Saturday, January 22, 2022

District court preliminarily enjoins UF conflicts policy

From Friday. The opinion by Judge Mark Walker is near perfect. He loses a point at the end when the court appears to make the injunction universal by ordering UF to take no steps to enforce the conflicts policy "with respect to faculty and staff requests" to testify or consult on cases, not limited to requests from the plaintiffs. The court denied relief as to the policy prohibiting faculty from including institutional identification when signing amicus briefs, because the court could not determine whether that was a university or a "figment of Dean Rosenbury's imagination."

This is not a good opinion for defendants or their lawyers. The opinion begins by comparing UF to the erosion of academic freedom and free speech at Hong Kong University (including removal of a memorial to the victims of Tiananmen Square) not from overt actions of the Chinese government but from university administrators wanting to keep Beijing happy; footnote 12 adds that "[i]f those in UF's administration find this comparison upsetting, the solution is simple: Stop acting like your contemporaries in Hong Kong." The court, emphasized the intemperate statements of the chair of the Board of Trustees, which Walker said "made plain that UF was beholder to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee." Walker calls out UF's lawyers for: 1) failing to adequately brief Pickering or to recognize Pickering as applicable; 2) trashing the plaintiff professors (who continue to work for their client) as traitors, robbers, political hacks, and disobedient liars; and 3) failing to identify UF's interests or how professors' testimony disrupts UF's mission despite four opportunities to do so (including the court continuing argument for a week to give defense counsel an opportunity prepare).

The opinion came on a rough day for the State University System. FIU President Mark Rosenberg resigned out of the blue citing family health reasons, an explanation the Miami Herald eyed with suspicion. This comes a week after FIU's provost resigned. Four Florida universities--FIU, UF, North Florida, and South Florida--are about to enter presidential searches. And the state is considering legislation (when not working on bills compelling the national anthem, prohibiting public-school teachers from talking about LGBTQ+ issue or helping LGBTQ+ kids, and prohibiting teaching historical events that make white people feel bad) that would exempt early stages of presidential searches from sunshine laws. And now a federal court found that the flagship university regards faculty with, at best, contempt.

Posted by Howard Wasserman on January 22, 2022 at 04:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process | Permalink | Comments (0)

Ann Arbor opts for more speech, not enforced silence

A group of anti-Israel protesters has demonstrated outside Ann Arbor's Beth Israel Synagogue every Shabbat since 2003. A tort lawsuit by some congregants against the protesters rightly failed. The Ann Arbor City Council last week passed a resolution "'condemn[ing] all forms of antisemitism, and in particular the weekly antisemitic rally on Washtenaw Avenue." and declaring "'its support for the Beth Israel Congregation, their guests, and all members of the Jewish Community in Ann Arbor, each of whom has the right to worship, gather, and celebrate free from intimidation, harassment, and fear of violence.'"

The Council passed the resolution on Tuesday evening, three days after Colleyville (which it does not mention), although it was in the works for several months. The synagogue had been calling on the city to do something for several years. The Council issued a resolution in 2004, a year after this began, but nothing more recent. The mayor has publicly condemned the protests and apologized to the congregation.

The resolution also "'calls upon the persons who rally to express antisemitism on Washtenaw Avenue to renounce extremism, disband, and cease their weekly show of aggressive bigotry.'” Which, that ought to do it, thanks very much, Ray. The group leader and the lead defendant is Henry Herskovitz, who I assumed was Jewish-but-vehemently anti-Israel; it seems he "identifies himself as a former Jew and has spread Holocaust denial and praised neo-Nazis in blog posts."

The Forward quotes Rabbi Nadav Caine that the synagogue declined involvement in the lawsuit out of hope and faith that the city would take a stand. That point is too bad. I had hoped the synagogue stayed out of the lawsuit because they knew the lawsuit could not and should not succeed. While they could not stop the congregants, they knew enough not to get involved.

