Friday, November 11, 2022
Coenen & Coenen, Principles of Constitutional Structure
I'm happy to recommend Principles of Constitutional Structure, a new book in West's hornbook series that, as the ad copy says, "offers an overview of federalism, the separation of powers, and related matters of constitutional structure." It's by Dan T. Coenen & Michael Coenen. Although it grew out of a book on the Commerce Clause by Dan Coenen, I was drawn to it by its broader scope and specifically its treatment of separation of powers. I can't say I've read it from cover to cover, but what I've read is clear, interesting, and well-sourced. Kudos to the Coenens.
Posted by Paul Horwitz on November 11, 2022 at 11:54 AM in Paul Horwitz | Permalink | Comments (0)
Thursday, November 10, 2022
How's That Leak Investigation Going?
Remember the Dobbs leak? And the leak investigation? No? That's probably what the Supreme Court wants.
I don't think that the Justices want to know how who the leaker was, and I certainly think that they do not want anyone outside the Court to know. So far, so good.
Posted by Gerard Magliocca on November 10, 2022 at 10:02 AM | Permalink | Comments (0)
SCOTUS questioning
What should we call the Justice-by-Justice questioning tacked onto the open questioning in SCOTUS arguments. (This is a vestige of the process from telephone arguments during COVID). During Tuesday's Mallory arguments, Justice Sotomayor called it "round-robin," a term I have used informally. But that does not seem accurate--a round-robin is a tournament format in which every team faces one another. Obviously the Justices do not face one another. And round-robin does not describe one competitor facing each of nine opponents.
In a more formal writing, I used "serial questioning" or "sequential questioning," either more accurate. This is a series of questions by a series of Justices, asked sequentially.
Posted by Howard Wasserman on November 10, 2022 at 07:08 AM in Howard Wasserman, Judicial Process | Permalink | Comments (4)
Wednesday, November 09, 2022
(Guest Post) The Mallory Argument on Personal Jurisdiction via Corporate Registration
The following is by Rocky Rhodes (South Texas) and Andra Robertson (Case Western); this is the latest in a series of posts on the case. I have been focused on elections and Tuesday's other argument, but I hope to add something to this discussion later this week.
The Supreme Court heard argument yesterday in Mallory v. Norfolk Southern Railway Co., which addresses the constitutional limits on states asserting jurisdiction over a nonresident corporate defendant that registers to do business in the state. Under 42 Pa. C.S. § 5301, state courts obtain “general jurisdiction” over a nonresident corporation registering to do business. Mallory claims that this statute supports Pennsylvania’s jurisdiction over his FELA claim against his employer Norfolk Southern Railway because the railroad is registered to business in the state—even though Mallory is a citizen of Virginia, the railroad is incorporated with a then-principal place of business in Virginia (now in Atlanta, Georgia), and his claim arose from his alleged exposure to carcinogens in Virginia and Ohio. The railroad counters that the exercise of personal jurisdiction violates the Due Process Clause and the unconstitutional conditions doctrine. We had a series of posts on this case on Prawfs shortly after certiorari was granted last April (see here, here, and here), and Howard invited us back to report on the oral argument and the briefing in the case. We’ll highlight the primary positions of the parties, the Justices who pushed back, and some interesting tidbits for our fellow jurisdictional aficionados.
Posted by Howard Wasserman on November 9, 2022 at 01:37 PM in Civil Procedure, Judicial Process | Permalink | Comments (0)
Tuesday, November 08, 2022
Justice Harlan and Justice Black
I'm reading Peter Canellos's biography of Justice Harlan (the elder). One thing that stands out is Harlan's rhetoric on race when he ran unsuccessfully for Governor of Kentucky in 1871. There is a definite connection between his defense of civil rights and racial equality on the stump and what he said later on the Court.
I am also struck by the parallels between Justice Harlan and Justice Hugo Black. Both men stood alone in arguing that the Bill of Rights should apply to the states. And both took strong positions on racial equality in spite of their southern or border state roots. Yet both also were members of nativist organizations before reaching the Court. Black was a member of the Ku Klux Klan. Harlan was part of the Know-Nothing Party.
Perhaps there is something in the idea that converts are the loudest members of the choir. In other words, the revulsion or regret that both Harlan and Black felt about their past associations made them stronger advocates for rights and equality from the bench.
