Thursday, February 06, 2025
What happens on Pullman Abstention
The Fourth Circuit abstained under Pullman from the dispute over the North Carolina Supreme Court election; the district court had abstained under Burford, which the court of appeals said was the right conclusion for the wrong doctrinal reason.
But the court's explanation of the difference in coverage and effects seems off. Pullman is appropriate because unclear state laws may moot a federal constitutional claim. True enough. But Pullman differs from Burford in that Pullman requires the federal court to retain jurisdiction should state litigation not moot the federal issues. Under Burford, the district court dismisses because the dispute will be resolved in the state's complex remedial system (the reason for abstaining in the first place) and the case will not return to the district court. The court ordered the district court to retain jurisdiction over the federal issues, citing England.
The court relied on long-standing precedent for this, but it seems wrong. Pullman should require dismissal of the action to allow the parties to fully litigate state issues through the state judiciary. The case may return to federal court, but it does so as a new lawsuit. England does not address the court retaining jurisdiction. It allows the plaintiff to "reserve" the federal issues in state court, thereby avoiding claim preclusion upon possible return to federal court with the new purely federal action.
Retaining jurisdiction following Pullman abstention also destroys the distinctions with certification. Certification was a more expedient alternative (a "more precise tool," as Justice Sotomayor put it) because: 1) it went straight to the state's highest court and 2) the federal court otherwise retained the action pending resolution of the state questions. The Fourth Circuit's approach destroys one of those two distinctions.
Not the biggest deal given everything else being litigated in federal courts (more on that later). But a notable example of how lower courts go in strange directions.
Posted by Howard Wasserman on February 6, 2025 at 10:48 AM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, February 05, 2025
JOTWELL: Bartholomew on Noronha on equitable awards
The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Alexander J. Noronha, On Behalf of All Others Similarly Situated: Class Representation and Equitable Compensation, 122 Mich. L. Rev. 733 (2024), on the equitable origins of class-rep awards.
Posted by Howard Wasserman on February 5, 2025 at 07:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)
Monday, February 03, 2025
Time is a flat circle, sport-and-speech edition
My first published article at FIU, Symbolic Counter-Speech, explored the idea of using symbols to protest the symbols themselves. Examples included events up to and at the start of the Iraq War, when Canadian baseball and hockey fans booed Star-Spangled Banner to protest the U.S.-led war and U.S. baseball fans booed Oh, Canada because Canada did not support the war. (Surprisingly, the U.S. did not go so far as to rename it "Freedom Bacon").
Reports of Canadian hockey fans booing the anthem in response to President Trump initiating a trade war with Canada shows we have gone nowhere in 22 years.
Update: Fans at a game between Nashville and Ottawa in Nashville booed Oh Canada. Free speech for me and for thee.
Posted by Howard Wasserman on February 3, 2025 at 08:19 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)
Sunday, February 02, 2025
Personalism mediated by parties
I like Paul's modification of my post; I offer one different framing. Madison, et al. knew and feared personalism. As others have noted, visions of Trump (and Musk and other hangers-on) fill The Federalist. Madison believed some combination of changing-and-evolving factions and inter-branch competition would limit the success of personalism. So the (unexpected?) development of political parties enhances the danger of personalism--the reach of the personal can take root and spread across the branches through the mediating force of the parties. The party connects members of Congress to the demagogue and places them in greater thrall to the personal than they otherwise might have were he acting alone.
As for the Democrats being out of ideas: Would it make a difference? I would love to see them bring the Senate to a grind. But I don't know what good "new ideas" they could offer that would make a difference or slow down everything that has been going on.
Posted by Howard Wasserman on February 2, 2025 at 02:00 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)
Past the Extreme, Actually
I agree with Howard that the Levinson and Pildes article is very relevant to the current moment, keeping in mind that they wrote it on the understanding that it has been parties have been more relevant than powers for quite some time, including periods in which our conventional habit was to treat separation of powers as if it was still relevant and operative. But I think he misses one trick--a point that suggests that reality has outstripped the Levinson and Pildes thesis, perhaps rendering it descriptively inaccurate on the other end of the extreme. Howard suggests that current events indicate--or confirm, if one agrees with Levinson and Pildes--that party loyalties prevail over branch loyalties. It seems to me that the problem includes but is broader than that. The larger problem is that, in our two-party system, we actually have not one but zero functioning political parties--one because it is locked in the grip of personalism, and the other because it currently lacks almost any identity at all.
