Friday, October 22, 2021

Procedure makes strange bedfellows

Jonathan Adler writes about an amicus brief from the Firearms Policy Coalition supporting Whole Woman's Health cert petition (which the Court granted). The Coalition fears (although I am not sure with good reason) New York or California enacting a similar law targeting gun possession, one of the parade of copycat laws imagined.

I am curious if media groups will enter the fray, because the danger to them is more real than it is to gun owners.. The closest historical analogue to this is New York Times v. Sullivan, when government officials triggered a coordinated campaign of defamation lawsuits against Northern media that, before SCOTUS stopped it, produced judgments that would amount to about $2.7 billion in 2021 dollars). And given the noise about overruling New York Times, it is easy to imagine a state redefining defamation in a way inconsistent with NYT, leaving the press to challenge the law defensively in private enforcement suits. The defamation analogue is the best argument why there is nothing new in this law and certainly not the blatant due process violation. But how the Court decides WWH (more so than how it decides United States v. Texas) will affect the future of defamation litigation. If a would-be civil defendant can sue a judge arguing that the state law under which a private plaintiff wants to sue is constitutionally invalid, every potential defamation plaintiff will race to federal court in response to any hint of a potential defamation action.

In fact, media outlets and other speakers are worse off than abortion providers. The argument that SB8 plaintiffs act under color is strong; the providers' problem is that their target defendant (Mark Dickson, the head of East Texas Right to Life) has not brought an SB8 action. Defamation defendants have no such option--no one believes an ordinary tort plaintiff acts under color.

Posted by Howard Wasserman on October 22, 2021 at 05:34 PM | Permalink | Comments (0)

SCOTUS grants review in SB8

SCOTUS granted cert before judgment in United States v. Texas and WWH v. Jackson, with argument on November 1. The grant in Texas is limited to whether Texas can sue. The Court declined to lift the Fifth Circuit's stay of the injunction in United States, so the law remains enforceable; Justice Sotomayor was the lone dissent on that point.

Our papers are about to change dramatically.

Posted by Howard Wasserman on October 22, 2021 at 01:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Thursday, October 21, 2021

Ely, Roe, and the Wages of Judicial Recklessness

Will Baude has a new post on John Hart Ely’s fascinating precedent-based defense of Planned Parenthood v. Casey. Part of what makes Ely’s defense so interesting is that he had strongly criticized Roe v. Wade, arguing that it was “not constitutional law and gives almost no sense of an obligation to try to be.” You should read the whole post, including Will’s commentary, but I want to focus on this paragraph by Ely:

I don’t have a well-developed theory of stare decisis, that is, of when courts should defer to precedent rather than reconsider it afresh; I’m actually not sure anyone does. My fear, of course, is that I don’t think Roe should be overruled because I approve of it politically if not constitutionally, and there may indeed be something there. I also think, as the letter suggests, that Roe has contributed greatly to the more general move toward equality for women, which seems to me not only good but also in line with the central themes of our Constitution. I don’t think a principled opinion along those lines could have been written at the time— “We don’t know exactly how, but somehow this holding will importantly help undergird a more general movement toward women’s equality, which movement is mandated by the Constitution” obviously doesn’t make it—but I am clear that overruling it now would wreak havoc on that constitutionally legitimate movement.

Ely is not saying that Roe engendered reliance and so we are stuck with a legally meritless ruling. Rather, Ely seems to be describing a constitutionally good outcome that could not have been achieved through constitutionally good methods. How can that be?

Continue reading "Ely, Roe, and the Wages of Judicial Recklessness"

Posted by Richard M. Re on October 21, 2021 at 12:39 PM | Permalink | Comments (8)

Wednesday, October 20, 2021

The Most Overrated (Former) Supreme Court Justice

Let's take a break from serious posts and try something fun. Who is the most overrated former Supreme Court Justice? (I'm excluding the current Justices from consideration.) Two names that immediately come to mind are Holmes and Story, but I want to try out a different idea.

It seems to me that Chief Justice Hughes is rather overrated as a Justice. He was a good Governor of New York and Secretary of State. He was an outstanding lawyer. He came within a whisker of being President in 1916. And in my view, Hughes would have done a better job that Woodrow Wilson did in leading the country during World War I and its aftermath.

As a Justice, though, I think Hughes was mediocre at best. He did little of note as an Associate Justice from 1910-1916. As Chief Justice, his main claim to fame is that he successfully steered the Court though the Court-packing crisis of 1937. But you could just as easily say that his poor leadership before 1937 helped cause that crisis. And I've always found Hughes's opinions rather opaque and unhelpful.

