Monday, November 19, 2018
SCOTUSBlog Preview: First Amendment retaliatory arrests
I have a SCOTUSBlog preview of Nieves v. Bartlett (to be argued November 26), considering whether a plaintiff seeking damages for a First Amendment retaliatory arrest must show absence of probable cause. The Court last term punted on the question in Lozman v. City of Riviera Beach, because the case involved a retaliatory municipal policy, not only one officer's single retaliatory decision
I describe this as a sneaky-important case, because it involves a collision of two Roberts Court commitments--protecting First Amendment rights and immunizing law enforcement from damages suit and liability. The last part of the petitioner's brief downplays the constitutional importance of talking back to, challenging, criticizing, or insulting police officers performing official functions, insisting it is not speech on matters of public concern that should be protected against retaliatory motives; this eliminates the need for damages liability to vindicate that speech. The brief also argues that police departments will discipline rogue officers who engage in retaliatory arrests, especially in an age of body cameras and citizen video, when departments are more committed to internal accountability. The second point is laughable as an empirical matter. The first is correct on free-speech principle only if the First Amendment does not extend to the rough-and-tumble of ugly public protest or if police officers, the public officials with whom the public has the most direct contact, are above rhetorical challenge and criticism. But both are ideas I could see this Court majority buying, with the second commitment prevailing over the first.
Posted by Howard Wasserman on November 19, 2018 at 03:02 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)
Sunday, November 18, 2018
The limits of Spiderman
Ilya Somin has an interesting post wielding the Spiderman Principle--"With great power comes greats responsibility"--to argue against judicial deference to the executive and supposed executive expertise in those areas, such as immigration and national security, in which the executive is believed to have the greatest power. Under the Spiderman Principle, the fact that executive power is so great in these areas requires greater judicial scrutiny and greater justification from the executive, to ensure that this power is used responsibly and not abused.
I agree with Ilya that excessive judicial deference is a problem. But it seems to me the Spiderman Principle does not get us very far, because it cuts both ways. The courts would argue that deference and referral to expertise is compelled by the Spiderman Principle--it is how they bring some responsibility to temper the exercise of their great power to declare invalid the executive's conduct.
Posted by Howard Wasserman on November 18, 2018 at 10:32 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)
Saturday, November 17, 2018
What sovereign immunity has wrought (Update)
Steve writes at SCOTUSBlog about a motion in a pending cert case asking the Court to decide on the validity of Matthew Whitaker's appointment as AG, in order to figure out who should be substituted (for Jeff Sessions) as respondent in the petition. This is happening while lower courts consider the validity of the Whitaker appointment in more substantive contexts. (Gerard Magliocca believes that a Court order compelling briefing will compel Whitaker to withdraw or compel the President to nominate a new AG).
This is another example of how much time is wasted by sovereign immunity, rather than being honest about the fact that the government, and not any individual officer, is the real defendant in a challenge to a constitutionally invalid law.
Update: There is a discussion on the Civ Pro/Fed Courts Prof listserv about why plaintiffs ever sue the officer by name rather than office. FRCP 17(d) provides that "A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer's name be added," so it is permissible to sue the title. And since an EPY action is against the officer in his official capacity, it is against the office/title, so we end up in the same place. This gets me to my original point--if we just sued the office (and thus the U.S.), it would remain more straight-forward.
Posted by Howard Wasserman on November 17, 2018 at 03:15 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)
Friday, November 16, 2018
White House must return Acosta credentials
According to news reports, District Judge Timothy Kelly ruled from the bench, granting a TRO based on the failure to provide process, without reaching the First Amendment question.
It will be interesting to see if the White House appeals. Although the order was styled as a TRO, the court would treat it as an appealable preliminary injunction should the government choose to appeal. But the court never reached whether the First Amendment in any way limits control over press access. And the due process focus means that, in theory, the White House and Secret Service could give him process tomorrow and reach the same decision. There is a motive to return the credential and let the litigation play out in the district court first.
Update: Garrett Epps (Baltimore) at The Atlantic ties Kelly's decision to the unsung decision in Island Trees v. Pico, in which SCOTUS held that the school district had unfettered power to select books to place on the shelves, but the First Amendment imposed limits on the district removing books already placed (based on objections to content. I highlighted Pico as an important example of why Brennan was the heir to Holmes in protecting free speech, although a decision that gained little traction, including in debates over internet filters in libraries. I agree with Garrett that it would be nice to see a revival of the decision, including in a new context.