Posted by Gerard Magliocca on November 8, 2022 at 10:24 AM | Permalink | Comments (0)
Monday, November 07, 2022
§ 1983 and the Spending Clause
SCOTUS hears argument Tuesday in Health & Hospital Corp. v. Talevski, considering whether Spending Clause enactments (there, the Federal Nursing Home Reform Act of 1987 ("FNHRA")) can be enforced in damages actions under § 1983. I am covering the case for SCOTUSBlog; here is my case preview.
This is the latest in the Court's move to limit private rights of action, but with an important twist. The supposed separation of powers arguments driving limits on Bivens and implied statutory rights of action--Congress, not the courts, should make the policy choices and balancing of interests in creating private rights of action and Congress has not done so--do not apply. Congress made that choice in enacting 1983 as a free-standing cause of action and including the phrase "and laws" to allow plaintiffs to enforce statutory rights beyond constitutional rights. Not that I do not expect the Court to find some new means to its preferred end of limiting private litigation. Just that the recitation of separation of powers will not do it in this case.
Posted by Howard Wasserman on November 7, 2022 at 06:55 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
JOTWELL: Effron on Simon on bankruptcy as aggregate litigation
The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Lindsey D. Simon, Bankrtupcy Grifters, 131 Yale L.J. 1154 (2022), which considers bankruptcy as a tool of aggregate litigation and the problem of solvent debtors running to bankruptcy to avoid mass-tort litigation.
Posted by Howard Wasserman on November 7, 2022 at 03:01 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)
Friday, November 04, 2022
Adjectives and verbs
When Donald Trump ran for President in 2016, there was a lot of talk about whether he was racist, which allowed him to defend himself by insisting he is "the least racist person" anyone has ever met. I wrote a post at the time arguing that it was a mistake to speak of whether some one "is ____," as opposed to whether the person "does ___ things." Stated differently, it is the difference in the law of evidence between "who someone is" and "what someone does." The former is unhelpful because it is impossible to look into someone's soul, it can be repeated as an insult, and it is too easy for them simply to deny that is "who they are." The latter allows us to evaluate conduct--the policy you propose would treat Muslims differently than other religious groups. Even if you are not a racist, you advocate a policy that is (whether in purpose or effect) racist.
This is playing out in the kerfuffle over the Brooklyn Nets' Kyrie Irving's tweets promoting a movie containing antisemitic ideas and messages. The Nets suspended Irving on Thursday and he apologized late on Thursday. That apology comes after several days of refusing to do so, which he explained as "I initially reacted out of emotion to being unjustly labeled Anti-Semitic." That is, he resisted when the framing was who he is rather than what he did--posting something and promoting a movie containing false and antisemitic statements. Again, a more useful framing.
Posted by Howard Wasserman on November 4, 2022 at 03:00 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)
Jotwell: Two articles on Supreme Court communication
I'm not as good as Howard at regularly posting pieces from Jotwell, where I help with the con law section, but--here's a jot about two articles, one by David Fontana and Christopher Krewson and the other by Barry Sullivan and Ramon Feldbrin, on, as it were, wholesale and retail communication by the Supreme Court. Here's the intro:
The leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization was an embarrassment to the Supreme Court as an institution. Its perpetrator(s) ought to be found out and censured or punished. But consider the leak in a different light: as an experiment in communications. When the final opinion came out on June 24, there was no desperate casting-about to understand it. Of course there were additional opinions, including the dissent, to absorb. But as to the meat of the opinion, there was no spectacle of Supreme Court reporters flipping pages on the steps of the Court, trying to boil down tens of thousands of words in an instant; there was no unnecessary lack of public understanding of the decision. The nation was not happier. But was it better served?
Viewed in that light, these two articles are well-timed. They are also nicely complementary. One, Barry Sullivan and Ramon Feldbrin’s The Supreme Court and the People: Communicating Decisions to the Public, is comparatively oriented and practical in nature, drawing on other constitutional courts’ experience to suggest some basic improvements in Supreme Court communications. The other, David Fontana and Christopher N. Krewson’s The Rhetorical Power of the Supreme Court, is arguably less practical but more ambitious. It argues that extrajudicial discussion by the Justices about the Supreme Court constitutes a “rhetorical power” that can spur more productive public discussion of constitutional law. These are certainly different approaches. But both articles agree that the Court faces a legitimacy problem that can in, some measure, be addressed by better communication. We may doubt the likelihood of the cure. But the prescription is well worth the attention, practically and for its own sake.