In any event, I thought this might jump-start some interesting conversation in the comment thread. 

Posted by Gerard Magliocca on October 20, 2021 at 09:10 PM | Permalink | Comments (10)

JOTWELL: Mullenix on Norris on neoliberal procedure

The new Courts Law essay comes from Linda Mullenix (Texas) reviewing Luke Norris, Neoliberal Civil Procedure, 12 UC Irvine L. Rev. (forthcoming 2022).

Posted by Howard Wasserman on October 20, 2021 at 11:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 19, 2021

VAPs and Fellowships 2021-2022

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

You may also add information to the spreadsheet.

Posted by Sarah Lawsky on October 19, 2021 at 07:00 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (1)

Speech or Debate Immunity and defensive litigation

Donald Trump has sued to stop compliance with 1/6 Committee subpoenas; defendants are the committee, chair Bennie Thompson, the Archives, and David Ferriero, the national archivist. The suit is the usual Trump bullshit, with allegations that the committee is "attempting to damage the republic itself" (as opposed to 1/6 itself, which has been converted into an act of patriotic heroism).

Regardless of the validity of the subpoena, I cannot figure out how a lawsuit can be brought or proceed against a member of Congress and a congressional committee, both of whom enjoy immunity from being "questioned in any other Place" for any speech or debate, which includes issuing legislative subpoenas. This offers another example of litigation being pushed into a defensive rather than offensive posture. The target of the subpoena cannot go on the offensive to enjoin enforcement; he is supposed to "stand on his privilege and go into contempt," challenging the validity of the subpoena as a defense in either a civil-enforcement proceeding or a criminal-contempt proceeding.

Posted by Howard Wasserman on October 19, 2021 at 08:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, October 18, 2021

The Burden of Proof in a Section 3 Case

Today ex-President Trump sued the January 6th committee to block the disclosure of information which he says is privileged. Whatever you think of the merits of this suit, the former President is likely to prevail in the sense that the information will not be disclosed to the committee. Why is that? Because the January 6th committee will probably not be in business past the end of next year, if you assume (as I do) that Republicans will win back the House in 2022. As long as the litigation filed today lasts beyond 2022, the Committee will probably get zero.

This practical thought tees up my next point. If you view Section Three of the Fourteenth Amendment as an eligibility requirement to be elected President, then the burden of proof is on Trump to show that he is eligible, not on a state to show that he is not. Thus, claiming executive privilege will only hurt him there, not help him. It could be unlike any prior litigation involving Trump personally, where people accuse him of wrongdoing and, of course, bear the burden of proof.

Suppose I want to run for President. I must supply information proving that I am older than 35, a natural-born citizen, and a national resident of sufficient length to qualify under Article II. If I claim that the only documents containing this information are privileged, then I cannot meet my burden of proof.

Is Section Three the same? It depends whether you view that provision as an eligibility requirement or as a punishment. (As I explained in my law review article on Section Three, there is decent authority on both sides of that issue.) If exclusion from office is a punishment, then surely the state bears the burden of proof. If eligibility is the correct framework, then the candidate bears the burden. 

You can take this analysis one step further. If Section Three is an eligibility requirement, then a state election official can enforce this requirement if there is state law authorization or if you think Section Three is self-executing. (These are other problems to be resolved.) If Section Three is a punishment, though, then a state prosecutor must be the one taking action under some state statute. 

Posted by Gerard Magliocca on October 18, 2021 at 09:04 PM | Permalink | Comments (7)

Lots of SB8 stuff

Rocky and I have an essay on law.com (paywalled, I believe) summarizing our basic arguments. We also split our major article into a series. The piece on the limits and possibilities for offensive litigation will be published in American University Law Review in January. The piece on defensive litigation will be published in SMU Law Review in March. And  we think we can spin one or two more out--one on the New York Times/defamation analogy and one on retroactive liability (SB8 has a four-year limitations period and allows for retroactive liability for abortions performed while a "decision" rendered the law unenforceable.

Meanwhile, the U.S. on Monday asked SCOTUS to lift the Fifth Circuit stay on the district court injunction (rendering the law unenforceable) and to treat the motion as a petition for cert before judgment, asking the Court to set the case for argument this Term. The U.S. lawsuit is the wildcard in this. On one hand, it preempts our analysis as to SB8, rendering it unnecessary for providers and advocates to find a way to litigate. On the other, this is bigger than Texas and SB8. States will follow suit and the U.S. cannot and will not jump into every dispute, whether for political, policy, or resource reasons. So rights-holders must find a way to work with these laws.

