PrawfsBlawg

Thursday, June 30, 2022

Political Cartoon on FDR's Constitution Day Address

I cam across this in my research. It was published in a New Jersey newspaper three days after the speech.

Posted by Gerard Magliocca on June 30, 2022 at 05:59 PM | Permalink | Comments (0)

Some jurisdictionality in Biden v. Texas

I do not do Ad Law or Immigration, so I do not much to say on the merits of Biden v. Texas. But there was some jurisdictionality thrown in, which is worth discussing.

The district court had enjoined enforcement of the Biden rescission, in violation of § 1252(f)(1), which deprives lower courts (but not SCOTUS) of"jurisdiction or authority to enjoin or restraint the operation" of certain provisions in non-individual cases. The question is whether the district court nevertheless had jurisdiction over the action as a whole, even if it could not issue the remedy it did. The majority said it did, because § 1252(f)(1) limited the court's remedial power but not its subject matter jurisdiction to adjudicate the case. Although § 1252(f)(1) uses the word jurisdiction, jurisdiction to issue a remedy is different from subject-matter jurisdiction to adjudicate. Justice Barrett dissented for Thomas, Alito, and Gorsuch.* She rejected the sharp distinction between SMJ and remedial authority, because SMJ often connects to the remedy, citing examples of the amount-in-controversy in § 1332 and redressability in standing.

[*] Sort of. The three joined all but the first sentence reading "I agree with the Court's analysis of the merits--but not with its decision to reach them." Meanwhile, Barrett did not join Alito's dissent to the merits.

Obviously, I agree with the majority. Remedies, like the merits, should be independent of adjudicative jurisdiction. The problem is Congress using the word jurisdiction carelessly to refer to available remedies in a case the court can hear. I am glad the Court read through it. As to Barrett's examples, the amount-in-controversy is not about available remedies but about the size of the case. Meanwhile, the standing example just shows--again--why standing is about merits and not jurisdiction.

Posted by Howard Wasserman on June 30, 2022 at 02:42 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, June 29, 2022

Cue the converse abortion ad hoc nullification machine

The Times considers the First Amendment implications of abortion being legal in some places and illegal in others. And individual news reports about how Dobbs is being received and applied with respect to other rights and issues suggest this will not be limited to abortion.

Posted by Howard Wasserman on June 29, 2022 at 04:50 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Limiting state-created danger and a different due process violation (Updated)

An interesting Fifth Circuit decision arising from a (notorious-at-the-time) 2015 incident in which a high-school football coach ordered two players to hit the referee. (One guess which Fifth Circuit state produced this case). The district court dismissed the claim against Coach Breed; it read the claim as invoking the state-created-danger theory (Breed increased the danger to the ref by ordering the players to hit him), which the Fifth Circuit does not recognize. The Fifth Circuit reversed, saying this is not an SCD case and therefore the plaintiff may have a viable due process claim on a different theory. Unfortunately, the path and conclusion are incoherent.

The court said SCD applies when the state actor "creates" a dangerous situation resulting in harm (to conditions or to third parties), but this does not include when the state actor orders or compels the third parties to engage in some conduct. This is a fine distinction that I am not sure works. What if Breed had told the players "unless you get completely out of control, Coach and I will not punish you?" if you hit the ref. Or what if the players discussed their plan to hit the ref while Breed was present and Breed said nothing, nodded in approval, or gave verbal assent ("OK")? Each of those facts can establish SCD, because the state actor creates or enhances the danger to the plaintiff by emboldening third parties by "approving" or "condoning" third-party misconduct or  by sending a message that a third-party can act with impunity. I do not see a meaningful difference between those cases and a direct command, order, or compulsion; if the former must be addressed as SCD (and rejected in the Fifth Circuit), so must the latter.

The court offered the difference that SCD requires deliberate indifference, while the claim here involves intentional harm. But DI is the legal standard and can be satisfied by the higher mens rea of intent to cause harm. And conduct short of a command can be done with the intention to inflict harm; the cops in Dwares wanted, if not intended, the skinheads to attack the protesters, even if they did not order them to attack.

If this is not an SCD case, what is the theory of liability? What did Breed* do that violates due process besides creating a dangerous condition? Is the act of ordering or commanding third persons to engage in misconduct an independent due process violation? If so, we are back to why orders/commands are different than approval and condonations; if the former are some unique violation independent, why not the latter, in which case what is left of SCD? Is it limited to orders to assault someone? But many SCD cases involve third-party assaults. Why is a command to third parties to assault different than approving a third-party assault (again, see Dwares). We return to that unexplained and unworkable distinction between ordering third-party misconduct and approving or condoning it.

[*] The court attempts to defend the distinction by arguing that Breed acted under color when he ordered the players to act, relying on close-nexus cases. But no one doubts that and it is beside the point. Those cases are about when private actors are deemed under color; they have nothing to do with whether the government actors who ordered the conduct are under color. In fact, it is beyond dispute that Breed acted under color--a government employee acting within his official position "on the clock" while performing his formal government duties. (Maybe if he had done this during the few minutes between the post-game handshake and getting on the bus he would have more luck).

The Fifth Circuit is the only court of appeals not to recognize SCD. I am all for ways around that problem. But some coherence would be nice.

Update: Following a series of email exchanges with a reader, I might see a workable basis for a distinction. It combines the under-color and liability elements and goes something like this: If the connection between the government actor and the private actor is sufficiently close that it places the private actor under color and subjects him to § 1983 suit**, the claim against the government actor rests on a direct violation; the government actor is, in essence, acting through his agent. If the connection is not sufficiently close as to to place the private actor under color, the government actor's liability must be based on SCD--the third party acted on his own as a private person, but the government actor did something to create or worsen the risk to the plaintiff at the third party's hands.

[**] If the plaintiff were to choose to sue him. Again, the ref did not sue the players here.

