Tuesday, December 28, 2021
What does it mean to have gone to law school?
New York State Senator Brad Hoylman (D) announced a bill defining as a public nuisance (subject to public and private litigation) the promotion of "harmful, false, or unlawful" speech. It targets social-media sites whose algorithms promote or prioritize such "hateful or violent" content, treating it as an affirmative act (compared with passive hosting of third-party speech) not subject to § 230 protection. The obviously problematic piece is making actionable "a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public," a rule that would 1) empower the government to determine medical truth and 2) lacks the required imminence.
First Amendment scholars, lawyers, and commenters jumped to identify the obvious problems with the law under existing precedent and the likelihood its enforcement would be enjoined shortly after it takes effect. They also have pointed out that Hoylman graduated from Harvard Law School, a shot at HLS ("what the hell are they teaching there?") or at Hoylman ("did he not take a First Amendment class or did he just not pay attention?") or at both.
But consider three other possibilities.
1) One must know the law to ignore it. HLS did a good job of teaching the First Amendment and Hoylman learned it well. But in his new position he does not care, choosing to score political points rather than adhere to the constitutional law that he was taught and knows well.
2) One must know the law to find ways around it to serve (what one believes are) greater societal goals. HLS did a good job of teaching the First Amendment and Hoylman learned it well. And Hoylman is using that knowledge to find ways around that law in pursuit of a higher purpose or social goal. Whether one shares that goal tells us nothing about how well the law is taught and learned at HLS.
3) Stop being judicial supremacist. HLS taught and Hoylman learned the First Amendment as interpreted by the courts. As a legislator, he is not bound by judicial precedent or that judicial interpretation and can proceed on his own understanding in drafting, introducing, and pushing legislation. His position may lose in court, but he has the departmentalist authority and discretion to pursue his competing vision within the legislative process. On this last point, perhaps we test the "HLS taught and Hoylman learned the First Amendment" hypothesis by whether Hoylman knows that his position will lose and chooses to pursue it anyway (a defensible position in a judicial-departmentalist world) or whether he believes what he proposes is consistent with prevailing judicial precedent.
Posted by Howard Wasserman on December 28, 2021 at 03:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)
An inexplicable lawsuit
A class of of state med mal plaintiffs sued a bunch of doctors, hospitals, professional associations, health networks, the Attorney General, and several state judges; the plaintiffs want a DJ and injunction declaring that the Seventh Amendment is incorporated and that Texas' cap on non-economic damages violates the Seventh Amendment. Bloomberg reported on the order dismissing claims against the judges in light of WWH (because everything comes back to SB8). Otherwise, the case seems to be moving towards a hearing on the request for injunctive relief. But I am baffled by how this case is moving forward. Other than the AG arguing that plaintiffs lack standing because their federal claims depend on winning their cases and showing entitlement to non-economic damages that would be limited by the cap, the remaining defendants' briefing has focused on the merits of whether the Seventh Amendment should be incorporated and whether the damages cap is constitutionally invalid.
But this case should never go near the merits. That the parties and the court are steaming headlong towards that reveals how litigants and courts have disconnected constitutional litigation from, well, litigation.
Continue reading "An inexplicable lawsuit"
Posted by Howard Wasserman on December 28, 2021 at 02:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
Monday, December 27, 2021
A different Court contingency
Orin Kerr offers a Twitter thread on the contingency of how we got to the current Supreme Court from Obama's nomination of Garland in early 2016--how we went from Garland as Scalia's replacement to the expectation of Hillary Clinton replacing Scalia, Ginsburg, and maybe Kennedy and Breyer to create a Court on which Kagan is the median Justice to what we now have. Orin writes: "Not only was there good reason in 2016 to think the future Court was going to be left of center, there was good reason to think it would be really solidly so. . . . Can you imagine being on the left and having that expectation of the future in 2016 -- and then seeing the center of the Court instead shift hard to the right instead, from AMK to Roberts, and then Robert to -- who -- Gorsuch? Barrett? Kavanaugh? That's a shock."
I have thought much the same--it is the main reason I was so broken up on November 9, 2016. While I did not foresee RBG dying, it was obvious what would happen with the Court over the next four years. As a citizen and political liberal, I watched the prospect of a left-leaning Court--for the first time in my conscious lifetime, Fortas having resigned when I was less than a year old--evaporate.