Posted by Howard Wasserman on October 18, 2021 at 07:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Qualified immunity returns with a vengeance

It was only about 18 months ago that it looked as if SCOTUS was gearing up for major changes to qualified immunity. More than a dozen cases, some with egregious facts, were on the docket. Justice Thomas had questioned the scope and pedigree of the doctrine and called for reconsideration. Although the Court denied cert in all of those dozens, it summarily reversed a grant of QI in a case with factual disputes.

That came to a record scratch today with two summary reversals in Fourth Amendment cases, without noted dissent, based on the factual dissimilarity between the circuit precedent relied on and the facts at issue. One case, Rivas-Villegas, questioned whether circuit precedent can clearly establish or whether SCOTUS precedent is required (or perhaps precedent from multiple circuits).

Posted by Howard Wasserman on October 18, 2021 at 03:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, October 15, 2021

Misapplying the thin-skulled plaintiff

I agree with most of Ruth Marcus' takedown of Yale Law School's attempt to extort an apology from a student over an obnoxious email.*

[*] The student surreptitiously recorded his conversations with two deans--is Connecticut a one-party state?--and it is really hard to listen to those recordings in which the deans remind him of applying to the Bar and not laugh when the school says "No student is investigated or sanctioned for protected speech." No sanction, but a not-subtle "nice Bar Exam you have to take, shame if you get dinged by not apologizing."

I take issue with this:

Every first-year law student learns in torts class about the plaintiff with the “eggshell skull” — someone who suffers a greater injury than normal and must be compensated accordingly. But in the modern world, it seems, everyone’s skulls are susceptible to cracking at the slightest provocation.

The eggshell plaintiff is a go-to move in discussions (critical or supportive) of attempts to restrict offensive speech. Feminist anti-porn arguments rested on this theory--the eggshelliest person might decide to emulate porn and commit crimes against women, so this rule justifies banning porn. Marcus tries to argue that everyone is acting like an eggshell plaintiff as to offensive speech and that law-school administrators are allowing.

Both arguments rest on a misapplication of the eggshell-plaintiff concept. Marcus defines it correctly--a wrongdoer takes the injured person as he finds her and must pay a uniquely great compensation for a uniquely great injury. But this is a compensation rule, not a liability rule. A person is not liable for conduct that would not injure an ordinary person, and thus is not wrongful, even if it injures the eggshell plaintiff. The rule kicks in when the defendant has engaged in wrongful conduct and we have to determine how much he pays--compensation is tailored to the injured plaintiff, even if her injuries, and thus the compensation, are unusually great. We do not establish our liability rules according to the weakest, most sensitive, most easily persuaded, or the most easily offended. The eggshell rule cannot be used to justify greater restrictions on speech or conduct and should not be used to explain them.

Posted by Howard Wasserman on October 15, 2021 at 02:35 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

How would RBG have voted in Johnson and Eichman?

Katie Couric is being (rightly) criticized over revelations that she edited RBG's comments about Colin Kapernick and kneeling NFL players during a 2016 interview, citing a desire to "protect" the Justice from questions and issues that Kouric believed she was too old to understand. According to reports:

The final version of the story, which meant to promote a compilation of Ginsburg’s writings called, My Own Words, included her criticism of ‘stupid’ and ‘arrogant’ protesters.
But what was left out was arguably more inflammatory.
Ginsburg went on to say that such protests show a 'contempt for a government that has made it possible for their parents and grandparents to live a decent life.'
She said: ‘Which they probably could not have lived in the places they came from ... as they became older they realize that this was youthful folly. And that’s why education is important.’
Couric claims that she ‘lost a lot of sleep over this one’ and still wrestles with the decision she made.
I will leave criticism of Couric's journalistic practices and the cult of RBG to others.
 
I want to pose a different question: Given these views of disrespect for the flag, how would RBG have voted in the flag-burning cases? Burning a flag shows greater "contempt for government" and is more a thing someone could not do "in the place they came from" compared with kneeling during a flag-centered ceremony. Ginsburg generally followed the left-liberal view of free speech. But perhaps, like Justice Stevens, she believed the flag and its surroundings demand a unique First Amendment carve-out.

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

Defining an Insurrection

One question that will arise in any Section Three litigation is whether what occurred at the Capitol in January was an insurrection in a constitutional sense. One argument against that conclusion is that an insurrection for Section 3 purposes must be comparable to the Civil War. The riot at the Capitol, the argument goes, was not significant enough to qualify. 

