Wednesday, September 22, 2021

Florida sinks to Texas' level

Florida Rep. Webster Barnaby (besides vying for most Southern name imaginable) has introduced the Florida Heartbeat Act, a carbon copy of SB8--ban on post-heartbeat abortions, no public enforcement, private civil action by "a person" against providers. No surprise, either that there is a copycat or that Florida would be the first copycat. Given how quickly this is going to fall apart, one wonders if it is worth the bother. But Ron DeSantis needs something else to run on. And maybe a few months of stopped abortions, until the wheels fall off, is sufficient.

It will pass next year, take effect in July 1, 2022, and we will be back where we are. My guess is that rather than wasting time on offensive litigation, providers will be quicker to set-up the defensive test case: Perform the abortion on July 2, find a friendly plaintiff on July 3, and off we go.

Posted by Howard Wasserman on September 22, 2021 at 07:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The truth of SB8

The Times reports on the two SB8 lawsuits, including a quotation from Supreme Court litigator Paul Smith that defensive litigation is the "nicest, cleanest way" to get to SCOTUS, which is what we have been arguing from the start. This is not speedy or comprehensive. But no litigation is, in fact, comprehensive in the sense of one case prohibiting all enforcement. And defensive litigation avoids having to endure the Fed Courts seminar that offensive litigation requires.

I was struck by this bit of honesty from anti-choice activists in Texas:

These out-of-state suits are not what the bill is intended for,” said Chelsey Youman, the Texas state director and national legislative adviser for Human Coalition, an anti-abortion group that said it had no plans to file a lawsuit against the physician, Dr. Alan Braid, or to encourage others to do so.

“The goal is to save as many lives as possible, and the law is working,” Ms. Youman said, adding that the notion behind the law was that the mere threat of liability would be so intimidating that providers would simply comply.

The complaints about the lawsuits being "plants" or about Braid inviting the lawsuits is nonsense. Activists do not get to control who avails themselves of a legal right they advocated for. They drafted the statute to allow "any person," without limiting "any person" to those that share their policy goals or positions.

I do wonder what to make of the idea of enacting a law with no intention of enforcing it, hoping that the chilling effect of the risk of enforcement will be sufficient to stop the disfavored conduct, without actual enforcement. Is that a legitimate use to make of law? On the other hand, it suggests that the fears of crippling litigation and judgments might have been overblown. There was no real threat of overwhelming liability because no one wanted to enforce. But the possibility of a lawsuit by "friendly" plaintiff who will bring the claim and allow for litigation means the law does not, in fact, insulate the law or thwart judicial review.

Posted by Howard Wasserman on September 22, 2021 at 03:04 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 21, 2021

Stare Decisis as Crying Wolf

Stare decisis is in the news again as the Supreme Court begins to consider requests to overrule abortion-rights precedents. To a great extent, the justices have spent years preparing for this moment, as every recent debate over precedent has seemingly had abortion rights looming in the background. Dissenting justices have adopted certain rhetorical strategies, and majority justices have had to respond. 

I explore this rhetorical dynamic in a forthcoming paper (Reason and Rhetoric in Edwards v. Vannoy) and reproduce a slightly edited excerpt below:

Imagine that you are a justice who generally hopes to protect existing case law from erosion or repudiation. You might think it is a good idea to complain about each and every instance of overruling, so as to keep stare decisis salient and make the majority coalition pay an ever-increasing “price” in professional and public esteem. But you would also worry about coming across as Chicken Little, or the Boy Who Cried Wolf. It isn’t always a big deal to overrule, even when doing so is wrong. And, sometimes, overruling is positively the right thing to do. Much as the Court would lose face by overruling too freely, as though precedent were legally irrelevant, dissenters can sacrifice their credibility by acting as though every new overruling is a fresh End of Days. So, what’s a dissenter to do?