The untrammeled personalism of the "party" in power is indeed a train wreck for separation of powers and federalism, among other things. But it's worth noting that Levinson and Pildes didn't think the inevitable result of separation of parties was chaos and incoherence--not, at least, as long as the parties were not only polarized but "cohesive." The adoption of personalism as a substitute for ideas or principles on the part of the Republicans is indeed a serious problem for this or any party in power. But when the opposition party is also lacking even a substitute form of cohesion, including ideological cohesion or a cohesive program--even a cohesive program of opposition--and certainly lacks anything like a leader, the problem is graver. In those circumstances--our circumstances, in my view--the possibility that party interests might serve as a framework in place of the branch interests that Madison envisioned is bound to be even more imperfect and unreflective of any sort of constitutional design.
UPDATE: Just a brief note about Howard's subsequent post. I doubt that "new ideas" as such would make a difference, at least not unless those ideas reflected some actual change in the electoral zeitgeist and uptick in party energy and enthusiasm. But there still has to be enough of a there there, enough of a core around which cohesion can take place, for a party to effectively function as an opposition. I don't see that as being the case currently, even by Will Rogers standards. ("I am not a member of any organized political party. I am a Democrat.") That assessment may be mistaken but is certainly not without foundation. And it should not be surprising, given the period of realignment characterizing both parties. The Republican Party has effectively papered over its ongoing post-fusionist debates with a personality; the Democrats have neither resolved what they are nor yet found some means of successfully avoiding that issue.
Posted by Paul Horwitz on February 2, 2025 at 12:45 PM in Paul Horwitz | Permalink | Comments (0)
Saturday, February 01, 2025
Levinson & Pildes, to the extreme
Daryl Levinson & Richard Pildes' Separation of Parties, Not Powers argued that the basic component and theory of separation of powers--competition and cooperation between the branches--ebbs and flows depending on whether one party controls both branches. They published the piece in 2006, covering periods through W.'s first term, when the push-and-pull was over policy and perhaps some political use of legislative oversight.
The current crisis (and yes, it is a crisis) takes their thesis to the extreme. It is not just that a Republican Congress does not push back on a Republican President's policy goals and actions; that follows from shared policy preferences. This is a Republican Congress not pushing back on a Republican President's efforts to neuter Congress and to place all power in the executive. It shows that, even in the extreme, political partisanship defeats separation of powers--party loyalties and prerogatives prevail over branch loyalties and prerogatives.
Posted by Howard Wasserman on February 1, 2025 at 04:47 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)
Saturday Music Post - Just a Closer Walk with Thee
When a song is described as a "gospel and jazz standard," you can be pretty sure that it comes from New Orleans. "Just a Closer Walk with Thee" -- author unknown and origin uncertain -- can be heard today in churches, clubs, and of course, funerals, in both vocal and instrumental renditions. It most likely dates back to the late the 19th century, sung in some version by African Americans on southern plantations, but its known history begins in 1940, when the composer Kenneth Morris heard a porter singing it on a train from Kansas City to Chicago. He published it with his own revisions that year, and the first recording was released by the Selah Jubilee Singers in 1941 (at the bottom of the post), and in the same year by Sister Rosetta Tharp (who may have started the song's transition to jazz). As is not unusual with gospel music, Bluegrass and country musicians have also picked it up, as you can see at The Faculty Lounge.
Posted by Steve Lubet on February 1, 2025 at 05:02 AM | Permalink | Comments (0)
Tuesday, January 28, 2025
303 Creative, Exclusive Private Enforcement, and Blue State Revenge
My latest with Rocky Rhodes, in the Journal of Legislation. We argue that a Blue State wanting to create a real counterpart to S.B. 8 and its copycats should enact an exclusively privately enforced public accommodations law, targeting the First Amendment opt-out recognized in 303 Creative.
Abstract after the jump.