Thus, the coach is directly liable for ordering the players to hit the ref. He would be liable on an SCD theory if he  stood by and did nothing while the players discussed and planned to hit the ref. And we can have a debate about the case in which the coach said "we will not punish you if you hit the ref."

Not sure I buy it, but it makes some logical sense.

Posted by Howard Wasserman on June 29, 2022 at 11:06 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The Pending Section 3 Litigation

Just to give anyone interested an update:

1. A state quo warranto action against Couy Griffin, a County Commissioner in New Mexico, is scheduled to go to trial in August. Griffin's federal suit for a preliminary injunction was rejected by the District Court this week on standing and abstention grounds.

2. The state appeal in the Marjorie Taylor-Greene case will be heard in July. The 11th Circuit has scheduled argument in her federal case for August, assuming that there is anything left to decide by then.

Posted by Gerard Magliocca on June 29, 2022 at 10:24 AM | Permalink | Comments (0)

FDR on Incorporation and State Action

I'm am getting close to finishing a draft paper on Franklin Roosevelt's 1937 Constitution Day Address. A draft of the speech said the following that was cut from the final version:

Indeed I go further than the Framers of the Constitution. I insist that the Bill of Rights should be observed in the letter and in the spirit not only by the Federal Government, the State governments and the local governments, but by those in private places who have power over other men's lives.

Many of FDR's Supreme Court Justices adopted this view with respect to state and local governments, though not as much for private parties.

Posted by Gerard Magliocca on June 29, 2022 at 08:56 AM | Permalink | Comments (0)

Tuesday, June 28, 2022

An Important Step...Sideways...in Legal Education

Again via Paul Caron, I note this post about USC becoming the sixth law school to offer an undergraduate degree in law. The Reuters story that Caron links to asserts that this is a trend that is "catching on" in American universities, which are "seek[ing] new ways to give students a head start on legal careers and help them better understand the role of law in society." (The Reuters story identifies three law schools doing so, but Caron points to other sources that add another three to the list.) The story offers the expected quotes about the general value of learning the law. One passage notes the value of such degrees in allowing graduates to pursue "law-adjacent careers in compliance and human resources." This is of some interest, since it connects the undergraduate degree "trend," if trend it is, to the unquestionable American law-school trend of offering one- or two-year degrees or certificates in "compliance." 

Without questioning the value of such programs or the sincerity of those advocating them, one is of course entitled to ask the standard "cui bono" question. Although stories and promotional materials from law schools always trumpet one-year increases in law school enrollment, the overall numbers have gone down from the period of steady increases that picked up speed around the 1980s and peaked around the time of the 2008 recession. Those of us who were around in the period around 2008-2011 can well remember what is was like to teach students who had enrolled at the height of the market and suddenly found themselves graduating into a very different and much bleaker market. Law schools have a physical plant, and its value and capacity is hardly exhausted by the (smaller) number of law students sitting in a given number of rooms for a limited period of time each week. After 2008-2010, it is surely fair to say that many deans (and provosts across campus) saw the potential value of turning to short-fuse "certificate," masters, and other programs. The tuition for such programs was or is often fully paid for (sometimes by employers) rather than steeply discounted. They can be staffed substantially by adjuncts with one or two faculty members serving as director. Such programs can extract more value out of the physical plant, make up for smaller JD enrollments and competitions to draw JD classes with US News-friendly metrics through scholarships and discounts, bring in additional revenue, and diversify law schools' business operations. And that's not even to speak of the role of online education, which allows one to extract value without even causing wear and tear on the building. One can sincerely describe the rise of compliance and the growth of HR departments out there in the real world as both a genuine need that ought to be filled with training programs, and a financial opportunity for law schools. 

But it seems to me that the rise--if six schools can be considered a rise, and if more schools take this step--in undergraduate law school programs raises the obvious next question, one that was asked occasionally during the initial period of writing about the state of law schools: Why not go whole hog? Offering undergraduate programs in law, while maintaining the general structure of American legal education, strikes me as a step sideways. The step forward would be to move more fully toward a more European model. Is it really absolutely necessary to keep our awkward mixed model of law schools as both professional education in the practice of law and scholarly education in the subject of law? Does such a model do justice to either of these goals? Why not shift those--both students and faculty--who are interested in law as a legitimate academic subject to an undergrdauate and graduate Department of Law, while offering a two-year professional program for those who wish to become lawyers, one staffed largely by practitioners, clinicians, and more practice-oriented full-time faculty?

It seems to me that one great benefit of such an approach is salary cuts. The professional school would rely heavily on adjuncts. And the salary of truly academically oriented law professors could be greatly reduced, making them commensurate with the kinds of salaries that are offered in most academic departments. As law schools follow a model of hiring Ph.Ds, that seems particularly appropriate, and those doctorate-holders could decide whether to pursue their work in a law department or a department of economics, political science, psychology, or whatever their field is. There are many lawyers (and current law professors) who have a genuine and enduring vocation to study and write about law as a topic and would gladly accept a lower lifetime salary for the opportunity to do so, along with the other benefits of life in a university, including tenure. If law departments required a doctorate in law or some other subject as a condition of employment, many would take that step and invest that time. Others--including some excellent scholars--might have the skill, but not a vocation so strong as to make them leave more lucrative careers for a department of law, with a salary lower than those currently offered at "law schools" under the current model. Maybe that's a genuine but acceptable loss. And maybe those whose interest is more in advocacy from a comfortable perch than a genuinely academic vocation would opt instead to work for advocacy groups or to pursue their goals in other ways. I might add a flipside benefit of salary cuts and of bringing the academic study of law closer to the model of other academic departments: If salaries were lower, and if departments of law brought their tenure rates closer to the rate that prevails elsewhere in the university and down from the extraordinarily high tenure rate of contemporary American law schools, law departments could (if the student demand existed) hire more faculty and, more importantly, take more chances in hiring. It's hard to take a flyer on someone who is genuinely promising and heterodox in his or her views, but doesn't already have a long paper trail and the usual set of ready-made credentials, if you know that a hiring decision is tantamount to a "yes" vote on tenure.   

