PrawfsBlawg

December 2021
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Saturday, December 11, 2021

Fake slides and the infield fly rule (Updated and Moved to top)

I defend the infield fly rule as a response to sporting situations defined by four features: 1) A player acts contrary to athletic expectations; 2) that player gains an extraordinary, unique, and inequitable benefit; 3) that player exercises exclusive control over the play; and 4) the combination of ## 2 and 3 gives a player the perverse incentive to try # 1. The IFR responds by limiting # 1 to avoid the overwhelming cost-benefit advantage. (The IFR achieves this by calling the batter out and eliminating the force on the runners, thereby eliminating the cost-benefit advantage and thus the perverse incentive). A key to the defense is showing that the IFR situation is not unique--that similar problems arise in baseball and other sports and those sports respond to the problem with limiting rules similar to the IFR.

A new example comes from Saturday's ACC Championship between Pitt and Wake Forest. Pitt QB Kenny Pickett scrambled out of the pocket and ran upfield. After almost 20 yards and with two defenders closing in, Pickett slowed and begin to slide to the ground, only to stutter step, remain upright, and continue running for a 58-yard touchdown (video embedded in link). When a QB slides to the ground feet-first, defenders cannot touch him; the rule--instituted in the NFL in 1985 and the NCAA in 2016--is designed to protect quarterbacks.

How does this break out:

1) Pickett acted contrary to the game's expectations, which are that quarterbacks slide in that situation. The health and safety considerations are built into the game's rules and expectations.

2) Pickett gained an extraordinary benefit. When he pretended to start his slide, the defenders had to stop; when he continued running, it was too late for them to react.

3) Pickett controlled the players and the defenders can do nothing to stop it. Pickett knew what he was going to do, but the defenders did not. The defenders had to stop chasing when they saw him begin sliding. If they continued moving, he actually slid, and they hit him, it would have been an unnecessary-roughness penalty (and perhaps a targeting ejection, if one of them unintentionally hit the sliding Pickett in the head). But once they stopped, it was impossible to start again when Pickett continued running. And Pickett knew this--he took advantage of a rule that prohibits defenders from hitting him.

4) Quarterbacks have a perverse incentive to try this move, at least if willing to take a hit. At worst, they actually slide and get hit, gaining an extra 15 yards. At best, they can run upfield without fear of getting hit. Wake Forest Coach Dave Clawson suggested he would tell his QB to "fake knee" all the way down the field.

Pickett's play was not against the rules, but Clawson called for a rule change to prevent such fake slides. This would be a limiting rule a la the IFR. The question is what the rule would look like. The official could whistle the play dead when the QB looks like he is giving himself up. Or the move could be penalized, depriving the QB of the benefit of the fake and eliminating any yardage gained prior to the fake. Only the second deters the effort. Under the first, a QB might hope he can fool the official into not blowing the play dead, knowing that it is costless to try. Under the second, the QB loses something if he tries it and fails. A new rule may not be necessary. Football has a foul for "palpably unfair acts," a discretionary catch-all unsportsmanlike penalty. Examples include players running off the sideline to make tackles and intentional blatant holding penalties to waste time on the clock. Perhaps it covers this sort of deception of a helpless defender.

Update, 12/11: The NCAA came through, ruling: "[A]ny time a ball carrier begins, simulates, or fakes a feet-first slide, the ball should be declared dead by on the field officials at that point."

Posted by Howard Wasserman on December 11, 2021 at 04:21 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Putting the "judicial" in judicial departmentalism

Justice Sotomayor's dissent rests on judicial supremacy, that popular branches violate the Constitution when they act contrary to SCOTUS precedent, likening this law to Calhoun and nullifcation. Josh Blackman takes the dissent to task, mostly on the principle that the Supremacy Clause does not include judicial opinions as part of the supreme law of the land.

I want to offer a different spin on two points Josh makes in conclusion.

He writes:

I think Abraham Lincoln would be appalled by Justice Sotomayor's ode to judicial supremacy. Lincoln favored the supremacy of actual federal law, but sought to narrowly construe the scope of Dred Scott, a judicial usurpation. Indeed, S.B. 8 was enacted in the spirit of Lincoln--do not violate a Supreme Court precedent, but do not give it any more effect than the law requires.

SB8 violates a Supreme Court precedent--it enacted a law banning pre-viability abortions, which precedent says a state cannot enforce. (In other words, the state enacted a zombie law, a new law whose constitutional validity (under judicial precedent) is plain. I think Lincoln would say "indeed, but that is ok." Lincoln's First Inaugural hinted at a more brazen position. He would have continued to enforce the Missouri Compromise--the law declared invalid in precedent--as to parties and situations not involving Dred Scot and Sanford. That is, he would have violated the precedent of Scot. Lincoln recognized that judgments as to parties are binding; everything else is fair game.

Josh concludes this way:

Justice Sotomayor, and her colleagues, do not understand who decides. They firmly believe that a gaggle of Justices can set national policy, and those decisions are in fact the Supreme Law of the land. They are wrong.

