Monday, November 29, 2021

Who's Afraid of Gradualism in Dobbs?

The Supreme Court may be poised to overrule Roe v. Wade and eliminate all constitutional abortion rights. That sweeping result is teed up in Dobbs v. Jackson Women’s Health Organization, a case to be argued on Wednesday. Yet whether to overrule nearly 50 years of precedent is not a question that the Court is prepared to answer. Even though both parties and many observers are eager for a final reckoning with abortion rights, both the public and the Court itself would be far better served by a more gradual, judicious approach.

Continue reading "Who's Afraid of Gradualism in Dobbs?"

Posted by Richard M. Re on November 29, 2021 at 11:00 AM | Permalink | Comments (13)

Still no SB8

Weird. With each passing day, the logic of cert before judgment (which required four votes) and expedited review (which required five, I believe) fades. It makes no sense to rush the case, then decide it in the ordinary stream of the Term.

New cynical take: The Court releases the decision on Wednesday morning, prior to the Dobbs argument, allowing WWH to proceed. That "victory" for reproductive freedom pulls public attention off Dobbs, which will contain numerous hints that Roe/Casey are not long for this jurisprudential world.

Posted by Howard Wasserman on November 29, 2021 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, November 28, 2021

More on the preferred first speaker and the futility of "conversations"

The First Amendment presumes a model of "reasoned debate" in which parties hash out ideas through reasoned and civil discourse. That does not reflect practice, because of what I have described (borrowing Popehat's phrase) as the problem of the "preferred first speaker," in which an initial speaker has unfettered discretion to speak however he wishes, while the burden of civility rests on counter-speakers to "sit quietly, listen to what he says, perhaps ask a question or make a comment during Q&A" if the preferred speaker deigns to engage with them.

Case in point is comedian Dave Chappelle's visit to his former performing-arts high school, ostensibly to meet and engage with supporters and critics. According to reports (there is no video or audio, since everyone was told to lock their phones in magnetic pouches, there was not much "discussion" to be had. One student stepped to the microphone and said "I’m 16 and I think you’re childish, you handled it like a child." Another asked a question described as "antagonistic." Another walked out. Chappelle's responses were varying degrees of mocking or dismissive--"My friend, with all due respect, I don’t believe you could make one of the decisions I have to make on a given day;" "I’m better than every instrumentalist, artist, no matter what art you do in this school, right now, I’m better than all of you. I’m sure that will change. I’m sure you’ll be household names soon.” The student who left "couldn’t even entertain the idea of a conversation."

This is the essence of the preferred first speaker. Chappelle said what he wanted to say in his show and perhaps in his opening comments at this assembly; people complained about some of the things he said in the show; and his response was to refuse to engage with their criticism beyond, essentially, you have no idea what you're talking about. Perhaps the exiting student did not want to entertain a conversation, but it does not appear Chappelle did, either, beyond "shut up." Of course, only the responders, not the preferred first speaker, are expected to engage in that conversation.

(Note: My discussion is based on these news reports, which are based on interviews with unnamed student attendees. Perhaps it went down much differently and perhaps Chappelle engaged more, in which case kudos to him. Chappelle had a camera crew with him, so maybe we will see footage in the future).

Posted by Howard Wasserman on November 28, 2021 at 03:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 24, 2021

UF Task Force Report on Outside Activities

University of Florida President Ken Fuchs on Tuesday accepted the Final Report of the Task Force on Outside Activities, appointed after the university refused to let three faculty members testify as expert witnesses in a challenge to new Florida voting regulations.

The Task Force recommended a policy that reaffirms academic freedom and the right of faculty to speak on matters of public concern and reaffirms that speaking out on such matters is not "outside activity" that must be reported to the university. University review remains necessary when a faculty seeks to testify as an expert in litigation. The review will operate under a "strong presumption" that requests to testify will be approved. The presumption must be rebutted by by clear-and-convincing evidence that the testimony conflicts with an important and particularized interest of the university, beyond generalized assertion of a conflict of interest or an undifferentiated fear of harm. The Report also recommends changes to the process for reviewing conflicts of interest.

The CHE article quotes Clay Calvert, a journalism professor and First Amendment scholar, reminding the university that a "conflict of viewpoint is not necessarily a conflict of interest" and that decisions should not be grounded in fears of financial reprisals from the state or attempts to curry favor with the state.

The new policy is not good enough for the plaintiffs in the lawsuit against the university, which appears designed to challenge any system of discretionary approval for any faculty speech.

Posted by Howard Wasserman on November 24, 2021 at 10:38 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, November 23, 2021

Procedural defects can be raised in state court

SB8 critics highlight the procedural problems in the private cause of action--statewide venue, limitless plaintiffs, limits on affirmative defenses, no non-mutual preclusion. They argue that these render state court an insufficient forum, because the deck is stacked in favor of the plaintiff, requiring a federal offensive litigation.