If this "trend" is just about filling empty seats and finding new revenue streams, so be it. But if ought instead to be food for thought--including, perhaps, the thinking of university administrators. Maybe the academic study of law and the training for the practice of law would both benefit if the ostensible trend for undergraduate degrees in law resulted in an explicit two-track, two-schools approach.      

Posted by Paul Horwitz on June 28, 2022 at 12:52 PM in Paul Horwitz | Permalink | Comments (0)

No standing and no Injunction in Florida CRT suit

From the lawsuit filed in April challenging Florida's HB 7, the anti-CRT law: The district court denied a preliminary injunction, finding that plaintiffs failed to show standing for different reasons:

• Public-school teachers cannot show traceability or redressability as to the Board of Education because it has not done anything to enforce the law. Any restrictions on what they can teach come from the local school board and the school, acting out of the threat of loss of funds. The court refused to find standing to enjoin the Board (from enacting regulations and stripping funds) based on the layers of inferences of from the threat of funds to what school boards and schools might do. I see the point--the Board does not create the constitutionally violative rules. but it allows standing to ignore common sense and economics and force plaintiffs to wait longer to litigate their rights.

• The rising kindergartner has not show injury-in-fact because he cannot show what material he will not be taught in kindergarten because of this law, as opposed to in an AP History class he may take 8-10 years from now. And although the court does not address it, this claim should fail on traceability and redressability for the same reason the teachers' claims fail--the removal of any material was by the school or a teacher, not the Board, and the court already said school action based on Board threats is insufficient for a suit against the Board.

• The private DEI consultant has not shown an injury at the first step of third-party standing on behalf of his customers.

• The court reserved ruling as to the final plaintiff, a prof at Central Florida.

• The court concluded the opinion--in which he never touched the First Amendment merits--with a long block-quote from Barnette, preceded by this: "For those who applaud state suppression of ideas that the government finds displeasing--such as the 1619 Project--this Court offers the following observation." I am as forgiving of judicial tangents as anyone, but this is inappropriate and absurd. If we call out judges such as Justin Walker and James Ho for including gratuitous culture-war rants in their opinions, we should call out Mark Walker for including rants with which I might agree.

Posted by Howard Wasserman on June 28, 2022 at 08:58 AM in Constitutional thoughts | Permalink | Comments (0)

Monday, June 27, 2022

Shaviro, "'Moralist' Versus 'Scientist'"

Via Paul Caron, this paper by Daniel Shaviro: "'Moralist' Versus 'Scientist': Stanley Surrey and the Public Intellectual Practice of Tax Policy." Tax law is well outside my wheelhouse, but the kind of issues the paper discusses are most certainly not foreign to constitutional law. Indeed, they are a guiding dispute and overarching theme for much of modern academic life.

 

Posted by Paul Horwitz on June 27, 2022 at 04:12 PM in Paul Horwitz | Permalink | Comments (0)

Some Supreme Court Miscellany and "Living Under an Anticanonical Legal Regime"

For various reasons, I'm inclined to avoid writing directly and on-point on the avalanche of important Supreme Court decisions. So here instead are some off-point questions and observations. Lest I be misunderstood, in a "people are starving and you're writing about a mere avalanche" way, I do not think many of these questions rise to the level of importance of the core issues addressed in these decisions. A few may actually be significant despite my best efforts, and I think a couple of points, which I naturally have placed toward the bottom of the post, raise genuinely useful questions that I hope others will take up. (Among other things, I'm recovering from surgery and more slowly than I had hoped, so I doubt I'll be the one to do it.)  

1) Isn't today's Bremerton decision, whatever else one thinks of it, good for academics? On the way to its decision, it discusses Garcetti, and emphasizes that the question whether a public employee's speech is "ordinarily within the scope of an employee's duties" should "be undertaken 'practically,' rather than with a blinkered focus on the terms of some formal and capacious written job description. To proceed otherwise would be to allow public employers to use 'excessively broad job descriptions' to subvert the Constitution's protections." Isn't that good for professors who may be engaging in speech for which the university would like to discipline them? I am more of a realist than a doctrinalist; I think any decisions on these issues will be guided more by what the Court thinks the scope of protections for academic speakers in particular contexts should be than by any prior formulae. But the language is there just the same and ready for use.  

[I'm leaving the paragraph above in. But I should note that I have been reminded by a correspondent that Garcetti did not answer the question whether and how it would apply to university professors, a question that was raised in dissent by Justice Souter and noted but left undecided by the majority. More important, the federal circuit courts--five of them so far--have refused to apply it to academic teaching and writing. I'm grateful to Prof. Jason Kilborn for writing to me on this point and for the citations--including to page 16 of Bremerton itself, where the Court notes that the case "does not raise questions of academic freedom that may or may not involve 'additional' First Amendment 'interests.'" I should add that as I write this, I realize that what I had largely in mind was writing by academics outside of the clearly academic field that a university might want to treat as writing that falls within the professor's scope of work for purposes of the chopping block. I wasn't thinking so much about statements inside the classroom or in whatever would clearly count as "academic writing." But, aside from my also realizing that it's far from clear that that kind of writing could ever be covered by Garcetti, the general point stands: that decision, which I had not reread in forever but should have before posting, does not clearly apply to professors, and so the preceding paragraph is something of a wet squib. Fabulous stuff below, though!]     