One way of squaring the rhetorical circle is to try and have it both ways at different points in time. This solution requires selective forgetting: the importance of stare decisis is trumpeted in dissent after dissent, but the doom-and-gloom rhetoric attending each dissent is instantly swept under the rug. The point of this strategy is to make each transgression of stare decisis seem unprecedented, as though stare decisis had been eroded for the first time. A less helpful understanding of events, namely, that stare decisis has proven to be quite flexible, is thus kept out of view. This approach counts on the reader’s short memory—and, ironically, on the forgettability of the dissenter’s earlier rhetorical flourishes. 

All this raises the question of how the majority coalition might respond to our imagined dissenter’s rhetorical strategizing. The majority might do just what the dissenter hopes: wince at each rhetorical lashing, try to avoid the next one, and generally think hard before overruling. But there is another salient possibility: much as the public could come to wonder whether the dissenter is overdoing it, the majority might decide that there is no satisfying the opposition. Someone who cannot see that overrulings are sometimes justified—or just not a big deal—might not be worth appeasing. Thus, the majority could become numb to the lashing, and unafraid to overrule. The strong rhetoric against overruling would have defeated itself.

That reasoning can be taken still further. A cynical majority might put itself on the lookout for precedents to overrule. Not just any precedent will do, of course. Overruling cases that are either too important or too sound would tend to feed the dissenter’s critical flame. But when precedents are contrary to the would-be dissenter’s view of the merits, or else not terribly important, a decision to overrule can put the dissenter in a bind: she would have to moderate her rhetoric or else risk coming across as crying wolf. Notably, Ramos and Edwards respectively fit each half of that strategy, with Ramos, which established a right to unanimous criminal jury verdicts, appealing to (and splintering) the Court’s left wing and Edwards, which declined to apply Ramos retroactively in habeas cases, “overruling” only a never-used exception.

Posted by Richard M. Re on September 21, 2021 at 01:58 PM | Permalink | Comments (7)

These are not very bright guys, and things got out of hand

Operation Rescue has asked the Texas Medical Board to investigate Dr. Braid and to suspend and permanently revoke his license, based on his admitted performance of a post-heartbeat abortion. (H/T: David Cohen of Drexel). The letter is a sight to behold, explaining that Dr. Braid wants to be sued for his "defiant attitude and unlawful act," so OE went to the Board to seek a sanction without giving him what he wants. It also is stupid, if the goal of this and other anti-choice activists is to make it difficult to get a judicial ruling on the constitutional validity of the heartbeat ban.

The lone viable theory to get into federal district court is an action by medical providers (doctors, nurses, clinics) against the regulatory boards to stop "indirect enforcement"--licensed professionals must adhere to health laws, including SB8, so the licensing bodies can be enjoined from using an SB8 violation as the predicate for a licensure action because SB8 is constitutionally invalid. The original WWH complaint (the one sitting in the Fifth Circuit and in which SCOTUS refused to enjoin enforcement pending review) included claims against the medical, nursing, and pharmacy boards on this theory. In denying the motion to dismiss the appeal and staying the district court proceedings, the Fifth Circuit stated that SB8’s prohibition on public enforcement includes this sort of indirect enforcement.

Operation Rescue’s letter argues the opposite of that position. If the medical board moves on this, it is going to have a harder time arguing in the ongoing WWH suit that it does not and will not yield indirect enforcement authority. That means WWH has at least one claim against one defendant for which there is standing and no sovereign immunity and that can move forward in federal court and allow for resolution of the law’s constitutional validity. Alternatively, Braid has a state actor against whom to bring a new lawsuit in federal court. There is standing and no sovereign immunity, because possible enforcement is imminent based on the complaint, unless the Board again conclusively disclaims this enforcement authority. Any injunction will not stop any private individuals from pursuing claims and will not protect advocates from aiding-and-abetting claims; it would protect only providers from licensure actions. But this creates a path to (limited) federal litigation and quicker path to SCOTUS and binding precedent that the heartbeat ban is invalid, which will govern future private actions.

