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 (0)

Lots of SB8 stuff

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

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

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

Qualified immunity returns with a vengeance

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

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

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

Friday, October 15, 2021

Misapplying the thin-skulled plaintiff

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

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

I take issue with this:

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

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

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

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

How would RBG have voted in Johnson and Eichman?

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

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

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

Defining an Insurrection

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

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

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

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

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

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

Thursday, October 14, 2021

5th Circuit stays injunction in US v. Texas

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

SCOTUS is next.

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

FDR on States'-Rights

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

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

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

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


Posted by Gerard Magliocca on October 14, 2021 at 01:14 PM | Permalink | Comments (7)

The state role in offensive and defensive litigation

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

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

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

Wednesday, October 13, 2021

Should Court Reformers Attack the Idea of Law?

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

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

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

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

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

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

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

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

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

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

Argument in Thompson v. Clark

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

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

Justice Thomas?

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

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

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

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

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

The Return of Space Law

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

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

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

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

Tuesday, October 12, 2021

Perverse incentives and sports rules

Many sports rules are about eliminating perverse incentives--to keep a team from intentionally doing something contrary to the game's ordinary expectations, where doing so offers an unexpected benefit. That is the basic idea behind the Infield Fly Rule and its cousin the dropped-third-strike rule.

Watch replays of the bizarre ground-rule double that denies the Rays a run in Sunday night's Game 3 loss to the Red Sox (the Sox clinched in four on Monday night). The ball hit the top of the right-field wall and back into the field, bounced off the right-fielder and back into the stands. The umpires correctly ruled it a ground-rule double; two rules discuss a fair ball deflecting off a fielder and out of play. The right-fielder did not intentionally knock the ball into the stands, which would have triggered a different rule. At the same time, he did not try that hard to keep it from going into the stands. Watching the replay, he reaches out to grab the ball as it is heading over the wall, then seems to pull his glove back. It may be that his body was against the wall and he could not reach further without going over.

Back to perverse incentives: Perverse incentives to do what--Intentionally knock the ball into the stands or to not try too hard to keep the ball in play. The rules address the former. But they do not address the latter, which can work to a team's advantage. While this play was unusual (few stadiums have 6' outfield fences), the incentive is not. This happens a fair bit at Wrigley Field; a ball that sticks in the ivy on the outfield fence is governed by the same rule and we often see players ease up on a ball that is clearly going into the plants or where the ball and player reach the wall at the same time. There may be nothing the rules can do. It is hard enough to determine player intent. It would be impossible to determine that a player did not try hard enough to prevent something unintentional from happening. There is some talk that baseball should change the rule to award two bases from where the runners are when the ball leaves the field, which is the rule if the player intentionally deflects the ball into the stands. Baseball might be able to carve out deflections from balls traveling on their own. But umpires like clear rules, so the push to change it may not get very far.

Finally, a lawyering lesson. On Sunday, Rays manager Kevin Cash argued that the runner should have been allowed to score, given how the ball was hit, that he was running on the pitch, and that he would have scored had the ball remained in play. But it was pointed out that in a 2019 regular-season game against the Blue Jays, a Rays outfield lost control of a ball and the ball went into the stands; Cash argued that it was a ground-rule double and that the baserunner, who would have scored on the play, had to return to third. You argue the interpretation that works for your client.

Posted by Howard Wasserman on October 12, 2021 at 11:14 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Sunday, October 10, 2021

Fair Play and Democracy

Turning back to the subject of FDR's Constitution Day Address, here is one passage that stands out: 

Nothing would so surely destroy the substance of what the Bill of Rights protects than its perversion to prevent social progress. The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect. Desperate people in other lands surrendered their liberties when freedom came merely to mean humiliation and starvation. The crisis of 1933 should make us understand that.

A common theme in the 1930s and 1940s was that democracies in Europe failed after World War I because nations could not respond effectively to economic distress and inequality. One implication of this view is that law was neither a cause nor the salvation. You see this idea in Learned Hand's "Spirit of Liberty" speech in 1944 and in some of Churchill's writings from the same period. This is the intellectual context for FDR's statement in the Address that the Constitution is a "layman's document, not a lawyer's contract." Lawyers are not the heroes in his constitutional narrative: they are the villains. The fact that they are the villains explains why lawyers and courts have ignored the Address for as as long as they have. (As I'll point out in my paper, the Constitution Day Address is a pre-civil rights era story of the United States. Lawyers look better after Brown.) 

When people consider the more recent democratic failures, they instead emphasize cultural factors. The Arab Spring, for instance, is not seen as something grounded in economics. Neither is the failure of democracy in Russia in the 1990s. But you could describe both events in those terms. Granted, there was a stronger link between economics and politics in the 1930s and 1940s (think of people like Keynes and Hayek and their influence). But even in the 1980s, I would venture to say that successful democracy was associated closely with economic success in a way that faltered in the 1990s. Perhaps that is because of the rise of China. More on that in a later post.

Posted by Gerard Magliocca on October 10, 2021 at 09:44 PM | Permalink | Comments (4)

Argument preview for Thompson v. Clark

SCOTUS on Tuesday hears argument in Thompson v. Clark, considering whether favorable termination for certain § 1983 claims requires an affirmative showing of innocence or a showing criminal proceedings ended in a manner not inconsistent with innocence. My SCOTUSBlog preview is here.


Posted by Howard Wasserman on October 10, 2021 at 02:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, October 09, 2021

Administrative Stay in SB8

The Fifth Circuit issued an administrative stay of the injunction and gave the U.S. until Tuesday to respond to the motion for stay pending appeal. The U.S. has the option of asking SCOTUS to stay the administrative stay or briefing the stay in the Fifth Circuit.

This is wrong. Because the district court (in 113 pages) issued the injunction, the status quo that the stay is designed to maintain changed to favor non-enforcement of the law. And the balance of equities favors the U.S. The state has an interest in enforcing its laws. But the state always has that interest, so that cannot be the end of the inquiry. Hundreds of pregnant people are forced to continue pregnancies or to incur the cost and burden of traveling outside of Texas while the litigation is ongoing. And non-enforcement pending review does not produce "chaos" with long-term consequences that the state cannot unwind. (Compare marriage-equality, where requiring licenses to be issued would have meant thousands of same-sex couples with valid-at-the-time-but-no-longer-valid that the state must either accept contra state law or retroactively invalidate).

SB8 attempts to account for this situation. A provider can be liable for abortions performed in reliance on a "decision" that was reversed or overruled on appeal. It appears to allow a plaintiff to recover for abortions performed while enforcement is enjoined, if the injunction is reversed on appeal.* So the state does not lose enforcement, in that a plaintiff can recover later (four-year limitations period) on abortions performed pursuant to an injunction. That should be factored into the balance of equities, as decreasing the harm to the state. In fairness, the lawfulness of that provision as applied to injunctions is uncertain; the Court has never resolved whether a party can be retroactively liable for conduct taken while enforcement of a law has been enjoined. But that is on Texas, not the rights-holders on whose behalf the U.S. has sued.

    [*] I say appears because "decision" is a legally meaningless term--courts issue judgments and opinions. So that could mean the provider can be liable for relying on Roe and Casey if they are eventually overruled or for relying on the precedent of one SB8 case.

Posted by Howard Wasserman on October 9, 2021 at 08:24 AM | Permalink | Comments (3)