One problem with the argument is that it constitutionalizes sub-constitutional issues such as venue and preclusion. A second problem is that this is not unusual. Many state-court cases involve constitutional challenges to state-court procedures, which are litigated in state court and can provide a basis for eventual SCOTUS review. The defect in state procedure does not provide a basis for a constitutional claim or federal district-court jurisdiction in the underlying action.

Recent case in point: Third Circuit in DeGennaro v. Grabelle. This is a med-mal action in which plaintiff failed to comply with the state's pre-suit affidavit requirement, which plaintiff argues (erroneously) violates due process. Plaintiff tried to use this to get his claim into federal court by including a claim challenging the validity of the affidavit requirement. The court (properly) rejected this under the Well Pleaded Complaint Rule--this case is no different than Mottley (state claim, defense, constitutional challenge to defense). The plaintiff can challenge the affidavit requirement in state court, then appeal the requirement through the New Jersey courts and to SCOTUS.

No one would let DeGennaro bring a § 1983 action against the clerk of the state court, since he would accept the lawsuit requiring an affidavit, or against the  state judge for demanding the affidavit. But the logic of the (anticipated) decision in the SB8 cases is that constitutional defects in state procedure--those that stack the deck in favor of one private civil litigant against another private civil litigant--provide a basis to sue a state clerk or state judge to prohibit state litigation. Other than which party the deck is stacked against--it is against the defense in SB8, the plaintiff in this (and most) cases--the basic issues and arguments are the same.

I am repeating myself on this. But the point bears repeating--most of what people dislike about SB8 is not unique.

Posted by Howard Wasserman on November 23, 2021 at 10:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, November 19, 2021

Why Stop There?

Josh Blackman suggests as a Gedankenexperiment that we eliminate the institution of Supreme Court clerk as it currently exists. He also muses that the Court could "hire a room of copy-editors and cite checkers--non-attorney career employees who can proofread the work, but not make substantive recommendations." So we might ultimately think of this not so much as a suggestion that the justices should have no helpers, but that the institution be significantly rethought and re-formed along more bureaucratic and centralized lines.

It's not a genuinely novel suggestion. (That's fine with me! Novelty is valuable but rare and deeply overrated, and may create a perverse incentive for ambitious scholars not to look at the reams of good legal academic literature that exist, especially those pre-dating the last 20 or 30 years. Almost nothing is new under the sun. I should note that one point he makes--that it would encourage earlier retirements--is not truly novel, but is more rarely mentioned and certainly interesting.) Many people have written about the rise of the modern Supreme Court law clerk institution, raised questions about it, and suggested we might do it differently or do without it. Reasons vary widely. 

Blackman focuses rather heavily on power and prestige in advancing his experiment. Another useful way to think about the issue is that changing or eliminating the institution simultaneously involves de- and re-personalizing the Court. Having a dedicated and diligent personal chambers staff--one that, because of the youth and inexperience of the staff and the particular skill set used in making hiring decisions, is characterized by hyper-technical skill rather than wisdom and judgment--allows the Court to write long opinions full of doctrinal detail and short on succinctness or personality. Getting rid of clerks dedicated to each single justice would thus re-personalize the Court by making the justices write in their own unique voices and, because of the reduction of extra time and technical skill that would result from the elimination of dedicated clerks, write with more economy and less kitchen-sink detail and hyper-doctrinalism. In short, less work by committee, more Holmesian aperçus. At the same time, the current institution is in other ways representative of and dedicated to the proposition that each justice is a "Justice:" a unique, powerful, and important figure, like Thanos. Having a room full of professional law clerks dotting i's and crossing t's on behalf of the entire Court rather than any individual justice would refigure the Court as a more bureaucratic institution, in which individual votes perforce still matter but the work is ultimately a collective, unglamorous, collective, and professionalized enterprise. Some would say the Court in the modern era is such an enterprise, and should be organized accordingly--and to make its true nature clearer, without the false superstructure of personal fame and distinction. 

Without judging the wisdom of such a move or the transition costs involved, I wonder why Blackman stops there. Other than the cert pool, which of the factors that he thinks support such a move don't apply just as well to federal circuit courts and their judges? They too are powerful, attract prestige games, engage in extracurricular activities, and risk becoming immured in their own chambers without substantial contact with their colleagues. Even the cert pool point could be analogized to what, in my day, were called "screeners"--opinions issued without oral argument. Viewed from the alternate perspective of personality and de-personality, again, I see little difference: Court of appeals judges partake plentifully in cults of personality, and court of appeals opinions are often highly bureaucratized in style. 

Taking for granted that circuit court judges need additional professional help, we might still reasonably ask: Do they really need individual "elbow clerks?" Is there anything a single clerk sitting in Louisville or Montgomery can do--anything we want them to do, that is, or ought to want--that can't be done by a room full of relatively nameless and faceless factotums at the Head Office in Cincinnati or Atlanta? Is there any reason we should look more kindly on the prestige, hiring bonuses, and future opportunities for power that attach to individual appeals court clerkships than those that accompany Supreme Court clerkships? Why not cry: Down with trivia-based application tests! Up with staff-clerk TPS forms! The argument for individual clerks is perhaps strongest for individual trial court judges. But it is not that strong. We could thus ask the same questions about federal district court clerkships, and about the various levels of state courts and their clerkships, which also participate in an economy of prestige and also serve bureaucratic functions. 