The practical reality is that the Court gets the final word on most constitutional questions. At some point a case challenging the validity of the heartbeat ban finds its way into court and litigation; a court applies Roe and Casey to declare the law invalid or overrules Roe and Casey to declare it valid. Either way, the court decides. The point of judicial departmentalism is that the court decides within litigation and that outside litigation other branches can do as they wish. Litigation takes time and effort and is not always efficient or simple; a state can delay the inevitable if wiling to pay political or actual costs, with negative consequences to rights and rights holders. And litigation is piecemeal, resolving issues as to discrete parties and discrete disputes, but leaving for future litigation issues involving different parties or disputes. The dissent's position insists that subsequent and repeated litigation should not be necessary--a state must fall in line with the Court's basic statements and it undermines the Constitution by acting otherwise and forcing new litigation and forcing the court to decide anew.

Posted by Howard Wasserman on December 11, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Suing sheriffs

The Court's SB8 decision is, depending on perspective, a limited victory for providers (some limited path to offensive litigation, a federal DJ, and federal precedent) or a tragic defeat (nothing stops private plaintiffs from filing SB8 actions against providers and advocates). The search continues for some defendant(s) whom a federal court could enjoin so as to stop all SB8 suits.

A new theory is to sue sheriffs and other local law-enforcement who would enforce the damages and injunction awards in a successful SB8 case. This has been kicking around the ConLaw Prof listserv for months and Ilya Somin lays out the case. The theory is that by an enforcing a negative judgment against the defendant, the sheriffs are adverse to that defendant; that is different than clerks and judges, who act before the defendant's liability has been established.

I do not believe it works--or at least I doubt the five Justices who rejected what Gorsuch called the "clerks-and-courts" theory would accept it. Here is why:

Continue reading "Suing sheriffs"

Posted by Howard Wasserman on December 11, 2021 at 11:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, December 10, 2021

Some Things Never Change

This is a political cartoon from 1904 criticizing Congress (controlled then by Republicans) for failing too enforce Section Two of the Fourteenth Amendment. It's still relevant in 2021.

Posted by Gerard Magliocca on December 10, 2021 at 09:19 PM | Permalink | Comments (1)

SCOTUS gets SB8 right

Contrary to my reading at oral argument, the Court (per Justice Gorsuch) basically adopted our position: 1) Unanimously reject claims against state judges; 2) 5 (Gorsuch, Thomas, Alito, Kavanaugh, Barrett) reject claims against clerks; 3) same 5 reject claims against the AG because he lacks enforcement power, including the attempt to reach private plaintiffs through the AG; 4) 8 Justices (all but Thomas) allow claims against licensing boards; 5) Unanimously reject claims against Dickson because there is no indication he intends to sue. Gorsuch explains perfectly that: some constitutional issues are raised as defenses; there is no constitutional right to pre-enforcement federal review; the existence of SB8 does not create an actionable constitutional injury; and if states enact copycat laws, they can be addressed in the same ways.

The Court dismissed U.S. v. Texas as improvidently granted, over Sotomayor's dissent. That case returns to the Fifth Circuit.

The Chief and Justice Sotomayor dissented. Both, particularly Sotomayor, continue the theme that Texas is undermining the Court's authority over the Constitution and undermining constitutional rights and the constitutional system of government. The Chief pushed claims against the AG (who has enforcement power co-extensive with the boards) as a way to get at individual enforcers, just as one can sue an AG to reach individual DAs.

Now what? The case returns to the district court for the claims by the providers (but not advocates) against the licensing heads. The Court rejected the Fifth Circuit's insistence that "exclusive means exclusive"--the absence of public enforcement extended to indirect enforcement. At this point, the Court says, it appears the licensing board have authority to sanction licensees for failing to enforce "all laws" governing medical practice, including the heartbeat ban, thus a provider can obtain a DJ and injunction preventing administrative action against them. This claim is subject to a possible state law claim (which Gorsuch acknowledges) that boards cannot use SB8 violations as a predicate act. The best claim rests with Dr. Braid (the TX doctor who announced performing a post-heartbeat abortion in the Washington Post), because an anti-choice group submitted a complaint against him to the Medical Board,

No injunction against the boards stops private plaintiffs from bringing SB8 actions. Any injunction will protect providers against administrative proceedings seeking to sanction, suspend, or revoke licenses. But it creates federal litigation and a federal judgment that can be fast-tracked to SCOTUS for conclusive precedent on the heartbeat ban's validity. (Query whether SCOTUS might grant cert before judgment again and consider the merits of the heartbeat ban alongside Dobbs). And the district court opinion can have persuasive effect in the meantime.

Meanwhile, providers likely will continue to refrain from performing abortions, at least until they get that district court judgment of the law's constitutional invalidity to use as a defense. That is bad. But the reality is that constitutional litigation takes time. The NYT did not cover Alabama for more than a year prior to Sullivan.

Posted by Howard Wasserman on December 10, 2021 at 11:05 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

7th Annual Civil Procedure Workshop

Seventh Annual Civil Procedure Workshop
Cardozo Law School
May 19-20, 2022

We are excited to announce the Seventh Annual Civil Procedure Workshop will be hosted by Cardozo Law School in New York City on May 19-20, 2022.

