Monday, June 14, 2021

Duly Noted

In a post on Balkinization, David Super writes about a forthcoming paper on making government more responsive. As a side note, he writes: "Because its goal genuinely is strengthening democracy rather than smuggling through the substantive progressive agenda, it will be interesting to see if the journal editors have any interest."

It's not a sentence that will shock anyone. I don't want to give it more weight than the author intended--one can't read tone very easily on the Internet and distinguish between light humor, sarcasm, plain truth-telling, lament, and so on--or to focus on its author in particular. But, apart from thinking the sentence is accurate, I would be inclined to suggest that its very matter-of-factness is noteworthy. It is unusual in that it is a moment of plain-spoken truth-telling in a public space by someone who is both rightly well-regarded and indisputably well-credentialed in the progressive realm, rather than someone writing outside and against it, who might thus be disregarded or discounted even if he or she wrote essentially the same sentence.

Law reviews, like law schools, are an institution. As I have suggested here and there, it seems to me that the true crisis of our time, across many spaces, is institutional--is, specifically, a loss of interest in and allegiance to specific institutional roles and the valuable but--or valuable because--limited and specific purposes they serve. Institutions are not static and are and should be subject to change and reform, but debates about change ought to take place primarily from within some degree of submission to that institution: its purpose, function, role--and limits. The function of a law review is to serve scholarship. It may (to use a decidedly overblown bit of language) change the world, for better or worse; but that is strictly incidental. Serving scholarship, with a proper sense of institutional role and limitations, is the function; anything else is just a by-product. Law reviews that lose this core sense of purpose lose their reason for existing. Law schools that let it happen fail in their own function. And legal academics that actively encourage it, go along with it for reasons of placement and advancement or avoiding friction, or simply ignore it are also complicit. Our discipline is already undisciplined enough as it is. I agree with Stanley Fish that the job of academics is to do the job of academics. Surely that includes insisting, and ensuring, that their institutions are functioning properly and doing their jobs.     

Posted by Paul Horwitz on June 14, 2021 at 10:36 AM in Paul Horwitz | Permalink | Comments (0)

The Attorney General on Voting Rights

I want to draw attention to Attorney General Garland's statement on Friday about voting rights. Leave aside what you think of his proposals or how they fit within the broader picture on voting rights. His account of the history of voting rights is splendid. Among the highlights:

1. "Representative John Bingham--the principal author of the Fourteenth Amendment--called the right to vote the source of all institutions of democratic government."

2. Garland explains that the DOJ was created in part to enforce the First Ku Klux Klan Act and singles out Attorney General Amos Akerman, who was a champion of voting rights enforcement his all-too-brief tenure in the early 1870s. 

3. Garland also singles out by name DOJ stalwarts like John Doar, Burke Marshall, and Drew Days in their work on behalf of voting rights as part of a discussion of the case law.

The speech is well worth your time.

Posted by Gerard Magliocca on June 14, 2021 at 08:14 AM | Permalink | Comments (5)

Thursday, June 10, 2021

The Myth of Black Robes

A common belief is that John Marshall initiated the practice of Supreme Court Justices wearing black robes. The story goes that the Justices wore scarlet robes before 1801, but Marshall chose to wear a simple black robe. This was an expression of his modesty and an exercise of leadership, as the other Justices soon followed his example.

A new article in the Journal of Supreme Court History debunks this claim. (I cannot link to the article.) Matthew Hofstedt, the Associate Curator of the Court, proves to my satisfaction that some of the Justices did wear black robes before Marshall's arrival. Hofstedt reaches no conclusion about why all of the Justices eventually adopted black robes, but what seems clear is that Marshall was not the cause.

This finding is consistent with my own research. In 1799, Elizabeth Powel told Bushrod Washington that she was buying him a "black satin robe" that he could use. (Washington was appointed to the Court in December 1798). I had wondered about that until I heard of Hofstedt's paper, but now Powel's letter makes sense. Some Justices did wear black robes before Marshall's arrival.

