Thursday, January 20, 2022

Nonbinding Dicta About Nonbinding Dicta

To echo a point made by Josh Blackman over at Volokh, I don't understand where the Court gets the authority to declare part of a circuit opinion dicta in an order denying a stay of that circuit judgment. The Court did not take the case on the merits. Thus, the Court's views on whether former presidents can assert executive privilege is, itself, dicta. The DC Circuit need not follow it, though in practice they will just analyze any such executive privilege claim on the merits just to be safe.

Consider a related example. Suppose someone requests certiorari. The Court denies the request. But some Justices declare, concurring in the denial, that this or that in the lower court opinion was dicta. I think that would be an abuse of the certiorari process. How is what the Court just did different?

Posted by Gerard Magliocca on January 20, 2022 at 09:41 AM | Permalink | Comments (0)

Wednesday, January 19, 2022

The Definition of An Insurrection

I thought I would reproduce the following helpful definition from Webster's Dictionary in 1828:

INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.]

1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.

What does this tell us? First, an insurrection is different from a rebellion, though some people used the terms interchangeably. An insurrection does not require "an attempt to overthrow the government." That is instead the definition of a rebellion. An insurrection is something less than that and involves open opposition to the execution of a law by a significant number of people. Take "Shays Rebellion," for example. I'm not sure when that nomenclature became established. Joseph Story instead described that event as an "insurrection" in his Constitutional Commentaries. This makes sense, as the folks who participated in Shays Rebellion were not trying to overthrow the government of Massachusetts in 1787. They were, though, openly defying the lawful authorities there. (Just an aside, slave uprisings in the South were also commonly described as insurrections. Again, these did not involve attempts to overthrow the government.)

It's also interesting to note that the word "insurrection" does not appear in Section Two of the Fourteenth Amendment. In describing whom the states could disenfranchise, the text refers to "rebellion, or other crime." One implication of that language is that "insurrection" was not understood as a crime for purposes of the Fourteenth Amendment, which is consistent with Congress's decision to use a civil remedy to enforce Section Three when the First Ku Klux Klan Act was enacted in 1870. Likewise, the exclusion of insurrection from Section Two made sense because the Framers of the Fourteenth Amendment thought disenfranchisement was a more serious sanction than a prohibition on serving in office. As a result, this stiffer sanction was reserved for the greater wrong--rebellion. 

UPDATE: One additional note. Texas law in the 1850s defined an "insurrection of slaves" as "an assembly of five or more, with arms, with intent to obtain their liberty by force."

Posted by Gerard Magliocca on January 19, 2022 at 09:43 PM | Permalink | Comments (0)

Drexel University VAP Positions

From Drexel University Thomas R. Kline School of Law:

The Drexel University Thomas R. Kline School of Law invites applications for a two Visiting Assistant Professor positions.   One position is dedicated to a faculty member who will teach and research in the area of tax.  The other position is open, with a preference for someone who does research that touches on legal implications of new technology and/or someone open to teaching Torts.  Each position will last two years and VAP’s are expected to fully participate in the intellectual life of the law school.

Continue reading "Drexel University VAP Positions"

Posted by Sarah Lawsky on January 19, 2022 at 03:24 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Judge Scola pulls no punches

From Judge Robert Scola of the Southern District of Florida, pulling no punches in cancelling a scheduled jury trial.

Posted by Howard Wasserman on January 19, 2022 at 01:18 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, January 18, 2022

The Great State of Texida (or Floxas)

Can we combine Texas and Florida into one state? In terms of enacting stupid performative zombie legislation that serves no purpose and addresses no societal problem, they are engaged in a race to the bottom to out-dumb one another. Merging them into one means we can write about the stupidity one time and be done with it.

In July, Texas followed Florida in prohibiting social media companies from regulating speakers and speech on their sites; its law met a similar judicial fate. Now comes Florida SB 1298, which requires all professional sports teams that contract with state and local governments to play the national anthem before games, something Texas passed last year. Like the Texas law, this bill is especially insidious because I do not know who will or wants to challenge its validity or how. (I have not seen any litigation challenging the Texas law). At the committee hearing introducing the bill, a committee member laughed and asked if anyone does not play the anthem; the moron sponsor said it is a "proactive" measure.