Continue reading "7th Annual Civil Procedure Workshop"

Posted by Howard Wasserman on December 10, 2021 at 10:08 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, December 09, 2021

TX state court declares SB8 procedures invalid

A state judge in Travis County declared that SB8's procedures violated the Texas Constitution because: 1) the legislature cannot grant"any person" injury-less standing; the $10,000 minimum damages is punishment without due process; and the law delegates enforcement power to private persons. The court granted a DJ but not an injunction. This is a state MDL case consolidating 14 state-court lawsuits by various providers and advocates against Texas Right to Life and other potential defendants. The case addresses the state procedural issues we address in our second paper and an as-yet unwritten fourth paper on state procedure in potential enforcement actions. The court reached those issues pre-renforcement.

I leave to Rocky whether the court got it right on Texas standing; I think the court gave short shrift to past cases in which the legislature has authorized random people to sue. Two other quick thoughts.

1) The court explains that SB8 plaintiffs would act under color of law and an SB8 defendant could raise that as a defense in an enforcement action, therefore the court allows providers to raise state action pre-enforcement, rather than making them wait for ruinous lawsuits to be filed. The court cites a Texas Supreme Court decision adopting the Bobbitt/SBA theory of pre-enforcement standing, requiring a credible threat of enforcement. In the federal litigation, providers cannot show that any particular potential SB8 plaintiff intends to file suit so as to establish standing to sue that person; WWH relies on the goofy theory of suing judges and clerks because they recognize that problem. This court ignores that issue, never explaining why TRTL or any other defendant, even if a state actor in bringing an SB8 action, is the source of the "real and serious threat" to enforce. If Texas standing matches Article III, that cannot be right.

2) The court sounds the recurring theme of similar laws with similar bad procedures attacking gun rights and anti-LGBT+ bakers. The latter is an odd example. As the court notes, lawmakers would not need "any person" to chase the baker. Current law allows for one and perhaps hundreds of easy lawsuits. Again, if the point is SB8 represents some unique and unprecedented procedural attack, the court is wrong.

SCOTUS announced released opinions tomorrow. Maybe we finally get SB8. Although this case may obviate the need to decide the federal cases. If private SB8 lawsuits--the sole mechanism for enforcing the heartbeat ban--are impermissible, there is no need for a federal court to resolve the validity of the heartbeat ban, as there is no threat of enforcement. Perhaps more tomorrow.

Posted by Howard Wasserman on December 9, 2021 at 08:20 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Non-Delegation Doctrines: How Political Specifics Make Constitutional Law

Bagley-Mortenson's erudite article provides voluminous evidence that no Anglo-American polemicist or lawyer between the Glorious Revolution and the Election of 1800 complained about broad legislative delegations of power to executive agencies. Bagley-Mortenson's critics reply, however, that no one specifically disclaimed this position. (See e.g., Ilan Wurman here, stating that "there is almost no evidence unambiguously supporting the proposition that there was no nondelegation doctrine at the Founding"). In this game of presumption tennis, where's the ball?

Here's a general claim about constitutional history to make sense of the dog that doesn't bark. As I have argued earlier, constitutional abstractions emerge from political particulars. The cobbler shapes shoe to where it pinches the foot. One would expect, therefore, only specific objections to particular types of delegations, with the constitutional antidote pitched towards those particular delegees' proneness to venality or oppression. They may have endorsed non-delegation doctrines (emphasis on the plural) but not any one master doctrine to rule them all.

And this is precisely what one finds: Certain types of agents like excisemen and private banks inspired distrust, but no one denounced broad executive powers as such. Walpole's Country Party critics, for instance, bitterly denounced excisemen in 1733; North American colonists picked up the theme in 1776 by attacking George II for sending "hither swarms of Officers to harass our people," those swarms consisting primarily of customs officials. Country Party propagandists also attacked the Whig Junto's appointing the Bank of England to be England's fiscal agent, and Madison picked up this theme that private corporations were untrustworthy agents of the People in decrying the First Bank of the United States. Kevin Arlyck masterfully illustrates the particularity of delegation worries with his description of the 1797 debates over renewing the Treasury Secretary's 1790 statutory power to remit (waive) customs penalties. In Arlyck's account, Representative Edward Livingston warned of the risk that the Secretary might "favor a chosen few" in granting remissions, framing this objection in constitutional terms. Livingston was a New York Democratic-Republican congressperson and later a fierce Jacksonian: Of course, he would worry about the patronage opportunities provided to insiders by Federalist Treasury Secretaries wielding discretionary customs policy in the Port of New York, where Burr was trying to build a machine based on workingmen's access to credit. As Arlyck notes, these Democratic-Republican worries about over-powerful Treasury Secretaries all dissipated after Dem-Rep Albert Gallatin became Secretary of the Treasury.

AFAIK the nondelegationists have never provided any historical experiences explaining why 18th century politicians would fear all executive officers as a general matter. As Eric Nelson has shown, many American Revolutionaries were actually wanted to enlarge rather than shrink the power of executives. So I am inclined to believe that the non-delegation dog did not bark for the reason offered by Bagley-Mortenson: There simply wasn't any such dog.

