Friday, October 23, 2020

Hybrid Cases and Free Exercise

In Employment Division v. Smith, the Supreme Court stated that the case presented "a free exercise claim unconnected with any communicative activity or parental right." The Court distinguished Smith from "hybrid" precedents where a free exercise claim was made "in conjunction with other constitutional protections." In those "hybrid" cases, the Court said that the Constitution might require that an exception be given to a "generally applicable and neutral law" as applied to religious motivated conduct.

When the Court takes up Fulton v. City of Philadelphia in two weeks, one of the questions presented is whether Smith should be overruled. I wonder, though, whether the Court might just decide to read Smith more literally. Imagine if the Court said that exceptions are possible in free exercise cases so long as there is also a plausible free speech claim. That would cover many (though not all) cases where Smith is applied. The baker in Masterpiece Cake Shop made a free speech and a free exercise claim. The same two claims were made in Fulton (though the free speech claim was not appealed from the Third Circuit). Thus, Smith need not be overruled. It can be applied more narrowly consistent with what the Smith Court said.

The broader question is whether the Court wants to take on this balancing role. Masterpiece Cake Shop suggested that they did not, but maybe with Justice Kavanaugh and Justice Barrett things will be different. 

Posted by Gerard Magliocca on October 23, 2020 at 09:26 AM | Permalink | Comments (1)

Still getting jurisdictionality wrong

An unpublished Ninth Circuit opinion holds the district court lacked subject-matter jurisdiction over a copyright dispute because, as alleged, all infringing acts occurred outside the United States. But this should be a merits rather than jurisdictional issue. That the infringement took place outside the United States means U.S. copyright law was not violated because it does not "reach" or "prohibit" non-U.S. conduct. And the plaintiff's rights under U.S. copyright were not violated. All of which, Morrison v. Australia National Bank tells us, are merits questions to be resolved on 12(b)(6), not jurisdictional questions under 12(b)(1). It is amazing that courts continue to get this wrong. Especially since the court cited Twiqbal and looked only to the allegations in the complaint, which lacked any facts showing U.S.-based conduct.

Posted by Howard Wasserman on October 23, 2020 at 08:26 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Tuesday, October 20, 2020

NDAs and racial discrimination

I've posted in the past about how NDAs and the increased secrecy at work has not only silenced employees in general, but also specifically hurt women and prevented them from speaking up against systemic patterns of hostile work environment and harassments. The Wall Street Journal today has a well-researched article about how racial discrimination claims have also been silenced by the use of NDAs. I am quoted in the article, in particular about the enforceability of these clauses and how, regardless of enforceability, they have a chilling effect on speech.

Posted by Orly Lobel on October 20, 2020 at 09:35 PM | Permalink | Comments (4)

Panel: The Jurisprudence and Legacy of Justice Ginsburg

FIU College of Law will host a panel, The Jurisprudence and Legacy of Justice Ginsburg, at 12:30 p.m., Friday, October 30. Register here. The event is open to the public.

A panel discussion of the life, jurisprudence, and legacy of Justice Ruth Bader Ginsburg. Legal scholars will consider her work on gender equality, reproductive freedom, election law, constitutional law, comparative law, and procedure, and the effects of her death on the Court and the judicial-appointments process.

Moderator: Michele Anglade (FIU College of Law)

Introduction: Leonard Strickman (Founding Dean Emeritus, FIU College of Law)


            Richard Albert (University of Texas)

            Deborah Dinner (Emory University)

            Scott Dodson (UC-Hastings)

            Atiba Ellis (Marquette University)

            Daniel Epps (Washington University-St. Louis)

            Abbe Gluck (Yale University)

            B. Jessie Hill (Case-Western Reserve University)

Posted by Howard Wasserman on October 20, 2020 at 11:09 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Call for Submissions: AALS New Voices in Administrative Law and Legislation

Call for Submissions: AALS New Voices in Administrative Law and Legislation

The AALS Sections on Administrative Law and Legislation are pleased to announce their co-sponsored “New Voices in Administrative Law and Legislation” program for the 2021 AALS Annual Meeting, which will be held entirely online. The New Voices program gives junior administrative law scholars and junior legislation scholars an opportunity to receive useful feedback on their work from more senior reviewers before submitting the work for publication. While we have always welcomed the submission of early stage drafts, we want to highlight that our selection process this year will reflect our awareness that in this particular climate, many scholars face unusual and significant hurdles in finding time to do academic work.   We encourage eligible scholars to err on the side of submission.  As noted below, there will be time to revise submissions before they are circulated to commentators and posted as part of the panel.  

Each participating junior scholar will be assigned two designated reviewers. The reviewers are senior administrative law or legislation scholars who will read the junior scholar’s paper in advance and offer constructive comments during the program. Anyone else who is interested in participating in one of the discussions is welcome to join. The New Voices program is scheduled from 4:15 to 5:30 p.m. Eastern time on Saturday, January 9, 2021.

For Interested Junior Scholars

To participate, junior scholars must be full-time faculty members, including full-time visiting assistant professors or fellows, at AALS member schools. Papers that have been posted on scholarship networks such as SSRN, but not yet published, are eligible for consideration.

