturned here is not a constitutional decision, but a statutory one (albeit indirectly statutory--the Court had interpreted a rule that it enacted pursuant to a congressional delegation). Congress is telling courts what FRCP 8 and 12 mean and the interpretive standard to be used, not what the Constitution means. As I put it, there is no such thing as a "statutory untruth"--the ultimate truth of statutory meaning is whatever Congress says.

Again, I do not see this bill going anywhere quickly. But clearly the wheels are turning.

Final thoughts on the Sotomayor hearings

In no particular order, some final thoughts on the Sotomayor hearings. Start with the obvious: There will not be a filibuster and she will be confirmed handily (65-67 votes).

First, what are the chances that some GOP House member (likely a far-right backbencher looking to make a name for himself) argues that the House should impeach Justice Sotomayor? Might it happen just after she writes an opinion (probably within the next two years) that cites to foreign or international law or that supports an affirmative action program or that refuses to recuse from the non-Maloney Second Amendment incorporation case? This seems like the next step in the evolution of nasty confirmation politics. The hearings no longer provide any check on the President’s appointment authority; after Bork (and to a lesser extent Thomas), no nominee ever says anything beyond the sorts of bland platitudes we heard from Roberts and now Sotomayor; no one will say anything controversial (or meaningful) enough to give a critical mass of Senators (including Senators from the nominating President’s party) grounds to vote against her. And getting "tough" (or nasty) in questioning has become popularly counter-productive--as Republicans saw this week and as Democrats saw in 2005.

So what congressional check remains on these runaway activist judges? Impeachment. And, of course, the House member will not argue for impeachment because of Justice Sotomayor’s decisions (the line no one dare cross, post-Samuel Chase). Rather, it is because her actions on the Court are contrary to what she swore under oath to the committee. She cited foreign law when she told the Committee there was no constitutional warrant for doing so (although I explained yesterday why her answer studiously avoids this charge); she upheld affirmative action, which shows her letting her personal feelings as a "wise Latina" interfere with her decisionmaking. Obviously, the effort will not go anywhere. But it is a bad rhetorical road to even start down.

Second, have we bottomed out? Have the hearings devolved to such a low-level of discourse that the public will demand more—from both the nominee and the committee members from both parties—the next time? After all, if there is a consistent theme to all the coverage, it has been how inane and meaningless it all has been.

I keep relating this to the issue of past drug use by public officials. In 1987, marijuana use derailed Judge Douglas Ginsburg’s nomination to the Supreme Court (granted, the problem was that he was doing it with students while a law faculty member) and I seem to recall some controversy around members of Congress for past use. And I remember arguing at the time in a college course on the news media that, with the Baby Boomers (most of whom used pot in college, if not into young-adulthood as the only way to survive Disco) coming to political power and beginning to constitute an electoral force, this would be the last time that marijuana use could derail political ambitions. I was wrong as to timing. In 1992, Bill Clinton had to resort to a ridiculous lie to avoid the (believed politically damaging) admission that, duh, he smoked pot while going to college in the late 1960s. But by 2000, George W. Bush’s adult drug use was off-limits for the media and by 2008, no one blinked about Barack Obama’s admission in print of his youthful drug use.

So could this hearing be the judicial-confirmation equivalent of “I never inhaled,” the moment that pushes the public over the edge into demanding an honest and coherent discussion of judging, the courts, and the law? Into defined, non-buzzword questions and substantive answers? I am not sure. It might have been if the Democrats this time had pushed back on the Republican narrative about courts and judging, so that Judge Sotomayor had cover and the controlling theme was not “judging is passive mechanistic application of precedent”. As Dahlia Lithwick put it:

Democrats also came into these hearings with nothing to lose. They were going to seat this nominee, tee up the next two, and school the American people on why the Supreme Court matters and how it's letting them down and explain why balls and strikes are half the equation. They opted not to. When you think of it that way, beyond just being a waste of time, these hearings were also a waste of a thousand opportunities.

If Dahlia is right, that means the hearings on Obama’s next two nominees will be just as hard to watch as this one. Unless the Democrats finally find a judicial vision that they can voice for the public (which Dahlia doubts).

Third, President Obama could get three appointments this term (putting aside whether he is re-elected in 2012). So who’s next? I am guessing Elena Kagan (now having had a couple years as SG) and Diane Wood (believed to have been runner-up this time). Both likely will be less controversial (no "Wise Latina" albatross, no potential for race-baiting, and having Richard Posner and Frank Easterbrook or Jack Goldsmith, respectively, for support). Although, ironically, both may be more judicially liberal than Sotomayor. Thoughts?

[Cross-Posted at ACSBlog]

Misunderstanding Judging: Foreign Law

There is blame all around for the utter inanity of these hearings on the issue of the actual work of judging. An exchange Wednesday between Sen. Coburn and Judge Sotomayor on the subject of using foreign and international is a case in point.

At one point, Coburn asked whether anything in the Constitution granted judges permission or power to rely on foreign and international law. Coburn asked the judge to “cite for me the authority either given in your oath or in the Constitution that allows you to utilize laws outside of the country.”

The premise underlying these questions is silly. Of course neither the oath nor the Constitution says anything about utilizing laws outside of the country. But the Constitution also does not say anything about Originalism, Textualism, Living Constitutionalism, social science, canons of construction, precedent, interpretive methodology, history and purpose, or any other of the ordinary methods of judicial analysis. Article III vests the “judicial power” in the Courts of United States; enveloped within that term are all the tools by which judges interpret legal sources and find meaning, including resort to persuasive legal sources. The fact that nothing grants judges permission or power to use foreign law is meaningless, since nothing grants judges permission to look to state law (in federal cases) or to look at law review articles or to look at legislative history or to do anything that will help them interpret and determine applicable law. There is a nice question whether Congress could prohibit courts from relying on foreign or international law (Justice Scalia has emphatically said hell no; I argue the answer is different in constitutional and statutory cases). But absent a ban, judges don’t need permission to do the ordinary work of judging.

When Judge Sotomayor agreed that the Constitution was silent as to foreign and international law (without pointing out that it is silent as to all interpretive methodology), Coburn responded “so you stand by this statement that there is no authority to utilize foreign law in making decisions under the Constitution.”

Sotomayor then said “Foreign law cannot be used as a holding or a precedent or to bind an outcome of a legal decision interpreting the constitution.” Absolutely true. And this is the issue that most of the no-foreign-law politicians miss—no one is talking about being controlled by what French courts or the ICC do as binding authority.

But Coburn then asked her about a speech she made to the ACLU in which she said that “to suggest that you can outlaw the use of foreign law is based on a fundamental misunderstanding, and is “asking judges to close mind to ideas,” and demanded that she reconcile those ideas.

Sotomayor told the committee “What I pointed out in that speech is that there was a public misunderstanding of the word “use” in that discussion. What judges do is educate themselves, they build up a store of knowledge that one might consider. That’s just thinking.” And the key portion of her ACLU was as follows:

How can you ask a person to close their ears? Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think. And to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to some good ideas. …. Ideas are ideas. Whatever their source. Whether they come from foreign law or international law or a trial judge in Alabama or a circuit court in California or any other place, if the idea has validity, if it persuades you, then you’re going to adopt its reasoning. If it doesn’t fit, then you won’t use it.

And here is where, from the standpoint of wanting this hearing to be a somehow meaningful, or at least coherent, discussion of law and the judicial process, her answer falls flat. She insists that what she described in her speech does not constitute “using” foreign law, that looking to foreign law and other sources for ideas is not using it to make decisions under the Constitution.

Of course it is. Judges are using these “ideas” to figure out what some ambiguous legal concept (“due process,” “equal protection,” “cruel and unusual punishment,” “the freedom of speech”) means—to figure out what the law is—so they can apply that law to a set of facts. This is the essence of judging—interpreting vague or ambiguous text by resort to a range of sources and ideas and using those ideas to reach a conclusion as to legal meaning that can be applied in this and future cases. Foreign and international law is one source of ideas to use in that process; legal scholarship, social science, and the canons of constructions are other sources to use in that process. But the notion that this is not legal "use" is nonsense.

At some level, this is another example of what has been going on all week: The Republican/conservative minority (on the committee and talking in the press) has defined the boundaries of appropriate judicial behavior—here, that utilizing foreign and international law is inappropriate. And Judge Sotomayor answered the question by accepting and agreeing to that premise (“utilizing” international law is verboten), rather than pushing back on it and being able to define and explain what goes into judging, including resort to all sorts of persuasive sources. We teach first-year law students about the differences between binding and persuasive authority as a key concept of horizontal stare decisis, but no one ever suggests that persuasive precedent is not precedent that is being used in the legal analysis.

On the other hand, I understand why she gave this answer. And as a rhetorical move, it was brilliant. By defining “use” (or “utilize,” as Coburn said) narrowly to mean only having foreign law dictate the outcome as binding authority (which no one believes is proper outside of treaty cases), she left herself perfectly free to cite foreign and international law as persuasive authority for her next 20-30 years on the Supreme Court, without being in any way inconsistent with her committee testimony. This, of course, once again shows why the intellectual battle between nominee (this nominee and pretty much anyone put up for the High Court) and almost all committee members is such a mismatch.

I just wish we could have a meaningful discussion rather than a politically charged battle of wits.

[Cross-Posted at ACSBlog, where I am guesting during the hearings]

On recusal

One of the sillier exchanges in yesterday's hearing came when Senator Kyl argued that Judge Sotomayor, if confirmed, should have to recuse herself from hearing any of the three ongoing cases involving the question of incorporation of the Second Amendment--not only Maloney v. Cuomo, on which she sat on the panel in the Second Circuit, but also the unrelated cases decided in the Seventh Circuit (which agreed with the Second that controlling nineteenth-century precedent says the Second Amendment is not incorporated) and the Ninth Circuit (which held the precedent no longer controlling in light of Heller). Since Judge Sotomayor cannot, under the ground rules that are in play in this farce, actually give a definitive, informed answer to any question, she was unable to explain the law of recusal and expose the inanity of the question. Of course she must recuse from Maloney, but nothing in the recusal statute or in our common understanding of judicial ethics requires a judge to recuse simply because she previously decided a similar (or even identical) legal issue in a factually unrelated case while sitting. She also might have explained that, in order to be avoid being tagged (by Kyl and his colleagues) as a judicial activist, judges consider cases only in a particular factual context; this means there is no connection between the factually distinct cases in the different circuits and therefore no conflict. Otherwise, as Mark Tushnet argues, a circuit judge who interpreted a statute five years ago would have to recuse herself now when a different circuit created a split that the Supreme Court was called on to resolve.

I would use a different example. During the 1996-97 Term, while Glucksberg (the physician-assisted suicide case) was either pending or on its way up to the Court, Justice Scalia gave a speech in which he said something to the effect of "Of course there is no constitutional right to commit suicide." Scalia did not recuse (if he was not asked, there certainly was noise about why he should recuse), a decision I believed then was correct. Can it really be that it is OK for Scalia to state a legal view in a speech but not recuse, but that Sotomayor must recuse when she states a legal view (actually,the Second Circuit did not give a normative view on the incorporation question, but held that it was bound by precedent to conclude that the right was not incorporated) in a judicial opinion on the lower court?

An honest and thoughtful legal discussion might genuinely grapple with whether and when recusal is appropriate on purely legal questions, but that is not what we have here. Kyl was only interested in signaling that Sotomayor was biased against all gun owners, so she should feel pressure to recuse herself from hearing that cause; Sotomayor was only interested in not offending or angering Kyl, so she gave an answer hinting that she might take his suggestion of recusal seriously.

