Thursday, December 01, 2022

Did the Court Have Jurisdiction in Dobbs?

In deciding Dobbs v. Jackson Women’s Health, the Supreme Court issued a momentous constitutional ruling while suggesting that it lacked jurisdiction to do so. In particular, the Dobbs majority appears to state that the abortion providers who brought the case lacked standing to assert their patients’ abortion rights. 

Continue reading "Did the Court Have Jurisdiction in Dobbs?"

Posted by Richard M. Re on December 1, 2022 at 07:08 PM | Permalink | Comments (0)

Uvalde lawsuit

Complaint here. I have been thinking about this inevitable lawsuit and the problems it will face--and I am not sure this complaint, as pleaded, avoids those problems. The main claim is substantive due process/bodily integrity. There are two ways to plead this claim based on third-party harms--state-created danger and special relationship. The complaint alleges both and both encounter problems.

As to the former, the Fifth Circuit (so far) refuses to recognize state-created danger as a basis for due process liability (the only circuit never to do so), although the complaint does not mention this fact.Maybe this is the case that would prompt a change, but I doubt it. So to the extent they premise liability and remedy on "Uvalde officials did a horrible job and allowed Salvador Ramos to do what he did," that theory is unavailable in the Fifth Circuit.

As to the latter, special relationship does not apply between schools and teachers and students, because their presence in school (unlike, e.g., prisons) is not involuntarily coercive. And law enforcement does not have a special relationship with the public or a general duty to protect. Plaintiffs offer two ways around this. First, by showing up and establishing a perimeter, police created a special relationship that did not previously exist. This raises tricky line-drawing problems. The theory is that police lack a general duty to protect but at some point they take enough affirmative steps to establish a special relationship and create that duty to protect--where, exactly, is that point? But this seems to be the best thing they have. The second theory is that police affirmatively prevented parents and others from helping out while police did nothing. But this does not describe inaction within a special relationship; it describes affirmative action to worsen a third-party-harm situation, which sounds in state-created danger (still unavailable in the Fifth Circuit) rather than special relationship.

Plaintiffs include claims for municipal liability against the school district for a custom or practice of noncompliance with safety regulations and against the city for failing to follow existing active-shooter protocols and failing to train/supervise officers on those protocols, which they "magnificently failed" to follow. Two things. First, there is an interesting puzzle here over the concept of policy and policymakers Uvalde had protocols--formal policies established by government policymakers--that police ignored; municipalities avoid liability when they can show that officers ignored or acted contrary to official policy. Plaintiffs attempt to avoid that by alleging that the acting police chief, the policymaker for law enforcement, created new policy by ignoring existing policy. Second, municipal liability depends on an underlying constitutional violation and injury to which municipal policy, custom, or failure-to-[blank] contributed. The immediate cause of the injury is the private shooter, which returns us to state-created danger (policies and failures as affirmative acts enhancing the shooter's ability to kill) not recognized in the Fifth Circuit or to special relationship that, as described above, does not fit seem to fit here.

Finally, they ask for an injunction basically compelling the school and the city to get its shit together as to school safety and active-shooter responses. They also ask to certify a class to get around the obvious standing problems. We will see if that works, given the unlikelihood of another shooting situation, no matter how bad the city's customs and practices.

I am putting the final touches on the third edition of my civil rights treatise, including new case-based problems. I may need to add this one.

Posted by Howard Wasserman on December 1, 2022 at 10:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, November 30, 2022

Where is the Comparativism in Criticisms (or Defenses) of Originalism?

The New York Times this past weekend ran an interesting story about the status of foreign judges who sit on the high courts of other nations, noting that it is "a curious phenomenon among Pacific island nations" but also occurs elsewhere, including "Hong Kong, the Caribbean, Africa and small European nations." Canadians, and I am still one, may be familiar with this phenomenon because of controversy over the role of its former Chief Justice, Beverley McLachlin, who insisted on staying on as a high court judge in Hong Kong despite the resignation of a couple other foreign judges, arguing that that court is still independent of interference from the Chinese government. And I recently heard an interesting talk about the personnel of the U.S. Virgin Islands courts, who often come from neighboring islands and specifically from Puerto Rico. But for the most part I cannot say I had heard or thought much about the phenomenon of "foreign judges on constitutional courts." 