Please email Professor Mila Sohoni at [email protected] by Friday, October 30, 2020, to be considered for participation in the program. In your email, please include the title of your paper and attach an abstract or working draft. Please also include in the email your school, tenure status, years in the position, any prior legal academic positions, and whether you have previously participated in the New Voices program for either the administrative law or legislation section.

If your paper is selected for participation in the program, you must submit a draft via email to the above address no later than Friday, December 11, 2020. This deadline is important to provide the designated reviewers ample time to read their assigned drafts before the program. The draft submitted does not need to be completely polished and ready for law-review submission; reviewers welcome papers in earlier stages when the author can most benefit from feedback about the project.

For Senior Scholars Interested in Serving as Reviewers

If you are interested in serving as a reviewer this year, please email Professor Kati Kovacs at [email protected] as soon as possible.

Please be aware that selected participants and commentators must register for the AALS Annual Meeting. This year, the AALS is offering a school registration rate. Faculty and administrators from law schools that do not accept the school rate will need to pay a $295 individual attendance fee.

Please submit any questions about the New Voices Program to Professor Kati Kovacs at [email protected].

Posted by Orly Lobel on October 20, 2020 at 12:57 AM | Permalink | Comments (0)

Monday, October 19, 2020

World Series set

The Dodgers (best record in NL) against the Rays (best record in AL), for the first time since 2013.

There is one Jewish player in the Series--the Dodgers' Joc Pederson, who is the left-handed platoon DH. Pederson had a terrible season, although this Series gives him a chance to tie or pass Alex Bregman for the lead in WS home runs (Pederson has four, trailing Bregman by one). I must confess to rooting for the Braves in the NLCS, looking forward to the stories of a WS team with a Jewish ace left-handed pitcher.

Now that things are set, of course, all Democrats will be rooting for the Dodgers.

Posted by Howard Wasserman on October 19, 2020 at 10:11 AM in Sports | Permalink | Comments (1)

New Article: "A Few Grains of Incense"

I recently posted on SSRN an article titled "A Few Grains of Incense: Law, Religion, and Politics From the Perspective of the 'Christian' and 'Pagan' Dispensations." It's coming out shortly in the Journal of Catholic Legal Studies. It's kind of a sequel to the journal's earlier symposium on Steve Smith's book Pagans and Christians in the City: Culture Wars From the Tiber to the Potomac. The journal's editors were extremely kind and patient with me and I am grateful.

The paper operates from within the Christian/pagan typology Smith uses in the book. (Note that the terms should not be taken wholly literally, at least as he uses them in the modern era, but largely refer to a distinction between what he calls transcendent and immanent views of meaning.) I have my differences with that framework, but I also find aspects of it useful in thinking about the culture wars and about law and religion in something other than a standard religious vs. secular or left vs. right way. In any event, for purposes of the article I was interested in developing certain ideas from within that framework rather than critiquing the framework. (I often find, in workshops and job talks and so on, that I get more personal mileage out of adopting the author's framework and exploring its implications, some of which an author may accidentally or studiously neglect or avoid, than from going at it frontally.)

My goal, which is somewhat of a piece with a couple of other semi-recent articles of mine, was to think about and add some detail to our understanding of the dynamics of culture wars in general and with respect to law and religion in particular. It does not offer any proposals for reform. Although I offer some speculations about the conditions under which rapprochement are most likely, I don't offer much reason to believe that those conditions currently exist, and would add that there may be factors, such as the combination of polarization and social media with epistemic closure and separate social and institutional fiefdoms, that make those conditions less likely to appear. I would also note that since the article was written, some of the observations at the end of the piece about the ways in which the war over religious symbols that Smith describes actually extends beyond religious symbols alone have become somewhat more pertinent.

Here's the abstract:

This Article attempts to provide a schematic look at the dynamics of contemporary culture wars around law and religion in the United States. It proceeds from the framework provided by Steven Smith’s recent book Pagans and Christians in the City and engages with that book, sometimes positively and sometimes critically, but taking Smith’s framework as a given. A key insight provided by Smith is that the Christian-pagan conflict, past or present, had less to do with the belief that the other side was dangerous than with the view that it was obstinately unreasonable in refusing the terms of coexistence offered by the ruling dispensation. Culture wars of this sort thus start not with immediate conflict but with failed compromises. Differing premises and worldviews lead to a misunderstanding of what constitutes a large or small sacrifice, start a cycle of distrust, and lead each side to seek power so that it may be the side to set the terms of compromise rather than the one faced with accepting or refusing it. I examine this dynamic in two areas discussed in Smith’s book: religious accommodation, and wars over symbols. I conclude with an examination of the circumstances under which culture-war peace is most likely to occur, and find little reason for optimism that either currently applies.     

Posted by Paul Horwitz on October 19, 2020 at 09:36 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, October 18, 2020

Breyer as assigning justice

A fun one-off thing to watch for this Term--will  Justice Breyer have an opportunity to assign a majority opinion as senior-most associate justice in the majority? It would take an odd line-up: TheChief and Thomas in dissent and Breyer leading a majority of himself and four of Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett. Trying to imagine the case that would produce that lineup with the Chief.