David Super has a post about performative politics, which I may want to discuss further. Performative politics can take many forms. This resolution is one example of the form--dictum with no legal force and no likely practical force. But Brandeis might have had such performative steps in mind. Like the synagogue, the city can do nothing to stop these speakers or their speech. But they can take a public stance against those speakers and their speech as part of the public dialogue.

Posted by Howard Wasserman on January 22, 2022 at 11:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Henry Ford apologized?

I had no idea until a link in this article on the long history of antisemitic conspiracy theories took me to Ford's 1927 written public apology following negotiations with Louis Marshall, president of the American Jewish Committee. Ford said he did not know about the content in the Dearborn Independent or The International Jew because he turned management to others; was "shocked" and "mortified" by their content; retracted the statements; withdrew the publications from circulation (although they were, and remain, out there); and asked for forgiveness from the Jewish community for unintentional harm. Marshall responded with a promise to further the request for forgiveness "so far as my influence" can reach, because "there flows in my veins the blood of ancestors who were inured to suffering and nevertheless remained steadfast in their trust in God." Of course, the apology did not prevent Ford from receiving a medal from Nazi Germany.

The apology arose as an effort to resolve a defamation lawsuit against Ford and the Independent by a Jewish lawyer named Aaron Sapiro that exposed Ford's antisemitism. Although the alleged defamatory statements had nothing to do with Sapiro's being Jewish, defense counsel struck two Jewish jurors, plaintiff counsel struck an ex-Klansman, and the judge asked during voir dire whether "any of you, by blood or by marriage, connected with the Jewish race." The case ended in a mistrial when Ford accused Sapiro of bribing a juror and a juror gave a newspaper interview. Ford reached his deal with Marshall to avoid a new trial, wanting to avoid continued bad publicity.

Posted by Howard Wasserman on January 22, 2022 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, January 21, 2022

Republicans and conservarives love univeral injunctions now

Again. As if the handwringing and all that legislation was not based on any real commitment to particularity.

Judge Brown tries to play reluctant universalist, citing Gorsuch and Thomas, calling it a product of the "unique facts before it" and the only way to avoid confusion. Nonsense. He offers one fact to justfy universality--the plaintiff, Feds for Medical Freedom, has a lot of members and continues to add more. But like most justifications for universality, this proves too much. Many organizations have a lot of members. Is universality appropriate in all associational standing cases? Only in associational standing cases involving large associations? And if so, what makes an organization large? Feds for Medical Freedom (Except The Other Vaccinations We Had To Take And Blood-And-Urine Samples We Must Provide) has 6000 members*--where does largeness begin? Or is it only large organizations fighting for causes Judge Brown likes?

[*] Does largeness depend on some denominator? The federal workforce is more than 2 million people.

The claim that tailoring relief is not practical is a cop-out. Here is a tailored injunction--"The US cannot enforce the vaccine policy against members of FMFETOVWHTTABAUSWMP." Ordinary rules of equity have the parties and court monitor ongoing compliance with that injunction and adjust the injunction to changing circumstances--identifying group members, litigating attempts to enforce the policy against individuals, and notifying the court of new FMFETOVWHTTABAUSWMP members who gain the protection of the injunction (which does not even require the court to modify the injunction, since the association is the protected party). It makes no sense to preemptively declare that process "unwieldy" and expand the scope of the injunction from the 6000 members to more than 2 million people who are not members.

Don't worry, though. Judge Brown will take a strong stance against universality beginning in 2025.

Posted by Howard Wasserman on January 21, 2022 at 03:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Technology and sports officiating

I oppose and actively dislike replay and most other officiating technology in sports. So why am I happy about the expansion of  the automated strike zone?

The answer is that the ball-strike call is unique in sport. First, the call is difficult for human officials. The umpire must determine whether a ball traveling as extreme speed with outrageous spin passed in the air through an imaginary moving box, simultaneously judging the horizontal and vertical location within that box. And he must make that call between 250 and 300 times each game. Second, the call can be automated in a way other calls cannot be. The call occurs in a confined and stationary space, at which a few cameras can be aimed; it does not require no movement or following the play. Third, it is one of the few technological advances that does not require breaking the flow of the game.