Posted by Rick Hills on December 9, 2021 at 02:27 PM | Permalink | Comments (1)

Wednesday, December 08, 2021

Hard-line Advocacy in Dobbs—and Casey

To what extent can judges rely on the positions that advocates put forward? Last week’s oral argument in Dobbs tees up this question, as the parties generally threw cold water on any option other than a total upholding or overruling of existing precedent. But it turns out that that hard-line strategy has been tried before—in Planned Parenthood v. Casey.

Here is the first question from the Casey oral argument, with the counsel for Planned Parenthood at the podium:

Justice O’Connor: Ms. Kolbert, you’re arguing the case as though all we have before us is whether to apply stare decisis and preserve Roe against Wade in all its aspects. Nevertheless, we granted certiorari on some specific questions in this case. Do you plan to address any of those in your argument?

The advocate then resisted O’Connor’s suggestion, which led to additional questions in search of a more focused or nuanced analysis. The Court’s frustration culminated in the following remarkable exchange:

Petitioner (Kolbert): It is our position, Your Honor, that if this Court were to change the standard of strict scrutiny, which has been the central core of that holding [in Roe v. Wade], that in fact, that will undercut the holdings of this Court and effectively overrule Roe v. Wade. To adopt a lesser standard, to abandon strict scrutiny for a less protective standard such as the undue burden test . . . would be the same as overruling Roe . . . .

Justice Kennedy: Well, if you are going to argue that Roe can survive only in its most rigid formulation, that is an election you can make as counsel. I am suggesting to you that that is not the only logical possibility in this case.

Of course, the Court’s pivotal justices ultimately did “abandon strict scrutiny for a less protective standard,” namely, the very “undue burden test” that the advocate had ruled out of bounds. And it turned out that that approach absolutely was not “the same as overruling Roe,” full stop. There were degrees of difference after all, and abortion advocates have come to celebrate and defend Casey’s preservation of what the Court deemed the “central holding” of Roe.

Now, in Dobbs, abortion providers are again asserting that any deviation from precedent is tantamount to overruling all relevant precedents. In their brief, for instance, the abortion providers state, with emphasis in the original: “any abandonment of viability would be no different than overruling Casey and Roe entirely.” And later: “There are no half-measures here.”

A similar story played in the Dobbs oral argument, with several justices (Thomas, Roberts, Kagan, Alito, and Gorsuch) asking different advocates about the possibility of narrow or nuanced ways of resolving the case. And, much as in Casey, the advocates offered little more than discouragement.

Were the advocates in these cases right to be so rigid? In Casey, the abortion providers’ decision to draw a hard line was obviously frustrating to critical justices and nearly led to complete defeat—except that, in the end, it didn’t. So perhaps Casey teaches that nuance is unnecessary for good advocacy, or even counterproductive.

But whatever its lessons for advocacy, Casey does offer a clear lesson for the Court: a litigant’s resistance to giving an inch cannot be taken at face value.

Posted by Richard M. Re on December 8, 2021 at 04:05 PM | Permalink | Comments (7)

"Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment"

Brad Snyder's eagerly awaited biography of Felix Frankfurter is now available for pre-order on Amazon. This should be a fantastic addition to the scholarship on the Court.

Posted by Gerard Magliocca on December 8, 2021 at 09:30 AM | Permalink | Comments (0)

Tuesday, December 07, 2021

Who's afraid of judicial departmentalism

Jason Mazzone argues that Mississippi's SG missed the mark in the Dobbs argument. Asked whether overruling Roe/Casey invites challenges to Griswold, Lawrence, and Obergefell, the SG said those are different because they have clear lines. The correct answer, Jason argues, should have been:

Right now there is no groundswell to overrule those cases, but so what if there is and states ban contraception, same-sex sex, or same-sex marriage? "Legal challenges will then be filed, lower courts will hear the cases, and this Court might eventually be called weigh in. That's how our system works. Nobody thinks that just because the Supreme Court has said something others cannot make use of the legal system to advance a different position and seek to change minds."

Without using the term, Jason describes judicial departmentalism--SCOTUS adopts a constitutional position, states enact and attempt to enforce new laws that might disagree with and challenge that constitutional position, and new litigation resolves the issue, with the Court adhering to its jurisprudence or changing its mind.

But the Court cannot hear this and such an honest (if accurate) answer would have created more problems for the state. The Justices remain wrapped in the judicial supremacy of Cooper in which the Court gets the last word on the Constitution, the states fall in line, any departure is suspect, and anything that gives states new wiggle room is problematic. Justice Sotomayor was explicit about this position (citing Marbury for the proposition, although Marbury says nothing of the sort). Even those Justices inclined to declare Mississippi's law valid and perhaps overrule Roe/Casey would have pushed back against the idea of doing this again with contraception or same-sex marriage.

The same issue arose in the SB8 arguments. Roberts asked the Texas SG about an amicus brief that made, in sharper terms, Jason's point: The system is designed to allow states to enact laws that diverge from SCOTUS precedent, with future litigation resolving the dispute. The Texas AG ran from the idea, saying that everyone is bound to take and faithfully implement the Court's constitutional interpretation.