Let me offer one interesting twist on this: Could a fan kicked out of the stadium for refusing to stand make out a close-nexus argument against the team, since state law requires the anthem and thus compels the team's actions? I do not think it works because state law requires teams to play the anthem but is silent at what the team should or should not do with fans. But it offers a new way, beyond public funding, to get at teams that attempt to regulate fan expression.

Posted by Howard Wasserman on January 18, 2022 at 01:49 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, January 17, 2022

Fifth Circuit certifies to Texas Supreme Court

Over a dissent, the panel certifies the following to the Texas Supreme Court:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.

I think this is nonsense, an obvious attempt to delay resolution of the question of SB8's constitutional validity. And I agree (for once) with Slate's Mark Joseph Stern that the lower courts are trying to run out the clock until Dobbs (they hope) overrules Roe and Casey. But this delay is not keeping abortion a dead letter in the state.

Imagine everyone had not dragged their feet. The case returns to the district court, which declares SB8 invalid (Judge Pitman so held in U.S. v. Texas). Now what? The injunction would prohibit the medical boards from taking administrative actions against any plaintiff doctor or provider who performs a post-heartbeat abortion. That is the extent of the court's remedial power in that limited case. The injunction would not prohibit private individuals, who are not parties to the case, from filing SB8 lawsuits for damages. The injunction would not protect non-medical providers (who are not subject to the boards' regulatory authority) from aiding-or-abetting lawsuits. The decision would provide persuasive precedent as to SB8's constitutional validity and would move the case towards SCOTUS review on that issue. But the judgment would not enable providers to resume post-heartbeat abortions, because it would not protect them from the private suits that is the real cause of the chilling effect.

Meanwhile, three state-court actions remain pending and no one seems to be doing anything in them.

Posted by Howard Wasserman on January 17, 2022 at 07:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, January 16, 2022

The Unequal Footing Principle

In Shelby County, the Supreme Court invented the principle that the states are on an equal footing with respect to sovereignty. The authority cited by the Court for that proposition was remarkably weak. And the analysis was unsound because the ratification of the Fifteenth Amendment (the basis for the Voting Rights Act) was not done with each state on an equal footing, as some states (like Georgia) were required to ratify the Fifteenth Amendment to return to Congress.

There are other problems with Shelby County's broad reading of the equal footing principle. One is that when Congress readmitted the former Confederate States, many of them were readmitted with a statute that imposed special conditions on them with respect to voting and officeholding, including the express incorporation of Section Three of the Fourteenth Amendment. Another is that (before the Civil War) John Bingham pointed out that the 1787 Constitution does not treat all states equally with respect to slavery. Article One, Section Nine, Clause 1, which discusses the importation of enslaved people, says that "the states now existing" could permit slave importation unless and until Congress imposed a ban. Bingham argued that this excluded states added after the original 13, otherwise the provision would have just said "the states."

The 1868 Act of Congress readmitting some of the ex-Confederate states with conditions could become relevant in future litigation. 

Posted by Gerard Magliocca on January 16, 2022 at 10:13 AM | Permalink | Comments (0)

Saturday, January 15, 2022

Mark Finchem and Section Three

Mark Finchem is a state representative in Arizona. He is now running for the GOP nomination to be Arizona's Secretary of State; the official in charge of running elections. Former President Trump has endorsed Finchem's candidacy. Representative Finchem was present at the "Stop the Steal" rally on January 6th and there are allegations that was connected with some of the groups that engaged in violence on that day. He is a member of the "Oath Keepers" and recently described the 2020 election in Arizona as "rigged."

Consequently, Representative Finchem may be barred from serving as Secretary of State by Section Three of the Fourteenth Amendment. He was a state legislator on January 6th who had sworn an oath to uphold the Constitution. If he "engaged in insurrection," then Section Three bars him from serving in any state executive office. Section Three is the only federal constitutional requirement for state office.

My understanding is that any voter in Arizona may challenge the eligibility of a primary candidate for state office on the ground that he cannot lawfully hold the office for which he is running. 

Posted by Gerard Magliocca on January 15, 2022 at 09:43 PM | Permalink | Comments (0)

Some Additional Section Three Resources

I've found some additional cases and authorities on Section Three that are not in my law review article. None of them are terribly significant, but for those who are interested I thought I would just list them.

