PrawfsBlawg

Friday, May 27, 2022

Taking away rights?

Since the Dobbs draft leaked, I have been trying to figure out what makes the apparent decision to overrule Roe illegitimate and some egregious act of judicial lawlessness.

It cannot be the result simpliciter--that my constitutional understanding differs from that of the apparent five-Justice majority does not make their views wrong in any objective sense, much less illegitimate. It cannot be that it overrules precedent, because the Court has overruled precedent. This is also why it cannot be that recent appointees pledged fealty to stare decisis--case are always subject to reconsideration and stare decisis has standards for overruling cases. It cannot be that the stare decisis analysis is wrong, for the same reason that disagreement with substantive constitutional analysis is not sufficient.

Orly captures where I had tentatively landed--overruling precedent to eliminate or limit individual rights (Orly describes them as "fundamental human rights") and to increase government power is different and something the Court has never done.

But I am not sure the distinction works. First, cases abrogating and overruling Lochner limited or eliminated the due process right to contract, which had been regarded as fundamental. Any potential distinction turns on substantive agreement or disagreement with the right recognized in Lochner compared with the right recognized in Roe. Second, crim pro scholars can correct me, but it seems that the Court has overruled precedent to narrow rights for criminal defendants. Third, at least as to abortion, the Dobbs majority might describe itself as vindicating a right to potential life that had been acknowledged but given undue weight in Roe. Thus the framing--eliminating a fundamental right--does not capture what the Court did (or believes it did). Again, I do not share this view. But the argument that Dobbs is an illegitimate action by an illegitimate Court must hinge on more than "I have a different view of the law."

To be clear, I am not calling out Orly; I had landed on a similar explanation. But I am less confident it works.

Posted by Howard Wasserman on May 27, 2022 at 12:16 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

One Observation About Cawthorn v. Circosta

On Tuesday the Fourth Circuit held that the Amnesty Act of 1872 did not extend prospective relief under Section Three of the Fourteenth Amendment to any and all future insurrectionists. I hope that this opinion will extinguish the preposterous contrary argument, which is a distraction from the main issues in the current and future Section Three challenges.

I want to make one further observation about the separate opinion if Judge Richardson, who concurred in the judgment. In Footnote 16, he states that In Re Griffin, a Section Three case decided on circuit by Chief Justice Chase in 1869, is "too confused and confusing to help much." He then explains why that is so at some length, drawing on my law review article and on other scholarly sources. I agree that Griffin is an unhelpful source of authority and should not be relied upon in future Section Three cases.

Posted by Gerard Magliocca on May 27, 2022 at 08:05 AM | Permalink | Comments (0)

Thursday, May 26, 2022

The Future of Roe, Reproductive Rights, and Work Equality - my comments at today's USD event

As I posted a few days ago, we had today a panel on the Dobbs leak. It was co-sponsored by our new Center for Employment and Labor Policy CELP which I am honored to direct. I thought I would share my opening comments on the panel:

Thank you to our deans for initiating this important event, and for supporting our new Center for Employment and Labor Policy – CELP of which I am honored to be the founding director – we have a very vibrant and energetic employment and labor student association and together we will be planning many exciting events – so be on the lookout for all that – as I always say to my students, employment law intersects with every single field of law– so CELP will serve as a key hub for our community.

And of course – abortion rights have everything to do with the things we care about in employment policy: equality, privacy, and antidiscrimination, work-family support and balance, career trajectories, human capital enrichment, employee mobility, welfare and health care, and economic growth.

Now before I say something brief about women’s careers – I want to first say something more general – I am not quite a constitutional law expert; I am law professor, a woman, an immigrant, a mother of three girls, and a former clerk of the Israeli Supreme court so I do have some insight about the workings of justices and constitutional law and politics and i can say that what we are seeing today with the Supreme Court is far worse entanglement of law/politics than the traditional inevitable links – and expanding the court and imposing term limits is crucial. I want to say that the leaked decision has horrendous implications for our democracy that cannot be understated. If and when Dobbs overturns Roe, this will be the first time in American history that the Supreme Court overturns precedent in order to take away – rather than to expand – fundamental human rights. And so, I hope just that fact should be alarming enough and give us an understanding of how much at risk all our constitutional rights are right now.

