Monday, July 11, 2022
The limits of swearing cheerleaders and an obviouly hollow victory
Free speech folks were watching this Tenth Circuit case, arising from the expulsion of a high school student for a private, out-of-school Snapchat post saying "Me and the boys bout to exterminate the Jews" with a photo of them wearing WW-II-era foreign military hats. In other words, it raised the open question from Mahanoy--out-of-school online speech not about school but raising concerns for in-school bullying, harassment, threats, and discrimination. The court reversed the grant of a 12(b)(6), holding that Mahanoy applies, the school did not have an interest in regulating this speech (despite its content), and there was no showing of substantial disruption. Good all around-and perhaps a hint that lower courts will follow Mahanoy to a sharper in-school/out-of-school line.
But the court remanded for consideration of qualified immunity, which will almost certainly be granted. The events underlying this case occurred in 2019, two years prior to Mahanoy and during a period in which courts allowed schools greater power to reach out-of-school speech that found its way into school and that could be perceived as threatening or discriminatory. Certainly there is no SCOTUS or Tenth Circuit precedent establishing that similar speech cannot be punished. So this is a small victory for the plaintiff that will not last long.
Posted by Howard Wasserman on July 11, 2022 at 02:06 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Florida Anti-Woke lawsuit proceeds, standing is weird
The district court denied (mostly) a motion to dismiss for lack of standing, finding most plaintiffs had pleaded (just barely) enough facts. In particular, the court allowed the claims by a University of Central Florida professor to proceed, rejecting the argument that profs speak as the government when teaching and so lack First Amendment for their classroom speech. (For the moment--the court acknowledged that its conclusion rested on 11th Circuit precedent that may not be long for this world). This decision comes on the heels of the district court denying preliminary injunctions as to most plaintiffs because they lack standing.
This just proves the insanity of treating standing as a jurisdictional doctrine independent of merits. If it is truly a jurisdictional issue, it must be proven by evidence, not based on the pleadings. Moreover, in denying the PI, the court decided that plaintiffs had not shown (through evidence beyond the pleadings) standing. It should not matter that plaintiffs have (barely) pleaded it if the court said they cannot prove it. For example, the court denied dismissal of the rising kindergartner's claim, even though it previously said the kindergartner had not shown an injury because the kindergarten curriculum did not include any statutorily proscribed material.
Posted by Howard Wasserman on July 11, 2022 at 01:00 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Friday, July 08, 2022
Faculty Hiring: University of Alabama
The University of Alabama School of Law seeks to fill up to two tenured/tenure-track positions for the 2023-24 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. The primary focus of these positions is in Environmental Law (including Regulatory Compliance) and Civil Procedure (with the possibility of also teaching Evidence); however, qualified applicants in other areas may be considered. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.
Continue reading "Faculty Hiring: University of Alabama"
Posted by Howard Wasserman on July 8, 2022 at 06:27 PM in Teaching Law | Permalink | Comments (0)
What is the right time and place?
A group of protesters congregated outside of a Morton's Steakhouse in D.C. where Justice Kavanaugh was eating dinner, causing him to leave through the rear of the restaurant. Morton's issue the following:
Honorable Supreme Court Justice Kavanaugh and all of our other patrons at the restaurant were unduly harassed by unruly protestors while eating dinner at our Morton’s restaurant. Politics, regardless of your side or views, should not trample the freedom at play of the right to congregate and eat dinner. There is a time and place for everything. Disturbing the dinner of all of our customers was an act of selfishness and void of decency.
First, I just checked the Constitution and the right to peaceably assemble is followed by "petition their government for redress of grievances," not to "eat dinner." Maybe dinner is well-grounded in tradition and history as an unenumerated right, although the move of "dinner" to early evening was more of an early-19th-century development.
Second, other than chanting and making, the statement does not say how the protesters were "unruly" or "unduly harass[ing]."* The Politico story says protesters called the restaurant and urged the manager to kick Kavanaugh out. But that would have bothered the restaurant manager, not Kavanaugh or another diner. It does not appear the protesters entered the restaurant or went anywhere they were not legally entitled to be.
[*] And would it be ok if the protesters had "duly harassed" Kavanaugh and customers? Does Morton's believe there is some appropriate and permissible level of harassment? Good to know.
Third, what is the "time and place for" protesting public officials? (Or to paraphrase Hillel--if not now, when; if not here, where?). The home is off-limits; non-official public outings are off-limits; the front of the Court was declared (by the Court) not to be a public forum; and there is fencing around the Court's grounds, denying anyone close access to where he works. So where is the appropriate time and place to assemble and protest a powerful government official?