2) What will, or should, happen to con law casebooks? I am very slowly working on putting together my own constitutional law materials, so I tip my hat to published casebook editors, the best of whom do serious work in creating those books. But there are inevitably time lags, narratives that shape a casebook but become increasingly outdated, tendencies to fight the last war, overemphasis on cases and issues that engaged the editors' passions at the time but slowly faded into the general fabric--witness the growing and then shrinking space devoted to the Guantanamo cases or Bush v. Gore--and so on. Is this a Term that calls not for regularly scheduled annual supplements, but altogether new editions? (I am focusing here on the casebooks as books, without any other considerations. My views may be different if they are considered primarily as commercial operations. Although I'm sure new editions are greeted with delight by most publishers and many authors, my primary sympathies here are with students, who may not be delighted by the news that their recently purchased and incredibly expensive book has lost its resale value. That's why I'm putting together my own materials. In a better world, the average cost of materials for a casebook-centered course would approach zero dollars, and enough law professors would invest time in free materials that the great casebooks--and the great ones really are great--would at least face real incentives to reduce their price significantly.) 

Should annual supplements, at least, be different this year? Usually, they simply invite the person using the casebook to insert new case A at page X, and so on. Perhaps the editors instead should rewrite particular chapters, or offer a suggested table of contents for new chapters or sections of their casebooks, one that takes serious account of the relationship between the old cases in the casebook and the new supplemental cases that diminished or supplanted them. That's true not just of this year's blockbusters, but of other recent cases. Surely it's time for a rewrite of large chunks of the separation of powers chapters, particularly those that discuss appointments and removals and are still oriented around a narrative frame that starts with Myers and culminates in Morrison.  

At a minimum, I would suggest to published casebook editors that they include a serious introductory essay in their annual supplements assessing the state of affairs and how it affects their casebooks. They ought also to publish and distribute similar essays for those using their teachers' manuals, including new suggested syllabi. A serious "supplemental" effort this summer will involve some real work and major surgery. 

3) I mentioned casebook narratives above. Of course, they're not limited to casebooks. Narrative frames pervade how we talk about the Supreme Court and its jurisprudence. I suppose that is what supplies my own answer to the question posed by Gerard: "Is there still any reason to teach the liberty of contact cases in an introductory constitutional law course?...If Lochner is not canon and is no longer meaningful anti-canon, [because one can simply use Roe and Casey as the arguably anticanonical cases and contrast them with Dobbs], then why teach it?"

Howard offers an answer below: "Lochner is more than an unenumerated right. The case also functions as shorthand for using the Constitution to protect economic activities against state regulation. That effort continues with recent efforts (some successful) to use, for example, free speech to hamper economic regulation--hence so-called 'First Amendment Lochnerism.' Can students understand that concept and what it entails if they have not learned Lochner?" By implication, his reply to Gerard is that there are good reasons to continue to teach Lochner and to make it an important part of one's narrative in a constitutional law course.

I tend to agree with Howard, while also agreeing that Gerard's question is a useful provocation. I cannot overemphasize how much I dislike the tendency to sum up doctrine and doctrinal developments, as well as political and cultural developments, in bumper-sticker phrases such as "cancel culture" or "First Amendment Lochnerism" or "weaponization." This kind of thing is not new, certainly, but it has arguably been supercharged in recent years, by factors such as social media and social media-like thinking, the effort to pursue and promote a mix of "academic" and openly political projects across "platforms," and the emphasis on branding as a way to claim novelty or importance and thus claim a spot in a fancy law review. Cardozo wrote of metaphors that they "start[ ] as devices to liberate thought [but] end often by enslaving it." Slogans like "First Amendment Lochnerism" and many more, of whatever political orientation, are similar but mostly skip the first stage. Whatever their original authors' intentions, which may have been sincerely descriptive, they are often deployed to arrest thought, to force someone to think only in a particular way; they are not liberatory or fertile, but constrictive. To the extent that they are deployed for political purposes, that's natural. Political slogans are meant to serve a particular end, not to encourage exploration, divergence, dissent, or heterodoxy on the part of their readers and listeners. But I can't say I find this sort of thing attractive in either serious thinking and writing or academic thinking and writing. There are a lot of valuable discussions to be had about the issues or incidents that gave rise to the phrase "cancel culture," but they do not include the many arguments that focus excessively and absurdly on the phrase itself when they insist that "cancel culture" exists or does not exist. I would say the same thing of the popular bumper-sticker slogans that are colonizing constitutional law writing on the part of judges and academics alike.  

Nevertheless, Lochner, or "Lochner" as a shorthand or place-holder, is very much a part of the 20th Century American legal tradition and extends firmly into the 21st Century so far as well. Roe may officially be bad law now, and it may have been criticized, by liberals and conservatives alike, since the day it was issued. But it is not "anticanonical" in the usual sense in which that word is used. And I see no serious likelihood that it will be treated that way by mainstream American legal culture any time soon. So, if only because of the narrative that continues to exert a strong and perhaps distorting pull on our thinking about these issues, there are still good reasons to teach Lochner, even for professors who do not emphasize historical arcs or narratives in their teaching but focus instead on current doctrine.

[Let me offer a self-serving plug for a very good recent book on some of these questions. Law's Infamy: Understanding the Canon of Bad Law, edited by Austin Sarat, Lawrence Douglas, and Mary Umphrey, is good despite rather than because of my own contribution. But that chapter, "Fame, Infamy, and Canonicity in American Constitutional Law," does discuss many of these issues.]

This leads me to some additional questions. They deserve posts and discussion of their own, if someone else if not by me. In any event, building on my response to the question of Roe and Lochner and the status of the constitutional law canon, I would offer the following suggestions or questions:

A) Isn't it likely that many professors will, in a sense, teach Roe and Casey as canonical and Dobbs as anticanonical, despite the fact that the latter case is "good law" and the the former cases now are not? Are there good arguments for doing so? Whatever its consistency with many constitutional law teachers' jurisprudential and political views, is it good teaching? Or is it in tension with the role of a law teacher qua teacher?     