Posted by Howard Wasserman on December 7, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Northwestern University Law Review Winter Exclusive Submission Cycle

From the Northwestern University Law Review:

The Northwestern University Law Review will hold a winter exclusive cycle for print submissions, accepting manuscripts from Sunday, December 26 to Sunday, January 9, 2022. We guarantee a final decision to all submitting authors on or before February 1, 2022. Please see our website for more submission information. Questions about the article selection process can be directed to Senior Articles Editor Eliza Quander at [email protected]northwestern.edu or Editor-in-Chief Sarah Chanski at [email protected]northwestern.edu.

Posted by Sarah Lawsky on December 7, 2021 at 08:51 AM in Law Review Review | Permalink | Comments (0)

Monday, December 06, 2021

It is a medium-sized university, and yet there are those who love it

Monday's argument in Hughes v. Northwestern University, on stating claims under ERISA.

Posted by Howard Wasserman on December 6, 2021 at 03:48 PM in Howard Wasserman | Permalink | Comments (1)

Will (Should) Congress Use Its FF&C “Effects” Power to Regulate Post-Roe “Abortion Tourism”?

Neil Buchanan over at Dorf on Law has asked about the odds of Republicans in Congress proposing a post-Roe/Casey statutory ban on abortions, a proposal that, Neil suggests, would expose the GOP’s insincerity on federalism. Over here on Prawfsblawg, Howard has suggested that such a GOP proposal would not necessarily be hypocritical, because Republicans object not so much to the centralization of the abortion issue but rather to juristocracy: According to Howard, Congress’ democratic credentials would legitimize such proposals from the GOP’s point of view.

Contrary to Neil, I think that the odds of the GOP’s enacting any federal ban on abortion are vanishingly small, but not because the GOP reps are sincere about federalism. (I assume that all pols are mostly sincere only about one thing: getting reelected). Rather, federalism gives political cover to GOP representatives who need to duck a risky vote: “Let the States Decide!” is a great way to placate the suburban parts of one’s district without openly antagonizing the median (not diehard) pro-life voter. Contrary to Howard, however, I do not think that the GOP has any antipathy for juristocracy: The GOP’s 2016 Platform embraces both centralization and juristocracy by calling for a fetal right to life protected by the 14th Amendment.

There is, however, one sort of federal statute on abortion that Congress might be pressured to enact despite the electoral insurance provided by federalism described above: Congress might exercise its power under Article IV, section 1 to “prescribe…the effect” of states’ “public acts” prohibiting abortion. As I suggested in an earlier post, “abortion tourism” might severely undercut the power of pro-life states’ anti-abortion laws. If substantial numbers of women who can afford the trip travel to abortion clinics in pro-choice states, pressures might mount from anti-abortion activists for Congress to step in to decide what law ought to apply to such interstate transactions. (Note btw that out-of-state clinics are sometimes physically closer to women’s hometown than intrastate clinics, because the latter are few and far between in anti-abortion states). The model for such legislation would be the Parental Kidnapping Prevention Act, which provides federal standards governing the obligations of state courts to give full faith and credit to the child custody decrees of other states.

Does Congress have the power to choose a conflicts-of-law rule under which the pro-life states’ anti-abortion laws would follow their domiciliarles wherever they travel? After the jump, I suggest that SCOTUS has reasons to place constitutional limits on Congress’ “Effects” power to prohibit such a rule. Moreover, even anti-abortion members of Congress might be secretly pleased by this judicial limit on their power. Why? Because both SCOTUS and those congresspeople might value what I shall call a “Maltese civil peace” in which anti-abortion restrictions are tempered by the right to travel. For SCOTUS and Congress, this right of exit has the virtue of a safety valve: It protects the stability of the federal compromise on abortion by reducing the incentives of middle-class, educated women to lobby for the imposition of a centralized pro-choice rule on the entire nation.

Continue reading "Will (Should) Congress Use Its FF&C “Effects” Power to Regulate Post-Roe “Abortion Tourism”?"

Posted by Rick Hills on December 6, 2021 at 03:14 PM | Permalink | Comments (8)

Sunday, December 05, 2021

What we mean by "let the states decide"

Neil Buchanan is taking bets on how quickly after Dobbs overrules Roe/Casey congressional Republicans propose a federal prohibition on abortion. Buchanan sets the over/under at two days after the start of the next Congress with Republican majorities. I will take the under--a bill will be introduced in this Congress the day after Dobbs, although the first bill with a chance will be when Buchanan suggests.

But is it fair to label this Republican hypocrisy? Yes, the anti-choice mantra has been "let the states decide," a phrase repeated during the Dobbs argument. But the mantra has not been about states v. federal government; it has been about popular/democratic branches (at whatever level) against the court. The objection to Roe and Casey is that it removed the decision from political debate and lawmaking; it did not mean to identify the level of government at which that debate and lawmaking will take place. What they mean by "let the states decide" is "let the majority (as reflected in representation) decide."

I believe a potential ban is a bad idea. I do not necessarily see it as hypocritical.