Opinion of Justices, 12 Fla. 651 (1868) (advisory opinion holding that members of the state secessionist convention were not subject to Section Three).

Hudspeth v. Garrigues, 21 La.Ann 684 (1869) (holding that a state court clerk under the Confederacy was not subject to Section Three).

Powell v. Boon, 43 Ala. 459 (1869) (mentioning Section Three in an offhand way).

Op. of the Attorney General, May 24th 1867 (defining "engaged in insurrection" as used in the Reconstruction Acts, incorporating Section Three of the proposed Fourteenth Amendment).

There's at least one more case from Kansas that I will discuss in another post.

Posted by Gerard Magliocca on January 15, 2022 at 08:42 AM | Permalink | Comments (0)

Friday, January 14, 2022

conference - Mass Torts Evolve: The Intersection of Aggregate Litigation and Bankruptcy

Related to my post below about Dopesick and the opioid litigation, Samir Parikh sends word about a symposium he is organizing for Fordham Law Review that unpacks the issues at the intersection of aggregate litigation and bankruptcy, focusing on Purdue, USA Gymnastics, Boy Scouts of America, and other prominent mass tort bankruptcies register here  -

great lineup and here's the description:


This symposium addresses the novel intersection of civil procedure and bankruptcy law.  Corporate defendants – including Purdue Pharma, Boy Scouts of America, and USA Gymnastics – facing substantial numbers of mass tort claims have filed for bankruptcy to exploit statutory loopholes and impose a new bargain on tort victims.  This interdisciplinary event will feature panels discussing bankruptcy preemption and multidistrict litigation, due process, representation issues regarding unidentified victims, settlement dynamics in complex cases, and victims’ rights.



Posted by Orly Lobel on January 14, 2022 at 08:33 PM | Permalink | Comments (4)

When laws send a message

From the Eastern District of Pennsylvania, rejecting a challenge by a group of Italian-Americans to Philadelphia changing the city's official holiday from Columbus Day to Indigenous People's Day. The court, rightly, the plaintiffs lacked standing based on the city's policy insulting Italian-Americans by declining to celebrate Columbus. I continue to believe what this really means is that the plaintiffs did not suffer a violation of their substantive constitutional rights, but the point is the same.

Reading the arguments, I  was reminded of the travel-ban cases in which plaintiffs argued for standing and a universal injunction based on the message of exclusion sent by the regulation, independent of any enforcement or action under it. I argued at the time that this is not a sufficient injury (substantive violation) and does not create the predicate for beyond-the-plaintiffs relief, because it is the enforcement of law or policy that violates rights, not the law or policy itself. This case presents the same issue. But I wonder how many people who argued for message-of-exclusive standing in 2017 disagree with this decision.

Posted by Howard Wasserman on January 14, 2022 at 05:04 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 13, 2022

Recommended: Dopesick, the Hulu series & book

If you haven't watched it, I highly recommend Hulu's limited series starring Michael Keaton, Dopesick, based on the book Dopesick: Dealers, Doctors and the Drug Company that Addicted America by Beth Macy. It tells the story of the lawsuits of over-prescription of addictive pharmaceutical drugs and the corporations and marketing schemes behind opioid crisis. It shows the pain and the magnitude of the epidemic and behind the scenes dramatization of the executive greed, the doctors who prescribed and the attorney generals who ventured to take on a privately held billion dollar pharma. There are dozens of ongoing cases and also interesting angle is the Sackler's family philanthropy (from Harvard to the Louvre to Tel Aviv U to Guggenheim) and new questions about name removal (I believe the Louvre is the first to remove their name from association with the museum). 

Posted by Orly Lobel on January 13, 2022 at 04:44 PM | Permalink | Comments (4)

Judges Participating in Cases

Before we return to more Section Three posts, I thought I'd ask a more esoteric question.

Suppose an appellate judge is part of a panel that hears a case. Before the opinion issues, though, the judge dies or retires. Then the decision is issued without her, sometimes with a notion that she heard the case but is no longer a panel member. This makes sense, in that you could say the relevant point in time is the decision rather than the argument.

