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 (3)

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)

Monday, February 22, 2021

Fuck everything

Today is the 50th anniversary of argument in Cohen v. California, the "fuck the draft" case. The argument famously began with an admonition from Chief Justice Burger to Cohen attorney Melville Nimmer that "it will not be necessary for you I'm sure to dwell on the facts." By the 1:40 mark, Nimmer began describing what Cohen had done and what was on the jacket. And Justice Harlan's opinion for the Court had no problem describing the jacket in full.

This is a notable anniversary because the Court and litigants have fallen into an unfortunate habit of deciding cases about the constitutionally protected nature of words while refusing to utter those words in argument or write those words in the pages of the U.S. Reports. In Iancu v. Brunnetti, on whether the PTO could refuse a trademark on FUCT, the government's attorney described the mark as the "equivalent of the past participle form of the . . . paradigmatic profane word in our culture." Justice Kagan's majority opinion quoted the SG to describe how someone might read the mark. In FCC v. Fox Television (2009), counsel said "F-word" during argument and Justice Scalia's majority opinion described the FCC as adopting a policy that the "nonliteral (expletive) use of the F- and S-Words could be actionably indecent."

SCOTUS will hear argument in April in Mahanoy Area Sch. Dist. v. B.L., arising from the suspension of a high school student for a snapchat post captioned "fuck school fuck softball fuck cheer fuck everything." (Many First Amendment advocates are concerned the Court will further damage the student-speech doctrine in the first case in which a court of appeals held that Tinker does not apply to out-of-school speech).

This case is different in that the words were used and their use is central to the case, as they were in Cohen. Fox was about FCC policy and Iancu was about (intended) misperception. The central question here is whether the phrase "fuck ____" enjoys First Amendment protection when uttered by a minor outside of school. It will be interesting to see how advocates and the Court argue and decide that question without mentioning the actual words. It will be unfortunate if the trend continues. We can learn a now-50-year-old lesson from Mel Nimmer and Justice Harlan.

Posted by Howard Wasserman on February 22, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Friday, February 19, 2021

VAP - Michigan State University College of Law

Michigan State University College of Law invites applications for a full-time, fixed-term Lecturer.  The position will be for one year with an option to renew for a second year.  The Law College’s curricular needs include health care law, torts law, trusts and estates, and tax law. The Law College seeks applicants with a commitment to excellence in teaching and scholarly achievement.

Successful candidates will teach two classes, one in each of the fall and spring.  The Lecturer will have ample time to pursue their own scholarship.  The Law College will provide access to library and legal resources and mentorship for teaching and scholarly work, including opportunities to present at faculty workshops and outside fora.

For more information on the position and the link to apply, please visit  https://careers.msu.edu/en-us/job/504138/lecturerfixed-term

Review of applications will begin on March 5, 2021.

Posted by Sarah Lawsky on February 19, 2021 at 09:56 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

The National Emergencies Act and Non-Delegation

Before I became a hedgehog on Section Three of the Fourteenth Amendment, I was working on a new article about Robert Jackson's understanding of the non-delegation doctrine. In that paper, I plan to sketch out a constitutional argument against the National Emergencies Act. Here's how this might go:

Instead of developing a broad theory of non-delegation, let's focus on the specific example of A.L.A Schechter Poultry. In that 1935 decision, the Supreme Court explained why a portion of the National Industrial Recovery Act was an invalid delegation of authority by Congress to the President. (You can't clearly say that this discussion was a holding because the Court also said that the provision at issue was beyond Congress's Commerce Clause authority.) The provision in question delegated to the President the authority to create codes of "fair competition" for nearly every industry so long as they did not lead to monopolies. The Court said that this delegation was exceptionally broad because the President was free to define "fair competition" and the codes could cover nearly every part of the economy.

Now consider the National Emergencies Act, which delegates sweeping powers to the President over a wide range of domestic subjects if, in his discretion, the President declares a national emergency. The Act does not define a national emergency. Why is this not in substance comparable to the delegation found invalid in Schechter Poultry? Granted, some parts of the National Emergencies Act relate to foreign affairs. And the Court in Curtiss-Wright more or less said that the non-delegation doctrine does not apply to foreign affairs. But isn't the rest of the Emergencies Act an invalid delegation?

One possible answer is that some people do not want to invoke the non-delegation doctrine against the National Emergencies Act because they are concerned that revitalizing that doctrine will threaten other legislation that they like. This is not so, though, if you accept Jackson's argument (which I discussed in prior posts) that only delegations to the President himself are constitutionally suspect. The National Emergencies Act is in that group, but most delegations by Congress are not.

   

Posted by Gerard Magliocca on February 19, 2021 at 11:38 AM | Permalink | Comments (4)

Thursday, February 18, 2021

JOTWELL: Mulligan on Main on snap removal

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism (Aug. 17, 2020), which studies the demographics of the judges who follow the textualist approach to snap removal (allowing removal prior to service of a forum defendant, in the face of clear legislative intent). I considered snap removal in a prior JOTWELL essay and expand on that argument in a forthcoming essay; Main's article and a companion piece by the same authors were essential to the research.

Posted by Howard Wasserman on February 18, 2021 at 01:26 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Job Posting - Program Director - Karsh Center for Law and Democracy

The University of Virginia School of Law seeks a Program Director for the Karsh Center for Law and Democracy. The expectation is that the Program Director will pursue a career in the legal academy as a law professor. More information is available through the UVA website as well as the Inside Higher Ed posting.

Continue reading "Job Posting - Program Director - Karsh Center for Law and Democracy"

Posted by Sarah Lawsky on February 18, 2021 at 11:41 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)