Well, maybe we are making progress. At least no one has suggested (directly) that she might recuse herself in any discrimination case involving women or Latinas.

Update: Sen. Sessions pursued the recusal question again this afternoon, arguing that Sotomayor had prejudged the issue by concluding that the right was not fundamental so as to be incorporated, at least under binding precedent. This seems to be a big talking point for gun-rights advocates--and a disturbing one, if we hope to be able to appoint experienced lower-court judges to the Supreme Court. Did anyone ask Judge Alito if he must recuse from every case involving abortion waiting periods?

Something else I wish I had written

Dahlia Lithwick perfectly captures everything I think and believe about the Kabuki theatre that is the upcoming Sotomayor hearings before the Senate Judiciary Committee.

Of course, I have agreed to be a guest commentator at ACSBlog this coming week, so I need to find something to say other than "this is a ridiculous charade."

Court of appeals reverses injunction on pharmacist regs

This week, the Ninth Circuit decided Stroman's v. Selecky, reversing the district court's grant of a preliminary injunction prohibiting enforcement of state regulations that would have required pharmacies and pharmacists to dispense Plan B contraception, despite pharmacists' religious- or conscious-based objections. (H/T: First Amendment Law Prof Blog). I write about this case for a largely personal reason: One of my earliest posts here at Prawfs, back when I was a bright-eyed and enthusiastic guest prawf, criticized the district court's decision enjoining the regulations.

The district court had subjected the regulations to strict scrutiny (which they, of course, failed), concluding they were not neutral laws of general applicability because they allowed pharmacists not to fill prescriptions for some reasons (such as time of emergency or the belief that the prescription is invalid or technical inability to fill) but not to refuse for religious reasons. I argued why this was wrong in my original post. The Ninth Circuit agreed the lower court was wrong, for basically similar reasons.

The court said that the law was neutral because it did not target conduct committed for religious reasons, but instead sought to eliminate all bases for refusing to fill a prescription other than those refusals that ensure patient health, safety, and access to medication. Importantly, the court recognized that the law disproportionately affected pharmacists with religious objections (because religious objectors would be the primary (only?) group likely to refuse to fill an otherwise-valid prescription), but held that this disparate impact did not render the law non-neutral.

The regs also are generally applicable; the district court erred by not focusing on the proper issue of whether the regs were impermissibly underinclusive. The court of appeals, again correctly, said that the regs required the filling of all lawful, proper prescriptions--no one may refuse to fill a lawful, proper prescription for religious or non-religious reasons. The exceptions in the regs (time of emergency, inability to pay, technical inability to fill, belief that the prescription is fraudulent) are narrow, limited to improper prescriptions or those that cannot be filled properly. The exemptions granted show that the state's purpose was to ensure access to all lawfully prescribed medications, including Plan B. The mere fact that some exemptions were granted does not render the laws not generally applicable. Nor does it require that all exemptions be granted where there is no similarity between the exemptions granted and the exemptions sought, in light of the statute's purpose.

The court of appeals remanded to the district court to reconsider whether the preliminary injunction should issue, applying the proper legal standard. So this case will continue.

Quick thought on Sarah Palin

This post is explicitly partisan-political, so I know it may be violating our motto.

Last August, I wrote a couple of posts arguing that The West Wing had broadly predicted the rough political, personal, and ideological outlines of both halves of the presidential tickets for both major parties, including Republican VP candidate (social conservative small-state governor included to appeal to an unenthusiastic conservative base and balance a distrusted moderate at the top of the ticket). But I also suggested that "had the show's writers written Sarah Palin as the GOP nominee for vice president they would have been ripped apart by commentators as liberals stacking the narrative deck and making Republicans look unrealistically unserious."

That statement looked pretty good as the election played out in the following two months. After this weekend's events, that last statement is looking even more true.

Osborne and due process

Two weeks late to the party, but a few thoughts on District Attorney's Office v. Osborne, in which the Court declined to recognize a right under due process (procedural or substantive) to have DNA testing performed on evidence held by the state.

First, in answer to Dan's question: Going into the argument, I thought that any right should be asserted through § 1983, not habeas. The right to test DNA did not necessarily go to the validity of the conviction or sentence or suggest that the claimant was being held in violation of the Constitution and laws. It was a stand-alone right to gather information from the state, information that might (depending on the result of testing) form the basis for a state post-conviction challenge or trial-court motion to vacate conviction; it was not Heck-barred (and forced into the habeas framework) because simply obtaining access to DNA did not necessarily imply the invalidity of the conviction. That depended on the next step of testing the DNA and what the tests revealed.

The majority assumed § 1983 was a proper vehicle and jumped ahead to reject the underlying constitutional right. Justice Alito addressed the § 1983 issue in a concurring opinion for himself and Justice Kennedy (Justice Thomas did not join this portion). Alito (apparently quoting from the plaintiff's allegations in this case) framed this as a Brady claim--an argument that the state had failed to turn over exculpatory evidence. By definition, the failure to turn over exculpatory evidence necessarily implies the invalidity of the conviction and Brady is a classic and common habeas issue. And it did not matter whether that failure occurred prior to trial (the paradigm) or after conviction.

It was a strong opinion. But ultimately I think Alito was wrong to treat this as a basic Brady case. Osborne did not know if the evidence he wanted access to was exculpatory; he believed it might be, but much depended on the outcome of testing he then wanted to perform. This is not typical Brady material, which usually is evidence that on its face tends to exculpate--the names and statements of witnesses who corroborate the defendant's alibi, information showing bias of key witnesses, misidentification in a line-up, or (to keep it in the DNA realm) the results of DNA testing suggesting the defendant did not commit the crime. In fact, there is no constitutional duty on a prosecutor to turn over information unless it appeared to have a tendency to exculpate.

Whether DNA is potentially exculpatory cannot be known until after testing and the whole basis for the claim was to get the opportunity to perform the test. This was more like typical discovery, the hunt for information to analyze and then decide the next step. And, it seems to me, that extra step before the DNA evidence could be used to challenge the underlying conviction makes a difference as to the appropriate litigation vehicle. Unlike Alito, I believe the Court's 2007 decision in Wilkinson v. Dotson (holding that a challenge to the procedures used in parole-eligibility determinations were cognizable under § 1983 because the finding of a violation only meant a new parole hearing, not earlier release from custody) controlled. Where the asserted right was merely a first step towards a possible future argument against the validity of conviction or sentence, § 1983 was the appropriate choice.

Second, the Court's refusal to recognize a due process right shows how far we have come (for better or for worse, I would suggest for worse) from the Warren Court. Several year ago, Corinna Lain argued that the Warren Court was not as counter-majoritarian in the criminal procedure realm as the myth suggests; instead, by the time the Court got around to recognizing certain constitutional rights, most states already had done so. Walter Dellinger makes a similar point yesterday on Slate's annual Supreme Court Breakfast Table (read the whole multi-part exchange) in talking about when the Court will expand substantive due process: the Court was willing to invalidate sodomy laws on due process grounds because by 2003 3/4 of the states had eliminated such prohibitions, while the Court was unwilling to invalidate prohibitions on physician-assisted suicide in 1997 because zero states allowed the practice. A similar story can be told about Loving v. Virginia, where by 1967 Virginia was one of only a few retrograde states that still had such laws on the books. All reflect the same basic point: The Court constitutionalizes due process protections only after similar, sub-constitutional protections have been widely (but not unanimously) popularly established, the basic function to pull stragglers along and imposing some national floor of rights.

Forty-six states, the District of Columbia, and the United States all provide some form of DNA testing. This is precisely the situation in which the Court might use due process to bring the four recalcitrant states in line and set the floor. Instead, Chief Justice Roberts emphasized that most states had taken steps and the stragglers, including Alaska, were taking the issue under consideration. There was no need, in other words, for the Court or the Constitution to step into the matter. Justice Stevens somewhat picked up on this point in his dissent, emphasizing that the state of Alaska had not explained its refusal to turn over evidence for testing here (Osborne had agreed to pay for it himself, so cost was not the issue) and suggesting that substantive due process would, at a minimum, force the state to explain its refusal.

Ricci, politics, and the appellate process

Dan asked for initial thoughts on Ricci. I have not had a chance read it, but here are a few initial comments on the procedure and politics of the decision, piling on earlier comments from Media Matters and from Jonathan Adler.

First: Appellate courts get reversed; that's why we have a three-tiered judiciary (two in Nebraska) and appellate review. Reversal does not mean Judge Sotomayor was "wrong" in any normative sense; it means only that a majority of the higher court disagreed and (as Justice Jackson reminded us) is "right" only in the descriptive sense of having the last word. (I would recommend former guest Chad Oldfather's comments on lower-court error). Reversal does not reflect on Sotomayor's ability as a judge or her style of judging, anymore than her being affirmed would allow for the argument of "see, she was right". And I would hope that, at least, intelligent legislators and law-trained commentators will avoid making a mountain of a quite common event. [Update: Or not so much].

Second: Jonathan suggests that the short shrift the panel gave the case (originally wanting to affirm by non-precedential memorandum, then affirming with a one-paragraph precedential adoption of the district court's analysis) might reflect poorly on her judgment, but that it will not derail the nomination in the end. I am not sure I agree that it reflects poorly on her judgment any more than reaching a different conclusion reflects poorly on her judgment. The procedures through which appellate judges handle cases (argument or no, summary disposition or opinion, precedential or non-precedential) are one aspect of the resolution of those cases. And they may be just as disputed and just as subject to differences of opinion as the merits. There can be differences of opinion as to the importance or ease) of the case, just as to the merits. And just as disagreement with the outcome does not mean the appellate panel was wrong in any absolute sense, neither does disagreement with the process employed (or views about simplicity) mean the panel was wrong in any absolute sense in using (or attempting to use) that procedure. Especially since there are indications that the practice is quite common on the Second Circuit, suggesting other court interests and concerns (maintaining unanimity, something the Chief Justice purports to like) legitimately play a role in the choice of process. That the panel thought the case an easy one (and thus chose a particular procedure) and the Supreme Court disagreed does not tell me anything. And although I have not looked into this, I am fairly certain the Court occasionally takes cases that were subject to more-summary disposition below.

Third: The Media Matters piece points to several cases in which Alito was reversed while on the Third Circuit (including Planned Parenthood v. Casey), as well as Hamdan v. Rumsfeld, in which the Supreme Court reversed the D.C. Circuit panel (of which Roberts had been a member) after Roberts became Chief. No one suggested that those reversals made either unfit for the Court. Alito was probed about those reversals (especially Casey) to try to get a sense of his judicial philosophy; he also was asked about several cases in which the Supreme Court affirmed.

Fourth: To the extent Republican Senators and/or conservative commentators are able to make hay (whether real or just noise in the media) out of this reversal to cast doubt on Sotomayor's "judgment," I think it will be another illustration of why the conservatives and the GOP are better at the confirmation/judicial-politics game. Alito was reversed in Casey? Well that just shows how out of control the Supreme Court (especially Justice O'Connor, who Alito had been nominated to replace) is and why it was important to put good, smart "strict-constructionist," non-activist judges (such as Alito) on the Court. Sotomayor was reversed in Ricci? That just shows why she is an out-of-control activist who decided the case based on her own politics and not the law and who should not be on the Court.

Jurisdiction in the Court

While everyone has been talking about Monday's decision in Caperton, two other cases caught my eye, going as they do to my ongoing search for lines between subject matter jurisdiction and substantive merits.

