Saturday, December 04, 2021
Will Federalism (and Conflicts of Law Doctrine) Deregulate Abortion?
Over the last three decades, commentators have provided both skeptical and optimistic assessments about whether and how federal decentralization might cope with abortion were Roe-Casey to be reversed. The optimistic view is that Roe-Casey’s reversal would promote pluralism by allowing each state to go its own way on a divisive topic, thereby reducing political polarization and gridlock at the national level. The pessimistic take comes mostly from law profs familiar with the train wreck known as conflicts of law “doctrine.” In a post-Roe/Casey world, women in anti-abortion states would have to migrate to pro-choice jurisdictions in order to take advantage of less restrictive abortion laws, but conflicts of law doctrine does not define plainly which state law ought to govern such interstate transactions. State legislatures seeking to end abortion will attempt to extend their bans into pro-choice states, perhaps by penalizing those who facilitate interstate migration or by bringing criminal actions against women upon their departures from, or return to, their states of domicile. The resulting controversies over which state’s laws should apply will simply reproduce the divisiveness of Roe/Casey, especially if judicial measurements of rival state’s interest in regulating abortion turn on assessments of the value of fetal/unborn infant life. In the words of then-2L Will Baude back in 2006, “state regulation will make a complex legal matter even more complicated, and the divisions over abortion that much wider.” (For the extended scholarly version of this take, read Seth Kreimer’s classic 1992 article, The Law of Choice and Choice of Law. And, if you are not sated by Baude and Kreimer, Dick Fallon’s 2007 essay, If Roe Were Overruled, provides another similarly sober assessment).
In my view, both the optimistic and pessimistic predictions about a post-Roe/Casey world are likely mistaken. Federal decentralization will not produce a diversity of different states’ responses to abortion but rather a fairly uniform policy of de-regulation. Put bluntly, in a world of federalism-based interstate migration, deregulatory states will always have the advantage, in the same way that pro-plaintiff states win the forum-shopping war in torts. But the pessimists are also mistaken in thinking that, because conflicts of law doctrine is a mess, the question of which state’s law to apply will be messy.
My prediction is that, to the contrary, state legislatures, courts, and Congress will all gravitate towards a fairly crude “territorial” rule that enforces the law of the place where the abortion was performed, a rule that insures nationwide victory for pro-choice states. My reasoning, explained in more detail after the jump, is rooted more in politics than doctrine — to be precise, the politics of case captions. No politician, even one clad in black robes, wants to put an abortion-seeking woman on one side of the “v.” in a criminal case. The great political advantage that anti-abortion legislators have enjoyed since Roe was decided is that there have been few Roes as parties: Abortion clinics (often Planned Parenthood) have instead appeared in the captions. Roe-Casey’s reversal will end that political advantage, because the domicile of the migrating woman will be the most likely legally available basis for applying the restrictive abortion laws of a regulating state to an out-of-state transaction. Anti-abortion politicians will find it politically unpalatable, however, to drag women rather than abortion clinics into courtrooms, so they will shrink from using the only regulatory tools left open to them by interstate migration. The result will be that anti-abortion laws fall into practical desuetude by foot-voting women escaping such restrictions with bus tickets rather than lawsuits.
Continue reading "Will Federalism (and Conflicts of Law Doctrine) Deregulate Abortion?"
Posted by Rick Hills on December 4, 2021 at 01:44 PM | Permalink | Comments (0)
Tushnet on pet peeves in legal scholarship
Co-sign. Some colleagues were having a discussion about the practice in non-law disciplines of reading one's paper.
Posted by Howard Wasserman on December 4, 2021 at 11:17 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Friday, December 03, 2021
Associate Deans for Research at Law Schools
A decade ago, I was the Associate Dean for Research at my law school. I'm curious, as part of a report that I'm writing, what Associate Deans for Research at other law schools do for their faculty beyond providing informal mentoring and advice. I would be much obliged to hear from any of you who currently serve in that role to tell me what you do for your colleagues.
Posted by Gerard Magliocca on December 3, 2021 at 09:20 PM | Permalink | Comments (0)
Now what with SB8?
As Gerard and I wrote, it is not clear why the Court took the SB8 cases, much less on an expedited schedule, or why they would bother deciding them now.