But consider another contingency that is as interesting. Imagine Clinton wins but the Senate remains in Republican hands, which I saw as a likely outcome as of early October 2016. McConnell and Grassley--having tasted success and incurred no costs (in fact, having been rewarded) for blocking Garland--would not have allowed Clinton to appoint anyone to the Court.* So we would have had two, and probably four, more years of an evenly divided Court--a genuine and sufficiently long experiment in the workability of Eric Segall's proposed permanent evenly divided Court.
[*] Grassley is making noise about the same steps should the Republicans gain control of the Senate next years, based on the "principle" that a Senate of one party does not confirm Justices for a President of the other party.
Posted by Howard Wasserman on December 27, 2021 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)
Sunday, December 26, 2021
Is "When Harry Met Sally . . ." a Christmas movie? Is it a Jewish movie? Is it both?
We watched When Harry Met Sally . . . with our 15-year-old last night. They enjoyed it and now understand the source of many cultural references (low maintenance, singing in front of Ira, not fucking with Mr. Zero, "because of God," etc.) that have bounced through our house for years. Next up, I guess, is Casablanca. Until then, two questions:
First, is this a "Jewish" movie? I saw an academic talk years ago that argued this is another version of the "Jewish man's opposites-attract relationship with the strange non-Jewish woman" story. I have never bought it. The movie is "Jewish" in that the writer (Nora Ephron), director (Rob Reiner), and male lead (Billy Crystal) are Jewish--but that is true of many movies (running Hollywood has its benefits). The story is loosely based on Reiner's experiences reentering the dating scene following his divorce. Sally is not Jewish (we twice see her buying a Christmas tree--more on that below). But is Harry meant to be Jewish? The story never makes that explicit. He is based on Reiner and played by a Jewish actor presenting "typically Jewish" mannerisms and personality. Harry Burns is a Jewish name, I guess, but it is no Isaac Herschkopf. Perhaps it does tell the Jewish-man-chases-shiksa story, sanitized for a mainstream audience. On the other hand, if you kept everything the same as the original movie and put Tom Hanks in the male lead (i.e., if you made Sleepless in Seattle or You've Got Mail*), would we think of this as a "Jewish" movie?**
[*] In You've Got Mail, the Hanks character is Joe Fox and the mammoth chain bookseller is Fox Books. The irony for people watching that movie in Philadelphia was that Fox Books is a multi-generational independent bookshop around the corner from a Barnes & Noble, and its founder was Joseph Fox, who was Jewish.
[**] On a third hand: Ephron claimed that she based Sally on on herself and her friends. So you could tell a different Jewish story by remaking the movie with Jesse Eisenberg and Lizzy Caplan.
Second and more controversially: Is it a Christmas movie? The current-day (non-flashback) story appears to cover roughly 16 months--they reunite in late summer/early fall and the story ends on New Year's one year later. They pass through two Christmas seasons--captured in two winter-and-Christmas-in-New-York musical montages set to Christmas standards and buying Christmas trees (for Sally, not for Harry, of course). The different tenor of the Christmas montages evokes the different stages and states of their relationship, although with limited dialogue. The "action" of the seasonal scenes occurs not on Christmas but at two New Year's Eve parties--is New Year's part of Christmas for Christmas MovieTM purposes and should it be?
Posted by Howard Wasserman on December 26, 2021 at 03:02 PM in Culture, Howard Wasserman | Permalink | Comments (6)
Project Veritas injunction remains against New York Times
From Friday. The New York trial court enjoined from using materials and enjoined to recover materials from third parties and to destroy the materials within their control. The opinion is a tour de force of bad legal analysis, including: placing attorney-client privilege and the First Amendment on roughly equal planes of fundamentalness; granting the injunction without proof that the Times did anything wrong in obtaining the material (contra Bartnicki); taking the Times statement that there is no evidence of wrongdoing as an admission that there could have been wrongdoing; finding that memoranda about Project Veritas conduct is not on a matter of public concern; and generally treating The Times as purely a litigant engaged in discovery rather than as a media entity operating outside litigation.
The opinion is fascinating because Judge Wood writes with extraordinary certainty while being extraordinarily wrong and extraordinarily likely to be reversed on appeal, at some point.