The first was United States v. Denedo (Majority by Kennedy, Concurrence/Dissent by Roberts), in which the Court held that the authority of the Navy Marine Corps Court of Military Appeals to issue a writ of coram nobis was distinct from the question of whether the case was one in which the writ should issue. In other words, whether relief should be granted is distinct from whether the court has the authority to hear the case. At several points, in explaining why the NMCMA had jurisdiction, Justice Kennedy dismissed government arguments by insisting they went not to jurisdiction, but to the substantive question of whether the petitioner was entitled to a remedy. The Court did not discuss the distinctions or announce principles for separating them, but it was good to see it acknowledging they are different concerns and treating them as such.

The second was Republic of Iraq v. Beaty, which dealt with questions of the waiver of Iraq's sovereign immunity from suit under U.S. law in federal court. The Court treated immunity as a jurisdictional question and held that the withdrawal (after the fall of Saddam) of the waiver (for being a state-sponsor of terrorism) of Iraq's immunity deprived the district court of jurisdiction over claims by victims of torture under Saddam's regime. This is unfortunate, because I continue to believe that sovereign immunity is better understood as a substantive limitation than a jurisdictional one. The point of sovereign immunity is that a foreign nation is not subject to any duties under U.S. law (at least not through a private lawsuit) and injured individuals have no rights under U.S. law as against foreign sovereigns; Iraq cannot be liable under U.S. law for its conduct, regardless of where the claims are brought. Those are purely questions of substantive merits. I will continue to push this as a normative point in several upcoming articles (particularly as to religious organizations), but the argument just became harder to make descriptively.

Discovery, burdens, risks, and Iqbal

The defense-attorney-bloggers at Drug and Device Law have a detailed post in favor of the Court's new approach to pleading in Twombly and Iqbal (H/T: Civil Procedure Prof Blog) (see my discussion of Iqbal here, here, and here) (see other criticisms here and here).

The point of departure between D&DL and critics of the new pleading regime (including me) ultimately comes down to placement of litigation burdens and risks.

Looser pleading recognizes that plaintiffs often lack critical information at the outset of litigation and need discovery to learn key information that shows the merit (or lack thereof) of their claim. But it burdens the defendant with costly and wide-ranging discovery. D&DL argue that Conley ceased to be workable with the broad changes to the discovery rules that began in 1966 and 1970 (the procedural flipside to my argument about the expansion of substantive federal law post-1938). Looser pleading produces so-called Type I errors--morecases get past pleading into discovery, at cost to the defendant, only to be found to lack merit.

Stricter pleading relieves defendants of the burden and expense of discovery in cases in which there likely is no there there, as indicated by the complaint. But this burdens (unfairly, in my view) the plaintiff with 1) the often-impossible task of framing a detailed complaint when she only can get the necessary evidence through discovery and 2) the risk of dismissal when she is unable to provide the necessary detail in the pleading (this is what was going on in Twombly and, potentially, Iqbal). Stricter pleading produces so-called Type II errors--potentially meritorious cases are deterred or dismissed with the plaintiff never having had a chance to fully explore the evidence in support of the claim.

So the point of departure is at the policy level. Do we prefer Type II errors imposing burdens on plaintiffs or Type I errors imposing burdens on defendants? And the answer will not be value-neutral. But the presence of a non-neutral policy question highlights two final points.

The first goes to a different aspect of the evolution of law, and thus procedure, since 1938. Seventy years ago, parties were largely interchangeable. A person or business entity was as likely to be a defendant as a plaintiff. So big business saw less of a need to push a defense-favorable view of the procedural rules, because a business might find itself as a plaintiff enjoying the benefits of notice pleading. There is far less interchangeability today--corporations and government are almost always defendants (and repeat defendants at that) who know they will almost exclusively enjoy benefits from a defense-favorable pleading regime.

The second goes to a procedural criticism of Iqbal and Twombly. To the extent the choice between the old Conley system and the new Iqbal/Twombly system is a policy determination, it should not come about through a decision in a case, but should be established through the notice-and-comment, increasingly democratized and political, Rules Enabling Act process.

Trial experience, pleading, and the Supreme Court

One thing that has not been talked about at all is that, if confirmed, Sonia Sotomayor would be the only justice with experience as a trial judge. One criticism leveled at the Supreme Court for its recent pleading decisions has been the justices' apparent lack of awareness or care for how trial pretrial practice works on the ground or for how difficult it is for lower courts to make heads or tails of the Court's "guidance" on the issues. The hope is that a justice with trial-court experience can make her colleagues aware of life and litigation on the ground.

On subjects such as pleading, this may cut in multiple directions. As several commenters on some recent pointed out, there has been an ongoing back-and-forth between SCOTUS and the lower courts over pleading. Until Twombly in 2007, it had been the lower courts trying to ratchet the requirements up (especially in civil rights and antitrust cases) and the Court pulling them back (likely to the chagrin of the trial courts, who were looking to control their dockets). Now, it is SCOTUS taking the lead on telling the lower courts to demand more from the complaints, but with somewhat mixed signals and without much specificity as to what they should be looking for from pleadings. The result may be more cases being dismissed at the pleading stage, or it may just be another round of motion practice that district judges are going to be forced to deal with.

Moreover, the solution of ratcheting up the pleading requirements is based on the assumption that there is no other way to avoid abusive, expensive, and burdensome discovery for ultimately unfounded claims. The Court has twice rejected the idea that we can trust trial judges to wisely exercise their discretion and to keep discovery in check. It will be interesting to see if a former trial judge is as willing to assume such a lack of competence by lower-court judges.

How Smart Do You Really Have To Be?

Note: I have edited the title of the post to better reflect its intent and content. --HYL

Okay, so I was a little off.  Stunningly wrong, actually.  This is why they don't pay me the big bucks.  Then again, people pick the Cubs to win the World Series every year and still get paid the big bucks.

I want to ask the prawfs community a question. 

We have already seen a lot of punditry on whether Judge Sotomayor has the intellectual chops necessary to be a good Supreme Court Justice, and we can expect to see much more.  (As I argued in my previous post, I think she obviously does.)

Lurking in the background of this debate is an unstated assumption that being a Supreme Court Justice is an extremely difficult job that requires intellectual capabilities that only a few of even those most obviously qualified possess.

My question is simple: how smart do you really have to be to be a good Supreme Court Justice?  And, as a follow-up, exactly what is it about Supreme Court judging that requires this level of brilliance?

After 15 Years of Excellence, Sonia Sotomayor Suddenly Became a DUMB BULLY--But Only Just Before the Last Election!

Scandal!  Scandal!  I smell a possible scandal in the air!

After wondering about discrepancies between the lawyerly evaluations that Jeff Rosen cited in his hit-piece on Judge Sotomayor and some earlier ones that I had accessible, I had someone retrieve the full set of evaluations from her time on the Circuit Court.  It turns out that in every year that Judge Sotomayor has been reviewed, lawyers have literally raved (and I am using their words, not mine) about her legal skills (and have been very respectful, if also a bit fearful, of her judicial temperament).

Until suddenly, in 2007, and shortly before Obama was elected, everything changed on a dime, and she suddently became a "Dumb Bully."  (The most recent Almanac is 2008, so she only became dumb during the last election season, when--as a number of people are starting to think--it looks like some people who haven't wanted her on the Supreme Court may have been doing something scandalous... 

Until I can figure out how to upload scans to this blog, let me just type out the 2006 reviews, which are typical of the other years:

2006 Lawyer's Evaluations (Full Set). 

Lawyers raved about Judge Sotomayor's skills. 

"For a still young woman, she is truly incredible.  She is just a very, very smart, capable jurist."

"She's brilliant."

"She is a Supreme-Court caliber jurist."

"She is truly brilliant."

"I don't think we have anyone better."

"She really believes in the judicial system and tries her absolute best to make sure that it works for litigants.

She is hard working, tireless, brilliant, and just the absolute best."

"She deserves straight As across the board."

"She's very impressive."

"She is very, very smart.  She really picks up on issues."

"She has an excellent legal mind, but she also has a lot of street smarts."

"She has a fast mind and she is capable of making very intellectual arguments.  At the same time, she recognizes the need for the practical side of the law."

"She is outstanding."

"She is very good."

"I like her. I have been very impressed."

        Lawyer's Described Sotomayor as being businesslike in judicial temperament.

"She does not put up with any guff."

"She works hard, and she expects lawyers to be as prepared and hard working as she is.  She can lose patience if they aren't performing up to her standards."

"She is very exacting."

"She's not a good old boy, but she is decent enough to lawyers."

"She has my respect."

"Her demeanor is fine."

"She is judicious."

"She lets you know who the judge is.  She does expect lawyers to defer to her."

"She is very courteous, judicial and businesslike."

"She is impatient with lawyers who are not prepared."

         Lawyers said that Sotomayor is fairly active at oral argument.

"She is very active and well-prepared."

"You have to be on your toes with her, because she will ask very pointed questions."

"She is another one of those judges who will start questioning you about things that were never raised in the case before."

"You can practically see the wheels in her mind turning."

"She asks very well thought out questions."

"She's pretty engaging."

"She is very deferential to Judge Walker."

"She is very quick."

        Lawyers said that Sotomayor is impartial in civil matters.

"Truly, I don't see her tilting one way or the other."

"She doesn't seem to favor either side inappropriately."

"I've found her to be very fair."

"She has always treated both sides fairly."

"I really have no idea what her politics are."

"She is not predisposed toward either side."

"I think she is fairly neutral"

        Lawyer's praised Sotomayor's written opinions.

"I got a good opinion from her, so I think her writing skills are fine."

"Her legal ability is excellent."

"She is very bright.  She is very competent.  She gets to the meat of the case quickly."

"Her opinions are excellent.  They are well-written and reasoned.  They are easy to read and understand."

 

 

 

Justice Souter to Retire

So says AP, NPR, and Bashman.

So who is his replacement going to be? I call Sonia Sotomayor of the Second Circuit--Latina woman, 55 years old--or Diane Wood of the Seventh Circuit. Comments open, as always.

In-Class Exercise: Guess My Politics

A while back I posted about the question of whether law professors ought to disclose their political convictions in class. There was a good discussion in the comments. As I wrote then, my personal preference has been to be plain about my beliefs rather than dance around them. 

It turns out that if disclosure is my goal, I'm doing a lousy job.

Some weeks ago in my Media & Entertainment Law class – in conjunction with a unit on political side-taking by the press – I decided to do a different sort of feedback exercise. I asked students to scratch down on a blank sheet of paper what they figured my politics were, and to hand it back anonymously. When students were done, I wanted to discuss the results right away. But since I didn't want to stop class to read all the papers, and since couldn't ask for a show of hands and preserve anonymity, I asked a volunteer to survey the class opinion while I was out of earshot.

I walked out of class, and then I came back about a minute later. When I opened the door, I had never seen my students having so much fun. They told me to go away – they were still discussing it.

When the verdict came back, I was told that students were all over the map. There was a weak consensus that I am socially liberal but fiscally conservative. A very animated class discussion then ensued.

After class, going through the written responses, I found that a few students thought I was conservative, a few thought I was liberal, many thought I was somewhere in the middle, and one thought I was a narcissist for undertaking the exercise.

I think that last student had a point. In doing something like this, there is a real danger of veering off into self-aggrandizing irrelevance. On the other hand, I think there is something healthy about students being invited to try to deconstruct, criticize, and even pigeon-hole their teacher's viewpoint. Especially since I do roughly that to many of the authors of our assigned reading.

But the real benefit to doing the exercise was what I learned about my own teaching. Like watching yourself on videotape, there's an opportunity through this kind of feedback to learn some surprising things.