Count me as hoping this works.

Posted by Howard Wasserman on January 21, 2022 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Legislative and Adjudicative Jurisdiction

Kudos to the First Circuit for getting it right in a case involving a federal prosecution for drug trafficking in international waters. The defendants argued, and the court agreed, that extending the Maritime Drug Law Enforcement Act to international waters infringed on international law and thus exceeded congressional authority. The defendants had moved to dismiss for lack of subject matter jurisdiction, but the First Circuit rightly recognized the issue as one of legislative jurisdiction--Congress' power to enact substantive legislation--rather than the subject-matter jurisdiction of the federal courts. Thus the prosecution fails on the merits because the law being enforced was unconstitutional; the prosecution does not fail for lack of judicial jurisdiction.

Posted by Howard Wasserman on January 21, 2022 at 08:32 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 20, 2022

SCOTUS denies mandamus in SB8, Sotomayor remains pissed

The Court without comment refused to grant mandamus ordering the Fifth Circuit to remand to the district court, which means the case now goes on certification to the Texas Supreme Court. Breyer, Sotomayor, and Kagan dissented--Breyer in a short opinion, Sotomayor in a longer one.

Sotomayor recognizes this as a nonsense delay tactic and calls the majority out for not standing behind its words in WWH. She also acknowledges the limited relief that an injunction of the medical board would provide, saying she had hoped the district court could enter some "mitigating relief," although without describing what that would or could have been. She did up her rhetorical game, calling this a "disaster for the rule of law."

Posted by Howard Wasserman on January 20, 2022 at 06:40 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Nonbinding Dicta About Nonbinding Dicta

To echo a point made by Josh Blackman over at Volokh, I don't understand where the Court gets the authority to declare part of a circuit opinion dicta in an order denying a stay of that circuit judgment. The Court did not take the case on the merits. Thus, the Court's views on whether former presidents can assert executive privilege is, itself, dicta. The DC Circuit need not follow it, though in practice they will just analyze any such executive privilege claim on the merits just to be safe.

Consider a related example. Suppose someone requests certiorari. The Court denies the request. But some Justices declare, concurring in the denial, that this or that in the lower court opinion was dicta. I think that would be an abuse of the certiorari process. How is what the Court just did different?

Posted by Gerard Magliocca on January 20, 2022 at 09:41 AM | Permalink | Comments (0)

Wednesday, January 19, 2022

The Definition of An Insurrection

I thought I would reproduce the following helpful definition from Webster's Dictionary in 1828:

INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.]

1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.

What does this tell us? First, an insurrection is different from a rebellion, though some people used the terms interchangeably. An insurrection does not require "an attempt to overthrow the government." That is instead the definition of a rebellion. An insurrection is something less than that and involves open opposition to the execution of a law by a significant number of people. Take "Shays Rebellion," for example. I'm not sure when that nomenclature became established. Joseph Story instead described that event as an "insurrection" in his Constitutional Commentaries. This makes sense, as the folks who participated in Shays Rebellion were not trying to overthrow the government of Massachusetts in 1787. They were, though, openly defying the lawful authorities there. (Just an aside, slave uprisings in the South were also commonly described as insurrections. Again, these did not involve attempts to overthrow the government.)

It's also interesting to note that the word "insurrection" does not appear in Section Two of the Fourteenth Amendment. In describing whom the states could disenfranchise, the text refers to "rebellion, or other crime." One implication of that language is that "insurrection" was not understood as a crime for purposes of the Fourteenth Amendment, which is consistent with Congress's decision to use a civil remedy to enforce Section Three when the First Ku Klux Klan Act was enacted in 1870. Likewise, the exclusion of insurrection from Section Two made sense because the Framers of the Fourteenth Amendment thought disenfranchisement was a more serious sanction than a prohibition on serving in office. As a result, this stiffer sanction was reserved for the greater wrong--rebellion. 