And something from the end:
Both authorial pairs have made a valuable contribution to discussions of the public-facing approach of the Supreme Court. Just as important, in true peanut-butter-and-chocolate fashion, the roughly contemporaneous appearance of both articles adds a complementary value to each one, and to both taken together. Each provides a different focus. In Fontana and Krewson’s case it is the contribution that might be made by individual justices speaking extrajudicially; in Sullivan and Feldbrin’s case it is what the Court might do institutionally to make its opinions more accessible. Fontana and Krewson bring interesting empirical tools to bear on the issues they raise; Sullivan and Feldbrin employ comparative work to expand our sense of what is possible. Fontana and Krewson offer a valuable theoretical discussion; Sullivan and Feldbrin work in the practical realm. Together, they taste great.
In several senses, both papers are also very timely. The Court’s public approval standing has plummeted. Regardless of its legal or moral legitimacy, its role in the culture wars in a polarized society, and its convenience as a target in partisan politics, will not enhance its perceived legitimacy. The justices are well aware of this and are attempting to respond, at least on an individual basis. It is thus an excellent time to think about what the Court could do to shore up its real and perceived legitimacy.
In another sense, one may ask how much anything could help much right now. I say this not because the current 6-3 majority is disfavored by most law professors and journalists and many others; millions of Americans are delighted by it. But it is entirely possible that on both sides of that divide, the overriding concern will not be with “legitimacy” as such, but with acceptable results. The tendency to put that conversation in the language of legitimacy will only “weaponize” that term, to use the cliché of the day. The Court may find that whatever communications strategy it adopts will be the equivalent of baling out a sinking frigate with a tablespoon. That said, the issue is certainly not going away. Between them, these two articles offer food for thought and viable, practical options.
Enjoy--and, of course, check out both articles!
Posted by Paul Horwitz on November 4, 2022 at 11:11 AM in Paul Horwitz | Permalink | Comments (0)
Northwestern University Law Review’s Winter Exclusive Cycle Opens December 1
From the Northwestern University Law Review:
The Northwestern University Law Review will hold a winter exclusive cycle, accepting submissions from December 1, 2022 to January 6, 2023. Manuscripts submitted by January 6 will receive a decision by January 28, 2023.
Interested authors should submit their manuscripts to the Northwestern University Law Review via Scholastica, though there are supplemental terms that accompany winter exclusive cycle submissions. To begin, authors who submit through our winter-exclusive track agree to withhold their Article from submission to any other publication until receiving a final decision from the Northwestern University Law Review. Moreover, participating authors agree to accept a publication offer, should one be extended. In addition to a complete manuscript, we ask that authors submit (1) a cover letter that includes your name, Article title, word count, phone number, and email address and (2) a CV or résumé.
Additional information may be found on our Scholastica page. However, please contact Senior Articles Editor Regan Seckel at [email protected] if you have questions regarding the Winter Exclusive Cycle.
Posted by Sarah Lawsky on November 4, 2022 at 09:54 AM in Law Review Review | Permalink | Comments (0)
Thursday, November 03, 2022
Showing off or good writing and telling the difference
Third Circuit Judge Stephanos Bibas warned of "judges gone wild" in a speech before Harvard Fed Soc. He called out "the show off, [for whom] it seems to be all about the judge's musings, even the judge's ambitions to be notice." Jonathan Adler comments.
Coincidentally, Eleventh Circuit Judge Adalberto Jordan presented FIU's Judicial Lecture on Wednesday. The conversation turned to writing style and when a "turn of phrase" is warranted and useful. As an example, Jordan wrote the majority opinion declaring invalid Florida's "Docs v. Glocks" law prohibiting doctors from inquiring about the presence of guns in their patients' homes. Speaking of the plaintiffs' reasonable fear of discipline, he wrote that doctors "who are looking down the barrel of the Board's disciplinary gun, are not required to guess whether the chamber is loaded." Is that showing off and playing to Twitter? Or is it good writing? Is the answer, as Jordan added, you can't force it or overdo it?
Update: Richard Bales (Northern Kentucky) shares a piece he wrote some time ago on prudence in using references--use references and in ways that are self-explanatory and remember that the point is to "lead your reader to a deeper understanding of your topic-not to impress the judge with your wit or your knowledge of cultural arcana."