The most shocking comment I received was from a student who wrote, "I think [you are] conservative (more or less) on family values in re: marriage and children, i.e. one man, one woman ... I think you're rather neutral on the subject of homosexual/lesbian marriage, i.e., you wouldn't go advocating for or against it, but maybe you rather would prefer it not happen."

I was floored by this. I am a strong advocate of marriage equality. And it concerns me greatly that students might see me as privately squeamish about gay relationships or marriage. It has inspired me to post a GLBT "safe space" sign in my office.

At any rate, I think it was a worthwhile undertaking. Given the imposition on the class and the attenuated relation it has to the subject matter, however, I think I'll hold off on doing it again for at least a few years.

Stimulus Blogging II: Can Legislatures "End Run" Governors?

Some recent news reports have mentioned that governors who earlier said they would reject stimulus money now have "backed off" and certified that they will take federal money.  But, as I described in my first post, "certification" is only one of two steps states must take to receive much of their stimulus money.  For most of the important grants, including education and unemployment, the states also have to apply.   Gov. Sanford (SC), for instance, maintains that he won't apply for education dollars, and several other governors say they won't apply for unemployment (and possibly TANF) money.  Reports are that the state legislatures are going to try to "make end runs around their governors and accept the money."  Can they do that?

Whether they can turns on the question I flagged in my first post: we know that state legislatures can "certify," but can they also "apply" in place of the governor?  South Carolina's attorney general has opined that the answer is no (and Prawfs guest Tommy Crocker agreed).  I think that the AG is about half right on educational dollars, and not at all right about unemployment.  Here's why.

First, let's recall that ARRA (i.e., the stimlus legislation) requires governors to certify that they'll take federal money, but also allows state legislature to certify if the governor doesn't.  The SC AG argues that this certification power is insufficient to empower the legislature, acting alone, to obtain federal money. For instance, the education provisions of ARRA state that "the Governor" has to submit certain information to the federal Dep't of Education before federal money can flow.  SCAG argues that this application language would be meaningless if the SC legislature could trigger federal money simply by certifying.

But SCAG simply assumes that the South Carolina legislature can't apply as well as certify.  True, the statute says "the Governor" must provide the required information.  But if the certification clause allows a legislature to stand in the governor's shoes for certification purposes, why can't it also fill his/her role for application, too?  That seems to me at least a plausible way to synthesize the two clauses; otherwise, the clause permitting the legislature to certify doesn't accomplish much, other than to obtain some small pots of money for which no application is needed.  So, at a minimum, I think a federal agency authorized to implement the statute could opine that legislative application would be sufficient, and stand a good chance of obtaining some kind of judicial deference to that view. 

For other provisions, such as the unemployment money, the argument that legislatures can apply is even stronger, because the statute does not mention "the Governor."  Instead, the section simply requires an agreement between the Secretary of Labor and "any State," ARRA section 2002, or for other provisions the "option of a State," ARRA Section 2005(b), or the "request" of "each State," ARRA section 2101(a)(3)(A).  Since ARRA specifically uses the term "governor" elsewhere, there is a strong implication that where that word is not used, action by the governor is not required.  So the legislature or its designee would be able to apply for unemployment and TANF benefits.

There might be an argument, though, that these readings empowering the state legislature to act should be set aside because of constitutional concerns.  That is the interpretive move made by the Congressional Research Service memo I mentioned last time (as well as by a second memo that I think hasn't been made widely available, but which I have, if anyone is interested).  CRS, following some earlier suggestions by Jack Balkin, thinks that empowering the legislature might violate the anti-commandeering aspects of the 10th Amendment.  I've already said a bit about that point on Jack's blog, but I'll follow up on the avoidance point here a little later this week. 

TRO issued in Pennsylvania case

Order here. (H/T: Jeff Spangler, commenting on an earlier post).

Nothing surprising or detailed. The DA argued Younger abstention, which the court rejected for the obvious reason that there is no pending prosecution. The court was admittedly cursory in the merits analysis, emphasizing that this was just a motion for a TRO and the only issue is a reasonable likelihood of success on the merits. The court did not seem to recognize that the "retaliation" would come only if the prosecutor actually filed charges, not from the mere threat.

I wonder how long before the DA makes this go away quietly--this cannot be good for him.

On moral panics and the definition of sexting

I do not plan to be the "sexting blogger" here at Prawfs. But John Parry of Lewis & Clark points me to this story from Oregon. A 17-year-old took a cell-phone video of another girl (then 16), who was drunk at a party, engaging in a sexual act with a dog owned by a 30-year-old man in the room; the filmer showed the video (which lasts for a bit less than one minute) to a male friend, who sent it to his phone. It is not clear whether that person disseminated the video. Arrest warrants were issued for all three of them and the girl and her male friend both have been charged with child pornography, which carries stiff mandatory minimums in Oregon.

I seriously doubt this case qualifies as "sexting." True, the word is a largely meaningless media-created one. But the paradigm that has been established (as described in the Oregonian story) is girls taking pictures/videos of themselves and sending/posting them between one another or to boyfriends. This story seems quite different, because it appears the subject of the video was drunk and the story does not make clear the connection between filmer and subject. But simply referring to this as sexting solely because it involves minors and a cell-phone video fails to capture how this departs the core definition. The word sexting is intended to describe something that is different than child porn (because it is self-depicting, consensual, non-exploitative, and, arguably, harmless). If so, the word cannot be used too broadly or to try to cover situations that do not share the elements or core characteristics of the paradigm.

The Oregonian story engages in this error, probably in an attempt to spice the story up by placing it in the sexy national obsession du jour. The piece cites statistics of teens and twenty-somethings who say they have sent or posted nude/partially nude photos of themselves. And it cites critics who insist "sex-crime laws were never meant to apply to teenage girls sending naughty photos of themselves to boyfriends, for example." (emphasis mine). What the author ignores, of course, is that those statistics and criticisms have absolutely nothing to do with this case, because the filmer was not posting a video/photo of herself or sending it to her boyfriend.

Actually, this is how moral panics pick up steam. We define some objectionable category of conduct broadly (often overly and inappropriately so). In doing so, we make the conduct appear far more pervasive than it really is and potentially more dangerous than the core really is. Policymakers might use the Oregon case as grounds to go after everything they can label as "sexting," even if the cases really are dramatically different.

All that said, we should be more thoughtful about legal categories. This may not be "harmless" sexting, but I am not sure it qualifies as child pornography, either. There must be other options. We can say the filmer did something wrong, without calling it child pornography and subjecting her to the mandatory minimums and sex-offender-registration requirements that come with it. But that may be less a problem of sexting and more a problem of a different moral panic over child pornography and child abuse.

More on Pennsylvania sexting case

Via Josie at First Amendment Law Prof Blog, more on the § 1983 action against the Pennsylvania prosecutor who threatened to bring charges against three teen-age girls for "sexting" photos of themselves. The plaintiffs did move for a TRO and there was a hearing on Thursday, at which, according to news reports, District Judge James Munley indicated that he saw "serious constitutional issues" and that having the victim be the perpetrator did not make sense.

Three points from my initial post stand:

First, the prosecutor could avoid all of this by bringing the charges before the district court rules on the motion for a TRO sometime next week. The fact that he does not seem inclined to do so speaks volumes about the merits of his arguments against the three girls and about his actual intentions.

Second, this case is all about framing. If the plaintiffs' argument in the § 1983 action is that the threatened prosecution lacks merit under state criminal law because the victim and the producer cannot be the same person, federal relief is inappropriate--there is nothing unconstitutional about bringing a weak state-law prosecution. The argument must be that it is a First Amendment rule that the producer and victim cannot be the same person (because there is no exploitation), such that the images in question are protected by the First Amendment (i.e., when subject and produced are the same, the image ceases to be "child pornography" under the First Amendment and thus does not fall outside the scope of the First Amendment). So the threat of prosecution this sexting under the child porn laws would stand on the same footing as a risk of prosecution of a non-obscene porn site under a law prohibiting indecent speech on the internet.

Third, I think I may finally have figured out what bothers me about the consistent focus on the DA's threats of prosecution (during the hearing, their lawyer described them as an abuse of power). I still am not convinced that the threat of prosecution marks an independent violation of the girls' rights; their rights are violated only by an actual attempt to punish First-Amendment-protected activity, which only can be done through a prosecution. This might explain why the plaintiffs seek to enjoin actual prosecution, not further threats (although they do seek a declaratory judgment that that the threats are unconstitutional). The threat of prosecution only makes the federal constitutional claims justiciable--gives the plaintiffs standing or makes their challenge ripe (both, really). But for the risk of prosecution that comes from the DA's threat, the plaintiffs have not suffered any real injury from the mere presence of the state child porn laws, which are otherwise facially valid.

This case is unique in that the threats to prosecute had to be more explicit because the laws in question do not otherwise obviously apply to the conduct and individuals at issue. Ordinarily, the "threat of prosecution" does not require such explicit threats; it comes from a law being on the books and ready for use, where the law obviously applies to some actors (back to my earlier example of a non-obscene porn site and a law expressly prohibiting indecent speech).

Is there something else I am missing here?

Sexting, Prosecutors, and § 1983

Last month, Dahlia Lithwick wrote about teen sexting--teen girls taking nude or otherwise sexy photographs on their cell phones and sending them to friends or boyfriends. Such pictures often get sent all over the school.

In one small town in northeastern Pennsylvania, three girls allowed their pictures to be taken and e-mailed--two girls appeared in one photo lying on the bed in their bras, one girl appeared in the second photo wearing a towel wrapped just below her breasts. The pictures then were being traded phone to phone among male students in the school district, many of whose phones were confiscated by the school and turned over to the DA. The DA threatened to bring felony child pornography charges against twenty teens (the three girls who had been photographer and 17 who had the pictures on their phones--although not the boy(s) who initially mass-disseminated the photos) unless they agreed to probation and to attend a "re-education" program, in which they would do homework and try to “[g]ain an understanding of how [their] actions were wrong,” “[t]o gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “[i]dentify non-traditional societal and job roles.”

The 17 possessors took the deal; the three girls brought a § 1983 action against the DA, alleging that he retaliated against them by knowingly threatening to bring frivolous felony charges against them for exercising their First Amendment rights in posing for the photos and in refusing to engage in compelled expression by participating in the re-education program. (H/T: Josie Brown at First Amendment Blog, via Bashman). The ACLU of Pennsylvania and Seth Kreimer of Penn Law are representing the plaintiffs.

Some interesting things.

1) At one point, the Complaint alleges that the DA told one of the plaintiffs' parents that "the girls were accomplices to the production of child pornography." If true, this is one of the most incoherent legal assertions ever. The reason for child porn laws--and for child pornography as an unprotected First Amendment category--is the conclusive presumption that the children photographed are being exploited, which conclusively presumes that they are too young to consent. So if they could not consent to their actions, how can they be accomplices to that act, since accomplice liability typically requires intent (I believe)? Is this really what the county's chief prosecutor came up with?

2) There is a lurking Younger problem (isn't there always?). The prosecutor could halt the federal lawsuit tomorrow by filing charges against the girls (the Complaint alleges that the DA has "temporarily deferred" prosecution to allow the girls more time to research and decide on their strategy). The complaint was filed on Wednesday; there have not yet been any "proceedings of substance on the merits" in federal court, so a quickly filed state criminal action would trigger abstention. The plaintiffs make a preemptive move, alleging several times that the threatened charges are blatantly meritless, thus any prosecution is brought in bad faith, a recognized (although extremely narrow) exception to Younger. It raises the question of how weak a charge must be qualify as brought in bad faith. Interestingly, the conduct challenged as unconstitutional is the threat to prosecute First Amendment protected activity, although the relief sought is an injunction prohibiting the DA from initiating prosecution. So that probably defeats the argument that the injunction would not interfere with state proceedings.