UPDATE: One additional note. Texas law in the 1850s defined an "insurrection of slaves" as "an assembly of five or more, with arms, with intent to obtain their liberty by force."

Posted by Gerard Magliocca on January 19, 2022 at 09:43 PM | Permalink | Comments (0)

Drexel University VAP Positions

From Drexel University Thomas R. Kline School of Law:

The Drexel University Thomas R. Kline School of Law invites applications for a two Visiting Assistant Professor positions.   One position is dedicated to a faculty member who will teach and research in the area of tax.  The other position is open, with a preference for someone who does research that touches on legal implications of new technology and/or someone open to teaching Torts.  Each position will last two years and VAP’s are expected to fully participate in the intellectual life of the law school.

Continue reading "Drexel University VAP Positions"

Posted by Sarah Lawsky on January 19, 2022 at 03:24 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Judge Scola pulls no punches

From Judge Robert Scola of the Southern District of Florida, pulling no punches in cancelling a scheduled jury trial.

Posted by Howard Wasserman on January 19, 2022 at 01:18 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, January 18, 2022

The Great State of Texida (or Floxas)

Can we combine Texas and Florida into one state? In terms of enacting stupid performative zombie legislation that serves no purpose and addresses no societal problem, they are engaged in a race to the bottom to out-dumb one another. Merging them into one means we can write about the stupidity one time and be done with it.

In July, Texas followed Florida in prohibiting social media companies from regulating speakers and speech on their sites; its law met a similar judicial fate. Now comes Florida SB 1298, which requires all professional sports teams that contract with state and local governments to play the national anthem before games, something Texas passed last year. Like the Texas law, this bill is especially insidious because I do not know who will or wants to challenge its validity or how. (I have not seen any litigation challenging the Texas law). At the committee hearing introducing the bill, a committee member laughed and asked if anyone does not play the anthem; the moron sponsor said it is a "proactive" measure.

Let me offer one interesting twist on this: Could a fan kicked out of the stadium for refusing to stand make out a close-nexus argument against the team, since state law requires the anthem and thus compels the team's actions? I do not think it works because state law requires teams to play the anthem but is silent at what the team should or should not do with fans. But it offers a new way, beyond public funding, to get at teams that attempt to regulate fan expression.

Posted by Howard Wasserman on January 18, 2022 at 01:49 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, January 17, 2022

Fifth Circuit certifies to Texas Supreme Court

Over a dissent, the panel certifies the following to the Texas Supreme Court:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.

I think this is nonsense, an obvious attempt to delay resolution of the question of SB8's constitutional validity. And I agree (for once) with Slate's Mark Joseph Stern that the lower courts are trying to run out the clock until Dobbs (they hope) overrules Roe and Casey. But this delay is not keeping abortion a dead letter in the state.

Imagine everyone had not dragged their feet. The case returns to the district court, which declares SB8 invalid (Judge Pitman so held in U.S. v. Texas). Now what? The injunction would prohibit the medical boards from taking administrative actions against any plaintiff doctor or provider who performs a post-heartbeat abortion. That is the extent of the court's remedial power in that limited case. The injunction would not prohibit private individuals, who are not parties to the case, from filing SB8 lawsuits for damages. The injunction would not protect non-medical providers (who are not subject to the boards' regulatory authority) from aiding-or-abetting lawsuits. The decision would provide persuasive precedent as to SB8's constitutional validity and would move the case towards SCOTUS review on that issue. But the judgment would not enable providers to resume post-heartbeat abortions, because it would not protect them from the private suits that is the real cause of the chilling effect.

Meanwhile, three state-court actions remain pending and no one seems to be doing anything in them.