Posted by Howard Wasserman on October 18, 2020 at 08:02 PM in Howard Wasserman, Judicial Process | Permalink | Comments (3)

Friday, October 16, 2020

Hamilton: The Legal Text

A fun new book from Cornell University Press, Hamiton and the Law: Reading Today's Most Contentious Legal Issues Through the Hit Musical. It is the brainchild and edited by Lisa Tucker (Drexel) with a great group of contributors.

Posted by Howard Wasserman on October 16, 2020 at 12:34 PM in Books | Permalink | Comments (0)

Prawfs' moment in the sun

One drawback to paying zero attention to the Barrett confirmation hearings: I missed that Barrett did a guest stint here in March 2008 (I was doing a semester-long guest stint at that time that led to Dan inviting me here permanently). Her six posts are listed among her "Opinion, Editorals, and Letters" section in her CRS bio. One post, about potential retroactivity problems in eliminating the crack/powder distinction, was the subject of an exchange with Sen. Booker; Booker asked why she did not discuss the injustice of the distinction--a stupid question justifying the amount of attention I devoted to the hearing. (H/T: Josh Blackman, who pays more attention than I do). (If you want to subject yourself to it, it is around the 7:17:00 mark).

Booker described us as a "well-known legal academic" blog, which is nice. Barrett called us "LawPrawfsBlawg." Oh, well.

Posted by Howard Wasserman on October 16, 2020 at 08:16 AM in Blogging, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Thursday, October 15, 2020

Habeas Corpus, Non-Delegation, and the Pandemic

Let's try a thought experiment. Suppose next year Congress passes the "Habeas Corpus Suspension Act of 2021." The Act recites the constitutional standard for habeas corpus suspension and then delegates to the President the power to suspend. Would that Act be constitutional? Probably not. Why? Partly because of the purpose of habeas corpus to limit executive detention authority, the common law history of the writ, and the practice of habeas suspension in Parliament and in Congress.

I mention this for two reasons. First, the history of habeas suspension might be a good place to look for guidelines in a future non-delegation case. The Supreme Court will eventually find a case to declare a delegation of congressional authority invalid. Good luck explaining why that would be so, but perhaps habeas suspension practice can offer some assistance.

Second, habeas suspension provides an analogy for thinking about recent cases involving COVID-19 restrictions on civil liberties. One problem with these restrictions is that they come from executive and local officials acting under broad and old statutes delegating that sort of health authority. These health emergency statutes can be analogized to the hypothetical Habeas Corpus Suspension Act of 2021, unless you think that criminal detention is so different from the current curbs as to make the examples distinguishable. At some point, though, a state constitution or the federal constitution might require that a legislature act now and specifically for civil liberty restrictions to reach beyond the immediate crisis period before the legislature can be called back into session.

Requiring legislative authorization would address some of the legitimacy concerns surrounding these measures and allow for exceptions to be discussed and addressed. This would not foreclose a constitutional challenge to a statute enacted now that places restrictions on speech, religious practice, gun shops, abortions, etc. Current legislative action, though, would reduce the number of these challenges and put the subsequent health actions on a stronger footing. Especially as we have no idea how long they will be required.

Posted by Gerard Magliocca on October 15, 2020 at 08:26 AM | Permalink | Comments (1)

Wednesday, October 14, 2020

Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster

This Friday, the Supreme Court will decide whether to grant certiorari in Demma v. United StatesDemma raises two questions under the Supreme Court’s Sixth Amendment sentencing doctrine: (1) the extent to which judges can sentence outside of the Federal Sentencing Guidelines based only on a policy disagreement with the Guidelines, and (2) how much appellate courts must defer to the substantive sentencing decisions of district court judges.

These are two incredibly important questions that arise because of how the Supreme Court decided United States v. Booker.  Previous cases had said that mandatory sentencing systems violate the Sixth Amendment if they require judges to make factual findings before increasing a sentence.  The Federal Sentencing Guidelines required such factual findings, and so the Booker Court held that they were unconstitutional.  But then something unusual happened—although she formed part of the 5-4 majority that found the Guidelines unconstitutional, Justice Ginsburg joined the four dissenting Justices who then fashioned a strange remedy.  Rather than saying that mandatory sentencing facts have to be proven to a jury beyond a reasonable doubt, the remedial majority said that the Guidelines would no longer be mandatory, they would instead be “advisory.”

Since Booker was decided in 2005, the Supreme Court has heard a whole bunch of cases that seek to clarify this remedy.  It is clear that judges still have to find facts and calculate a sentence under the Federal Sentencing Guidelines.  It is also clear that judges have at least some authority to give a non-Guidelines sentences.  And it is clear that appellate courts are supposed to review sentences to make sure that they are both procedurally and substantively reasonable.  But it is entirely unclear how much authority district court judges have to sentence outside of the Guidelines, and it is also unclear what the appellate review of those non-Guidelines sentences is supposed to look like.

Continue reading "Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster"

Posted by Carissa Byrne Hessick on October 14, 2020 at 03:21 PM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (1)