If the Board moves forward on this complaint, it creates some tricky abstention issues. The now-pending state administrative proceeding may require the federal court to abstain under Younger, at least as to any claims Braid brings himself or in the WWH case. Braid then has the same anti-abstention arguments that could lie against private SB8 plaintiffs--no adequate opportunity to raise the constitutional issue in the state proceeding, bad faith, flagrantly unconstitutional law. Also, the question of indirect enforcement is a state-law issue that might require certification or Pullman abstention. As I said, this law is a Fed Courts/Civil Rights class.

But here is a larger point. SB8 was drafted by a smart lawyer and legal scholar with a particular understanding of constitutional law and litigation (that I happen to share). The law contains moving pieces and requires collective patience to achieve its desired result--stopping abortion through actual or threatened civil liability while eliminating any governmental targets for immediate offensive litigation in federal court. But operatives on the ground seem to lack that sophisticated understanding or patience and, without realizing it, may undermine the law's complex scheme. OE's letter illustrates that impatience and apparent lack of understanding of what the law is designed to do. Whether it undermines the grand plan depends on what happens next.

Update: An additional thought. As Mary Ziegler has argued, this is not the first time states have attempted to use private civil litigation. In the 1990s, activists tried to sue providers for medical malpractice, failure to give informed consent, and other misdeeds. But interest in this slow, bel0w-the radar process died out in favor of direct and high-profile attacks on Roe itself. The OE letter reflects that.

Posted by Howard Wasserman on September 21, 2021 at 01:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, September 20, 2021

We have our SB8 test case (Udpated)

We have our SB8 test case(s). On Saturday, Texas doctor Alan Braid wrote an op-ed in the Washington Post announcing/confessing to performing a first-trimester-post-heartbeat abortion. On Monday, Oscar Stilley filed suit in state court in Bexar County. Stilley is a disbarred lawyer and tax protester, under home confinement serving a 15-year sentence on tax charges. Expect to read a lot more about his brand of insanity, some of which appears in the complaint--he alleges that he called Braid and asked him to "repent of his ideology as well as his deeds" and filed suit only when "such respectful efforts" failed to secure an agreement.

Update: A second suit was filed by a "pro choice plaintiff" from Illinois, also in Bexar County. Further Update: This plaintiff also is a lawyer who has encountered some disciplinary problems.

I agree with the comment someone made on the ConLawProf listserv: This is the plaintiff Texas deserves for enacting this nonsense. I would be curious about what the anti-choice community thinks of this suit. This is not who they want as the face of the movement nor is he likely to offer the best defense of the law. In the same way the reproductive-rights community wants an appealing person to violate the law, those seeking to defend the law want an appealing plaintiff. I imagine activists were happy with the current state of affairs--no lawsuits, no abortions in the state, running out the clock until (they hope) a favorable decision in Dobbs. (Further Update: The head of Texas right to life is not happy, calling the suits "self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes." This is a long way of saying "Fuck, we have been hoisted on our own petards.")

Braid's first move in state court should be a motion to dismiss on constitutional grounds and a request for expedited briefing. The more interesting question is whether Braid brings a § 1983 action against Stilley on a public-function theory (in enforcing state law under an exclusive delegation, Stilley is performing a traditional-and-exclusive public function) and seeks to enjoin him from pursuing the state-court litigation. This might be the path into federal court. We are off and running.

The second, "pro choice plaintiff" complaint is its own form of nonsense that undermines its own strategy. One paragraph moves the court to declare the act unconstitutional and another alleges that Braid did not violate Roe (whatever that means) and that the act is unlawful. This is not the way to do this. There is room for what Rocky labels "arranged" litigation, in which a plaintiff who supports reproductive freedom brings the lawsuit and is willing to lose, giving the doctor the opportunity to challenge SB8's constitutional validity, including on appeal. The statute allows "any person" to sue, so there is no basis for the court to look for either injury or adverseness; a person can say he is suing because he needs the money. But the sympathetic plaintiff must act like a plaintiff by alleging that the defendant violated the law; it is on the defendant to make the arguments against the law. But given the pervasive misunderstanding of procedure in this mess, it should not be surprising that the first moves come from people who cannot get the procedure right.