Posted by Howard Wasserman on December 5, 2021 at 07:58 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Will state officials actually enforce their new restrictions on abortion against women? Some Evidence from 2016

In my last blog post, I suggested that state officials might be reluctant to enforce their post-Roe/Casey Abortion restrictions against pregnant women as opposed to abortion clinics. I slathered this suggestion with appropriate qualifications, noting that “I am, after all, just a law prawf, not a political scientist” and that “[m]y prediction is worth what you paid for it,” because “I repeat that I am not an expert here.” I nevertheless suggested that there was evidence that anti-abortion activists and politicians do not want to enforce anti-abortion laws against pregnant women because

[t]he optics of such enforcement actions simply do not fit with the preferred narrative of the pro-life movement, which has been focused on the alleged villainy of abortion clinics and the alleged victimhood for their clients. Pro-life rhetoric pitches itself in a pro-woman key, arguing that those women seeking abortions are victims exploited by “abortion mills” who later regret their decision to terminate their pregnancies. I humbly submit that nothing could be more devastating to this rhetorical stance than photos of women in orange jumpsuits, awaiting punishment for crossing state lines with the immoral purpose of ending a pregnancy.

I linked to a 2011 Ph.D dissertation by Alex Trumpy, an Ohio State sociology grad student, that documents “Pro-Woman Framing in the Pro-Life Movement” to support that claim about pro-life rhetoric. (I have not read the whole thing, but chapter 4, on feminist framing in the pro-life movement, is nicely supported IMHO by survey data and individual interviews of movement leaders).

My claim about anti-abortion activists’ political incentives to prosecute abortion clinics rather than pregnant women, even thus qualified and supported, attracted a bit of skepticism. Professor Sepper wrote on twitter that “those of us who have been following abortion politics more closely would not find [such a theory of anti-abortion politicians’ incentives] reassuring,” because “you're imagining that antis pretend they are motivated by women's health and fetal wellbeing. that's gone. it's over.”

Maybe Professor Sepper is correct. There is, however, more recent evidence that anti-abortion activists still “pretend they are motivated by woman’s health” and are extremely reluctant to admit publicly that they would enforce restrictions on abortion against women. When Donald Trump remarked to Chris Matthews during a 2016 “town meeting” that bans on abortions would require women to be “punished” for obtaining an abortion, there was an immediate outcry from anti-abortion activists so intense that it forced Trump to retract the statement. Using rhetoric straight out of Trumpy’s dissertation, Marjorie Dannenfelser, president of Susan B. Anthony List, declared, “let us be clear: punishment is solely for the abortionist who profits off of the destruction of one life and the grave wounding of another.”

I would like very much to hear contrary evidence from Professor Sepper or others who have been following abortion politics more closely than I have that these statements do not reflect anti-abortion activists’ actual political calculations. IMHO Dannenfelser and many others really seem to believe that enforcing abortion restrictions against pregnant women would be a huge political liability. That belief does not guarantee that such laws would not be enforced against women if Roe/Casey were reversed. But maybe (assuming I am correct in my admittedly lay assessment) one should exploit the belief to undermine anti-abortion laws’ enforcement rather than deny, without much evidence, that the belief really exists. [Update: Parts of Professor Trumpy’s dissertation have been published in Sociological Spectrum as Woman vs. Fetus: Frame Transformation and Intramovement Dynamics in the Pro-Life Movement]

Posted by Rick Hills on December 5, 2021 at 08:34 AM | Permalink | Comments (7)

Will Federalism (and Conflicts of Law Doctrine) Deregulate Abortion?

Over the last three decades, commentators have provided both skeptical and optimistic assessments about whether and how federal decentralization might cope with abortion were Roe-Casey to be reversed. The optimistic view is that Roe-Casey’s reversal would promote pluralism by allowing each state to go its own way on a divisive topic, thereby reducing political polarization and gridlock at the national level. The pessimistic take comes mostly from law profs familiar with the train wreck known as conflicts of law “doctrine.” In a post-Roe/Casey world, women in anti-abortion states would have to migrate to pro-choice jurisdictions in order to take advantage of less restrictive abortion laws, but conflicts of law doctrine does not define plainly which state law ought to govern such interstate transactions. State legislatures seeking to end abortion will attempt to extend their bans into pro-choice states, perhaps by penalizing those who facilitate interstate migration or by bringing criminal actions against women upon their departures from, or return to, their states of domicile. The resulting controversies over which state’s laws should apply will simply reproduce the divisiveness of Roe/Casey, especially if judicial measurements of rival state’s interest in regulating abortion turn on assessments of the value of fetal/unborn infant life. In the words of then-2L Will Baude back in 2006, “state regulation will make a complex legal matter even more complicated, and the divisions over abortion that much wider.” (For the extended scholarly version of this take, read Seth Kreimer’s classic 1992 article, The Law of Choice and Choice of Law. And, if you are not sated by Baude and Kreimer, Dick Fallon’s 2007 essay, If Roe Were Overruled, provides another similarly sober assessment).