Now on women’s reproductive rights and the workplace: because of time i will just give you seven bullet points –

1. Decades of research shows how women’s education and workforce entry are significantly linked to family planning and to Roe. A 2021 study for example demonstrates that access to abortion is not correlated with population growth or decline – it simply means women choose when to have children, not how many.
2. Women who do not have access to abortion are far more likely to further sink into a lifetime of deep poverty in the years following their abortion denial. Overturning Roe will further widen economic and racial inequality.
3. Perversely, the United States is one of the world’s worst actors when it comes to family medical leave rights – it is basically the only developed country in the world that doesn’t have paid family and medical leave.
4. When you look at the ongoing gender pay gap, still 80 cents on the dollar and far worse for women of color, the strongest predictor of the gap is what I and others call in the research the motherhood penalty and the fatherhood bonus, and I have a recent Columbia law review just about this issue that I am happy to share.
5. In response to Dobbs, some corporate leaders like Microsoft and Amazon announced that they will support their pregnant workers by paying travel and medical expenses for employees who need to travel to get abortions in states where it is legal. This is of course an important private sector response, but:
6. The women who will be affected by Dobbs the most are poor women, disproportionately Black and Latina women will not be covered by these benefits that are granted to the already higher skilled corporate employees.
7. Finally, the States that banning abortion are the same states that lag in wages – that have lower wages, fewer workers' rights, and less access to health care.

So I will end by saying:

Abortion rights are Human Rights

Abortion Rights are Health Rights

Abortion Rights are Economic Rights

 

Posted by Orly Lobel on May 26, 2022 at 05:20 PM | Permalink | Comments (0)

Judicial takings and alternatives to offemsive litigation

This Seventh Circuit case (Diane Wood for Manion and Scudder) is weird and I am trying to figure it out. I think it illustrates broader points about the problem of offensive-or-defensive litigation on constitutional issues.

A group of property owners brought a state-court quiet title action against Indiana, arguing that they owned Lake Michigan beach-front property to the low-tide mark, as reflected in their deeds; the Indiana Supreme Court (Gunderson) held that Indiana holds and retains submerged property up to the high-tide mark. The legislature then codifed the decision, declaring its ownership and declaring laekfront property owner's non-ownership below that mark. A different group of property owners (non-parties to Gunderson) brought this action against the governor, AG, against the governor, AG, and heads of the agencies on natural resources and state lands, alleging a judicial taking and seeking a DJ and injunction that they owned the property to the low-water mark.. The  panel dismissed the claim on standing grounds, finding no traceability or redressability to the state officials sued, since they do nothing to enforce Gunderson or the statute defining the property lines and can do nothing to grant the plaintiffs title to the challenged portion of the lakefront. The court also identified federalism-and-comity based caution (reflecting the ideals, if not applications, of Rooker-Feldman) in hearing a case raising a novel legal theory that requires a lower federal court to review the merits of a state supreme court decision. The court dismissed with leave to amend, although I am not sure what they can do to salvage this action.

The outcome is correct, but the case highlights some weird doctrinal interstices. It also shows how constitutional litigation occurs outside the ordinary pre-enforcement offensive action against a state executive. Assuming judicial takings can be a thing, what are plaintiffs such as these to do?

Continue reading "Judicial takings and alternatives to offemsive litigation"

Posted by Howard Wasserman on May 26, 2022 at 12:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Property | Permalink | Comments (0)

Tuesday, May 24, 2022

Judge Newsom in the news

Three weeks of grading and a round of edits have limited my writing here. Let me jump back in with a short ode to the recent work of Eleventh Circuit Judge Kevin Newsom.