Posted by Howard Wasserman on September 20, 2021 at 07:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

JOTWELL: Steinman on Bayefsky on respect and Article III

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L.J. 1263 (2021). This is a great article (and great review), although I unsurprisingly do not believe the model, however valid, gets us to universal injunctions.

Posted by Howard Wasserman on September 20, 2021 at 12:27 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Shorter Chronicle of Higher Education

Some members of the Stanford College Republicans are immature assholes who do immature asshole things and other members realize both of those facts. But nothing described in this story comes close to falling outside of First Amendment protections. Thanks for sharing.

Posted by Howard Wasserman on September 20, 2021 at 12:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Are the Federal Rules of Evidence Unconstitutional?

I have a paper on the quirky way we enacted and continue to revise the Federal Rules of Evidence forthcoming in the American University Law Review.  The paper is here.  Abstract below:

This paper explores how the Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking – for Civil Procedure, for Criminal Procedure, and for Appellate Procedure – the FRE rulemaking process contemplated by the current Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation doctrine because it allows statutes of the United States to be effectively rewritten by the Supreme Court outside the constraints of bicameralism and presentment, requirements of Article I, Section 7. Especially in light of the Court’s signals in recent terms that it may be seeking to revivify the non-delegation doctrine soon, focusing on the FRE’s formal deficiencies is urgent. Yet functionalists about the separation of powers also need to condemn our current FRE rulemaking process. Functionally, the FRE rulemaking system is constitutionally suspect because it permits the Supreme Court – outside of its Article III authority to hear “cases and controversies” – to repeal and amend substantive statutes unilaterally, a power that can threaten bedrock commitments to our federalism and to our constitutional rights to the jury. The decisions about how and when to displace state law in favor of federal law and about how and when to grant powers to juries over judges cannot be vested in the Judicial Branch alone without the structural restraints of an Article III “case or controversy.” The paper concludes by offering some ways to fix our evidence law and to put it on firmer footing, permitting better power-sharing and dialogue between two branches of government – Congress and the Supreme Court – that both have reasonable claims to some authority in the area.

 

 

Posted by Ethan Leib on September 20, 2021 at 10:04 AM | Permalink | Comments (0)

Friday, September 17, 2021

Jurisdiction, merits, and the First Amendment

From the Sixth Circuit, reaching the correct result for confused and convoluted reasons.

Anti-Israel protesters have picketed outside Beth Israel Synagogue in Ann Arbor every Shabbatt since 2003. Two congregants sued the protesters for intentional infliction and various civil rights claims and the city and various municipal officials for not stopping the protests. The district court dismissed the claims for lack of standing, finding that emotional distress is not a sufficient Article III injury. The Sixth Circuit majority held that the plaintiffs had standing, but that the claims fail on the merits because the protests are First Amendment protected activity. Judge Clay concurred, arguing that the plaintiffs lack standing and the district court lacks jurisdiction because the claims are so frivolous.

This is another example of standing and jurisdiction complicating and distracting straight-forward cases. Plaintiffs brought a long-established common law claim and the only question should have been whether the protesters expressive conduct was constitutionally protected and thus not a basis for liability. It makes no sense to erect, understand, and use threshold jurisdictional doctrines to complicate that issue. Would anyone have discussed standing or jurisdiction had this case been brought in state court? Then it should not be different in federal court.

Also, note, again, the defensive context in which the First Amendment was raised and judicially resolved. Paintiffs sued for damages, the protesters raised their First Amendment rights as a defense, and in agreeing with the protesters on the First Amendment question, the court dismissed the lawsuit. How is that not an "ordinary mechanism" or the "established process" of judicial review?

Posted by Howard Wasserman on September 17, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, September 16, 2021

Checking on the Koufax Curse

What is the latest on the Koufax Curse? Which Jewish players played on Yom Kippur 5782 and how did they and their teams do?