Again, it seems to me that such moves would recognize two odd-bedfellow points. First, it would shape our institution to recognize that in a gigantic modern economy, in a country with hundreds of millions of people and countless business entities, law is in many respects a bureaucratic and not a personal institution, and should be organized appropriately to its function. (Blackman writes that if John Marshall didn't need a law clerk, neither does John Roberts. That's the wrong way to think about it. The Marshall Court as an institution is not the Roberts Court as an institution, any more than the United States of 1803 is the United States of 2021. Roberts, who sits at the apex of a vast bureaucratic enterprise known as "the federal courts," may not need a personal law clerk--but not because the institution he heads is, in reality, the same one.) Second, by removing the closest level of bureaucratic layering from individual judges and making it a shared resource, it might force judges to be both less omnipresent and titanic, because deprived of the heavy lifting power devoted to him or her alone, and more personal and idiosyncratic.

Blackman conducts this purely as a thought experiment. But we need not be quite so arid. We have examples of courts that function perfectly well without precisely the same elbow-clerk organization we currently have. The Justices of the Supreme Court of Canada have individual law clerks. But the Ontario Court of Appeal, a powerful court in an economically mighty and sophisticated province--and, given Canada's legal structure, one that occupies essentially the same position as both a federal circuit court and a state high court--has a different system. Its clerks are "paired with either one or two judges of the Court and then change[ ] assignment[s] halfway through the year. This rotation process ensures that each law clerk is exposed to different approaches to judging and a broad range of areas of law." This disrupts the kind of culture that abounds in multi-member American federal courts, in which elbow clerks are typically chosen in part for political and ideological kinship and become partisans for their own judges, both in the long run and in terms of immediate internecine combat. Such an approach would be somewhere between the current American model and a wholly bureaucratized model. It might be a very healthy model for the Supreme Court to consider. So far as I know (which is not very far), the Court of Appeal has managed without leaks, conflicts of interest, confidentiality problems between chambers, or other concerns that might be raised against such an approach. State court clerkship structures vary widely, of course, but in some states, like Virginia, trial court clerks "are shared among two or more judges." Despite this arrangement, the Commonwealth still stands. This barely scratches the surface of the available information on state, federal, and comparative or international court/clerk arrangements.

I do not suggest that any differing arrangements are better or are suitable for transplantation. I merely suggest that our current arrangement is certainly not inevitable, almost certainly not necessary--and doesn't apply to the Supreme Court alone. Indeed, given the not-infrequent eruption of bitter disputes between judges within federal circuit courts and within state high courts, and the small number of appeals heard by the Supreme Court, I doubt it is the most important court to consider with respect to reimagining clerkships. Encouraging the consideration of expanding the bureaucratization of clerkships and eliminating individualized elbow-clerk arrangements beyond the Supreme Court is not just a matter of "go big or go home," although I think that's a legitimate suggestion about a thought experiment. It's also a matter of asking the question where it matters most--and considering that "where it matters most" might not be the Supreme Court, despite all the attention devoted to it.

Two final points in this short intervention. First, we might acknowledge that some of the current Supreme Court justices have shown a little more flair and individuality in their writing. Certainly this can be overstated, but it must be acknowledged. To the extent that we have associated law clerks with the "formulaic Constitution" style of opinion, we should consider that law clerks might have contributed to this style, but it was also a particular approach of a particular period in the history of the Court. We should be careful about generalizing across eras without making some effort to historicize. And we should consider how changes in the clerkship structure might affect approaches and styles on the Court or other courts other than the "over-long, hyper-technical, multi-part test" style. The most obvious candidate is originalism. Would that room full of depersonalized clerks conduct historical or historical-ish research on behalf of original justices? Would the staff-room include some non-lawyer historian assistants? Without elbow clerks, would the originalist justices do no originalism? Less originalism? Worse originalism? A different form of originalism, perhaps closer to Justice Black's than to the most contemporary versions? Originalism may be our law. But "our law," like everything else, is subject to, affected by, perhaps even a creature of the means of production.   

Finally: Would Blackman's suggestion eliminate those "distortions in legal markets" with respect to law clerks that are specifically related to power and prestige? Nope. Not in a million years. In fairness, Blackman does not suggest otherwise, and he has a variety of distortions in mind, not just things like Supreme Court clerks getting giant paydays and prestigious future jobs. (To the extent he does have that sort of thing in mind, we certainly should include court of appeals and district court clerkships in the thought experiment.) But I don't think it would be wrong to see this as one of his focuses. And I think we can say accurately that as night follows day, so the elimination of one form of prestige will give rise to others--or to more subterranean arrangements serving the same function, as in the good-and-bad old days. Status and prestige, like money, are hydraulic, and will flow somehow and somewhere.           

Posted by Paul Horwitz on November 19, 2021 at 01:31 PM in Paul Horwitz | Permalink | Comments (0)