The general subject is surely interesting, as is the article's focus on those judges' unsteady status given the domestic politics of those nations. But what struck me the most was this passage, relying on an interview with Dr. Anna Dziedzic of Melbourne Law School:

Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said.

Obviously this is interesting in any number of ways, not least because it offers a justification for originalism as a method of constitutional interpretation that is consistent with one or two main strands of justification for originalism: that it is less socially disruptive, and in particular--appearing here in a particularly salient context--that it leaves potentially socially disruptive changes to political rather than judicial actors. And it is interesting because that justification is pragmatic and institutional rather than relying on a theory of authority or of what is necessary for proper textual interpretation.

But what is most interesting about it is that, like any constitutional law professor, I have read the usual leading or popular criticisms (and defenses) of originalism--and I had no idea, or none that I can recall, that this phenomenon existed. Of course I was aware that Australia has been the site of interesting uses of and debates over originalism, and I am aware that, particularly compared to its first two decades and despite being pooh-poohed by much of the academic and judicial establishment, originalism has become more of a live topic in Canada. (Americans are still accustomed to treating Canada as an originalism-free zone and occasionally pointing to it for that purpose. I think that view is oversimplified, outdated--it certainly used to be quite true--and too inclined to accept the complacent statements of that country's establishment as fact.) But that was the extent of my live knowledge.

In making such an admission, one risks making the fatal error of winning David Lodge's game of "Humiliation." (As the Guardian summarizes it, in his classic academic satire Small World Lodge imagines a game in which academics compete by confessing "embarrassing gaps in their reading. One of the characters in the novel, in his determination to succeed, becomes so obsessed with winning that he admits to never having read Hamlet--as a result of which, he is promptly fired.") Perhaps, in admitting that I hadn't seen much about this in discussions of originalism, I'm neglecting articles or books that no one should admit not having read (or, in fairness, having read and then forgotten). Surely I have, in any event, missed a few exceptions. And one also risks admitting what I think is true: that many American constitutional law scholars, present company included, don't spend anywhere near as much time as they should looking at comparative constitutional law. Of course will find some and perhaps many discussions there, and in doing some follow-up browsing after reading the Times article, I certainly found some relevant treatments, by, among others, Yvonne Tew, Sujit Choudhry, David Fontana, Katharine Young, Ozan Varol, Kim Lane Scheppele, and Lael Weis. All that said, and keeping in mind that originalism and originalist theory are things I read about in the course of general reading in my field rather than focusing my own research on those topics, I think I can say with confidence that as a general reader of this sort, I would remember it if the topic came up with any real frequency.

I wanted to test my intuition, so I did a very rough Westlaw search. I started with articles written by some of the most publicly prominent critics of originalism--not necessarily the best or deepest critics, but some of the critics who are most likely to get lumped into standard "For leading criticisms of originalism, see, e.g.," footnotes, and to write books or op-eds designed to influence general professional-managerial class assumptions about the topic. My focus was on domestic constitutional law scholars who meet that definition; I did not include comparativists. And I looked within that set for 1) relevant references to any of the countries that have been cited as using originalism of some form, including Malaysia, Singapore, Turkey, India, Australia, and Canada, or 2) relevant references to the authors I have noted above. I should note that there are debates about whether what some or all of those countries are doing (or debating: there are now a few Canadian judges who would describe themselves as originalist, but it's still far more a matter of minority academic argument than of judicial practice) can really be called American-style "originalism." That's fine. I would have accepted some acknowledgment of those debates as relevant.

As I say, it's a very rough search. I'm sure it could be done better. It certainly is not fine enough to reveal all the exceptions. But it does a reasonable job of showing the general norm, at least for this set of authors. And I did a couple of follow-on searches, expanding the list of authors and of sources the authors might refer to, including, at the bluntest level, a reference to a standard casebook like Tushnet and Jackson's comparative constitutional law book. 