Just another John Marshall myth.

Posted by Gerard Magliocca on June 10, 2021 at 04:16 PM | Permalink | Comments (1)

Whatever "the immediate political moment" is, Ignore It

Allow me to register a mild dissent to part of Howard's post below, in which he complains that the sudden last-minute issuance of opinions threatens to "overwhelm[ ] those whose job it is to parse, understand, and critique the Court's work in the immediate political moment," and notes that "scholars also do and should provide immediate comment and critique and that is impossible when every day produces multiple major decisions." I disagree on a number of counts.

I can understand an argument that the Court, like the other branches of government, in some sense serves and in many senses should be aware of the public. And I can understand an argument that the Court, in doing so, is likely to deal with intermediaries, since most of the public neither reads nor necessarily understands or even cares about individual legal opinions. But neither of those things require the Court, or any court, to try to assist specifically in "understanding" any particular opinion's role or significance "in the immediate political moment."

I doubt, frankly, that one's understanding of a judicial ruling is generally assisted by focusing on "the immediate political moment," since it is precisely an obsession with the "immediate political moment" that has the almost inevitable tendency to wreck judgment, supercharge motivated reasoning and partisan interpretation, and turn the minds of even (or especially) the best and brightest to jelly. But even for those who enjoy thinking about judicial opinions and other events in the "immediate political moment"--and I do think "enjoy" is the right word, since it is as much a hobby as a sign of any real engagement--it is not the Court's job institutionally to facilitate such efforts. It is its job to facilitate the issuance of opinions and their distribution to the public, full stop. The fact that an industry has sprung up around trying to read and opine on opinions within minutes of their issuance is true and unfortunate. But it's not one the Court ought to pay much attention to.

Nor do I agree that scholars "should" provide immediate comment and critique. The second word, critique, certainly not. The more immediate it is, the less scholarly it is likely to be and the less likely it is to draw on anything like the actual skills or capacities of scholars. Even "comment" is dubious. (And both are highly dubious, if one means comment or critique in the context of "the immediate political moment," a matter on which legal scholars have no specific expertise and which is as likely to skew their thinking as it is anyone else's.) The job of the scholar qua scholar is to provide scholarship--which generally takes time, care, and attention. Legal scholars--like lawyers, bricklayers, or anyone else--can provide immediate comment and critique. They are often asked to do so. They have lots of individual incentives to do so: they get on TV, they get well-known, they get to push particular narratives, and, for those who are politically engaged, they get to maintain the feeling, however illusory or self-serving, that they have influence or importance or engagement on public issues. They are also aware that their institutions, from deans to law school PR offices to main campus, love it when their school's name gets publicity as a repository, not of experts as such, but of experts who delight in particular in speaking to the press. But none of this is their job as such.

I doubt they do it particularly well, and I doubt that the ones who do so most eagerly are the ones who do it best or in the most scholarly fashion. I would be happy if it were otherwise. It would be nice if the scholars who spoke most often to the press emphasized the most boring but crucial details, rejected stupid or overheated interview questions and simply refused to play along with those lines of questioning, pointed out when they had not finished reading various opinions or stated that it was too soon to have a useful opinion about a newly issued one, openly emphasized the role of their own political views in influencing their commentary and warned readers or viewers that this surely affects the reliability of their commentary, and foregrounded the utter unknowability of longer-term implications. But there is a label for such scholars: "people who don't get called a second time." The media environment, especially in the immediate political moment and given the brevity and immediacy of the news cycle and the economics of current journalism, is not well-suited for scholarly commentary on judicial opinions. On the whole, I would rather they either did it absolutely right or didn't do it at all. But whatever choice they may make on these matters, none of it is their job qua scholars.   

