Thursday, March 04, 2021

Whither Ford?

Alabama Law Review will host a virtual symposium, Ten Years of the Supreme Court's Personal Jurisdiction Revival, 9 a.m.-3:30 p.m. CST tomorrow. Registration here.

The timing of the symposium makes it worth noting that the Supreme Court has not decided the Ford personal jurisdiction cases, which were briefed last spring and argued on October 7. The Court has not announced its next opinion day and the new sitting does not begin until March 22. So it will be 5 1/2 months, at least, from argument to opinion. It must mean the Court is going to do some very unfortunate things to personal-jurisdiction doctrine or some minority of the Court is drafting dissents to complain that the Court did not do something unfortunate to personal-jurisdiction doctrine. Either way, I am surprised it has taken so long.

Posted by Howard Wasserman on March 4, 2021 at 04:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Twiqbal meets the Kraken and Gondor

The Kraken and other pro-Trump/pro-Republican lawsuits about massive election fraud are fictitious nonsense brought by terrible lawyers. The litigation efforts, and the lawyers who brought them, have been justly ridiculed, But I am curious about one point of criticism--that the plaintiffs failed to offer proof of this massive fraud and the pleadings have been absurd because they included allegations of wrongdoing without proof. The same critics distinguished the leaky press conferences and Holiday Inn legislative "hearings" from courts, where the latter have rules governing proof.

Under notice pleading, however, the plaintiff is not required to plead its evidence or to offer proof of its allegations; the idea is to plead skeletal facts showing wrongdoing and leave it to discovery to find evidence behind allegations. Twiqbal requires more than that, of course. But even Twiqbal does not require a plaintiff to identify the evidence supporting its allegations, only that those allegations be more detailed. In any event, many people criticizing the Kraken pleadings decry Twiqbal for ratcheting up what plaintiffs must do to get into court and proceed to discovery.

Part of the issue is that the plaintiffs not only filed complaints, they sought immediate preliminary injunctive relief, which does require evidence beyond the allegations. something the plaintiffs were unable to provide. That made the motion, which must be supported by proof, more salient than the complaint which does not. Still, responding to a ridiculous complaint by demanding proof seems to ignore how federal litigation begins and the idea that the demand for proof comes later--discovery, summary judgment, and trial. And demanding that Gondor and the Kraken have proof at the outset, when we criticize the courts for demanding the same from a typical civil rights plaintiff, seems disingenuous.

Again, I am not saying these cases should have succeeded. Plaintiffs did need evidence for preliminary relief and did not provide it. But the framing outside the courts seems wrong.

Posted by Howard Wasserman on March 4, 2021 at 08:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Monday, March 01, 2021

Forum-Defendant Rule, Mischief Rule, and Snap Removal

My essay, The Forum-Defendant Rule, the Mischief Rule, and Snap Removal, has been published in Wm. & Mary Law Review Online. It uses Sam Bray's reconfiguration of the mischief rule to provide a textualist solution to snap removal, without having to resort to purposivism or needing new congressional action.

Posted by Howard Wasserman on March 1, 2021 at 10:46 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Entry Level Hiring: The 2021 Report - Call for Information

Time once again for the entry level hiring report.

I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information that will be aggregated.

The spreadsheet includes some information that I pulled from public sources, such as Twitter or law school websites. When that is the case, I've included the relevant link (in a column to the right--just scroll the spreadsheet over). If I have included your information from a public source and you would like me to correct or update it, please just let me know.

You can either leave information in the comments or email it to me. You cannot edit the spreadsheet yourself.

If you leave information in the comments, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.)

If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu.

Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.

Continue reading "Entry Level Hiring: The 2021 Report - Call for Information"

Posted by Sarah Lawsky on March 1, 2021 at 10:18 AM in Entry Level Hiring Report | Permalink | Comments (4)

Saturday, February 27, 2021

Universality and the CDC eviction moratorium (Updated)

Judge Barker issued a declaratory judgment in Terkel v. CDC, declaring the extension of the CDC's eviction moratorium constitutionally invalid. This creates a split with district courts in Georgia and Louisiana, as Ilya Somin describes. But the Terkel court did not issue an injunction, accepting the government's representations that they would "respect" the DJ; it added that the plaintiffs could "seek an injunction should defendants threaten to depart from the declaratory judgment."