Continue reading "Checking on the Koufax Curse"

Posted by Howard Wasserman on September 16, 2021 at 12:01 PM | Permalink | Comments (0)

Wednesday, September 15, 2021

Devin Nunes wins a small victory, for now

To show I can write about something other than SB8: This terrible Eighth Circuit opinion. The court holds that Devin Nunes did not sufficiently plead actual malice against Esquire and Ryan Lizza over publication of an article about Nunes' family's farm, because he had not sufficiently pleaded actual malice. (Nunes acknowledged he had not done so--he asked the court to reconsider the standard, which it obviously cannot do). But the court reversed dismissal of a claim against Lizza for retweeting a link to the story two months Nunes filed his original complaint. Retweeting constitutes republication. And because Lizza retweeted after the lawsuit denied the story, it was "plausible that Lizza, at that point, engaged in 'the purposeful avoidance of the truth.'"

This cannot be right. The denial or contesting of allegations, without more, cannot plausibly establish knowledge or reckless disregard as to truth of the statements, presumably in the face of other reasons to believe the story (which is why they published it). The implication of this is that a defamation claim can survive 12(b)(6) by alleging that someone retweeted the disputed story knowing that the target of the story has sued or otherwise contested its truth. Or, one step further, a plaintiff could survive 12(b)(6) by pleading that the reporter published the story despite pre-publication denials of the content. Either of those puts the defendant on notice of the denial, which raises the same plausible inference the defendant "purposefully avoided" the truth.

I doubt Nunes survives summary judgment, because I doubt he can establish evidence beyond his denial for Lizza to disbelieve the article. That is not enough to establish actual malice by clear-and-convincing evidence, as required. Still, letting this get beyond 12(b)(6) is not good. It raises again whether plausibility should account for a higher standard of persuasion, as it does on summary judgment.

And just to tie this back to SB8, because that is my life right now: No one seems to believe that Lizza was denied judicial review of his First Amendment rights by having to defend a lawsuit.

Posted by Howard Wasserman on September 15, 2021 at 06:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

US seeks emergency TRO against SB8 (Updated)

Motion here. The piece I find interesting begins around p. 24, in which DOJ argues, in essence, that § 1983 and Ex parte Young preempt a law such as this. Section 1983 reflects a congressional choice to make federal civil rights litigation, including for injunctions, the preferred mechanism for litigating constitutional rights, thereby making offensive litigation the preferred posture for constitutional litigation.

I am not sure that is true. As I have been arguing here, many contexts force rights-holders into a defensive posture, outside of federal court. Sometimes those contexts come from Congress, such as the Anti-Injunction Act, or the courts, such as Younger. Sometimes that comes from states, such as in the creation of tort and contract law. The brief relies on Patsy v. Board of Regents, which held that a state cannot impose an admnistrative-exhaustion requirement on a public employee as a precondition to bringing a § 1983 action. But four years later the Court held that Younger applied to state administrative enforcement proceedings--that is, a rights0holder must defend the state administrative proceeding and appeal through the state system to SCOTUS, not run to district court. So federal court is not always paramount.

The brief repeats the refrain that SB8 thwarts "ordinary mechanisms of judicial review" or the "established process of judicial review." When did state courts, with SCOTUS review, cease to be an ordinary mechanism of judicial review? And is DOJ willing to follow that idea where it leads, so that an offensive option must be available in all cases, except perhaps where Congress creates the limits on § 1983? Must there be some mechanism for pre-enforcement challenges to constitutionally defective tort claims?

Finally, seems impossible to square this rhetoric with the limited scope of constitutional litigation. Imagine that SB8 followed California's prior consumer-protection law at issue in Nike v. Kasky, which allowed enforcement by "any person" regardless of injury as well as by governments and officials. A pre-enforcement EPY action would have been possible. But the injunction from that EPY action would have bound the executive, not the potential "any person." He would have been able to sue and perhaps win a state-court action, at least prior to the establishment of binding SCOTUS precedent. Same thing here. Some state-court actions would be possible and some providers would still have to defend in state court. They would have some precedent. But state courts are not bound by non-SCOTUS federal precedent unless they choose to be.