Posted by Howard Wasserman on November 3, 2022 at 11:28 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, November 02, 2022
FemTech
Today in my innovation seminar we are thinking about FemTech - the field of research, entrepreneurship, and technology innovation addressing women's health - and beyond - issues. FemTech is growing, and there has never been a more exciting, and at the same time, challenging moment to use technology to correct the gender health and research gaps . As a new report shows, clinical trials too often are based on unrepresentative groups and data. Technology can help us study and track and learn about patterns and solutions to health issues, but of course technology can also serve to monitor women's reproductive choices in illegitimate ways. We are reading today for class this, and I assigned a listen to this excellent podcast, https://femtechfocus.org/podcast/
Any examples of successful or much needed FemTech innovation most welcome! Here at University of San Diego we are also starting a local accelerator FemTech innovation engine.
Posted by Orly Lobel on November 2, 2022 at 04:29 PM | Permalink | Comments (1)
More on SB8 and its imitators: NYT v. Sullivan as Historical Analogue
Houston Law Review has published Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: New York TImes v. Sullivan as Historical Analogue, Rocky and my third piece in this series. This argues that the events leading to NYT v. Sullivan--a campaign of private civil litigation designed to chill conduct through costly litigation and liability--offer an historical analogue for SB8 and the imitators popping up in other states and on other issues. We do not defend or support what Sullivan and other Southern officials did in the early 1960s. The point is that it did not require offensive litigation or special procedures in federal court; the Times could and did defend in state court and pursue (successfully) their constitutional rights defensively. And those ordinary processes are available for current controversies.
Here is the abstract:
The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $10,000 per prohibited abortion. Texas sought to impose costly litigation and potentially crippling liability on reproductive health providers and rights advocates, with the hope of stopping abortion in the state. Prior to Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and eliminating constitutional protection for abortion, the law represented a unique threat to reproductive freedom. But states are spreading S.B. 8’s exclusive private enforcement mechanism to other disfavored-but-protected activities, seeking to impose private civil liability.
This Article—the third in a series unpacking the procedural puzzles of S.B. 8 and its imitators—considers the historical analogue of New York Times v. Sullivan, the Court’s foundational modern free speech case. New York Times arose out of a southern campaign to use state defamation law and private civil litigation to silence media outlets from reporting on Jim Crow and the Civil Rights Movement. That southern litigation campaign and S.B. 8 supporters shared a goal—deter locally unpopular but constitutionally protected activity through threat of hundreds of lawsuits and devastating civil liability and monetary exposure. But the defendants in New York Times could not and did not go to federal court ahead of any private lawsuit or seek to functionally enjoin the state’s trial courts. The Times litigated the First Amendment defensively, with successful review to the Supreme Court of the United States. Contrary to the views and concerns of critics of S.B. 8 and new copycats, rights holders can follow the same process to challenge the substantive validity of privately enforced laws. The history of New York Times shows the way.
Posted by Howard Wasserman on November 2, 2022 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)
Tuesday, November 01, 2022
The Problem With Too Much Data Privacy
I have a short piece, related to my new book The Equality Machine, and current research - a law review article called the The Law of AI for Good, this week in Time called The Problem With Too Much Data Privacy.
Here is a taste:
Privacy has long dominated our social and legal debates about technology. The Federal Trade Commission and other central regulators aim to strengthen protections against the collection of personal data. Data minimization is the default set in Europe by the GDPR and a new bill before U.S. Congress, The American Data Privacy and Protection Act, similarly seeks to further privacy’s primacy.
Privacy is important when it protects people against harmful surveillance and public disclosure of personal information. But privacy is just one of our democratic society’s many values, and prohibiting safe and equitable data collection can conflict with other equally valuable social goals. While we have always faced difficult choices between competing values—safety, health, access, freedom of expression and equality—advances in technology make it increasingly possible for data to be anonymized and secured to balance individual interests with the public good. Privileging privacy, instead of openly acknowledging the need to balance privacy with fuller and representative data collection, obscures the many ways in which data is a public good. Too much privacy—just like too little privacy—can undermine the ways we can use information for progressive change.
Posted by Orly Lobel on November 1, 2022 at 04:27 PM | Permalink | Comments (0)