As with all of this, the question becomes scope and what the government can do now. The plaintiffs are one individual and five property-management companies, in an action not certified as a class action. Saying the CDC would “respect” and not "depart" from the DJ should mean respect it as to the parties and that it "departs" it only by attempting to enforce against the plaintiffs, which it is unlikely to do. It should not stop the CDC from enforcing the policy against anyone else, certainly outside of Texas, who lacks the protection of a judgment.

The risk for the CDC in enforcing is that Judge Barker will get mad, issue an injunction, and make it universal. This would be wrong on several levels, beyond the usual normative incorrectness of universality. It would be incoherent for the judge to issue a universal injunction in furtherance of a party-particularized DJ.

Even if universal injunctions are appropriate in some cases, this would not seem to be such a case. This is not the DAPA/DACA cases, in which Texas was worried that non-enforcement outside of Texas causing undocumented persons to migrate into the state looking for driver’s licenses. It is not the sanctuary-city cases, in which allowing enforcement as to non-party jurisdictions injured them by shrinking the pool of available funds. It is not an immigration case, in which there is a perceived command that immigration law be uniform. The only conceivable argument for universality requires every injunction to be universal--the CDC policy is categorical and applies to all landlords who may want to evict people. Unfortunately, that is the argument I would expect Judge Barker to accept.

This case exemplifies when universality is inappropriate. Injunctions must provide the plaintiffs complete relief. These plaintiffs get that if they are protected against enforcement. The enforcement or non-enforcement of the CDC policy against anyone other than these managers does not affect the enforcement or non-enforcement of the policy against these plaintiffs.

Update: DOJ filed a response to a notice of supplemental authority on Terkel in the District of the District of Columbia, arguing, in part, that the Terkel judgment does not extend beyond those plaintiffs and does not prohibit enforcement of the policy against others, including the plaintiffs in the D.C. case (which includes the Alabama Association of Realtors). (H/T: Josh Blackman).

Second Update: DOJ announced an appeal in Terkel with a press release stating: "The decision, however, does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC’s eviction moratorium to other parties. For other landlords who rent to covered persons, the CDC’s eviction moratorium remains in effect."

The Court avoided universality in cases challenging Trump Administration policies, because the majority declared the ban valid in the cases in which universality was most central, notably the travel ban. Justices Thomas and Gorsuch have been unequivocal that the judgment in a case cannot extend beyond the parties. It will be interesting to see what they do with a Biden Administration policy that offends their pre-New Deal constitutional sensibilities.

Posted by Howard Wasserman on February 27, 2021 at 05:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

More on the "codgers" . . . and institutional pluralism.

Paul noted, a few days ago, the very interesting and recently published conversation between Profs. Seidman and Tushnet.  The former had an interesting take on Georgetown University Law Center's Catholic character and mission:

"Georgetown Law Center is a nominally Catholic institution and one aspect of the residual Catholicism there is the notion that we’re educating the whole person. Frankly, that gives me the creeps."

Prof. Mark Tushnet's response should also be noted, though:

I would say we might want to think about whether different institutions could assert different kinds of jurisdiction and in this context it’s not irrelevant that Georgetown is an institution affiliated with the Society of Jesus and Harvard is not. It might well be that having a universe of 170 whatever law schools some of which take the care of the whole person seriously, others of which limit their jurisdiction, that might be a good thing.  Call it institutional pluralism or diversity. . . .

"Institutional pluralism."  I like that!

Posted by Rick Garnett on February 27, 2021 at 11:27 AM in Rick Garnett | Permalink | Comments (3)

Thursday, February 25, 2021

Jurisdiction and Merits in the FTCA

SCOTUS unanimously held Thursday that the Federal Tort Claims Act's Judgment Bar applies where the district court dismisses an FTCA claim for lack of jurisdiction based on a determination that the complaint fails to plausibly allege elements of an FTCA claim. While the Court acknowledges that failure to state a claim ordinarily does not deprive the court of jurisdiction, the FTCA is unique. As a waiver of sovereign immunity, all elements of a meritorious claim are jurisdictional.

Descriptively, I think this is right, given the text of the FTCA, But it is bad news from my everlasting project of sharply separating jurisdiction and merits and not letting Congress make the former relate in any way to the latter. It also is bad news for my position that sovereign immunity should not be deemed jurisdictional--the suability of a defendant goes to the "who can be sued" prong of the merits, not jurisdiction. Another area to cover (along with standing) if I ever write this piece.