Posted by Howard Wasserman on January 17, 2022 at 07:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, January 16, 2022

The Unequal Footing Principle

In Shelby County, the Supreme Court invented the principle that the states are on an equal footing with respect to sovereignty. The authority cited by the Court for that proposition was remarkably weak. And the analysis was unsound because the ratification of the Fifteenth Amendment (the basis for the Voting Rights Act) was not done with each state on an equal footing, as some states (like Georgia) were required to ratify the Fifteenth Amendment to return to Congress.

There are other problems with Shelby County's broad reading of the equal footing principle. One is that when Congress readmitted the former Confederate States, many of them were readmitted with a statute that imposed special conditions on them with respect to voting and officeholding, including the express incorporation of Section Three of the Fourteenth Amendment. Another is that (before the Civil War) John Bingham pointed out that the 1787 Constitution does not treat all states equally with respect to slavery. Article One, Section Nine, Clause 1, which discusses the importation of enslaved people, says that "the states now existing" could permit slave importation unless and until Congress imposed a ban. Bingham argued that this excluded states added after the original 13, otherwise the provision would have just said "the states."

The 1868 Act of Congress readmitting some of the ex-Confederate states with conditions could become relevant in future litigation. 

Posted by Gerard Magliocca on January 16, 2022 at 10:13 AM | Permalink | Comments (0)

Saturday, January 15, 2022

Mark Finchem and Section Three

Mark Finchem is a state representative in Arizona. He is now running for the GOP nomination to be Arizona's Secretary of State; the official in charge of running elections. Former President Trump has endorsed Finchem's candidacy. Representative Finchem was present at the "Stop the Steal" rally on January 6th and there are allegations that was connected with some of the groups that engaged in violence on that day. He is a member of the "Oath Keepers" and recently described the 2020 election in Arizona as "rigged."

Consequently, Representative Finchem may be barred from serving as Secretary of State by Section Three of the Fourteenth Amendment. He was a state legislator on January 6th who had sworn an oath to uphold the Constitution. If he "engaged in insurrection," then Section Three bars him from serving in any state executive office. Section Three is the only federal constitutional requirement for state office.

My understanding is that any voter in Arizona may challenge the eligibility of a primary candidate for state office on the ground that he cannot lawfully hold the office for which he is running. 

Posted by Gerard Magliocca on January 15, 2022 at 09:43 PM | Permalink | Comments (0)

Some Additional Section Three Resources

I've found some additional cases and authorities on Section Three that are not in my law review article. None of them are terribly significant, but for those who are interested I thought I would just list them.

Opinion of Justices, 12 Fla. 651 (1868) (advisory opinion holding that members of the state secessionist convention were not subject to Section Three).

Hudspeth v. Garrigues, 21 La.Ann 684 (1869) (holding that a state court clerk under the Confederacy was not subject to Section Three).

Powell v. Boon, 43 Ala. 459 (1869) (mentioning Section Three in an offhand way).

Op. of the Attorney General, May 24th 1867 (defining "engaged in insurrection" as used in the Reconstruction Acts, incorporating Section Three of the proposed Fourteenth Amendment).

There's at least one more case from Kansas that I will discuss in another post.

Posted by Gerard Magliocca on January 15, 2022 at 08:42 AM | Permalink | Comments (0)

Friday, January 14, 2022

conference - Mass Torts Evolve: The Intersection of Aggregate Litigation and Bankruptcy

Related to my post below about Dopesick and the opioid litigation, Samir Parikh sends word about a symposium he is organizing for Fordham Law Review that unpacks the issues at the intersection of aggregate litigation and bankruptcy, focusing on Purdue, USA Gymnastics, Boy Scouts of America, and other prominent mass tort bankruptcies register here  - https://t.e2ma.net/message/ettj4g/i485hj

great lineup and here's the description:

 

This symposium addresses the novel intersection of civil procedure and bankruptcy law.  Corporate defendants – including Purdue Pharma, Boy Scouts of America, and USA Gymnastics – facing substantial numbers of mass tort claims have filed for bankruptcy to exploit statutory loopholes and impose a new bargain on tort victims.  This interdisciplinary event will feature panels discussing bankruptcy preemption and multidistrict litigation, due process, representation issues regarding unidentified victims, settlement dynamics in complex cases, and victims’ rights.