Everyone is talking about Newsom's opinion for a unanimous panel declaring every significant provision of Florida' social-media law constitutionally invalid. Although a few disclosure provisions survive, the opinion is an overwhelming win for the web sites--content moderation is First Amendment-protected editorial decisionmaking; social-media sites are not common carriers (and slapping that label on them is meaningless, anyway); and the state has no legitimate, much less substantial or compelling, interest in telling the sites what speakers or speech it must keep on the site. The decision creates an interesting procedural bind. A district court declared Texas' similar law constitutionally invalid and enjoined enforcement, but the Fifth Circuit stayed the injunction without explanation following oral argument. The plaintiffs in that case have asked SCOTUS to lift the stay and reinstate the injunction; that is pending. We are left with this weird sort-of splitt--all reasoned opinions (one Eleventh Circuit and two district courts) declaring the laws invalid against tea leaves (the unexplained stay and the tenor of argument) hinting at the Fifth Circuit coming out the other way. Is that enough for the Court to take the case?

Equally interesting is two Newsom concurrences. U.S. v. Jimenez-Shimon, written by Newsom for a unanimous panel, declared valid a federal law criminalizing firearms possession by undocumented immigrants and affirmed a conviction. He then concurred in his opinion to question the use of tiers of scrutiny for the Second Amendment (which should be based on text and history) and generally, with a nice thumbnail sketch of the many pieces of First Amendment doctrine that he calls "exhausting," "judge-empowering," and "freedom-diluting." Resnick v. KrunchKash reversed a jurisdictional dismissal, finding that a § 1983 action against a creditor for using state garnishment proceeding was not wholly insubstantial and frivolous. Newsom concurred for the panel to reject Bell v. Hood and the idea that a case is so frivolous as to deprive the court of jurisdiction; calling it an issue that had bothered him since law school, Newsom argued that a claim that pleads a federal issue on its face gives the court jurisdiction, even if the claim is an obvious loser. These are of a piece with his concurrence from last year adopting the Fletcher view that standing is merits, wrongly mischaracterized, and arguing that any limits on Congress' power to create new private rights comes from Article II rather than Article III.

I unsurprisingly agree with Newsom on standing and Bell and have written as much. It is interesting to wonder about Newsom's broader agenda. He is young (49) and conservative. Is this a way to position himself as potential SCOTUS pick? He does it not through outward insanity in destroying the administrative state and Commerce Clause, as with the Fifth Circuit folks. Instead, he is thoughtful and scholarly, pondering important-but-not-hot-button issues that have "bothered" him since he sat in Fed Courts as a law student and that he is trying to work out 25 years later.

Posted by Howard Wasserman on May 24, 2022 at 10:41 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, May 23, 2022

Game Theory, Behavioral Econ, and a Middle Ground? New Book by Hoffman and Yoeli

Many of us in the law and policy fields care about how game theory, and our behavioral inconsistencies that work around its rational predictions, shape our contractual and regulatory market relations. I am excited about this new book which I just got in the mail and started reading and enjoying. Here is the description from the jacket:

Two  MIT economists  show  how  game theory—the ultimate theory of rationality—explains irrational behavior.    

We like to think of ourselves as rational. This idea is the foundation for classical economic analysis of human behavior, including the awesome achievements of game theory. But as behavioral economics shows, most behavior doesn’t seem rational at all—which, unfortunately, casts doubt on game theory’s real-world credibility.  

In Hidden Games, Moshe Hoffman and Erez Yoeli find a surprising middle ground between the hyperrationality of classical economics and the hyper-irrationality of behavioral economics. They call it hidden games. Reviving game theory, Hoffman and Yoeli use it to explain our most puzzling behavior, from the mechanics of Stockholm syndrome and internalized misogyny to why we help strangers and have a sense of fairness.  

Fun and powerfully insightful, Hidden Games is an eye-opening argument for using game theory to explain all the irrational things we think, feel, and do.

 

Posted by Orly Lobel on May 23, 2022 at 05:03 PM | Permalink | Comments (0)

NYC Bar Association Panel on "Ensuring Political Accountability"

I will be part of this virtual event on Wednesday evening from 6:00 to 7:30. The other panelists are Barbara McQuade and Joseph Sellers. We will discuss the criminal, civil, and Section Three cases arising from the January 6th insurrection.

