Monday, October 25, 2021

Welcome to the Velt Serye

In The Forward, as we prepare for the most Jewish World Series in history, talking about Jews playing rather than sitting out. Max Fried's expected Game 2 start, in which Joc Pederson should be the Braves DH and Alex Bregman will bat third for the Astros, is the one to watch.

Update: Should we be concerned that this most-Jewish Series pits ethically compromised teams? Well, if our comparator is 1959 (the prior 3-Jew Series), it is worth noting that the Go-Go Sox stole signs. Their general manager, who knew? Hank Greenberg. Turns ourt some of Greenberg's championship teams in Detroit also stole signs.

Addendum: Garrett Stubbs, the Astros' third-string catcher, is not on the World Series roster. So that leaves us with three Jews on rosters, matching 1959, but all will play.

Posted by Howard Wasserman on October 25, 2021 at 01:08 PM in Article Spotlight, Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Sunday, October 24, 2021

Texas and Section 3 of the Fourteenth Amendment

I won't do any more of these posts after this one. Texas state law on presidential candidate eligibility is also written broadly and encompasses Section 3 if you assume that provision state an eligibility requirement for the White House. To wit:

(a) A political party is entitled to have the names of its nominees for president and vice-president of the United States placed on the ballot in a presidential general election if:

(1) the nominees possess the qualifications for those offices prescribed by federal law;

Federal law, of course, includes all federal constitutional provisions. My point here is simply to say that while many states do not currently have state authority that gives state officials the power to enforce Section 3, some do. And at least one that does (Rhode Island) is likely to execute that power in a way that will trigger litigation in two or three years. 

Posted by Gerard Magliocca on October 24, 2021 at 08:33 PM | Permalink | Comments (0)

Saturday, October 23, 2021

Section 3 and State Law--Rhode Island

I think that I have found one state where state law can be read to encompass Section Three of the Fourteenth Amendment. Here is Rhode Island's statute on candidates seeking to run in the state's presidential primary:

Any person seeking the endorsement of a national political party for which a primary is being held shall, during the ninety-fourth (94th) through and including the ninety-sixth (96th) day preceding the presidential preference primary being held, provide written notification to the secretary of state of his or her intention to run in the presidential preference primary. When the deadline falls on a Saturday, said written notification may be filed with the secretary of state on that Saturday until noon (12:00) p.m. The notification shall include the candidate's name and address and a statement affirming their eligibility, under the laws and Constitution of the United States, to serve, if elected, in the office of President of the United States. The notification shall also include the name and contact information of the designee authorized by the presidential candidate to act in his/her stead in Rhode Island.

            (b)(1) Upon receipt of the notification referred to in subsection (a) of this section, the secretary of state shall, by six o'clock (6:00) p.m. on the same day, prepare petition papers for candidates who are eligible to serve in the office of President of the United States, clearly marked with the candidate's name, party designation, and the office the candidate seeks; provided, however, that for notifications filed on a Saturday deadline by noon (12:00) p.m., petition papers shall be prepared by two o'clock (2:00) p.m. on that Saturday.

There's more, but here's the takeaway. The Rhode Island statute refers in general terms to eligibility, rather than stating specific eligibility criteria that do not include Section 3. Moreover, the eligibility determination in the first instance must be made by the Secretary of State. Thus, the Rhode Island Secretary of State can determine if Section Three is an eligibility requirement for President and decide accordingly with respect to a candidate. And then litigation would follow if the candidate was denied ballot access on Section 3 grounds.

Perhaps another state has a law like Rhode Island's, but I doubt it. Some states simply let the party chairs decide on primary eligibility and say nothing about the issue otherwise. Other states refer to only the requirements set forth in Article II of the Constitution.

Posted by Gerard Magliocca on October 23, 2021 at 09:41 PM | Permalink | Comments (4)

Friday, October 22, 2021

Procedure makes strange bedfellows

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

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

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

Posted by Howard Wasserman on October 22, 2021 at 05:34 PM | Permalink | Comments (3)

SCOTUS grants review in SB8

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

Our papers are about to change dramatically.

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

Thursday, October 21, 2021

Ely, Roe, and the Wages of Judicial Recklessness

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

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

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

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

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

Wednesday, October 20, 2021

The Most Overrated (Former) Supreme Court Justice

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

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

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

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

Posted by Gerard Magliocca on October 20, 2021 at 09:10 PM | Permalink | Comments (11)

JOTWELL: Mullenix on Norris on neoliberal procedure

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

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

Tuesday, October 19, 2021

VAPs and Fellowships 2021-2022

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

You may also add information to the spreadsheet.

Posted by Sarah Lawsky on October 19, 2021 at 07:00 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (2)

Speech or Debate Immunity and defensive litigation

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

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

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

Monday, October 18, 2021

The Burden of Proof in a Section 3 Case

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

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

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

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

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

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

Lots of SB8 stuff

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

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

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

Qualified immunity returns with a vengeance

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

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

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

Friday, October 15, 2021

Misapplying the thin-skulled plaintiff

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

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

I take issue with this:

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

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

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

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