None of this, of course, is to say that the Supreme Court should issue tons of opinions on the last day or week of the Term, or that they should ignore the role of intermediary institutions in distributing their opinions to the public. On the latter point, a far more useful response would be something like that of the Supreme Court of Canada, which (at least during some portions of the post-1982 years; I have no idea what the current status or approach of the Court is) has an Executive Legal Officer, whose job it is to give a careful, no-spin explanation of rulings on the day they are issued. Such an approach, which allows the Court to explain rulings (off the record and on an embargoed basis) to journalists before they are issued, would be elitist, have a somewhat undemocratic air, and be preferable to the likes of reporters--or "scholars"--rushing out to announce something based on a sentence or two that they have glimpsed on the last page of a lengthy opinion.

On the first point, it seems to me that instead of focus on, if you will pardon the repetition, the immediate political moment, we might think in a longer-term and more institutional fashion. Basing the size of the Court on last Term's opinions or those of the last several Terms is a lousy way to think about Supreme Court reform, and I would say the same about this. Institutionally, the scramble to get out opinions before the end of Term is embarrassing--no more embarrassing than much of what the other two branches do, but embarrassing just the same. I would much rather see them adopt a strict policy of issuing no more than two or three opinions on a given day, and to see them do so every day of a week during the last month of a Term rather than cramming everything into a few issuance days. I would, for that matter, be perfectly happy if they sat from the first Monday in October through the following first Monday in October. I'm sure there are some good reasons that the Court's calendar year is the same as that of academics and other school-teachers. But there are many bad ones. If the institution would be better served by the justices sitting longer, issuing opinions throughout the year, and having to give a miss to Aspen or Runnymede or Salzburg, I for one am willing to accept that sacrifice. They are already well compensated in pay and honor for what they do. Surely they can do it all year. 

A last word: I agree with Howard that Justice Breyer ought to retire. There is an excellent reason for it: He is 82 years old, serves in a federal government that is already far too much of a gerontocracy, and has served what is already an ample--indeed, excessive--tenure on the Court. I see no convincing reason why any Justice of the Supreme Court should serve longer than 20 or 25 years or past the age of 70. On this score, however, the last Justice to show any good behavior was Justice Souter, who understood that there are other things in life besides serving on the Court. More of his former colleagues should emulate him, instead of engaging in the awful competition to break records for length of tenure. These are excellent reasons to retire from public office, and they apply to a number of recent and current Justices and elected officials. I think they are more important than the immediate political moment. But one may take that view with a grain of salt, since, like most of my colleagues in the legal academy, I have no special expertise on that--whatever it is.     

Posted by Paul Horwitz on June 10, 2021 at 03:45 PM in Paul Horwitz | Permalink | Comments (0)

Opinions and Assignments

Two thoughts as the Court again issued one opinion (from November)

1) Since May 17, the Court has issued twelve opinions in seven "opinion days," issuing two or more opinions three of those days and one opinion on each of the remaining four. The Court has issued one opinion on eleven of its opinion days this Term. They have 21 argued cases left and three weeks in the Term, so likely six opinion days and an average of three opinions per day. And those that remain are among the most controversial and most important. Obviously the Court can issue opinions only when they are ready and cases with more and longer opinions take more time. But it is hard to avoid the sense that the Court is doing the equivalent of a "document dump"--dumping out major opinions in a flood, overwhelming those whose job it is to parse, understand, and critique the Court's work in the immediate political moment. This is distinct from the longer scholarly term. Scholars can write articles about these cases whenever and the timing of their issuance does not matter. But scholars also do and should provide immediate comment and critique and that is impossible when every day produces multiple major decisions.

2) Thursday's decision in Borden was a 4-1-4 split. Kagan wrote for Breyer, Sotomayor, and Gorsuch; Thomas concurred in the judgment; Kavanaugh dissented for the Chief, Alito, and Barrett. So a question: Who assigned this opinion, Breyer or Thomas? The practice is senior-most associate justice in the majority. Is it the majority for the judgment/outcome? So at conference, Thomas, Breyer, Sotomayor, Kagan, and Gorsuch vote to reverse, the assignment goes to Thomas, and if the writer (Kagan, in this case) loses a majority in the course of drafting, oh well? Or if at conference it is obvious that Thomas' views (apart from the result) are different than Breyer, et al., Breyer assigns? The former would seem to be more administrable because one never knows if the write can get a majority until she tries. The same issue arose with June Medical last Term--did the Chief assign the opinion because he was in the majority to reverse or did Ginsburg assign because the Chief's reasoning was always different? Does anyone know for sure?