In my view, both the optimistic and pessimistic predictions about a post-Roe/Casey world are likely mistaken. Federal decentralization will not produce a diversity of different states’ responses to abortion but rather a fairly uniform policy of de-regulation. Put bluntly, in a world of federalism-based interstate migration, deregulatory states will always have the advantage, in the same way that pro-plaintiff states win the forum-shopping war in torts. But the pessimists are also mistaken in thinking that, because conflicts of law doctrine is a mess, the question of which state’s law to apply will be messy.

My prediction is that, to the contrary, state legislatures, courts, and Congress will all gravitate towards a fairly crude “territorial” rule that enforces the law of the place where the abortion was performed, a rule that insures nationwide victory for pro-choice states. My reasoning, explained in more detail after the jump, is rooted more in politics than doctrine — to be precise, the politics of case captions. No politician, even one clad in black robes, wants to put an abortion-seeking woman on one side of the “v.” in a criminal case. The great political advantage that anti-abortion legislators have enjoyed since Roe was decided is that there have been few Roes as parties: Abortion clinics (often Planned Parenthood) have instead appeared in the captions. Roe-Casey’s reversal will end that political advantage, because the domicile of the migrating woman will be the most likely legally available basis for applying the restrictive abortion laws of a regulating state to an out-of-state transaction. Anti-abortion politicians will find it politically unpalatable, however, to drag women rather than abortion clinics into courtrooms, so they will shrink from using the only regulatory tools left open to them by interstate migration. The result will be that anti-abortion laws fall into practical desuetude by foot-voting women escaping such restrictions with bus tickets rather than lawsuits. [Update: In light of a misrepresentation of this post by Professor Liz Sepper on twitter, I guess I should repeat before the jump what I originally wrote below the jump: “Foot-voting” described here does not require a change of domicile and would not be acceptable “foot-voting” if it did, because “changing domicile is extremely costly, especially for low-income persons dependent on networks of family, friends, and employers in their home state”].

Continue reading "Will Federalism (and Conflicts of Law Doctrine) Deregulate Abortion?"

Posted by Rick Hills on December 5, 2021 at 06:31 AM | Permalink | Comments (13)

Saturday, December 04, 2021

Tushnet on pet peeves in legal scholarship

Co-sign. Some colleagues were having a discussion about the practice in non-law disciplines of reading one's paper.

Posted by Howard Wasserman on December 4, 2021 at 11:17 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, December 03, 2021

Associate Deans for Research at Law Schools

A decade ago, I was the Associate Dean for Research at my law school. I'm curious, as part of a report that I'm writing, what Associate Deans for Research at other law schools do for their faculty beyond providing informal mentoring and advice. I would be much obliged to hear from any of you who currently serve in that role to tell me what you do for your colleagues.

Posted by Gerard Magliocca on December 3, 2021 at 09:20 PM | Permalink | Comments (0)

Now what with SB8?

As Gerard and I wrote, it is not clear why the Court took the SB8 cases, much less on an expedited schedule, or why they would bother deciding them now.

New and deeply cynical take, courtesy of my co-author: The Court overrules Roe and holds in SB8 that states cannot insulate laws from offensive constitutional challenges, allowing claims against clerks, judges, or whomever. Note where that leaves us. The fetal-heartbeat law is likely valid (depending on how much the Court overrules Roe--whether rejecting viability as a line or eliminating all constitutional protection for reproductive freedom), so no harm in allowing those offensive cases to proceed in federal court, as they fail on the merits. But the Court protects the rights the majority cares about--guns, religious freedom--from similar laws channeling constitutional litigation onto defense.

Posted by Howard Wasserman on December 3, 2021 at 11:27 AM in Civil Procedure, Constitutional thoughts | Permalink | Comments (0)

JOTWELL: Bookman on Summers on eviction court

The new Courts Law essay comes from Pamela Bookman (Fordam) reviewing Nicole Summers, Civil Probation, on the absurd procedure in eviction court.

Posted by Howard Wasserman on December 3, 2021 at 11:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

I say obnoxious things so I have standing

A Connecticut law prohibits ridiculing or holding people or groups up to contempt on account of creed, religion, color, etc. Although the law is limited to advertisements, it has been applied in other situations. Eugene Volokh explains why the law violates the First Amendment. One infamous recent case occurred in late 2019/early 2020, when two U Conn students were prosecuted for shouting racial epithets in the air; that charge was dismissed. The attorney for one of those students, Mario Cerame, filed suit last month, asking the court to declare the law violates the First Amendment.

How does Cerame have standing for this offensive pre-enforcement suit? A plaintiff must show that he intends to engage in constitutionally protected conduct that is proscribed by law and that there is a credible threat of enforcement against the plaintiff. Check out ¶¶ 13-18: Cerame alleges that he regularly ridicules Italian-Americans (he is Italian-American), Scientologists, and other racial or religious groups, and he retells jokes and shares video clips of comedians. He also alleges that he speaks, trains, and works on free-speech issues and and in doing so "uses words that are not uttered in polite company." In other words, "I like to say obnoxious things in my personal and professional life, therefore I reasonably fear prosecution under the law."