Justice Sotomayor concurred to address an issue briefed but not used in the decision--whether the judgment bar should apply in a case (such as this one) in which the plaintiff brings FTCA and individual claims in one action. Sotomayor suggests (rightly, I think) that the bar should not apply in those cases because claim preclusion would not apply there. It would be odd for a decision in one claim within a single action to have a preclusive effect on other claims in the same action.

Posted by Howard Wasserman on February 25, 2021 at 06:19 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Listen to the Codgers: Tushnet and Seidman on 50 Years in the Legal Academy

Better than late than never, let me urge on readers this fine dialogue between Mark Tushnet and Louis Michael Seidman, On Being Old Codgers: A Conversation About a Half Century in Legal Academia. It is dated 2019; I'm not sure why I didn't see it earlier. It is charming, useful, and insightful. Perhaps because I worry over these issues plenty and because I tend to agree with Mark on a number of issues, I don't think the insights are shocking. But they are useful, and I suspect some people who are less historical or institutional in orientation think about them less and might find that they are new to them. There are some statements here--for instance, "Our role is not to change students’ minds, but it is to get them to hold the ideas they have in the most sophisticated form that they can be held."--that many or most of us would take to be self-evident but for which I suspect that there would be some genuine divisions (political, generational, institutional and so on) and that some might even take to be clearly wrong. (It is actually clearly right.) The discussion about the reality or perception of a decline in general agreement about and faith in the seriousness of the enterprise is interesting, and so is Tushnet's suggestion that the brief establishment of a commune in the yard at Yale Law School in the early 70s, and the cultural challenge it represented, was ultimately "more significant than the directly political stuff that I was interested in." So is the discussion of scholarship. The whole thing is well worth your time. 

Posted by Paul Horwitz on February 25, 2021 at 03:02 PM in Paul Horwitz | Permalink | Comments (4)

The Booth Conspiracy and the Transfer of Power

Here's an interesting point that I hadn't thought about until the riot at the Capitol. When the Government tried the conspirators to President Lincoln's assassination before a military commission, here was part of the charge:

"[B]y the killing and murder of the said Abraham Lincoln, Andrew Johnson, Ulyssus S. Grant, and William Seward, as aforesaid, to deprive the Army and Navy of the United States of a constitutional Commander-In-Chief; and to deprive the Armies of the United States of their lawful commander, and to prevent a lawful election of President and Vice-President of the United States aforesaid; and by means aforesaid to aid and comfort the insurgents engaged in armed rebellion against the said United States, as aforesaid, and thereby to aid in the subversion and overthrow of the Constitution . . ."

The charge explained that the Secretary of State alone was given the duty by law "upon the death of said President and Vice President of the United States aforesaid to cause an election to be held for electors of President of the United States." By killing Seward as well, John Wilkes Booth and his accomplices were seeking to prevent such a special election from being called.   

Posted by Gerard Magliocca on February 25, 2021 at 02:23 PM | Permalink | Comments (2)

Wednesday, February 24, 2021

COVID defeats free speech and the national anthemm (Update)

Members of the East Tennessee State University men's basketball team knelt during the national anthem last week, with the support of the coach. This prompted Republican legislators to sign a letter calling on the heads of the state's universities to adopt policies prohibiting such protests because of a bad song written during a battle we lost in a long-ago war.

The judicial First Amendment questions here are genuinely open. Barnette imposes a clear command against compelled participation in patriotic rituals by the government. But it runs into different rules for job-related employee speech, which may include the power to compel employees to say things as part of their job. And that runs into how to treat unpaid college athletes--people whom universities have spent more than half a century denying are employees--when they "represent" the school and act on the school's behalf

One story on the controversy expressed particular concern for ETSU's upcoming game against VMI, a military institution uniquely offended because, of course, the flag is about the troops and the veterans and not about, you know, the right to peaceful protest. It turns out that will not be a problem, as ETSU's game with VMI has been cancelled--because of positive COVID tests in VMI's program.

Update: FIRE, PEN America, and the National Coalition Against Censorship sent letters to the schools, urging them to resist the calls to stop the athletes from protesting. The letters address, and reject, the legislators' argument that athletes are "ambassadors" for the university and thus speaking on its behalf. It seems to me this is key--if the athletes are in the same position as ordinary students, this is an easy case.

Posted by Howard Wasserman on February 24, 2021 at 11:21 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)