3) Rick Hasen gets it and it amazes me that Justice Breyer does not appear to. It is one thing for Breyer to continue to believe the Court is not nakedly political. It is another thing to have watch Mitch McConnell for the past decade and not recognize what would happen.

Posted by Howard Wasserman on June 10, 2021 at 11:52 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, June 09, 2021

JOTWELL: Malveaux on Spaulding on "actual" procedure

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261 (2021) on how much of civil procedure occurs outside of federal court and the need for legal education to acknowledge and reflect that reality.

Posted by Howard Wasserman on June 9, 2021 at 09:39 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, June 08, 2021

Speech and blame-shifting

There is a high burden to holding speakers liable for misconduct by others--absent some agreement or conspiracy, there must be intent that listeners engage in unlawful conduct and temporal imminence between the speech and the unlawful conduct. In part this is about freeing speakers to use rhetorical hyperbole and to be "vehement, caustic, and sometimes unpleasantly sharp." It also frees speakers to speak without fearing liability because of the actions of the lowest-common-denominator listener. And it places the blame on those who engage in misconduct--where it belongs--and removes (or at least limits) the option of excusing action by blaming the speech one heard.

We saw this in efforts in the '80s and '90s to regulate pornography on the ground that it conveyed messagess about sex and women, signaled to viewers that it was ok to sexually assault women, and even planted ideas in viewers about whether and how to engage in sexual assault. The arguments against those efforts raised this LCD issue--we do not set legal rules for the LCD (even in those areas without the shadow of the First Amendment) and we should not give those who engage in unlawful actions an excuse for those actions. More recently, we saw this in litigation against activist DeRay Mckesson attempting to hold him liable for negligence arising from violent actions by an unknown person during an anti-police-violence demonstration that Mckesson organized.

I am reminded of this in stories about Capitol Insurrection defendants (here is the latest) attempting to excuse themselves from pre-trial confinement and (presumably) ultimate conviction by insisting they were duped or manipulated by the speech of Q-Anon, Donald Trump, NewsMax, and a host of other speakers and platforms spreading lies about the election and the opportunity to rise above "his ordinary life to an exalted status with an honorable goal." They were helpless against the onslaught of lies, but their eyes are now open, thus they no longer are a threat to the public and not bad people who did bad acts deserving of punishment.

"The devil made me do it" is too pat. Even if one accepts (as I do not) that Brandenburg's requirements are too high and that it should be easier to impose liability on speakers, I think we can agree that the person whose actions cause an injury is more culpable than the speaker and should not be able to use bad speech and bad speakers to excuse or reduce the consequences of his misdeeds.

Posted by Howard Wasserman on June 8, 2021 at 10:57 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Naomi Osaka and the ADA

The following post is by my FIU colleague Kerri Stone, who writes on employment discrimination. I solicited her thoughts on Naomi Osaka.

On May 26, 2021, 23-year-old tennis phenom Naomi Osaka stunned the world by proclaiming on social media that out of a desire to protect her mental health, she refused to partake in mandatory press conferences during her participation in the French Open. After incurring a $15,000 fine for this refusal and threats of further sanctions from organizers of the French Open and the other Grand Slam tournaments, she announced her withdrawal from the tournament.

Continue reading "Naomi Osaka and the ADA"

Posted by Howard Wasserman on June 8, 2021 at 09:31 AM in Employment and Labor Law, Law and Politics, Sports | Permalink | Comments (0)

Monday, June 07, 2021

On suing the wrong defendant

What happens if a constitutional plaintiff sues the wrong defendant and why does that happen? The answer is neither clear nor consistent, as two cases reveal.