Now think about a Justice who joins the Supreme Court after the start of the Term, the way Justice Barrett did. She was not part of the decisions from the cases argued that Term before she was confirmed. But she was on the Court while those cases were pending decision and when they were decided. Why, then, could she not vote on them? She could read the briefs, of course, and Justices do vote in cases where they cannot attend the oral argument due to illness. And the Court had a vacancy, so you can't say that the reason is because the Court was at full strength until she was confirmed.

The Court's custom, at least in recent years, is that a new Justice who starts after the Term begins and fills a vacant seat does not vote on or participate in the pending cases. But why? 

Posted by Gerard Magliocca on January 13, 2022 at 01:52 PM | Permalink | Comments (0)

I am officially old (corrected, still old)

A 1L in my Civ Pro class this semester is the child of a woman who took Civ Pro from me in fall 2002 at Florida State, the first time I taught the course as a VAP.

Posted by Howard Wasserman on January 13, 2022 at 10:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Zombie Laws

Has been published in Lewis & Clark Law Review. Here is the abstract. Forever grateful to Judge Costa for labeling this concept I had been thinking about.

A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes how Congress or state legislatures can eliminate or enable future enforcement of zombie laws by repealing or retaining them, depending on their views of judicial precedent and what they want to see happen with their laws in the future.

And just because all scholarship should have music attached to it:

Continue reading "Zombie Laws"

Posted by Howard Wasserman on January 13, 2022 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 12, 2022

Who Ultimately Runs "Student-Run" Law Reviews? Not Law Review Editors.

Not having read Larry Alexander's article or relevant documents describing the publication offer or agreement or editing process, I am reluctant to say too much about this specific incident. As he does, Paul Caron usefully collects varied commentary here. But it is one of a few such incidents that have come up recently, with others involving the American Indian Law Review, the Washington University Law Review, and--with a slightly different set of facts--the NYU Review of Law & Social Change. (These are the ones that have drawn publicity. There may be others. And it may or may not be that case that there have been many such incidents in the past, but that the controversy-addiction-feeding aspects of social media, and users of social media, have given these incidents more prominence than would previously have been the case.) Some of these involve what we might think of continuity and succession issues between volumes and editors. Others involve what we might think of as changes in view among some law students about what their office as editors of scholarly journals--and it is an office--involves, allows, or demands. That larger category involves a good deal more than just flashpoints around the publication of particular articles, or even public statements issued by reviews or their editors about their aims, although there have been quite a few of those in the past few years. 

I was particularly interested in a post by Michael Smith, linked to by Caron, noting and complaining about what Smith calls "the sport of attacking law review editors." I take no view on most of what Smith has to say in his post, and am not in total agreement with his complaint that professors should not criticize law review editors by name. On the whole I am sympathetic to it. I would not be inclined to do it. It seems undignified and unnecessary much more often than not. And I must acknowledge my suspicion that a good deal of the time such posts and twits, even when they have a point on the merits and about larger concerns, are carried out in a fashion that reflects the awful mixed motives that characterize so much social media activity: not just making a point, but scoring a point, or promoting oneself, or feeding unhealthy controversy, or exaggerating for political effect, and all the other things that make so much of contemporary discourse a cesspool. But some instances of naming a law review editor seem to me more about fairly reporting and documentation than outright attack. And it seems fair to note that to the extent that journals and their editors are busy making public pronouncements of their own, their expectations of privacy may diminish accordingly.

Nevertheless, I am in sympathy with Smith's basic point, beyond my concerns about undignified discourse, insofar as it reminds us that if there is a problem, it lies elsewhere. Legal scholarship, like scholarship in any discipline, is an institution. And, with very rare exceptions, it is not an independent institution. (There is at least one prominent law review that is formally independent. Even there, I don't think it should be viewed as wholly independent of the law school with which it is associated.) Given the odd fact that most law reviews in this country are student-edited, it shouldn't be an independent institution. A scholarly institution is the responsibility of the members of its discipline. That's true in general terms, but also in the more specific sense that a law review is ultimately the responsibility of its law school, that school's faculty, and the review's faculty advisor. At a minimum, if someone is going to go to the trouble of naming the editor of a law review when complaining that it has failed in its duties, scholarly or contractual, that critic should note the name of the faculty advisor and ask for comment from that person. But beyond that, ultimately a law faculty itself should step in--has an institutional and disciplinary duty to do so--if one of its journals is acting in a way that violates, ignores, or weakens scholarly norms. 