This is more complicated than the DOJ rhetoric acknowledges.

Update: The district court set a hearing for October 1. This fast-tracks the case. While framed as a motion for a TRO, the resulting order will be deemed a grant or denial preliminary injunction and immediately appealable.

Posted by Howard Wasserman on September 15, 2021 at 03:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

SCOTUSBlog review of "Painting Constitutuional Law"

Amanda Frost (American) published a nice review on SCOTUSBlog of Painting Constitutional Law, my edited volume with M.C. Mirow on Xavier's Cortada's series May It Please the Court.

Posted by Howard Wasserman on September 15, 2021 at 09:31 AM in Books, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 14, 2021

Kentucky Law Journal: Exclusive Submissions

The Kentucky Law Journal is opening an exclusive submission track for Fall 2021, with an expedited review process. We are accepting manuscripts from all areas of law, though we are particularly interested in scholarship focused on tort lawAuthors who submit to our exclusive submission track agree to accept a binding publication offer, should one be extended. The accepted Article will be published in Volume 110 of the Kentucky Law Journal, with final publication around April 2022. The KLJ will provide a publication decision within 7 days of submission. The final manuscript will be due shortly after we accept the article for publication. 

 

Authors interested in submitting to the exclusive submission track for Fall 2021 should email their CV and manuscript to Editor-in-Chief Kelly Daniel at [email protected], and Managing Articles Editor Samuel Weaver at [email protected] with the subject line "Exclusive Article Submission."

Posted by Howard Wasserman on September 14, 2021 at 04:33 PM in Teaching Law | Permalink | Comments (0)

SB8 op-ed

Rocky and I have an op-ed in California's Daily Journal on SB8, a mini version of our paper and my many posts here and at the VC.

Posted by Howard Wasserman on September 14, 2021 at 01:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Chronicle of Higher Ed reveals its biases

The Chronicle of Higher Education has an article on the rankings obsession among colleges. They begin the story with three examples--University of Houston, Washington State, and us. The top of the piece contains a photo with an array of pull-quotes from strategic plans--we are the only school mentioned by name. Also garnering mention in the story are Clemson, Oklahoma State,  and Oregon State. Apparently the only schools obsessing about rankings are non-flagship public universities, two of which are urban and some of which serve significant numbers of non-white students. My colleague Louis Schulze has some thoughts about the biases reflected in the editorial framing choice.

Posted by Howard Wasserman on September 14, 2021 at 01:25 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, September 13, 2021

THE GEORGE WASHINGTON UNIVERSITY SCHOOL OF LAW Faculty Positions

The George Washington University Law School invites applications for up to five tenure-track or tenured faculty appointments. The appointments will be made at the rank of Associate Professor or Professor and will begin as early as Fall 2022. The school may hire faculty in any subject area or category based on a candidate’s overall strength. Areas of particular interest include all large 1L classes (torts, contracts, criminal law, civil procedure, property, legislation & regulation, and constitutional law), professional responsibility, family law, health law, intellectual property, government procurement, international law, environmental law, and civil rights law. The University and Law School have a strong commitment to achieving diversity among faculty and staff.  We are particularly interested in receiving applications from members of underrepresented groups and strongly encourage women, persons of color, and LGBTQ candidates to apply for these positions.

Continue reading "THE GEORGE WASHINGTON UNIVERSITY SCHOOL OF LAW Faculty Positions"

Posted by Howard Wasserman on September 13, 2021 at 10:31 AM in Teaching Law | Permalink | Comments (0)

Retroactive enforcement of zombie laws

Michael Dorf explores whether, if Roe and Casey are overruled, people can be sanctioned (criminally or civilly a la SB8) under reanimated zombie laws for abortions performed in violation of state law but while Roe and Casey rendered those laws unenforceable. Dorf discusses cases considering whether a person can be sanctioned for conduct performed while protected by a preliminary injunction and while litigation is ongoing.