New and deeply cynical take, courtesy of my co-author: The Court overrules Roe and holds in SB8 that states cannot insulate laws from offensive constitutional challenges, allowing claims against clerks, judges, or whomever. Note where that leaves us. The fetal-heartbeat law is likely valid (depending on how much the Court overrules Roe--whether rejecting viability as a line or eliminating all constitutional protection for reproductive freedom), so no harm in allowing those offensive cases to proceed in federal court, as they fail on the merits. But the Court protects the rights the majority cares about--guns, religious freedom--from similar laws channeling constitutional litigation onto defense.
Posted by Howard Wasserman on December 3, 2021 at 11:27 AM in Civil Procedure, Constitutional thoughts | Permalink | Comments (0)
JOTWELL: Bookman on Summers on eviction court
The new Courts Law essay comes from Pamela Bookman (Fordam) reviewing Nicole Summers, Civil Probation, on the absurd procedure in eviction court.
Posted by Howard Wasserman on December 3, 2021 at 11:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)
I say obnoxious things so I have standing
A Connecticut law prohibits ridiculing or holding people or groups up to contempt on account of creed, religion, color, etc. Although the law is limited to advertisements, it has been applied in other situations. Eugene Volokh explains why the law violates the First Amendment. One infamous recent case occurred in late 2019/early 2020, when two U Conn students were prosecuted for shouting racial epithets in the air; that charge was dismissed. The attorney for one of those students, Mario Cerame, filed suit last month, asking the court to declare the law violates the First Amendment.
How does Cerame have standing for this offensive pre-enforcement suit? A plaintiff must show that he intends to engage in constitutionally protected conduct that is proscribed by law and that there is a credible threat of enforcement against the plaintiff. Check out ¶¶ 13-18: Cerame alleges that he regularly ridicules Italian-Americans (he is Italian-American), Scientologists, and other racial or religious groups, and he retells jokes and shares video clips of comedians. He also alleges that he speaks, trains, and works on free-speech issues and and in doing so "uses words that are not uttered in polite company." In other words, "I like to say obnoxious things in my personal and professional life, therefore I reasonably fear prosecution under the law."
This is an interesting theory, although I am not sure it works. "I like to do X, have done X in the past, and plan on doing X in general terms at some indefinite point in the future" is usually not sufficiently specific or concrete. Much of the obnoxious speech he describes occurs in his personal life or with his "closest and dearest friends," so is unlikely to be prosecuted. He may have a better shot with the argument that his professional free-speech work has him using the bad words involved in free-speech controversies. A few district courts have accepted this standing theory in challenges to new anti-harassment/anti-discrimination bar rules. The theory makes sense with a bar rule--"I use these words in my work and am worried that the Bar may come after me;" it seems less of a credible gthreat that the government would pursue criminal charges against a lawyer for his professional work. Courts are forgiving of standing in First Amendment cases, but I do not know if it goes that far.
Cerame has never had the law enforced against him despite past ridicule of Italian Scientologists and posting of Dave Chappelle videos, which pulls him out of SBA. The next question is whether the pattern of charges being brought against others shows that Cerame's is the type of speech targeted; Eugene has written about recent enforcement. The one I know about is that UConn case--two students shouting racist epithets in the middle of campus (not at any person), where they were heard by people in surrounding buildings--which seems far afield from Cerame's speech. That the charges in the UConn case were dismissed raises an interesting question of what we mean by credible threat of enforcement for standing purposes. Does "enforcement" mean arrested or charges brought or does it mean prosecution? If charges are brought and dropped, has the law been "enforced" as to make future enforcement substantially likely?
Posted by Howard Wasserman on December 3, 2021 at 07:11 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, December 02, 2021
Books Never Feel Real Until . . .
there is a cover.
Posted by Gerard Magliocca on December 2, 2021 at 10:25 PM | Permalink | Comments (0)
“Liquidation” vs. Stare Decisis in Dobbs: The Incoherence of Madison’s Theory of Precedent
I might be one of the few people whose views on precedent are more confidently felt than their views on abortion. I find the latter topic agonizingly difficult. On the former topic, however, I have this strong view: Madison’s theory of precedent, articulated most famously in his June 1831 letter to Ingersoll, is incoherent.