B) Following on this question, and in keeping with the view that a lot of American constitutional law thinking and teaching  takes place within a narrative frame, won't a good deal of American constitutional law writing and teaching for the next little while take place within the narrative of living under an anticanonical legal regime? As novel and dispiriting--or motivating and energizing--as this idea might be for many, it should hardly be shocking for legal academics in this area. But it might provoke some interesting (and some awful) writing. Reserving my views about whether it is sound or proper teaching, I'm sure it could also make for an interesting narrative frame for a basic con law course. 

4) Two final questions. First, what will be the relationship between the current Supreme Court and the lower federal courts, especially the circuit courts? It has seemed to me in recent years that at least in some areas, the relationship between the two has been one of two solitudes operating on more or less separate but antagonistic tracks, with some decisions suggesting that some appellate court panels were resisting or ignoring the Court. Despite that description, I actually think some of these instances were productive, not in the sense that they were necessarily correct or successful, but in the sense that the antagonistic dynamic, along with governmental responses to the intermediate court rulings, ended up producing some reasonable outcomes. Will this trend continue, or even increase? (And conversely, will there be instances of appellate panels overreading recent precedents and trying to push the Court farther than it wants to go?) 

Along the same lines, in the post-Brown years, there were famous instances of lower federal courts offering dubious efforts to distinguish Brown and other precedents, such as by focusing on Kenneth Clark's doll studies and concluding that they, and Brown itself, were undermined by competing social science. They are not celebrated. Will we see similar efforts now to resist some of the Court's recent opinions? Will some of them be similarly dubious in their deployment of the facts or law? How will these decisions be regarded? Quite differently, I expect.

And last, will we see one of the regularly-predicted and little-noticed revivals of state constitutional law?     

Posted by Paul Horwitz on June 27, 2022 at 03:32 PM in Paul Horwitz | Permalink | Comments (0)

Last Call - Northwestern University Law Review Exclusive Empirical Cycle - 2022

From the Northwestern University Law Review:

Thursday, June 30, is the final day for submissions to the Northwestern University Law Review exclusive empirical cycle.

Continue reading "Last Call - Northwestern University Law Review Exclusive Empirical Cycle - 2022"

Posted by Sarah Lawsky on June 27, 2022 at 12:28 PM in Law Review Review | Permalink | Comments (0)

Cert dened in Coral Ridge Ministries

Beginning on p.11, with dissent from Thomas but not Gorsuch (who has called for reconsidering NYT v. Sullivan) or anyone else. I guess the Court is not ready to undo the foundation of modern free speech.

This case was never a good vehicle for overruling NYT because the statements at issue (labeling a ministry a "hate group") are clear protected opinion; the district court dismissed the claim on opinion and actual-malice grounds, while the court of appeals addressed the latter. Unless the Court wanted to undo the entire defamation edifice (at this point, who knows?), this was not the right case. My guess is that explains why Gorsuch did not join Thomas, as opposed to him changing his mind about undoing the First Amendment.

Posted by Howard Wasserman on June 27, 2022 at 09:45 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (1)

CFP: Penn Law Review: Debt Market Complexity

Posted by Howard Wasserman on June 27, 2022 at 09:05 AM in Teaching Law | Permalink | Comments (0)

Sunday, June 26, 2022

More zombie laws and litigation strategy

Dobbs has created a new puzzle with respect to zombie laws that I had not considered. It is usually obvious when a law has been de-zombified--the judicial constitutional precedent under which that law is invalid changed. Dobbs thus de-zombifies all abortion laws (subject perhaps to rational-basis scrutiny for extreme laws). But sometimes it is less obvious, because the Court suggests de-zombification through its reasoning and analysis, although the precise issue was not before the Court. So does the logic and reasoning of Dobbs, along with Thomas' concurrence, de-zombify other laws violating other substantive-due-process rights that it cast into (at least) some doubt?

Relatedly, how does that affect the posture in which the constitutional question will be litigated and resolved? Does the logic of Dobbs render a threat of renewed enforcement sufficiently likely or imminent to allow offensive pre-enforcement litigation to determine the state of judicial precedent and the constitutional validity and enforceability of the law. (Courts would call this whether the rights holder can show a sufficiently imminent injury for standing; I argue we should call this whether a constitutional violation has occurred or is likely to occur). Strict adherence to imminence (which courts follow for everything other than the First Amendment) limits offensive litigation, requiring rights holders to await actual renewed enforcementand challenge the law defensively.* At a minimum, they must wait longer to see if the state expresses some intent to renew enforcement based on its reading of Dobbs.

[*] Ex parte Young says rights holders need not wait, that it is unfair to force rights holders to violate the law at their peril and risk liability as a condition of litigating their constitutional rights. How to square that with Whole Women's Health, which I argue was correct? The problem in WWH was the lack of a target defendant and a governmental enforcer to enjoin.

Take Texas's sodomy law, which remains on the books. It is at least an open issue requiring new litigation whether constitutional precedent must change because Lawrence is incompatible with Dobbs. The question is whether that is sufficient to allow offensive pre-enforcement litigation or whether rights holders need some greater indication that the state intends to resume enforcing that law. Stated differently, can rights-holders, having read Dobbs and identified an open constitutional issue, initiate offensive litigation to declare the state of precedent and determine whether the sodomy law remains constitutionally invalid and unenforceable? Can Texas defeat such offensive litigation by insisting that it takes the Dobbs majority at its word, that it sees Lawrence as good law, and that it knows it cannot successfully enforce the law and has no intent to do so?

Does the answer change when the zombie post-dates the apparent change in precedent? Could that rights holder show imminence of enforcement more readily if the legislature enacts a new zombie? Returning to Texas' sodomy law--suppose the Texas legislature re-enacts a sodomy law post-Dobbs; does that allow a rights holder to argue that the state reads Dobbs as calling Lawrence into doubt and thus intends to enforce the new law (otherwise, why would it have bothered enacting it).