3) On the other hand, I wonder how strong the claim is on the merits. This case looks different than the typical anticipatory First Amendment action, which says "There is a risk that this state law will be used against me and such an application of the law would be unconstitutional." Here, the argument seems to be that the plaintiffs' conduct does not violate Pennsylvania child porn laws--as a statutory matter, not necessarily because such application would be unconstitutional--and that the threat of such a statutorily invalid prosecution violates the First Amendment. But are there recognized First Amendment (or any other) limits on threatening to bring charges under a facially constitutional statute? And can a federal court enjoin a prosecution not because the law (or its application) is unconstitutional, but simply because the state statute would not be violated on the facts?

4) There is no claim for damages, presumably because the DA enjoys prosecutorial immunity (a fact emphasized to show no adequate remedy at law). We could question whether the threat to charge and pre-charge negotiations are prosecutorial acts or more part of the pre-charging investigative process to which prosecutorial immunity does not attach. But the conduct described in the complaint sounds like plea bargaining, which is core prosecutorial. On the other hand, the plaintiff's real constitutional objections are to the meritless harassment from the threat of prosecution--which is better remedied by damages for the harassment than by an injunction halting future actual prosecution.

Keep an eye on this one.

Justice Jackson on Umpires and Judges

This post was written by John Q. Barrett of St. John's and the Robert H. Jackson Center; it was sent to the Jackson List (Link: http://new.stjohns.edu/academics/graduate/law/faculty/Profiles/Barrett/JacksonList.stj) and was forwarded by my FIU colleague, Tom Baker. Jackson's comments are in line with arguments I have made against Chief Justice Roberts's views of the judge-umpire connection.

On Thursday, December 13, 1951, Justice Robert H. Jackson spoke at the New York County Lawyers’ Association’s annual dinner, held at the Waldorf=Astoria Hotel in Manhattan. The Association and its 1,000 guests that evening honored senior federal Circuit Judges (and cousins) Learned Hand (age 79, and a judge since 1909) and Augustus Noble Hand (age 82 and a judge since 1914). To close the program, Justice Jackson delivered a “benediction” speech that included a now-famous line: “if I were to write a prescription for becoming the perfect district judge, it would be always to quote Learned and always to follow Gus.”

Justice Jackson also paid tribute to the Judges Hand that evening by drawing the analogy between an excellent judge and a baseball umpire. As Jackson put it,

the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

In recent years, the umpire-like work of judges has been described as much more mechanical than volitional. In 2005, then Circuit Judge John G. Roberts, Jr., nominated to serve as Chief Justice of the United States, testified to the Senate Judiciary Committee that

[j]udges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

Chief Justice Roberts was, of course, confirmed. In the process, his description of judging as mere rule-applying umpiring became a topic of much attention and discussion. Among lawyers, law professors and judges, the consensus view seems to be that the Chief Justice knows better, and that confirmation candidate advocacy should be recognized for what it is.

Interestingly, a captivating new book, New York Times reporter Bruce Weber’s As They See ‘Em: A Fan’s Travels in the Land of Umpires (Scribner) (click here), takes direct issue with the robotic, rule-enforcer view of umpires’ work. According to Mr. Weber,

[t]hough fans and broadcasters may treat the [home] plate umpire as if he were a mere ballot counter, punching the ticket of each pitch as it crosses the plate and acknowledging its ostensibly obvious credentials, in truth he’s much more of an arbitrator, keeping the most contested area on the ball field from being taken over by one side or the other.

Mr. Weber’s account of the umpireal job is not just his opinion. He quotes from major league umpires who explain their work as involving autonomy, responsibility and opportunities for judgment that resemble the work and responsibilities of, well, judges. The author explains that during two-plus years of attending umpire school and then interviewing almost 200 umpires and other baseball people,

[m]ore than one major league umpire spoke to me of calling balls and strikes as a kind of political enterprise, an activity requiring will and conscience and a point of view.

“It’s like the Constitution,” [current Major League Baseball umpire] Gary Cederstrom said to me. “The strike zone is a living, breathing document.” When I asked [MLB umpire] Tim Tschida why balls and strikes provoked so many arguments and so much enmity, he responded by comparing the rulebook strike zone to one of the most controversial Supreme Court decisions of the twentieth century. “Have you ever read Roe v. Wade?,” Tschida said. “It’s very clear. What it says is very clear. And we’ve still been fighting for twenty-five or thirty years over what it means.”

It seems, at least according to these umps, that Justice Jackson (who was, by the way, not a baseball fan) had it right about both their work and his own. Indeed, Jackson in his 1951 speech about “umpires” Learned and Augustus Hand seems to have been channeling some of the wisdom of one of that era’s, and humanity’s, greatest “judges”: an umpire’s qualities must include, said Branch Rickey, “the discretion of a judge….”

Jurisdiction, Connecticut, and Freedom of the Church

Rich and Rick commented on the proposed Connecticut bill regulating the structure of religious entities, in pretty clear violation of the Catholic Church's First Amendment liberty to organize itself. I find the story of this bill (which likely will not be enacted, so some of this is academic) interesting for what it indicates about the nature of the so-called "Freedom of the Church" Doctrine.

FOTC prohibits (or at least limits) secular law and/or secular courts from affecting or resolving questions of religious doctrine--such as who may serve as clergy and perform ministerial functions and who owns or controls church property. An ongoing debate is whether that doctrine reflects First Amendment limits on the adjudicative jurisdiction of the courts (as Greg Kalscheur argues) or the prescriptive jurisdiction of the legislative and/or judicial bodies that make substantive secular law (as I plan to argue in a paper, hopefully next year). In my view, the FOTC is an example of a constitutional limit on the power (i.e., the jurisdiction) of a substantive lawmaker (usually the legislature, although it could be common law courts) to create (i.e., prescribe) legal rules regulating certain conduct by certain actors. Which is the quintessential inquiry of substantive merits. For example, the "ministerial exemption" (a First-Amendment-inspired rule that interprets federal employment-discrimination laws such as Title VII not to apply to clergy, ministerial, and religious employment decisions) is best understood not as a limit on the jurisdiction of federal courts to hear and resolve cases, but as a limitation on the jurisdiction of Congress to enact substantive law that would regulate certain church conduct (hiring decisions).

The Connecticut bill is illuminating because it reflects a different application of FOTC.

In most cases, the source of the jurisdiction/merits confusion is how an otherwise neutral law of general applicability (such as Title VII or the rules of property ownership) applies to the affairs of religious organizations. Courts seem to find it too easy to say that, because the First Amendment prevents Title VII from reaching the Church's choice of Priests and from imposing liability on the Church for them, that must deprive the court of jurisdiction. That analysis is wrong, but I see how courts might get there. And courts are correct that there is a jurisdictional limitation at issue--but it is a First Amendment limit on legislative jurisdiction to make substantive law, not on adjudicative jurisdiction to hear cases arising under that substantive law. That confusion is very common.

But the Connecticut legislation is not a law of general applicability; it is a direct and explicit regulation on how churches structure and govern themselves. And if we imagine how a constitutional challenge might play out, it becomes clear that the First Amendment and FOTC are about substantive and legislative/prescriptive jurisdiction.

Assume the bill passes and Connecticut brings an enforcement action against the Catholic Church for failing to organize as required by state law; the Church defends by arguing that the law violates the First Amendment under FOTC. A court agreeing with that defense would hold that the law is unconstitutional and Connecticut cannot enforce it; it cannot lawfully regulate the Church in this way. The court would dismiss the claim not for lack of subject matter jurisdiction (the case probably was brought in Connecticut state court, which is a court of general jurisdiction, and SCOTUS would review it as a final judgment of the highest court of a state). Rather, it was dismissed because the state's claim against the Church fails on its merits because the legal rule sought to be enforced is invalid (or as I put it earlier in this series of articles, the legal rule to be enforced does not exist as law because it constitutionally cannot exist as law).

Alternatively, the Catholic Church might bring a pre-enforcement challenge to the law (probably in federal court) and the federal court will hold (presumably) that the law violates the First Amendment (under FOTC) and is not enforceable. But that clearly is a decision about substantive federal law and the constitutional limits of congressional power to enact substantive law.

If FOTC is about substantive merits in the context of such a pre-enforcement challenge, it also must be about substantive merits when the First Amendment is raised as a defense to an enforcement action. And the analysis for an enforcement action is (or should be) no different with a law of general applicability, such as Title VII.

On eyewitness testimony

Tonight's 60 Minutes featured a two-part story on the weakness of eyewitness memory and witness testimony, including demonstrations of some of the ways that memory can be wrong.

It also presented two good, paradoxical thoughts on how trials (and the law of evidence) operate. On one hand, the legal system is designed to (and perhaps does a decent job at) sorting those who tell the truth from those who lie (in the sense of deliberately misrepresenting) and who have motive to lie; it does not do as good a job of exposing honest mistakes or errors. On the other hand, the system could not function without eyewitness testimony.

Part I (focusing on one case of mistaken eyewitness testimony):

Watch CBS Videos Online

Part II (focusing on recent psychological studies showing the many problems with memory and eyewitness testimony):

Watch CBS Videos Online

They found a plaintiff and it still didn't work

During election season, I wrote about the various attempts to get a federal court to declare Barack Obama ineligible for the presidency because he is not a natural-born citizen, all of which were speedily rejected on standing and/or political question grounds. Heading the charge was a lawyer in Pennsylvania named Philip Berg, who was the named plaintiff in an unsuccessful action in the Eastern District of Pennsylvania that drew a lengthy, careful opinion denying standing. It seems that Berg, along with an Arizona attorney named Lawrence Joyce, have been behind the scenes for other, similarly unsuccessful claims.

One question at the time was how anyone could have standing, given the undifferentiated interests at stake--my argument was no one would have standing. Guess I was wrong.

In a decision last week, Judge Robertson of the District of the District of Columbia held that Gregory Hollister did have standing. Hollister is a former Air Force officer who claims that, because he could be called back to active duty and because he owes a duty of fealty to the Commander-in-Chief, he needs to be certain that Obama is a properly eligible President whose orders must be obeyed. Hollister asked the court to treat this as an interpleader action (an action in which a stakeholder facing multiple competing claims deposits the stake with the court for resolution of the competing claims). The argument was that Hollister's potential military duties to obey orders were a valuable res that could be "deposited" with the court for a determination as to where (or with whom) those duties lay.

The court found that it had jurisdiction, under both the diversity and interpleader jurisdictional grants. And the court addressed neither standing (I still believe there is a decent argument about undifferentiated interests) or political question doctrine (I am trying to figure out what relief the court possibly could have granted that would not have stepped on the congressional toes that certified Obama as the Electoral College winner). Didn't matter, because the court rejected the interpleader claim as "frivolous," stating that all the cases the plaintiff cited involved money or property and no court ever had allowed a "duty" to be treated as an interpleader res.

Three things I liked about the decision. First, although the court found the claim frivolous, it nonetheless found jurisdiction and rejected the claim on the merits, rather than (as too many courts do) holding that frivolousness deprived the court of jurisdiction.