Posted by Howard Wasserman on July 8, 2022 at 01:51 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)
Wednesday, July 06, 2022
Mass Resignations As A Check on Executive Authority
The implosion of Boris Johnson's Government in the past day is quite extraordinary. (If you missed the debate in the House of Commons or the parliamentary committee hearing today, spend some time to watch.) At one level you could view this situation as an example of the superiority of the unwritten British Constitution. There you can easily get rid of a bad Prime Minister without an election. The United States is almost always stuck with a bad President until his term expires.
But today's events prompt another thought. In recent years we see more instances in which resignations or the threat of mass resignations operates as a more effective check on executive power than the formal mechanisms. The recent testimony before the January 6th committee explained that the threat of such resignations blocked President Trump's idea of replacing the Acting Attorney General right before the insurrection. Back during Bush 43's Administration, the threat of mass resignations from the DOJ convinced the President to change course on aspects of his counter-terrorism policy. And there's the Saturday Night Massacre.
Scholars need to pay more attention to this new unwritten constitutional mechanism.
Posted by Gerard Magliocca on July 6, 2022 at 12:24 PM | Permalink | Comments (0)
Overruling by Ignoring
There’s been a lot of talk lately about SCOTUS’s practice of overruling precedents by first ignoring them and then declaring them bad law. The discussion was sparked by the Court’s recent declaration that it had “abandoned” the Lemon test, with other actual or anticipated examples including Chevron, Casey on stare decisis, and Korematsu. Tendencies to ignore or evade case law might be likened to patterns of gradual precedential erosion, involving cases like Bivens, Flast, and Miranda.
Most of the commentary on overruling-by-ignoring has been critical, but I’m not sure that that negativity is warranted. Like one-last-chance decisions and other forms of judicial gradualism, overruling-by-ignoring has a lot to be said for it. In an essay focused on Teague’s watershed exception, I defended these “fait accompli overrulings”:
[D]oes the Court illegitimately evade stare decisis by declaring that an overruling has already occurred, even though no prior decision had so declared? [T]he stare decisis analysis can be regarded as “disciplining.” Yet that discipline is avoided through overruling as a fait accompli. Surely, one might think, a stare decisis analysis is called for at some point in a precedent’s demise. The “retaining no vitality” line [in Edwards v. Vannoy] could even be viewed as a bad-faith strategy for undermining precedent.
But . . . the situation is more complicated. The problem with fait accompli overrulings is especially severe if we imagine that the earlier ruling was undertaken with the follow-through in mind. But it’s possible, even likely, that the earlier ruling wanted to create a period of precedential tension, rather than knowing precisely how things would be resolved. If experience turned out to favor the later ruling over the earlier one, then the case for overruling would have been made. And if not, then not. The case for good faith grows still stronger if many years—and judicial appointments—lie between the practical and formal overrulings.
We can better see both the appeal and the distinctiveness of fait accompli overrulings by placing them in historical perspective. To a great extent, these rulings harken back to an earlier era, when precedential principles were not made but found. Today, lawyers often assume that a case loses precedential value only if and when a court-as-legislature formally declares it to be repealed or “overruled.” But, at common law, a judicial decision could be set aside for already being odds with the custom or practice of the courts in general. Experience, one might say, can gradually reveal a once venerable precedent’s error. Similar logic may explain the Court’s recourse to “the court of history” in disavowing Korematsu, even though that precedent had never been formally overruled.
All this to say that overruling by fait accompli . . . is at least plausible and possibly even preferable to legislative overruling pursuant to the stare decisis factors. In general, showing that a case has gone by the wayside is harder, calling for greater judicial patience and humility, than simply running through a four-part, one-and-done rubric. So a pattern of erosion or evasion would seem to qualify as a basis for overcoming stare decisis. To harmonize this conclusion with extant doctrine, such a pattern might be treated as a “special factor” within the stare decisis analysis.
Let me add two comments.
First, the propriety of a fait accompli overruling may depend on just what the Court has done to erode or evade. In general, these overrulings are most justifiable when the Court has suggested that the original precedent can be fully discarded—and least justifiable when the Court has insisted that the core of the beleaguered precedent abides. The logic here is simple. Intimations of a precedent’s impending demise provide heightened notice of what is to come, whereas reassurances that the precedent survives could invite new or ongoing reliance.
Second, lower courts do and should play a dynamic role during periods of “precedential tension.” Like other observers, savvy lower-court judges are well aware of cases that seem never to gain traction with the justices. That sort of pattern can even be viewed as a “signal” inviting the precedent’s “narrowing from below.” So, when precedents remain in force but are clouded by doubt, lower courts often make appropriate adjustments. And those experiments can helpfully inform SCOTUS’s ultimate decision to overrule.
The bottom line: if the Court is being too cavalier with precedent, then fait accompli overrulings likely have more to do with the solution than the problem.
Cross-posted from Re's Judicata.
Posted by Richard M. Re on July 6, 2022 at 11:00 AM | Permalink | Comments (4)