Posted by Gerard Magliocca on May 23, 2022 at 09:44 AM | Permalink | Comments (0)

Challenging the Qualifications of a Senator-Elect

Here's a question for fans of the Senate's customs. Suppose someone is elected to the Senate and other members want to challenge his right to serve on the ground that he "engaged in insurrection." The practice in qualification challenges seems to be that the person is swore in and allowed to serve until a Senate committee issues a report on the challenge. At that point, a majority can exclude the person. In some instances, though, the challenged person was not permitted to take his seat until the investigation was complete and the exclusion vote held.

The presumption matters because of the filibuster, which was not an issue in past challenges. If a member-elect is excluded until the Senate votes not to exclude, then I would think that the minority could block that vote and keep the member-elect out indefinitely. Not so if the person is seated and must be affirmatively excluded.

This issue could come up next year if, say, Mo Brooks is elected to the Senate from Alabama. His primary is Tuesday.

Posted by Gerard Magliocca on May 23, 2022 at 08:51 AM | Permalink | Comments (0)

Wednesday, May 18, 2022

CFP: Beazley Institute Health Law Symposium 2022

Continue reading "CFP: Beazley Institute Health Law Symposium 2022"

Posted by Sarah Lawsky on May 18, 2022 at 03:30 PM | Permalink | Comments (0)

The Pending Section Three Challenges

Representative Madison Cawthorn lost his primary yesterday. We will see what the Fourth Circuit does with the pending appeal in his Section Three case. The most likely outcome is a vacatur of the District Court opinion with instructions to dismiss the case as moot, but at least one judge may wish to discuss the merits.

While there may be additional challenges filed this year, here is the status of the pending cases:

1. Marjorie Taylor-Greene. An appeal was filed in Georgia Superior Court in the state action. There is also an appeal docketed in the Eleventh Circuit in her federal action. The Georgia primary is on Tuesday.
2. There is a federal case in Wisconsin challenging the eligibility of Senator Johnson and two GOP members of Congress. As far as I can tell, nothing much has happened in that case so far.
3. Couy Griffin. Commissioner Griffin is seeking to remove this state quo warranto action to federal court. He has also filed a federal action, much like Cawthorn's, to enjoin the state proceeding.

UPDATE: There is also a new Section Three challenge to Dan Cox, a state legislator in Maryland who is running for Governor. I will try to learn more about that lawsuit.

Posted by Gerard Magliocca on May 18, 2022 at 08:12 AM | Permalink | Comments (0)

Tuesday, May 17, 2022

The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade - Web Event May 26 from USD Law

The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade, co-sponsored by the new Center for Employment and Labor Policy and by the Center for Health Law Policy & Bioethics

Thursday, May 26, Noon
Zoom, Register Here
Free to all to attend

Please join us for a Noon panel discussion on The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade co-sponsored by USD School of Law's Center for Employment and Labor Policy (CELP) and Center for Health Law Policy and Bioethics (CHLPB). The panel will explore the many legal implications of the leaked Alito draft on the impending Supreme Court decision on whether to overturn Roe v. Wade. The event will include a short talk by each panelist as well as an extensive Q&A session. The panel will be conducted via Zoom and registration is required to receive a secure, personalized link.

 Moderator

• Mila Sohoni, Associate Dean of Faculty; University Professor; Professor of Law

Panelists

• Don Dripps, Warren Distinguished Professor of Law
• Dov Fox, Herzog Endowed Scholar, Professor of Law; Director, Center for Health Law Policy & Bioethics
• Orly Lobel, Warren Distinguished Professor of Law; Director, Center for Employment and Labor Policy
• Robert A. Schapiro, Dean and C. Hugh Friedman Professor of Law

Posted by Orly Lobel on May 17, 2022 at 06:05 PM | Permalink | Comments (0)