Continue reading "303 Creative, Exclusive Private Enforcement, and Blue State Revenge"
Posted by Howard Wasserman on January 28, 2025 at 02:26 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
"Palpably unfair acts" and the Infield Fly Rule
Because I do not watch actual football games, I am late to the discussion of another example of Infield Fly-like rules in other sports, this time in the Eagles-Commanders game.
The Eagles had the ball about a yard from the goal line. Everyone knew they would run the "Tush Push" (three players in the backfield push the quarterback on a sneak), which has become nearly unstoppable. The Commanders tried to time the snap and get to the QB before he had the ball and the pushers had a chance to push, including by a player jumping over the top of the line. They mistimed it three times, earning an offsides penalty each time. After the third infraction, the official announced that he would, if the Commanders did not cut the crap, call a palpably unfair act, which allows an official to award a score.
This is an IFR-type situation: The Commanders engaged in conduct contrary to ordinary expectations (intentional infractions); the Eagles could not counter (they cannot stop a player from encroaching repeatedly); it secured the Commanders an overwhelming advantage (the Eagles never had a chance to snap the ball); and the Commander had the incentive to keep doing it because it incurred no risk to keep doing it and thus hoped to time it right that one time.* The palpably unfair conduct call eliminates the incentive to keep trying the play by imposing a cost--the touchdown they are trying to stop.
[*] An offside infraction is harmless with the ball inches from the goalline--the the penalty is half the distance to the goal line (Zeno's Paradox applied to football) and no new set of downs.
I addressed the palpably unfair rule as a limiting rule in the IFR book when discussing Super Bowl XLVII between the Ravens and 49ers. The Ravens had a safety kick with seconds remaining on the clock. Ravens players were recorded on the sideline saying that if the 49ers returner broke free, they should run onto the field and tackle him to keep him from scoring. Such a play would earn a palpably unfair call and likely the officials awarding the touchdown. And the Ravens' planned strategy fits the IFR elements--contrary action according an overwhelming advantage that the opponent cannot counter, with the team having every incentive to try it.
Interestingly, some have argued for a different limiting rule--ban the tush-push. This argument sees the IFR-type problem in reverse: The offense enjoys an overwhelming-and-non-c0unterable advantage (the mass of bodies and momentum is impossible to defend) and an incentive to do this every time in that short-yardage situation. Eliminating the tush-push eliminates the unfair disadvantage on the defense. And, in turn, eliminates the defense's incentive to commit palpably unfair acts.
Update: Whether the tush-push should be banned is an interesting one. Most limiting rules arise because the structure of the game creates the overwhelming imbalance--the runners in an infield fly situation are stuck and will be put out whether they run or stay; the time the offense loses running a futile play against extra defenders cannot be recovered. We can debate whether the imbalance from the tush-push is structural. On one hand, this is one team taking advantage of its bigger-and-stronger players to overwhelm the defense; we did not ban peak Earl Campbell from running through over-matched defenders (watch some old clips). And we allow multiple defenders to tackle one runner; that does not differ from a collective "runner" moving forward as a giant blob. It also is telling that only the Eagles use this move to the same degree. On the other, one could define the structure of football as one ball carrier against the defense, not an offensive collective against the defense.
Posted by Howard Wasserman on January 28, 2025 at 12:19 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Monday, January 27, 2025
LaForte Fractures
Sharing for no good reason: We have been watching The Pitt, Noah Wylie's new not-ER hospital drama. In the second episode, they treat a guy who hit a car door while riding on a scooter and face-planted, suffering a LaForte Fracture, in which the top of his face comes lose from the bottom jaw (they refer to it as a "floating face"). They show (because this is not a network show) the doctors moving the top of his face back into place.
This development excited us because I suffered a similar injury in a bicycle accident a couple years ago. Mine was a LaForte II (only the upper jaw was loose), as opposed to the LaForte III on the show. Still, it took us back. (My Fed Courts students from that semester sent me a get-well card wishing me a speedy recovery from my "concrete and particularized injury." They learned something.)
I had one nitpick: They made a big point of saying that the guy was not wearing a helmet, intimating that this worsened the accident and "this is what happens when you're stupid and don't wear a helmet." This is nonsense. I was wearing a helmet. A helmet does not help when you slam face-first in the pavement.
Posted by Howard Wasserman on January 27, 2025 at 04:23 PM in Howard Wasserman | Permalink | Comments (0)