Of course what those norms are is subject to the usual contestation. But the ultimate duty to step in and at least temporarily resolve those contests belongs not with student editors, but with the larger institutions that administer the law reviews and that bear responsibility for the state of their piece of the discipline. Were it otherwise, the existence of student-edited journals would be even more absurd than it already is. No doubt that duty can and perhaps should usually be exercised lightly--not deferentially, since there is little basis for deference, but lightly. In the past, when I have been faculty advisor to a journal, I've told the editors that it's "their" volume and  that they are generally free to make their own calls about which articles to publish and about the direction in which they want their volume to go. The editors of one volume may be concerned with "national" scholarship and prestige, while the editors of another might want to place a greater emphasis on scholarship and writers focused on their own state or jurisdiction, and so on. Most of that is fine with me, although I offered advice up front and along the way. But if the editors decided they wanted to run a year of Alexandrine verse, not for any recognizably legal-scholarship-related reason but because they are keen on Alexandrine verse, I would have an obvious duty to step in and say no--and if I didn't, my colleagues and administration would.

I suspect that some potential controversies don't arise, or don't get publicity, or end up being resolved appropriately, because the faculty advisor or the law school itself steps in, quietly, either before the fact or to resolve a problem. That's as it should be. (I gather that in the case of at least one of the journals named above, that's what ultimately happened. And NYU issued a statement on its own behalf and that of the law school objecting to the NYU Review of Law & Social Change's action.) But when we are talking about the controversies that do end up arising and gathering traction, or about larger concerns about law reviews, we should certainly remember that however much autonomy we appear to give law reviews, they are not actually autonomous, and for disciplinary reasons cannot be. Ultimately, they are the responsibility of the discipline, generally through the office of the faculty advisor and in a broader sense of the law school and its faculty and administration, and beyond that of all of us. We may act or talk most of the time as if these reviews are independent and autonomous, but the buck still stops with us. It is at least possible that we should be more hands-on in our disciplinary responsibilities on this front than we currently are. Law reviews and their editors are, at least in this system, free to talk about exciting "new" visions about what legal scholarship should be and do, what positions law reviews should take (if any), and so on. (They're often not actually "new," of course.) But if we as a discipline or as individual institutions think their vision is wrong, or that they have acted wrongly or outside scholarly norms in a particular instance, it's still our job to step in and settle the matter.            

Posted by Paul Horwitz on January 12, 2022 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, January 11, 2022

State Ballot Eligibility Regulation

Derek Muller has a post arguing that states lack the authority to enforce federal constitutional eligibility requirements against federal congressional candidates. He says this means that 15-year olds can, say, run for the Senate even though they are obviously ineligible. Only Congress can (if such a person wins) exclude them from office.

There are several problems with this argument. But one is that I don't think this tracks actual practice. I once represented a woman who was excluded from the ballot for the House of Representatives because she was too young. (Basically, I made Muller's argument and lost.) I find it hard to believe that I'm only person to ever have had such a case. States also commonly require candidates for Congress to swear that they are eligible to serve, citing the Federal Constitution. If you don't complete the form, you can't run.

If Muller's argument were correct, I would also tend to think that all least one state would have a similar rule for state legislative elections. Many state constitutions just copied the Qualifications Clause in Article One, Section Five. I do not know of any state that reads this clause to say that state election officials are disabled from enforcing state constitutional eligibility requirements on legislative candidates. (But on this point I'm happy to be corrected if I'm wrong.)



Posted by Gerard Magliocca on January 11, 2022 at 09:46 PM | Permalink | Comments (0)

Monday, January 10, 2022

JOTWELL: Kalajdzic on Freer on class actions in the Roberts Court

The new Courts Law essay comes from Jasminka Kalakdzic (Windsor), reviewing Richard D. Freer, The Roberts and Class Litigation: Revolution, Evolution, and Work to Be Done, 51 Stetson L. Rev. (forthcoming 2022).

(Freer's article is part of a symposium on procedure in the Roberts Court after 15 years; my piece on the Year-End Reports is part of the issue, which arose from a 2020 SEALS discussion group).

Posted by Howard Wasserman on January 10, 2022 at 11:14 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)