You will not be surprised, given the windup, to hear that relevant references almost never came up. There were two real exceptions. Jack Balkin, having been pushed on this point by two comparativists--you can't get more of a push back thanan article (by Kim Lane Scheppele) titled "Jack Balkin is an American," even if I am not convinced by that article's assertion of just how nonexistent originalism is elsewhere--gives genuine discussion of the topic in more than one article, including his initial response to those pieces. And while I am, again, inclined to think he overstates the rejection of originalism elsewhere, Jamal Greene has given serious consideration to the topic of judges in other nations using some form of originalism. (David Fontana's useful piece "Comparative Originalism" is a response to one such article from around 2010, and my sense from an outside perspective is that it successfully encouraged Greene to go further in treating the topic in subsequent pieces.) Greene is certainly a prominent scholar and critic of originalism and Balkin is certainly a prominent scholar and something of the topic as well.  

And that's just about it. An occasional glancing reference to Canada or Australia at most; usually not even that and, in the case of a couple of the most publicly prominent academic critics of originalism, critics who also retail their criticisms in the popular press, absolutely nothing. On their map, "the United States" might as well be retitled "The Known World" and the rest nothing but blank space. Once you start not seeing references in these writers' work to comparative constitutional methodology (including, in at least the countries mentioned above, originalism or debates about originalism), you start not seeing it everywhere.

This would not be so surprising coming from con law scholars making glancing references to originalism. One doesn't expect every piece of domestic legal scholarship to look at how other nations do things. (That is, one isn't accustomed to expecting it. Maybe the low expectation is the problem. Does it really make sense to write regularly about, say, an area of private law without discussing the jurisprudence in that area of other common-law countries?) And as I've said, I do comparative work all too seldom. But in the areas I write about most often, I at least read and sometimes discuss what is done in other countries. How could one not do so? So I do find it surprising that if one is writing a major article, let alone an entire book, focusing on and criticizing a particular method of constitutional interpretation, there would be no reference at all to countries whose experience might confirm, confound, or complicate one's criticisms. If all you focus on is a method, surely you should be interested in the absence or, as we have seen, presence of that method elsewhere. I don't expect everyone to be aware of the experience foreign judges interpreting the constitution of their host country; I wasn't. But since, as it turns out, there are scholarly treatments of the practice, and more broadly of originalism abroad, I ought to expect those who focus closely on the topic of originalism to know that and include it in their discussions. 

The same thing can be said of advocates of originalism, and the same results apply. A similar Westlaw search conducted with prominent academic/public defenders of originalism substituted for the names of its prominent critics revealed virtually nothing of relevance. Again, there were exceptions, most prominently William Baude. For the most part, however, the cupboard was bare of any revealed knowledge of or interest in full-on or trace practices of originalism in other nations' courts.

One can offer all this simply to point out an interesting point in an interesting news article, or, in a friendly way, as notice to these scholars of a missed opportunity. Or one could offer it to point out the unfortunate frequency with which scholars of domestic constitutional law fail to look to comparative materials. Comparative constitutionalists already know this, of course, but it never hurts to remind the rest of us.

I am inclined to say two more things. Two fairly standard criticisms of originalism, which thus are relevant for both the critics of originalism and its defenders, are that it is impossible and exceptional: it can't be done, and the idea that it can and must be done is uniquely, oddly, unfortunately American. Again I quote the passage from the Times: "Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said." I do not say that these judges succeed, either in getting to any accurate sense of original intent or in channeling social change to the political branches rather than the judiciary. But it is striking nonetheless that they choose this method and for these reasons. Depending on how much they actually succeed, surely this is relevant to the question of impossibility.