A separate strategic question: Should rights holders push the issue of what Dobbs did to Lawrence now or should they wait to see what states do? On one hand, there may be a benefit to striking now. People are paying attention and discussing Dobbs' effect on other rights; the charge of hypocrisy would land with the public (not that the Justices care) if the Court follows Dobbs to overrule Lawrence two years after insisting it would not. On the other, this is a frisky majority and rights holders may be wise not to test what it is willing to do.

Posted by Howard Wasserman on June 26, 2022 at 04:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, June 25, 2022

First Amendment Roe-ism? (Updated)

Gerard asks a good question. I discussed a similar question after the draft leaked. Let me try another pass.

Lochner is more than an unenumerated right. The case also functions as shorthand for using the Constitution to protect economic activities against state regulation. That effort continues with recent efforts (some successful) to use, for example, free speech to hamper economic regulation--hence so-called "First Amendment Lochnerism." Can students understand that concept and what it entails if they have not learned Lochner?

Two more thoughts. 1) Lochner is important because the conservative desire to revive it affects doctrines such as the Commerce Clause and federalism; the "Broccoli hypothetical" in the ACA case was about importing Lochnerian limitatons into the Commerce Clause. 2) Although both involve unenumerated rights/substantive due process,they reflect different forms--one about economics and business and one about private personhood; there may be value in covering both.

Posted by Howard Wasserman on June 25, 2022 at 02:58 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Pedantry

Is it overruled Roe or overturned Roe? I say "overrule," which is the term the Court used. Shepard's (ah, the days) used that term--courts "overrule" precedent and "reverse" lower-court judgments." I do not believe courts "overturn" anything in the formal (as opposed to colloquial) sense.

Now that we have the opinion and not only the draft, do we have any better sense of whether Roberts or Thomas assigned the opinion? And why would either give it to Alito? Roberts must have known Alito would produce a toxic opinion. And it seems Thomas would want to keep the opinion (this and the gun case would have made the Fed Soc two-fer). Did Thomas know he wanted to call all SDP into question so he needed to write separately rather than lose a majority on a small piece?

How should we describe the vote count? I went with 5-1-3 (majority, concurrence for result but not reasoning, dissent). I have seen others offer two related framings as a pair--6-3 for judgment (MS law valid, MS wins), 5-4 for overruling Roe.

Posted by Howard Wasserman on June 25, 2022 at 10:45 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thoughts on Hopeful Retreat from Darkness: A (short) response to Howard

Unlike Howard -- and, I realize, most Prawfsbloggers and readers -- I have longed hoped for, and yesterday welcomed, the overruling of Roe and Casey.  Both were wrongly decided, and both distorted badly both the Court's role and our political life.  In my view, the traditional stare decisis factors weigh in favor of the majority's decision and I regret the Chief Justice's implausible argument that the Mississippi law can be reconciled with a re-imagined abortion right.  The three dissenters' views about Casey and judicial legitimacy are, I think, upside-down.  And, I believe that pre-natal human beings share in the equal dignity that entitles all of us to protection from violence.  (If anyone is interested, here is a law-review-type version of the amicus brief I and some others did in Dobbs.  Nutshell version, Rehnquist -- in Roe, Casey, and Glucksberg -- was right.)

Like (I assume) everyone else, I am not confident I know what the political/electoral/social consequences of the ruling will be.  I do not expect a substantial reduction in the number of abortions in the United States; I do not know which political camp Dobbs helps; I am not optimistic about the possibilities for reaching a European-style equilibrium nationwide; I do not think it is likely that Dobbs will lead to judicial retreat from other previously recognized unenumerated rights, such as those enforced in Pierce, Griswold, Loving, and Obergefell; I am sure Howard is right that the courts are not and will not soon be out of this issue; and it seems to me very unlikely that either "side" -- or, for that matter, supporters of some kind of compromise -- will secure either a constitutional amendment or nationalizing legislation. 

I hope that what (in my view) has fairly been characterized as the "abortion distortion" in other areas of law will dissipate, and also that political actors will make serious, good-faith efforts to come together on policies that generously support children and those who care for them.  I expect, but regret, that most law students, going forward, will be taught, as an orthodoxy from which dissent is at best suspect, a particular -- and, in my view, inaccurate -- narrative of Roe/Casey/Dobbs and the place of that narrative in our constitutional history, politics, and doctrine.  Those who are will be ill-served. 

Posted by Rick Garnett on June 25, 2022 at 10:25 AM in Rick Garnett | Permalink | Comments (0)

Friday, June 24, 2022

Zombie Laws

We have a real-time illustration of zombie laws and judicial departmentalism. A zombie law remains, precedent changes, and new precedent reanimates the zombie, at least prospectively.* Texas announced it will begin enforcing its pre-Roe zombie, prompting clinics in the state to cease all abortions. This chart shows three other states with an intent to enforce zombies, although Wisconsin seems less unlikely to enforce.

[*] Jonathan Mitchell argues that retroactive application would be permissible. I doubt states will try that.

Meanwhile, other states are enjoined from enforcing abortion restrictions. Those states move to dissolve the injunction, citing Dobbs as the changed legal circumstance, and the district court will grant the injunction, making those laws enforceable.

Posted by Howard Wasserman on June 24, 2022 at 07:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thoughts on fearing for the darkness

Some random thoughts on a legal earthquake.

• The opinion appears substantively unchanged from the leaked draft, other than responding to the other opinions and obvious proofreading. Clearly Kavanaugh was the Chief's target. We can read his concurrence as trying to carve a gentle and less-provocative middle ground between the majority's muscular overruling and the Chief's decide-nothing-more.