I did not discuss this issue in my article, which focuses more on what a zombie is and how they work in the moment. I wish i had, because it is an important future consideration. I agree with Mike that it would be fundamentally unfair to punish someone for conduct that violated the statute but was taken under the cloak of judicial precedent authorizing the conduct. But the case law considering conduct taken during litigation and under the protection of a preliminary injunction does not provide the relevant guidance.

The problem is that injunctions do not create most zombie laws. Many zombie laws have never been the target of litigation; they are laws from Jurisdiction B rendered judicially unenforceable by a decision involving a similar or identical law from Jurisdiction A. (This is the case with the law in which Fifth Circuit Judge Gregg Costa coined the term). Or they are distinct laws, different from the ones declared invalid in prior litigation, but raising the same constitutional objections. Many constitutional opinions create zombies but do not issue an injunction--they arise from defensive litigation and the judgment dismisses the enforcement action. (For example, no court enjoined Texas from enforcing its flag-desecration law; SCOTUS dismissed a prosecution against Gregory Lee Johnson. The same with Connecticut's contraception ban and the prosecution of Estelle Griswold). If the zombie was established in a case enjoining enforcement, the injunction is (or should be) limited to stopping enforcement against the plaintiffs to that action. Non-enforcement beyond the parties is a product of precedent, not the injunction.

Jonathan Mitchell in Writ-of-Erasure Fallacy has a different take. Judicial precedent involves a policy of judicial non-enforcement, no different from an executive policy of non-enforcement. (I would expound to say that judicial departmentalism makes the latter into the former--the executive choice not to enforce out of knowledge that it will lose in court reflects a policy choice). An executive non-enforcement policy would not provide a reliance defense to a subsequent enforcement (as Griswold demonstrates). It follows, Mitchell argues, that neither should a judicial non-enforcement policy.

The answer to this question requires a theory of judicial precedent and its effects on the public. Under judicial departmentalism, it binds courts but does not bind executives. How does that affect the public, its choices, and its subsequent exposure for those choices? And how does that further fundamental fairness and due process?

Posted by Howard Wasserman on September 13, 2021 at 10:11 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, September 12, 2021

Sports nomenclature

Novak Djokovic lost in the finals of the U.S. Open today, ending his attempt to complete the first Grand Slam by a male player since Rod Laver in 1969 and by any player since Steffi Graf in 1988.

Much of the writing about this will describe Djokovic as missing the "Calendar-Year Grand Slam," a qualifier distinguishing what became known as a "Serena Slam" in which a player holds the four titles at the same time measured from some arbitrary point in time. For example, a player wins Wimbledon and the U.S. Open in Year One and the Australian and French Opens in Year Two; measured during the month between French and Wimbledon in Year Two, that player has won a "Slam" over the last 12 months.

This is stupid. Had Djokovic won, he would have captured a Grand Slam, unmodified and unqualified. The Serena Slam is not a thing and we should not mention it. A Serena Slam is equivalent to saying a baseball player who hit 37 home runs in the last 81 games of Year One and 37 home runs in the first 81 games of Year Two holds the record by hitting 74 homers in 162 games (the length of a season). Or a hockey player who scored 46 goals in the final 41 games of Year One and 47 goals in the first 41 games of Year Two holds the record by scoring 93 goals in in 82 games (the length of a season). Season records are measured in a season, not the number of games that comprise a season, measured from arbitrary points over multiple seasons.

Tennis has a season that follows a calendar year and contains four Grand Slam tournaments in order. It begins in January leading to the first Slam tournament in Australia in late January and ends in November with round-robin tournaments featuring the eight best men (played in Italy) and women (played in China), two months after the fourth and final Slam event in New York. If winning the four tournaments is a thing, it must be within that "season," meaning a calendar year. Anything else looks like an attempt to create a special achievement when the real achievement proved too rare.

Posted by Howard Wasserman on September 12, 2021 at 07:36 PM in Howard Wasserman, Sports | Permalink | Comments (0)