On the second point, it does seem true to me that the United States, and American constitutional law, among other aspects of American life, often involves a sense of exceptionalism and parochialism. It's a sense that tends to be shared by both champions and critics of the United States or particular legal or constitutional policies, since both are animated by a sense that this country has a unique and perhaps providential greatness--or is failing to live up to a unique and perhaps providential greatness, or is living up to a unique quality of sin and evil. (In this country, the Puritan past is never dead; it's not even past.) But writing about originalism as if it is an utterly American sin (or virtue), while betraying no interest in whether the practice has occurred or continues to occur elsewhere and despite the presence of relevant information about that very topic, not only makes any such criticism (or defense) less than definitive. Surely it is also a perfect example of American exceptionalism and parochialism.  

 

 

Posted by Paul Horwitz on November 30, 2022 at 11:02 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, November 29, 2022

A Podcast on "Are the Federal Rules of Evidence Unconstitutional?"

I had a great time being interviewed on Excited Utterance about my recent paper, "Are the Federal Rules of Evidence Unconstitutional?"

My conversation with the terrific host Alex Nunn is available here.

 

Posted by Ethan Leib on November 29, 2022 at 10:05 PM | Permalink | Comments (0)

Labor Law Group 2022 Meeting Program - cohosted by USD's Center for Employment and Labor Policy (CELP)

next week we are excited that the Labor Law Group 2022 Meeting is coming to USD - the first big event that our new Center for Employment and Labor Policy (CELP) is co-hosting. Professors Ruben Garcia and Labor Law Group Chair Jeff Hirsch put together the panels which include:

Discussing Discrimination

Speakers:    Brad Areheart, University of Tennessee College of Law

                        Marcia McCormick, St. Louis University School of Law

                        Rachel Arnow-Richman, University of Florida Levin College of Law

                        Michael Green, Texas A & M School of Law

Moderator:    Nicole Porter, Chicago-Kent College of Law

Hot Topics in Labor Law

Speakers:   Roberto Corrada, University of Denver, Sturm College of Law

                        Charles Morris, Emeritus, SMU Dedman School of Law

Lea VanderVelde, University of Iowa College of Law

Moderator:    Ruben J. Garcia, William S. Boyd School of Law, UNLV

The Local Labor Movement in Southern California

Mikaiil Hussein, President, United Taxi Workers of San Diego

Starbucks United Worker, Long Beach

Peter Zschiesche, Labor’s Alliance, San Diego

Technology in the Workplace

Speakers:    Matt Bodie, University of Minnesota Law School

                        Cindy Estlund, NYU School of Law

                        Jeff Hirsch, UNC School of Law

                        Orly Lobel, University of San Diego, School of Law

Moderator:    Jeff Hirsch

Worker Centers at the Intersections

Speakers:    Sameer Ashar, UC Irvine School of Law

                        Llezlie Green, American University Washington College of Law

                        César Rosado Marzán, University of Iowa College of Law

Moderator:    Noah Zatz, UCLA School of Law

All About Arbitration

Speakers:   Lise Gelernter, Emerita, University of Buffalo School of Law

Martin Malin, Emeritus, Chicago-Kent College of Law                               

Moderator:    Cyndi Nance, University of Arkansas, Fayetteville

 Organizing and the Law: Lessons from California Hotel Sector Campaigns

Innovating Work-Law Enforcement

Speakers:    Catherine Fisk, University of California, Berkeley School of Law 

                        Ruben J. Garcia, William S. Boyd School of Law, UNLV

                        Charlotte Garden, University of Minnesota Law School

 

Posted by Orly Lobel on November 29, 2022 at 08:12 PM | Permalink | Comments (2)

Saturday, November 26, 2022

Integralism Gets its Soft Launch

I had always assumed, based on my reading in the area, that any prospect of an American integralist state was a dead letter, but that if it did occur it would involve burrowing from within rather than a more forceful, open, top-down approach. I was wrong on both counts. I was right on a third point, but it's hardly anything to boast about. Most serious students of integralism had predicted that, when it finally came about, its political and intellectual leadership would come not from Cambridge or Heiligenkreuz or the back pages of an obscure journal like Newsweek, but from Kanye West.