Second, the court issued an order requiring attorney-of-record John D. Hemenway to show cause why he should not be sanctioned under Rule 11 for filing a claim for an improper purpose and for filing a claim not warranted by existing law. Although I generally am not a big fan of Rule 11 sanctioning activity, especially against civil rights and constitutional plaintiffs, at some point courts need to try to deter politically-motivated-but-obviously-legally-defective lawsuits such as this one. I was surprised not to see a move for sanctions against Berg in his initial suit, given that the lack of standing should have been obvious to anyone who has taken Fed Courts. Maybe this will put an end to this nonsense (at least until 2012).

Third, it is notable that the court aimed its sanctions at the Hemenway (a member of the D.D.C. bar), but not at Berg or Joyce. Although both are lawyers and both signed filings in the case, neither was admitted pro hac vice. The court said that "[t]hey are agents provocateurs –- and any attempt to sanction them for misuse of the public and private resources that have had to be devoted to this case would only give them a forum to continue their provocation." In contrast, the court went after the attorney they needed to get into court, thus (hopefully) deterring members of the Bar who would like to keep their reputations from taking on cases such as this. We only can hope.

More video looking bad for the police

Update: Because a commenter asked, shameless promotion of my article is permitted.

I unfortunately came across this one too late to include it in my paper on video evidence. This is a video of King County (WA) Deputy Paul Schene in November 2008: slamming a young female arrestee against the wall, flinging her to the ground by her hair, sitting on top of her, and taking two swings at what appears to be the area of her head. The apparent trigger was the girl flipping her shoe off her foot and out the cell door, where it allegedly hit Schene (the video does not show).

Schene is being prosecuted for misdemeanor assault. The video was released following a request from the Seattle Post-Intelligencer under the state open records law and over the objection of Schene's counsel, who insisted that the video "does not tell the whole story" and will inflame public opinion, making it difficult for Schene to receive a fair trial.

A few things about video evidence and civil rights to consider:

1) In my article on video and civil rights, in arguing for a First Amendment liberty to record events in public, I did not account for a different First Amendment issue--the extent to which police-recorded video will become an increasing focus of open-records and FOIA requests. My guess is that the dramatic nature of video evidence attracts more public attention in cases where it is present, which will make the media even more likely to seek access in more cases under state laws and/or the First Amendment.

2) This is another good example of video that is graphic and looks horrific to most people who see it. It likely will prompt a settlement in the certain-to-follow § 1983 action against the officer and the County. And it will play well with the jury in the criminal trial, so I would expect Schene to be convicted. But the video has enough gaps in it that a slow, careful analysis, in light of other testimony, might expose some holes--we do not see where the shoe goes when it flies out the door, we cannot see the girl when Schene has her on the ground, and we cannot hear what is being said.

I am not suggesting that anything that might have been said or done justified his use of force, which seems excessive in any event (especially tossing her to the ground by her hair); my viewing of the video leads me to conclude the force was excessive. But the video does not give the complete context and therefore cannot tell the entire story of the events in there. It should not be used as the sole source of evidence to the exclusion of all else. The mistake that is made is to treat video as if it does tell the whole story, ignoring surrounding contextual evidence to the contrary, and often ignoring ordinary procedure.

3) Ask this question: Should the girl get summary judgment on her excessive force claim? If the answer is no, it must be because some other evidence comes into play that counters the apparent force of the video. And if so, it should work in the other direction, with a video arguably favoring a defendant on a defense motion for summary judgment.

4) Dave Hoffman posts about the unique link among cultural cognition, summary judgment, and video and makes a great point that I just added to my paper: The unique problem of cultural dissensus in video cases is that more people will have seen (and, I would add, drawn conclusions about) video, meaning more people will be offended by a summary-judgment grant labeling their culturally grounded views unreasonable.

5) This case is unique because the officer was caught acting (arguably) unconstitutionally by the department's own station-house camera of which he at least should have been aware. This seems different from the (increasingly common) situation in which an officer acted wrongfully, only to be caught unexpectedly because a bystander happened to have a camera. I am reminded of Ocean's Eleven (the George Clooney version). A recurring theme is that in the casino "someone is always watching" because there are cameras everywhere, except in the room they take a guy for a beating. Apparently Deputy Schene has not seen the movie--or did not heed its lessons.

USA TODAY: Don't Investigate Bush Administration “Excesses” (read: alleged monstrous crimes)

USA Today’s editors revealed Tuesday that they oppose efforts by Democrats such as Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.) to form commissions to investigate the many “excesses” of the Bush team.  We’re reminded that such decisions are ultimately political, not legal.  Let’s look at the hodgepodge of points USA Today’s editors made, as these points represent conventional political wisdom. (Unfortunately, Rep. Conyers’ own argument seemed fairly weak and somewhat apologetic.)

USA Today latched onto Democrats’ calling Bush Administration misdeeds “excesses.”  That’s a pretty tame term for what, if proven, would amount to major crimes: torture; searches conducted without warrants or probable cause; aggressive war.  I was struck by the USA Today's reflexive sense that the investigation would ultimately be partisan.  It’s partisan to investigate war crimes? Democrats should not be painted as partisan for pursuing investigations.  Instead, Republicans should be faulted as partisan for not joining these efforts.

If I am ever accused of a crime, I will request a “commission” to look at my “excesses,” rather than a jury.

USA Today said investigating the alleged abominations would pose “a divisive distraction” from “rescuing the economy, controlling [the US's] exploding debt; fighting two wars and fixing other pressing problems.” Echoing President Obama, the editors said we should look forward, not backward.  I’m reminded of the workaholic who toils long and late to avoid introspection.

If I am ever accused of a crime, I will cite the crises of the day, and our need to look forward, not backward at my excesses ….

Where’s the principle here - would balmier times change the editors’ minds?  Moreover, these far-flung problems may be linked. Had the Bush Administration followed the rule of law and not wasted time and brainpower, for example, building an entirely new justice system designed to deny rights to a small number of people at Guantanamo, our leaders might have been able to think more clearly about other issues. Had the Bush Administration (and our major newspapers such as the Washington Post and New York Times, and our citizenry, for that matter) weighed the putative evidence of Iraq’s supposed WMD more carefully and followed international law, we would not be paying billions of dollars for all that unnecessary killing. 

The USA Today editors wrote, “Then there is the question of motive. Unlike Richard Nixon, whose subversion of the Constitution was meant to perpetuate his power, Bush’s post-9/11 decisions were simply his best judgment about how to keep the nation safe.” That’s reassuring, but it begs the question: Can we know motive without even a “justice lite” investigation by a commission that will ultimately end with a big group hug?  Also, the illegal methods - torture, widespread eavesdropping - are not really effective for information-gathering.  Invading Iraq did not make us safer. These post-9/11 decisions - especially endless war - unleashed methods commonly applied by governments that aim to increase their own power and crush dissent. At the USA Today, the government’s (proclaimed) ends justify the means. 

If I am ever accused of a crime, I will say I simply had good intentions.

The editors also reassured us that, “The fact is the Bush administration’s excesses are already well-documented, thanks largely to journalists, historians and Democrats who took charge of congressional oversight after 2006.”  I don’t remember lots of meaningful Democratic oversight after 2006.  I do remember continued funding for the Iraq occupation and immunity for telecoms involved in warrantless “excesses.”

If I am ever accused of a crime, I will point out that everybody already knows everything I did, and that the government now trying to bring me to justice was in power at the time of my excesses - so what’s the point?

The USA Today concluded, “Congress’s attention is better devoted to solving problems than to exacting retribution.”

If I am ever accused of a crime, I will say that government’s purpose is not to exact retribution, but to solve problems.

Maybe a deeper message lurks: If our political leaders hadn’t spent their time and our money seeking retribution for 9/11 by engaging in divisive distractions such as invading and occupying Iraq and torturing people at Guantanamo and beyond - acts that killed and maimed and harmed thousands of innocent people - maybe we wouldn’t have so many crises in the U.S.A. today.

The USA Today’s political arguments are unconvincing. The editors' tentative support for only a limited investigation into “one or two key unresolved questions, such as whether torture actually produced information that saved lives,” seems small-minded and backside-covering in the shadow of the monumental crimes alleged.  The crimes alleged are reprehensible, monstrous, among the worst crimes human beings can commit.  We owe ourselves and the world - especially our victims - a full airing, and punishment of the perpetrators.  Let’s rise above partisanship and investigate.

Bring back the filibuster

My procedural take-away from the stimulus story is that the Senate needs to bring back the filibuster--the Jimmy Stewart/Strom Thurmond-25-hour-talk-a-thons. The point was driven home by this morning's story on NPR about last night's compromise, which stated that the support of the three Republican Senators was necessary because "60 votes are needed for passage in the Senate." This is a classic example of a statement that is true but not accurate.

Sixty votes are not necessary for passage in the Senate. Fifty votes are necessary for passage* in the Senate; 60 votes are necessary to allow a vote and a determination on the merits of the legislation. And while the former is necessary for the latter, they are not the same and should not be treated the same or reported as the same. It would be a bit like saying "In order to prevail on your Title VII claim, you must first exhaust your EEOC remedies" or "In order to prevail on your fraud claim, you must first state your claim with particularity." Yes, you need to do those things to get your claim into court and have it move forward to a consideration and determination on the merits. Of course, that is necessary to ultimately prevail on the merits. But that is because you always have to comply with procedural rules. It does not make procedural compliance part of prevailing on the merits (the substance, if you will).

There is, of course, nothing wrong with procedural arguments or imposing procedural hurdles to merits determinations (assuming those hurdles are not so rigorous as to prevent meaningful merits resolution). But the conflation of procedure and substance is significant here because it allows the filibustering minority to block consideration on the merits without having to speak in procedural terms. Republicans are able to argue why they disagree with the bill and why the bill should not be passed. The real hold-up, which they are not required to talk about, is that they are preventing a vote on the merits. Compare civil litigation: If you want to argue that the case should be dismissed for lack of personal jurisdiction, then you better talk about International Shoe, not about why what your client did not constituted fraud (in fact, arguing the merits may waive the jurisdictional argument).

Now, formally, filibusters and cloture are about cutting off debate; 60 votes are necessary to halt debate on the bill. So substantive arguments ("This is a bad bill because . . .") are perfectly proper. But changes to Senate rules no longer require continuous debate. Rather, on threat of filibuster, the bill generally is pulled off the agenda and the Senate goes on with new business or, as here, the bill is revised (arguably for the worse) to get over the 60-vote line.

Lost in all of this is democratic accountability. Filibusters have become costless--the minority party (or, as here, a few swingers from that party) can hold up legislation through the mere threat of a filibuster--knowing that it lacks 60 votes to bring the bill to a vote (i.e., to cut-off debate), the majority party is helpless. And the minority can do this without paying any political price. It can block passage through a procedural mechanism without having to speak in procedural terms or to openly acknowledge to the public the use of a procedural mechanism--and to pay a political price if the public becomes angry that procedure is being used to block important and popular legislation. As a result, the number of filibusters for the past ten Congresses (going back to the late 1990s) has increased ten-fold. What was once rare has become the norm. So much so that the public now is under the impression, enhanced by sloppy political reporting, that the Senate has a genuine super-majority requirement.

So I propose either or both of two solutions:

1) Bring back the talkathons. If a filibuster really is about unlimited debate, then the minority party must continue debate, to the exclusion of all other Senate business, as long as the chair keeps the Senate in session. Maybe the public will view the filibusterers as heroic individuals standing up against a corrupt majority--as Mr. Smith; maybe (more likely) the public will be angered by what it seems as gamesmanship based on on wrong ideal--as Thurmond as unreconstructed segregationist. But at least the public gets an honest view of what really is going on.