Last week, the Northern District of Texas dismissed a challenge to a Lubbock ordinance prohibiting abortions in the city but providing no mechanism for municipal enforcement. Planned Parenthood sued the city, but the court recognized that the city is not responsible for enforcement of the law and does not control the private individuals who do enforce the law. The court therefore held that plaintiffs lacked standing. This decision presages the likely result when Planned Parenthood or another provider sues to challenge HR8.

Also last week, the Fifth Circuit ordered dismissal of a challenge to the rejection of online voter-registration applications using a photograph of a signed application form, under the "wet signature" requirement that applications have an actual ink signature. Acceptance or rejection of registration applications rests with country registrars. The Secretary of State had issued a press release reminding voters that online registration is not available, a press release that prompted several county registrars to change course and reject online applications. The Texas Democratic Party and others sued the Secretary. The court held that the Secretary had sovereign immunity, because she was not the responsible executive officer for a proper Ex Parte Young action.

The defect in both actions is the same--the plaintiff sued the wrong defendant, a person/entity not responsible for enforcing the challenge law and thus causing the challenged harm. It makes no sense to use distinct doctrines to get at the same idea. And a court could recast one as the other. The Fifth Circuit could have held that Planned Parenthood lacked standing to sue the Secretary, because the Secretary's press release did not cause the injury and an injunction against the Secretary would not remedy their harm. The Lubbock case could not be recast as sovereign immunity because a municipality is not a sovereign. But imagine when Planned Parenthood sues theTexas Commissioner of State Health Services. The court could say no standing, on the same grounds as in Lubbock. Or the court could follow Texas Democratic Party and say the Commissioner has sovereign immunity because he is not responsible for enforcing the heartbeat law and does not control those who do. Again, it is incoherent to fold the same idea into two doctrines.

Worse, to the extent the court wants to tie this to Ex Parte Young and sovereign immunity, it should be about the merits of the claim. The issue under § 1983 is not that states (and state officials sued in their official capacities) have sovereign immunity. The issue is that states (and state officials sued in their official capacities) are not "persons" for purposes of § 1983. So a state/state official should not claim sovereign immunity; it/he should claim that an element of § 1983--a person as defendant--is not satisfied. But that is a merits question that the court cannot resolved as a jurisdictional issue at the outset.

And all of this asks the § 1983 question--did the named defendant "subject or cause[] to be subjected" the plaintiff to a violation of her rights. If the defendant is not responsible for enforcing the challenged law, the answer is no. Which again reflects failure of an element of a § 1983 action, not competing jurisdictional ideas.

Posted by Howard Wasserman on June 7, 2021 at 12:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, June 06, 2021

Tulane VAP 2021-2022 - Murphy Institute

From Tulane Law School:

Tulane Law School is currently accepting applications for a two-year position of visiting assistant professor.  The position is being supported by the Murphy Institute at Tulane (http://murphy.tulane.edu/home/), an interdisciplinary unit specializing in political economy and ethics that draws faculty from the university’s departments of economics, philosophy, history, and political science. The position is designed for scholars focusing on regulation of economic activity very broadly construed (including, for example, research with a methodological or analytical focus relevant to scholars of regulation).  It is also designed for individuals who plan to apply for tenure-track law school positions during the second year of the professorship.  The law school will provide significant informal support for such. Tulane is an equal opportunity employer and candidates who will enhance the diversity of the law faculty are especially invited to apply.  The position will start fall 2021; the precise start date is flexible.

Candidates should apply through Interfolio, at http://apply.interfolio.com/84001, providing a CV identifying at least three references, post-graduate transcripts, electronic copies of any scholarship completed or in-progress, and a letter explaining your teaching interests and your research agenda. If you have any questions, please contact Adam Feibelman at [email protected].

Posted by Sarah Lawsky on June 6, 2021 at 08:55 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)