Posted by Howard Wasserman on December 26, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, December 22, 2021
Mandatory Vaccinations at the Court?
No, I don't mean the upcoming case about the Biden Administration's policy for private employers. I'm instead wondering whether the Court requires its staff to be vaccinated and what the individual Justices require of their law clerks and staff. I see no written policy on this issue. Perhaps someone should ask the Court's press office. I'm just curious.
Posted by Gerard Magliocca on December 22, 2021 at 09:31 PM | Permalink | Comments (6)
It's not just baseball
A New York Magazine story on Yeshiva men's basketball, which is ranked # 1 in the nation in D-III, has won 50 straight games dating back three seasons, and is blowing teams out. The undefeated Maccabees reached the D-III Sweet 16 when the tournament shut down in March 2020. They played only seven games last year before the season shut down. It is a great what-if for the school that COVID upended what could have been an historic run.
Ryan Turrell is the team's star, a mid-to-mid-major D-I talent who went to Yeshiva because he did not believe he could reconcile his Jewish practices with playing D-I basketball. Turrell hopes to be the first Orthodox Jewish player in the NBA and the counterpart to two young Orthodox baseball players (one in the minors, one playing at Wake). Lost in the story is perspective on whether Turrell's talents translate to the next level. There are no D-III grads in the NBA; the closest is Miami Heat guard Duncan Robinson, who began his career at D-III Williams, but transferred to Michigan after a freshman season in which he earned All-America honors. Turrell's lone D-I commitment was to Army, which is not a typical path to the NBA (David Robinson does not count--he grew six inches between 12th grade and 2d year at Navy). The likely make-or-break for Turrell is whether he is a good enough shooter.
Fun times.
Posted by Howard Wasserman on December 22, 2021 at 11:40 AM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)
Tuesday, December 21, 2021
Abortions, Vaccines, and “Commerce”: Could NFIB v Sibelius’ “Great Powers” Doctrine Support a Bipartisan Federalism Compromise?
The Sixth Circuit’s dissenting opinions on OSHA’s power to issue an emergency vaccine mandate (panel opinion here, denial of en banc review here) point to what I shall call a “bipartisan federalism compromise” (BFC, for convenience’s sake) on abortion. The reason is that the judges’ arguments against mandated vaccination apply pretty much as well to mandated childbirth: If forcing someone to get vaccinated is the exercise of a “great power” not to be inferred from the Necessary & Proper clause under NFIB v Sebelius, then surely forcing someone to carry a pregnancy to term is equally “great” and in the same way: Both mandates are plausibly construed as unprecedented “affirmative” requirements that regulated persons engage in non-commercial activities.
Exactly how plausible are these arguments? As I discuss after the jump, from one doctrinal point of view, the arguments against forced vaccination and forced childbirth are equally false; from another, equally true. From the viewpoint of practical federalism, however, they are both equally useful. They promote a BFC over mandates intruding on citizens’ bodily autonomy. Red and Blue states fiercely disagree over how much to trust the government in controlling certain types of medical decisions: The Blues like vaccine mandates but reject anti-abortion laws, the Reds distrust mandated vaccines but are happy to intrude on decisions about childbirth. Why not, then, devolve both decisions to jurisdictions in which each side can have its fair share of a say and where the stakes are smaller “winner-take-some” subnational struggles rather than the federal “winner-take-all” sweepstakes that could provoke a civil war?
The doctrinal basis for such a BFC, alas, is less plain than its practical benefits. That doctrinal ambiguity springs from the arbitrariness of NFIB v Sebelius’s distinction between regulatory prohibitions and mandated action. That distinction, is normatively empty and analytically manipulable, allows judges to turn on and off the Sebelius spigot at will. (If one simply ignores Sebelius' "great powers" idea entirely, then both federal vaccine mandate and anti-abortion laws would likely be upheld under Raich, as Ilya Somin nicely explains here w.r.t. latter). After the jump, I will argue that there is a better doctrinal route to a sensible BFC: The SCOTUS could give heightened scrutiny to federal laws intruding into what Richard Primus and I call “suspect spheres” -- areas where there are special reasons to distrust federal regulation. It might be that mandates for vaccination and prohibitions on abortion both fall within such a suspect sphere, because they raise anxieties about bodily autonomy best addressed subnational governments. In any case, the argument for blocking Congress’ mandating childbirth and vaccines stand or fall together, which should provide some comfort to the opponents of either to the federal threat of mandating both.