 

 

Posted by Orly Lobel on January 14, 2022 at 08:33 PM | Permalink | Comments (4)

When laws send a message

From the Eastern District of Pennsylvania, rejecting a challenge by a group of Italian-Americans to Philadelphia changing the city's official holiday from Columbus Day to Indigenous People's Day. The court, rightly, the plaintiffs lacked standing based on the city's policy insulting Italian-Americans by declining to celebrate Columbus. I continue to believe what this really means is that the plaintiffs did not suffer a violation of their substantive constitutional rights, but the point is the same.

Reading the arguments, I  was reminded of the travel-ban cases in which plaintiffs argued for standing and a universal injunction based on the message of exclusion sent by the regulation, independent of any enforcement or action under it. I argued at the time that this is not a sufficient injury (substantive violation) and does not create the predicate for beyond-the-plaintiffs relief, because it is the enforcement of law or policy that violates rights, not the law or policy itself. This case presents the same issue. But I wonder how many people who argued for message-of-exclusive standing in 2017 disagree with this decision.

Posted by Howard Wasserman on January 14, 2022 at 05:04 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 13, 2022

Recommended: Dopesick, the Hulu series & book

If you haven't watched it, I highly recommend Hulu's limited series starring Michael Keaton, Dopesick, based on the book Dopesick: Dealers, Doctors and the Drug Company that Addicted America by Beth Macy. It tells the story of the lawsuits of over-prescription of addictive pharmaceutical drugs and the corporations and marketing schemes behind opioid crisis. It shows the pain and the magnitude of the epidemic and behind the scenes dramatization of the executive greed, the doctors who prescribed and the attorney generals who ventured to take on a privately held billion dollar pharma. There are dozens of ongoing cases and also interesting angle is the Sackler's family philanthropy (from Harvard to the Louvre to Tel Aviv U to Guggenheim) and new questions about name removal (I believe the Louvre is the first to remove their name from association with the museum). 

Posted by Orly Lobel on January 13, 2022 at 04:44 PM | Permalink | Comments (4)

Judges Participating in Cases

Before we return to more Section Three posts, I thought I'd ask a more esoteric question.

Suppose an appellate judge is part of a panel that hears a case. Before the opinion issues, though, the judge dies or retires. Then the decision is issued without her, sometimes with a notion that she heard the case but is no longer a panel member. This makes sense, in that you could say the relevant point in time is the decision rather than the argument.

Now think about a Justice who joins the Supreme Court after the start of the Term, the way Justice Barrett did. She was not part of the decisions from the cases argued that Term before she was confirmed. But she was on the Court while those cases were pending decision and when they were decided. Why, then, could she not vote on them? She could read the briefs, of course, and Justices do vote in cases where they cannot attend the oral argument due to illness. And the Court had a vacancy, so you can't say that the reason is because the Court was at full strength until she was confirmed.

The Court's custom, at least in recent years, is that a new Justice who starts after the Term begins and fills a vacant seat does not vote on or participate in the pending cases. But why? 

Posted by Gerard Magliocca on January 13, 2022 at 01:52 PM | Permalink | Comments (0)

I am officially old (corrected, still old)

A 1L in my Civ Pro class this semester is the child of a woman who took Civ Pro from me in fall 2002 at Florida State, the first time I taught the course as a VAP.

Posted by Howard Wasserman on January 13, 2022 at 10:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Zombie Laws

Has been published in Lewis & Clark Law Review. Here is the abstract. Forever grateful to Judge Costa for labeling this concept I had been thinking about.


A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes how Congress or state legislatures can eliminate or enable future enforcement of zombie laws by repealing or retaining them, depending on their views of judicial precedent and what they want to see happen with their laws in the future.

And just because all scholarship should have music attached to it:

Continue reading "Zombie Laws"

Posted by Howard Wasserman on January 13, 2022 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)