That theory maintains that, when some interpretation of a constitutional ambiguity is endorsed by “the uniform sanction of successive Legislative bodies, through a period of years and under the varied ascendancy of parties,” then that interpretation forms a binding precedent that settles the constitutional dispute. As I argue after the jump, this Madisonian theory requires the assumption of stable “parties” whose joint decisions virtually represent later generations who were not members of such parties. But “parties” are always in flux, as their constituents and platforms shift. The fact that Democratic Republicans of the Henry Clay-Calhoun stripe ratified the Bank of the United States prior to 1816 says little about the views of Jacksonian Democrats post-1832, because the latter simply did not exist as an organized political force during the Era of Good Feelings. Likewise, the ratification of Roe-Casey by Business Republicans on the Burger and Rehnquist Courts says little about the views of New Right GOP voters who despised the GOP Business Establishment.
The failure of Madison’s theory of “liquidation” (to use his term for the clarification of constitutional ambiguities by precedent) points to a deeper problem with every theory of constitutional settlement that relies on popular consensus to resolve contentious disputes: “The People,” as a statistically significant, demographically stable, inter-generational entity, rarely exists and, therefore, seldom have settled views on the sorts of questions that “the People” are asked to resolve.
Posted by Rick Hills on December 2, 2021 at 02:25 PM | Permalink | Comments (19)
Graded assignments
In Fed Courts and Civil Rights, most grading is based on a written assignment and oral arguments as SCOTUS reviewing lower courts. Each student argues one case, serves as justice for one case, and writes an opinion on one case. From a list of cases, I assign each student the case to argue and the case to judge; they choose their third case from the remainder of the list.
First problem: More than 1/3 of the class--13/30--wrote on the same case (standing to challenge North Carolina's 20-week abortion ban). Part of the reason for doing it this way (rather than giving an exam) is not having to read multiple versions of the same answer; this undermines that. Is this a problem and is there anything I can or should do about it?
Second problem: Two students reversed the lower court; everyone else affirmed. Even when the political valence of the lower court went against what I imagine would be students' preferences (e.g., finding moot a challenge to a limit on absentee voting). And even when the lower court included a strong dissent. Part of me thinks it is easier to affirm (the starting point for the analysis is there). The alternative is to require the authors to reverse, but that makes the assignment too difficult (and gives an edge to those working with cases that have dissents). Again, is this a problem and is there anything I can or should do about it?
Posted by Howard Wasserman on December 2, 2021 at 02:10 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)
Wednesday, December 01, 2021
Ontario Buzzing - Talent Wants to be Free in More than One Way
Ontario’s newest buzzy legislation, just passed yesterday – it (mostly) bans noncompete clauses. It also, like the recent European reforms, requires employers to let employees disconnect after the workplace (no late-night emails). The act is called Working for Workers and it passed with all-party suppor:
https://news.ontario.ca/en/backgrounder/1001032/working-for-workers-act-2021
The right to disconnect is spreading and will fascinating to watch how it unfolds especially given how connected, and how we are working more and more remotely, we all are.
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Posted by Orly Lobel on December 1, 2021 at 04:58 PM | Permalink | Comments (0)
What Was the Point of Hearing the S.B. 8 Case?
Now that Dobbs is submitted, I don't see why the Court would decide the S.B. case at all. An opinion on S.B. 8 prior to Dobbs would probably be confusing. Once Dobbs comes out, though, they can just remand the S.B. 8 case in light of Dobbs.
Posted by Gerard Magliocca on December 1, 2021 at 02:56 PM | Permalink | Comments (0)
Tuesday, November 30, 2021
Random law stuff
Nothing hold these together other than law and personal interest:
• Pennsylvania is seeking cert in the Cosby case. I wrote in July that the case offered some nice independent-and-adequate issues. The state court cited both state and federal cases and it is not entirely clear whether the grounds for decision was the 14th Amendment or its state counterparts. I still do not think the Court will touch it, but I expect some briefing on the I-and-A issues.