• This day has been coming like a slow-moving train since Election Night 2016, if not Election Night 2014 (when the Republicans regained the Senate and Justice Ginsburg had not resigned). I recommend Orin Kerr's Twitter thread that captures how Democrats/abortion-rights supporters went from "Garland-as-fifth-vote-to-secure-Roe" to Dobbs in less than a decade. Anyone (*cough* Susan Collins) who did not recognize this day as inevitable since Election Night 2016--or at least since Kennedy's resignation--is naive or ignorant (or, as someone suggested, lying about believing those assurances).

• Did the leak work? If the goal was to hold a shaky majority, yes; if the goal was to pressure someone to leave the majority, no. If the goal was to soften the opinion's effects by creating a distracting process story or softening the sting of the opinion, no; people seem pretty worked up and ready to protest and act, even if they saw this coming. It depends on if we find out who the leaker is and why they leaked.

• There is no easy answer to what happens next, but some things to watch:

    1) How much did this decision embolden anti-choice states? Do they ban abortion without exception or do they allow exceptions (life, health, rape, incest, a month of leeway)? Do they resume enforcing restrictive pre-Roe zombies? Do they go after pregnant people or only providers? Do they go after those who provide information and funding? How aggressively will prosecutors investigate and prosecute miscarriages and other "bad" behavior by pregnant people?

        Consider Arkansas' (now-valid) trigger law banning abortion with only a life-of-the-mother exception. Governor Asa Hutchinson suggested the state might add a rape-and-incest exception if Roe is overruled. This is a version of the dog-catching-the-car. States have performatively enacted extreme laws that would hurt millions, knowing they were unenforceable but allowed for political points. Now that those extreme laws are enforceable, Hutchinson realizes the immorality or unpopularity of the extreme and might walk it walk it back. Do other states follow suit and show restraint when their choices have real effects on real people or do they continue the race to the bottom because they can?

    2) Relatedly, does Dobbs embolden those states to go after the other rights that conservatives hate as much as abortion--same-sex marriage, contraception, sex? The assurances from Alito and Kavanaugh (and many who criticized Steve Vladeck and Leah Litman) focus on the wrong actors at the wrong time, at least for the moment. The action occurs in two other forums first: 1) Will states push the envelope in other areas--will they enact and enforce new laws banning purchase and use of contraception or whether states will begin enforcing existing zombie laws prohibiting sodomy (the Texas law at issue in Lawrence remains on the books) or same-sex marriage (same in many states); 2) What will restless lower-court judges do with the signal from Dobbs and from Thomas' concurrence if states get frisky--it is not hard to imagine a panel of the Fifth Circuit declaring valid a Louisiana ban on certain contraception. These steps are necessary before we see what the Justices will do. And that process could take several years, during which the make-up of the Court changes or people stop paying attention to Dobbs' "abortion-is-different" promises.

    3) It is nonsense to believe the courts are out of this area. The dissent shows why, as does this paper by David Cohen, Greer Donley, and Rachel Rebouche. These controversies extend beyond substantive due process to free speech, the right to travel, and other non-disfavored rights implicated in an abortion context. Scalia warned about the "abortion ad hoc nullifcation machine," in which the connection to abortion limits other, supposedly stronger rights (he complained about restrictions on clinic protesters). Will we see that in reverse--will the connection of other rights to the no-longer-favored abortion context limit those other rights? For example, will the Court allow states to sanction political expression concerning illegal-in-a-state abortions, remaining "scrupulously neutral" about abortion and allowing states to limit certain speech in the name of limiting (unprotected) abortion? Alito and Thomas have supported restrictions on speech with which they disagree; will others follow suit?

    4) How much teeth does rational-basis review have here, if a state goes to the extreme? Is it unreasonable to make a pregnant woman endanger her life or health in favor of a fetus? Is there any other context in which the law requires an ordinary person to risk her life for another?

• Biden's statement attempted to create a campaign issue. He called on Congress to codify Roe (whatever that means). He add that if Congress lacks the votes to do that (which it does), people must elect representatives who will, making. The question is how politically salient this is for the (apparent majorities) who support reproductive freedom--can the issue galvanize supporters to turn out in large numbers in the way it galvanizes opponents? Supporters have had Roe as the guardrail for 50 years. Does its actual loss awaken everyone to the ballot in a way its threatened loss (which was obvious in 2016) did not?

Posted by Howard Wasserman on June 24, 2022 at 04:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 23, 2022

Supreme Court Seminar Inquiries

I am teaching a Supreme Court seminar this coming year. I would welcome any thoughts from those who have taught or are currently teaching such courses about how they structure their seminar, what materials they assign, what kinds of preliminary classes they teach before directly getting into individual cases, and what they have found works well or poorly. I am just as happy to hear from students on the same questions. My email can be found at my faculty bio page. I'm grateful in advance for any communications about this. 

Posted by Paul Horwitz on June 23, 2022 at 01:13 PM in Paul Horwitz | Permalink | Comments (0)

§ 1983 giveth, § 1983 taketh away

Everyone will be talking about the gun case and the prospect that, given this Court's direction, it will soon to be easier to wave a gun in public than to engage in some speech in public. So let me focus on two cases about the scope of § 1983.

Nance v. Ward (Kagan for the Chief, Breyer, Sotomayor, and Kavanaugh) that a prisoner can use § 1983 to challenge manner of execution where the plaintiff's proposed execution method is unavailable under state law and would require the state to change its law. The need to change state law or regulations does not necessarily prevent the state from executing the plaintiff (the touchstone for Heck cases) but delays the execution until the state brings its law into compliance with the Constitution. Many § 1983 claims declare state law invalid and send it "back to the drawing board" to amend the law to comport with the Constitution (as judicially interpreted). Challenges to conditions of confinement can brought through § 1983 and those claims operate like challenges to method of execution--both challenge the implementation of a sentence (death or incarceration) and both may compel changes to state law (e.g., challenges to laws limiting the number of prison doctors or the regulations for prison population) to remedy that violation.