Posted by Paul Horwitz on November 26, 2022 at 12:41 PM in Paul Horwitz | Permalink | Comments (0)

Friday, November 25, 2022

The Lost Right To Jury Trials

I want to highlight a new article in the Duke Law Journal by Andrea Roth on "The Lost Right to Jury Trials in 'All" Criminal Prosecutions." A cute point that people make in Con Law classes is that we do not always take the Constitution literally. And an example is that Article Three says that "all" criminal prosecutions must be by jury, but the Supreme Court held decades ago that "petty" offenses can be tried without a jury. Now we have a strong historical analysis of that issue that makes a convincing case that the Court was wrong.

 

Posted by Gerard Magliocca on November 25, 2022 at 08:11 AM | Permalink | Comments (0)

Wednesday, November 23, 2022

RIP: Cecilia "Cissy" Marshall, 1928-2022

The Washington Post reports that "Cissy" Marshall, Thurgood Marshall's second wife and the guardian of the "reputation and legacy" of the late civil rights giant and Supreme Court justice, has died at the age of 94. Its obituary is interesting and moving, if rather brief. The Times has not gotten around to running its obit yet, although I am reasonably sure it will. (Only "reasonably" sure, because the Times's obituary selection choices have become ever more unusual, unpredictable, and occasionally rather arbitrary. Although I was saddened to learn of the death of the fellow who voiced Batman in cartoons, I am still waiting on a Times obit for Joseph Raz.)  

Posted by Paul Horwitz on November 23, 2022 at 01:05 PM in Paul Horwitz | Permalink | Comments (0)

A Legal History Moonshot

I was thinking recently about what might be a "moonshot" project during my sabbatical. In other words, basic research that may well yield nothing but would have a large payoff in the unlikely event that there is something.

One possibility would be to go through each and every member of the Joint Committee on Reconstruction (especially the more obscure ones) to see if any of them wrote anything about the deliberations. The work of the Joint Committee is one of the great mysteries in constitutional history. The most prominent members--people like John Bingham and Thaddeus Stevens--did not leave behind any records about what occurred behind closed doors. And probably no member did, as you would think that if someone had we would know about that.

If I try, I'll report back on any discoveries. 

Posted by Gerard Magliocca on November 23, 2022 at 07:59 AM | Permalink | Comments (0)

Tuesday, November 22, 2022

JOTWELL: Campos on Francus on the Texas Two-Step

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Michael A. Francus, Texas Two-Stepping Out of Bankruptcy, 120 Mich. L. Rev. Online 38 (2022), another discussion of the use of bankruptcy in mass tort.

Posted by Howard Wasserman on November 22, 2022 at 02:33 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Holmes and Alito

Paul has offered detailed comments on the NYT story about the Hobby Lobby leak and the broader anti-choice campaign to, as Paul puts it, "meet, cultivate, and influence the justices through friendship and other contacts." Some regard the latter as the greater scandal.

Some of the hand-wringing about the "influence peddling" sent me to Justice Holmes, the House of Truth, and Holmes' many about free speech with Learned Hand, Harold Laski, Walter Lippmann, Zachariah Chafee, Felix Frankfurter, and others in 1919, during the eight months between Holmes' majority opinion in Schenck and his dissent in Abrams. Put differently, progressive activists and other non-parties and non-colleagues engaged with Holmes in-person and by mail in social, non-judicial settings, attempting to influence and change (ultimately successfully) his First Amendment views; those changes reflected in subsequent opinions, which the Justice's supporters praised and celebrated. This effort spread beyond free speech to bigger progressive causes such as labor organizing and workers' rights (with which Holmes was on board).

What, if anything, provides a meaninful difference between Holmes' engagement with Hand, et al. and Alito's engagement with Schenck, et al.? (Note I am focused not on the Hobby Lobby leak but on the broader campaign to kibitz with the Justices).

Continue reading "Holmes and Alito"

Posted by Howard Wasserman on November 22, 2022 at 09:31 AM in Judicial Process, Law and Politics | Permalink | Comments (0)