• NBA player Enes Kanter Freedom, who has run into problems for his opposition to the current Turkish government, appeared on Tucker Carlson to tell Americans to "keep their mouth shut and stop criticizing the greatest nation in the world and they should focus on their freedoms and their human rights and democracy." So two bits of irony, if not chutzpah. First, is the difficulty of focusing on freedoms and democracy by declining to exercise the most basic freedom and the one most central to democracy. Popehat compared this to the view that freedom is like your grandmother's slip-covered sofa--not actually to be used. Second, it appears Carlson does not believe all basketball players should shut-up and dribble--some are allowed to speak out on public issues; guess which athletes and which issues.
• Any journalist not named Chris Cuomo would at least be suspended, if not summarily fired. If, as I expect, he screams "cancel culture," we will know that the term has lost whatever minimal meaning it had (and it already had none). Because it will be wielded to defend professional misconduct--breaking the ethical rules and employment agreements that guide the profession.
Posted by Howard Wasserman on November 30, 2021 at 09:06 AM in Howard Wasserman | Permalink | Comments (0)
Monday, November 29, 2021
Who's Afraid of Gradualism in Dobbs?
The Supreme Court may be poised to overrule Roe v. Wade and eliminate all constitutional abortion rights. That sweeping result is teed up in Dobbs v. Jackson Women’s Health Organization, a case to be argued on Wednesday. Yet whether to overrule nearly 50 years of precedent is not a question that the Court is prepared to answer. Even though both parties and many observers are eager for a final reckoning with abortion rights, both the public and the Court itself would be far better served by a more gradual, judicious approach.
Continue reading "Who's Afraid of Gradualism in Dobbs?"
Posted by Richard M. Re on November 29, 2021 at 11:00 AM | Permalink | Comments (16)
Still no SB8
Weird. With each passing day, the logic of cert before judgment (which required four votes) and expedited review (which required five, I believe) fades. It makes no sense to rush the case, then decide it in the ordinary stream of the Term.
New cynical take: The Court releases the decision on Wednesday morning, prior to the Dobbs argument, allowing WWH to proceed. That "victory" for reproductive freedom pulls public attention off Dobbs, which will contain numerous hints that Roe/Casey are not long for this jurisprudential world.
Posted by Howard Wasserman on November 29, 2021 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Sunday, November 28, 2021
More on the preferred first speaker and the futility of "conversations"
The First Amendment presumes a model of "reasoned debate" in which parties hash out ideas through reasoned and civil discourse. That does not reflect practice, because of what I have described (borrowing Popehat's phrase) as the problem of the "preferred first speaker," in which an initial speaker has unfettered discretion to speak however he wishes, while the burden of civility rests on counter-speakers to "sit quietly, listen to what he says, perhaps ask a question or make a comment during Q&A" if the preferred speaker deigns to engage with them.
Case in point is comedian Dave Chappelle's visit to his former performing-arts high school, ostensibly to meet and engage with supporters and critics. According to reports (there is no video or audio, since everyone was told to lock their phones in magnetic pouches), there was not much "discussion" to be had. One student stepped to the microphone and said "I’m 16 and I think you’re childish, you handled it like a child." Another asked a question described as "antagonistic." Another walked out. Chappelle's responses were varying degrees of mocking or dismissive--"My friend, with all due respect, I don’t believe you could make one of the decisions I have to make on a given day;" "I’m better than every instrumentalist, artist, no matter what art you do in this school, right now, I’m better than all of you. I’m sure that will change. I’m sure you’ll be household names soon.” The student who left "couldn’t even entertain the idea of a conversation."
This is the essence of the preferred first speaker. Chappelle said what he wanted to say in his show and perhaps in his opening comments at this assembly; people complained about some of the things he said in the show; and his response was to refuse to engage with their criticism beyond, essentially, you have no idea what you're talking about. Perhaps the exiting student did not want to entertain a conversation, but it does not appear Chappelle did, either, beyond "shut up." Of course, only the responders, not the preferred first speaker, are expected to engage in that conversation.
(Note: My discussion is based on these news reports, which are based on interviews with unnamed student attendees. Perhaps it went down much differently and perhaps Chappelle engaged more, in which case kudos to him. Chappelle had a camera crew with him, so maybe we will see footage in the future).
Posted by Howard Wasserman on November 28, 2021 at 03:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)