Posted by Rick Hills on December 21, 2021 at 06:44 PM | Permalink | Comments (10)
Section 3 and the Presidency
We are approaching the first anniversary of January 6th. One issue that may eventually be litigated is whether Section Three of the Fourteenth Amendment applies to former President Trump. On that point, I want to present some new research that is part of a fun conversation I've been having with Josh Blackman and Seth Tillman. This post is longer than usual, so I will put some of it below the fold.
In my article on Section 3, I briefly examined whether that provision applies to the presidency. Of course, I had no idea (in December 2020) that this question might become important. What I said then was the following: (1) the only time the issue was raised during the debate on Section Three in Congress, the answer given by Senator Justin Morrill was that Section 3 applied to the presidency; (2) when Section 3 was discussed in Congress or on the campaign trail in 1866, the prohibition was always described in general terms and never with a presidential exception. Indeed, John Bingham at one point said that Section 3 applied to any "position, either in the National or State Government;" (3) people in 1866 would probably have been perplexed if Jefferson Davis or Robert E. Lee could be elected President but could no hold no other office under the constitutional proposal.
Josh and Seth published a paper in which they raise doubts about whether Section 3 applies to a person who only swore an oath as President (which describes Donald Trump). Here's an oversimplified summary of their view: (1) the jurisdictional element of Section 3, which specifies which oath-takers are potentially subject to disqualification, does not specifically mention the presidency; (2) the understanding of "officer of the United States" under the 1787 Constitution and ante-bellum law was that the presidency was not included and only appointed officials were included; (3) the countervailing evidence in my paper is not enough to overcome the presumption that the original meaning applies to Section Three. In particular, they note that the Framers of the Fourteenth Amendment could have thought that there was no chance that any ex-Confederate who took an oath only as President could be subject to disqualification because there was no such person in 1866.
These are fair points. For purposes of this post, I'm going to assume that their reading of the 1787 Constitution is correct and focus only on what people thought during Reconstruction. I went back and did some additional research. The bottom line, as I will explain after the fold, is that there were many references to the President as an "officer of the United States" during Reconstruction in a way that there was not prior to 1865. Thus, I think reading Section 3 as applying to the presidency is well founded.
Continue reading "Section 3 and the Presidency"
Posted by Gerard Magliocca on December 21, 2021 at 10:58 AM | Permalink | Comments (7)
Monday, December 20, 2021
Trump tries to fight Younger again
Donald Trump filed suit in federal court against New York AG Letitia James, seeking to enjoin James from continuing with the state investigation of him and the Trump Organization. He supported the pleading with an unhinged rant. The suit has everyone reviewing their notes on Younger abstention. George Conway read Trump's rant as an attempt to invoke the "plaintiff-is-cuckoo-for-Cocoa-Puffs" exception to Younger.
This is not the first time Trump has run to federal district court to avoid a state investigation or that he has had to tangle with Younger. He did the same thing against Manhattan DA Cy Vance's subpoenas seeking Trump's tax returns. The district court abstained, rejecting arguments about bad faith and presidential immunity. But the Second Circuit reversed on that (while affirming on the merits, which SCOTUS then affirmed). The Second Circuit held that Younger's core justification is avoiding friction between state and federal governments, but that friction is present in actions involving state proceedings against federal actors, thus the avoiding-friction rationale does not push the federal court towards abstention.
It was a nonsense basis for avoiding abstention. But whatever its merits, it does not apply to a former President hoping to avoid conduct unrelated to his office. Trump's best shot is bad faith (which the complaint and the rant set-up), but I doubt a court will find that it would be impossible to obtain a valid investigation or conviction. And that a prosecutor is a political rival of the target, without more, should not establish harassment.
Trump's Younger problems mirror a point in a Guardian article about Trump's increasing anxiety over the January 6 investigation--"The trouble for Trump – and part of the source of his frustration, the sources said – is his inability, out of office, to wield the far-reaching power of the executive branch." His position within the executive branch and holding federal power helped him avoid Younger the first time; it is not available now.
Posted by Howard Wasserman on December 20, 2021 at 06:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)