While I'm sure there'll be more research on this point, my initial review of sources prior to the Civil War indicates that "insurrection" was used to refer to all sorts of smaller scale events that involved a group of people who used violence in part to obstruct a legal process. For instance, the Whiskey Rebellion of the 1790s was described as the "Whisky Insurrection." Shays Rebellion in the 1780s was described as an insurrection. Nat Turner's Rebellion in the 1830s was described as the "Southampton Insurrection." And so on.

Here's another interesting piece of evidence. When Federalist #10 appeared in the newspapers in New York, the subtitle of Madison's Essay was "The Union As a Safeguard Against Domestic Faction and Insurrection." Madison was not talking about a civil war or some large-scale calamity. He was instead explaining why a larger union would tend to prevent factions powerful enough to obstruct the law.

Did Section Three of the Fourteenth Amendment change the definition of insurrection in 1868? I don't think so. Nobody at the time said that they were applying a stricter or more limited meaning. And the post-bellum use of the term does not seem different.

BTW, I didn't know the subtitle (or headline) of Federalist #10 until yesterday. Makes me wonder how the other essays were subtitled. 

Posted by Gerard Magliocca on October 15, 2021 at 09:21 AM | Permalink | Comments (19)

Thursday, October 14, 2021

5th Circuit stays injunction in US v. Texas

Here, over one dissent. No reasoning, other than citing to the 5th Circuit and SCOTUS stay decisions in WWH. That seems too facile to me. There are procedural and remedial issues in this case, but they are different than those in WWH, so those reasons cannot support the stay here. Plus,  the government's case is stronger, even with the procedural questions there. A district court's 113-page analysis in a case the federal government believed was extraordinary enough to pursue is entitled to greater deference, especially given the irreparable harm to the pregnant women of Texas.

SCOTUS is next.

Posted by Howard Wasserman on October 14, 2021 at 10:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

FDR on States'-Rights

One of the strongest (and most surprising) defenses of federalism came from Franklin D. Roosevelt in 1930. As Governor of New York, FDR gave a radio address on the subject that took a pro states'-rights view that is (needless to say) ironic given his actions as President. Here is a link to the speech, and here are some choice quotes:

[T]o bring about government by oligarchy masquerading as democracy, it is fundamentally essential that practically all authority and control be centralized in our National Government. The individual sovereignty of our States must first be destroyed, except in mere minor matters of legislation. We are safe from the danger of any such departure from the principles on which this country was founded just so long as the individual home rule of the states is scrupulously preserved and fought for whenever they seem in danger.

The whole success of our democracy has not been that it is a democracy wherein the will of a bare majority of the total inhabitants is imposed upon the minority, but because it has been a democracy where through a division of government into units called States the rights and interests of the minority have been respected and have always been given a voice in the control of our affairs.

Unfortunately, there is no audio available for this address, but read on.

 

Posted by Gerard Magliocca on October 14, 2021 at 01:14 PM | Permalink | Comments (5)

The state role in offensive and defensive litigation

An interesting exchange between Justice Kavanaugh and counsel for Kentucky in Cameron v. EMW Women's Surgical Center. At issue is whether the attorney general can intervene at the appellate stage to defend a law when other executive officers will not do so. Here is the exchange:

Continue reading "The state role in offensive and defensive litigation"

Posted by Howard Wasserman on October 14, 2021 at 06:28 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, October 13, 2021

Should Court Reformers Attack the Idea of Law?

Continuing their important and timely project of promoting court reform, Professors Ryan Doerfler and Sam Moyn have written a scathing book review that nonetheless makes me think much more highly of the book being reviewed. At issue is Justice Breyer’s new “pamphlet,” as Doerfler and Moyn call it, and particularly its claim “that it would be dreadful to abandon the line between politics and law.” 

In their review, Doerfler and Moyn cast the failure of the law/politics distinction as the core reason to reform the Court. They argue that we have nothing to fear, and much to gain, from “open recognition that law is political.” It is easy to see why they would make that point. Defenses of the status quo sometimes insist that the Court is just doing law, so critics should take their political gripes elsewhere. Doerfler and Moyn want to preempt that defense by showing that the Court is really doing politics, rendering it a legitimate target for ideological critique. 

Yet the case for disempowering the Court doesn’t actually depend on rejecting the law/politics distinction and would be much more persuasive if it did not try to do so. 

For one thing, there is a difference between law and politics, haters notwithstanding. Just as a naïvely absolute law/politics division is oversimple, so too is it untenable to claim that law never has, or cannot possibly have, a practical, normative, or sociological identity different from politics. Doerfler and Moyn state that “Breyer comes exceedingly close to confessing that the Supreme Court is actually a political institution.” A more charitable reading of the book is that Breyer is channeling the sophisticated views of legality that are taught in jurisprudence courses every day. If Doerfler and Moyn embrace a similarly nuanced view, then perhaps there isn’t such a stark opposition between the reviewers and the Justice after all.