2) If the announcement of a filibuster is enough to prevent a vote even without non-stop debate, any discussions must be framed only in procedural terms. No speeches or public statements about why the bill is a bad idea; only speeches and statements about why it is such a bad idea that it is not deserving of a vote on its substance. If this is a procedural move, make it clear that it is a procedural move.

I suppose a third solution would be to be honest--amend the rules to require a true 60-vote supermajority for passage of legislation.

I am not necessarily anti-filibuster. I am for political transparency and a belief that there is some identifiable difference between procedure and substance. By the way, lest anyone believe I am violating our sacred Prawfs motto--I made the same basic argument while teaching Legislation in spring 2003, when my favored party was in the minority.

• Vice President Biden breaks any ties at a full-speed Senate. Now the Senate is at 99 while we await resolution in Minnesota, so 50 does it without a tie-breaker. Fifty-one is necessary when the Vice President is from a different party than the Senate majority.

Reflections on Ledbetter, the Statute

Thanks to Dan and everybody for letting me guest blog over here this month. I am usually found at Workplace Prof Blog or speaking only to my students at McBlogmick (my class blog), so having the option to publicly embarrass myself on subjects beyond workplace law will be a real treat. I'll start small and stick with a workplace subject first, though.

I hesitate to express value judgments in my analysis of workplace issues at those other places because of the nature of those fora, but I'd like to do that here a little, starting with the first-ish bill that Obama signed into law, the Lilly Ledbetter Fair Pay Act. The statute changes the statute of limitations for when an employee can file a charge of discrimination in pay on the basis of race, sex, age, disability, religion, national origin, or color, restoring it to what the circuits had held before the Supreme Court issued its decision in Goodyear Tire v. Ledbetter almost 2 years ago.

There was a lot of rhetoric on both sides of this legislation--it was going to eliminate discrimination v. it's a field day for the trial lawyers--but no one seemed to ask this question: is it really going to have any effect? My gut reaction is, not much, and I'll explain why after the jump.

All the Ledbetter Fair Pay act does in terms of enforcement is to extend the time to file a charge to within 180 days of a discriminatory paycheck or other decision. It makes these claims easier to bring then, in that plaintiffs will not be time barred so easily. But the time bar was just one obstacle that, frankly, didn't even really exist until the Ledbetter case. It seems to me that other obstacles operate with much more force, and this statute does not address those.  Other, more powerful obstacles include a fear of retaliation and lack of access to legal help to pursue the claims.

I'll address the lack of legal help first. Discrimination cases are difficult to win or get enough of a settlement for to warrant an attorney taking the case on contingency, and most workers can't afford the kinds of hourly fees to pay an attorney up front. There is a wealth of empirical research on this winnability point. And this statute doesn't make these cases more likely to pay, which would enable attorneys to take them. The pay difference (amount of damages) may be a big deal to the individual plaintiff, but a relatively small amount in terms of recovery for the attorney. And attorneys can get fees if they win a judgment, but these cases almost never get to trial, when they get to trial most often lose, and when plaintiffs win at trial, are twice more likely to get reversed on appeal than when defendants win. And even where they win, plaintiffs can only recover damages for the two years prior to the charge being filed, so the available recovery is relatively limited.

And retaliation is a bigger problem. Pay discrimination cases are almost always going to arise in the context of continued employment. Particularly in a weak economy, no one is going to want to give their employer a reason to look for problems by suing for pay discrimination. Some kind of backlash is highly likely. Research has shown that people who complain about discrimination are viewed negatively even when the viewer knows that the person was actualy discriminated against. On top of that retaliation is very difficult to prove, and even if a person can prove they were discharged in retaliation for filing a charge, they're out of work during the time they're pursuing that claim. And at least some industries are tightly knit enough that the person wil be unlikely to be hired anywhere else, either.

So, the statute opens the door to the one group of people who don't have retaliation to worry about, people just like Lilly Ledbetter, those retiring. Maybe that will be enough.

Empty bi-partisanship

Paul Krugman captures why, at least as to the stimulus debate, the talk of bipartisanship is vacuous. Responding to David Broder's insistence that the bill needs "the best ideas from both parties," Krugman said:

You see, this isn’t a brainstorming session — it’s a collision of fundamentally incompatible world views. If one thing is clear from the stimulus debate, it’s that the two parties have utterly different economic doctrines. Democrats believe in something more or less like standard textbook macroeconomics; Republicans believe in a doctrine under which tax cuts are the universal elixir, and government spending is almost always bad. Obama may be able to get a few Republican Senators to go along with his plan; or he can get a lot of Republican votes by, in effect, becoming a Republican. There is no middle ground.

Absolutely right, at least if we are talking about substantive, as opposed to procedural, bipartisanship. If the GOP believes the bill has too much spending and not enough tax cuts (because that is what their economic principles suggest) and Obama believes the balance is about right (because that is what his economic principles suggest), there is no where to go--no way to create a bill with the best ideas of both parties.

Note that none of this blames Republicans over Democrats. While I share the Democratic economic views, others do not and maybe they are right and we are wrong. However we got here, there is an impasse. And my point is there is nothing wrong with this state of affairs. It is why we had an election three months ago in which the public put one side in power. It is why we will have another election in 21 months that will serve as a mini-referendum on this whole debate. I am not trying to argue that substantive bipartisanship is bad. I am trying to suggest that it may not be possible in some situations and to blithely insist that it is the inherent absolute good, in a situation of fundamental disagreement, misunderstands the situation and focuses on the wrong debate.

I think I am turning into a parliamentarian supporter of a parliamentary system.

Quick Update:

In one of his series of sit-downs yesterday, Obama told Charles Gibson that he is not interested in "bipartisanship for bipartisanship's sake." I think too many people, especially in the media, are.

Misunderstood legal quotations

OK, Dear Readers: Let's play a law-geek game: Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement.

My nomination: Justice Stewart's famous concurring opinion in Jacobellis v. Ohio, saying of hard-core pornography "I know it when I see it."

How it comes up: Get into any conversation about the difficulty or impossibility of coming up with a meaningful and workable definition for some concept or idea (say, judicial activism or bipartisanship or what political views are so offensive as to be beyond the pale) and the response often will be something to the effect of, "Well, I think we can just use Justice Stewart's definition," with the implication that this is good enough to resolve the definitional problem and thus resolve the dispute.

Why it misses the point: After the jump:

Jacobellis was one of a series of cases from the mid-1960s when the Court, having established that obscenity is unprotected speech and established a somewhat weak definition in 1957, struggled to apply it. In just about all the cases, the Court reversed the obscenity conviction, but without a majority opinion and without anything close to agreement about a standard. Jacobellis itself was a 6-3 judgment producing four opinions in support of that judgment, including Stewart's two-paragraph statement for the ages.

But Stewart actually was arguing that the Court's definition of obscenity had been an attempt to define the undefinable and was, at some level, unworkable. In the sentence preceding his money quote, Stewart said only hard-core pornography could be obscene, but that he would not try to define that concept, suggesting he "could never succeed in intelligibly doing so." But forced to decide whether Jacobellis' conviction should stand, he concluded that this movie "is not that."

Stewart was not proposing a definition. Nor was he suggesting that "I know it when I see it" should be good enough. Quite the opposite--he was decrying the futility of ever finding a workable or even-handed definition and, to some extent, throwing up his hands at the effort (he would later join with Justice Brennan in rejecting any categorical definition of obscenity as unprotected speech). I do not read Stewart as finding this a good or acceptable state of affairs. And I definitely do not read him as saying that IKIWISI satisfies him or is or should be acceptable as a legal definition for anything. So to say "Oh, we'll just rely on Justice Stewart and we know __ when we see it," as if it can resolve anything, is to completely miss the point he was making.

Other examples to offer?

Against bipartisanship II: Procedure or Substance?

As predicted in my anti-bipartisan screed, media and GOP sources are blaming Obama and the Democrats for the failure of bipartisanship that simply left House GOP no alternative but to vote unanimously against the stimulus bill and that, looking at Sen. Kyl's comments, may leave Senate GOPers no choice but to do the same next week. The substance of the comments is the same: Obama and congressional Dems are not acting in a bipartisan manner because all they do is listen to GOP ideas, allow votes on them, and accept some of them (but not all, because Dems fundamentally disagree with Republican economic theories), but they do not implement all (or even most) of what the GOP wants and instead go with the proposals that the Dems like. These criticisms of Obama fit very well with my earlier statement that bipartisanship is what happens when the other side agrees with everything I want to do.

On further thought, though, I believe we actually might be able to resurrect some notion of bipartisanship by tracking this issue onto the ancient divide between procedure and substance. What renders the debate over bipartisanship incoherent is the failure to distinguish procedural bipartisanship from substantive bipartisanship--betwen bipartisanship in the process of lawmaking and bipartisanship in policy outcomes. Procedural bipartisanship means both parties participated in an open process, had an opportunity to be heard, exchanged ideas, perhaps made some compromises on provisions, had good-faith discussions, allowed the minority to be heard, and allowed minority ideas to be raised and considered in the legislative process. I think we often do and should have procedural bipartisanship--and from everything I have read, we are having it on the stimulus package.

Substantive bipartisanship means the outcome is one that both parties support. We rarely have true substantive bipartisanship, at least outside of divided government. At some point there must be a vote and a decision. And if the majority is unwilling to adopt all of the minority's governing principles and ideas and vice versa, a "bipartisan" result is impossible or at least unlikely. Of course, if everyone agreed on the appropriate principles to apply and the appropriate policy measures to enact, they would not be members of different parties. So when I argued earlier that we should not care about bipartisanship, should stop talking about, and should stop trying to attain it, I had substantive bipartisanship in mind.

Unfortunately, we as a culture do not care about or speak in terms of process, only substance, so the yammering about bipartisanship will always be about substantive bipartisanship. Regardless of how open the process was and how willing Obama was to listen, in the end, because he pushed for and got a bill that adhered mostly to his Democratic principles and not to Republican principles (that, by definition, he does not accept), he did not act in a bipartisan fashion. But the expectation that he essentially should have governed like a Republican when he is a Democrat is precisely what makes substantive bipartisanship so ridiculous, meaningless, and ultimately distracting from the broader goal of enacting the best public policy.

It is this talk that must stop.

Against bipartisanship

A modest proposal that is going to sound like a bit of a screed:

We need to stop, once and for all, talking about "bipartisanship." Drop the word and the concept from the political vocabulary. Stop treating it as something desirable or essential. And especially stop talking about it as intrinsically valuable as an end in itself (often more so than substantive governing). Like too many other terms used in modern politics ("judicial activism," any one?) bipartisanship has no substantive meaning, functioning instead as a pointless and distracting sound bite that the media likes to throw around, but that does nothing but confuse the conversation. Actually, the analogy works: If judicial activism is nothing more than a decision with which you disagree, then bipartisanship is what happens when the other party agrees and goes along with what you want to do.

For starters, the term effectively tags all policy disputes with the pejorative "partisan," suggesting petty disagreements. But the parties diverge on policy issues because each party is built around some governing philosophy; there is a reason someone becomes a member of one party or the other. When Democrats and Republicans disagree, it is not simply due to party affiliation simpliciter; it is because their beliefs and approaches to governing are different.

Giving everyone the benefit of the doubt, the entire House GOP caucus did not vote against the stimulus package simply because they are Republicans and the President and House majority are Democrats. They voted against it because they adhere to a set of economic principles and policies that are different than those of the President and the majority (in simplest terms, business and corporate tax cuts v. government deficit spending). The House GOP wanted to enact a stimulus package to revive the economy, but they wanted to enact one they believed would work--that is, one that followed their economic principles. Why should they be expected to vote for a policy that does not adhere to their principles?