This is an interesting theory, although I am not sure it works. "I like to do X, have done X in the past, and plan on doing X in general terms at some indefinite point in the future" is usually not sufficiently specific or concrete. Much of the obnoxious speech he describes occurs in his personal life or with his "closest and dearest friends," so is unlikely to be prosecuted. He may have a better shot with the argument that his professional free-speech work has him using the bad words involved in free-speech controversies. A few district courts have accepted this standing theory in challenges to new anti-harassment/anti-discrimination bar rules. The theory makes sense with a bar rule--"I use these words in my work and am worried that the Bar may come after me;" it seems less of a credible gthreat that the government would pursue criminal charges against a lawyer for his professional work. Courts are forgiving of standing in First Amendment cases, but I do not know if it goes that far.

Cerame has never had the law enforced against him despite past ridicule of Italian Scientologists and posting of Dave Chappelle videos, which pulls him out of SBA. The next question is whether the pattern of charges being brought against others shows that Cerame's is the type of speech targeted; Eugene has written about recent enforcement. The one I know about is that UConn case--two students shouting racist epithets in the middle of campus (not at any person), where they were heard by people in surrounding buildings--which seems far afield from Cerame's speech. That the charges in the UConn case were dismissed raises an interesting question of what we mean by credible threat of enforcement for standing purposes. Does "enforcement" mean arrested or charges brought or does it mean prosecution? If charges are brought and dropped, has the law been "enforced" as to make future enforcement substantially likely?

Posted by Howard Wasserman on December 3, 2021 at 07:11 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 02, 2021

Books Never Feel Real Until . . .

there is a cover.

Posted by Gerard Magliocca on December 2, 2021 at 10:25 PM | Permalink | Comments (0)

“Liquidation” vs. Stare Decisis in Dobbs: The Incoherence of Madison’s Theory of Precedent

I might be one of the few people whose views on precedent are more confidently felt than their views on abortion. I find the latter topic agonizingly difficult. On the former topic, however, I have this strong view: Madison’s theory of precedent, articulated most famously in his June 1831 letter to Ingersoll, is incoherent.

That theory maintains that, when some interpretation of a constitutional ambiguity is endorsed by “the uniform sanction of successive Legislative bodies, through a period of years and under the varied ascendancy of parties,” then that interpretation forms a binding precedent that settles the constitutional dispute. As I argue after the jump, this Madisonian theory requires the assumption of stable “parties” whose joint decisions virtually represent later generations who were not members of such parties. But “parties” are always in flux, as their constituents and platforms shift. The fact that Democratic Republicans of the Henry Clay-Calhoun stripe ratified the Bank of the United States prior to 1816 says little about the views of Jacksonian Democrats post-1832, because the latter simply did not exist as an organized political force during the Era of Good Feelings. Likewise, the ratification of Roe-Casey by Business Republicans on the Burger and Rehnquist Courts says little about the views of New Right GOP voters who despised the GOP Business Establishment.

The failure of Madison’s theory of “liquidation” (to use his term for the clarification of constitutional ambiguities by precedent) points to a deeper problem with every theory of constitutional settlement that relies on popular consensus to resolve contentious disputes: “The People,” as a statistically significant, demographically stable, inter-generational entity, rarely exists and, therefore, seldom have settled views on the sorts of questions that “the People” are asked to resolve.

Continue reading "“Liquidation” vs. Stare Decisis in Dobbs: The Incoherence of Madison’s Theory of Precedent"

Posted by Rick Hills on December 2, 2021 at 02:25 PM | Permalink | Comments (20)

Graded assignments

In Fed Courts and Civil Rights, most grading is based on a written assignment and oral arguments as SCOTUS reviewing lower courts. Each student argues one case, serves as justice for one case, and writes an opinion on one case. From a list of cases, I assign each student the case to argue and the case to judge; they choose their third case from the remainder of the list.

First problem: More than 1/3 of the class--13/30--wrote on the same case (standing to challenge North Carolina's 20-week abortion ban). Part of the reason for doing it this way (rather than giving an exam) is not having to read multiple versions of the same answer; this undermines that. Is this a problem and is there anything I can or should do about it?

Second problem: Two students reversed the lower court; everyone else affirmed. Even when the political valence of the lower court went against what I imagine would be students' preferences (e.g., finding moot a challenge to a limit on absentee voting). And even when the lower court included a strong dissent. Part of me thinks it is easier to affirm (the starting point for the analysis is there). The alternative is to require the authors to reverse, but that makes the assignment too difficult (and gives an edge to those working with cases that have dissents). Again, is this a problem and is there anything I can or should do about it?

Posted by Howard Wasserman on December 2, 2021 at 02:10 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Wednesday, December 01, 2021

Ontario Buzzing - Talent Wants to be Free in More than One Way

Ontario’s newest buzzy legislation, just passed yesterday – it (mostly) bans noncompete clauses. It also, like the recent European reforms, requires employers to let employees disconnect after the workplace (no late-night emails). The act is called Working for Workers and it passed with all-party suppor:

https://news.ontario.ca/en/backgrounder/1001032/working-for-workers-act-2021

The right to disconnect is spreading and will fascinating to watch how it unfolds especially given how connected, and how we are working more and more remotely, we all are.

City skyline reflected in Lake Ontario

Posted by Orly Lobel on December 1, 2021 at 04:58 PM | Permalink | Comments (0)