Vega v. Tekoh (Alito for the Chief, Thomas, Gorsuch, Kavanaugh, and Barrett) held that Miranda violations cannot form the basis for § 1983 claims for damages. The point of deparure, unsurprisingly, is whether Miranda is a constitutional rule and thus a "right . . . secured by the Constitution and laws." The majority describes it as a constitutional prophylactic rule but not the Constitution itself, while the dissent (Kagan for Breyer and Sotomayor) argues that the rule is constitutionally grounded (per Dickerson) even if it secures a deeper constitutional commitment against compulsion. Miranda thus is enforceable only defensively, as a basis to suppress evidence in the criminal proceeding.

I confess to not finding this case a huge deal for a couple of reasons, even as an another instance (See Egbert) of the Court eliminating ex post remedies for constitutional violations. Maybe I am missing things. First, Miranda is an odd fit for a § 1983 damages claim against the police officer who took the unwarned statement because the violation is complete only if the statement is offered by the immune non-party prosecutor and accepted by the immune non-party judge. Thus the officer's constitutional liability turns on the actions of two other people. Assuming the officer did not use coercion or force, he did nothing "wrong" unless someone else does something.

Second, I do not understand why this plaintiff does not lose on issue-preclusion grounds. He twice moved to suppress his statements on Miranda grounds and the state trial court twice rejected his arguments. Unless there is something I do not know about California preclusion law, the state court's resolution of the Miranda issue should be preclusive in the § 1983 action. This point also undermines the majority's argument as to why a prophylactic rule is not a "law" for § 1983 purposes. The Court identified numerous problems--judicial economy, conflicting decisions, and federal review of the prior state decision admitting the evidence--weighing against allowing damages suits over even a prophylactic Miranda. But the whole point of  Allen is that the federal court in the subsequent § 1983 action does not review the state court; it is bound by the state court determination and then applies it to the new claim for damages. There is no concern for conflicting judgments or lack of deference; the federal court is bound by the state court ruling. At least where, as here, the state court finds against the state defendant/federal plaintiff. The conflict arises if the state courts find Miranda was violated and the rights holder sues for damages; preclusion does not apply (because the officer was not a party to the prior suit), so the federal court would have a new bite at finding no violation (Alito's preferred conclusion). What am I missing on this point?

Posted by Howard Wasserman on June 23, 2022 at 12:12 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, June 21, 2022

Apocryphal Quote Alert

For the paper that I'm writing, I came across a great quote from Learned Hand, which is that "due process is merely the embodiment of the English sporting idea of fair play." The source for this quote is Felix Frankfurter's 1938 book on Mr. Justice Holmes and the Supreme Court.

There is one small problem. Hand never said this. Frankfurter provided no citation. No opinion or article by Hand contains this line. And I see nothing in Gerald Gunther's biography of Hand on this either. I can't rule out the possibility that Hand made the comment to Frankfurter or wrote it to him in a letter, but I'm skeptical. 

What's especially odd here is that some Michigan state cases (and law review articles) have quoted this phantom line.  This reminds me of the time years ago when I realized that Huey Long just made up a quote from (the late) Chief Justice Taft to the effect that Long was one of the best lawyers to ever argue before the Court. 

 

Posted by Gerard Magliocca on June 21, 2022 at 10:02 PM | Permalink | Comments (0)

COD is for government

A 5-4 Court held in Shoop v. Twyford that a district court erred in ordering transportation of a prisoner to the hospital under the All Writs Act where the evidence to be obtained at the hospital would not be admissible under AEDPA. A jurisdictional problem popped up at SCOTUS--the transportation order was not final. The majority stated in a "terse" footnote that it was appealable under the collateral order doctrine because it burdens state sovereignty and creates public-safety risks; Justice Breyer dissented for Sotomayor and Kagan to argue this does not meet COD requirements; and Justice Gorsuch argued cert was improvidently granted because the Court did not take the case to extend the doctrine. At the very least, it required more than a footnote.

And this is an expansion, as the court of appeals held that state sovereignty that is implicated by any federal-court order compelling a state to do something. Breyer, likening the order to a discovery order, argues that having the state as appealing party should not convert an otherwise interlocutory order (such as a discovery order) into one subject to COD review.

Of course, the modern collateral-order doctrine is skewed towards appeals by the government as opposed to by private individuals. While not framed as "appeal is proper because this is the government," the unprotectable public interests justifying the COD arise most commonly where the government loses on a uniquely governmental issue--e.g,, individual-officer immunity, sovereign immunity, foreign sovereign immunity, discovery orders affecting foreign sovereign immunity. I do not expect, as Breyer  worries, a regime in which government can appeal a common order that a similarly situated private party cannot appeal; but it is not surprising to see COD review of a unique discovery order that applies only to government parties but never to private parties. For example, an order compelling transportation of a prisoner for discovery purposes applies only to government parties and is appealable; a common order compelling discovery, equally applicable to all parties, is not.

Posted by Howard Wasserman on June 21, 2022 at 12:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sponsored Post: Teaching Tips for New Law Professors Webinar (Reposted and moved to top)

Reposting for tomorrow, Wednesday, June 22

Join West Academic casebook authors for the upcoming Teaching Tips for New Law Professors panel at 2 p.m. CDT Wednesday, June 22nd (tomorrow). The discussion will be centered around pedagogy across subject areas, course creation, promoting student engagement, traps to avoid, and more. The panel of award-winning law faculty will offer advice on building and teaching a law school course. There will be time at the end for participants to ask questions.

Date: Wednesday, June 22, 2022
Time: 2:00 p.m.

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Posted by Howard Wasserman on June 21, 2022 at 11:49 AM in Sponsored Announcements | Permalink | Comments (0)