At the same time, Obama did not fail to accept all the GOP requests (e.g., dropping the payroll tax credit for non-income-taxpayers) not because they came from Republicans, but because they ran contrary to the economic ideas he wished to implement. Why should the Democratic President and the Democratic majority draft a proposal that adheres to Republican principles?

Given this genuine divide, negotiations and compromise only go so far and it is foolish to demand otherwise. Obama and House Democrats removed some spending and added some tax cuts to the package during legislative bargaining. But it was not enough to garner any Republican support. Why? Because Republicans fundamentally disagree with the core, more-or-less Keynesian economic principles underlying the bulk of the Obama proposal. They wanted even more tax cuts and even less spending--in other words, they wanted a package that looked more like what would come from a president and House majority that shared GOP economic ideas and principles. Which, it seems to me, is perfectly fine. But this President and this House majority have their own principles, principles that won handily at the ballot box two months ago. They wanted a legislative package that adhered to their economic philosophy At some point, one set of ideas must prevail; typically, at least in a time of unified government, it will be those held by the legislative majority and the President. Which, again, is perfectly fine.

The problem is that we have fetishized bipartisanship into something more important than governing. Obama is going to get the public policy he wants and that he believes will successfully kick-start a sick economy. (And I hope it works, for a variety of reasons). But it is going to be seen (and reported in the media) as a "defeat" because he was not able to achieve the outcome in a "bipartisan" manner. At some level, of course, this is his fault by making it such a public priority to get the minority on board. The result is a game that ignores the really important point--enacting effective policy. All the talk instead focuses on the pointless, unnecessary process of seeking bipartisan approval and of "working together to help the American people." And the story after-the-fact is that Obama failed to do so.

The minority can (and I would suggest did here) take advantage of the bipartisanship fetish by demanding more and more concessions to try to get a bill that looks like what they would create in the majority. Failing that (because they never were going to get that), they can and did vote against the package, on legitimate policy grounds (as well, probably, as some political/electoral calculation). But the bipartisanship fetish means they can go on TV and wave the flag of bipartisanship to say "hey, we were willing to work with the President, but he refused to work with us, so we were forced to vote against it, but it was his fault." Again, of course, "working with us" seems to mean implementing more of our policy preferences and governing the way we want him to, even if it runs against the ideas he wants to pursue and that got him elected. Alternatively, Obama and the Democrats could do the same thing when the minority fails to join the compromise--take to the airwaves and accuse the minority of acting in a partisan way and being "obstructionist" and not working for the "best interest of the American people." Again ignoring that the departure is precisely over differences of views as to what is in the best interests of the American people.

Just stop wasting time and energy. George Bush had it right (a sentiment I rarely utter), at least where a president has strong legislative majorities that want to work with him. Govern the way you believe best and go for what you believe you have the political and popular support to pull off--do what you (and your legislative allies) believe is in the best interests of the public. But now own the policy--if it works you get the credit, if it fails you get the blame. And the other party (with its competing philosophy) eventually gets a crack at governing. Also, stop accusing the minority of being partisan (thus somehow in the wrong) when it disagrees with and does not support your policies. As for the minority party, offer your own proposals, explain why what you offer is better, and see if you can get the public to support you now (public opposition could slow down the President and his legislative majority--e.g.., social security privatization in 2005) and in the next election cycle. But do not complain that the majority failed to "reach out" or that the majority did something wrong by not adopting all your ideas and policies.

What this sounds like, of course, is a parliamentary system. The executive has a legislative majority that can largely do as it pleases until at some point the party wears out its welcome and is replaced in power. The minority, or opposition, party has been operating a "shadow" government and offering its own ideas (and challenging the majority's ideas) all along. And we expect the opposition party to, you know, oppose. There is no expectation, much less demand, for bipartisanship or the appearance of bipartisanship.

This is not to say that negotiation and compromise, including compromise across party lines, never should be part of the political equation. The president may be of a different party than the majority in one or both houses. The legislative majority may be much smaller. The president may have lost the support of even his own party in the legislature (what happened, up to a point, as to S-CHIP during the 110th Congress). And the Senate, with its supermajority requirements, is a different animal. The minority sometimes may decide it is to its benefit to come along.

But consensus across party lines and broad, multi-party legislative (as opposed to popular) support should not be treated or discussed as an end in itself. AWe all would be better off if we stop unthinkingly treating it as if it were.

Harmless error, unconstitutionality, textualism, and the oath kerfuffle

Two (typically) good Balkinization posts on the oath controversy, one from Jack Balkin and one from Mike Paulsen. Paulsen is trying to explain why the misstated oath does not matter. But he makes the argument in the course of distinguishing what the Constitution requires from the consequences of failing to abide by the text.

I and others have noted that no one takes the presidential oath precisely as written, because everyone adds his name and "so help me God" and omits "(or affirm"). And if those additions/omissions do not matter (a point on which everyone agrees), we have to figure out why transposing the word "faithfully" matters. Paulsen argues, and I think I agree, that the question is whether the deviation (whether addition, deletion, or alteration) "matters," whether it "detracts" from the substance of the oath; presumably that question focuses on whether the deviation from text changes the meaning of the oath. Adding a name or "so help me God" does not; neither does omitting "(or affirm)" (which would make the oath incoherent); and neither would inserting random mumbo-jumbo in the middle of the oath. Transposing a word also does not change meaning--"faithfully" still is an adverb modifying "execute." Replacing a word might not matter if it did not change meaning (say a Jewish President said "Hashem" rather than "God"), but it would matter if it did change meaning (Paulsen uses the example of replacing "faithfully execute" with "probably execute").

Here is where Paulsen is doing something different. Most people (myself included) argue that because the transposition did not change meaning, just as adding "so help me God" does not change meaning, the Constitution was not violated by the oath at the Inauguration. But Paulsen argues that it did violate the Constitution (because the focus is purely on the text and the way the oath always is inconsistent with the text); in fact, every President since Washington has, formally, violated the Constitution by adding "SHMG" and their names. But, because meaning has not changed, the unconstitutionality (the "constitutional error," if you will) is harmless; it does not matter and does not require any remedy.

So in asking whether transposing "faithfully" renders the oath invalid, the question is not whether the oath was unconstitutional; it was unconstitutional, as has every other oath since 1789. The question is whether the unconstitutionality matters. Interesting take that matters for the broader Originalism/Textualism debate (which is what Balkin was taking on in his post), although not necessarily for putting the current oath nonsense to rest.

How specific the oath?

A lot of smart, sane people are saying that, purely in an over-abundance of caution, Obama either has or should retake the oath in private. Obama spoke all the words contained in the Clause. The argument seems to be that, because the Oath Clause contains quotation marks, it requires that the President recite the precise words in the precise order. Even if this is just an over-abundance of caution, those recommending the do-over seem to acknowledge, implicitly, there is a colorable argument there that at least could make for genuinely troubling litigation or conflict.

But why is it even is a colorable argument that a do-over could be necessary (even putting standing and political question issues to one side)? The problem with the quotation-marks argument is that Obama (and just about every President before him) added language to the oath, namely "so help me God," which does not appear in the Oath Clause. Can it really be that the President can add extra words if he wishes, so long as the required words are spoken in the correct order? That seems like a very odd reading of the Clause, partially formalist and partially pragmatic. That also leaves open the possibility that Congress could provide by law for an oath that added new language--maybe the "I take this obligation freely, without any mental reservation or purpose of evasion" language that appears in the oath for all other federal officers and employees--so long as the constitutional language remained as it appears in the Constitution.

One way around the "so help me God" add-on language rests on the fact that the President must "swear (or affirm)" and swearing presumes an oath to God. So when a President chooses to swear rather than affirm, as everyone does, "so help me God" is implicit in swearing, so making it express is not really adding new or additional language to what is quoted, which must be recited verbatim.

Maybe. And if the only requirement is that the quoted words be spoken, regardless f order, we could hypothesize the extreme example of a President who utters the words of the oath backwards or in completely random order such that it makes absolutely no grammatical sense--has he truly taken the oath?

Update, 10 p.m. E.S.T:

Obama retook the oath with Roberts at the White House this evening. (H/T: Orin). Of course, as some of the comments to Orin's post show, some people may now try to argue that everything Obama did between noon Tuesday and Wednesday evening is not valid or binding.

Now playing in the non-law-prof blogosphere

A couple of non-law-prof things worth taking a look at.

Noam Scheiber in the New Republic considers the stylistic and pedagogical differences between Harvard Law School and Yale Law School and how their different law school experiences affect the respective governing styles of Barack Obama and Bill Clinton.

[ed: My bad: Paul (as always) beat me to it on the Scheiber piece--and I basically share his take.]

TPMCafe is running a special feature on Barack Obama's America, discussing what this administration must do to bring the nation back from the past eight years in areas of liberty, equality, community, opportunity, and democracy. Several law professors are playing, including our own Steve Vladeck. Some good stuff there.

Who was president while Perlman fiddled?

At noon, EST, by operation of the Twentieth Amendment, George W. Bush's term as President of the United States ended. At that moment, Yo-Yo Ma and Itzhak Perlman were performing (the piece that was, by the way, my wedding processional). It was not until 12:04 p.m. that Chief Justice Roberts and Barack Obama stood up, Roberts asked "Are you prepared to take the oath, Senator?", Obama answered "I am," and they began (by the way, it was Roberts who read the oath wrong initially).

So who was President between noon and 12:04? The Twentieth Amendment states, referring to the noon end of the current President's term, that "the terms of their successors shall then begin." This seems to suggest that the transition happened at noon and the oath is a formality. And if you look at the blog of the re-designed White House web site, it announced Obama-issued proclamations time-stamped 12:01 p.m. And CNN flashed on the screen that Obama had become President as of noon.

But the oath is prescribed in Article II to be taken "[b]efore he enter on the Execution of his Office." Does this mean the oath is necessary for someone to become President? Or does it mean that Obama was President but could not do anything until he had taken the oath? If so, why did Roberts call him Senator before issuing the oath and not refer to him as "Mr. President" until after the oath was completed? And does all this mean that Joe Biden was acting president for four minutes? And what of Robert Gates?

Finally, what are the odds that someone files a lawsuit arguing that Obama did not properly take the constitutionally prescribed oath of office?

Update, Tuesday, 6:15 p.m.:

Orin Kerr and Mike Dorf weigh in. And the prevailing view seems to be that he became President under the Twentieth Amendment at noon and had to take the oath before he could "enter on the execution" of his office--in other words, before he could wield any executive power. And I think I agree with that, otherwise this all becomes unnecessarily complex.

This reading also has some historical support. As Sonja noted in the comments, there was 90-minute gap between President Kennedy's death and Johnson taking the Oath on Air Force One (with Jackie Kennedy famously standing alongside him, still wearing the bloodied clothes from the assassination). And apparently the first Congress believed George Washington became President on March 4, 1789 (the day the first Congress attempted to convene), although he did not take the Oath until April 30.

Finally, one other interesting tidbit (courtesy of my FIU colleague Tom Baker, the real con law expert here): Presidents Jackson, Lincoln, and (Andrew) Johnson at various points argued that the Oath was not even necessary to exercise presidential power (that came with the job), but that the Oath gave them additional powers, namely in the realm of constitutional interpretation, beyond ordinary executive power they would have absent the Oath.

Oh, one last thing: From what I am reading, it is beginning to sound like whom to blame for the botched oath is a political litmus test. But I give Orin the final word on this.