For another thing, the idea that the Court should be weaker is entirely compatible with the law/politics distinction. Perhaps the Court is just not very good at answering legal questions, at least in its current configuration. Or maybe the laws that the Court applies are themselves too capacious, or too amorphous, for democracy to flourish. If the Court is getting the law wrong, or if the law is itself undesirable, then we might have eminently good reason for judicial disempowerment—as many conservative critics of the Court have argued in recent decades. By seeming to insist on collapsing law and politics, Doerfler and Moyn prevent themselves from laying claim to these kinds of arguments and make adversaries out of allies.

Finally, frontal attacks on the law/politics distinction, besides being exaggerated and unnecessary, can indeed be very harmful. Breyer makes this point both in his book and in several interviews, and Doerfler and Moyn single it out for special rebuke. Here is one such passage from their article:

Identifying a very particular American institution with the “rule of law,” Breyer similarly remarked in a New York Times interview in late August that “tyranny, autocracy, irrationality” are the only alternatives. But Breyer’s belief that reform will bring lawlessness and oppression seems entirely melodramatic, given that no court in any other country enjoys the kind of policymaking authority our Supreme Court does—and those democracies often function better.

If Breyer is being “melodramatic,” then perhaps his critics are as well. In the interview that Doerfler and Moyn reference, Breyer was explicitly open to more careful reforms, like term limits. What Breyer is trying to say (I think) is that having a "rule of law" that is separate from politics is a precious, fragile thing. A society that completely rejects that separation, because it cannot see that judges do something different from politicians, is in trouble. Thus, we should guard against well-intentioned reforms that assume, or aspire to achieve, the collapse of law into politics. In this way, a melodramatic defense meets a comparably melodramatic critique. 

Doerfler and Moyn reply that the U.S. Supreme Court is the most powerful court in the world. Perhaps so, but it surely isn’t the only court premised on the existence of law. In essence, Breyer’s defense forces Doerfler and Moyn to shift to a different topic, one that they should have focused on all along: power. They can leave the law/politics distinction alone.

Posted by Richard M. Re on October 13, 2021 at 10:09 PM | Permalink | Comments (2)

Argument in Thompson v. Clark

Here is my SCOTUSBlog recap of argument in Thompson v. Clark. My best guess is that SCOTUS reverses and holds that a showing of innocence is not necessary, that "not inconsistent with innocence" is enough.

Posted by Howard Wasserman on October 13, 2021 at 06:56 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Justice Thomas?

Justice Thomas has asked the first question in the open-question period for all sides in every case this Term. Is this intentional and where is it coming from? There was a lot of talk about Thomas asking more questions under the orderly questioning from last Term's remote arguments. But he has carried it the normal format* and the rest of the Court seems to defer to him at the outset of aeguments.

[*] Which seem less Wild West than pre-pandemic. The Justices talk over one another less often, the Chief does not have to play traffic cop, the Justices interrupt less, and attorneys have more time to respond to questions.

I remember reading a lot of arguments in the late-'90s and it felt as if Justice O'Connor asked the first in many cases. It was a gut reaction and I never attempted to measure it. Here is is clear and I am wondering why.

Update: According to Justice Sotomayor at NYU, the Justices agreed to interrupt less and give each other space in response to the Jacobi studies. Although the goal was to interrupt women Justices less often, the side effect was drawing more engagement from Thomas. Still not sure where the "you go first" deference comes from. Anyway, I wonder if this will cause the Chief to acknowledge that some legal scholarship benefits the Court, beyond stuff about Kant and 18th-century Bulgaria.

Posted by Howard Wasserman on October 13, 2021 at 03:41 PM in Howard Wasserman, Judicial Process | Permalink | Comments (1)

The Return of Space Law

Space law was a hot topic in the 1960s. I recall from law school a portrait of Myres McDougal that had the moon in the background because of his work on space law. 

Needless to say, space law has not been a hot topic since the 1970s. Indeed, it's almost not a topic at all. But that should start to change. The advent of space tourism means that people need to start thinking harder about basic questions of jurisdiction and substantive regulation for injuries that occur on a space flight. Some of the treaties on space law were made with the Soviet Union and are woefully out of date, for example. 

BTW, you could ask whether maritime law might provide a better template for space law than the common law, but I'd need to give that more thought.

Posted by Gerard Magliocca on October 13, 2021 at 09:02 AM | Permalink | Comments (5)