Posted by Howard Wasserman on November 16, 2018 at 10:48 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)
Thursday, November 15, 2018
The Cambridge Handbook of the Law of the Sharing Economy
I am excited to announce the publication of The Cambridge Handbook of the Law of the Sharing Economy edited by , Fordham Law School, , University of Oxford , , Suffolk University School of Law. Here is the description of the book from Cambridge Press:
This Handbook grapples conceptually and practically with what the sharing economy - which includes entities ranging from large for-profit firms like Airbnb, Uber, Lyft, Taskrabbit, and Upwork to smaller, non-profit collaborative initiatives - means for law, and how law, in turn, is shaping critical aspects of the sharing economy. Featuring a diverse set of contributors from many academic disciplines and countries, the book compiles the most important, up-to-date research on the regulation of the sharing economy. The first part surveys the nature of the sharing economy, explores the central challenge of balancing innovation and regulatory concerns, and examines the institutions confronting these regulatory challenges, and the second part turns to a series of specific regulatory domains, including labor and employment law, consumer protection, tax, and civil rights. This groundbreaking work should be read by anyone interested in the dynamic relationship between law and the sharing economy.
The book has a great number of insightful chapters by leading scholars in their fields on questions ranging from competition law to zoning and the geography of platforms and new business models, the law and economics of new digital platforms - my chapter is called Coase and the Sharing Economy - and questions about employment, trust, safety, consumer choice, and democratic decision-making.
Posted by Orly Lobel on November 15, 2018 at 05:51 PM | Permalink | Comments (0)
Wednesday, November 14, 2018
Hastie Fellowship Call for Applications
From the University of Wisconsin Law School:
Posted by Sarah Lawsky on November 14, 2018 at 02:16 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Monday, November 12, 2018
C.J. Cregg = Sarah Sanders (Updated)
Attorney David Lurie argues in Slate that CNN should sue the Secret Service over revocation of reporter Jim Acosta's press credentials. He argues that CNN has a good case. D.C. Circuit precedent holds that reporters must receive process in the denial or revocation of credentials and that the basis for revocation cannot be that the reporter criticized the President or anyone else in the White House. And the President admitted that Acosta's credentials were revoked because he did not treat the presidency with "respect" and that he might do the same to other reporters.
Update: CNN and Acosta, represented by Gibson Dunn, has filed suit, claiming violations of the First and Fifth Amendments and the APA; named defendants are Trump, Kelly, Sanders, William Shine (Deputy Chief of Staff, the Secret Service, and the head of the Secret Service.
The incident brought to mind S3E4 of The West Wing, titled "On the Day Before." Press secretary C.J. Cregg gets pissed at a reporter who inaccurately reported on something that C.J. had done. C.J. tells the reporter that she is having the reporter's credentials revoked and that the reporter must call C.J.'s office every day so C.J. can decide if the reporter will be allowed into the press room. And this was played with C.J. as the hero, standing up and justly sanctioning the vapid, dishonest, and unethical reporter.
This is another illustration of Aaron Sorkin writing the Trump Administration in the Bartlet Administration, with much of the behavior and norm-breaking that we have seen the past two years; the difference is that Sorkin's characters did it in service of a liberal Democratic agenda, while the Trump Administration has done it in service of a very different agenda. There is no difference between Trump and Sarah Sanders stripping Acosta of his credential and C.J. doing the same to that fictional reporter--both are mad because the reporter treated them unfairly.
Posted by Howard Wasserman on November 12, 2018 at 08:44 PM in Culture, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (7)
Friday, November 09, 2018
Teaching Con Law in the Current Moment
I'm starting to plan ahead for next semester, and would love to hear what other Con Law professors are doing in terms of folding the issues of the current moment--e.g., the Emoluments Clause, birthright citizenship, the ability to subpoena the president, executive privilege, the authority of the special counsel, appointment and removal power, the census--into their classes. I've always given some extra time to current issues, but in the past, it's been easier because they were natural outgrowths of the bread-and-butter 1L Con Law subjects (for example, both NFIB v. Sebelius and Obergefell build perfectly on Commerce Clause, Tenth Amendment, and Equal Protection doctrine). I'm finding several of the current topics more challenging to integrate into the syllabus since they are more specialized and there's not necessarily much case law (yet). To what extent are all of you generally sticking with your regular syllabi, versus significantly re-doing them in order to build these topics in? If the latter, what are the topics that you're dropping to make room for them?
Posted by Emily Gold Waldman on November 9, 2018 at 05:01 PM | Permalink | Comments (15)